COURT FILE NO.: FS-19-11505

DATE: 20210429

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Vivian Ammar

Applicant

– and –

Michael Lawrence Perdelwitz (Smith)

Respondent

Susan Harris, for the Applicant

Martin Zatovkanuk, for the Respondent

HEARD: March 15th, 16th, 17th, 18th and 19th , 2021

REASONS FOR DECISION

M. Kraft, J.

Overview

[1] This was a five-day trial that focused on the following issues: (1) the parenting arrangements for the parties’ two children; (2) the determination of the ownership of the condominium in which the parties’ resided, located at 60 Heintzman Street, Unit 440 (“60H”) and the parties’ respective unjust enrichment claims, depending on the ownership determination; (3) child support; and (4) spousal support.

[2] The applicant, Vivian Ammar, (“Vivian”) and the respondent, Michael Lawrence Perdelwitz (Smith), (“Michael”), are common law spouses. They met in the Fall of 2007. According to Vivian, they dated on and off until they moved in together on March 18, 2011. [1]

[3] The parties have two children of their relationship, Clair (now 8 years old) and Nicholas (now 5 years old).

[4] The parties’ relationship broke down irretrievably and on September 6, 2016, 5 ½ years after they began to cohabit, they separated. However, they lived under the same roof for reasons set out below in this judgment until December 29, 2020, when Michael was charged with assaulting Vivian. [The criminal charges remain outstanding.]

[5] Prior to the trial, the judge who presided over the parties’ trial management conference ordered that the witnesses’ evidence-in-chief was to be adduced by way of affidavit. They were also permitted to testify in chief orally before the cross-examinations took place. The parties filed document briefs, supplementary documents briefs and exhibit briefs in advance of the trial. I made it clear to the parties that I would only consider documents in the briefs which had been referred to in at least one party’s evidence, as evidence adduced at trial. In addition, Vivian read in evidence which Michael had provided on his Questioning, as part of her case.[2] Finally, at the start of the trial, I disposed of a motion, brought by Michael, in which he sought an order that entries in his personal journal be struck from Vivian’s evidence. For oral reasons given at that time, I granted the husband’s motion.

Issues One: Parenting Arrangements (Decision-Making Authority and Parenting Time)

Evidence

[6] Clair Samia Ammar Perdelwitz (“Clair”), was born on June 8, 2012 and Nicholas Saba Ammar Perdelwitz (“Nicholas”), was born on February 28, 2016.

[7] Vivian seeks a parenting order which mirrors the status quo that has been in place since the birth of the children. Thus, she seeks an order that she continue to be the children’s primary parent and that she make the parenting decisions when significant issues relating to a child arise. Vivian seeks a residency schedule where the children will reside with her primarily and Michael’s parenting time will occur twice during the mid-week after school/daycare and on alternate weekends. She submits that this schedule is in the children’s best interests, given their ages and stages of development. Vivian submits that the parties have never communicated effectively and, therefore, cannot cooperate in jointly making important decisions about their children, given the high conflict between them and given that Michael has been psychologically abusive toward her throughout the relationship and since the separation.

[8] Michael seeks an order that the parties share decision-making authority over the major decisions that impact the children and an equal time-sharing residential schedule, such that over a two-week period, the children reside with him 7 overnights out of 14: in Week One, the children would reside with him from Sunday, at 5:00 p.m. to Thursday morning, when they would be dropped off at school and, in Week Two, the children would reside with him from Sunday at 5:00 p.m. to Wednesday morning, when they would be dropped off at school. Michael seeks no weekend time with the children. Michael’s evidence regarding his proposed decision-making regime and parenting time schedule did not address the high level of conflict between the parties or the best interests of the children.

[9] Michael is a recovered alcoholic and drug addict. He has been drug-free and alcohol-free for close to 30 years. As part of his ongoing sobriety, Michael participates in weekly support groups at Alcoholics Anonymous (“AA”) and Narcotics Anonymous (“NA”), attending anywhere from 1 to 7 group sessions weekly.

(a) Parenting Roles of the Parties during the Relationship

(i)Background

[10] The children have lived in the condominium unit at 60H during their entire lives. They have friends in the building. The parties’ neighbours (the Weilands) and their grandchildren are like family to the children.

[11] During the relationship, Michael worked at several jobs, mostly as a construction worker, a commercial diver, a football referee, a scuba diving instructor and a hockey referee for the Greater Toronto Hockey League (“GTHL”). In 2016, Michael secured full-time employment with the City of Toronto, first, in garbage collection, and as of 2018, with Ferry Services. He continued to referee hockey, do rental goalie work and part-time/contract commercial diving work on the side.

[12] Vivian testified that she had worked five years in the photography industry prior to meeting Michael. When the parties began cohabiting in March 2011, Vivian had been working as an event waiter and bartender at places such as Graydon Hall and for a corporation, Teknion. She also assisted photographers from time to time on photo shoots. Vivian did not work for just over a year after Clair was born. In August 2013, she returned to work as an event server on reduced hours. Once Nicholas was born in 2016, Vivian stopped working outside of the home at all. Vivian explained that between Clair’s birth and the birth of Nicholas, when she was not able to work at events, she subcontracted out her work for a profit. Her tax information supports that she continued to do that until some point in 2017.

[13] During the relationship, Michael was the breadwinner for the family and Vivian was a stay-at-home mother, looking after the children and household. Michael would travel out of town for various contract construction and diving jobs. It was very common, according to Vivian, that Michael be out all day and into the night, when he would return home to eat and sleep.

(ii) Vivian’s Evidence

[14] Vivian testified that, prior to Nicholas starting school in September 2020, she had been the primary parent at home looking after Clair and Nicholas, as the parties could not afford day care. Although both children now attend school, she has remained their primary parent. Vivian’s usual routine with the children, includes getting up with the children, assisting them with their self-care, getting them dressed, making them breakfast and walking the children to the school bus. She then returns back to 60H, cleans up and starts preparation for lunch and dinner. Prior to Nicholas starting pre-school, Vivian spent the days with Nicholas at early years children’s programs at the library, and also taking him to swimming classes, drumming classes and various outings. She then picks the children up after school; works with them on their homework; makes dinner; and assists the children with their bath and bedtime routines. Vivian is the parent who engages in all self-care routines with the children including bathing, nail cutting and hair cutting, and she is fully responsible for meeting all of their physical and emotional needs, including doing their laundry, meal preparation, mending, comforting, soothing the children and playing with them.

[15] Both parties testified that on Saturdays, Vivian generally takes the children to her parents’ home, along with Vivian’s sister, Bernadette Ammar (“Bernadette”), and spends the day there with her parents and siblings, often including dinner. Michael deposed that he did not often attend.

[16] According to Vivian during the relationship, Michael was not overly involved with the children; their routines; their care; or their activities. Vivian testified that Michael is a “fun Dad” in that he is not involved in the day-to-day parenting of the children or their routines such as meals, bath time, bedtime, or homework. Michael did play with the children, teach Clair how to play checkers and Chess, and take the children ice skating, swimming and to the Toronto Island when it opened.

[17] Vivian stated numerous concerns about Michael‘s judgment, which she believes negatively impacts his parenting ability, as follows:

a. She believes that Michael is addicted to watching pornography. This addiction negatively affects the children because it distracts him and also contributes to Michael having a “twisted view of women”. [Michael did not deny that he has or had an addiction to watching pornography].

b. Michael is a hoarder. He picked up things from around the city and brought them back to 60H, filling the condominium with unsafe items and leaving little room for the children to play. Michael regularly bought large amounts of produce that the family did not eat. Michael would not allow Vivian to throw out the produce, even when it became rotten. When she refused to use the rotten food, he told the children that she would not allow them to eat the food he bought which is why it was rotting. Vivian believes that the children are impacted by Michael’s hoarding tendencies. There is significant clutter around the home and Michael regularly leaves dangerous tools within Nicholas’ reach.

c. Michael physically disciplines Nicholas inappropriately. Michael slapped Nicholas’s hand when he touched a lamp; violently spanked Nicholas for throwing sand; spanked Nicholas for grabbing a toy out of Clair’s hand; hit Nicholas for pushing the elevator button repeatedly; spanked Nicholas after being out for dinner with the children; spanked Nicholas for spilling his juice container; and spanked Nicholas for pushing Clair off a chair. When Vivian told Michael that he is not allowed to spank Nicholas, he responded by saying, “I’m allowed to spank. CAS said I’m allowed to spank from age 2 to 12 years old.”

d. She has serious concerns about Michael’s parenting decisions in terms of safety. Michael would place his toolboxes in places within Nicholas’s reach, without regard for the danger of doing so. Michael had also left sleeping pills out where the children could have ingested them. Vivian is vigilant about moving any unsafe items out of Nicholas’s reach and would often tell Michael to be cognizant of these issues. Notwithstanding Vivian’s efforts in this regard, Michael would take his dangerous items, like his toolbox, and move them back to places where Nicholas could access them. On one occasion, Vivian found Nicholas with a mouth full of screws. Michael also insisted on leaving a swimming pool on the balcony, which was filled with water, as well as a step stool on which the children could climb when they were out on the balcony. Vivian repeatedly told the children not to climb on the stool when they were on the balcony. Michael mocked her in front of the children about this.

e. She also expresses concerns about Michael’s tendency to become upset and angry with the children, due to what she believes is a low frustration tolerance on his part. Michael is self-absorbed such that, if his personal needs were not being met, as for example, his sleep being interrupted; not being able to exercise; or not being able to leave the home to attend an AA/NA meeting, he would have an outburst and yell at the children. Audio recordings were played at the trial, which confirm that Michael was telling things to the children such as: Mommy has anger management problems and there is constant dysfunction in this family. Further, the audiotapes include Michael telling Nicholas to be quiet; telling Clair that she is going to grow up and hate her husband, but he hopes she will not; saying to Nicholas, “Nicholas, you are going to listen to me or I’m not going to listen to you”; and telling both children, [“it is because of Mommy that you kids hate me”.][3] Vivian believes that Michael has no insight into how these comments are damaging to the children and not in the children’s best interests. Further Vivian believes that these kinds of comments demonstrate Michael’s inability to place the children’s needs ahead of his own needs.

f. She has serious concerns about Michael’s parenting judgment in terms of what is appropriate to expose the children to. For example, Michael testified that he has brought both children to AA and NA support group meetings when such meetings were conducted in person and on zoom. Vivian expressed to Michael that she did not feel it was appropriate for Clair and Nicholas to attend these support meetings, especially as the children have grown and understand the content of what is being discussed. Michael did not seem to appreciate why exposing the children to AA or NA meetings may not be in their best interests. Vivian testified that Michael’s decision in this regard, represents his poor parenting judgment.

g. Vivian also relies on the position of Michael’s examination-in-chief at trial, where he testified that he had listed no expenses relating to the children’s school supplies, children’s clothing or food for the children, in his most recent sworn financial statement, dated February 24, 2021, since those are all things “Vivian looks after”.

Michael’s Evidence

[18] Michael testified that he attends support group meetings as often as he can. He generally attends AA (Alcoholics Anonymous) and NA (Narcotics Anonymous) and he has also attended Sex and Love Addicts Anonymous and Over Eaters Anonymous. Since the Covid-19 pandemic began, Michael has attended AA and NA meetings via Zoom.

[19] During his examination-in-chief, Michael testified that before the Covid pandemic began, when he was not working, he tried to spend time with the children as much as he could, but he acknowledged that it was hard, “given [his] schedule”. When asked about the parenting roles and routines after Nicholas was born, Michael confirmed that Vivian’s role was to look after Nicholas and that he would try and do things with Clair. When Michael was home from work, he expressed frustration during his testimony with being woken up by the children and not being respected.

[20] Michael had taken the children to both AA and NA meetings when such meetings were in-person. Since Covid-19 began, he has had the children attend AA and NA meetings with him via Zoom.

[21] Michael would like to be the parent to stay at home with the children during the weekdays and asserts that Vivian ought to be the parent who looks after the children on the weekends. Specifically, Michael expressed that he would like to be a stay-at-home father from Monday to Friday. He would work when the children are in school and on weekends. Alternatively, Michael proposes a parenting time schedule where the children will live equally with both parents.

[22] He testified that Vivian was not nice to him, as she did not show appreciation for the fact that he works 12-15 hours a day. Michael’s future parenting proposal is premised on his feeling that Vivian had not worked in the 4 years that followed the separation and it is now his turn not to work.

[23] Michael has no issues about the children’s education; their school placement; their current doctor and dentist; or with the children continuing on with the activities in which they are enrolled. [All of these decisions were parenting decisions made by Vivian.]

[24] Michael testified that Vivian is effective and described her as “someone who gets things done”. He also admitted that the Vivian is a capable parent and is the parent who got the children ready for bed at night; got them ready for school; took them to the school bus; and attended events at the children’s school.

[25] In answer to questions posed by the court about Michael’s involvement with the children and/or his parenting role, Michael’s evidence was that:

a. Vivian never went out of town once the children were born or left the children in his care;

b. He had never had a day where he looked after the children from morning to bedtime on his own; prepared their meals; or conducted bath time or bed time routines on his own;

c. He did not attend parent-teacher meetings this year or last year;

d. He has not met Nicholas’ teacher. He did not recall whether he had met Clair’s teacher;

e. He has spoken to the children’s teachers on a couple of occasions; and

f. He never sat down with the children with Vivian to tell them about the separation.

(b) Toxicity in the Home after Separation

(i)Vivian’s Evidence

[26] Vivian decided to end the relationship with Michael in September 2016. She explains that she was solely raising the children, without any emotional or physical support from Michael, and that she had been psychologically harmed and been the subject of him being physically violent. Despite Vivian telling Michael that their relationship was over, Michael refused to accept this decision. He refused to leave 60H, even though he owned a condominium in the neighbouring building, at 61 Heintzman Street (”61H”) and could have given notice to the existing tenants of 61H. Vivian did not believe that she had the financial resources to move out of 60H with the children.

[27] Despite their separation, Michael continually engaged her in conversations about reconciliation. Vivian repeatedly told Michael she could not continue to be in a relationship with him. As a coping mechanism, she disengaged from having communication with Michael. She stopped cooking for him; she stopped doing his laundry; she no longer advised Michael of her whereabouts or daily plans; and she avoided having any unnecessary conversations with Michael.

[28] According to Vivian, the situation in the home had become toxic and hostile. Living separate and apart in 60H was extremely difficult for her. Because she was financially dependent on Michael and Michael owns 61H, which was close by, she wanted Michael to give notice to his tenants and move into 61H. Michael refused.

[29] Michael was regularly critical of Vivian and psychologically abusive toward her after she told him of her wish to separate. On two occasions, Vivian changed the locks on 60H (once in 2017 and a second time in 2018), in an effort to create a physical separation from Michael. Although she did so on the advice of a lawyer and believed that she was legally permitted to do so because the parties were not married and thus 60H is not a matrimonial home. However, Michael called the police and Vivian was told by the police that she had to permit Michael re-entry into the condo.

[30] On the first occasion that she locked Michael out, the police advised Vivian that she had to let Michael back into the condo or it could affect custody of the children. Vivian returned the keys to Michael. The next day, Michael called Catholic Family Services (“CAS”) and they became involved with the family.

[31] On the second occasion, Vivian changed the locks and had arranged for movers to move Michael’s belongings into one of the two storage lockers while he was out of town. Vivian advised Michael of the steps she had taken the following day. Vivian called Michael to arrange for him to see the children in the playroom of 60H because he had been out of town for a few days and had not seen the children. Instead of meeting in the playroom, Michael waited outside the door of 60H and, according to Vivian, forced himself into the condo when she was leaving with the children and even though her brother and sister were present. Vivian felt she had no alternative but to allow Michael to re-enter the condo, given that he was lying on the floor and yelling at her brother.

[32] The majority of Michael’s evidence centred on Vivian’s behaviour and attitude toward him, as opposed to what was in the children’s best interests. Michael testified about his frustration with the children making noise while he was trying to sleep during the pandemic, when the children were not at school. In the Spring of 2018, Michael decided to sleep in the living room even though Vivian had suggested that he use the solarium, where he could have privacy. She asserts that after her second lock-out attempt, she pleaded with Michael to convert the solarium into a bedroom. Michael refused because he wanted the solarium to continue to operate as his office. As a result, Michael set up a bed in their living room.

[33] During Michael’s examination he referred to the children’s noise while he was asleep as a “total disrespect for someone sleeping”. He also testified that one of the ways in which he believes Vivian was abusive toward him was her refusal to close the various doors in 60H while he was sleeping in the living room. He explained that if the children’s bedroom door was open when he was sleeping, the children invariably made noise, which woke him up.

[34] Vivian testified that between 2016 and 2019, when she commenced this proceeding, she became emotionally exhausted by the toxicity and ongoing conflict between her and Michael. Michael insisted on continuing to reside in 60H, with Vivian and the children. Many telephone calls to the police were made. Michael continued to reside in 60H until December 29, 2020 when he was charged with assault and had to leave 60H.

(ii) Michael’s Evidence

[35] Michael’s evidence about the time in the home after the separation centered on Vivian refusing to talk to him; refusing to do his laundry; cook meals for him or grocery shop for him. Michael expresses that he felt Vivian did not respect him or treat him nicely, and was generally unkind to him when they were at home together. Michael testified that Vivian was angry. When asked if he made derogatory comments about Vivian to the children, he admitted that he told the children such things as that Vivian has “anger management problems”; was not nice to him; and hates him. Michael testified that he made these comments to the children because he will not lie to them about Vivian or his belief that their family was not normal.

[36] When asked why he insulted Vivian or put her down in front of the children, Michael responded that when he tells the children Vivian has an anger problem, he is not making fun of her: rather, he does not know what happened to her; why the parties are separated; or whether she has post-partum depression.

[37] Michael testified that, after the separation, Vivian never offered to help him with the bills or his debt when he was off work on disability; and never offered to “lift a finger” for him. She and the children made noise when he was trying to sleep in the living room. He said that he believes that if he died, Vivian would step over him.

(iii) Evidence of the Children’s Maternal Aunt, Bernadette Ammar

[38] Bernadette was a witness at trial. Her evidence-in-chief, which is set out in her affidavit. sworn on October 10, 2020,[4] and is summarized as follows:

a. She lives about 20 minutes from 60H by public transit and spends a great deal of time with Vivian and the children;

b. When Vivian and Michael were dating, prior to having children, they used to come to her parents’ home for family dinners, birthdays and holidays, at least once or twice a month;

c. After Vivian and Michael had children, she, Vivian and the children would go to her parents’ home every weekend and spend the entire day there. Michael often did not join them;

d. Given the flexible hours Bernadette works, she often (at least 3 or 4 times a week) helped Vivian with Clair and Nicholas when they were newborns;

e. Since Bernadette has not been working during Covid, she has continued to spend time with the children;

f. Vivian is the primary caregiver for the children. She is the parent who cleans the house, prepares the meals, does the laundry, bathes the children, gets the children ready for bed and puts them to bed;

g. Vivian is the parent who child-proofed the house, to ensure the home is safe for the children, and regularly moved belongings, such as Michael’s tool box, to safe places so the children would not get hurt;

h. From her observations, Michael was largely absent from the children’s lives;

i. Bernadette would often accompany Vivian and Nicholas to pick up Clair at the bus;

j. Vivian is the parent the children turn to for advice, emotional soothing and assistance;

k. Bernadette had rarely seen Michael home at dinner time or bedtime when she was present;

l. Michael is often out of town doing contract work. When he is at home, he is absorbed in activities on his own in his office and not engaged with the children or Vivian. This has occurred since the Covid-19 crisis began, as well.

m. She has observed Michael to be a hoarder. Vivian has told her Michael purchases excess amounts of food and will not allow Vivian to throw out rotten vegetables that have turned into liquids;

n. Michael is argumentative and quick to anger. Vivian “walked on eggshells” around him; and

o. Michael has called the police unnecessarily. As an example, Michael called the police on August 2, 2019, when she, Vivian and the children were at a neighbour’s place having a bar b q. According to Bernadette, Michael knew that the children were at a bar b q but he told the police he did not know where the children were;

[39] The children are very connected and bonded to Vivian’s immediate family, whom they see every weekend. The children regularly sleep over at their maternal grandparents’ home. Vivian has also ensured that the children are connected to Michael’s father. Vivian has a supportive community of friends and family. Michael, on the other hand, testified that he is not connected with his family. He testified that his mother is 80 years of age and that neither he nor the children are connected to her.

(iv) Evidence of the Family Doctor, Dr. Peter Sakuls

[40] Dr. Sakuls, the parties’ family doctor, testified at trial, in addition to filing an affidavit, sworn on October 15, 2020[5], which constituted his evidence-in-chief. Dr. Sakuls’ evidence was that Vivian is a very appropriate and caring mother. Dr. Sakuls confirmed that he knows Vivian very well because she is the parent who always brings the children in for their appointments. He was not able to comment on Michael’s parenting abilities as he has not observed him with the children.

( v) Evidence of a Next-Door-Neighbour

[41] Reinhart Wieland (“Reinhart”), one of the parties’ neighbours, testified at the trial. His evidence-in-chief was submitted by way of affidavit, sworn on June 2, 2020.[6] Reinhart’s evidence is that he and his wife live beside Vivian and Michael at 60H. They have two grandchildren, the same ages as Clair and Nicholas. Reinhart explained that he and his wife have lived at 60H since 2011. Since he and his wife care for their grandsons every day after school until dinner time, Clair and Nicholas regularly play with them, often moving back and forth between the Wielands’ condominium and 60H. Reinhart regularly sees Vivian parenting the children but he did not see Michael with the children as often. His observations of Vivian’s parenting the children include her playing with the children; supervising the children; setting boundaries and rules for the children; monitoring the children for safety; disciplining the children; cooking for the children; tending to the children’s wounds; assisting the children with homework and going on outings with the children. He never observed Vivian behaving inappropriately with either child.

(c) Allegations of Michael’s Abusive Treatment toward Her

[42] Both parties say that the situation in the home after the separation was toxic and that the children were unnecessarily exposed to conflict between their parents. Vivian alleges that Michael was verbally, psychologically and physically abusive toward her throughout the relationship. Michael alleges that Vivian was psychologically abusive toward him.

[43] The police were called to the home about 8 times after the separation, which led to the CAS being called. Investigations were opened as a result of the children having exposure to parental conflict. Ultimately, the Society closed their files. Michael’s evidence at Trial was that he was the party who always called the police, except for maybe one occasion. He also testified that he wanted CAS to remain involved with the family so that he “could get some help with the kids if [he] needed” but CAS told him that this was not the role of the agency.

[44] Audio recordings were played during the trial,[7]which demonstrate Michael’s psychological abuse of Vivian; his dislike of Vivian; and his inappropriate comments to the children about their mother. On the audio tapes Michael was heard saying the following things to the children:

a. “Forget your childhood, you won’t learn about a good relationship from us.”;

b. “We are not a normal family.”;

c. “Mommy has anger issues.”;

d. “Mom has anger management problems and won’t get help.”;

e. “We have constant dysfunction in this family.”;

f. “Clair you’re going to grow up and hate your husband. I so hope not. Nicholas you’re going to listen to me or I’m not going to listen to you.”;

g. “Don’t let your mom decide for you.”;

h. “Clair, you are acting crazy like your mother.”;

i. “Nicholas, Mommy tells you not to like me. Mommy tells you to hate me.”; and

j. “It’s because of Mommy that you kids hate me.”;

[45] Michael did not deny that he made these comments to the children.

[46] In support of her position that Michael was verbally, psychologically and physically abusive toward her, Vivian points to an affidavit, which Michael swore on March 3, 2020. In that affidavit, Michael deposed that when his relationship with Vivian started declining ,he tried to figure out why Vivian ended their relationship. At one point, he thought that she might have won the lottery. He also considered the possibility that Vivian’s family had a role in the breakdown of their relationship. As a result, Michael decided to make a Crime Stoppers anonymous call about Vivian’s family. He testified what when he contacted Crime Stoppers, he advised them as follows:

a. Vivian’s family is of Palestinian background and were involved with Palestinian events;

b. Vivian’s family was very secretive in many ways, which he always found suspicious;

c. Vivian’s family has four children; 2 sons who are in their forties, lived at home; did not have jobs;

d. The two sons have extensive computer knowledge;

e. Vivian’s father’s only job was delivering car parts to mechanics’ garages;

f. Vivian had told him about businesses the family had owned, which had not been lucrative;

g. The family lives in a five-bedroom home in the Scarborough Bluffs, with a large yard, and owned their cars;

h. Vivian’s mother was the only person in the family who worked. She worked at a “Tim Hortons”;

i. He contacted Crime Stoppers to investigate the family;

j. He thought the Ammar family might be conducting illegal activities and that this was how they could afford such an expensive lifestyle;

k. With the constant problems in their homeland, they were involved in activities there, whether legal or illegal; and

l. He was not aware of any specific crime that they had committed.

[47] Michael made the above report online. Crime Stoppers never contacted him after he made the report.

(d) The December 29, 2020 Incident, which resulted in Michael being Charged with Assault

[48] In accordance with an Endorsement of Nakonechny J., dated March 1, 2021, each party swore a will-say statement about an incident, which took place between the parties on December 29, 2020, and resulted in Michael being arrested for assault on December 30, 2021.[8] The incident arose over a dispute about a banana which Michael had taken out of the place where Vivian was keeping her food. One thing led to another and the police were called. Vivian’s will-say includes an allegation that Michael body-checked her. Michael claims, among other things, that Vivian pushed him and, as a result, she should have ben charged. Whether Michael body-checked Vivian will be determined in the criminal trial. What is important about this event is that the children were in their room when it occurred. I accept Vivian’s evidence in her will-say that Clair was upset. [It is not necessary to make specific findings as to why she was upset.] It appears that Vivian left 60H with the children and went to her parents’ home, and returned to 60H subsequent to Michael leavings as a result of the charge brought against him. Vivian alleges that she was hurt by the body-check. She contacted Dr. Sakul’s office about hip pain on December 30, 2020.

[49] After the December 30th charge, Michael did not reach out to Vivian’s counsel to make any arrangements to see the children. As a result, on January 27, 2021, Vivian proposed, through counsel, that Michael see the children on Tuesdays, Thursday and Sundays from 4:00 p.m. to 6:00 p.m. Michael and Vivian’s counsel could not agree on the wording of an Undertaking, which Ms. Harris had asked that Michael sign and, as a result, Michael did not exercise access to Clair and Nicholas until after the parties attended at a TMC before Nakonechny, J. on March 2, 2021.

Parties’ Positions on the Parenting Schedule and Decision-Making Authority

[50] Vivian submits that it would be in the children’s best interests that they reside with her primarily and she have sole decision-making authority over the major decisions that impact the children, for the following reasons:

a. She has always been the primary parent of both children;

b. She has been out of the workforce since Nicholas was born in 2016;

c. The children have never been alone in Michael’s care for more than a couple of hours;

d. She is the parent who regularly took the children to their doctor, Dr. Sakuls, and to their dentist, Dr. Lee;

e. She is the parent who decided to enrol the children in a French Immersion program at St. Cecilia Catholic Elementary School;

f. She is the parent who decided the children would be raised Catholic;

g. Michael has always been content for Vivian to make all child-related decisions;

h. She is the parent who attends all parent-teacher interviews and arranges all of the children’s play dates;

i. Michael has multiple addictions, with which she is concerned, including pornography and hoarding;

j. Vivian has concerns about Michael’s parenting decisions in terms of their safety and appropriateness;

k. Michael has denigrated and criticized her in front of the children and does not understand that such behaviour is not in the children’s best interests;

l. Michael has continued to be verbally and psychologically abusive toward Vivian since September 6, 2016. Any parenting arrangement that would require the parties to make joint decisions would only perpetuate his controlling and abusive behaviour toward her; and

m. Vivian has always promoted a relationship between the children and Michael, even after he was charged with assault on December 29, 2020, This demonstrates that she understands and appreciates how important it is for the children to have meaningful relationship with both parents.

[51] Notwithstanding the status quo of Vivian being the primary caregiver to the children since they were born, Michael is taking the position that the children ought to reside equally with both parents immediately. This is so, even though he notwithstanding acknowledged that had never looked after the children on his own for any length of time, and certainly not overnight, and the children had never spent a night away from their mother, other than some sleepovers at their maternal grandparents’ and aunts’ homes.

Analysis of the Issue of the Parenting Arrangements that Are in the Children’s Best Interests

(i)Parenting Schedule

[52] Vivian proposes that the children reside with her primarily and spend time with Michael on Tuesdays and Thursdays, from 4:00 p.m. to 8:00 p.m., and on alternate weekends from Friday, after school, to Sunday, at 8:00 p.m. She is not proposing mid-week overnights for the children at this time because the children have not spent any overnights away from her and she believes that it is in their best interests that they have as little disruption as possible during the school week so they can focus on school. She proposes that she and the children will continue to reside in 60H and proposes that if Michael were to reside in his condo at 61H, the children could have two homes, very close to one another.

[53] Michael proposes a parenting schedule where he has the children during the week and Vivian has the children every weekend on an equal time-sharing basis. He believes a parenting schedule where both parents spend equal time with the children is in their best interests. Despite leading no evidence about his direct knowledge of the children’s routines, temperaments or individual needs (emotionally or physically), Michael has proposed an equal-time sharing schedule for the children.

[54] Michael testified that he is agreeable the children being enrolled in as many extra curricular activities as possible; the children remaining in the care of Dr. Sakuls, the children remain in the same school; the children remaining in the care of Dr. Lee, their dentist.

[55] Effective March 1, 2021, changes were made to Ontario’s Children’s Law Reform Act, to align it with the amendments being made to the federal Divorce Act on the same day. Accordingly, the terms “custody” and “access” in the Children’s Law Reform Act have been repealed and replaced with the terms “decision-making responsibility” and “parenting time”.

[56] The relevant sections of the amendments to the Children’s Law Reform Act relating to parenting attached as Schedule “A” to these reasons.

[57] Both Clair and Nicholas need stability and continuity at this time. This need for predictability must be considered alongside the recognition that their relationships with both parents will continue to evolve over time. My reference to continuity and consistency does not mean that the children ought to be cared for in only one single environment, but rather, that Clair and Nicholas ought to have consistency in each parent’s responsiveness to them from one day to the next. At this point in time, the consistency in terms of parental responsiveness can be provided by Vivian, given the past caregiving history of Clair and Nicholas. The evidence has demonstrated that the children have been exposed to conflict; the parents have not been able to communicate civilly about and/or plan for the children together; and Michael has not valued the children’s relationship with Vivian, which Michael unfortunately has demonstrated to or for the children by his repeated inappropriate and denigrating comments to them about their motion. [In short, Michael’s evidence confirms Vivian’s testimony that the dynamic in the home while the parties were separated was hostile, toxic and filled with conflict.]

[58] Turning to the factors set out in s.24 of the Children’s Law Reform Act, to determine the parenting schedule which is in the best interests of Clair and Nicholas, the court must consider all factors related to the circumstances of the children, and, in doing so, shall give primary consideration to their physical, emotional and psychological safety, security and well-being. These factors include the following:

a. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability.

The children have lived with both parents throughout their lives. They are bonded to both parents and love each of them. Both Clair and Nicholas need stability and consistency. Vivian was the primary parent throughout their lives and is the parent who has been able to attend to their needs; is attuned to their social and emotional development and the parent to whom they turn for physical and emotional support. Their need for stability and consistency includes their need to spend meaningful time with their father. Michael’s evidence is that he has not spent a 24-hour period caring for the children without Vivian. It makes eminent sense in these circumstances, given the ages of the children and their stages of development, that they start to have overnight time with their father on alternate weekends and that, with some additional time, they see him on seven days out of a 14-day cycle. The schedule should change over time so that the children have more overnight time with Michael in the summer months, when the structure of the week is not as important, and move back into a regular residency schedule in September, 2021, when the weekends will extend to Monday morning.

b. The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life.

While the children are bonded to both parents, the children’s relationship with Vivian is stronger because of the primary parental role she has played all of their lives. Vivian will continue to foster the children’s close relationships with her family during her weekend time with them. The children are particularly close to Bernadette and Vivian’s family. Michael testified that he does not have a close relationship with his sister or his father. Michael gave evidence that he only sees his mother a couple of times of year. If Michael chooses to foster the children’s relationship with his mother, he will be free to do so on his weekend time with the children.

c. Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent.

Both parents testified that they are willing to support the children having meaningful relationships with the other. Even when Vivian tried to lock Michael out of 60H the 2nd time in 2018, she ensured that she arranged for him to see the children the following day as he had been travelling. Further, after Michael had to leave 60H in December 2020, Vivian instructed her counsel to reach out to Michael to arrange parenting time, when he had not done so. This bodes well for the children in that they need to feel that both of their parents want them to have close and loving relationships with the other.

d. The history of care of the child.

The evidence is clear that Vivian has been the primary parent and been fully responsible for all aspects of the children’s care, including taking them to all of their medical and dental appointments; attending and arranging parent teacher meetings; comforting and soothing the children when they are upset, in the middle of the night or when they are sick; addressing all of their physical and emotional needs and nurturing them.

e. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage.

Both parties testified that they are committed to the children remaining enrolled in a French Immersion program. While Vivian has typically been the parent to assist with French homework, Michael testified that he is also able to speak French and assist the children in this manner.

f. Any plans for the child’s care:

Both parents testified that they do not want the children’s lives to be disrupted. They are committed to the children remaining in their current school; and continuing to attend at their current doctor and dentist. Michael did not lead any evidence about arranging for housing for himself and the children. He will need some time to do so. Leaving the children in Vivian’s primary care will provide him with that time, if needed, and allow Vivian the opportunity to make plans for her future employment and work toward self-sufficiency.

g. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child.

While each parent expressed that he/she is willing to care for and meet the children’s needs, Vivian is able to do so immediately because she has always done so. Michael will have to make changes in his current situation such as adjusting his work schedule so that he will be available to the children on the nights when he is scheduled to look after them and on alternate weekends when they are in his care. He also has to move into appropriate accommodation. At the time of trial, he did not have his own accommodation. He was staying on a couch at his friend’s home. As well, Michael has to take steps to inform himself about what a parent can reasonably expect of their children at their ages and stages of development. For example, expecting the children to be quiet allegedly while he slept in a common room was not realistic.

Michael’s evidence made it clear that he still does not accept Vivian’s decision to end their relationship. The result of his refusal to accept Vivian’s decision was that, while they resided under the same roof, he criticized Vivian in front of the children and by comments he made to the children. While I have made an order today restraining either party disparaging the other in front of or within earshot of the children going forward, I am concerned that, without professional counselling, Michael may not be able to do so. Should he not cease to show disrespect to Vivian in front or to the children, this could well result in changes to the parenting arrangements. Such conduct is not in the children’s best interests at any age or stage of their development.

h. Any family violence and its impact on, among other things, (i) the ability and wiliness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child.

Having heard the evidence as a whole, I am not able to reach a conclusion as to either or both of the parties used physical force during the incident that took place on December 29, 2020. However, Vivian gave evidence about psychological and verbal abuse she endured during the relationship and particularly, over the last 4 years while the parties were living separate and apart in the condominium. As detailed above in paragraphs [42]-[47], Michael regularly insulted Vivian, he was critical of her parenting, her mood, the way in which she spoke to him and her decisions relating to the children. Section 18(2) of the Children’s Law Reform Act provides an expanded definition of “family violence” which conduct need not constitute a criminal offence, and includes, among other things, (a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person; (d) harassment, including stalking; and (f) psychological abuse. Michael does not deny that he was critical of Vivian’s parenting, her mood, the way in which she interacted with him, or her parenting after September 6, 2016. Further, Michael’s testimony confirmed that he expected to Vivian to tell her of her whereabouts whenever she left 60H, even after she clearly communicated her decision to separate from him. I accept Vivian’s testimony that she was psychologically and verbally abused by Michael, particularly since September 6, 2016. Given Michael’s conduct since September 6, 2016, I find that his ability to care for and meet the needs of Clair and Nicholas are impacted by his anger and hostility toward Vivian, such that he cannot stop himself from involving the children in the dispute between him and Vivian. Michael’s refusal to accept Vivian’s decision to separate and his inability to deal with child-related issues in a civil and co-operative fashion with Vivian makes the prospect of these parents co-operating on important child-related matters/decisions in the future highly unlikely and concerns me.

i. Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

The criminal proceeding regarding the assault by Michael of Vivian remains outstanding. Michael denies the allegation and alleges that Vivian assaulted him. If either party assaulted the other, such conduct is not condoned by this court. I am unable to arrive at any conclusion as to what occurred during the incident. In addition to the December 29, 2020 incident, I am troubled by Vivian’s description of Michael spanking Nicholas and by Michael’s understanding that since he is permitted to do so, according to what he claims to have been told by CAS, that he believes this is an appropriate method of discipline. Michael did not deny these allegations during his examination-in-chief but suggests that his spanking of Nicholas is a form of discipline which is reasonable and does not amount to assault. In my view, there are many preferable means of discipline, that can be used to control or express disapproval of a child’s behaviour which will lead to a child’s ability to learn from the behaviour, as opposed to corporal punishment.

j. In considering the family violence, s.24(4) of the Children’s’ Law Reform Act sets out specific factors the court must consider.

As set out in paragraph h. above, Vivian gave evidence of psychological and verbal abuse by Michael toward her. Vivian’s evidence was clear that Michael criticized and berated her in front of the children. Michael regularly made comments to the children about Vivian that were derogatory, suggesting that she is unfit as a mother; the family is dysfunctional and not normal; she has anger management issues; and she encourages the children to hate him. Given Michael’s lack of insight as to why it is not in the children’s best interests that he engage them in the conflict between him and their mother, it is unlikely that Michael will be able to change his conduct in this regard in the future unless he obtains professional assistance. The children are entitled to live with each of their parents in a conflict-free environment. Placing the children in the middle of the parties’ dispute can only lead to having negative implications for them in the long run. The number of times Michael called the police to the party’s home is indicative of how much conflict the children have been exposed to, which is concerning in terms of emotional and psychological harm to the children. These facts are particularly relevant in my decision to grant Vivian sole decision-making authority over the major decisions that impact the children so as to reduce potential for conflict in the future between these parents.

k. Pursuant to s.24(5) of the Children’s Law Reform Act, the Court is only required to consider past conduct of a parent if it is relevant to the exercise of the parties’ decision-making responsibility, parenting time or contact with respect to the child.

Vivian testified about her concern about Michael’s questionable decision-making in terms of the children. Two notable concerns in this regard were Michael’s decision to take the children to his AA and NA meetings, including for them to participate in these meetings during the Covid-19 health crisis on Zoom, and Michael’s decision to bring the children into the conflict he has with Vivian by telling them that their mother is not normal; the family is dysfunctional; their mother has anger management issues; and telling Clair that she is “just like her mother” when criticizing her. Michael’s past conduct has resulted in the children being exposed to parental conflict. These incidents have been considered in my decision to grant Vivian sole-decision making authority over the major decisions that impact the children.

(a) Parenting Time/ Residential Schedule

[59] In terms of the parenting schedule, Vivian has proposed a parenting schedule where the children reside with her primarily and spend parenting time with Michael as follows:

a. Every Tuesday, from 4:00 p.m. to 6:30 pm.

b. Every Thursday, from 4:00 p.m. to 6:30 p.m.; and

c. Alternate weekends from Friday, after school to Sunday at 8:00 p.m.

[60] Michael, on the other hand, has proposed an equal time-sharing parenting schedule where the children will reside with each parent overnight 7 nights out of 14, but Michael having no weekend time with the children. Michael’s proposed parenting schedule is as follows:

a. During Week one, the children will reside with him from Sunday, at 5:00 p.m. to Thursday morning, when he will drop off the children at school; and

b. During Week two, the children will reside with him from Sunday, at 5:00 p.m. to Wednesday morning when he will drop off the children at school.

[61] If the Court awards Michael the parenting schedule he has proposed, the children would end up having parenting time with him four school nights in week one and three school nights in week two, leaving them with Vivian on only one school night with the children in week one (Thursday night) and two school nights in week two (Wednesday and Thursday night). Further, it means that the children will have no weekend time with their father and thus no “downtime” [my term] with him. This is clearly not a child-focussed parenting schedule and demonstrates how little insight Michael has into the role Vivian has played in the children’s lives in terms of being the parent responsible for their regular routines. At the time of the trial, the children were attending school in person (as opposed to remotely). Essentially, Michael is looking for a parenting schedule where he will be looking after the children after school 3 or 4 days a week. Michael does not seem to want to spend weekend time with the children, which means that he either does not seem to appreciate, or perhaps he does not care, that in order for the children to spend meaningful time with both parents, that time needs to include both time during the school week and downtime with the children on the weekends. The schedule Michael has proposed seems to place his own needs ahead of the children’s needs. Vivian is the parent who has been fully involved with the children in their daily routines during the school week. Despite Michael’s admitted lack of knowledge in this regard, his proposed parenting schedule essentially eliminates Vivian as their primary parent during the school week for no apparent purpose related to the children’s best interests.

[62] In proposing an equal time-sharing parenting schedule, Michael did not focus on the children’s needs or best interests. Rather, he proposed an equal-time sharing schedule on the basis of what he saw as his right to have maximum time with the children. There is no presumption of equal time-sharing of children after a child’s parents separate. Section 24(9) of the Children’s Law Reform Act provides that a child should have as much time as possible with each parent. Section 24(9) does not override the best interests test contained in s.24. Rather, it means that a child should have as much time as possible with each parent consistent wit the child’s best interests. The principle is subject to what is in the best interests of the children, given their ages, temperaments and stages of development. It is noteworthy that Michael addressed his request for equal time with the children on the basis of his perceived right to equal time and not time on facts, which according to him, demonstrated that the children should be in his care 50% of the time.

[63] Michael did not support his request for an equal time-sharing schedule on the basis of evidence, which, according to him had demonstrated that it would be in their best interests to be in each party’s care 50% of the time. Section 24(9) of the Children’s Law Reform Act requires that the Court determine what “as much time as possible with each parent” means where parents disagree on the amount of time it would be in the children’s best interests to spend in their respective care.

[64] The parenting schedule set out below takes into account s.24(9), in that in the allocation of parenting time I have ordered a parenting scheduled that provides the children with as much time with each parent as is possible, consistent with the children’s best interests.

[65] Despite the more restricted parenting schedule set out in paragraphs [66] and [67] below, I anticipate that as Michael gains more experience caring for the children on his own and away from Vivian that he will better be able to discern and respond sensitively to the children’s needs. After a reasonable period of time and, particularly, after the summer it would be in the children’s best interests to spend more time with Michael. It is for these reasons that I have delayed the implementation for the regular residency schedule until after Labour Day, provided the children have spent eight full weekends with him. Michael testified that he is currently staying at a friend’s house. He did not provide the Court with any evidence of his plan to find his own residence. However, given the parenting plan he has proposed, it is assumed that Michael will find a residence where the children will have a separate bedroom or place away from where Michael will sleep. As a result, it is in the children’s best interests for Vivian to continue to be their primary caregiver while Michael becomes a more active parent and more involved in all aspects of caring for the children.

Temporary Step-up Parenting Schedule

[66] Until Michael finds a residence with a separate bedroom space for the children to sleep, the children are to reside with him on Tuesdays and Thursdays from 4:00 p.m. to 6:30 p.m. and on alternate weekend days, starting on Saturday, May 1, 2021, on Saturdays from 11:00 a.m. to 6:00 p.m. and Sundays from 11:00 a.m. to 6:00 p.m.

[67] When Michael moves into a residence with a separate bedroom or space for the children to sleep, the children are to reside with him, pursuant to the following schedule:

a. Tuesdays, from 4:00 p.m. to 6:30 p.m.

b. Thursdays, from 4:00 p.m. to 6:30 p.m.

c. Alternate weekends on Fridays, at 5:30 p.m. to Sundays, at 6:00 p.m.

Summer Parenting/Residency Schedule

[68] Assuming that by the end of the children’s school year, Michael is living in a residence with a separate bedroom space for the children to sleep, then commencing the first week after the school year ends in June 2021, the children are to reside with Michael, pursuant to the following summer schedule:

a. Tuesdays, from 4:00 p.m. to Wednesday morning, when the children are to be dropped off at summer camp or a recreational activity if they are so enrolled, or at Vivian’s home, if they were not enrolled in such camps or activities;

b. Thursdays, from 4:00 p.m. to 7:30 p.m.; and

c. Alternate weekends, from Friday, at 5:30 p.m., to Mondays morning when the children are to be dropped off at summer camp or a recreational activity, if they are so enrolled, or at Vivian’s home.

Regular Parenting/Residency Schedule

[69] Subject to paragraph [70] below, if as of Labour Day, Michael is living in a residence with a bedroom or separate space for the children to sleep and the children have been in Michael’s care, as contemplated in paragraph [68] above consistently over the summer months such that the children have spent at least eight weekends with him in the residence described above, then when the school year commences in September 2021, the children are to reside with Michael pursuant to the following parenting schedule:

a. Tuesdays, from 4:00 p.m. to Wednesday mornings when the children are to be dropped off at school, or at Vivian’s home if in-person is not school running;

b. Thursdays, from 4:00 p.m. to 7:30 p.m.; and

c. Alternate weekends, from Friday, after school to Monday morning, when they are to be dropped off at school or at Vivian’s home, if in-person school is not resuming.

[70] If the children have not been in Michael’s care over the summer months such that the children have spent at least eight weekends with Michael, then when the school year commences in September 2021, the children will reside with Michael pursuant to the following parenting schedule until they have spent a total of eight weekends with him:

a. Tuesdays, from 4:00 p.m. to 6:30 p.m.

b. Thursdays, from 4:00 p.m. to 6:30 p.m., and

c. Alternate weekends on Fridays, at 5:30 p.m. to Sundays, at 6:00 p.m.

[71] Once the children have spent at least either weekends with Michael, then they are to start to reside with him pursuant to the parenting schedule set out in paragraph [69] above.

Holiday Schedule

[72] In terms of a holiday/vacation schedule, both parties submitted draft orders to the Court respecting the terms that should be ordered. They for the most part agreed on these issues. I have ordered the holiday schedule as agreed to by the parties, which is more particularized below in the Conclusion of these Reasons.

Sole-Decision Marking Authority or Joint Decision-Making Authority

[73] Vivian’s position is that she should have sole decision-making authority respecting major issues affecting a children is premised on the fact that during the relationship and since the separation while they lived together at 60H, the parties were not been able to demonstrate that they have effective communication skills and were incapable of cooperating in making decisions concerning the children. The evidence satisfies me that Vivian felt she had no alternative but to completely disengage from Michael because he refused to respect or accept her decision to separate from him. In fact, Michael’s own evidence is that he still, four years after the separation and, at the time of trial, did not understand why the parties separated.

[74] Michael testified that he had called the police several times to report Vivian; called the Children’s Aid Society several times to report Vivian; and he testified that he had reported Vivian and her family to Crime Stoppers as potential terrorists.

[75] This reporting, without any knowledge of a specific crime, was highly vindictive of Michael and demonstrative of his anger toward Vivian over her decision to end the relationship. It was clear during his testimony, that Michael had no insight into how reporting Vivian’s family to Crime Stoppers was inappropriate or damaging.

[76] Vivian’s evidence was consistent that Michael had denigrated her; was critical of her parenting skills, her mood, and her attitude in front of the children; and Michael was unable to self-regulate when he was upset with Vivian such that he made negative and derogatory comments about her to the children. I find that Michael has little insight into the impact of making the negative and derogatory comments he made about Vivian in front of or to both children, on the children. His own testimony demonstrated that he had told both children that Vivian has anger management issues because he would not lie to the children and he wanted them to understand that theirs is not a “normal family”. It is clear that while Michael appreciates that Vivian is someone who is capable, he entirely discounts Vivian’s opinion, or advice in relation to the children, if it does not suit him.

[77] Despite the fact that both parties testified that they had not been able to communicate effectively for close to four years, Michael seeks an order that they share joint decision-making authority over all important decisions that affect the children. Michael submits that Vivian was responsible for their lack of communication after September 6, 2016 because she refused to communicate with him or tell him where she was going when she went out with the children. However, Vivian’s testimony was clear that she felt she had no alternative but to cease engaging in communication with Michael because he would not acknowledge that the relationship was at an end. This was so, even when he received correspondence from Vivian’s lawyer. During the trial, Michael testified that he did not understand why he and Vivian were in court or why they were not still together. It is clear that Vivian became worn down emotionally overtime by Michaels’ persistent attempts to challenge the reasonableness of her decision to separate.

[78] Vivian’s testimony was unequivocal that Michael was critical of Vivian in terms of her parenting abilities, her cooking, her mood, her attitude and her behaviour toward him. She was equally unequivocal in her evidence that Michael regularly denigrated her in front of the children. In fact, during cross-examination when he was asked whether he told the children that their mother had an anger management problem or that the way in which their mother spoke to him was “not normal”, Michael admitted that he told the children these things because he would not lie to the children.

[79] Michael was not prepared to or was unable to see how the way in which he treated Vivian may have led to the separation or her lack of communication with him after September 6, 2016. Accordingly, the lack of effective communication between the parties cannot be said to have been Vivian’s fault as was Michael’s position, or that it demonstrates that she should not be given sole decision-making authority because it would reward her for refusing to communicate with Michael. In my view, Vivian stopped communication with Michael as a coping mechanism in which she engaged in order to enable her to continue to reside with Michael in the 60H condo while they continued to live there after September 6, 2016. It was as a result of the daily onslaught of badgering and verbal abuse from Michael, which led Vivian to cut off all communication between her and Michael.

[80] There is no question both Vivian and Michael are good parents and that they both love Clair and Nicholas. It is also clear that Clair and Nicholas are bonded to both parents and want to spend time with them.

[81] The question for the Court is whether joint decision-making responsibility for the decisions impacting the children is appropriate. The amendments to the Children’s Law Reform Act demonstrate that there remains only one applicable standard: the best interests of the child. The interests of the parents are entirely secondary. They come into play only in terms of their relevance to the best interests of the child. In determining the best interests of a child, the court is to give primary consideration to the child’s physical, emotional and psychological safety, security and well being: s.24(2).

[82] The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 ONCA 1625 (ON CA), [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate:

a. There must be evidence of historical communication between the parents and appropriate communication between them.

b. Joint custody cannot be ordered in the hope that it will improve communication.

c. Just because both parents are fit does not mean that joint custody should be ordered.

d. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

e. No matter how detailed the custody order, there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

f. The younger the child, the more important communication is.

[83] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests: see Graham v. Butto, 2008 ONCA 260 and Roy v. Roy, 2006 ONCA 15619 (ON CA), [2006] O.J. No. 1872 (CA).

[84] Courts require evidence that the parties are able to communicate effectively, since joint custody requires that they make long-term decisions together regarding the child. A standard of perfection is not required, and is obviously not achievable: see Grindley v. Grindley 2012 CarswellOnt 9791 (SCJ). The issue is whether a reasonable measure of communication and cooperation is in place and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis: Warcop v. Warcop 2009 ON SC 6423.

[85] Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour: see Geremia v. Herb 2008 ON SC 19764.

[86] A mere statement by one party that there is an inability to communicate will not preclude an order for joint custody. The court must carefully consider the parties’ past and present parenting relationship as a whole, and not place undue emphasis on their allegations of conflict, or on the conflict existing at the time of trial: see Grindley v. Grindley, supra at para. 211.

[87] Joint custody allows each parent authority to make decisions concerning his or her children. Absent a demonstrated ability by parents to cooperate in making those decisions an order for joint custody has the potential to increase conflict between parents. That potential must be carefully weighed and considered in relation to the specific circumstances of each case. Parental conflict is a significant risk factor for children, particularly when the conflict is long standing and progressive: Antemia v. Divitor, 2019 ONSC 678, at para. 91.

[88] In this case, the conflict between the parties was evident prior to September 6, 2016. It only increased after the parties separated. Michael repeatedly involved the children in the parental conflict, claiming to have done so because he refused to lie to his children. It is clear that Michael has been unable to appreciate or was so angry with Vivian that he did not care about the impact that his involvement had to be upsetting to the children. Depending on children’s ages, such conduct can be confusing, create loyalty binds and rupture children’s relationships with a parent or create other issues for children. Michael has essentially brought Clair and Nicholas into his dispute with Vivian. Vivian played an audio tape of a conversation during which Clair told her that she feels she was not going to have a good life because Vivian and Michael do not get along. Michael has continually blamed Vivian for the conflict and tension between them.

[89] Although I do not doubt that Michael believes that he has Clair’s and Nicholas’s best interests at the forefront, but his demanding and inflexible personality and his inability to have insight into or refusal to acknowledge his own contributions to the marital difficulties and conflict since the separation do not bode well for cooperative communicative parenting with Vivian. By way of example, Vivian demonstrated from the outset that she would facilitate maximum contact between the children and Michael. Even after Michael was charged with assault on December 30, 2020, it was Vivian who tried to arrange for Michael to see the children.

[90] I am satisfied that, away from the turmoil in 60H, which existed as of December 29, 20201, Vivian will make decisions, which are in the children’s best interests.

[91] The evidence did not satisfy me that Vivian ceased to communicate with Michael in order to create or improve a claim for sole decision-making authority. Further, to grant the orders Vivian requests would not be to reward her for past inappropriate conduct on her part.

[92] Michael’s evidence has not satisfied me that despite the parties’ physical separation since December 29, 2020, he has yet been able to accept Vivian’s decision to end their relationship. I simply do not have sufficient confidence that if a major issue affecting one or both of the children’s welfare (be it a medical, educational or other issue) arises, Michael would be able to work co-operatively with Vivian to resolve the issue in a civil and respectful manner, the focus being on the specific issue only and not complicated by anger or resentment toward Vivian arising from her decision to end the relationship. My concern extends to the potential for Michael to then involve the children in the conflict.

[93] I am satisfied that Vivian will consult with Michael in a fair and timely manner about any significant issues that arise and will consider any input he may give her about the issue before she makes a decision about it.

[94] Prior to the parties’ separation, Michael had been content to leave all parenting decisions to Vivian, including the choice of the children’s school, the enrollment of the children in extra-curricular activities and the choice of the children’s’ doctor and dentist.

[95] For the reasons set out above, Vivian shall have sole decision-making responsibility over major issues affecting the children. Vivian is to consult in a timely manner with Michael about each issue. In particular, Vivian shall consult with Michael on all major issues, including the children’s health, medical, dental, educational decisions and decisions affecting the choice of the children’s extra-curricular activities and athletics. However, if the parties cannot agree, Vivian shall make the final decision.

Issue Two: Determination of the Ownership of 60H and Parties’ Respective Unjust Enrichment Claims Once Ownership is Determined

[96] Vivian seeks an order declaring that she is the sole owner of 60H, which is registered in her sole name. She is content that Michael retain ownership of the condominium unit, located at 61 Heintzman Street, Unit 1404 (“61H”), which is registered in his sole name.

[97] Michael seeks an order declaring that Vivian holds 100% of 60H in trust for him by way of resulting trust, and that he also owns 61H.

[98] To the extent that it is necessary or would be instructive to the Court to consider a party’s claim in the alternative to his/her position set out above, I will address the alternative claim below.

Evidence of the Parties

[99] The parties began to reside in 60H on March 18, 2011. As referred to above in these Reasons, Michael has not lived in 60H since December 29, 2020. Vivian continues to reside there with the children.

[100] Michael testified that in 1998, he and his [now] former wife, Constance Smith (“Constance”), had gone to a presentation meeting about a condominium development run by Options for Homes. After the presentation, Michael followed the condominium developments of Options for Homes. He learned that, if he paid a $100 deposit on a pre-construction condominium, the condominium would be held for 48 hours. Michael testified that he would go to weekend seminars about investing in real estate and learned that he could borrow money against his credit cards in order to make down payments and use “an old pay slip” to qualify for a mortgage. It was on this basis that he proceeded had proceeded to put deposits down on the condominium units at 60H and 61H.

[101] On November 4, 2006, he entered into a purchase agreement with Kintyre Co-Operative Development Corporation (“Kintyre”), to purchase 61H, for $254,265. On April 28, 2007, he entered into an agreement with Kintyre to purchase 60H for $322,610 (“60H purchase agreement”). [I also note that it was in November 2005 that Michael had entered into an agreement to purchase a one-bedroom condominium on Bathurst Street, for $158,000. Years later, he sold the condominium for $231,000, the closing of which took place in March 2011, around the time that he and Vivian began to occupy 60H.]^[9]^

[102] When the parties first met in the Fall of 2007, Michael was living in the Bathurst Street condominium. He had entered into the agreements to purchase 60H and 61H, which were condominiums to be built, and was in the process of making pre-construction deposits them.

[103] The chronology of events relating to the purchase of 60H is contained in a documentary fashion in Michael’s Exhibit Brief, entered as Exhibit #9 at trial, at Tab E. Although he signed other documents as well, the relevant documents disclose the following:

a. On April 28, 2007, Michael signed a Co-operative Membership Agreement (“60H purchase agreement”) with Kintyre Co-operating Development Corporation (“Kintyre”), pursuant to which he paid a $100 membership fee. He selected 60H as the unit he wished to purchase. 60H was a penthouse unit with a large balcony/terrace.

b. As of August 31, 2007, Michael had paid the sums of $1,000; $15,131; and $3,869 as a down payment toward 60H, for a total of $20,000.

c. On July 30, 2008, Michael signed the Décor Selection form for 60H, which set out paint colours; the Floor Plan and the Mechanical and Electrical Checklist;

d. On November 10, 2008, Michael paid the sum of $12,198.82 toward upgrades chosen for 60H.

e. On June 22, 2009, Michael paid $1,453 toward the acquisition of a parking spot and locker for 60H.

f. On February 16, 2010, Michael signed an Amending Agreement with Kintyre, which confirmed that the total purchase price of 60H was now $368,658.01, being composed of the purchase price of $334,808.82; the value of the parking spot of $27,100; and the value of the locker unit of $6,750. Schedule “J” to the Amending Agreement set out the payment schedule for 60H. Michael was to pay the balance of the purchase price at the closing of the purchase, by way of a Home Ownership Alternatives Non-Profit Corporation Mortgage (“HOA”) vendor-take-back mortgage, in the sum of $42,080, the balance of the purchase price ($294,380) to be paid by certified cheque on closing.

g. Starting on April 25, 2010, Kintyre extended the occupancy date for 60H several times. On November 15, 2010, the date was extended to March 17, 2011. [The parties moved into 60H on March 18, 2011.]

h. By February 24, 2011, Michael had paid $32,198.82 toward the down payment of 60H.

i. On March 18, 2011, Michael paid the further amount of $7,802 toward the purchase of 60H. [Thus, as of March 18, 2011, Michael had paid $40,000 to Kintyre toward the purchase of 60H].

j. By way of an Adoption Agreement, dated July 14, 2011, which was signed by Kintyre, Michael and Vivian, Vivian was added as a party to the 60H purchase agreement. [Upon being added, Vivian took on all of the same obligations that Michael had under the terms of the agreement.]

k. On October 17, 2011, Vivian and Michael directed Kintyre to place title to 60H in Vivian’s sole name. On the same day, Vivian and Michael each paid one-half of $15,167.57 in closing fees and taxes in order to close the 60H purchase.

[104] Michael filed a document that he had prepared, titled “Payments from Michael to Vivian for Suite 440”.^[10]^ Although “2019-10-01” forms part of the title of the document, it appears that the document includes payments he asserts that he made in relation to 60H between March 25, 2007 and October 30, 2020, inclusive. Also based on evidence given during Michael’s Questioning, which took place on April 21, 2020, Michael’s evidence regarding Vivian’s involvement in the acquisition of 60H is as follows:

a. Over the years, Michael had talked to Options for Homes about trying to get out of the purchase of one of the condominiums because he did not know what he was doing. Michael had first entered into the purchase agreement for 61H, a less expensive unit, on November 4, 2006. [He had made a deposit of $1,000 on it. He had to pay $11,713 on November 30, 2006. He would apparently close the purchase by paying $208,387 at the time of closing and taking on an HOA mortgage in the amount of $33,165.]

b. Michael made the initial deposit of $100 on 60H on March 25, 2007, when he attended the Real Estate Show in Toronto. He met Vivian in November 2007. [In paragraph [103] a. above, the document implies that he paid a $100 membership fee on April 28, 2007.]

c. He obtained the $20,000 deposit by way of “balance transfer”, “on credit cards”. He says that he was trying to get into the real estate business and hopefully “just flip these units or do something with them”. On April 28, 2007, May 31, 2007, and on June 30, 2007, he made the payments of $1,000, $15,131 and $3,869 respectively, which total $20,000.

d. Michael asked Vivian to assist him in picking out the colours and finishings at two separate appointments, one for 60H and a second appointment for 61H, because Vivian was a professional photographer and “good at things like that”;

e. On or around December 2010, Michael attended an occupancy clearance appointment for 61H^[11]^, at Options for Homes, with an individual named “Allen” [a sales agent]. At such an appointment, the purchaser is expected to bring a cheque for the balance owing or proof of the purchaser’s own financing arrangements. During his Questioning, Michael testified that the appointment in December 2020 was for 61H.

f. In January 2011, he and Vivian had some conversations about moving in together and Vivian “taking” 60H and “putting it in her name, as they were going to live together and have children anyways”.^[12]^ According to Michael, their conversations did not go well.

g. He went to his appointment with Allen for 60H [which appears to have taken place on February 24, 2011^[13]^], with some hope that he would somehow be able “to pull a rabbit out of a hat” and organize the purchase of 60H. Vivian showed up at the meeting rather unexpectedly, and informed Allen and him that she was now going to “participate in this”. She was added to the title at that point. At the closing, “[he] would be dropped off the title”;

h. When asked why their conversations had not been very positive, Michael answered:

A: “ I don’t remember exactly what was said. I guess I was asking her to help me in some way, shape or form. At no time, did she ever lend me money or show any interest in trying to help me. We were not living together at the time. Although at my other home, I had a one-bedroom condominium on Bathurst, I did give her a drawer in the dresser to put her stuff and she had a spot in the kitchen for her stuff but that was as close as we came to cohabiting.

And anyways, somewhere along the way, you know, we had some conversations over the few years that we knew each other. I did ask her to help me out, lend me money at times, because I was having all this money on credit card balance transfers that, you know, would be for three months or six months and sometimes a couple would come due at the same time, and I was caught between a rock and a hard place trying to not default on any of this.

My line of credit at my bank was as low as 6.5 percent at one point but it’s up to like 13-14 now, but, you know, so I had quite difficulty. I had to borrow money from a friend of mine on his line of credit and then I paid him his interest and that goes on. It went on for quite a while.

And I don’t remember exactly what the conversations were that Vivian and I had but I do know that I went to that meeting with Alen by myself in the hopes that, you know, something would be done, that I would not lose the over $20,000 that I had invested in this, that I would somehow be able to manage this. And Vivian walked into the room again expectedly, but thankfully at that point, at which point she was going to take the money out of her RRSP under the Home Buyer’s Plan and we would switch the ownership into her name.” [mistakes in original transcript of Michael’s Questioning]

i. When asked whether, to obtain the HOA mortgage, a property could be owned in joint names, Michael answered,

“Q: I don’t understand why you couldn’t be on title for two when you just said you could get the Options for Homes if you were on title for two, is that not right?

A: Sorry, the Home Ownership Alternatives mortgage.…

Q: Yes.

A: You can’t have that. You can’t have two units and have your name on that. Even if you’re co-owner on one and a full owner on another, you cannot have that. Plus, at that time, you know, I could not get two different mortgages for two different properties at that time either. My bank would never…I had a hard enough time getting the mortgage for the one….”

[105] According to Vivian, on February 28, 2011, Vivian loaned Michael $7,500, to assist him in paying off his credit card debt, in order to enable him to obtain mortgage approval. Vivian’s evidence was that the mortgage approval related to 60H.^[14]^ [The payment brought the total contribution by Michael toward 60H as of March 18, 2011, up to $40,000.82 (plus a further $1,453, if Michael paid that amount toward a parking spot and/or or locker, over and above the $40,000.82 amount just referred to.]

[106] The sale of Michael’s Bathurst Street condominium closed on March 17, 2011. According to Michael, the net sale proceeds from the sale were between $50,000 and $80,000 but FRO had a lien against the property in an amount he could not recall. Michael testified that he had about $30,000 in his savings account [which is confirmed by his financial statement, sworn on February 24, 2021], which were part of the net sale proceeds. He applied the $30,000 sum toward the purchase of 61H.

[107] On March 23, 2011, Michael repaid Vivian the sum of $7,500, which she had loaned him a few weeks earlier.

[108] Although Michael’s evidence suggested that Vivian only attended the occupancy clearance appointment relating to 60H (which took place on February 24, 2011), at which time she agreed to become involved with the purchase of 60H, in his schedule of the payments he made toward 60H, he asserts that Vivian came to the meeting he had some time in December 2010 and it was at that meeting that she gave a cheque for the $20,000 that she had taken out of her RRSP under the First Time Home Buyer’s Plan.

[109] However, Vivian gave Michael $10,000 on March 30, 2011. In April, 2011, Michael took possession of 61H. On April 26, 2011, the purchase of 61H closed in Michael’s sole name.

[110] On April 27, 2011, Vivian gave Michael a further $10,000 sum. Vivian’s testimony at Trial was that Michael used $10,000 of the monies she gave him to close the 61H purchase. [The parties treated the $20,000 in total paid by Vivian as one-half the money contributed toward the acquisition of 60H. Essentially, Vivian reimbursed Michael for one-half of the $40,000 he had paid toward the down payment on 60H. The receipt of $10,000 of the amount relatively soon before the 61H closing assisted him in contributing further funds toward the closing of the 61 purchase.]

[111] Again, toward the end of 2010, the occupancy dates for 61H and 60H were approaching, Michael had significant debt and knew that he would not be able to qualify for two mortgages, for 61H, which was closing first, and 60H. Further, he knew that he would not be eligible to obtain an HOA mortgage for more than one unit. If title to 60H were not taken in Vivian’s name, an HOA mortgage would not have been available for 61H. [This evidence suggests that Michael preferred that the purchase of 60H close, if only one property could close. He wanted to reside in 60H]

[112] It is Vivian’s version of events that, in December 2010, when 61H became available for occupancy, Michael was in significant debt and having difficulty obtaining mortgage approval. At the same time, 60H was nearing its occupancy date of March 17, 2011. Michael had asked Vivian to lend him money. According to Vivian, she and Michael had been fighting in December 2010. Michael had told her that if she did not lend him money, then he saw that as her not being committed to their relationship. At the time, Vivian was living at her parents’ home, saving money.

[113] Vivian’s evidence was that she was concerned about how much debt Michael was in. She was aware that, in addition to the mortgage registered on title to his Bathurst Street condominium, a lien had been registered on title to the property in connection with money he owed Constance.

[114] According to Vivian, on December 20, 2010, the parties attended the meeting with Allen at Options For Homes. They discussed the penalties that would result, if Michael could not complete the purchases of 61H and 60H. As it was clear that Michael would not be able to close the purchase of 60H, Vivian began to consider buying 60H, with title to 60H being transferred into her name.

[115] Michael deposes that Vivian told Allen that she was interested in buying 60H. He had made a deposit of $20,000 on it. Vivian then matched his deposit with the funds withdrawn from her RRSP. [In fact, as of the December 2010 meeting, Michael had also paid $12,198.82 toward the upgrades [plus $1,453 toward a parking spot and locker, I believe], for a total payment by him toward 60H of $32,198.82 [plus $1,453, possibly.]. [If one adds the $7,802 amount that Michael paid Kintyre on March 18, 2011 (the day that the parties moved into 60H), then Michael had contributed just over $40,000 toward the purchase price of 60H. The parties are in agreement that each contributed $20,000 toward the acquisition of 60H.]

[116] According to Vivian, after speaking with mortgage brokers, she had learned about an “Alternatives Mortgage”. It was Michael’s evidence, however, that an HOA mortgage was offered by the developer, to assist people who would not otherwise be able to purchase a home. According to Michael, an HOA mortgage is intended for first time buyers in an Options for Homes development. The mortgage allows homeowners to pay 15% less than the market value of the building and then make no mortgage payments while the buyer owns and lives in the suite. When the homeowner wishes to sell the unit, the mortgage is then repaid in the original amount. If the unit increased in value after its purchase, then the principal amount of the HOA mortgage is increased by the same percentage increase as the increase in the value of the condominium. Since Vivian was a first-time homebuyer with Options for Homes, this mortgage was available to her.

[117] Vivian deposed that she had decided that she wanted to buy 60H. She did not want to co-own the property with Michael, given his debt history. According to Vivian, once she agreed to purchase 60H, Michael was able to focus on obtaining financing for 61H, for which he qualified because he intended to rent 61H. The parties were going to live in 60H. Michael had wanted to live in 60H, which was the larger and more luxurious of the two units. Michael subsequently qualified for a mortgage on 61H, which enabled him to close 61H on or about April 26, 2011. After signing the Adoption Agreement on July 14, 2011, Vivian then secured the HOA 2nd mortgage and the balance of the required financing was arranged through Home Trust in her sole name. [It was Michael’s evidence that it was not easy for Vivian to obtain a mortgage. He himself had had difficulty obtaining one. His evidence is that both parties were involved in the attempts made to find the financing for 60H. Vivian did not deny this.]

[118] Michael submits that he switched ownership of 60H to Vivian in name only, so that she could obtain the HOA mortgage for 60H. He could not do that because he was going to place such a mortgage on 61H. It is his position that 60H was his home first. He had picked 60H out; entered into the 60H purchase agreement; and chosen the upgrades for it. He testified that he would buy Vivian’s equity in 60H from her, should this Court determine that she has an interest in the property.

[119] In cross-examination during the Trial, Michael acknowledged that he had claimed 100% of 60H in his pleading because he had simply mirrored Vivian’s claims when making his own. He was not represented by a lawyer at the time. In his Opening Statement at the start of the Trial and in his financial statement, sworn February 24, 2021, Michael asserted that he had an 80% interest in 60H. However, during his testimony, Michael said that he understood that 60H was “[their] property but it was in her name.” Further, he also acknowledged that he believed that he and Vivian owned 60H “equally”. [His position in his closing submissions was that Vivian held 60H in trust for him. To be clear, it has consistently been Vivian’s assertion in this case that she believed that 60H was her property and 61H was Michael’s property. According to Vivian, the parties never discussed that she was holding 60H in trust for Michael.]

[120] Michael testified that until Vivian stopped working in 2016 (when Nicholas was born), they shared the expenses for 60H equally. Once she stopped working, he paid the mortgage and condominium maintenance fees, except for the odd payment, which Vivian made from the child tax benefits she received. According to Vivian, at the time of the closing of 60H on October 18, 2011, she was pregnant with Clair. Both she and Michael contributed equally to the mortgage payments, condominium fees, property taxes and utilities associated with 60H. After Clair was born, Vivian remained at home for a year. When she returned to work in August 2013, she worked less than she had previously, due to her assumption of the childcare and household responsibilities. According to Michael, Clair continued to pay 60H’s costs equally until Nicholas was born on February 28, 2016. Michael then started to pay the mortgage and condominium fees and Vivian paid the property taxes, utilities bills and the mortgage renewal fees. [I believe that Michael may also have paid the property insurance bills as well. His accounting of the funds he contributed toward 60H does not break down the expenses themselves, but the total he paid each month.] Vivian also paid for the children’s expenses. Prior to the separation (September 6, 2016), she had the use of Michael’s credit card, which she used to purchase some groceries and household items. After the separation, Michael terminated her use of the credit card. She then covered the cost of groceries for herself and the children and the household expenses previously covered by Michael’s credit card, out of her own resources. [To be clear, Michael continued to reside at 60H between the separation and December 20, 2010.]

Analysis

A. Who owns 60H?

[121] Again, each party takes the position that the Court should declare that she or he is the sole owner of 60H. The parties’ respective positions as to the orders that the Court should make, once the ownership of 60H is determined, are set out in paragraphs 106, 107, 118 and 119 above.

[122] In Kerr v. Barranow, (”Kerr”); Vanassse, v. Seguin, 2011 SCC 10, [2011] 1 S.C.R. 269, the Supreme Court of Canada comprehensively canvassed and clarified the property rights, which apply in the circumstances of the breakdown of a marriage-like relationship, where parties reside in a jurisdiction where those rights are not governed by statute. The Court held that the time had come to acknowledge that there was no continuing role for the “common intention resulting trust” – that is, a trust based on the common intention of the parties that one of them would hold title to the property in trust for the other by way of a resulting trust. Kerr, at paragraph [15]. The Court was not suggesting that a resulting trust that would otherwise validly arise is defeated by the existence of common intention. Kerr, at para. [29].

[123] The Court acknowledged that traditional resulting trust principles might well have a role to play in the resolution of property disputes between unmarried domestic partners. After explaining that the underlying notion of the resulting trust is that it is imposed “to return property to the person who gave it and is entitled to it beneficially, from someone who has title to it, such that the beneficial interest jumps back to the true owner [at para. 16], Cromwell, J. further explained as follows:

[17] Resulting trusts arising from gratuitous transfers are the ones relevant to domestic situations. The traditional view was they arose in two types of situations: the gratuitous transfer of property from one partner to the other, and the joint contribution by two partners to the acquisition of property, title to which is in the name of only one of them. In either case, the transfer is gratuitous, in the first 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.

[18] ..[i]n these gratuitous transfer situations, the actual intention of the grantor is the governing consideration.

[124] Citing Pecore v. Pecore, 2007 1 S.C.R. 794 (“Pecore”), at paragraphs 43 – 44, Cromwell, J. re-iterated that where a gratuitous transfer is being challenged, the trial judge will start his/her inquiry with the applicable presumption and will weigh all of the evidence, in an attempt to ascertain, on a balance of probabilities, the transferor’s true intention. Cromwell, J. emphasized the reference to the transferor’s actual intention. Kerr, at para. [18] He further re-iterated that the law generally presumes that the grantor intended to create a trust, rather than to make a gift, such that the presumption of resulting trust will often operate. Put another way, a presumption of a resulting trust is the general rule that applies to gratuitous transfers. As equity presumes bargains and not gifts, when such a transfer is made, the onus will be on the person receiving the transfer to demonstrate that a gift was intended. Otherwise, the transferee holds the property in trust for the transferor. Kerr, at para. [20].

[125] In her closing submissions at the end of the trial, Vivian submitted as follows:

a. In terms of Michael’s actual intention, Vivian submits that, not surprisingly, it is Michael’s after-the-fact position that he did not intend to gift to her the $20,000 he had contributed toward the acquisition of 60H, and that it would have been reasonable in the circumstances for the parties to have decided that, rather than Michael lose $20,000 and possibly be sued for not closing the deal, he would donate the amount to her home, in which he would live, thus enabling him to rent out his other unit; build equity in that property and pay off one mortgage in the approximate amount of $45,000;

b. It was never her intention or understanding that Michael would or did retain ownership of 60H. She had withdrawn funds from her RRSP under the terms of the First Time-Home Buyer’s Plan and obtained other one-time subsidies such as a discount on land transfer tax, a GST credit rebate and a first-time home buyer’s tax credit. She submits that she had put the property in her name and taken the mortgages Michael was impecunious at the time. Placing title in her name assured her that, if their relationship broke down before their wedding, she would not be left with nothing. Further, she gave evidence that she had decided that she had wanted to have a condominium and had been taking steps toward this goal by looking at condominiums with a friend (an interior designer) and also looking at them online. Finally, had she not bought 60H, Michael would have lost his $20,000 deposit and possibly been sued; and

c. The presumption of a resulting trust is rebutted by an absence of any agreement between the parties that Vivian would repay the funds given by Michael to her, as was the case in Farjad-Tehrani v. Karimpour, 2008 ON SC 67894, at para. 43.

[126] In his closing submissions, Michael submitted as follows:

a. Vivian holds 60H in trust for him by way of resulting trust. 60H was placed in Vivian’s name when the purchase of 60H closed in October 2011, only to enable her to obtain an HOA mortgage for 60H. At that point, he was “personally ineligible” for another HOA mortgage because the purchase of 61H had closed and that property was subject to an HOA mortgage. [The purchase of 61H had closed in April 2011.].

b. According to Michael, he had entered into the 60H purchase agreement and made the initial deposits. While Vivian had made contributions over time, including paying $20,000 toward the 60H “closing deposit”^[15]^; contributing financially toward 60H while she was working; and looking after the children while Mr. Smith worked, these contributions were relevant to her claims for unjust enrichment/constructive trust; they did not rebut the gratuitous “initial transfer”.^[16]^

c. On cross-examination, Vivian’s evidence showed that she had not taken active steps previously to purchase a condominium in that she had never contacted a real estate agent and did not provide any documents to corroborate any steps she asserts that she had taken. Further, her sister knew nothing about such a plan; and

d. It would be implausible that he would have gifted Vivian with the $20,000 that he had effectively put into 60H when at or around the same time, he had had to borrow $7,500 from her to pay down his credit card debt. As a result, the property has to be returned to him.

[127] Both parties’ closing submissions were problematic in key respects. On page 9 of her closing submissions, most particularly, Vivian submitted that it would have been reasonable, in the circumstances, for the parties to decide that, rather than Michael losing $20,000 and be sued for not closing the deal, he would donate the $20,000 to her home (60H). After all, he would be living in 60H, which would enable him to rent 61H out; build equity in 61H and pay off one mortgage in the approximate amount of $45,000 (presumably, the HOA 2nd mortgage on 61H). However, she did not testify that they had decided this. Given the fact that Michael lived in 60H; rented out 61H; paid down the 61H first mortgage by about $70,000 by the time the parties separated and appears to have paid off the 2nd mortgage, this submission appears to contain the same kind of after-the-fact assertion of alleged fact, about which Vivian had taken issue in response to Michael’s submissions.

[128] Farjad-Tehrani, supra, does not, in my opinion, assist Vivian. The case deals primarily with the issue of whether monies that the husband’s parents had advanced to the husband had been a gift or a loan. The determination of that issue would affect the calculation of the husband’s net family property for equalization purposes under the FLA. The issue was a factual one. The court does refer to the presumption of resulting trust in its reasons and refer to the principle that proof of a gift can rebut a presumption of a resulting trust. The reference was likely included in the decision because the wife had alleged that the husband’s mother held a property in her name in trust for the husband by way of resulting trust. However, the court determined that money that the parties had paid at the time of the closing, to enable the purchase to close, was a short-term loan by them to the mother, which the mother repaid to them shortly after the purchase closed. Thus, no contribution had been made by the parties to the acquisition of the property. Simply put, I do not see how Farjad-Tehrani supports Vivian’s submission that the $20,000 that Michael had paid toward the acquisition of 60H was a gift to her.

[129] Several of Michael’s closing submissions do not refer to the evidence in an even-handed manner, including: (a) In paragraph 21 of the submissions, he suggests that, other than her $20,000 contribution toward the purchase price, the only payments Vivian made toward 60H were utilities payments. He does not mention that Vivian alone paid the property taxes. She also paid the mortgage renewal fees. Neither party testified that Michael made the mortgage, maintenance fees (and property insurance, as well, I believe) because he owned 60H. In fact, Michael’s evidence was that he and Vivian shared 60H’s costs equally until Vivian stopped working completely after Nicholas was born; (b) In paragraph 33 of his closing submissions, Michael goes so far as to specifically assert that Vivian used the “Child Benefit and tax rebate” to pay for utilities and claiming that the benefits were intended for the family and not for Vivian personally. In my view, he made this submission in an effort to reduce the extent of her contribution toward the utilities by one-half. To be clear, the benefits that Vivian received from the government belonged to Vivian alone. The submission is devoid of any merit; (c) In referring to Vivian’s provision of cheques to him for “occupancy rent” (in quotations), Michael implies that after they moved into 60H, Vivian paid rent to Michael. It is obvious that what Vivian was doing was contributing to or paying the occupancy rent that a purchaser pays upon taking occupancy of a condominium unit in circumstances where the purchase has not yet closed. Neither party testified that when Vivian moved into 60H in March 2011, she paid rent to Michael; (d) In paragraph 17, Michael submits that he signed the 60H purchase agreement, as well as having paid the “initial deposits”. He then refers to contributions “made over time” by Vivian toward the closing deposit, asserting that they were relevant to an unjust enrichment/constructive claim and were not a contribution by her toward the acquisition of 60H. To be clear, Michael’s contributions toward his initial $20,000 deposit were made on April 28, 2007, May 31, 2007, and June 30, 2007 (thus, over two months). After Vivian became involved in the purchase of 60H on or around February 24, 2011, her $20,000 contribution was made by way of payments to Michael on March 31st and April 27, 2011 (thus, over two months); and (e) In paragraph 18, Michael relies on his need to borrow $7,500 from Vivian to “to pay his own credit card debts” as evidence that, in light of his financial problems, it would be implausible that he would have given $20,000 to Vivian. The evidence was that Vivian loaned him the $7,500 amount so that he could pay down his credit card balances, which would then enable him to obtain a mortgage. The evidence at trial demonstrates that this was the first step of several that the parties took after the February24, 2011 occupancy clearance appointment for 60H, to ensure that two HOA mortgages and first mortgages could be secured for the properties.

[130] As was stated in Pecore, at para. 44, the trial judge will start his/her inquiry with the applicable presumption. Michael relies on the presumption of resulting trust in support of his claim to an interest in 60H. As of October 18, 2011, when the purchase of 60H closed, the parties had equally contributed to the acquisition of 60H but title to the property was registered in Vivian’s sole name. The transfer was gratuitous because there was no consideration for the contribution to the acquisition of the property.

[131] After having reviewed the evidence as a whole in this case and considered the submissions, I find that when title to 60H was registered in Vivian’s name on October 18, 2011, Michael intended and believed that he and Vivian owned 60H equally.

[132] The parties had been in a relationship since 2007. Michael admits that he had not been overly successful in past financial endeavours. He had asked Vivian to lend him money on a number of occasions and she had not agreed to.

[133] Michael had purchased the Bathurst Street condominium in which he had lived until just before he and Vivian moved into 60H. [It appears from his evidence and financial statement, sworn February 24, 2011, that about $30,000 would be available to him from that sale to assist him in closing the purchases of 60H and 61H. He ultimately applied the $30,000 amount toward the closing of 61H. [It is possible that he repaid Vivian the sum of $7,500 out of the proceeds of sale when or soon after the Bathurst Street sale closed. However, no evidence was adduced to that effect.]

[134] In late 2010, the two condominiums, which Michael had bought in November 2006 (61H) and April 2007 (60H) respectively were nearing their occupancy dates. The occupancy clearance appointment for 61H was scheduled for December 20, 2010. Michael was clearly aware by that time that he might well not be able to close these transactions. Again, his evidence was that he would not be able to obtain two mortgages for two properties himself. In fact, he needed two mortgages for each property – an HOA mortgage (offered by the developer) and a mortgage to fund the balance of the purchase price for each property. The amount to be financed by way of a first mortgage on each property represented the lion’s share of the purchase price of each. major portion of the purchase price. Although it is not clear when Michael first approached Vivian about helping him to close the purchases, I am satisfied that it was before the December 20, 2010 occupancy clearance appointment for 61H. The evidence satisfies me that Vivian attended the occupancy clearance appointments for both units. At the end of the first one, she clearly had some idea of the negative financial impact that not closing the purchases would have on Michael. Nevertheless, she left the first meeting, essentially only agreeing to think about it. She was obviously reticent.

[135] According to Michael, he and Vivian had conversations in January 2011 that did not go all that well. Although the particulars of the conversations were not specifically provided, it can be inferred from the evidence that Michael was seeking her help on the basis that becoming involved would show that she was committed to their relationship. At some point after the December appointment, Vivian took the position that she would only agree to participate, if she bought 60H such that her investment of funds would not be at risk. Discussion was also clearly had about the fact that it would benefit both of them ultimately, if “ownership” of 60H was switched to Vivian. At some point not known to me, the parties had also discussed living together in 60H. Further, at some point prior to the end of January, the parties had become engaged.^[17]^

[136] I reject Michael’s evidence that, if Vivian had not agreed “to participate”, he would have been able to approach another person(s) for some help and would have been able to close the purchases. Given Vivian’s reticence as of December 20, 2020, I have no doubt that Michael would have pursued any other options he believed he had. His own evidence was that he went to the occupancy clearance meeting for 60H [on February 24, 2011], hoping to “pull a rabbit out of his hat”.

[137] I accept that when Michael attended the February 24, 2011 occupancy clearance appointment for 60H, he went to the meeting alone, without any commitment from Vivian. I accept Michael’s evidence that Vivian showed up at that meeting, and agreed to participate. Neither party gave evidence as to how that meeting unfolded in terms of whether they negotiated further or she simply set the terms upon which she was prepared to participate. While it is clear that Michael had a great deal to lose, if he was unable to close 60H. [having contributed more than $32,500 toward 60H and at least $13,000 toward 61H by this time], in the context of the evidence as a whole in this case, I find it difficult to believe that Michael would have agreed to give up his entire interest in 60H in February 2011 to Vivian. Vivian’s evidence was that she felt bullied into participating. I find it difficult to believe that Vivian’s evidence would have been that she had felt bullied into participating, if she had set the terms for her participation (that is, that she become the sole owner on the basis of a 50% contribution) and Michael had agreed to her conditions.

[138] I infer from the fact that Michael went to the February 24, 2011 meeting on his own and without having any idea as to how he would be able to finance the purchases; Vivian’s attendance at the meeting after it had started; and the activity that took place respecting the closing of the purchases, starting four days after the appointment, that the parties arrived at an understanding as to Vivian’s participation but that neither of them has been forthcoming about it because it did not reflect what either of them had wanted. Four days after the appointment, Vivian loaned $7,500 to Michael to enable him to reduce his credit card debt, which would assist him in securing financing for 60H, according to Vivian. It appears to me that he needed to secure financing for 61H at that point and, subsequent to the February 24, 2011 appointment, he was able to both acquire an HOA mortgage and a first mortgage. The parties later addressed their search for a first mortgage for 60H. The closing of the sale of the Bathurst Street condominium took place just before the parties took occupancy of 60H. On March 18, 2011, Michael paid $7,802 toward 60H’s purchase. That same day, the parties moved into 60H. On March 23, 2011, Michael repaid the $7,500 loan that Vivian had given him. On March 31, 2011, Vivian gave Michael $10,000; on April 27th, 2011, a further $10,000. On July 31, 2011, the parties signed the Adoption Agreement, which added Vivian as a purchaser of 60H. On October 17, 2011, they each paid one-half the closing fees and taxes, which had to be paid in order to close the purchase of 60H. When they moved into the condo, the parties shared the condo costs equally.

[139] Again, during the trial, Michael conceded that, Vivian having contributed equally to the acquisition of 60H, he believed that they own 60H equally. In my view, the evidence regarding the parties’ respective contributions toward 60H from the February 24, 2011 occupancy clearance appointment until well into the parties’ cohabitation and the entering into of the Adoption Agreement on July 14, 2011, support his belief.

[140] It may well be that, upon Vivian’s second $10,000 payment to Michael on April 27, 2011, Vivian acquired a 50% beneficial interest in the 60H purchase agreement by way of resulting trust. It is also possible that this occurred when the parties signed the Adoption Agreement on July14, 2011, which added Vivian as a purchaser along with Michael. To be clear, neither party referred to these possibilities, let alone relied on either of them in addressing the ownership issue. In the end, given what I find Michael’s intention to have been (that is, tat he and Vivian would each own ½ of 60H) and my finding that, despite Vivian’s consistent position that she would only become involved, if she bought 60H, she ultimately decided to participate on a different basis (that is, that she would hold a one-half interest in 60(H)). While she asserts that she was “bullied” into participating, it is clear that the decision to participate involved issues relating to the parties’ relationship and their future together.

[141] Despite taking the position that a resulting trust arose in his favour when title to 60H, the acquisition of which had resulted from the parties’ joint contributions, was placed in Vivian’s name, Michael’s position in his closing submissions is that these contributions entitle him to a 100% interest in the property, and not a 50% interest in it.

[142] On the evidence before me, I have concluded that, as of February 24, 2011, the parties agreed that they would proceed on the basis that Vivian would contribute equally to the acquisition of 60H and he and Vivian would own 60H equally. Vivian would take title to the property so that they would be able to obtain the financing that would permit both units to close. Vivian did not prove that Michael had gifted his 50% share of the property to her. When the closing took place and title was placed in Vivian’s name, Vivian held one-half the property in trust for him by way of resulting trust. See Launchbury v. Launchbury (2005), 2005 ONCA 10640, 12 R.F.L. (6th) 393 (Ont. C.A.).

B. Has either party been unjustly enriched and, if so, the remedy to be awarded to the other party for such unjust enrichment:

[143] It was Vivian’s position at trial that, if she were determined to be the sole owner of 60H, then she would be content to make no further property-related claims against Michael, given that a result where she owns 60H and Michael owns 61H would be fair. However, if she did not obtain a declaration that she is the sole owner of the property, then she seeks a proprietary remedy because Michael has been unjustly enriched by her contributions during the course of their joint family venture. She seeks an order imposing a remedial constructive trust on Michael’s interest in 60H, to the full extent of his interest, such that she will own 60H and he will own 61H.

[144] Michael has not claimed that the parties were involved in a joint family venture. On the other hand, he did not take issue with Vivian’s claim that they had been. His primary position at trial was that an order declaring him to be the sole owner of 60H should be made. Based only on the possibilities that the Court would either declare that Vivian owns 60H or that he does, Michael took the position that if the Court determined that he is the owner, he would pay her an amount of money on account of her meritorious claim for unjust enrichment/constructive trust, the valuation of which was to be based on the parties’ September 6, 2016 separation date, but he provided the Court with no particulars as to the amount that the Court should order. If the Court were to determine that Vivian is the owner of the property, then he asks the court to either (a) impose a remedial constructive trust on Vivian’s interest in the property to the extent of 65%, and also make an order that Vivian pay him an amount that is equal to one-half the Child Benefit and other tax benefits that Vivian had received between March 18, 2011 and December 29, 2020, or (b) . Alternatively, he sought an order that she pay him an amount equal to 65% of 60H’s current value.

(i) Were the Parties Engaged in a Joint Family Venture?

[145] In Kerr, the Supreme Court of Canada confirmed that the doctrine of unjust enrichment coupled with the possible remedy of a constructive trust provides a comprehensive and principled basis to address the wide variety of circumstances that lead to claims arising out of unmarried partnerships. The Court characterized unjust enrichment as being an unjust retention of a disproportionate share of asserts accumulated during the course of a “joint family venture” to which both partners have contributed.

[146] The term “joint family venture” is also found in Peter v. Beblow, [1993] 1 S.C.R. McLachlin, J. referred to the cohabitants in that case as having been engaged in a “joint family venture”, to which both parties had contributed. In paragraphs 84 and 85 of Kerr, Cromwell, J. further explained:

“It is not the purpose of the law of unjust enrichment to replicate for unmarried partners the legislative presumptions that married partners are engaged in a joint family venture. However, there is no reason in principle why remedies for unjust enrichment should fail to reflect that reality in the lives and relationships of unmarried partners.”

“I conclude, therefore, that the common law of unjust enrichment should recognize and respond to the reality that there are unmarried domestic arrangements that are partnership; the remedy in such cases should address the disproportionate retention of assets acquired through joint efforts with another person. This sort of sharing, of course, should not be presumed, nor will it be presumed that wealth acquired by mutual effort will be shared equally. Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other’s property or in any other relief. However, where wealth is accumulated as a result of joint effort, as evidenced by the nature of the parties’ relationship and their dealings with each other, the law of unjust enrichment should reflect that reality.”

[147] In Kerr, at para. 88, Cromwell, J. confirmed that the emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court’s view of how they ought to have done so as a couple.

[148] Cromwell J. observed that there is no closed list of relevant factors to consider in determining whether the parties have engaged in a joint family venture but suggests that courts will find it helpful to evaluate the evidence under the following four main headings. First, mutual effort, which involves the parties working collaboratively towards common goals. Second, the degree of economic interdependence and integration that characterized their relationship. Third, the actual intentions of the parties as expressed or manifested by their conduct. And fourth, the extent to which the parties have given priority to the family in their decision making, the focus being on their respective contributions to the domestic and financial partnership and on sacrifices made for the benefit of the family unit. He emphasized that neither the headings nor factors grouped under the headings constituted pre-conditions to a finding of unjust enrichment but were meant to help a court evaluate whether a joint family venture exists in a particular case.

[149] From the outset, this family was one where there was an atmosphere of collective goa.ls that were shared and where the benefits ought not to be conferred only to Michael and not Vivian.

[150] In the case at bar, although Vivian and Michael had been in a relationship since 2007, in early 2011, in order to show her commitment to the relationship (while they were discussing and planning to cohabit), Vivian agreed to assist Michael financially and became involved in the completion of the purchases of the two properties, one of which became their family home. Through their mutual efforts and the economic integration of their new family unit, they were able to organize the financing that was needed to close the two purchases. Vivian contributed equally financially to the purchase of 60H. By taking title to it, financing could be obtained for both properties. Having been able to complete both purchases as a result of their mutual efforts, they were able to live in 60H and Michael was able to rent out 61H, without any concern over where he would live. (He had sold his Bathurst Street condominium, the closing of which took place very shortly before the parties moved into 60H). From the time that they moved into 60H, both parties worked and shared the housing expenses equally until Nicholas was born, according to Michael. Vivian took on the parties’ child care and household care responsibilities immediately after Clair was born in 2012, and reduced her work hours. Michael was able to continue to work full-time at various jobs. Notwithstanding her child care responsibilities, Vivian always contributed to the family’s expenses out of the income she had. By being a stay-at-home mother, they avoided the need to pay significant childcare costs, which also enabled them to accumulate the wealth that they did.

[151] Although Vivian ceased performing certain household tasks for Michael after they began to live separately under the same roof (on September 6, 2016), she had recently taken on the added responsibility of caring for an infant; continued to care for Clair and continued to perform the household tasks for the children (such as purchasing groceries, cooking, cleaning and laundry). She devoted all of her income and additional resources to the family’s expenses, which enabled Michael to use his surplus net disposable, derived from the income that he earned while Vivian cared for the home and children, to accrue wealth.

[152] I find that when Vivian became involved in the purchases of 60H and 61H and the parties more or less contemporaneously began to cohabit, with a view to getting married, the parties had become engaged in a joint family venture. Between March 18, 2011 and December 20, 2020, significant wealth was acquired relative to the parties’ wealth at the beginning of their cohabitation. as compared to their financial positions prior to cohabiting, primarily through the increase in the equity in each of 60H and 61H. It is through their agreement that Vivian would become involved with the purchases of 60H and 61H, directly and indirectly, their mutual efforts and economic integration, and the priority given to their family that they were able to do so acquire that wealth.

(ii) Was either party unjustly enriched by the other’s contributions to their joint family venture?

[153] As confirmed in Kerr, supra, a claim for unjust enrichment can only be established where the applicant has proved the following three elements: (1) an enrichment of the respondent by the applicant; (2) a corresponding deprivation of the respondent; and (3) the absence of any juristic reason for the enrichment. The analysis for determining an unjust enrichment claim within the context of a domestic relationship is as follows:

a. Have the elements of unjust enrichment - enrichment and a corresponding deprivation, in the absence of any juristic reason for the enrichment - been made out?

b. If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money?

c. If the answer to questions a. and b. is yes, then should the monetary damages be quantified on a fee-for service basis or a joint family venture basis; and

d. If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest.

[154] It is now settled law that the provision of domestic services may support a claim for unjust enrichment: Beblow, supra; Kerr, supra.

[155] Vivian submits that Michael was unjustly enriched by her contributions to their joint family venture; she suffered a corresponding deprivation; and there was no juristic reason for Michael’s enrichment, as follows:

a. Vivian was the full-time caregiver for the children, which allowed Michael to look after his health; take courses and work two to three jobs (the jobs being chosen by him, even if it meant that he would work in the evenings, on weekends or out of town);

b. By the assumption of all household and child-care responsibilities, they did not have to incur child care costs, which would have been substantial for two children (particularly, when infants);

c. Prior to the separation, Vivian performed the day-to-day family responsibilities such as grocery shopping, cooking and doing the family’s laundry. After the separation, she continued to perform these functions for the children;

d. Michael’s income-earning potential was not negatively impacted by the relationship. It more or less steadily increased. In the years 2017 – 2019, in particular, Michael’s income was materially higher than it had been previously. Vivian’s disproportionately high contribution toward family expenses, enabled Michael to significantly reduce the debt against 61H; invest in RRSPs and contribute to toward his City of Toronto pension;

e. Certainly, in the last four years, Vivian paid more than half of the family’s total monthly expenses, even though Michael’s net disposable income was significantly greater than hers. To do so, she had to resort to capital; and

f. As a result of her involvement, in addition to the financial contributions she made to the acquisition of the property and its maintenance, directly and indirectly; Vivian obtained and was solely legally responsible for the mortgages on 60H, which constituted the lion’s share of the purchase price. As a result, she could not have afforded to purchase other accommodation;

g. Vivian was not able to advance her own income-earning potential between 2011 and the current date, given her child-care responsibilities between June 2012 and December 20, 2020 (Nicholas being six months old when the relationship broke down); Michael was able to do so and, at the same time, had the ability to choose work that he wanted to do, even though he could have increased his seniority by working for the City during the Ferry Service’s off-season.

[156] It is clear from his closing submissions, filed, that Michael’s position is that, at the end of the relationship, Vivian is neither entitled to an interest in 60H that is as great as 50% nor a money payment in an amount as great as 50% of the current equity in 60H. This is so, whether his position is based on his own unjust enrichment/constructive trust claim, should Vivian have been found to be the owner of 60H, or Vivian’s unjust enrichment/constructive trust claim, should he have been found to be the owner of 60H. He submits that:

a. He was the original purchaser of 60H and had made the initial deposits on it. Ownership of 60% had only been switched so that Vivian could obtain an HOA mortgage for 60H. As of the October 2011 closing of 60H, he already had an HOA mortgage for 61H;

b. Vivian’s contributions to 60H over time, by way of the $20,000 payment toward the closing deposit; payments she made toward 60H while she was working (that is, until Nicholas was born) and looking after the children while he worked, gave rise to an unjust enrichment/constructive trust claim by Vivian (assuming that he owns 60H);

c. Vivian had admitted on cross-examination that she took the property in her name so that he would not be sued and she had felt bullied into doing it;

d. Vivian had provided no proof that she had previously intended to purchase a condominium. The evidence was overwhelming that she had taken title to 60H to assist him to purchase the property;

e. He paid the majority of the expenses to carry the mortgage and maintenance fees for 60H and Vivian used the Child benefit and “tax rebate”, intended for the family, for the balance of the home expenses (the utilities). Thus, she received the benefit of his ongoing payments, which caused him deprivation because he had used the money he earned to pay expenses;

f. After their separation, Vivian insisted that he continue the payments he had been making; and

g. Vivian’s total non-financial contribution decreased dramatically around the time of the separation (September 6, 2011). Although she continued to look after the children after the separation, she had stopped performing most household tasks for him before the separation date and stopped doing any remaining tasks for him in 2017. Thus, while he had “dutifully adhered to his side of the agreement” by paying the mortgage and maintenance fees, she had not.^[18]^

[157] I have considered each party’s position above in the context of all of the evidence before the Court. In addition to my finding that Vivian and Michael own 60H equally, I further find that Michael has been unjustly enriched by the contributions that Vivian made during the course of their joint family venture.

(iii)The parties’ respective net worths on the date that they began to cohabit:

[158] It is my view that Vivian’s financial statement, sworn March 5, 2021, when adjusted to address the issues mentioned in this paragraph, discloses that she had a net worth of about $69,285 on March 18, 2011 [On that day, Vivian had yet to pay any money to Michael toward the acquisition of an interest in 60H. Thus, she would have had $20,000 more in RRSPs when they began to cohabit than the $14,141 amount shown in the statement. As well, as of that date, Michael owed her $7,500. I have adjusted the information on Vivian’s financial statement to take those facts into consideration. If Vivian did not have an additional $20,000 in RRSPs, then her net worth would have been $49,730.)]^ ^[19]^

[159] When adjusted to address the issues mentioned in this paragraph, Michael’s financial statement, sworn February 24, 2021, discloses that, on March 18, 2011, he had a net worth of about $68,679.^[20]^ [The information relating to 60H and 61H in his financial statement is not accurate. As of March 18, 2011, the closing of neither property had taken place. The purchase price of 60H was slightly higher as of March 18, 2011. I do not know how the mortgage balances were determined. As well, Michael did not include an HOA mortgage for 61H in his calculations. In order to fairly compare the parties’ financial positions as of March 18, 2011, I have valued Michael’s equity in 60H and 61H as of March 18, 2011 at $54,166 (based on the evidence before me of the contributions he had made toward the acquisition of the two properties by that date).^[21]^ I have also added notional tax on his RRSPs to his debts. While I appreciate that Michael is older than Vivian and his income has historically been higher than hers has been, Michael historically paid less than 21% in income tax on his income. I have included the $7,500 amount Michael owed Vivian as of March 18, 2011, as an asset. I have also accepted Michael’s position that he did not owe his former wife any money on March 18, 2011, given that, as of that date, the closing of the sale of his Bathurst Street condominium had very recently taken place and FRO had “filed a lien” on the property, to secure her support.] Even if one were to accept the approach Michael took toward the calculation of his net worth and add $33,165 to his debts on account of an HOA mortgage for 61H and make the other adjustments I refer to above for tax on his RRSPs and the inclusion of his $7,500 debt to Vivian, he would have had a net worth of about $139,841 when they began to live together.] The greatest difference between their respective net worths as of March 18, 2011, would be about $90,000, if Vivian’s net worth were as low as about $50,000 and Michael’s was as high as about $140,000.

[160] Having found that the parties own 60H equally, as of the date of their most recent respective financial statements (March 5, 2021 for Vivian and February 24, 2021 for Michael), I find that Vivian’s net worth at the time of trial was about $296,186.^[22]^ I did not deduct notional costs of disposition in calculating Vivian’s net worth because she did not give evidence that she intends to sell 60H, if she is entitled to retain it. Michael’s net worth was about $928,424.^[23]^ Michael’s net worth thus constitutes 76% of the parties’ current combined net worths; Vivian’s constitutes 24%.

(i) The parties’ respective contributions toward the family’s expenses while living together

[161] The parties shared 60H’s expenses equally when they began to cohabit. It is unclear when this changed. Vivian was at home for a year after Clair’s birth in June 2012. When she returned to work, she worked less because she was responsible for looking after Clair and the household. Michael continued to work full-time at various jobs. It is not disputed, however, that Clair did not work after Nicholas was born in February 2016. Certainly, at that point, if not before, Michael began to pay the mortgage and condominium fees (and likely the property insurance). Vivian also had the use of Michael’s credit card to pay for household bills and some of the groceries. Vivian funded the balance of the expenses out of her income (including any government benefits she received).and capital. When the parties separated, Michael terminated Vivian’s use of the credit card and at that point, she began to cover the expenses that he had covered via the credit card, except that Vivian did not pay for Michael’s groceries.

[162] But for about $13,000 that Vivian earned over 2016 and 2017 from contracting out her shifts as a server/bartender at her former places of employment, Vivian’s only income was comprised of the Child Benefit that she received for two children, Trillium benefits and her GST/HST rebate. These non-taxable benefits created a cash flow for her of about $17,800 a year for her - $1,482 a month. As set out in financial statements Vivian has filed in this case, including her financial statement, sworn on March 5, 2021, her monthly expenses, inclusive of all of the house expenses, total $3,975. On a review of Michael’s financial statements, the amounts that he deposes that he pays toward the mortgage; property insurance and condominium fees differ from those set out in Vivian’s statement. I have adjusted Vivian’s budget in a way that splits the difference between them in relation to those expenses. I find that Vivian’s reasonable budget totals $3,890 a month. As set out in the charts that follow, at least from around the time that Nicholas was born, Michael continued to contribute to the family’s expenses by paying the mortgage and condominium fees. Vivian used all of her available income to cover the balance of the expense. When her monthly income did not cover the expenses, she resorted to capital. Michael’s average monthly net disposable income was always higher than Vivian’s and yet his contributions toward the family’s expenses never amounted to one-half the monthly expenses (of approximately $1,945 a month).

[163] On Michael’s own evidence, in 2016, he contributed an average of $1,831 a month toward the family’s expenses; in 2017, he contributed an average of $1,700 a month; in 2018, he contributed an average of $1,753 a month; in 2019, he contributed an average of $1,842 a month; and in 2020, between January 1, 2020 and October 30, 2020, Michael contributed an average of $1,843 a month. I am confident that if Michael had made additional contributions, he would have provided that information to the Court. I note that he made no contributions between November 30, 2017 and March 18, 2018. On March 18, 2018, Michael provided $5,562.66, effectively, three months’ contributions. He never made up the fourth payment. I also point out that on November 30 2019, Michael deducted $10 from the $1,842.79 amount he was contributing toward the mortgage and condo maintenance fees because Vivian had thrown out $10 worth of potatoes and carrots. Again, according to Vivian, Michael had let the food rot in the fridge to the extent that they had liquified.

[164] Nicholas was six months old when the separation took place. While Vivian received government benefits only and was not in a position to return to the workforce, given the high costs of childcare for two children, Michael’s income increased. Further, between 2016 and 2019, inclusive, Michael had reduced his taxable income by $14,400 a year on the basis that he had paid spousal support to Constance in those years, even though he had not. By deducting the amounts for tax purposes, Michael’s net disposable increased.

[165] Michael gave evidence during the course of the trial that he could have worked full-time during the year for the City of Toronto (as opposed to seasonally) and such employment would have increased his seniority [and thus, undoubtedly his pension contributions]. Michael chose not to do that because he preferred the diving and referee work, even though those jobs resulted in him working at night, on the weekend or by choice. Michael also went to weekend courses about Investments, took certification courses and high school courses. The parties had at least one or two young children during 8 of the 9 years they lived in 60H. He could only continue to do these things because Vivian was not working.

[166] Most particularly in light of his deduction of spousal support payments allegedly made in 2016 – 2019 when he had not, in fact, paid such support to his former wife in each year, it is not unfair to Michael that I express some concern over the fact that he did not provide attach to the tax Schedules regarding his rental income, which would have been attached to the tax returns he filed with CRA. I was not asked to impute additional income to Michael from the rental of 61H when considering the parties’ relative contributions toward the support of the household, in which they both resided until December 29, 2020. Thus, in determining what monies were available to Michael monthly, on average (his average monthly net disposable income), I have accepted the rental income that is included in Michael’s Line150 income and the deduction of the union fees and carrying costs deducted by Michael in the calculation of his Line150 income.

[167] For clarity, the comparison in the chart below shows Vivian’s and Michael’s respective net disposable incomes from 2106 to 2020, inclusive, after deducting the income tax they each actually paid (contained in their notices of assessment or re-assessment) and the union fees and carrying charges he/she deducted in arriving at his/her L.150 income for tax purposes in each of 2017 – 2019, and also imputes an income to Michael for 2020, based on his average net disposable income in 2017-2019, inclusive:

Year

Vivian’s NDI

Michael’s NDI

2016

$24,758 ($6,958 from work shifts)

$36,683

2017

$22,833 ($5,033 from work shifts)

$56,923

2018

$17,781

$70,441

2019

$17,781

$57,224 (after additionally deducting $66.30 from his total income for “CPP Enhanced Contributions”)

2020

$17,781

Given that Michael adduced no evidence regarding his 2020 income, his NDI is imputed at $61,529, based on a 3-year average NDI (2017 –2019)

[168] In the four years following the separation, the parties contributed to the family’s living expenses of about $3,950 a month, as follow:

Year

Michael’s average Contribution/ month

Vivian’s average contribution/month

2016

$1,831 ($1,226 monthly surplus or before contributing to his pension, RRSPs and other personal expenses or assets)

$2,059 (monthly deficit of $4)

2017

$1,700 (monthly surplus $3,044)

$2,190 (monthly deficit $287)

2018

$1,753 (monthly surplus $4,117)

$2,137 (monthly deficit $655)

2019

$1,842 (monthly surplus $2,297)

$2,048 (monthly deficit $566)

2020

$1,843 (monthly surplus $3,284*) *Michael adduced no evidence to support his 2020 income during the trial. On a three-year average for 2017-2019, inclusive, I have imputed his 2020 net disposable income at $61,529.

$2,047 (monthly deficit $565 or annual deficit $6,228)

[169] The above chart demonstrates that, over the years 2016 – 2020, inclusive, after deducting the payments Michael made from Vivian’s budget, Vivian resorted to all of her income and resorted to capital to fund the balance of the family’s expenses, to the extent that they exceeded the payments Michael made. Even accepting that Michael would have had to cover his own personal expenses (which would include his own groceries at $400 a month), out of the income that he was able to earn as a result of the roles the parties adopted while living together, he had significant surplus income, which he was able to use to accumulate wealth.

(ii) The pivotal role Vivian played in the accumulation of wealth, which resulted from the parties’ joint family venture:

[170] At the end of 2010, when Michael asked Vivian to assist him in closing the purchases of 60H and 61H, Michael was experiencing serious financial difficulties. The time to close the purchases was getting closer. I did not receive as much evidence about the purchase of 61H as I did about 60H. After having contracted for upgrades, a parking spot and a locker for 60H, the purchase price was increased to $368,658. Michael had paid $40,000 (and possibly $1,453 toward the parking spot/locker) as a down payment, on. Approximately 89% of the purchase had yet to be funded. It is possible from the $285,000 value that Michael placed on 61H as of March 18, 2011,^[24]^ that he had also contracted for upgrades/extras for 61H (The original purchase price for 61H was $245,265).^[25]^ The only evidence I received about the amounts paid toward the acquisition of 61H is that Michael had paid a total of $12,713 down on the property. Even if the purchase price were only $254,265, then as of December 2010, Michael had yet to pay 95% of the purchase price on the closing. I am satisfied that without Vivian’s agreement to get involved and her co-operation [which included her contributing $20,000 toward the purchase of 60H; taking title to 60A so that HOA mortgages in principal amounts of $42,080 (for 60H) and $33,165 (61H) could be obtained for both properties; lending $7,500 to Michael so that he could reduce his credit card, which would enable him to obtain a first mortgage on 61H (I believe, given that the parties took steps later to secure financing for 60H], Michael would not have been able to obtain the required financing the purchases. The fact is, that the property purchases could not have closed without Michael’s contributions in money, time and effort, from 2006 until late 2010, but they would also not have closed without Vivian’s involvement. Both parties played an integral role in the acquisition of the units. After the parties began to cohabit, Michael contributed about $30,000 from the sale of his prior residence to the completion of the 61H purchase. As the parties had decided to reside in 60H, Michael could rent out 61H. This enabled him to obtain financing for 61H. Both parties took steps to secure Vivian’s financing for 60H. The purchase of 60H and 61H required a team effort; Michael needed the involvement of someone he trusted in order to be able to take advantage of two HOA mortgages. To obtain those mortgages, title to 60H had to be placed in Vivian’s sole name. Michael and Vivian became that team.

[171] For the above reasons, I find that Michael was unjustly enriched by Vivian’s contributions to their joint family venture.

[172] In the case of Vivian’s unjust enrichment claim, even though Michael’s submissions contained language referring to Vivian’s failure to comply with their “agreement” or keep her “end of the bargain”, Michael adduced no evidence of a contract between him and Vivian respecting the obligations that he alleges that she had to provide services for him (or for the children, for that matter) or make any of the other contributions that she did to what I found to be a joint family venture.

[173] Vivian is entitled to a remedy for Michael’s unjust enrichment.

C. What is the appropriate order that the Court should make, to remedy Michael’s unjust enrichment?

[174] If the Court were to either order that Michael pay Vivian the sum of $263,952 (one-half the equity in 60H) or impose a constructive trust in her favour on Michael’s interest in 60H to the extent of his 50% interest in 60H, then Vivian would have about 45% of the equity in 60H and 61H; Michael would have about 55%. In terms of their respective net worths, Michael would have more than 54% of the parties’ combined current net worths, keeping in mind that he did not include his City of Toronto pension in his financial statement, sworn on February 24, 2021; Vivian would have about 46%.

[175] Again, Vivian seeks a proprietary award. Given my finding that she is a 50% owner of 60H, she effectively seeks an order that Michael’s 50% interest be impressed with a remedial constructive trust to the full extent of his interest.

[176] Cromwell, J. confirmed in Kerr, supra, that the law relating to when a proprietary remedy should be granted instead of a monetary payment was already well established and remained unchanged. [at para. 58]

[177] In Peter v Beblow, supra, McLachlin, J. confirmed that a finding that an applicant is entitled to a remedy for unjust enrichment does not imply that there is a constructive trust. For a constructive trust to arise, the applicant has to establish a direct link to the property which is the subject of the trust by reason of the applicant’s contribution. [at para. 22]. Where a monetary award is sufficient, there is no need for a constructive trust. Where a monetary award is insufficient in a family situation, this is usually related to the fact that the applicant’s efforts have given him/her a special link to the property, in which case a constructive trust arises. [at para. 25]. Agreeing with Cory, J. that in determining whether a constructive trust is appropriate, the Court should take a flexible approach based on common sense and a desire to achieve a fair result for both parties, McLachlin, J. states as follows: “While agreeing that courts should avoid becoming overly technical on matters which may not be susceptible of precise monetary valuation, the principle remains that the extent of the trust must reflect the extent of the contribution.”

[178] In summarizing the principles relating to the appropriate remedy to impose, McLachlin, J. states as follows, at para. 31:

…[I]t seems to me that the first step in determining the proper remedy for unjust enrichment is to determine whether a monetary award is insufficient and whether the nexus between the contribution and the property described in Pettkus v. Becker has been made out. If these questions are answered in the affirmative the plaintiff is entitled to the proprietary remedy of constructive trust. In looking at whether a monetary award is insufficient the court may take into account the probability of the award’s being paid as well as the special interest in the property acquired by the contribution…The value of that trust is to be determined on the basis of the actual value of the matrimonial property –the “value survived” approach. It reflects the court’s best estimate of what is fair having regard to the contribution which the claimant’s services have made to the value surviving, bearing in mind the practical difficulty of calculating with mathematical precision the value of particular contributions to the family property.

[179] In determining whether the nexus has been made out, it is not every contribution which will entitle an applicant to a one-half interest in the property. The extent of the interest must be proportionate to the contribution, direct or indirect, of the applicant. Where the contributions are unequal, the shares will be unequal. [at para. 27]

[180] In Peter v Beblow, supra, McLachlin, J. held that, notwithstanding the trial judge’s failure to make the link between the extent of Ms. Peter’s contribution and his/her decision that Ms. Peter was entitled to the family home, the award could be maintained if a trust of that magnitude was supported on the evidence. According to McLachlin, J., the parties and the Court of Appeal appeared to have treated the home as a single asset rather than as part of a family enterprise, which had apparently led to their argument that the applicant could not be entitled to full ownership in the home because the respondent had contributed to its value as well. What is particularly relevant in the case at bar is that McLachlin, J. held that the approach she would take (and believed that the trial judge had implicitly taken] is to consider the applicant’s proper share of all the “family assets”. [at para. 34]

[181] In Peter v Beblow, supra, Mr. Beblow owned the family home before the parties began to cohabit. During their cohabitation, he acquired a houseboat and a van. During the parties’ cohabitation, Ms. Peter had purchased a property from savings she had accumulated from some work at a bakery over the years. She paid $2,500 for it; later sold it for $8,000; purchased another property for $6,500 and used the balance of the sale proceeds to take a trip to Reno. Mr. Beblow worked outside the home and was away a significant deal. Ms. Peter cared for Mr. Beblow’s two children as well as her own. She cared for the home and did work outside the property. McLachlin, J. noted that Mr. Beblow had contributed to the family enterprise surviving at the time of the parties’ breakup by generating most of the family income and helping with the maintenance of the property. Ms. Peter had contributed to the value of the family enterprise surviving as well. Her maintenance of the family enterprise through work in cooking, cleaning and landscaping helped preserve the property and enabled Mr. Beblow to pay off the mortgage and acquire the houseboat and van. She had bought the lot with her outside earnings. McLachlin, J. held that all of the just-mentioned assets could be viewed as assets of the family enterprise to which Ms. Peter had contributed substantially. She held that the evidence was capable of supporting the conclusion that the house reflected a fair approximation of the value of Ms. Peter’s efforts as reflected in the “family assets” and did not disturb the trial judge’s award.

[182] A money payment in this case would clearly be insufficient, given the nature of the contributions that Vivian made to the acquisition, preservation and maintenance of 60H and 61H, both directly and indirectly, and the difficulty she would have enforcing payment of the amount ordered. In the case at bar, it is undoubtedly clear that a monetary award would be insufficient. As a result of the party’s joint efforts, two property purchases were completed. In order to do so, Vivian withdrew $20,000 from her RRSPs, pursuant to the First Time Home Buyers Plan. Michael undoubtedly knew that she could only do this once for the purposes of acquiring a home. Further, Michael knew that in order for both deals to close, he could not even be shown as a co-owner on title to 60H or two HOA mortgages could not be obtained. Vivian effectively contributed at least equally to the property financially. While Vivian would have a right to pursue the receipt of a money judgment from Michael out of his interest in 60H and 61H, it is likely that this would be a time-consuming, expensive and emotionally exhausting exercise, to which Vivian should not have to resort. This conclusion was arrived at with particular consideration of the manner in which Michael proceeded with his appeal from the trial judgment with his first wife, made in 2008. The procedural history shows a lengthy delay in the steps Michael took to move his appeal forward; which were noted by the Court of Appeal. Some 13 years later, Michael insisted that the matter was being appealed to the Supreme Court of Canada, but showed no proof of it. Further, Vivian was aware before the parties began to cohabit that Michael had been in substantial arrears of spousal support. In October 2019, FRO took the position that the amount Michael owed at that time in spousal support was about $108,000 (on a $1,200 monthly spousal support order). At the time of trial, he was still in arrears to the extent of $20,000, although in his testimony, Michael thought that it might be $40,000. Whatever the merits of Michael’s appeal may have been, if any, at one point, the procedural history and non-compliance issues weigh heavily in favour of a money payment in this case. While in retaining 60H, Vivian will be retaining the larger of the two condominium units, it is unlikely that she will be able to discharge the HOA mortgage on it while she owns it. Thus, the mortgage principal will increase as the value of the property increases. As Michael chose to discharge the HOA mortgage on 61H rather than the HOA mortgage on 60H and significantly paid down the principal on the first mortgage, he will receive the benefit of a property with substantially lower debt secured against it.

[183] I infer from Michael’s closing submissions that his position is that Vivian is not entitled to retain even as much as the value of her 50% interest in 60H (which has a current net value of about $263,951) in the property, given the nature and extent of her contributions to the parties’ joint family venture. Relying on McConnell v Huxtable, 2014 ONCA 86, Michael submits that any valuation of Vivian’s unjust enrichment claim should be assessed as of September 6, 2016. I disagree. He bases his position on the fact that Vivian had stopped doing tasks/chores for him such as buying his groceries, cooking for him and doing his laundry. First, Vivian did not stop doing all of these tasks for Michael immediately; she stopped doing some of them in 2017. I have no doubt that she had had no option but to cease doing these tasks because Michael refused to accept the separation; continuing to do them would not assist her in persuading him that their relationship was over. Second, the emphasis that Michael placed on the termination of these tasks is unwarranted when one considers the other contributions that Vivian continued to make after September 6, 2016. When Michael terminated her use of his credit card, she simply began to pay the expenses charged on the card, other than Michael’s groceries. She continued to care for the children and contribute at least equally to the family’s expenses in 60H (except only for Michael’s personal expenses, which he could well afford to pay, given the “surplus” between his contributions to the family’s expenses). It cannot reasonably be said that the extent of Vivian’s contributions to the family changed materially such that Vivian’s unjust enrichment claim should be valued as of September 2016 rather than as of December 29, 2020.

[184] I reject Michael’s position that Vivian had somehow acted improperly or unfairly because she had approximately $25,000 more in savings as of September 6, 2016 than she did as of the date that the parties started to cohabit. One need only consider the increase in the value of 61H; the RRSP’s that Michael had accumulated; the pension contributions he had made; and the significant reduction in the debt attached to 61H to appreciate that there was nothing unfair or inappropriate in Vivian happening to have more liquid assets on September 6, 2016 than she had originally had.. In any event, Vivian was fortunate to have saved those funds because she was able to resort to them to meet the family’s expenses following the separation.

[185] The accumulation of wealth between March 18, 2011 and December 29, 2020 primarily resulted from both parties’ contributions, including but not limited to Vivian’s contributions at the outset, which enabled both properties to close; the parties’ relative contributions toward the family’s expenses; and the significant reduction of the debt attached to 61H and accumulation of other assets, which was undoubtedly facilitated and enabled out of the “surplus” net disposable income Michael had (as set out in the chart contained in para. [171] above), which he been able to earn as the family’s breadwinner while Vivian remained at home full-time to perform the household and childcare responsibilities.

[186] Whether the parties began their joint family venture with approximately equal net worths or percentages as disparate as 25% (Vivian)/75% (Michael), if Michael’s net worth was greater than hers by as much as $90,000 (as of March 18, 2011), Michael was unjustly enriched by Vivian’s contributions.

[187] Vivian has not sought relief that would result in an equal sharing of the parties’ net worths. She seeks to retain 60H, with Michael retaining 50%. Effectively, she seeks a result, which would leave her with a property with a current equity of about $527,904, and Michael with a property with a current equity of about $654,852. Doing the best I can to understand Michael’s position in terms of hard numbers, one of his positions appears to be that, if Vivian were to be determined to be the owner of 60H, then he seeks an order that she pay him 65% of the current value of 60H, which would be $562,250.^[26]^ The payment would exceed the entire current equity in 60H. I infer that he must have meant 65% of the current equity in 60H. On this basis, after paying him $343,137,^[27]^ Vivian would notionally be left with an asset with an equity of about $184,776. Michael would notionally be left with $343,138 of the equity in 60H and the entire equity in 61H; thus, he would have $998,010 of the equity in both units. In percentage terms, Vivian would have 16% of the equity in 60H and 61H; Michael would have 86%. Michael’s alternative position was that, if the Court determined that Vivian is the owner of 60H, then the Court should impose a constructive trust interest in 60H in his favour, to the extent of granting him a 65% interest in 60H (leaving Vivian as an owner of 35% of 60H) and, in addition, order her to pay one-half of the government benefits she received between March 18, 2011 and December 29, 2020. This would effectively further notionally reduce the $184,138 in equity she would retain by a minimum of $44,450, which, according to Michael, represents only one-half of the benefits Vivian received between September 6, 2016, leaving her with less than $140,000 of the equity in the properties and Michael with $1,042,460. The positions taken by Michael are wholly unreasonable and untenable in the circumstances.

[188] Vivian’s request for an order that she retain 100% of 60H is granted. An order will go, declaring that Vivian shall be the sole legal and beneficial owner of 60H and solely responsible for the 1st and 2nd mortgages currently registered on the property; confirming that Michael is the sole legal and beneficial owner of 61H and solely responsible for the 1st mortgage currently registered on it; and confirming that each shall retain any other property registered in his/her own name and be responsible for all other debts in his/her own name.

Issue Three: Child Support

(i)Table Amount and s.7 Expenses

[189] Given the parenting schedule that is being put in place, Vivian is entitled to an order that Michael pay Vivian the table amount of support, based on his income for child support purposes under the provincial Child Support Guidelines (“Guidelines”). Vivian seeks a contribution by Michael to the child care costs that she will incur when she returns to the workforce. She has not provided the Court with a date or even an approximate date in which she anticipates returning to the workforce. I have addressed Vivian’s s.7 expenses request after determining the spousal support issue below.

[190] As already mentioned, while the parties lived together, Michael worked at several jobs. In 2016, he secured the full-time job with the City of Toronto. He continued to referee hockey, do rental goalie work and part-time/contract commercial diving work on the side. Michael works for one non-union company and two or three union companies. Michael explained that he can be called for work directly or through the union. Michael was on disability for about five months, starting in November 2011. In April 2019, Michael recommenced working for the city.

[191] Also already mentioned, Vivian took a year off work when Clair was born. In August 2015, she returned to work as an event server on reduced hours. Once Nicholas was born in 2016, Vivian stopped working outside of the home. Between Clair’s birth and the birth of Nicholas, when she was not able to work at events, Vivian would subcontract out her work for a profit. After Nicholas was born, Vivian earned some income in 2016 and 2017 by contracting out shifts that she had had as a server/bartender. Since at least 2018, Vivian’s current income has been comprised of non-taxable government benefits she receives, which now total about $17,500 a year, say, $18.000.

(ii)Michael’s Income for Child Support Guideline Purposes

[192] Vivian seeks an order that Michael be imputed with an annual income of $72,000 for support purposes, based on the average of his last three years’ of declared income in 2017, 2018 and 2019, since he failed to adduce any evidence about his 2020 income, such that he be required to pay child support for the children in accordance with the Guidelines in the sum of $1,097 a month and spousal support in the sum of $656 a month which is the mid-range of the Spousal Support Advisory Guidelines (“SSAGs”).

[193] During the trial, Michael proposed that he be imputed with an income of $60,000 a year and that he be ordered to pay child support for the two children in the sum of $915 a month in accordance with the tables set out in the Guidelines.

[194] In his closing submissions, Michael seeks an order that his child support obligations be based on the income he earned in 2020 in the sum of $55,000, which he expects to be similar in 2021, which corresponds to monthly table support of $839 under the Guidelines. Michael did not adduce any evidence about his 2020 income, except to answer that he believes he will earn more than $52,000 in 2020 but not more than $55,000 in 2020.

[195] Again, Michael works for the City of Toronto, with ferry services, and on the side works at several jobs, mostly as a construction worker, a commercial diver, a football referee, a scuba diving instructor and a hockey referee for the Greater Toronto Hockey League (“GTHL”).

[196] As described above, Michael has multiple sources of income. Michael’s Notices of Assessment/Reassessment (and the income tax returns he prepared in May 2020 for the years 2016-2019), show his Line 150 income in the years after the parties began to cohabit as increasing from as low as $11,220 in 2011 to as high as $86,447 in 2018, as set out below[28]:

a. In 2011, his Line 150 income was $11,240;

b. In 2012, his Line 150income was $14,682;

c. In 2013, his Life 150 income was $19,992;

d. In 2014, his Line 150 income was $34,793;

e. In 2015, his Line 150 income was $35,613;

f. His 2016 Notice of Assessment was not produced. According to his income tax return, his Line 150 income was $36,570.74;

g. In 2017, his Line 150 income was $59,699;

h. In 2018, his Line 150 income was $86,447;

i. In 2019, his Line 150 income was $67,453.

[197] Based on Michael’s income tax returns[29], which he apparently prepared in May 2020 for purposes of this trial, which was scheduled originally to start in November 2020, he earned the following amounts of income from the following sources:

a. In 2016, his line 150 income of $36,590.74 was comprised of T4 income from employment and net rental income of $791.08 from the rental of 61H. Michael also earned $4,500 from his sports-related work, which income was not included in his Line 150 income in 2016.

b. In 2017, his line 150 income of $59,509.30 was comprised of T4 income, net rental income of $716.92 and sports-related income.

c. In 2018, his line 150 income of $86,275.49 was comprised of T4 income, net rental income of $1,679.45 and sports-related income.

d. In 2019, his line 150 income of $67,015.60 was comprised of T4 income, EI benefits. net rental income of $1,757.84 and sports-related income of $7,493.

[198] In Vivian’s affidavit, sworn on October 15, 2020, attached as Exhibit “NN”, is a worksheet/income summary related to Michael’s income, which she prepared. It differs from the income reflected in Michael’s income tax returns. This income summary displays Michael’s income from “sports-related work” as being higher that the income Michael included in his taxable income, based on discrepancies she found in Michael’s disclosure. Michael had under-reported his income from sports-related work. According to Vivian, Michael’s income in 2017 and 2019 should be imputed at $67,913 and $75,128 respectively, for a 3-year average income of $76,483.83. I note that she did not “gross-up” the additional amounts to account for the fact that he paid no income tax on those amounts.

Year

Line 150 of his ITR

Vivian’s estimate of his adjusted income

Difference

Comments

2016

$36,590.74

accepted

Combined referring, rent, T4 work and investments. This does not account for undeclared cash income including work he did for a private water taxi service in 2015/2016

2017

$59,509.30

$67,913

$8,404

Discrepancy comes from differences between T4s provided and records of sports income provided

2018

$86,275.49

Accepted

Minor discrepancies between disclosure provided and amount declared. Does not account for possible undeclared cash income

2019

$67,015.60

$75,128

$8,112

Discrepancies come from under-reported sports income

3-year average

$70,933.46

$76,438.83

$5,505.37

Analysis

[199] Vivian has asked the Court to impute income to Michael pursuant to s.17(1) of the Guidelines by averaging his last three years’ of income as opposed to using his most current income. Section 17 of the Guidelines provides that if the Court is of the opinion that the determination of a parent’s or spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the parent’s or spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

[200] According to Vivian, when Michael was engaged in litigation with his ex-wife, Constance, he purposefully reduced his income to avoid his spousal support obligation. Vivian deposes that she was only aware of Michael’s efforts to hide income from his ex-wife in a “very second-hand manner” as she and Michael did not discuss it. This evidence does not assist the Court in arriving at a determination of what Michael’s current income is.

[201] In addition to using a three-year average of Michael’s income, as opposed to his current year income, Vivian is also asking the Court to impute income to Michael pursuant to s.19(1) of the Guidelines, on the ground that Michael is intentionally under-employed.

[202] At trial, Michael testified that he turned down off-season work for the City of Toronto in 2018, 2019 and 2020 so that he could do contract diving work for a four-week period. When asked in cross-examination why he would turn-down the work, Michael responded that he had promised the person who owned the diving company that he would work for him. When Michael turns down off-season work from the City, he loses an opportunity to gain seniority, which knowingly decreases his income options for the next year.

[203] As stated in Drygali v. Pauli, 2002 ONCA 41868 (ON CA), [2002] O.J. No. 3731 (Ont. C.A.), in applying s.19 of the Guidelines, the meaning of the word "intentionally" in s. 19(1)(a) means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income.

[204] Based on Michael’s testimony, it is clear that with respect to the work he does with the City of Toronto, he is intentionally under-employed. What is not known is what Michael would have earned, if he had worked for the City full-time, rather than earn income from other sources in the off-season.

[205] In his closing submissions, Michael’s position is that he agrees to work for the City of Toronto year-round going forward so he will no longer have to leave the city during the week and will be available for child-related commitments. According to Michael, that means he will earn a lower income than compared to previous years when he was able to earn additional income from the diving jobs which were always undertaken outside of the city. However, Michael offered no evidence to the Court to demonstrate what a year-round income would be, if he worked for the City all year.

[206] Michael failed to provide his 2020 income tax return at trial. He asked the Court to accept his evidence that his estimated income would be approximately $55,000. His 2017, 2018- and 2019-income tax returns show that a three-year average of his Line 150 income was about $71,200.

[207] There is no evidence before the Court to give the Court a clear understanding of what income Michael earned in 2020, or thus far in 2021. Averaging the last three years of Michael’s reported income based on his 2017, 2018 and 2019 income tax returns is the best indicator of his income for child support purposes. Vivian did not seek an order imputing income to Michael on any other basis. Accordingly, Michael is to pay the table amount of child support for Clair and Nicholas based on an income of $72,000 a year, pursuant to the Child Support Guidelines, which is $1,097 a month.

[208] Although Vivian sought child support retroactive to the date of separation, September 6, 2016, the parties did not physically separate until Michael left the home at the end of December 2020. While Vivian paid more than her proportionate share of the family’s expenses, that concern was addressed to a reasonable extent in the award of 60H to her alone. Accordingly, the child support order is to start on January 1, 2021 and is to be payable on the first day of each following month. Michael is to be given credit against the order for any payments he made toward the mortgage, condo fees and/or property insurance on 60H from January 1, 2021 to date.

[209] Annually, on or before June 1st, beginning with June 1st, 2021, the parties are to exchange the income information referred to in s.24 of the Guidelines and are to adjust the child support payable as of January 1st in the year. Should the disclosure demonstrate that the income in the prior taxation year was different than the income on which the current payments are based then the table amount is to be adjusted retroactive to January 1 of the year of the change. If Michael has overpaid child support from January 1st to and including the date of the adjustment, he is to deduct the overpayment in equal installments over a six-month period. No such deduction is to be made in the absence of a written agreement of the parties respecting the child or a court order. If Michael has underpaid child support from January 1st to and including the date of the adjustment, he is to make the retroactive adjustment to Vivian in equal installments over the next six months. If section 7 expenses are being paid for the children, at the time of the annual review, then Vivian shall be obliged to provide the income information referred to in s.24 of the Child Support Guidelines.

[210] Michael made submissions about the income he anticipated earning in 2022 and 2023 but he gave no evidence about those incomes and, therefore, I have not determined his current income with any reference to those submissions.

(iii)Michael’s First Marriage

[211] Prior to his relationship with Vivian, Michael was married to Constance Smith for ten years. After a four-day trial in 2008, on April 9, 2008, Conway, J. made final orders, including an order that Michael pay spousal support of $1,200 a month commencing August 1, 2006, both of which obligation was secured against Michael’s condominium at 4200 Bathurst Street.

[212] More than ten years later, Michael took steps to extend the time to appeal the judgment. He was not successful.

[213] During Michael’s Questioning in April 2020, he testified that his case with Constance was a “fraud” and that he was appealing to the Supreme Court of Canada.

[214] As a result of his non-compliance with the court-ordered spousal support term, the Family Responsibility Office (“FRO”) apparently took enforcement steps against Michael. According to FRO, as of October 4, 2019, Michael was in arrears of $108,666 in unpaid support.

[215] On September 10, 2019, Constance swore an affidavit in which she deposed that she and Michael had met on September 2, 2019, and she no longer wished to receive any spousal support from him and would not be pursuing the arrears owing to her as of that date, being $107,866. However, in Michael’s most recent financial statement, sworn February 24, 2021, he asserts that he owed $20,217.07 to Constance at that time. During Michael’s Questioning in 2020, when asked what he owed in spousal support to Constance, he had said about $40,000.

[216] In his income tax returns for 2016-2019, which Michael prepared in May 2020, he represented that he had paid $14,400 to Constance in each of those years. However, he admits that he did not pay those amounts to Constance in those years. Particularly given Constance’s affidavit, in which she deposed that she was not pursuing the arrears for ongoing support, because, in part, Michael was supporting Vivian and the children, and the fact that Michael did not take the position that his support obligations in this case should be reduced because of a prior order requiring him to support Constance, I have not factored the support order into my determination of either Michael’s child support or spousal support obligation in this case.

(iv)Should Michael be Imputed with Income for Child Support Purposes?

[217] Vivian worked in the food service industry and assisting with photography shoots until Nicholas was born in 2016. She has not worked outside of the home since then.

[218] Vivian testified that when she was working outside of the home before she had children and before her and Michael met, the most she earned in a year was about $29,000 to $30,000, in 2003 and 2004. Yet, while the parties continued to live in 60H after the separation, Vivian testified that while she and Michael were living together from March 2011 to September 2016, her average income was about $10,000 a year.

[219] Vivian deposed that after Nicholas was a year old, she did not go back to work because the parties did not have sufficient income to pay for day care and she and Michael had agreed that it was her job to look after the children, as he was working full-time, with numerous jobs on the side. Further, his commercial diving work required him to be out of town from time to time.

[220] Again, Vivian has deposed that she is interested in returning to work in the photography industry, and may need to upgrade her skills. She estimated that she may be able to earn about $1,000 a month from such employment.

Issue Four: Vivian’s Entitlement to Spousal Support and, if so Entitled, the Terms of the Spousal Support Order

[221] Vivian submits that she is entitled to an order for spousal support. In her written closing submissions, Vivian seeks an order that she receive spousal support in an amount not less than the mid-range as provided for in the SSAGs, which is $638 a month, based on an annual income of $71,200 for Michael (3-year average of his declared income in 2017, 2018 and 2019) and zero income for her.

[222] Vivian’s educational and work history prior to the parties’ cohabitation is referred in paragraph [191] above.

[223] Months after the parties stated to live together, Vivian became pregnant with Clair. In May 2012, Vivian stopped working as an event server/bartender for Graydon Hall and Teknion. On June 8, 2012, Clair was born. In August 2013, Vivian resumed working at Graydon Hall and Teknion on a part-time basis. By February 2016, Vivian was pregnant with Nicholas and stopped working full-time. However, she contracted out her Teknion work to others and earned some minor income doing that in 2016 and 2017.

[224] On February 28, 2016, Nicholas was born. Vivian remained at home with the children after Nicholas was born. On September 6, 2016, when Nicholas was 6 months old, the parties separated. Again, between September 6, 2016 and December 29, 2020, contrary to her wishes, Michael continued to live at 60H.

[225] Vivian testified that when she was working outside of the home before she had children and before her and Michael met, the most she earned in a year was about $29,000 to $30,000, in 2003 and 2004. Yet, while the parties continued to live in 60H after the separation, Vivian testified that while she and Michael were living together from March 2011 to September 2016, her average income was about $10,000 a year.

[226] Vivian deposed that after Nicholas was a year old, she did not go back to work because the parties did not have sufficient income to pay for day care and it was her job to look after the children, as he was working full-time, with numerous jobs on the side. Further, his commercial diving work required him to be out of town from time to time.

[227] Again, Vivian has deposed that she is interested in returning to work in the photography industry, and may need to upgrade her skills. She estimated that she may be able to earn about $1,000 a month from such employment.

[228] In paragraph 103 of Vivian’s affidavit, sworn on October 15, 2020, she summarizes her income from the year prior to the separation (2015), until the present day, as follows:

Year

Line 150 Income

Source of Income

2015

$15,799

Wait staff/bar tender/Barista

2016

$6,958

Wait staff/bar tender, plus outsourcing of such work at a profit

2017

$5,033

Outsourcing waiter work at a profit

2018

$0

Government benefits only

2019

$0

Government benefits only

2020

$0

Government benefits only

[229] Vivian’s only sources of “income” since 2017 have been the tax benefit she has received for each of the children, her HST/GST credit and the Ontario Trillium Benefit (“OTB”). According to Vivian, these funds currently amount to about $18,000 a year. She has not had to pay any income tax in the above years, the government benefits previously being almost completely non-taxable and currently being non-taxable in full. Vivian uses these funds to buy groceries, purchase clothing for the children and other necessary items, pay for housing-related expenses, subsidize the mortgage payments and pay the utilities. She wishes to save some funds for emergencies and for the children’s RESPs.

[230] Vivian testified that she is not interested in becoming an electrician apprentice. Even if she were, she would have to take two high school courses before she could even apply to be an apprentice. Vivian’s degree was obtained in stills photography. However, her primary work experience is in the service/waiter industry. Vivian has expressed an interest in pursuing photography, which, according to her, may requires some upgrading training.

(ii)Michael’s Evidence

[231] Michael’s evidence was that, during the parties’ relationship, he repeatedly asked Vivian to obtain employment and she failed to do so. Michael submits that the parties have now been separated for over 4 years and Vivian ought to be working and be self-sufficient. Vivian’s position is that she worked after Clair was born (although on a reduced basis) but after Nicholas was born, the parties could not afford day care. As Nicholas only began school full-time in September 2020, she could not have been employed on either a part-time or full-time basis.

[232] At one point in time, Vivian indicated that she was interested in becoming an electrician. Michael’s position throughout the trial was that Vivian has an obligation to become self sufficient immediately and that she could earn as much as $48,000 a year as an electrician within a year, and in the $50,000 range within two years.

[233] Michael takes the position that Vivian ought to be self-sufficient since the parties have been separated for four years. However, this position ignores the fact that Nicholas was only 6 months old when the parties separated and Vivian remained at home, to care for Clair and Nicholas, as the parties could not afford daycare. If Michael is ordered to pay spousal support to Vivian, he proposes it be a step-down support order, which reduces in increments at intervals over time to reflect Vivian’s expected progress toward self-sufficiency.

[234] Vivian and Michael cohabited for 5 ½ years as a couple but then resided under the same roof with the children for more than another 4 years. During this relationship, Vivian was solely responsible for all of the household and child-care responsibilities, which enabled Michael to continue to pursue his various jobs and interests, take courses, and obtain employment with the City of Toronto. Michael was then also able to contribute to a pension with the City and began to contribute to his RRSP annually.

[235] At the time of the separation on September 6, 2016, Vivian was 40 years of age. In contrast to Michael, Vivian stopped working as an event server/bartender once Nicholas was born. She had also stopped pursuing her opportunities in the photography industry after Clair was born. Vivian lost any opportunities to improve her income in the workforce. She is not able to be engaged in remunerative employment. She did, however, continue to contribute to the family’s expenses with her income from government benefits paid to her and from her savings.

[236] The equity in the condominium Michael owns at 61H is $654,872.41. By contrast, the condominium in Vivian’s sole name at 60H is $527,903.56. Other than 60H, Vivian has savings of $34,232.29. Other than 61H, Michael has contents worth $7,000 and savings of $47,029.75. Michael did not value his pension with the City, so its value is unknown.

[237] Michael, unlike Vivian, has demonstrated that he has the ability to earn income in excess of $80,000 a year. He also has the ability to continue to gain seniority with the City of Toronto, should he choose to work full-time for the City. Vivian will have to build her skills within the photography industry, if she pursues this path, or work her way toward a more senior position in the event industry if she chooses to return to that work. She has an obligation to be as self-sufficient as she can be. It is only since September 2020 that Vivian has been able to work and direct time and attention to her own economic future.

[238] There is no doubt that Vivian has both a compensatory and needs based spousal support claim which recognizes the contributions Vivian has made to the relationship; to recognize the roles Vivian played in the family and the economic benefits conferred on Michael as a result; to recognize the economic dependence she has on Michael financially, which developed as a result of their relationship; to address the disparity between Michael’s income and what Vivian will be able to earn in the immediate future; and to promote the objective of Vivian becoming self-sufficient. At this moment, Vivian is in need; Michael has the ability to contribute to her support.

(ii)Amount and Duration of Spousal Support

[239] Section 33(9) of the Family Law Act (“FLA”) provides a list of factors that the Court must consider in determining the amount and duration of the spousal support to be paid. The relevant provisions of s.33(9) are as follows:

Determination of amount for support of spouses, parents

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

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

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

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

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

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

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

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

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

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

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

(l) if the dependant is a spouse,

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

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

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

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

(m) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9); 1997, c. 20, s. 3 (2, 3); 2005, c. 5, s. 27 (10-13).

[240] I have also considered the provisions of the SSAGs.

[241] If Michael is imputed with a current income of $72,000 a year, for the reasons given above in the Reasons, and pays child support for the two children in the table amount of $1,097 a month, the SSAGs produce a range of spousal support at the low-end, in the sum of $478 a month; at the mid-range, in the sum of $656 a month; and at the high-range, in the sum of $837 a month. The application of the SSAGs would result in an order for spousal support, which is to be paid for an indefinite (unspecified) duration, subject to variation and possibly, review, with a minimum duration of 4.5 years and a maximum duration of 14 years from the date of separation.

[242] If Michael were to pay spousal support to Vivian in accordance with the mid-range of the SSAGs in the sum of $656 a month, together with the table amount of child support of $1,097 a month, Vivian would have 52.9% of the parties’ net disposable incomes to support herself and the two children, or $3,348 a month. Michael would have 47.1% of the parties’ net disposable incomes, with which to support himself, which translates into $2,983 a month. Given that the children are living primarily with Vivian, it follows that her household expenses will be higher than the expenses Michael will have.

[243] It is Michael’s position that Vivian should be imputed with an income of $20,000 in 2021; $44,000 in 2022; and $48,000 in 2023. Michael also seeks an order that his child support obligation for the two children be “set off” against Vivian’s child support obligation, based on her being imputed with the incomes just mentioned, since he is seeking a “shared parenting” schedule where the children will reside with him for 50% of the time or more: Guidelines, s.9.

[244] First, given the parenting order I have determined to be in the arrangement that is in the children’s best interests, Michael will not share the children’s time with Vivian such that s.9 applies, as the children will not be residing with him at least 40% of the time.

[245] Second, in response to Michael’s submission that employment income should be imputed to Vivian at this point in time, consideration of the request starts with section 30 of the FLA which 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 is she is capable of doing so. The purposes of a support order contemplates cases where a spouse is dependent on the other spouse at the time of the hearing and provides for support to assist the spouse to become able to contribute to his or her own support.

[246] Vivian took on the role of a traditional home-maker and mother during this relationship and since the separation. This enabled Michael to continue along the career path which he chose, as described above in these Reasons, and improve his income earning potential, which clearly happened. Without Vivian staying home with the children and attending to their needs as well as the household, Michael would not have been able to be involved in all of these activities.

[247] Vivian has a clear obligation to contribute to her own support to the extend that she can. The question is whether she has a reasonable plan to become self-sufficient such that she reasonably requires some time to upgrade her education in order to obtain employment or work in a field of choice and, if she does not, then the amount of time it will take her to return to employment as a server/bartender and, in this case, whether she is entitled to continued spousal support once she does.

[248] The evidence given by Vivian is that when she returns to photography and/or as an event server, if that is her choice, she expects to be able to earn about $1,000 a month. The most she earned before she had children was about $30,000 a year, which occurred in 2003 and 2004 only. Her budget contained in her sworn financial statement, dated March 5, 2021 demonstrates that her budget for herself and the children is about $3,975 a month.

[249] However, since she is a common law spouse, Vivian is not entitled to receive an equalization payment under the FLA or relief under Part II of the FLA in relation to a “matrimonial home”.

[250] However, as a result of her contributions to the parties’ joint family venture, she has been successful in her claim for a declaration that she is the sole legal and beneficial owner of 60H. Like Michael, her net worth has increased substantially since Mary 18, 2011 and both parties own a condominium, in which she or he can reside. As explained above in these Reasons, this remedied Michael’s unjust enrichment and the corresponding deprivation, which had resulted to Vivian from her contributions. Thus, a spousal support order is not necessary to relieve any financial hardship arising from the remedy Vivian received for her contributions to the accumulation of wealth that accrued after March 18, 2011: See s.33(8) of the FLA by way of analogy.

[251] However, unjust enrichment and compensatory support are distinct claims and it is not considered “double dipping” to award for both although the same circumstances are relevant. In Beneteau v. Young, 2009 ON SC 40312, where unjust enrichment was found and the applicant was awarded a monetary sum equal to 50% of two assets owned by the respondent, the applicant also sought compensatory spousal support. G.A.Campbell, J. held, at para. 197 as follows:

“[197] It is the same circumstances that gave rise to the finding of unjust enrichment that are to be considered to assist in arriving at a conclusion regarding support payments. There is a temporal distinction which rebuts Mr. Burns’ argument that a monetary judgment as well as support payments (crafted in response to Ms. Beneteau’s endured detriment) amount to a double remedy. This is not, as he argued, “double dipping.” Where both awards are crafted in response to detriment endured, the lump sum (or monetary judgment) award for unjust enrichment is meant to compensate for past fact, while spousal support payments are meant to acknowledge the future effects of that detriment. As such, they are distinct claims.

[198] Courts of other provinces have also noted that compensatory support is meant to redress detriment suffered beyond the immediate end of the relationship but endured during the relationship. For example, in Wilgosh v. Puchalski (1999), 1999 MBQB 32273, 132 Man. R. (2d) 299 (Q.B.), Allen J. considered the Applicant’s claim of unjust enrichment after the dissolution of a common law relationship. Finding that her domestic contributions of maintaining the home and raising the children had enabled the Respondent to devote more time to his business and enable its success, that court remedied the unjust enrichment by way of a constructive trust. Having done so, Allen J. also noted (at para. 54) that considerations relevant to support are “distinct” from determining the appropriate remedy for a finding of unjust enrichment.

[252] Similarly, in Shunamon v. Diegel, [2008] A.J. No. 806 (Q.B.), Rooke J. determined that there had been an unjust enrichment and awarded a constructive trust in one property, as well as lump sum support, to the Applicant. Finding that Ms. Shunamon had been disadvantaged throughout the relationship by way of her commitment to domestic care, and that she had minimal avenues available to her to generate income following the relationship, Rooke J. found both awards necessary for her continued survival following the relationship [at paras. 111-112].

[253] In Vanasse v. Seguin, 2008 ONCA 481, [2008] O.J. No. 2382 (S.C.J.), Blishen, J. considered the end of a 12-year common law relationship during which two children were born and a very successful business for the respondent resulted. During the first four years, both parties worked. However, after having children, Ms. Vanasse stayed at home to raise them while Mr. Seguin developed the thriving and successful business. Finding that Ms. Vanasse’s actions constituted a detriment to her which provided time for Mr. Seguin to develop his business, Blishen J. awarded a lump sum monetary award. She also ordered child and spousal support. Moreover, confirming that considerations relevant to a remedial monetary award for unjust enrichment may factor into an award for spousal support, particularly in the case of a lump sum compensatory support award, Blishen J. stated at para. 182 that while “the considerations in awarding lump sum spousal support may, to some extent, overlap with those relevant to a monetary award for unjust enrichment,” the claim for unjust enrichment and a claim for compensatory support are distinct claims, even if rooted in the same factual findings.

[254] While the decision in Moge v. Moge, 1992 SCC 25 (SCC), [1992] 3 SCR 813 deals specifically with the issues of the specific language of the Divorce Act, the objectives and purposes of an order for support of a spouse under section 33(8) of the FLA and section s. 15.2(6) of the Divorce Act are similar: Juvatopolos v. Juvatopolos, (1994) 745 (ONSC), at para. 52; Russell v. Russell, 1999 12313 (SKCA), at para. 124.

[255] As stated by McLachlin, J. (as she then was) in Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, at para. 1: “It is now well-settled law that spouses must compensate each other for foregone careers and missed opportunities during the marriage upon the breakdown of their union.”

[256] In Moge, supra, the Supreme Court of Canada considered whether spousal support following the dissolution of a relationship continues indefinitely or can have an identified term. In Moge, supra, the parties separated in 1973 and ultimately divorced in 1980. After their separation, Ms. Moge continued to care for their children. Mr. Moge was ordered to pay support. After she had been found to be financially independent on a variation application the husband was granted an order terminating support. The Court of Appeal set aside the order and re-instated support payments. The majority of the Supreme Court of Canada affirmed the order of the Manitoba Court of Appeal.

[257] The point of compensatory support, statutory authorized in s.33(8)(a) of the FLA most particularly is, to acknowledge the contributions of one spouse to the domestic sphere and the effect of that contribution in the future. Rather than merely allowing for support as a limited means-to-an-end meant to make the other party self-sufficient (or “able to contribute to her own support”), the court in Moge, supra, emphasized that support should acknowledge the significant domestic contributions during the existence of the family as a unified entity, and as a way to attempt to reposition the family, post-dissolution, to the same place. As L’Heureux-Dube J. writes:

73 The doctrine of equitable sharing of the economic consequences of marriage or marriage breakdown upon its dissolution which, in my view, the Act promotes, seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse. Significantly, it recognizes that work within the home has undeniable value and transforms the notion of equality from the rhetorical status to which it was relegated under a deemed self-sufficiency model, to a substantive imperative. In so far as economic circumstances permit, the Act seeks to put the remainder of the family in as close a position as possible to the household before the marriage breakdown. As Judge Abella wrote in "Economic Adjustment On Marriage Breakdown: Support", supra, at p. 3:

… It means, among other things, that caring for children is just as valuable as paying for their food and clothing. It means that organizing a household is just as important as the career that subsidizes this domestic enterprise. It means that the economics of marriage must be viewed qualitatively rather than quantitatively. (my emphasis)

[258] Although self-sufficiency remains one meaningful purpose to compensatory support, it is not necessarily its primary purpose. Rather, as L’Heureux-Dube J. states at paras. 69-70 of Moge, supra, the reasoning behind awarding compensatory support is to address the economic disadvantages incurred by one party during the course of a relationship by providing domestic care, and that those disadvantages (“economic consequences”) continue to flow from the relationship even after its breakdown.

[259] With those appropriate principles of support in mind, I must consider the appropriate amount and duration of support to order Michael to pay to Vivian.

[260] It is the compensatory spousal support order, to be ordered according to terms set out in s. 33(9) of the FLA, and not unjust enrichment principles referred to above in these Reasons, which will appropriately address the negative impact of the relationship on Vivian’s current earning capacity and her future financial position, which has been affected by the respective roles undertaken by her during the relationship. As noted in Moge, supra, it is compensatory spousal support as a concept that allows the realization of the diverse objectives set out in the two statutes.

[261] As provided at s. 9.1 of the SSAGs:

A strong compensatory claim will be a factor that favours a support award at the higher end of the ranges, both in amount and duration… Under the with child formula, compensatory principles would also suggest that the more the recipient spouse gave up in the paid labour market, the higher one would go within the range.

[262] Where the SSAGs were fully argued, any divergence from the SSAGs could be subject to appellate review: see Lang J.A. in Fisher v. Fisher (2008), 2008 ONCA 11, 88 O.R. (3d) 241 (C.A.):

[263] Vivian asks the court to look to the SSAGs to use, at least the mid-range, and make an order for compensatory support that is indefinite in duration.

[264] In addition to equitable sharing, the SSAGs also state that “parental partnership” ought to be considered when awarding compensatory support. The authors of the Guide to the SSAGs note “the parental partnership” rationale for spousal support considers, not only past loss, but also the potential for ongoing financial disadvantage arising as a result of current and future child care responsibilities.[30]

[265] Acknowledging then that the continued parenting of children following the end of a marital relationship is an extension of a detriment incurred during the relationship, Little J. in A.(J.H.) v. A.(C.G.), 2008 MBQB 62, stated at paras. 202-203:

As an aside, I note the SSAGs, in theory at least, recognize the compensatory aspect of Mr. A.'s situation:

On the theoretical front, marriages with dependent children raise strong compensatory claims based on the economic disadvantages flowing from assumption of primary responsibility for child care, not only during the marriage, but also after separation. We have identified this aspect of the compensatory principle as it operates in cases involving dependent children as the parental partnership principle, and have drawn on this concept in structuring the with child support formula. (Page 28)

[266] In my view, Vivian’s circumstances fall within both the equitable sharing and the parental partnership rationales.

[267] In the circumstances before me, during the 9 ½ years during which the parties resided at 60H, Vivian assumed the sole responsibility for the care of the parties’ elder child, Clair, from the time that she was a newborn, for over 4 years. She then cared for two children from the time that Nicholas was a newborn, for a further period of over 4 years. The parties carried out their respective roles by mutual agreement, for the overall good of the family.

[268] When the parties began to live together, Vivian was 33 years old. She had not only obtained a university degree in stills photography, but she had worked for 5 years in photography and in the server/bartender industry before Clair was born Yet, I note that the most she had ever earned was $29,000 or $30,000, in 2003 and 2004. It may be that this was sufficient for Vivian to earn while she was living at her parents' home and did not have a family to support. However, if Vivian seeks support on the basis even, in part, based on the standard of living that the family had while they were under the same roof, it is not reasonable for her to expect that Michael alone could provide that support, once they were living separate and apart. Even if he could, this does not absolve Vivian of her obligation to contribute reasonably to her own support, once she could after both children were in school full-time.

[269] At trial, Vivian did not present a plan for her future. She indicated that she wants to return to photography but she did not present an education plan or outline the steps she intends to take to increase her earning potential. It is difficult to know, based on the evidence before me, whether Vivian had devoted more time to her server/bartender career or her photography work prior to Clair’s birth. Vivian’s evidence is that she expects to be able to earn about $1,000 a month from this endeavour. A plan based on Vivian earning $12,000 a year from photography-related income is unreasonable. Not only does it not recognize her obligation to contribute to the children’s support, it is less than minimum wage in Ontario. Were she to seek to have Michael contribute to s.7 expenses in the future, she ought not to expect that her proportion of s.7 expenses would be based on an income for her of $1,000 a month. The parenting plan ordered results in the continuation of Vivian having the primary responsibility for the children going forward. Given that Vivian presented no plan to pursue a career in photography, I believe it is more likely that she will likely return to employment as a server/bartender or some other endeavour to supplement income she may earn from photography and, as a result, she ought to be imputed with income equivalent to minimum wage in twelve months.

[270] Further, given the Covid-19 health crisis and the uncertainties relating to the school system with primary school-aged children learning remotely from home over the next few months, it would be fair for Michael to pay Vivian spousal support based on her current resources only, meaning her continued receipt of government benefits. However, on the basis of the plan that Vivian put forth and Michael’s income of $72,000 a year, there would be no spousal support payable at the mid-range of the SSAGs, if Vivian earned income at a minimum wage level.

[271] Accordingly, for the twelve-month period from January 1, 2021 to and including December 31, 2021, Michael is to pay Vivian spousal support in the sum of $656 a month, which is the mid-range of the SSAGs, using an imputed income for Michael of $72,000 a year. Michael shall be given credit for amounts paid by him toward the household and child-related expenses from January 1, 2021, to be applied toward child and/or spousal support owing by him under this order. This will give Vivian ample opportunity to re-establish herself in the workforce where she shall take all reasonable steps to maximize her income to support herself and the children commensurate with her age, skill and ability. On the basis that Vivian will be able to earn no less than the minimum wage level of income from her photography and other employment income by the end of 2021, spousal support for Vivian shall be reduced to $1.00 a month commencing January 1, 2021, unless before December 30, 2021, the parties have agreed otherwise or Vivian has obtained an order, temporary or final, continuing the spousal support payments by reason of Vivian’s inability to earn a minimum of $29,000 a year for reasons beyond her reasonable control and/or Michael’s income has increased materially.

[272] Michael has asked for an order terminating his spousal support obligation. I am not prepared to terminate Vivian’s spousal support order, given her compensatory spousal support claim, however, depending on the circumstances, the amount of spousal support is subject to change.

[273] Both parties are to take all reasonable steps to earn income to support themselves and the children commensurate with their ages, skills and abilities.

Conclusion and Order

[274] Based on all of the above, this Court makes the following order:

Decision-Making Responsibility

Major Decision-Making

a. Pursuant to ss. 28(1) and 28(4) of the Children’s Law Reform Act, the Applicant shall have sole and final decision-making responsibility over all major decisions that impact Clair Ammar Perdelwitz, born June 8, 2012 and Nicholas Ammar Perdelwitz, born February 28, 2016 (“the children”), including but not limited to, medical decisions, educational decisions, religious decisions, and decisions relating to the children’s extra-curricular activities and athletics. The Applicant shall consult with the Respondent about all significant decisions that have to be decided by sending him an email and taking into consideration his position and opinion on the issue(s). However, if the parties cannot agree on the decision, the Applicant alone shall make the decision.

Medical, Dental and Health Decisions

b. Health-related decisions include, but are not limited to, all decisions regarding the children’s physical and emotional health, such as wellness appointments, illness-related appointments, dental appointments, orthodontic appointments, eye doctor appointments, vaccinations, flu shots, prescriptions for coughs, colds, nausea, constipation, diarrhea, eye infections, skin infections, prescriptions for any mental health condition; treatment for any bodily infections, appointments with specialists; therapeutic supports, individual counselling, group counselling, in-person or virtual therapy, brief or long-term. Prior to consulting with the Respondent, the Applicant shall first consult with Dr. Sakuls, if the issue is medical, or Dr. Lee if the issue is dental, and/or other professionals assisting the child in relation to the issue and obtain his/her/their input on the issues. The Respondent shall sign any and all required consent forms required by a health-related professional dealing with the child(ren). The Applicant shall provide information to the Respondent about any health-related appointments a child has, by email and shall provide information about the reason for these appointments at least 24 hours before they occur. The Applicant shall hold the children’s health cards and provide a copy of both cards to the Respondent.

c. The children shall continue to be patients of and attend with their family doctor, Dr. Sakuls at Wychwood Family Health Centre located at 1466 Bathurst Street. The Applicant shall be the parent to schedule and attend with the children at their regular doctor appointments/check up. Either parent may take the children to Dr. Sakuls if either child is ill while in the care of a parent. If Dr. Sakuls retires or is unable to see the children, the children will see another doctor in the Wychwood Family Health Centre, as recommended by Dr. Sakuls.

d. The children shall continue to be patients of and attend with their dentist, Dr. Lee. The Applicant shall be the parent to schedule and attend with the children at their regular dental appointments/check ups. The Applicant shall keep the respondent informed of all-important dental information, appointments, treatments and outcomes.

Educational Decisions

e. Significant education-related decisions for the children, include such things as school placement, psycho-educational assessments, class placement, tutoring, etc. Prior to consulting with the Respondent on an education-related decisions, the Applicant shall consult with and obtain the advice of the school-related professionals involved in the issue. The Respondent shall sign any and all required consent forms required by a education-related professional dealing with the child(ren). The Applicant shall provide information to the Respondent about any education-related issue a child has by email. Both parents are entitled to obtain copies of all communications between the school and parents, including, correspondence, updates, school reports, school calendars, from the school directly.

f. If the children remain living in the same school jurisdiction, the children shall continue to attend St. Cecilia up to grade 8. In January of each child’s Grade 8 year, the parents shall review and discuss the options for high school. If the parents cannot agree on the high school for a child, then the Applicant shall have final decision-making responsibility. If the children move out of the St. Cecelia catchment area the parents will review the school options available for the children. If the parents cannot agree on a school, then the Applicant shall have final decision-making responsibility.

Extra-Curricular Decisions

g. Significant extra-curricular/athletic-related issues, include such things as a child’s enrollment in activities, such as sports, summer camps, or lessons that would overlap each parent’s time with a child. Either parent may enroll the children in extra-curricular activities to take place during his/her parenting time. If the extra-curricular activity(ies) fall during both parents time, then the parent enrolling the child in an extra-curricular activity shall obtain the consent of the other parent before enrollment occurs. If an extra-curricular/athletic-related issue has to be decided the Respondent will present to the Applicant in writing his proposed decisions, intended decision, taking a child’s views and preferences into account. Both parents are entitled to copies of all communications between any organization or person teaching the child a sport or extra-curricular activity or running a program in which, the children are involved. If the parents cannot agree on a extra-curricular activity related to the children or either child, then the Applicant shall have final decision-making responsibility of this issue.

h. Pursuant to s.28(8) of the Children’s Law Reform Act, both parents shall be at liberty to make inquiries and shall be given information by the children’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors, and any other professionals involved with the children.

Day-to-Day Decisions and Emergency Decisions

i. Pursuant to s.28(6) of the Children’s Law Reform Act, the resident parent in whose care the children are in shall make the day-to-day decisions for the children.

j. If there is an emergency during either parent’s parenting time, the resident parent in whose care the children are in shall made the emergency decision and shall immediately notify the other parent by telephone call and text message.

k. Each parent shall keep the other parent informed of his/her most recent contact information including telephone number (cell and landline) and address.

Parenting Time – Regular Residency Schedule

l. Pursuant to ss .28(1) and 28(5) of the Children’s Law Reform Act, until the Respondent moves into a residence which has a separate bedroom/living space for the children, the children shall reside with the Applicant primarily and have parenting time with the Respondent as follows:

i. Tuesdays and Thursdays, from 4:00 p.m. to 7:00 p.m.; and

ii. Saturdays from 11:00 p.m. to 5:30 p.m.; and

iii. Sundays, from 11:00 a.m. to 5:30 p.m.

Temporary Step-up Parenting Schedule

m. Once the Respondent moves into his own residence which has a separate bedroom/living space for the children, the children shall reside with the Applicant primarily and have parenting time with the Respondent as follows:

i. Tuesdays and Thursday, from 4:00 p.m. to 7:00 p.m.; and

ii. Alternate weekends, from Friday at 5:30 p.m.to Sunday, at 5:30 p.m.

Summer Parenting/Residency Schedule

n. Only if the Respondent has moved into his own residence which has a separate bedroom/living space for the children, commencing the week of July 5, 2021, the children shall reside with the Applicant primarily and have parenting time with the Respondent during the summer months, as follows:

i. Tuesdays, from after daycare/summer camp to Wednesday, morning when the children will be dropped off at daycare/summer camp or returned to the Applicant.

ii. Thursdays, from 4:00 p.m. to 7:00 p.m.; and

iii. Alternate weekends from Friday, at 5:30 p.m. to Monday morning when the children will be dropped off at daycare/summer camp or returned to the Applicant.

Regular Parenting/Residency Schedule

o. Subject to p. below, only if the children have spent at least eight weekends with the Respondent, when the school year resumes, the week of September 6, 2021, the children shall reside with the Applicant primarily and have parenting time with the Respondent as follows:

i. Tuesday, from after school to Wednesday, morning when the children will be dropped off at school or returned to the Applicant, if school does not resume in-person.

ii. Thursdays, from 4:00 p.m. to 7:00 p.m.; and

iii. Alternate weekends, from Friday, at 5:30 p.m. to Monday morning when the children will be dropped off at school.

p. If the children have not spend eight weekends with the Respondent when the school year resumes, the week of September 6, 2021, then the children shall reside with the Applicant primarily and have parenting time with the Respondent as follows until they have spent eight weekends with the children:

i. Tuesdays and Thursday, from 4:00 p.m. to 7:00 p.m.; and

ii. Alternate weekends, from Friday at 5:30 p.m.to Sunday, at 5:30 p.m.

q. Once the children have spent eight weekends with the Respondent, then the children shall reside with the Applicant primarily, and reside with the Respondent as per the Regular Residency Schedule set out in subparagraph o. above.

Holiday Schedule

r. Pursuant to ss. 28(1) and 28(5) of the Children’s Law Reform Act, in addition to the regular residency schedule, the children shall have parenting time with the Respondent as follows:

i. The Christmas School Break - The regular schedule shall continue during the Christmas School Break with the following exceptions which will over-ride the regular schedule:

ii. Christmas Eve: from December 24th at 1:30 p.m. to December 25th at 1:30 p.m. the children shall be with the Applicant in odd numbered years and with the Respondent in even numbered years.

iii. Christmas Day: from December 25th at 1:30 p.m. to December 26th at 1:30 p.m. the children shall be with the Applicant in even numbered years and the Respondent in odd numbered years.

iv. New Years eve: from December 31st at 1:30 p.m. to January 1st at 1:30 p.m. the children shall be with the Applicant in even numbered years and with the Respondent in odd numbered years.

v. New Years day: from January 1st at 1:30 p.m. to January 2nd at 1:30 p.m. the children shall be with the Applicant in odd numbered years and with the Respondent in even numbered years.

vi. At 1:30 p.m. on December 26th and 1:30 p.m. on January 2nd the regular schedule shall resume as though uninterrupted with the exception that the second week of the break the children shall remain with the Respondent from his pick up Tuesday, at 4:00 p.m. until return on Thursday at 7:00 p.m.

vii. If either parent has a special event or other opportunity for the children to experience that falls outside of the times above, they shall request the time from the other parent in advance in writing and unless there is already a conflicting event scheduled, the time shall not be unreasonably withheld.

viii. Family Day - shall follow the regular schedule such that the children shall spend Family Day with the parent with whom they are scheduled to reside that weekend, with the weekend extending to the Monday at 6:00 p.m. and the regular schedule recommencing as though uninterrupted at that time.

ix. The children’s birthdays shall follow the regular schedule.

x. March Break is defined as the 5 days starting the Monday morning at 8:30 a.m. of the break to the following Friday at 3:00 p.m.

xi. The regular schedule shall continue throughout the March Break until March 2023.

xii. Starting in 2023, if either of parent has the opportunity to travel with the children, they shall advise the other party by no later than February 15th. In even numbered years the children may travel with the Respondent during March Break and in odd numbered years the children may travel with the Applicant. Regular schedule shall continue thereafter. The parent travelling shall have their regularly scheduled parenting weekend plus the 5 days defined as the March Break for a total of 7 days. For example, in an even-numbered year if the Respondent has the opportunity to travel, he will advise the Applicant by February 15th that he wishes to travel with the children for March Break. If the Respondent’s regularly scheduled weekend is the first weekend of the Break, he will have the children from the start of his weekend until the following Friday at 5:00 p.m. without interruption. If his weekend is the last weekend of the Break, he will have the children from Monday at 8:30 a.m. to the regular return time on Sunday. The same rules apply to the Applicant if she wishes to travel in odd-numbered years.

xiii. If neither party is travelling with the children the regular schedule shall continue through the Break, except “after school” shall be deemed to be 5:00 p.m.

xiv. Easter: Shall follow regular schedule.

xv. Mother's/Father's Day (“Day”) – the children shall be with the honoured parent from Saturday evening at 6:00 p.m. to return to the regular schedule on Sunday evening at 6:00 p.m. if the children are not otherwise scheduled to reside with the honoured parent. Regular schedule will resume at that time.

xvi. Summer Break - Defined as from the end of school on the last day of school in June to the Friday at 6:00 p.m. of the Labour Day weekend. The regular schedule shall continue with the exception that starting in the summer of 2022, each parent will have the option of choosing one uninterrupted week holiday. A week shall be defined as starting at 6:00 p.m. on the Friday and to end at 6:00 p.m. on the following Friday at which time the regular schedule recommences. Every year the Respondent will choose his week first and tell the Applicant by no later than April 15th. The Applicant will then choose her week and tell the Respondent by no later than May 1st. The parents may choose any week, including weeks that have holiday weekends in them.

xvii. Long weekends - (Victoria Day, Canada Day and the August Civic Holiday [that are not chosen as part of either parents' summer week] and Thanksgiving) shall fall in accordance with the regular schedule. If it is the Respondent’s weekend in accordance with the regular schedule it shall be extended to a return Monday at 5:30 p.m.

xviii. Halloween - shall follow the regular schedule. The parent who has the children for Halloween shall be responsible for the costumes.

xix. Parent's Birthday - shall fall in accordance with the regular schedule.

Parenting Rules

s. Neither parent shall denigrate or criticize the other parent in front of the children, or within earshot of the children.

t. The children shall be free to call the Applicant or Respondent at any time. The parents may call the children no more than once in any 24-hour period the children are not in their care unless agreed upon by the other parent.

u. If either parent is unable to care for the children during their parenting time, they shall ask the other parent first to care for the children, before arranging for a third-party to assist with child-care.

v. Requests to make up time for any missed parenting time shall be reasonably accommodated.

w. Neither parent shall take the children to any of the parents’ self-help meetings or other adult groups such as AA or NA or attend remotely in the children's presence.

x. Neither parent shall schedule activities that interfere with the other parent's parenting time unless agreed upon in advance in writing.

Travel

y. Either party may travel with the children so long as such travel does not interfere with the other party's parenting time.

z. Each party shall facilitate any passport application requirements. The Applicant shall apply for the passports.

aa. If either party travels with the children they shall provide the other party with a full itinerary of the travel including contact information at least 14 days prior to the travel occurring. If the travel is to be out of the country, the non-traveling parent shall provide the traveling parent a notarized Travel Consent form no later than 14 days prior to the travel date if the travel is to be out of the country. If the non-travelling parent does not cooperate in signing the travel consent then the travelling parent may proceed with an urgent motion to be able to travel with the children and the non-travelling parent’s permissions shall be dispensed with.

Children’s Documents

bb. The Applicant shall be the keeper of the children’s documents and provide the Respondent with notarized copies, including the children’s health cards, birth certificates and passports.

Parental Communication

cc. Pursuant to s.33.3(2) of the Children’s Law Reform Act, in light of the terms of the Respondent’s Recognizance, the parties shall not have any direct or indirect communication or contact regarding the children except through their legal representatives.

dd. If the parties are permitted to have contact as a result of an amendment to the Respondent’s Recognizance or in accordance with a further Court order or term of an order, proceeding, undertaking or recognizance in relation to matter of the criminal charges pending against the Respondent, then the parties shall each establish an account via the Our Family Wizard (“OFW”) web platform and shall only communicate through the OFW platform about all child-related information. The parties shall not text or email each other directly about any child-related matter, except in the case of an absolute emergency.

ee. Once communication between the parties is permitted, the parties shall enrol by completing the sign-up process at OurFamilyWizard.com and shall enroll in the OFW program within 2 days. After registration, the parties shall immediately begin to utilize their OFW account via the website at OurFamilyWizard.com or via the OFW mobile applications for iOs or Android.

ff. Thereafter, the parties shall not e-mail, text or telephone each other directly. The parties shall post all communication exclusively on OFW. Whenever an entry requires a response, the receiving parents shall respond within 48 hours unless the entry itself indicates that a longer time frame is acceptable.

gg. The parties shall only be permitted to communicate by telephone in cases of emergency regarding the children that must be acted upon in less than 24 hours. If such an emergency occurs, the subject and general content of such communication shall be memorialized in a Moment entry in the OFW journal.

hh. The parties shall only utilize the OFW Message Board feature when information cannot be conveyed in the Calendar, Expense Log or Journal.

Child Support

ii. Pursuant to s.33 of the Family Law Act, the Respondent shall pay monthly table child support for the Applicant commencing on April 1, 2021 and on the first day of each following month based on him earning an annual income of $72,000, in the sum of $1,097 a month.

jj. Pursuant to s.33 of the Family Law Act, the Applicant’s income for child support purposes shall be nil from employment income for 2021. For 2022, the Applicant’s income shall be imputed at $29,000 a year.

kk. Pursuant to s.33 of the Family Law Act, the parties shall pay their proportionate share of all reasonable and necessary s.7 expenses that they have agreed to in advance in writing, such agreement not to be unreasonably withheld.

ll. Pursuant to s.34 of the Family Law Act, the Respondent shall name and keep the children on any health benefits available to him. If his provider allow, the Respondent shall enable the Applicant to have direct access to the benefits and she will submit all receipts and receive all reimbursement directly. If his benefit provident does not allow the Applicant to deal with the benefits directly, he shall submit any receipts given to him by the Mother immediately upon receipt and immediately upon receipt of the reimbursement shall return the funds to the Applicant.

mm. Pursuant to s.34 of the Family Law Act, the Respondent shall name the Applicant as the irrevocable beneficiary in trust for the children of his RRSP, pensions, life insurance or otherwise until Nicholas is 22 years.

Annual Disclosure Obligation for Child Support

nn. Pursuant to s.25 of the Child Support Guidelines, each year on or before June 1st, starting with June 1st, 2021, the parties shall exchange their income tax returns as filed and any notices of Assessment and/or Reassessment. In addition, both parties shall, in writing, provide the following information to the other:

i. the documents required in s. 21(1) of the Guidelines that have not previously been provided, which includes:

ii. a copy of every personal income tax return filed by the party for each of the three most recent taxation years.

iii. a copy of every notice of assessment and reassessment issued to the party for each of the three most recent taxation years.

iv. where the party is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not provided by the employer, a letter from the party's employer setting out that information including the party's rate of annual salary or remuneration;

v. where the party is self-employed, for the three most recent taxation year,

1. the financial statements of the party's business or professional practice, other than a partnership; and

2. a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the party does not deal at arm's length.

vi. where the party is a partner in a partnership, confirmation of the party's income and draw from, and capital in, the partnership for its three most recent taxation years.

vii. where the party controls a corporation, for its three most recent taxation years

1. the financial statements of the corporation and its subsidiaries; and

2. a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm's length.

viii. where the party is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust's three most recent financial statements; and

ix. in addition to any income information that must be included under paragraphs (iii) to (viii), where the party receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information.

x. current information about the children's special or extraordinary expenses.

xi. current information about a party's claim of undue hardship, if any, and his or her household's standard of living.

xii. details of Canada Child Benefit or other child benefits received in the previous year and anticipated in the coming year; and

xiii. any other information needed to review child support.

Annual Adjustment to Child Support

oo. After the exchange of the information, the following shall occur:

i. The parties shall then adjust the child support payment based on the Respondent’s line 150 income in the previous year (the year in which the income tax return was filed) or an imputed income of $72,000 whichever is higher. The new child support payments shall commence as of January 1st and be payable on the first day of each following month until the next annual review.

ii. Should the disclosure demonstrate that the income in the prior taxation year was different than the income on which the current payments are based then the table amount is to be adjusted retroactive to January 1st of the year of the change. If the Respondent has overpaid child support from January 1st to and including the date of the adjustment, he shall deduct the overpayment in equal installments over a six-month period. No such deduction is to be made in the absence of a written agreement of the parties respecting the child or a court order. If The Respondent has underpaid child support from January 1st to and including the date of the adjustment, he shall make the retroactive adjustment to the Applicant in equal installments over the next six months.

iii. The parties shall adjust the proportionate sharing of the children’s s.7 expenses, if s.7 expenses are being incurred. For purposes of proportionate sharing, the Respondent’s income shall be his line 150 income from the previous year or an imputed income of $72,000 and the Applicant’s income shall be nil in 2021, and her Line 150 income from the previous year or $29,000 whichever is higher starting only in 2022.

Spousal Support

pp. Pursuant to s.34 of the Family Law Act, the Respondent shall pay the Applicant spousal support at the mid-range of the Spousal Support Advisory Guidelines in the sum of $656 a month commencing January 1, 2021 and on the first day of each following month until December 31, 2021, based on an imputed income for the Respondent of $72,000 a year.

qq. The Respondent shall be given credit for amounts paid by him toward the household and child-related expenses from January 1, 2021 to the date of this order, to be applied toward child and/or spousal support owing by him under this order.

rr. Pursuant to s.34 of the Family Law Act, spousal support for the Applicant shall be reduced to $1.00 a month commencing January 1, 2021, unless before December 30, 2021, the parties have agreed otherwise or the Applicant has obtained an order, temporary or final, continuing the spousal support payments by reason of her inability to earn a minimum of $29,000 a year for reasons beyond her reasonable control and/or the Respondent’s income has increased materially.

ss. Both parties shall take all reasonable steps to earn income to support themselves and the children commensurate with their ages, skills and abilities.

Property Issues – 60 Heintzman Street Unit 404

tt. A declaration that the Respondent is the sole owner of 61 Heintzman Street, Unit 1404 with the Applicant having no interest in the property.

uu. A declaration that the Applicant is the sole owner of 60 Heintzman Street, unit 404, and an order dismissing the Respondent’s claims in respect of this property.

vv. An order that the Respondent shall arrange to pick up all of his personal possessions and his personal furniture including everything in the two lockers and on the terrace that do not belong to the children or the Applicant from 60 Heintzman Street, Unit 4040. The Respondent shall return the keys and fobs for 60 Heintzman to the Applicant. The Applicant shall keep the contents that belong to her, including Clair’s bed frame and mattress, the Applicant’s mattress and box spring, 1 food shelf, 1 love seat, 2-piece buffet and 2 kitchen counter stools.

ww. The Applicant shall be solely responsible for all debt associated with 60 Heintzman and the Respondent shall be solely responsible for all debt associated with 61 Heintzman.

xx. If the Respondent does not retrieve his belongings from 60 Heintzman within 30 days of this order, the Sheriff/Police shall be directed to enforce this clause of the Order and the Applicant shall change the locks.

yy. If either party seeks costs of the trial, he or she shall serve and file costs submissions of no more than 3 pages, not including Offers to Settle of Bill of Costs by May 14, 2021. Responding submissions shall be filed by no later than May 21, 2021, of no more than 1 page.

M. Kraft, J.

Released: April 29, 2021

Schedule “A”

Parenting Provisions of the Children’s Law Reform Act

PART III DECISION-MAKING RESPONSIBILITY, PARENTING TIME, CONTACT AND GUARDIANSHIP

Interpretation and Purposes

Definitions and interpretation, Part III

18 (1) In this Part,

“contact” means the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time; (“contact”)

“contact order” means an order made under section 28 respecting contact with respect to a child; (“ordonnance de contact”)

“court” means the Ontario Court of Justice, the Family Court or the Superior Court of Justice; (“tribunal”)

“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,

(a) health,

(b) education,

(c) culture, language, religion and spirituality, and

(d) significant extra-curricular activities; (“responsabilité décisionnelle”)

“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct; (“violence familiale”)

“parenting order” means an order made under section 28 respecting decision-making responsibility or parenting time with respect to a child; (“ordonnance parentale”)

“parenting time” means the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during that time; (“temps parental”)

“Family violence”

(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property. 2020, c. 25, Sched. 1, s. 2.

References to custody, etc.

(5) Unless the context requires otherwise, a reference in an Act or regulation to custody of a child, including lawful custody or legal custody of a child, includes reference to decision-making responsibility with respect to the child under this Act. 2020, c. 25, Sched. 1, s. 2.

References to access, etc.

(6) Unless the context requires otherwise, a reference in an Act or regulation to access to a child, including a right of access, a legal right of access, a lawful right of access or a lawful entitlement to access to a child, includes reference to parenting time or contact, as the case may be, with respect to the child under this Act. 2020, c. 25, Sched. 1, s. 2.

Decision-Making Responsibility, Parenting Time and Contact

Equal entitlement to decision-making responsibility

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child. 2020, c. 25, Sched. 1, s. 2.

Rights and responsibilities

(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child. 2020, c. 25, Sched. 1, s. 2.

Authority to act

(3) If more than one person is entitled to decision-making responsibility with respect to a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. 2020, c. 25, Sched. 1, s. 2.

If parents separate

(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise. 2020, c. 25, Sched. 1, s. 2.

Parenting time

(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education. 2020, c. 25, Sched. 1, s. 2.

Entitlement subject to agreement or order

(7) Any entitlement to decision-making responsibility or parenting time under this section is subject to alteration by an order of the court or by a separation agreement. 2020, c. 25, Sched. 1, s. 2.

Application for parenting order or contact order

Parenting order, application by parent

21 (1) A parent of a child may apply to a court for a parenting order respecting,

(a) decision-making responsibility with respect to the child; and

(b) parenting time with respect to the child. 2020, c. 25, Sched. 1, s. 2.

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.

Parenting Orders and Contact Orders

Parenting orders and contact orders

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. 2020, c. 25, Sched. 1, s. 6.

Allocation of decision-making responsibility

(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons. 2020, c. 25, Sched. 1, s. 6.

Allocation of parenting time

(5) The court may allocate parenting time with respect to a child by way of a schedule. 2020, c. 25, Sched. 1, s. 6.

Parenting time, day-to-day decisions

(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child. 2020, c. 25, Sched. 1, s. 6.

Parenting plan

(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so. 2020, c. 25, Sched. 1, s. 6.

Right to ask for and receive information

(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,

(a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and

(b) any other person who is likely to have such information. 2020, c. 25, Sched. 1, s. 6.

Variation of orders

29 (1) A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order. 2020, c. 25, Sched. 1, s. 6.

Decision-Making Responsibility, Parenting Time and Contact — Duties

Parties

Best interests of the child

33.1 (1) A person to whom decision-making responsibility, parenting time or contact has been granted with respect to a child under a parenting order or contact order shall exercise the decision-making responsibility, parenting time or contact in a manner that is consistent with the best interests of the child within the meaning of section 24. 2020, c. 25, Sched. 1, s. 10.

Protection of children from conflict

(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding. 2020, c. 25, Sched. 1, s. 10.

Alternative dispute resolution process

(3) To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Part through an alternative dispute resolution process, such as negotiation, mediation or collaborative law. 2020, c. 25, Sched. 1, s. 10.

Complete, accurate and up-to-date information

(4) A party to a proceeding under this Part, or a person who is subject to an order made under this Part, shall provide complete, accurate and up-to-date information if required to do so under this Part. 2020, c. 25, Sched. 1, s. 10.

Duty to comply with orders

(5) For greater certainty, a person who is subject to an order made under this Part shall comply with the order until it is no longer in effect. 2020, c. 25, Sched. 1, s. 10.

Certification

(6) Every document that commences a proceeding under this Part, or that responds to such a document, that is filed with a court by a party to a proceeding shall contain a statement by the party certifying that the party is aware of the duties to which the party is subject under subsections (1) to (5). 2020, c. 25, Sched. 1, s. 10.

COURT FILE NO.: FS-19-11505

DATE: 20210429

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Vivian Ammar

Applicant

– and –

Michael Lawrence Perdelwitz (Smith)

Respondent

REASONS FOR JUDGMENT

M. Kraft, J.

Released: April 29, 2021

[1] Vivian’s affidavit, sworn October 15, 2020, contains her evidence-in-chief.

[2] The Questioning of Michael took place on April 21, 2020. The transcript of Michael’s Questioning was entered as Exhibit #11 at Trial.

[3] Exhibit #4 at Trial, Flash drive of audio recordings and transcripts.

[4] Exhibit #6 at Trial.

[5] Exhibit #7 at Trial.

[6] Exhibit #8 at Trial.

[7] Exhibit #4 at Trial.

[8] Exhibit #3 at Trial.

[9] Michael’s Exhibit Brief, entered as Exhibit #9 at Trial, Tab E.

[10] Found at Tab “M” to Michael’s Exhibit Brief, entered as Exhibit #9 at Trial.

[11] Transcripts from the Questioning of Michael, taken on April 21, 2020, p.8, lines 24-25, p. 9, lines 1-2.

[12] Ibid, p.8, lines 24-25, p. 9, lines 1-2.

[13] Letter from Kintyre to Michael Smith, dated March 18, 2011 confirming the clearance appointment date for 60H on February 24, 2011, Found in Exhibit #9 of Trial, Page B0170 Caselines).

[14] Exhibit “A” to Vivian’s affidavit, sworn on October 15, 2020, is a chart prepared by Vivian entitled “Chronology of Events”. Item #16 sets out that on February 28, 2011, “Vivian lends Michael $7,500 toward his debts, for Mortgage Approval for 60”.

[15] See paragraph 17 of the Written Legal Submissions of the Respondent, filed.

[16] See paragraph 18 of the Written Legal Submissions of the Respondent, filed.

[17] Exhibit #1, Exhibit Brief of the Applicant, Tab 45, contained 3 pages of notes in handwriting, dated January 29, 2011, regarding wedding plans including a list of potential guests.

[18] Written Legal Submissions of the Respondent, at paras. 30 and 31.

[19] $0 + 2,350 + $62,825+ $7,500 less $7,170 = $65,530.

[20] $106,883 ($54,166 + $4,000 +$48,717) - $38,204 ($12,090 +$14,852 +$7,500 +$3,762) = $68,679. - $38,201

[21] $40,000 (60H) + $1,453 (for parking spot and locker on 61H) + $1,000 (61H) + $11,713 (61H) = $54,166.

[22] $432,500 (½ 60H) + $1,750 (contents) + 34,232 (savings) less $114,686 (1/2 Home Trust mortgage) - $53,862 (1/2 HOA 2nd mortgage) - $3,748 (21% contingent tax on RRSPs).

[23] 432,500 (1/2 60H) + $810,000 (61H) + $7,000 +contents + $47,030 (savings and RRSPs) less $ 168,549 (1/2 1st and 2nd mortgages on 60H) - $155,128 (Equitable Trust mortgage on 61H) -$15,000 (loan from mother - $20,217 (spousal support arrears) - $9,212 (21% contingent tax on RRSPs).

[24] As set out in Michael’s financial statement, sworn on February 24, 2021.

[25] Michael’s Document Brief, marked as Exhibit #9 at Trial, Tab E.

[26] 65% x $865,000 = $562,250.

[27] 65% x $527,904 ($865,000 less $229,372 - $107,725) = $343,138.

[28] Tab “E” of Michael’s Exhibit Brief, Exhibit #9 at Trial.

[29] Michael’s income tax return jackets are attached as Exhibit “MM” to Vivian’s affidavit, sworn on October 15, 2020.

[30] The Spousal Support Advisory Guidelines: A New and Improved User’s Guide to the Final Version, Professor Carol Rogerson and Professor Rollie Thompson, March 31, 2010, p. ix.