Court File and Parties

COURT FILE NO.: FC-20-003 (Perth) DATE: 20220330 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID LENNOX Applicant -and- SUSAN KAYE Respondent

Counsel: Tamara Scarowsky, for the applicant Steven Lahti, for the respondent

HEARD at Perth: 16, 17 and 18 November 2021

MEW J.:

Reasons for Decision

[1] The parties have known each other since 1985, when they were both already in their forties. They separated in 2018 after thirteen years and one month. They were never married.

[2] In the aftermath of their relationship, the court is asked to determine how the proceeds of the sale of the property that they owned at 199 Queen Street, Carleton Place (the “Queen Street property”), should be allocated, whether the respondent is entitled to spousal support and, if so, in what amount and duration.

Background and Uncontested Facts

[3] David Lennox attended McGill University as an undergraduate but did not complete his degree. After leaving university he joined a workers’ co-op and ultimately became a skilled carpenter. He has a son, now 29 years old, from a previous relationship. For nearly eighteen years, he has practiced Vipassana meditation which he has found to be the best way to manage anxiety and to improve his ability to be productive at work and in other areas of life.

[4] Susan Kaye holds a Bachelor of Science degree from McGill University and a Graduate Certificate in Technical Communications from Concordia University. At all material times she has worked as a technical writer.

[5] When the romantic relationship between the parties commenced in April 2004, Mr. Lennox was living in a rented apartment in Montreal. He was working as a carpenter. He described his financial situation as “modest, but not abysmal”. He had just under $6,000 in bank savings, a small pension, a financed van, and approximately $10,000 of unsecured debt. His son, who would have been twelve years old at the time, lived mostly with his custodial parent but also had a bedroom in Mr. Lennox’s apartment and spent about a quarter of his time with Mr. Lennox.

[6] In 2004, Ms. Kaye was working as a technical writer/editor. She was living in one half of a duplex in Lachine, which she had purchased in 2001 (the “Lachine property”). The other half of the duplex was rented out to tenants, generating approximately $650 per month in rent.

[7] Ms. Kaye had experienced a series of difficulties with her tenants and, in April 2005, the parties decided to cohabit. They took over both sides of the duplex.

[8] The financial circumstances of the parties in 2005 can be summarised as follows:

(a) Mr. Lennox declared total income of $29,047 and taxable income of $26,764;

(b) Ms. Kaye declared total income of $9,194 (Ms. Kaye says that in 2004, she had left her part time job with Mr. Lennox’s encouragement and reassurance that she could count on him financially – in 2004 she had declared total income of $20,508 and taxable income of $19,918);

(c) the Lachine property had been purchased for $112,500, approximately $90,000 of which was provided through mortgage financing; and

(d) by April 2005 the outstanding principal amount of the mortgage was approximately $80,500.

[9] A request to admit dated 2 February 2021 delivered by Mr. Lennox, to which Ms. Kaye did not respond, discloses that:

(a) the parties agreed that Mr. Lennox would acquire an equity interest in the Lachine property in exchange for his monetary and monies’ worth contributions;

(b) Mr. Lennox’s equity position in the home would be based on his contributions relative to Ms. Kaye’s monetary and monies’ worth contributions to the Lachine property since the day she first purchased the property;

(c) Ms. Kaye maintained spreadsheets showing the parties’ respective monetary and monies’ worth contributions to the mortgages, taxes, insurance and maintenance of the Lachine property, and a comparison of their cumulative contributions, beginning from the time that she purchased the property;

(d) Ms. Kaye shared her spreadsheet periodically with Mr. Lennox, typically by providing him with a printout at tax season each year, updated to reflect each party’s cumulative contribution to the property up to the end of the previous calendar year, and each party’s ownership share as of the end of the previous year;

(e) in August 2010, title to the Lachine property was transferred from Ms. Kaye as sole owner to both parties as joint owners for nominal consideration of $1 by Mr. Lennox;

(f) concurrent with the transfer of title, the parties assumed joint liability for the mortgage on the property;

(g) the Lachine property was sold on 19 October 2011;

(h) the net proceeds from the sale of the Lachine property were $261,780.32, which was deposited into a joint bank account;

(i) after some minor adjustments, the net proceeds of sale of the Lachine property were apportioned between Mr. Lennox and Ms. Kaye in the amounts of $103,563.68 and $157,401.77 respectively;

(j) after the sale of the Lachine property, the parties moved to Papineauville, Quebec where they lived in rental accommodations;

(k) the parties purchased the Queen Street property which is the subject of this proceeding in 2013 for $233,000, $65,000 of which was provided through mortgage financing; and

(l) of the $168,000 down payment for the Queen Street property, approximately $64,000 was provided by Mr. Lennox and $104,000 was provided by Ms. Kaye.

[10] While detailed information concerning the financial and non-financial contributions made by the parties throughout the relationship is provided in the evidentiary record, the following narrative, provided in the opening statement of Ms. Kaye’s lawyer, strikes me as a fair summary:

Throughout the relationship, there were many disagreements about the couple’s financial situation. There was mutual financial dependence as at different points in the relationship, the Applicant relied on the Respondent and vice versa.

[11] The applicant’s request to admit contains a table summarising the line 150 incomes of the parties from 2005 to 2018, which is reproduced below:

Year	David	Susan
2005	$25,357	$9,194
2006	$25,359	$14,417
2007	$41,159	$3,414
2008	$32,502	$9,134
2009	$32,547	$10,392
2010	$38,702	$9,069
2011	$5,377	$30,776
2012	$2,207	$17,865
2013	$21,427	$15,923
2014	$37,658	$7,169
2015	$43,084	$738
2016	$47,061	$3,538
2017	$49,797	$781
2018	$47,817	$11,276
Cumulative income from 2005-2018	$450,054	$143,686

[12] The parties separated on 1 July 2018. The Queen Street property was sold in 2020 for $224,241.36 (this is the figure in the applicant’s request to admit; in her trial affidavit, the respondent put the sale figure at a marginally different amount).

Other Evidence

[13] The evidence-in-chief of the parties was provided by way of affidavit. Mr. Lennox filed a 348-paragraph affidavit with 38 exhibits, many of them consisting of multiple documents (by way of example, Exhibit W contained copies of the applicant’s income tax documents from 2005 – 2020). Ms. Kaye provided a 36-paragraph affidavit to which were attached four exhibits, including letters from an art therapist, Nancy Currie, and Dr. Cynthia Carver, a family physician who provided psychotherapy services to Ms. Kaye (but was not her primary physician).

[14] The respondent acknowledged that the letters from Ms. Currie and Dr. Carver were not expert reports. The parties agreed that the letters could be filed as the evidence of participant experts, provided that Ms. Currie and Dr. Carver were made available for cross-examination and subject to arguments about the weight, if any, to be attached to their evidence. Consequently, both of these witnesses attended court and gave evidence in person.

[15] The evidence presented concerning the financial and monies’ worth contributions made by the parties to the Lachine and Queen Street properties, their lifestyle choices and their financial contributions generally, is comprehensive and detailed.

[16] In terms of the ebbs and flows (and without intending to oversimplify the evidence):

(a) as of 2011, there were a number of years in which Ms. Kaye had opted to work on a part time basis;

(b) between mid-2011 and 2013, Mr. Lennox took time off from his career as a carpenter to attend to his mental health and to attempt a transition into another field of work;

(c) in 2013, Mr. Lennox resumed working as a carpenter;

(d) by early 2014, Ms. Kaye was experiencing work related stress and undertook counselling as well as exploring alternative work options, while continuing to do some light work for her employer until, in late summer 2014, she was laid off; and

(e) in September 2015, Ms. Kaye obtained part time companion/caregiver work which continued until 2016, following which Ms. Kaye began volunteering with the Alzheimer’s Society and obtained occasional paid work there, replacing regular staff when needed (this continued until early 2017).

[17] Ms. Kaye identifies the move to Carleton Place as coinciding with the commencement of her challenges with stress. A medical certificate provided by Dr. Christine Tai, Ms. Kaye’s family doctor, dated 17 June 2014 in relation to an application by Ms. Kaye for Employment Insurance Sickness Benefit commented:

Has been a patient at this clinic since February 2014. Has been undertaking treatment for stress and burnout. As per patient report, was unable to work from October 2013 to February 2014. Attempt to return to work in January 2014 was unsuccessful due to impairments. Will likely be able to return to work in a different field than previously. Will have ongoing medical and psychological monitoring.

[18] The comments of Dr. Tai were not tested through cross-examination. Ms. Kaye says that, with the assistance of employment counsellors, she looked into other types of administrative work that she might be able to undertake and took a number of courses.

[19] The breakdown of the relationship also appears to have been a stressor. After she consulted Dr. Carver in 2017, Dr. Carver concluded that full time work might be too much for Ms. Kaye to cope with and suggested that she seek part time employment. Dr. Carver’s 1 August 2020 letter, which was attached to Ms. Kaye’s affidavit, noted that Ms. Kaye’s stress level had continued to climb and that she had difficulty concentrating and looking for work. This was attributed to the deteriorating relationship. Dr. Carver noted that Ms. Kaye had eventually moved to Montreal to distance herself from Mr. Lennox and the Queen Street house.

[20] Shortly before the trial Dr. Carver had met with Ms. Kaye after a two-year interval without seeing her (Ms. Kaye having relocated to the Montreal area). Dr. Carver learned that Ms. Kaye was working part-time and might be able to do a few more hours than she was currently doing. Dr. Carver felt this was appropriate.

[21] Dr. Carver acknowledged that she had not at any time conducted a formal assessment of Ms. Kaye’s capacity to work and that such assessments fell outside her usual scope of practice.

[22] Ms. Currie provided the respondent with relationship counselling following the parties’ separation. She noted that litigation and relationship-related stresses had caused Ms. Kaye sleeplessness, time away from work and difficulty with normal and complex tasks which earlier would not have fazed her. She recommended that Ms. Kaye remain on a reduced schedule and continue therapeutic support for the duration of the legal proceedings “for her physical, mental and emotional well being”.

Discussion

[23] As initially framed, the parties were, in effect, asking the court to conduct a forensic accounting exercise for them. However, the court’s function in cases such as this should not amount to a bookkeeping exercise but, rather, requires account to be taken of all contributions, both pecuniary and non-pecuniary: Gonsalves v. Scrymgeour, 2017 ONCA 630, at para. 10.

Support Obligations

[24] Ms. Kaye claims to have experienced a significant reduction in her quality of life since the parties separated. She says that she has gone from living in a comfortable home to renting a room in somebody else’s house. Her income is minimal, and she claims that she lives below the poverty line.

[25] While the evidence given by Ms. Currie and Dr. Carver was helpful, and generally supportive of Ms. Kaye’s claims that she has had health challenges, I am only able to place limited weight on their evidence, given the manner in which it was introduced and, in particular, the lack of the usual safeguards associated with expert testimony. That said, I did not take either of them to be expressing the view that Ms. Kaye cannot engage in productive employment.

[26] I also accept Ms. Kaye’s characterisation that the parties’ finances had become intermingled over the fourteen years of their relationship, and that they had relied on each other for financial support throughout the relationship.

[27] However, at the time that the parties separated, and in the years immediately preceding, Mr. Lennox had been the principal income earner and contributor to the couple’s finances.

[28] Ms. Kaye seeks a one-time payment of spousal support in the amount of $70,000, to be deducted from Mr. Lennox’s share of the net proceeds of the sale of the Queen Street property. While her draft order provided in the alternative that spousal support be paid in accordance with the Spousal Support Guidelines, the only submission of any substance that was made by counsel was an argument by Mr. Lennox’s that if I were to recognise that Ms. Kaye has a needs-based claim, I should impute annual income of $30,000 to Ms. Kaye, and that any award of spousal support should be for a fixed, limited term duration of 24 months. No indication was given as to where this figure came from. Looking at the table showing the parties’ incomes over the course of their relationship, there was only one year – 2011 – when Ms. Kaye earned more than $30,000. Her average income over the fourteen years was $10,263.

[29] That having been said, Mr. Lennox argues that Ms. Kaye has in fact failed to establish that she is unable to work on a full-time basis with a salary commensurate with her education and skills. He argues that she has, essentially, made a lifestyle choice to work as little as possible, preferring to live frugally rather than to toil at full capacity. He also points out that Ms. Kaye’s technical writing and office administration skills do not impose significant physical demands that would limit her ability to work, and notes that both parties are reaching an age where they will soon qualify for public pensions.

[30] In 2020, the most recent year for which a notice of assessment was available, Mr. Lennox’s line 150 income was $54,964. 2020 income tax information from Ms. Kaye was not provided.

[31] Whether Ms. Kaye’s lower income was the result of her health, her lifestyle choices, or (most likely, in my view) a combination of the two, it is a state of affairs that had persisted for a number of years at the time their relationship ended. It seems reasonable to me that Ms. Kaye should receive time-limited spousal support from Mr. Lennox as she continues to transition to her new circumstances.

[32] There is no evidence that Mr. Lennox has paid any spousal support since the parties separated. However, as previously noted, they did continue to live under the same roof for over a year after they separated and Mr. Lennox’s claim is that he paid most, if not all, of the overhead expenses.

[33] Having regard to all of the circumstances, I am of the view that Ms. Kaye should receive spousal support for three years based on Mr. Lennox’s income of $54,964 and imputed income on the part of Ms. Kaye of $15,000 per annum.

[34] Given the modest lifestyles that both of them have always led, spousal support should be at the low end of the range. I therefore set the monthly spousal support amount to be paid by Mr. Lennox, commencing on 1 April 2022, and continuing thereafter for a total of three years (last payment on 1 March 2025), in the amount of $700.

Proceeds from the Matrimonial Home

[35] As already recorded, when the Lachine property was sold, the net proceeds of sale were divided between the parties as to 41.1% (Mr. Lennox) and 58.9% (Ms. Kaye). This was after six years of cohabitation, at the beginning of which, Ms. Kaye had all of the equity. The 41.1% attributed to Mr. Lennox at the time of the sale of the Lachine property reflected his monetary and non monetary contributions.

[36] When the Queen Street property was acquired, Mr. Lennox’s financial contribution to the purchase price was $64,000; Ms. Kaye’s was $104,000. In other words, Mr. Lennox contributed approximately 38% and Ms. Kaye 62%.

[37] The balance of the $233,000 purchase price of the Queen Street property was financed through a mortgage. Between August 2013 when the property was purchased, until August 2020 when it was sold, the unrefuted evidence is that Mr. Lennox paid $27,436.35 towards principal and interest; Ms. Kaye paid $1,415.51. This disparity was no doubt a reflection of the difference in their respective incomes at the time.

[38] Mr. Lennox claims that he also paid the vast majority of all of the other “carrying costs” relating to the Queen Street property, the majority of home maintenance and renovation costs and almost all of the utility payments. His assertions are supported by his banking records. Mr. Lennox has not attempted to monetise the value of his contributions to home maintenance as a handyman and skilled carpenter.

[39] Mr. Lennox submits that Ms. Kaye should pay him $8,120 reflecting her share of the carrying costs of the property during the post-separation period and that the proceeds of sale currently held in trust should be divided between the parties equally (subject to deduction of the $8,120 for post-separation carrying costs).

[40] Ms. Kaye did not address the issue of post-separation carrying costs. However, her position with respect to the division of the proceeds of sale is that each party should be entitled to the return of their respective down payments, and that the remainder of the net proceeds should then be distributed evenly between the parties. She argues that an equal division would unjustly enrich Mr. Lennox.

[41] I disagree with that submission.

[42] As Cromwell J. observed in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 8, “[m]any domestic relationships involve the mutual conferral of benefits, in the sense that each contributes in various ways to the welfare of the other”.

[43] While Ms. Kaye made the greater financial contribution towards the acquisition of the house, the history of the parties’ occupation and ownership of the Lachine property, and their subsequent seven years’ ownership of the Queen Street property, discloses the recognition of a gradual increase in Mr. Lennox’s interest in the properties. Furthermore, at Queen Street, a significantly greater proportion of all housing-related expenses were borne by Mr. Lennox throughout their ownership of that home.

[44] I conclude that the appropriate remedy in all of the circumstances is for the proceeds of sale of the Queen Street property to be divided equally between the parties, without any adjustment for post-separation carrying costs.

Disposition

[45] The parties both agree that the ownership of a 2008 Toyota Yaris should be transferred into Mr. Lennox’s name.

[46] Mr. Lennox will pay Ms. Kaye spousal support in the amount of $700 per month for 36 months, commencing 1 April 2022.

[47] The proceeds of sale of the Queen Street property, presently held in trust, shall be divided between the parties equally.

Costs

[48] I would encourage the parties to agree on the issue of costs. Should they be unable to do so, I will receive written submissions by email to my judicial assistant, Aimee McCurdy, at Aimee.McCurdy@ontario.ca. Each party should provide me with a bill of costs, together with copies of any offers to settle that are relied on, and a written costs submission not to exceed four pages in length. Mr. Lennox should deliver his costs materials within ten business days of the release of this decision; Ms. Kaye should provide her costs materials within ten business days thereafter.

Graeme Mew J.

Released: 30 March 2022