COURT FILE NO.: FS-20-00000032-00 (Guelph)

DATE: 2021 09 20

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HANA STEC

Applicant

• and -

SHAWN JAMIESON BLAIR

Respondent

Susan Berry, for the Applicant

W. Gerald Punnett, for the Respondent

HEARD by video-conference: March 29, 30, 31, April 1, 6, 7, 8, and July 23, 2021.

REASONS FOR JUDGMENT

Fowler Byrne J.

[1] This trial was held to decide the outstanding issues arising out of the cohabitation and subsequent separation of the Applicant Mother, Hana Stec (“Hana”), and the Respondent Father, Shawn Jamieson Blair (“Shawn”). There is one child of the relationship, a daughter, L.B., born (Redacted). Shawn also acted as a parent towards J.S., born (Redacted), who is Hana’s son from a prior relationship.

[2] At the commencement of trial, the parties advised that they were able to resolve the issues of child support, spousal support, and parenting decisions for L.B. The outstanding cost order of Justice Doi, dated November 9, 2020, has also been paid.

I. Issues

[3] The remaining issues to be determined at trial were as follows:

a) What is the impact of Hana being an undischarged bankrupt at the time this application was commenced, but being discharged before this judgment was released?

b) What is the appropriate amount of parenting time that Hana and Shawn should have with L.B.?

c) Is Hana entitled to a restraining order against Shawn?

d) Have the proceeds of a lawsuit for the benefit of L.B. been properly accounted for and how should they be managed going forward? and

e) Has Shawn been unjustly enriched by Hana’s contributions to the property they lived in, located at 20 John Street, Drayton, Ontario (“the Property”)? If so, what is the value of her contribution and can she compel the sale of the Property to be paid?

II. Issue One: Hana’s Bankruptcy

[4] This court must determine the impact of Hana commencing this application while an undischarged bankrupt, and what impact her subsequent discharge has on her claims.

[5] Hana made an assignment in bankruptcy on November 30, 2000. She did this because she had joint debts with her former boyfriend, who, when they broke up, left her alone to pay them.

[6] Unfortunately, Hana never finalized her bankruptcy. As described further in these reasons, she and Shawn wanted to purchase a property in 2009. When they applied for a mortgage, they learned that Hana was still not discharged. Despite that knowledge, nothing further was done to finalize her bankruptcy.

[7] Fast forward twelve years, and to the middle of this trial, when Hana’s status as an undischarged bankrupt was raised. Hana advised the court that on April 1, 2021, she entered into an Assignment Agreement with the Trustee in Bankruptcy, wherein the Trustee agreed to assign to Hana its right to assert a claim for an interest in the Property, and any rights or claims that Hana or the Trustee “had or has” that may be asserted against Shawn. In return, Hana agreed to pay to the Trustee sufficient funds from any judgment she receives to fully satisfy her creditors. This agreement was effective upon her discharge.

[8] After hearing submissions by the parties, an interim order was made by me granting Hana leave to continue with the trial on the stipulation that any judgment would not be released until which time Hana received an absolute discharge. The trial continued and the remainder of the evidence was presented by April 8, 2021. The trial was then adjourned until July 23, 2021 at which time Hana entered into evidence the Order of Gorman J., dated June 11, 2021, granting her an absolute discharge.

A. Was this Application Properly Commenced?

[9] Pursuant to s.71 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c.B-3 (“BIA”), upon making an assignment in bankruptcy, the bankrupt ceases to have the right to deal with or dispose of any of their property which, subject to the rights of secured creditors, immediately passes to and vests with the Trustee named in the bankruptcy order. Pursuant to s.67(1)(c) of the BIA, any property of a bankrupt at the time of the bankruptcy and any property subsequently acquired prior to discharge, shall also vest in the Trustee in Bankruptcy for the benefit of the bankrupt’s creditors. Accordingly, since Hana was not discharged when she commenced this application, her right to claim an interest in the Property was vested with the Trustee. Hana had no capacity to commence this application.

[10] This, however, does not result in this application being a nullity, but rather an irregularity which can be cured, and which was cured in the course of these proceedings.

[11] I find this for a number of reasons. Firstly, at this time, the Trustee has re-assigned this cause of action back to Hana. In an agreement dated April 1, 2021, the Trustee specifically re-assigned it back to Hana upon the immediate payment of $5,000, which was made, and an agreement to pay the remaining creditors 100% of their claim if she is successful in this action. Based on this agreement, Hana was subsequently discharged.

[12] In essence, in the case before me, the Trustee has not walked away from this claim, but rather is permitting Hana to advance it on its behalf. If Hana is successful in her claim for an interest in the Property, or for a monetary award, the trustee will be able to discharge its duties to the unsecured creditors and pay them out completely.

[13] Secondly, it must also be noted that Hana’s claim was not only for an interest in property, but she also sought spousal and child support. These claims survive bankruptcy: BIA, s.178(1)(c). Accordingly, it would be improper to declare this application a nullity when valid claims remain before the court. In Walek v. Guardian Storage Inc., 2010 BCSC 365, [2010] B.C.J No. 491, Fenlon J. determined that an action commenced by an undischarged bankrupt is not a nullity where the action sets out other claims that are not nullities. Such a defect is capable of being cured at the court’s discretion, by a court order allowing amendments, nunc pro tunc: at para. 77.

[14] Also, in Daemore v. Von Windheim, 2011 BCSC 437, 98 R.F.L (6th) 497, Verhoeven J. observed a reluctance in the Superior Court of British Columbia to allow a defendant to defeat a claim on purely technical grounds. The presiding justice characterized the failure of a plaintiff to obtain a re-assignment prior to commencing the application as an irregularity capable of being cured by obtaining a valid re-assignment from the trustee: para. 26.

[15] Finally, in determining that Hana’s failure to obtain an assignment prior to commencing this action is an irregularity capable of being cured, I also relied on the primary objective of the Family Law Rules, O. Reg. 114/99, to deal with matters justly: r.2(2). The Trustee had every right to advance this claim on behalf of the unsecured creditors. To amend the proceeding so that the Trustee would have carriage, would have caused all parties added time and cost. In the end, the trial continued, and the Trustee will be able to fulfil its obligations to its creditors. Shawn has not been prejudiced as the claim could have been advanced in any event. The parties used the time set aside by the court in the most effective manner by finishing the trial as anticipated, and only utilizing a short attendance in July to have the discharged entered into evidence. Accordingly, I utilized my powers under r.2(5) to manage this case and Hana’s outstanding bankruptcy matter, and my inherent power to control the trial process to advance both court files forward.

B. Is Hana Entitled to Any Judgment Received?

[16] Given that Hana has been assigned the right to advance this application, she is entitled to any judgment made in her favour, subject to the Assignment Agreement. In that agreement, she pledged to pay to the Trustee the full amount owing to the unsecured creditors and trustees, after satisfaction of her legal fees, if she is successful.

III. Parenting Time

[17] Hana does not resist Shawn having parenting time with L.B. In fact, both Hana and Shawn have requested that Shawn’s parenting time take place on alternate weekends from Friday evening until Sunday evening (although Shawn would like it moved from Sunday evening to Tuesday evening in the summer months).

[18] At the heart of this issue is whether Shawn’s parenting time should be supervised by the paternal grandmother, as it has been since Hana moved out of the Property in early 2020. Hana is suspicious that Shawn continues to abuse non-prescription drugs and she believes that his anger and volatility puts L.B. at risk. She wants proof that Shawn is successfully managing his addiction and anger issues before she agrees to unsupervised access. While Shawn indicates he will continue to spend access time with the paternal grandmother during his parenting time, he maintains that supervision is not necessary, and the driving is too onerous on his mother.

[19] L.B. is currently twelve years old. L.B. was diagnosed with O.C.D. tenancies at 6 months. She was diagnosed as profoundly deaf before she was 2 years old. She was diagnosed as being on the Autism Spectrum, albeit atypical and high functioning, when she was approximately 7 years old. When she was 2 or 3 years old, L.B. underwent surgery to place cochlear ear implants. These implants were found to be faulty and had to be removed. She suffered some surgery complications. A subsequent surgery was required to insert proper implants. This was a traumatic time for L.B.

[20] L.B. did exhibit some behavioural issues but they have decreased in frequency. When Hana found that L.B. was not getting the resource support she needed in the local elementary school, she transferred L.B. to (Redacted) in Milton. L.B. has done well there, albeit she is delayed in communication having not learned sign language before that time. The family is learning sign language now. L.B. has resisted use of her cochlear implants but has recently had them reactivated.

A. Law

[21] When determining parenting time, the court shall first and foremost take into account the best interests of the child. In so doing, the court shall consider all of the factors related to the circumstances of the child, but shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: s.24(1), (2) Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[22] Supervised access is a great intrusion into the relationship between a child and parent and its continued imposition must be justified: Young v. Hanson, 2019 ONSC 1245, at para. 32, also cited in G. v. F., 2021 ONSC 1362 at para. 47.

[23] The intrusion is less striking when supervision is by a family member in a home setting, but nonetheless, it is not a long-term solution. Supervised access is designed to provide a temporary and time-limited measure, to resolve a parental impasse over access, rather than provide a long time solution: M. (B.P.) v. M. (B.L.D.E.), 1992 8642 (ON CA), 97 D.L.R. (4th) 437, at para. 33.

[24] The onus lies on the person seeking that parenting time be supervised, to show that such supervision is necessary. The greater the restriction on regular parenting time, the more important it is to show why the restriction is necessary: Liu v. Xie, 2021 ONSC 222, at para. 69, Docherty v. Catherwood, 2015 ONSC 5240, para. 38.

[25] When considering the best interests of the child, the new amendments to the CLRA require that the court consider whether there was any family violence and what the impact of that violence is upon the ability and willingness of any of the parties to care for and meet the needs of the children. When considering family violence, the court should consider, inter alia, the nature, seriousness, and frequency of the violence and whether the violence was directed towards the child or whether the child was exposed to it. Also, the court shall consider the physical, emotional and psychological harm or risk of harm to the child, the compromise of safety to the child or a family member, and any steps taken by a person who has perpetrated the violence to prevent further family violence and improve their ability to care for and meet the needs of the child: CLRA, ss. 18(1), 24(3)(j)(i), 24(4).

B. Shawn’s Addiction

[26] Shawn has acknowledged that he had an addiction to opioids. In 2012, while working at Toyota, he injured both his wrists. He did not stop working, as he felt he had to continue to support the family. His doctor prescribed Percocet and OxyContin to address his pain. He took no other pain medication other than what was prescribed. Unfortunately, he became addicted to these medications.

[27] Shawn stated that he was concerned about making it through his 3-year probation period at Toyota, so he was referred by his family doctor to the ReNew Medical Clinic in August 2013 for the methadone programme. This programme switched him to methadone for pain relief, but then slowly reduced his dosage in a way that was not possible with Percocet or OxyContin. The programme was intensive. When Shawn started participating, he had to go to the clinic every day and give a urine sample before being given his methadone. After a number of clean tests, the clinic prescribes up to 6 doses a week to be taken orally by the patient at home. Shawn did very well with the programme, obtaining home prescriptions as soon as it was available. He claims he did not have a test that was positive for opioids (other than for methadone) for the duration of the time he participated in the programme. He was completely off methadone by October 2019. He also saw an addiction counselor at that time to help him with the tools he needed to stay clean.

[28] Shawn provided the court a copy of his medical records from the methadone clinic. It shows that he registered with the programme in August 2013. He also produced “clean” drug screening tests from March 2017 to the end of 2019, when he indicates he finished the programme. The records do not include results from every single week in this period, but this in and of itself is not evidence that he “failed” his screening, just that there is no result in the records. No test results were produced for the period prior to March 2017.

[29] In addition, in or around January 2021, Shawn provided to opposing counsel a urine test from January 2021 which showed he was free of all non-prescription drugs and was even free of marijuana. A copy of this test was not entered into evidence, but Hana does not dispute that she received this report. No other more recent evidence of Shawn’s drug free status was provided.

[30] Hana remains sceptical of Shawn’s recovery. When searching for documents in the basement of the Property, sometime in the Fall of 2019, Hana opened a filing cabinet to find a stash of veterinarian steroids, pills (which appear to be anti-depressants), methadone, and a number of needles. While not all the photos are clear, the methadone is for October 2019. Some of the anti-depressant medication looks old, as does some of the liquid steroids. While the methadone and pills are clearly prescribed to Shawn, the animal steroids do not appear to be prescribed to anyone. Hana fears Shawn is injecting steroids which contributes to his mood swings. She also provided photographs of Shawn that she maintains is evidence of his steroid use. I did not find these photos persuasive.

[31] Shawn’s response to the discovery of steroids is denial. He admits that he had anti-depressants and methadone in his filing cabinet, as prescribed, but that the cabinet was locked. He accuses Hana of breaking into his locked filing cabinet and planting the animal steroids and syringes. He claims these belong to Hana from the time she worked at a farm and injected the animals there. He claims she also injected animals in the course of running her home animal rescue operation. Hana denies the steroids are from any vet she works with and states that she never injected the animals she cared for. All of the veterinary medications she used on her animals were administered orally.

[32] I have reviewed the photographs taken by Hana of all the medications and syringes she found in the filing cabinet. The steroids do not appear to be “a plant”. While I am not prepared to find that these medications are conclusive evidence of current improper use of animal steroids by Shawn, it is evidence that he has accumulated a great deal of veterinary steroids and a few syringes in his basement filing cabinet, which does raise some concerns with the court.

[33] The Office of the Children’s Lawyer (“OCL”) was requested to become involved on February 4, 2020, and on March 5, 2020, this matter was referred to a clinical investigator. After its investigation was completed, a report was filed with the court on September 3, 2020. The clinical investigator, Ms. Cris Calley Jones, gave evidence at trial.

[34] Hana’s suspicion of Shawn’s drug use was raised with Ms. Jones when she completed her assessment on behalf of the OCL. In her report, Ms. Jones indicated that she had no evidence to support Shawn’s claim that he was free of substance abuse. In the course of the OCL investigation, she claims that Shawn agreed to provide drug tests as evidence of his sobriety. In her written report, Ms. Jones recommended that Shawn provide three months of random monthly negative drug tests or hair follicle tests before his access be unsupervised.

[35] At trial, Ms. Jones acknowledged the most recent “clean test” obtained by Shawn in January 2021, but she stated one test was not enough – she recommends that three months of random testing take place. She is concerned about relapse. In the course of her investigation, she asked Shawn about a relapse plan, but he stated he didn’t need one. At trial, Ms. Jones indicated that she was not aware that Shawn had undergone counselling and agreed that it was a positive step. Later in the trial, Shawn admitted that his counselling had stopped and that at the time of the trial, he was not seeing any counsellor.

[36] It is disappointing that Shawn did not provide three months of random drug testing as recommended by the OCL in August 2020. That being said, it is not his onus to show that he is drug free, but it is Hana’s onus to show that he continues to use illegal substances and that it affects his ability to parent L.B. and meet her needs. Considering all the evidence, I find that Hana has satisfied the court that Shawn once had an opioid addiction and that his ongoing maintenance of that addiction is not clear.

[37] I share the concerns of the O.C.L. While Shawn’s participation in the methadone programme is to be commended, he has not been substance free for an extended period of time. He has no counselling support. He has no relapse plan. He has provided no recent medical evidence to show he is managing his addiction properly.

[38] I will provide Shawn with an opportunity to show that he is managing his addiction. I will allow access to be unsupervised, but not before Shawn provides a negative drug test, and then it will only remain unsupervised as long as he provides a weekly test for a period of three months. If he fails to provide the tests or they show he is using non-prescription drugs, access will be supervised again. Obviously, he is to remain substance free while L.B. is in his care.

C. Shawn’s Mental Health

[39] Hana has alleged that Shawn’s mental health is not stable and that it affects his parenting skills and his ability to meet L.B.’s needs.

[40] The only evidence presented with respect to Shawn’s mental health is his evidence that he has been taking Zoloft for close to ten years. This is not evidence that his mental health prevents him from parenting L.B. without supervision, but rather it shows that he is managing his mental health. Unfortunately, there is no evidence from Shawn’s family doctor, who has presumably been prescribing the medication for all these years. In fact, in the OCL report, Shawn’s doctor reported not having seen Shawn for many years and Shawn has had no recent contact with any mental health professionals. Shawn reports that he is in a much better place since he and Hana separated.

[41] In the OCL report, Ms. Casey stated:

…There is little evidence to support or refute Ms. Stec’s concerns about Mr. Blair’s mental health. …Concerns include Mr. Blair’s lack of involvement outside of his home, his perhaps extensive use of Quora, his addiction history, historical suicide attempts, stockpiling of supplies, and his belief that neighbours may brake into his home if he leaves it. While none of these concerns are, in and of themselves, particularly problematic in regard to parenting, the intersection of the concerns could interfere with providing a healthy environment for [L.B.]. In discussion with this clinician, Mr. Blair agreed to seek a mental health assessment and it is recommended that he do so, prior to unsupervised access.

[42] Since the release of his report, Shawn has secured employment outside of the home. Accordingly, one of Ms. Jones’ concerns has been addressed. Shawn has always disputed that he was suicidal, and states that his discharge papers from the hospital that he attended show he was not suicidal. No one tendered those documents into evidence.

[43] In her report, Ms. Jones indicated that Shawn was agreeable to a mental health assessment. Unfortunately, Shawn disputes this, claiming he agreed to a mental health assessment if Hana had one as well. Nonetheless, it is clear that prior to trial, Shawn took no steps to have a mental health assessment with respect to his ability to provide an appropriate environment for L.B. Shawn claims that he received counselling while in his drug rehabilitation programme but during trial, it became clear that he is currently not receiving any counselling. Shawn continues to take Zoloff for anxiety and panic attacks, as he has since 2012. Despite this, he produced no notes or records, nor a report from a counsellor attesting to his participation in counselling and his ability to parent unsupervised, nor was any medical evidence received from the doctor who has been prescribing Zoloff for such a lengthy period. Given that his mental health was at issue, it is surprising that Shawn took no steps to provide evidence of his good mental health prior to trial.

[44] It is Hana’s onus to show that Shawn’s mental health prevents him from parenting unsupervised. Unfortunately, she has failed to meet this onus. I am not convinced at this time that Shawn’s mental health prohibits him from parenting L.B. in a safe and health manner. Although the OCL recommended a mental health assessment, it was because Shawn agreed to get one. As Ms. Jones stated, there is little evidence to support or refute Hana’s concerns.

D. Family Violence

[45] I have also considered the role of domestic violence with this family. Both parties allege that the other physically assaulted them, but these allegations are not verified nor are they recent.

[46] The OCL investigated the allegations but found no evidence to support either parent’s allegations. She does not doubt though, that L.B. was a witness to the unhappy and high conflict relationship within the context of financial strain, chronic pain and substance abuse, and addressing the needs of a high needs child. Given that Hana and Shawn no longer live together, L.B. is doing better in school, and now that both Hana and Shawn are gainfully employed, much of that tension has been eliminated.

[47] There is also evidence that Shawn, when frustrated with J.S., pushed him against the wall and tried to choke him. This was verified by J.S. himself. I am persuaded that his choking event occurred because it resembles Shawn’s other conduct when frustrated. In 2017, Shawn’s doctor at Toyota refused to work with him because Shawn was over combative with his staff. Shawn denies this and instead blames the Toyota doctor for a misdiagnosis and the sabotage of his disability claim. While the parties were still living together, Shawn became dissatisfied with how the local elementary school was helping L.B., so he went to the school to speak to the principal. He was so aggressive that the school felt compelled to call the local children’s aid society as they feared Shawn was intoxicated. Shawn blames the school for mismanaging the situation.

[48] However, these incidents occurred at least two years ago, if not more, and were prior to his completion of the methadone programme. The particularly tense environment of the home is gone. It appears that Shawn has his addiction under control. I do not believe that L.B. is at risk of harm by Shawn at this time, or that she will be exposed to any family violence while with Shawn alone or with his family.

E. Conclusion

[49] What is concerning to me is Shawn’s failure to accept responsibility for anything related to the relationship and L.B.’s care. He agrees that he was addicted to opioids, but claims it was because he was prescribed the medications and one of the Toyota doctors misdiagnosed him. He claims he kept on working through the injury, instead of healing, because Hana would not work and he was the only one bringing money into the relationship. He adamantly denies choking J.S., but blames Hana for coaching J.S. to give false evidence.

[50] More concerning is Shawn’s failure to realistically acknowledge L.B.’s particular circumstances. First of all, he does not believe the diagnosis of autism. He believes L.B.’s behavioural issues have more to do with her deafness and Hana’s failure to properly address it. While Hana is supportive of L.B.’s choice to either use sign language or her cochlear implants, Shawn is very critical of Hana for not forcing L.B. to use the cochlear implants, a failure which he believes will limit L.B.’s ongoing development. While it is clear that L.B.’s initial cochlear implants failed (as detailed below) and had to be removed and replaced, Shawn denies that the multiple surgeries were in any way traumatic for L.B. and he denies that she suffered any discomfort when the faulty implants were installed.

[51] Shawn is also critical of Hana’s management of L.B.’s education while not being involved in any way himself. Shawn is overly focused on blaming Hana for all that has disadvantaged L.B., either by mismanaging L.B.’s disability or causing the disadvantage itself, rather than accepting the disabilities and working with Hana and improve L.B.’s quality of life. This leads the court to conclude that Shawn cannot fully meet the needs of L.B. if he doesn’t even accept her particular circumstances. The one sign that Shawn has shown some acceptance in this regard is his agreement to allow Hana to make all major decisions for L.B.

[52] My concerns regarding Shawn’s lack of acceptance of L.B.’s condition are insufficient though, so as to order supervised access in the face of a negative drug test. L.B. and Shawn will benefit from some consistent parenting time so that Shawn will come to better understand L.B.’s challenges. It is a step forward for Shawn that he agreed to allow Hana to make all major decisions with respect to L.B.

[53] L.B. has clearly indicated that she enjoys time with her paternal grandparents. Even though I do not believe supervision is necessary at this time, I do find that contact between L.B. and her paternal grandparents should continue. Accordingly, I find it in L.B.’s best interests that Shawn continue to spend at least some time at his parent’s home during his access weekends.

IV. Restraining Order

[54] This application was commenced on January 22, 2020, and an urgent case conference was held on February 4, 2020. On consent, the parties agreed that Shawn would have parenting time every Friday from 5:00 p.m. to 9:00 p.m. and every Sunday from 12:00 p.m. to 8:00 p.m. All access visits, and exchanges, were to be supervised by Shawn’s parents. Shawn also consented to an order that he not harass Hana and that he stay at least 500 metres from her new home and anywhere she is expected to be.

[55] Hana has asked that this restraining order be made permanent. In support of this request, she relies on various instances of abuse by Shawn prior to 2012. She claims she was knocked out unconscious, twice. Just before she moved out of the house, she found a video on his phone where he recorded her in the bathroom. His behaviour was erratic. More recently, she learned that he is working for a security company that is based out of Hamilton, not too far from her home. While not certain, she thinks she saw his truck drive by her home. She also states that J.S. is nervous knowing that Shawn could come by.

[56] Hana has also reported that Shawn has violated the interim restraining order on three occasions. He either handed her documentation or greeted her dog. Each incident occurred without conflict. Hana also admitted that she meets with Shawn and either of his parents for parenting exchanges, and there have been no incidents.

[57] Shawn disputes the necessity of the restraining order but indicates that he has no opposition to it if he makes Hana feel safe. He is concerned though that it could be used as leverage if Hana becomes dissatisfied with something.

[58] Pursuant to s.35(1) of the CLRA and s.46(1) of the Family Law Act, R.S.O. 1990, c. F.3, the court may make a permanent restraining order if a party has reasonable grounds to fear for his or her own safety.

[59] In Joseph v. Molnar, 2020 ONSC 5237, at para. 92, Sossin J. relied on Children’s Aid Society of Toronto v. L.S., 2017 ONCJ 506, 98 R.F.L (7th) 225, which set out the key principles when considering a restraining order. The relevant principles for the purposes of this trial are as follows:

a) A restraining order is serious and should not be ordered unless a clear case has been made out;

b) A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work;

c) it is not sufficient to argue that there would be no harm in granting the order;

d) before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child”;

e) A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears; and

f) Courts should have regard for the passage of time; events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order.

[60] Considering these principles, I am not satisfied that a permanent restraining order is warranted. There has been no reported case of physical abuse for almost 10 years. Any emotional or psychological abuse between the parties has been eliminated since Hana moved out. There has been contact between the parties without incident. The existence of a restraining order will make parenting exchanges more difficult and potentially more traumatic for L.B.

V. Guardianship of L.B.’s Settlement Funds

[61] As indicated, L.B. had surgery to insert cochlear implants. It was determined that these implants were faulty and had to be removed. L.B. suffered some surgical complications. Later, she had the properly working cochlear implants surgically placed. It is safe to say that L.B. has had a “love, hate” relationship with her implants since that time.

[62] After learning of the faulty implants, Hana found a class action lawsuit being brought against the manufacturers of the implants which was being handled by a law firm in California. Shawn joined the suit on behalf of L.B. and they eventually received a settlement on L.B.’s behalf. On June 12, 2015, the settlement was approved by the Superior Court of California on L.B.’s behalf. In accordance with that settlement, L.B. was to receive the sum of $130,000 USD, paid as follows:

a) $43,333.33 USD was to be paid to her lawyer in California;

b) $2,477.25 USD was to be paid to Shawn as a reimbursement for medical expenses paid to date;

c) $41,189.42 USD was to be paid into an annuity on L.B.’s behalf;

d) $18,000 USD was to be paid to Shawn with the following direction:

The money will be used for tutoring and speech therapy at Speak Your Mind Centre. The money will pay for 12 month of therapy, 2 times a week.

e) $25,000 USD to be deposited into a “blocked account”. A further order was made with respect to this blocked account:

No withdrawals of principal or interest may be made from the blocked account or accounts without a further written order under this case name and number, signed by a judicial officer, and bearing the seal of this court, until the minor attains the age of 18 years. When the minor attains the age of 18 years, the depository without further order of this court, is authorized and directed to pay by check or draft directly to the former minor, upon proper demand, all moneys including interest deposited under this order.

[63] The lawyers were paid, the annuity set up, expenses reimbursed to Shawn, but the remainder went directly to Shawn. Perhaps it was due to the fact that L.B. resided in Canada, but no blocked account was ever set up. Accordingly, Shawn received $18,000 USD which was supposed to be for speech therapy and a further $25,000 USD that was supposed to be preserved until L.B. turned 18 years old.

[64] Hana claims that Shawn mishandled this money and she wants it paid back. She also wishes to be guardian of this money on L.B.’s behalf. Hana relies on ss.47-49 of the CLRA.

[65] Unfortunately, both Hana and Shawn used this money inappropriately. They did spend $2,310 on speech therapy with Speak Your Mind but discontinued this therapy in February 2016 because, according to Shawn, L.B. was experiencing difficulties with forming words. One would think this is the reason for speech therapy.

[66] Thereafter, Shawn and Hana rationalized that L.B. needed the family to get a new car to drive her around. Between purchasing the car and making it road safe, the parties spent $9,000. Then they purchased a special breed of cat for $1,000 which she justified as a “therapy cat” for L.B. After this cat died, they obtained another. It is disputed whether they paid for the second cat. They also purchased a computer programme called “Boardmaker” for approximately $650 to assist with L.B.’s education. In total, I find the sum of $10,650 was spent inappropriately and contrary to the letter and spirit of L.B.’s settlement award.

[67] Shawn testified that after these expenditures, he was afraid that Hana would get access to the rest of the money, so he took it out of the bank and hid the cash in his safe. In the course of this litigation, Shawn paid the remainder of the sum he was holding, namely the sum of $30,000, to his lawyer, Mr. Punnett, to be held in trust.

[68] On August 30, 2020, on consent, Shawn was ordered to provide an accounting of the rest of the monies he received on behalf of L.B. Shawn did not comply with this order. He had a lot of excuses as to why he did not comply. He said he was only to provide bank statements for the last 2 to 3 years. He claimed it was Hana’s responsibility to account for any money that he gave to her, when she demanded it for L.B. He also stated that some of the money he gave to Hana was for food or entertainment for L.B. He took great pains to show how for every deposit he made into Hana’s accounts (for the years he did provide), she then went to the grocery store or Dollarama. Nothing in these bank statements showed the money being paid for speech therapy for L.B.

[69] L.B.’s expenses as shown in the bank statements were expenses associated with raising a child. Shawn’s position that these are proper expenditures out of L.B.’s settlement money is, frankly, absurd. It was not L.B.’s obligation to pay for her own groceries, or trips to the movie theatre, or even for her own pet food or supplies, out of her settlement money. Clearly, Shawn, as the litigation guardian for L.B., has completely abrogated his responsibilities. It is not an excuse of his duties to blame Hana for not looking after her child.

[70] That being said, it was equally irresponsible for Hana to participate in spending this money on a car, a cat, or anything else that was not directly contemplated by the California order. Granted, the terms of that order are not binding in this province, but the intention was clear. With the exception of the expenses for which the California order stated Shawn should be reimbursed, the sum of $18,000 USD was to be used for speech therapy, and $25,000 USD was to be preserved for L.B.’s benefit, until she turned 18 years old. Had this settlement taken place in Ontario, the money would have been paid into court to the benefit of L.B. unless Shawn and Hana could show this court that they could be better stewards of this money. It requires an exceptional set of circumstances to prompt the court to exercise its discretion under rule 7.09(1) and order that the money be paid other than into court: Hoad v. Giordano, [1999] O.J. No. 456, at para. 10. Given the evidence presented at trial, neither have presented such evidence.

[71] The parties’ agreement to further erode these funds during the course of this litigation was equally incomprehensible. Hana and Shawn reached an agreement that Shawn would pay to Hana the sum of $10,000 as a lump sum in settlement of her spousal support claims. This was paid from Mr. Punnett’s trust account, from L.B.’s funds. In addition, the parties agreed that the sum of $5,000 would be taken from Mr. Punnett’s account for “L.B.’s future needs”. No evidence was presented on what those needs were and what sums were paid. Finally, the costs order of Doi J. of November 9, 2020, wherein Shawn was ordered to pay Hana the sum of $3,800, was also paid from these funds. Presumably, Shawn’s lawyer continues to hold the remainder in trust.

[72] With the exception of the therapy costs that were paid, none of the other expenses allegedly made on L.B.’s behalf were proper. Even if the Boardmaker computer programme could be arguably characterized as helping with L.B.’s speech, no one bothered to provide evidence of the amount spent.

[73] What is more distressing is Shawn’s failure to provide the accounting as ordered. The funds received were in United States Dollars. The exact amount received is not known. Shawn’s decision to put the money in the safe cost L.B. interest over that period of time. Shawn again blames Hana for the erosion of the money, but fails to explain why, as the sole guardian of this money, he did not open some type of trust account in L.B.’s name, to preserve the money for his daughter.

[74] I have calculated the missing money as follows:

a) The sum of $18,000 USD was couriered to Shawn on August 19, 2015. Having no evidence of the exact amount received in Canadian dollars, and assuming that Shawn would need a period of time to deposit the money, I have utilized the Bank of Canada historical noon and closing rate for August 31, 2015, which was 1.3223 (see Schedule “A”), which equates to $23,801.40 in Canadian funds;

b) The speech therapy cost of $2,310 CDN is property deducted, leaving the sum of $21,491.40 CDN plus interest from February 10, 2016 (the last date of speech therapy) to be paid back for the benefit of L.B.;

c) The sum of $25,000 USD was also couriered to Shawn on August 19, 2015. Again, having no evidence of the exact amount received in Canadian Dollars, and assuming that Shawn would need a period of time to deposit the money, I have utilized the Bank of Canada historical noon and closing rate for August 31, 2015, which was 1.3223 which equates to $33,057.50 in Canadian funds;

[75] None of the funds paid out of Mr. Punnett’s account for spousal support, miscellaneous expenses for L.B., or for a costs award, were proper expenses attributable to L.B. Accordingly, the full amount of $33,057.50 plus interest from August 31, 2015 (given that the money was courier to them on August 19, 2015) shall be paid back for the benefit of L.B.

[76] I assume the annuity still remains protected.

[77] I am not prepared to give either Hana or Shawn the responsibility of managing these funds. There is no indication that the OCL was served with this request, as is required by s.47(1) of the CLRA. Contrary to s.49 of the CLRA, neither party proposed a management plan for these funds. No budget was presented, nor evidence of a suggested savings vehicle. Both parties have displayed an inability to manage these funds properly. Accordingly, money owed to L.B. will be paid into court to be managed by the OCL.

VI. Ownership of the Property

[78] Shawn is the registered owner of the Property. Hana seeks an equal interest in the Property on the basis that Shawn has been unjustly enriched by her contributions since the Property was purchased. She seeks a constructive trust interest in the Property, equal to that of Shawn. In the alternative, she seeks a finding that the nature of her and Shawn’s relationship was that they were in a joint family venture and that her contributions were equal to that of Shawn. If successful, she seeks an order that the Property be vested in them both, be sold, and that the proceeds be divided accordingly.

A. Law

[79] In order to succeed in her request for an interest in the Property, Hana must first show that Shawn was unjustly enriched. Unjust enrichment is found when the claiming party can show that the other party is enriched by his or her contributions, that he or she has suffered a corresponding deprivation, and there is no juristic reason for this result: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R 269, at para. 32.

[80] If an unjust enrichment is established, the court must then determine the appropriate remedy. The first remedy the court should consider is a monetary remedy. A monetary remedy can be calculated not only on the basis of a value received or a quantum meruit calculation, but where a joint family venture is found, the “value survived” approach may be used. In the later case, the unjust enrichment is the retention of an inappropriately disproportionate amount of wealth by one party when the parties have engaged in a joint family venture and there is a clear link between the claimant’s contributions to the joint venture and the accumulation of wealth. The monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the clamant to the accumulation of the wealth: Kerr, paras. 47, 55, 80-87, Lesko v. Lesko, 2021 ONCA 369, 57 R.F.L (8th) 305, at para. 14, Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 52

[81] Finally, if and only if monetary damages is inappropriate or insufficient and there is a sufficient substantial and direct link or casual connection between the contributions and the acquisition, preservation, maintenance or improvement of the property, the court may make a proprietary award by impressing the property with a constructive trust. The onus is on the claimant to show that the monetary award is insufficient. The constructive trust interest should be proportionate to the claimant’s contributions: Lesko at para. 14, Martin at para. 58, Kerr at paras. 50- 51, Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R 303, at para. 91.

[82] When determining whether a monetary remedy is insufficient, the court can take into account the probability of the award being paid: Peter v. Beblow, [1993] 1 S.C.R. 980, at para. 34. In addition, the court can consider whether it is appropriate that the claimant receive the priority accorded to a holder of property, such as when the title holder is in the middle of bankruptcy proceedings, or when there are changes in the value in the property and, without a constructive trust, theses changes would only benefit the person holding title: Lac Minerals Ltd. v. International Corona Resources Ltd. 1989 34 (SCC), [1989] 2 S.C.R. 574, at p. 678.

[83] That being said, the existence of a property can be used as security of a monetary award. The court can consider evidence of whether the claimant wants to retain the property, or that the property is so unique that it cannot be replaced with money. While a claimant can participate in the increase of value in the property if he or she has a proprietary interest, this too is really a monetary benefit and cannot be used to rationalize that a monetary award is insufficient. Martin at para. 60.

B. Analysis - Unjust Enrichment

[84] Based on the evidence presented at trial, I find that Shawn has suffered an unjust enrichment by Hana’s financial and labour contributions to the home. I find that their relationship amounted to a joint family venture and that it would be unjust for only Shawn to retain the benefit of Hana’s contributions.

[85] At the time L.B. was born, the parties were living in rental accommodations. Shawn changed jobs and needed to move close to his employer in Fergus, Ontario. Rather than rent, they decided they wanted to purchase a property. Hana found the parties’ eventual home online. They viewed the house and put an offer in immediately on June 14, 2009. The parties closed on the purchase of 20 John Street, Drayton, Ontario on August 14, 2009. The purchase price was $154,500, which was financed almost entirely by a mortgage. The parties were required to fund $8,350 to close the transaction.

[86] While the original Agreement of Purchase and Sale listed Hana and Shawn as the purchasers, in the end, only Shawn took title of the Property. While applying for a mortgage, the parties discovered that Hana was an undischarged bankrupt. She had made an assignment in bankruptcy on November 30, 2000 following her separation from J.S.’s biological father, and never finalized her discharged. Accordingly, as Hana would not qualify for the mortgage, she could not be on title.

[87] The parties’ evidence diverges as to what their intention was at that point. Hana claims that despite ownership on title, the Property was always considered to be jointly owned by the parties. Shawn maintains that by taking ownership in his name alone, it was his intention to keep the Property himself. He does not explain why Hana was listed on the original Agreement of Purchase and Sale as a purchaser, prior to discovering her bankruptcy.

[88] Both parties agree that when they went to purchase the Property, not only did they have to fund the sum of $8,350, but Shawn had approximately $21,000 in credit card or short term debt that he had to clear in order to qualify for a mortgage. Shawn claims that he paid off all his debt and funded the purchase of the Property entirely himself through his savings or loans from his family. Hana maintains that she contributed $6,000 to the overall purchase, either directly to the purchase or in payment of Shawn’s debt. She did this by borrowing from family until she received a large retroactive child support payment from J.S.’s biological father. She also secured an agreement with the real estate agent to delay his payment until she received her retroactive child support payment.

[89] The documentary evidence of both parties’ financial contribution to the purchase is not straight forward. As stated, approximately $30,000 in total was required to pay off Shawn’s debt and complete the purchase. Shawn claims he received a payment of $11,000 in exchange for giving up his recall rights at his job. He also claimed he had a number of paycheques that he had saved. He had no evidence to support this. He did have evidence that his parents gifted him the sum of $9,000, which was paid to him on July 27, 2009. The very same day though, Shawn paid back his mother for the sum of $6,000, apparently for a car his mother gave him. Accordingly, Shawn only received the net amount of $3,000 from his mother. Hana’s father, Mr. Filip Stec, gave evidence that he loaned $3,000 to Hana to help her purchase the house. He was repaid a few months later when she received her child support arrears. This is supported by a draft dated October 6, 2009 for $3,000 that was drawn on Hana’s account and payable to Filip Stec.

[90] Hana has also provided evidence that on September 22, 2009, she received the sum of $10,693.60 from the Family Responsibility Office (“FRO”) for arrears owing from J.S.’s biological father. On October 6, 2009, a draft for $2,000 was drawn from Hana account, payable to Brian Ausman (the real estate agent). She claims he agreed to accept his fees later because he was a family friend. Hana indicated that she knew the money from the FRO was coming and that Mr. Ausman agreed to wait. The draft to Mr. Ausman had a handwritten notation “Payment from Shawn Blair”, who was the purchaser. This is supported by the Trust Ledger Statement of their real estate lawyer, which does not show any monies being paid to the real estate agent on closing.

[91] Shawn states that if any money was paid by Hana, it was money that he gave to her and she put in her account. He presented no evidence to support this. The repayment to Filip Stec and the payment of the real estate agent clearly came from Hana’s account within a week or so of her receiving the sum of $10,963 from the FRO. Accordingly, I accept Hana’s evidence that she contributed the approximate sum of $6,000 towards the purchase of the Property, either towards the closing funds or by helping Shawn to pay off some of his debt in order to qualify for the mortgage.

[92] It is not contested that the parties maintained separate bank accounts throughout the relationship. They also agree that they filed their tax returns each year as “single”. Hana claims this is because it allowed her to collect a larger child tax benefit and Shawn agreed to this. Shawn states that filing their tax returns as “single” was to reflect their decision to keep their finances separate, and that each was to retain ownership of what was in their own name.

[93] The parties agree that Shawn paid the mortgage, property taxes and utilities from his earnings. Shawn claims that in fact, he paid for everything, including all of the groceries and the children’s activities. Whenever Hana needed money for the children, he transferred the money to her account. It is clear that payment for the property insurance came from Hana’s account, but Shawn claims she could only pay it because of the money he gave her. Shawn showed numerous examples of the money he transferred to Hana over the course of their relationship.

[94] A great deal of Shawn’s evidence focused on Hana’s refusal to work and contribute to the home financially. He said that when L.B. was in school, there was no reason why Hana should not work. Frankly, he attempted to paint her as a freeloader, first on social assistance, then working under the table, living off his income, and now trying to get a stake in his house.

[95] Hana has indicated that when L.B. was young, she and Shawn agreed that she would remain home and care for their high needs child. From L.B.’s birth until Shawn stopped working in April or May 2016, Hana cared for L.B. and J.S., and attended to L.B.’s various medical appointments. She also helped L.B. by volunteering at the local school where L.B. attended. Shortly after Shawn stopped working, L.B. started going to school in Milton and would be away from home for longer periods of time. Shawn is particularly critical of Hana’s refusal to get a job at this time. Hana, however, indicates that she did still did not feel safe to leave the home for extended periods of time. J.S. was still attending school locally and was home more, and Shawn was acting very erratically. We now know that Shawn was struggling with his opioid addiction at that time.

[96] When the parties first moved into the Property, Shawn was working at Ontario Nutri Lab in Fergus. He remained at that place of employment until the end of 2009 when he started working at Toyota. He remained there until May 2016, when he claims Toyota was unable to accommodate his injured wrists. He earned no income until 2017, when his claim for WSIB benefits came through and he received a retroactive payment. Thereafter, he was paid WSIB benefits until which time Hana moved out. Unfortunately, Shawn provided no evidence of his actual earnings during this time. The bank statements he did file did not include any deposits for wages. Inexplicably, Shawn’s most recent financial statement was not in the Trial Record, and no up-to-date financial statement was entered into evidence at trial.

[97] Also, during this time, Shawn remortgaged the Property on two separate occasions, first in 2013 and then in 2018. While the amount of the mortgage in 2013 was not provided, the amount of the new mortgage in 2018 was for $165,000. As of December 31, 2019, the value of the mortgage was $155,216.62. Accordingly, the principle of the mortgage had not been reduced since the Property was purchased.

[98] With respect to her ongoing financial contribution, Hana indicated that she contributed her child tax benefit to the home, which was anywhere between $1,000 to $1,200 for both kids. In addition, she contributed any child support she received for J.S., which was $266 per month. Both of these sources of income were non-taxable and were shown in Hana’s bank statements. Assuming she earned approximately $1,400 per month in tax free dollars, using a simple calculation in DivorceMate, this sum is the equivalent of approximately $17,500 per year.

[99] In addition, while Hana did not hold a traditional job outside of the home, she did help out with a local dog groomer, and she mostly contributed financially to the home by doing odd jobs, like making special occasion cakes, dog grooming in her home, painting and cleaning homes. She worked for cash and did not declare this income. She gave no indication of how much she earned from these ventures. Hana also operated an animal rescue from the Property. She funded it by donations and reduced fees from the local veterinarian. Shawn claims the animal rescue operation was a drain on their resources. Again, no evidence was presented to support this. From her earnings, Hana paid the house insurance (as indicated above), paid for groceries, and also paid for the children’s expenses, like clothing and various school fees.

[100] Hana states that she and her sister Monica Stec helped redo the floors in J.S.’s room and in the living room. They also finished the drywall that was started by a friend of Shawn. Hana’s brother and the sister of Shawn also helped renovate a bathroom. Monica and her fiancé at the time also assisted. Hana claims she has repainted the whole house and did landscaping and gardening. Hana provided evidence of the state of the home when she left (which was clean and tidy) and of the gardens in the summer.

[101] Shawn acknowledges Hana’s work but claims it was substandard and probably reduced the value of the home. He produced no evidence to support this claim. Shawn also produced receipts from 2009, showing expenses related to repairs to the children’s bedrooms and the living room. He claims he re-studded the walls, reinsulated, and redid the electrical. He also bought the materials for the floors that Hana and her sister completed. He also did some landscaping in the backyard and redid the duct work in the living room and a bedroom. He also claims that he purchased the furniture, appliances and upgraded the furnace. He also paid for someone to re-shingle the roof.

[102] As indicated, Hana ran an animal rescue at the Property. Shawn states that the rescue operation caused damage to the house, particularly the flooring. Nonetheless, he assisted by constructing some pens and fencing the back yard for the animals. Shawn would show off this animal rescue to visitors. He was also attached to some of the animals and insisted on keeping a cat when Hana moved out. Both parties acknowledge that L.B. enjoyed having the animals in the home.

[103] While the parties may disagree on the quality of Hana’s upkeep and renovations, the evidence shows that Hana did contribute to the purchase of the Property and to the upkeep of the Property. Shawn has been enriched by her contributions given that he alone holds title to the home, and Hana has suffered a corresponding deprivation. There was no juristic reason for this enrichment.

C. Joint Family Venture

[104] It is also clear from the evidence that Shawn’s accumulation of wealth during their cohabitation, which is held primarily in the Property, is the result of a joint family venture with Hana.

[105] Hana and Shawn worked together towards a number of goals. First of all, they decided to raise a family together. Shawn argues that they never really planned for L.B., but that flies in the face of the evidence of multiple miscarriages suffered by Hana while with Shawn, prior to safely delivering L.B., and their trip to a doctor to determine why she suffered these miscarriages. In addition, while J.S. was not Shawn’s biological child, everyone agrees that Shawn acted as a father figure to J.S. and was the only father figure that J.S. knew.

[106] In addition, they both gathered their necessary financial resources to purchase the Property. In the following ten years, while they lived there, they both continued to put time and money into improving the Property. They also both work towards improving the animal rescue. Hana minded the animals and Shawn built the structures outside.

[107] While the parties did not fully integrate their finances, the evidence shows multiple monthly transfers to Hana from Shawn for the upkeep of the family. The evidence establishes that Shawn always transferred money to Hana whenever she asked, especially if the expenses were related to the children.

[108] Hana’s evidence is that it was always their intention that she and Shawn share the Property. In contrast, Shawn’s evidence that he never intended Hana to share in the value of the Property and specifically wanted to keep their finances separate. After considering the viva voce and documentary evidence, I reject Shawn’s position.

[109] I favour Hana’s evidence for a number of reasons. First of all, I find that she did make a financial contribution to the purchase of the Property. Whether or not the money was used for the down payment or for Shawn’s debts, her financial contribution was necessary to acquire the Property. After being forced to declare bankruptcy as a result of being left with the debts of her former partner, there is no reason why Hana would willingly pay off Shawn’s credit card debts if she did not believe she had an interest in the Property. Likewise, Shawn readily accepted Hana’s contribution of her child support arrears to pay the real estate agent and pay back her father for his advance.

[110] I also make this finding based on the fact that the original Agreement of Purchase and Sale showed both Hana and Shawn as the purchasers. Had Hana’s status of an undischarged bankrupt not been discovered, Hana would have been on title. Email communication with the mortgage broker shows that Hana was to be on title and also a mortgagor. It was only because she could not qualify for the mortgage that she could not be on title. Shawn’s evidence that he was happy that Hana did not qualify and that he wanted to keep the house himself flies in the face of his actions. Shawn readily accepted Hana’s labour in the home renovations. He was content to have Hana pay for the house insurance. He was prepared to have Hana shoulder the majority of the parenting responsibilities while he was at work. These responsibilities were particularly onerous given L.B.’s special needs. He was willing to allow Hana to utilize her child tax benefit and her child support to help support the family, and in fact constantly urged her to contribute more. It is disingenuous for Shawn to state that his finances were to remain separate from Hana, but then testify ad nauseum about how she would not get a job and contribute more to the family unit.

D. Appropriate Remedy

[111] Given my finding that a joint family venture existed, a monetary award is appropriate.

[112] Hana has failed to show that a monetary award is insufficient. The Property has sufficient equity to act as security for the amount that Shawn must pay, either by remortgaging or selling. Hana has expressed no interest in keeping the Property, given its location. The mere fact that it has increased in value is not in and of itself sufficient reason to grant her a proprietary interest.

E. Quantification of Monetary Damages

[113] The monetary compensation payable to Hana should be proportionate to her contribution. This poses a certain difficulty for the court as both parties provided less than fulsome evidence on their respective contributions. While Hana gave evidence of some of her income during their cohabitation, she gave no evidence of her cash income from her side businesses other than what is in her financial statement as of January 13, 2021. Shawn gave no evidence whatsoever of his income during the period of cohabitation. In addition, it is difficult to put a value on the contributions Hana made to raising the children, especially given that L.B. was a high needs child. Finally, while there is evidence of the parties’ contribution to the purchase of the Property, and some evidence about expenditures made on renovations, there were very few specifics otherwise.

[114] While I have no evidence of the parties’ income, it is safe to assume that when Shawn was working or collecting WSIB benefits, he earned more than Hana. It is also clear that even though Hana did a lot of work on the Property, Shawn paid for the majority of the expenses. It is also clear though, that Hana took on the majority of the child care responsibilities. While difficult to quantify, the value of caring for a special needs child cannot be underestimated.

[115] While Shawn was present for L.B.’s surgeries, Hana took on the lion’s share of pre- and post-medical appointments and therapy. She attended follow up medical appointments in Toronto. Even when L.B. started school, L.B. would sometimes refuse to go, or would be experiencing behaviour issues and could not attend. When L.B. did attend the local school, Hana went in to assist L.B. with her reading. I find that had Hana not taken on these roles, Shawn would not have been free to pursue full time employment. Even when he was off work, he was not able to fully assist due to his opioid addiction. I have also considered that the Property was purchased while the parties were in a relationship, and that no value could be accumulated by Shawn alone prior to the purchase. Up until January 2020, both parties lived in the Property and contributed to its upkeep as described here. Whether as a couple or not, they lived in that property together for 10.5 years.

[116] Accordingly, I find that Hana and Shawn made an equal contribution to the joint family venture and that Hana is entitled to one-half of the value of the Property at trial, which is more reflective of the “value survived” as a result of her contributions.

[117] I acknowledge that the parties disagree on when the relationship ended. The parties agree that in 2012 Hana moved out with the children for a couple of months. Hana states that they reconciled when she moved back in and that she and Shawn did not actually break up as a couple until the end of December 2017 when she discovered that Shawn was secretly filming her in the bathroom (which he denies). She maintains that since that time, they lived separately under the same roof. Shawn acknowledges that she and the children moved back in sometime in 2012, but claims he moved to the basement and they never acted as a couple again. Both agree that Hana finally moved out in January 2020.

[118] What is telling though, is that the parties both agree that their management of their finances and child care responsibilities remained the same until Hana left in January 2020. If there is any accumulation of wealth, it is the result of their continued joint effort up until January 2020, irrespective of whether they continued to be in a romantic relationship.

[119] Given the finding of a joint family venture, I am assessing the “value survived” from the relationship, which in this case extends to the date of this trial. When the accumulation of family wealth is in a property, the court has in the past utilized the value of that property as of the date of trial, or when a party actually moved out, when determining what a party’s monetary award should be: Gibson v. Mead, 2015 ONSC 6935, Ammar v. Smith, 2021 ONSC 3204, Naegels v. Robillard, 2019 ONSC 2662. In this case it is appropriate that the current value be used. Hana has only been out of the house for a little over a year. The most recent property appraisal reports show that the market value of the properties in that area continues to increase. Whatever this house is worth at this time, it is the result of both parties’ efforts.

[120] The court received a number of appraisals of the Property. Neither party called any expert opinion evidence on this issue but were content to file various written opinions as to the value of the Property.

[121] Shawn provided the following evidence as to the value of the Property:

a) $325,000 based on a market value as of June 30, 2020;

b) An appraisal report showing a current market value of $355,000 as of December 14, 2020;

c) An email from a local real estate agent indicating a value of $180,000 as of 2012 and a value of $275,00 as of 2017;

[122] Hana provided the following evidence as to the value of the Property:

a) An email from a local real estate agent dated November 9, 2020 indicating that the average sales price of properties in the area was around $428,000;

b) A broker report dated May 19, 2020, showing a value of $327,100;

c) An appraisal report showing a market value of $410,000 as of November 30, 2020, and $366,000 as of January 1, 2020;

d) An appraisal report showing a market value of $475,000 as of March 25, 2021;

[123] E-mails from real estate agents are not of assistance to the court. I will only consider the appraisal reports filed by certified real estate appraisers. Both parties filed them, and neither party raised an objection to these reports being filed. Neither party sought to cross-examine the other’s appraiser.

[124] As indicated, I believe the appropriate time period in which to assess the value of the home is as of trial. While Hana’s contributions ceased when she moved out, the value “survived” and her contributions continued to play a role in the value of the Property. The appraised value provided by Hana, which is closest to that date, is $475,000, as of March 21, 2021. The appraised value closest to that date, as provided by Shawn, is $355,000, as of December 14, 2020.

[125] I have reviewed the two reports. Mr. Vander Eyk, who completed the appraisal for Shawn, looked at properties that were anywhere from 50 to 150 years old, where as Ms. Flewwelling, who prepared the appraisal for Hana, looked at properties that were new to 150 years old. The Property here was 125 years old. The value of properties reviewed by Ms. Flewwelling went up to $880,000 whereas the value of properties reviewed by Mr. Vander Eyk went up to $550,000.

[126] Mr. Vander Eyk indicated that the interior of the Property was of average to below average condition and there was a distinct odor of cat urine throughout. Ms. Flewwelling indicated the Property was in average condition and makes no remarks about cat urine odor. Ms. Flewwelling compared more properties, but expanded her search to Arthur, Ontario, which is a bigger community than Drayton and could lead to higher property values. That being said, property values continue to increase, as evidenced by the various appraisals. After reviewing these reports, I find the gross value of the Property as of trial to be $450,000. Given the likelihood that sale may be required by Shawn, I am prepared to decrease this value by five percent (5%) for real estate fees and the sum of $1,000 for real estate legal fees, leaving a gross value of $426,500.

[127] We also know that as of December 31, 2019, $155,216 was owed on the mortgage, which reflects a reduction in principle of approximately $6,650 over the previous year. Assuming that the mortgage will be reduced by the same amount in the year and three-quarters following, and given the lack of evidence otherwise, I find that the mortgage currently will be approximately $143,000.00. This leaves the net value of the home to be $283,500, and Hana’s share to be one-half, or $141,750.

[128] Given my finding that a monetary remedy will suffice, there is no need to consider Hana’s request that a constructive trust be found or that title of the Property vested to her.

Conclusion

[129] Neither party provided a consent draft order with respect to the matters that they settled on the eve of trial. Accordingly, they can have that aspect of their settlement reduced to an order by way of a 14B motion. For the remainder of the issues, I make the following orders:

a) Hana is granted leave, nunc pro tunc, to advance this claim, subject to any rights she assigned to her former Trustee in Bankruptcy pursuant to the Assignment Agreement dated April 1, 2021;

b) L.B. shall reside primarily with Hana;

c) All of Shawn’s parenting time, as set forth below, shall be supervised by L.B.’s paternal grandparents until Shawn provides to Hana a drug test, at his expense and in a form reasonably satisfactory to Hana, that shows he is currently free of all illegal or non-prescribed opioids or drugs. Upon providing same to Hana, Shawn shall immediately commence unsupervised parenting time with L.B. as set forth herein;

d) Upon unsupervised access commencing, Shawn is to continue to provide a drug test or hair follicle test at his expense, on a weekly basis, which shows that he remains free of all illegal or non-prescribed opioids or drugs. If all tests are provided to Hana and they all show that he remains free of all illegal substances or non-prescribed opioids or drugs for a three month period, he will no longer be required to provide these tests; if at any time he fails to provide a test, or he provides a test that shows he has used illegal substances or non-prescribed opioids or drugs, parenting time as scheduled shall forthwith be supervised by the paternal grandmother until further court order; the parties will be reasonable in the event that the delivery of Shawn’s test results are delayed for reasons beyond his control;

e) Even if unsupervised, Shawn shall spend a minimum of 6 hours of his weekend parenting time with L.B.’s paternal grandparents at their home;

f) Subject to subparagraphs 129(c), (d) and (e), Shawn shall have parenting time with L.B. on alternating weekends from Friday at 7:00 p.m. to Sunday at 7:00 pm. for the months of September to and including June, and from Sunday 7:00 p.m. to Tuesday 7:00 p.m. for the months of July and August, or as otherwise agreed to in writing by the parties;

g) Both parties shall be reasonable and flexible in adjusting the schedule to accommodate birthdays and family events to permit L.B. to attend such special events;

h) Shawn shall have additional holiday parenting time as follows:

1. one week at Christmas and access time on either December 24th or December 25th, as may accommodate family holiday dinners;

2. two non-consecutive weeks during the summer holidays;

3. March Breaks in odd numbered years;

4. Easter weekend in even numbered years; and

5. Thanksgiving weekend in odd numbered years.

i) All parenting time exchanges shall be halfway between Shawn and Hana’s home;

j) Shawn may make inquiries and be given information by L.B.'s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with L.B. The parties intend this paragraph to provide each of them with access to any information or documentation to which a parent of a child would otherwise have a right of access. If, for whatever reason, this paragraph itself is not sufficient (although both parties intend it to be sufficient authority for either of them), the parties will cooperate and execute any required authorization or direction necessary to enforce the intent of this paragraph. To this end, Hana will execute any consents necessary to facilitate this;

k) Shawn is prohibited from using non-prescription drugs or steroids for 12 hours prior to any parenting time, and during any parenting time;

l) The parties shall refrain from speaking of the other parent in a negative manner while in the presence of L.B. and shall not allow anyone else to speak negatively about the other parent while in L.B.’s presence;

m) Hana’s request for a restraining order is dismissed;

n) Shawn shall pay to Hana within 45 days, the sum of $131,425, calculated as follows:

1. The sum of to $141,750, being monetary damages for unjust enrichment;

2. Less $5,325, being Hana’s one-half share of $10,650, which were improper expenses being paid from L.B.’s settlement funds; and

3. Less $5,000 being released from Mr. Punnett’s account, for unverified expenses for L.B.;

o) This sum, payable as set forth in subparagraph 129(n) herein, shall be secured by a charge registered as against the Property, second in priority behind the first mortgage;

p) Within 45 days, Shawn shall pay into Court, for the benefit of L.B., to be administered by the Office of the Children’s Lawyer, the sum of $33,057.50 CDN plus prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, from August 30, 2015 (being 1.0%) to this date, which shall not be released until L.B. reaches the age of 18 years; in order to pay this sum, Shawn may utilize the remainder of L.B.’s settlement money that is being held in trust by his lawyer;

q) Within 45 days, Shawn shall pay into court, for the benefit of L.B. and any therapeutic needs she may have, to be administered by the Office of the Children’s Lawyer, the sum of $21,491.40 CDN plus prejudgment interest in accordance with the Courts of Justice Act, from February 10, 2016 (being 0.8%) until this date;

r) Subparagraphs 129(p)and 129(q) are without prejudice to Hana and Shawn’s ability to apply to the court for the periodic withdrawal of these funds for the benefit of L.B., to be determined at the complete discretion of the judge hearing the application;

s) The parties are encouraged to resolve the costs of this trial themselves. If they are unable to do so, both parties are shall serve and file their written costs submissions, limited to 2 pages, doubled spaced and single sided, exclusive of costs outlines and case law, on or before October 11, 2021; the other party may serve and file their responding written costs submissions, with the same size restrictions, on or before October 25, 2021; and

t) The remainder of the claim for relief sought by either party is dismissed.

Fowler Byrne J.

Released: September 20, 2021

COURT FILE NO.: FS-20-00000032-00 (Guelph)

DATE: 2021 09 20

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Hana Stec

Applicant

• and -

Shawn Jamieson Blair

Respondent

REASONS FOR JUDGMENT

Fowler Byrne J.

Released: September 20, 2021

TERMS AND CONDITIONS

https://www.bankofcanada.ca/terms/

SERIES

id

label

description

IEXE0101

USD_NOON

U.S. dollar (noon)

OBSERVATIONS

date

IEXE0101

01/02/2015

1.1728

01/05/2015

1.1787

01/06/2015

1.1804

01/07/2015

1.1851

01/08/2015

1.1812

01/09/2015

1.1857

01/12/2015

1.193

01/13/2015

1.1948

01/14/2015

1.1958

01/15/2015

1.1932

01/16/2015

1.1986

01/19/2015

1.1966

01/20/2015

1.2085

01/21/2015

1.2374

01/22/2015

1.2371

01/23/2015

1.2403

01/26/2015

1.2411

01/27/2015

1.2404

01/28/2015

1.2451

01/29/2015

1.2644

01/30/2015

1.2717

02/02/2015

1.2578

02/03/2015

1.2456

02/04/2015

1.255

02/05/2015

1.2422

02/06/2015

1.2523

02/09/2015

1.2448

02/10/2015

1.2528

02/11/2015

1.2635

02/12/2015

1.2462

02/13/2015

1.2449

02/17/2015

1.2403

02/18/2015

1.2455

02/19/2015

1.2486

02/20/2015

1.2506

02/23/2015

1.258

02/24/2015

1.2603

02/25/2015

1.2419

02/26/2015

1.249

02/27/2015

1.2508

03/02/2015

1.2535

03/03/2015

1.2452

03/04/2015

1.244

03/05/2015

1.2482

03/06/2015

1.2616

03/09/2015

1.2598

03/10/2015

1.2633

03/11/2015

1.2764

03/12/2015

1.2691

03/13/2015

1.2803

03/16/2015

1.2765

03/17/2015

1.2769

03/18/2015

1.2771

03/19/2015

1.2744

03/20/2015

1.2595

03/23/2015

1.2516

03/24/2015

1.2511

03/25/2015

1.2513

03/26/2015

1.2471

03/27/2015

1.258

03/30/2015

1.2689

03/31/2015

1.2683

04/01/2015

1.2612

04/02/2015

1.2585

04/06/2015

1.2452

04/07/2015

1.2488

04/08/2015

1.2508

04/09/2015

1.258

04/10/2015

1.2595

04/13/2015

1.2602

04/14/2015

1.2478

04/15/2015

1.2379

04/16/2015

1.2206

04/17/2015

1.2229

04/20/2015

1.2204

04/21/2015

1.2274

04/22/2015

1.225

04/23/2015

1.2147

04/24/2015

1.2166

04/27/2015

1.2105

04/28/2015

1.2021

04/29/2015

1.1954

04/30/2015

1.2119

05/01/2015

1.2192

05/04/2015

1.2111

05/05/2015

1.204

05/06/2015

1.2009

05/07/2015

1.2139

05/08/2015

1.2088

05/11/2015

1.2105

05/12/2015

1.1987

05/13/2015

1.1951

05/14/2015

1.1992

05/15/2015

1.201

05/19/2015

1.2211

05/20/2015

1.2212

05/21/2015

1.2201

05/22/2015

1.2288

05/25/2015

1.2304

05/26/2015

1.243

05/27/2015

1.2485

05/28/2015

1.2477

05/29/2015

1.2465

06/01/2015

1.255

06/02/2015

1.2423

06/03/2015

1.2436

06/04/2015

1.2477

06/05/2015

1.2489

06/08/2015

1.2435

06/09/2015

1.2317

06/10/2015

1.2267

06/11/2015

1.2314

06/12/2015

1.2304

06/15/2015

1.2323

06/16/2015

1.233

06/17/2015

1.2308

06/18/2015

1.2209

06/19/2015

1.2279

06/22/2015

1.2288

06/23/2015

1.2327

06/24/2015

1.2415

06/25/2015

1.2347

06/26/2015

1.2359

06/29/2015

1.2382

06/30/2015

1.2474

07/02/2015

1.2566

07/03/2015

1.2571

07/06/2015

1.2626

07/07/2015

1.274

07/08/2015

1.2722

07/09/2015

1.2729

07/10/2015

1.2715

09/18/2015

1.3147

09/21/2015

1.325

09/22/2015

1.3278

09/23/2015

1.3315

09/24/2015

1.3351

09/25/2015

1.3325

09/28/2015

1.3361

09/29/2015

1.3413

09/30/2015

1.3394

10/01/2015

1.3242

10/02/2015

1.3214

10/05/2015

1.3085

10/06/2015

1.3056

10/07/2015

1.3036

10/08/2015

1.3018

10/09/2015

1.2946

10/13/2015

1.2986

10/14/2015

1.2982

10/15/2015

1.2904

10/16/2015

1.2933

10/19/2015

1.2998

10/20/2015

1.2974

10/21/2015

1.3116

10/22/2015

1.3088

10/23/2015

1.3172

10/26/2015

1.3134

10/27/2015

1.3241

10/28/2015

1.3148

10/29/2015

1.317

10/30/2015

1.3083

11/02/2015

1.3095

11/03/2015

1.3106

11/04/2015

1.3164

11/05/2015

1.3167

11/06/2015

1.3308

11/09/2015

1.3275

11/10/2015

1.3259

11/12/2015

1.3307

11/13/2015

1.3332

11/16/2015

1.3353

11/17/2015

1.3324

11/18/2015

1.3353

11/19/2015

1.3267

11/20/2015

1.3338

11/23/2015

1.3357

11/24/2015

1.3308

11/25/2015

1.3301

11/26/2015

1.33

11/27/2015

1.336

11/30/2015

1.3333

12/01/2015

1.3372

12/02/2015

1.336

12/03/2015

1.3394

12/04/2015

1.3365

12/07/2015

1.3508

12/08/2015

1.3593

12/09/2015

1.3595

12/10/2015

1.3599

12/11/2015

1.3696

12/14/2015

1.3733

12/15/2015

1.3728

12/16/2015

1.3805

12/17/2015

1.397

12/18/2015

1.3882

12/21/2015

1.399

12/22/2015

1.3929

12/23/2015

1.386

12/24/2015

1.3845

12/29/2015

1.385

12/30/2015

1.3884

12/31/2015

1.384