NEWMARKET COURT FILE NO.: FC-19-58090-00
DATE: 20221110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alessandra Marie Lamacchia
Applicant
– AND –
Joseph Anthony Carullo
Respondent
Rachel Radley and Gillian Tadman, Co-Counsel for the Applicant
Charles Baker, Counsel for the Respondent
HEARD: May 16, 17, 18 and 19, 2022 with written closing submissions as of June 20, 2022.
REASONS FOR DECISION
JARVIS J.
[1] The four issues for this trial involve determining when the unmarried parties began to cohabit, division of the net sale proceeds of their jointly owned residence (“the Aurora property”), spousal support and the return of an engagement ring. Shortly before the trial began, the applicant (“the mother”) and the respondent (“the father”) resolved a host of other issues, those being decision-making (one child, three and a half years old at trial), parenting time, retroactive and on-going child support, post-separation adjustments dealing with the Aurora property and occupation rent relating to that property (since sold).
[2] Four witnesses testified; the parties and the mother’s parents.
[3] For the reasons which follow, the court finds:
(a) The effective date of the parties’ cohabitation for the purpose of determining the mother’s entitlement to spousal support is May 10, 2017;
(b) The net sale proceeds of the Aurora property shall be divided in proportion to the parties’ contributions to its purchase, those being 27% to the mother and 73% to the father. Since the parties agreed before trial that certain payments be made from either parties’ presumptive share and there will be an amount owing to the mother for her support, further calculations from the parties are needed before a final determination of each party’s distributive share can be made. Directions are given below;
(c) The mother is entitled to spousal support. Directions are given for support calculations to submitted to the court incorporating the May 2017 date when the parties began cohabiting, the court’s findings about about parties’ incomes, tax adjustments for retroactive spousal support and factoring into the calculations the Order made by the court (on consent) at the start of trial dealing with child support and related terms;
(d) The mother shall be entitled to retain the engagement ring. At her option, to be exercised with 10 days of the date of release of these Reasons, she may return the ring to the father for a $14,000 credit from the father’s share of the remaining net proceeds of sale from the Aurora property.
Unchallenged/agreed facts and procedural background.
[4] The parties agreed to certain facts at the beginning of trial as reflected in the father’s Opening Trial Statement. That statement was marked as an Exhibit[^1] with respect only to those facts, which the court confirmed with counsel. Those relevant unchallenged/agreed and, in addition, procedural facts comprise the following:
(a) The parties began dating in or around November 2015. The mother was thirty-seven years old and the father was thirty-four years old. Neither had been previously married;
(b) When the parties met, the mother was employed as a Billing Administrator for a security system supplier in Concord. She lived nearby with her parents in Woodbridge. The father was a front-line OPP officer working out of the Port Credit (Mississauga) detachment. He owned a residence in Oakville (“the Oakville property”);
(c) In the Spring 2017 the father was assigned temporarily to the Major Crimes Unit, Special Project. He worked a lot of overtime. This assignment was made permanent in November 2017;
(d) In early May 2017, around the same time as his new assignment, the father arranged to have the mother covered under his automobile insurance policy. The recorded address for both insured parties was noted as the Oakville property;
(e) In or around August 2017 the parties discovered that they were expecting a child. The father proposed to the mother in October. She accepted;
(f) The father arranged for the mother to be covered under his OPP Association benefits plan effective December 1, 2017 and informed her about that on December 8, 2017. She was issued a “Spouse Card” by the underwriter on December 19, 2017;
(g) Contemporaneously, on or about December 7, 2017, the father was named as a dependant under the mother’s workplace Group Life & Health Benefits plan. His relationship to the mother was noted as “Common Law”;
(h) The mother began an eighteen month maternity leave on April 18, 2018 ending October 19, 2019;
(i) On April 24, 2018 the parties signed an agreement to purchase the Aurora property. It had a May 31, 2018 closing date. The father listed the Oakville property for sale shortly afterward;
(j) The parties’ child was born on April 27, 2018;
(k) The purchase transaction was completed on May 31, 2018. The parties did not contribute equal amounts to the down payment, balance due on closing or, afterward, the carrying costs of the property. Part of the closing balance was bridge-financed by a mortgage on the Oakville property;
(l) Title to the Aurora property was registered in the parties’ names as joint tenants;
(m) The parties attended couples counselling in September 2018. It was unsuccessful;
(n) The mother testified that during a trip to a local Christmas tree farm on December 9, 2018 with the father, their child and her parents the father said that the parties’ relationship was over and that he was ending their engagement. The father described the time between the end of counselling and into that December as “hell”;
(o) On January 21, 2019, the mother withdrew $160,000 from the parties’ joint line of credit. She did this without notice to the father;
(p) The parties finally separated on January 31, 2019. The mother took the child to live with her parents. This is where they were residing at trial. The father continued to live at the Aurora property;
(q) The mother started this Application on February 22, 2019. The father’s Answer and Claim was served on or about March 28, 2019. A Reply was served on or about April 10, 2019;
(r) On October 16, 2019 Kaufman J. made a temporary Order, on consent, dealing with parenting, communication, daycare and related expenses. An assessment pursuant to s. 30 of the Children’s Law Reform Act[^2] was also ordered;
(s) The mother returned to her former workplace when her maternity leave ended on October 19, 2019. She worked for about two and a half months until an incident between the parties at her workplace on January 8, 2020. The mother left work that day and, by the time of trial, had not resumed that, or any other, employment. Her last pay period was January 15, 2020;
(t) The Aurora property was sold on November 13, 2019. There is $375,279.63 held in trust pending the outcome of this trial;
(u) The father occupied the Aurora property until its sale. He went to live with an uncle until he purchased a condominium residence in July 2021. This is where he was living at trial;
(v) Pursuant to Partial Final Minutes of Settlement dated May 3, 2022 the parties resolved the issues of parenting and decision-making;
(w) Pursuant to Partial Final Minutes of Settlement dated May 12, 2022 the parties resolved issues of retroactive and ongoing child support, special and extraordinary expenses and life insurance. Among other terms, the parties agreed that there would be imputed to the mother an income not less than $50,000 a year;
(x) Pursuant to Partial Final Minutes of Settlement dated May 13, 2022 the parties resolved the issues of occupation rent and post-separation adjustments.
[5] The parties also filed voluminous document briefs; only those documents referenced in evidence and agreed by the parties were made exhibits.
[6] Since much of the evidence involved the parties explaining their intentions and the apparent inconsistencies between those explanations and the documentary evidence, the court will first deal with witness credibility after which each of the trial issues will be considered.
Credibility
[7] As with many cases, the parties’ subjective evidence about their intentions were not reflected, in many respects, and often inconsistent with, their actions and the objective documentary evidence. Each contended that the other’s evidence was self-serving, false and contradictory. For example, the mother argued (like he did with her) that the father’s trial evidence about his actions and intentions often conflicted with accepted facts and the documentary evidence. In addition, the father argued that the mother’s parents demonstrated a clear animus to him and that, by implication, their evidence was not credible.
[8] In Ouellette v Uddin[^3] Shelston J. summarized some of the considerations involved when assessing credibility,
(a) assessing credibility is, in every respect, a holistic undertaking incapable of precise formulation;
(b) the trial judge need not believe or disbelieve a witness’s testimony in its entirety;
(c) the trial judge may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence; and
(d) the trial judge can assess credibility by considering different factors that include internal and external consistency of witness testimony with the testimony of other witnesses and the documentary evidence, motive, self-interest, clarity and logic of narrative, witness presentation (distinguishing candour from evasive or strategic testimony) and, to a lesser degree, witness demeanour. This list is not exhaustive.
[9] A number of observations may be made.
[10] Financial disclosure is a prerequisite in family law. As intrusive and uncomfortable as may be the disclosure of one’s financial circumstances, every family law litigant or person engaged in a family law case that involves property or support must make full and frank financial disclosure. This did not happen in this case. For example, the mother withdrew $160,000 from the parties’ joint line of credit in late January 2019; yet when she started these proceedings less than four weeks later and swore her February 13, 2019 financial statement, there is no reference to those funds, anywhere. In fact, the mother had transferred the money to her mother. This was not disclosed then or even in any of the mother’s subsequent financial statements sworn on October 7, 2019, August 30, 2021 or March 30, 2022. In each of those statements, the mother’s total expenses significantly exceeded her dislosed income (taxable or not) unaccompanied by any information how the mother was funding the excess. Noteworthy, too, are the following:
(a) The mother’s bank account balances in all her four financial statements spanning a period slightly over three years are almost identical; several entries are identical. The court finds this curious and unexplained by the mother;
(b) The mother testified that she could not recall when her mother informed her that all of the $160,000 had been spent-she never asked for an accounting. It is a not unreasonable inference that the mother purposely intended, for whatever reason, to conceal from the father and this court her financial circumstances and used those funds to meet her expenses not covered by earnings or tax benefits;
(c) The mother collaborated with her mother in making her financial situation opaque. The mother said that she owed her mother money to help her co-qualify for the mortgage to acquire the Aurora property. They signed an acknowledgement to the mortgagee that $42,000 was being gifted to the mother. But Mrs. Lamacchia testified that she “loaned” the $42,000 to her daughter and expected to be repaid; it remained owing to her. The mother testified that all of the $160,000 withdrawn by her was used for legal fees and that she owed her mother a “lot” (amount unknown). There is no reference in any of the mother’s financial statements to this debt;
(d) After the parties purchased their Aurora property, they had a laundry room built by a company owned and operated by the mother’s parents. Exhibit 27 at trial is an Invoice dated August 10, 2018 to the parties for $15,750. The father testified that the parties’ financial circumstances were such that they couldn’t afford this post-purchase expense and that the parties and her parents agreed that the parties would only pay for installation (which the father paid). The father also testified that it was not until after these proceedings started in 2019 when, as part of the mother’s disclosure, this invoice was disclosed. Mrs. Lamacchia testified that she had given the invoice to her daughter and she paid the invoice. The mother testified that she paid the invoice in June 2019 from the funds held by her mother. This debt is not reflected in the mother’s February 13, 2019 financial statement. Nor in any of the mother’s subsequent three financial statements even though the property entries in all four statements are virtually identical.
[11] Much was made by each party too about inconsistencies between their testimony and the documentary evidence. This is especially so when dealing with the parties’ third-party declarations relating to their conjugal status (see “Cohabitation” below):
(a) In the case of the father, he initiated insuring the mother under his automobile plan in May 2017, identifying her living with him. The father testified that he did this to save the mother money;
(b) While the mother was less fastidious than the father in recording or changing personal details such as her tax return and driver’s licence address, neither party gave much thought or attention to the impact (i.e., legal significance) of these details until after they separated, choosing to then rely upon or discount the inconsistencies to fit their desired outcome. This is true with respect to the mother being identified as residing with the father when she was insured under his OPP automobile insurance policy and may also be true later in December 2017 with respect to the parties’ reciprocally arranging to have each other insured under their respective workplace benefits plans, although there was no trial evidence about eligibility criteria under those plans (the mother was issued a “Spouse Card”; the father was identified under her workplace policy as being in a common law relationship with her). The mother submitted that the parties’ failure (especially hers) to change her government-related and other address details was a “neutral” factor.
[12] The mother relied on her parents’ evidence to support her claim that the parties began to cohabit in April 2016. Both of them said that they remembered that the mother left home around then because a backyard fence was being built. Neither had anything good to say about the father. Mr. Lamacchia testified that he didn’t have a good relationship with him; his wife testified that she had concerns from the beginning about her daughter’s relationship with the father, principally because he had “cheated” on her just before the mother said that the parties began to cohabit. If this court should accept the mother’s position that the parties began to cohabit in April 2016, the undisputed evidence is that neither of the mother’s parents ever visited the parties in Oakville, or were invited there, during the two years before the parties’ child was born.
[13] This case is not one where the court can clearly prefer all of one party’s evidence; the task is more nuanced and, as noted above by Shelston J. in Ouelette, this court must, of necessity, place less emphasis on certain evidence and accept conflicting evidence that is more convincing, a delicate task. The mother swore false financial statements: each party glossed over inconvenient facts. The parents, particularly Mrs. Lamacchia, were involved in the parties’ financial dispute. While each party tailored their evidence,[^4] the father’s evidence on the financial issues in this case is to be preferred. This, together with the documentary evidence, impacts the parties’dispute about the date when they began to cohabit.
Cohabitation
[14] The mother claims that the parties began to cohabit in May 2016 whereas the father contends that date is April 21, 2018. The choice of date is relevant to the mother’s support claim. Before the parties met in November 2015, the mother had always lived with her parents while the father lived alone in an Oakville property that he had purchased in 2013.
[15] “Cohabit” and “spouse” are defined in s. 1(1) of the Family Law Act[^5] (the “Act”). “Cohabit” means “to live together in a conjugal relationship, whether within or outside marriage”. In the context of unmarried persons, the definition of “spouse” is expanded in s. 29 of Part III of the Act for support purposes to include “two persons who are not married to each other and have cohabited
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act…”.
[16] Neither “living together” nor “conjugal” is defined. In Climans v. Latner,[^6] a case upon which the mother relies, the court was tasked with determining whether two parties who had maintained separate residences throughout their fourteen-year relationship had lived together in a conjugal relationship. In referring to the criteria set out in Molodowich v. Pentittinen[^7] as later adopted by the Supreme Court of Canada in M. v. H.[^8] Shore J. observed that the approach to determining what constitutes living together in a conjugal relationship must be flexible; the court must be alert to the cluster of factors which reflect the diversity of conjugal/marital relationships that exists in modern Canadian Society.[^9] No one factor, or element, predominates.[^10] Each case is fact-specific.
[17] But what is the rationale for s. 29 of the Act? Surely “some permanence” as found in subsection (b) must denote an element of interdependency. In Brebric v. Niksic,[^11] a damages case involving, among other things, a constitutional challenge to the three year spousal support qualifying period, the court affirmed that,
[23] The definition of spouse in s. 29 of the Family Law Act is tied to the purpose of the legislation. Spousal support obligations that arise on the termination of a relationship have a compensatory purpose of recognizing contributions to the relationship and the economic consequences of the relationship. [Emphasis added]
[28] The objective of the Family Law Act as a whole is to, among other things, provide for the equitable resolution of economic disputes when intimate relationships between individuals who have been financially interdependent break down… [Emphasis added]
[18] In a case such as this where neither party can satisfy the court on a balance of probabilities that their choice of date when they began to live together in a conjugal relationship should be preferred, the court must look to the unchallenged and objective evidence. Consideration must be given, too, about evidence not tendered (but which could have been) that would have shed light on the parties’ relationship.
[19] Facts (and absence of evidence) which this court considers relevant to determining the parties’ cohabitation in this case include:
(a) In 2016 the mother was given a key to the father’s residence;
(b) The mother’s income tax return for 2016 (filed in 2017) recorded her marital status as “Single” and her mailing address as being her parents’ residence, as did her driver’s licence (issued in July 2015);
(c) In May 2017 (as already noted) the father arranged for the mother to be insured under his OPP Association automobile plan. The address given for the parties was the father’s Oakville residence. The plan required that the insured parties reside together. The father said that he only did this to save the mother insurance costs;
(d) The parties vacationed in Spain in September 2016. Each paid for their own expenses. In early 2017 they vacationed in Cuba-the father paid for this;
(e) The mother provided a credit card statement for the period from May 15 to June 14, 2017 that showed a series of transactions in the Oakville area for various expenses (i.e., groceries, gas, LCBO and dining out);
(f) The parties travelled to Las Vegas in June 2017. This was also a shared expense, a large part of the cost “comped” to the mother (by whom never made clear to the court);
(g) The parties discovered that they were expecting a child in August 2017;
(h) The father proposed marriage to the mother in October 2017. She accepted;
(i) In December 2017, the parties insured each other under their respective workplace benefits plans. The father was identified as being the mother’s common law spouse under her plan. She was issued a “Spouse Card” by the father’s insurer;
(j) In 2017 the tax returns for each party recorded each party’s marital status as “Single”. The mother’s address for her tax return and driver’s licence was unchanged from 2016. The father used his Oakville address;
(k) A Statement of Remuneration issued to the mother for the period January 1 to 15, 2018 showed the father’s Oakville residence;
(l) In a letter to her employer dated March 28, 2018 the mother advised that she intended to start her maternity/parental leave on April 19, 2018. She used her parent’s address. The father claims that it was after this date that the mother began to reside fulltime at the Oakville property;
(m) There is no evidence that at any time before the May 31, 2018 purchase of the Aurora property the parties opened joint bank accounts, applied for joint credit cards (or added the other to their accounts) or were economically interdependent except for insuring the other under their workplace benefit plans, about which there was no evidence of additional cost to the planholder;
(n) Title to the Aurora property was taken in the joint names of the parties;
(o) The parties did not share bank accounts or credit cards before or after the Aurora property was purchased except for a line of credit secured on title to the property;
(p) The mother’s driver’s licence address was changed to the Aurora property in October 2018;
(q) The 2018 tax returns for each party recorded their marital status as living “Common Law”. There was no address change for the mother from her 2017 tax return. The father used the address for the Aurora property;
(r) The mother’s address for her 2019 and 2020 tax returns remained unchanged from previous years. Her marital status was “Single”; the father’s status for those years was “Separated”. His 2019 tax return showed his parent’s mailing address in Toronto. He had moved to temporary accommodations at an uncle’s residence elsewhere in Aurora after the parties’Aurora property had been sold on November 13, 2019. The address was not changed for 2020;
(s) There was no evidence that at any time, even after the birth of their child and the purchase of the Aurora property, the parties named the other as a beneficiary under any plan of life insurance, pension or registered account (i.e. registered retirement savings plan, tax free savings account). There was no evidence that either party had a Will. There was no evidence that either party had ever appointed the other as their attorney under a general power of attorney or pursuant to a living Will.
[20] No material evidence of any kind of economic interdependency arises until the mother goes on maternity leave, the parties’ child is born and they decided to purchase the Aurora property.
[21] In light of Climans and those cases which have found the requisite degree of cohabitation in circumstances where the living arrangements are fluid, the evidence conflicting or at best neutral, the court does not need to resolve the dispute whether the mother had fully moved in with the father in April 2016 (her position) or that she was still using her parent’s residence address after that date until late April 2018 because that was where she was living (the father’s position). It is this court’s view that the date when the parties began to cohabit for the purpose of determining the mother’s spousal support entitlement is May 10, 2017. That is the effective date of the mother’s coverage under the father’s automobile insurance plan. He represented to his OPP insurer that the parties were living at his Oakville property and, as he told the court, he made these representations to financially assist the mother, and this court infers, both of them. Until that date the parties were in an evolving romantic relationship.
Division of Aurora property sale proceeds
Evidence
[22] The parties moved into the Aurora property in early June 2018 about a week after completion of its purchase. Title was registered in joint names. The property has since been sold and its remaining net proceds of $375,279.63 are held in trust. The mother seeks an Order dividing the remaining proceeds equally between the parties subject to adjustments; the adjustments are $2,537.31 ordered to be released to the father in January 2022 and child support ordered by this court on May 15, 2022 to be paid by the father (on consent when the trial started) from his presumptive share of the funds in trust. The father seeks an Order that the mother be paid $20,820.11, that he be paid $354,459.52 and that any interest accrued on the net proceeds be ratably distributed to the parties.[^12]
[23] The parties agreed to the following facts relating to the purchase and later sale of the property;
(a) The purchase price was $1,400,000;
(b) The mother paid the initial $100,000 deposit;
(c) On completion, the mother contributed a further $103,240.35. A $670,000 mortgage was registered in combination with a $155,000 revolving line of credit for a total of $825,000 (this includes a $300 administrative fee). A bridge loan of $385,000 was also required pending sale of the Oakville property;
(d) The sale of the Oakville property was completed on July 26, 2018. Proceeds from its sale were used to discharge the bridge loan (by then $387,828.96) and a payment of $143,088.12 was made toward the $155,000 line of credit along with a further $8,500 received from the father’s realtor;
(e) In total, the mother contributed $203,240.35 toward the Aurora property purchase and the father contributed $539,417.08;
(f) After completion of the purchase, each party contributed to appliances and upgrades although they dispute how much each contributed. The father paid the mortgage, property taxes, insurance, utility and internet expenses;
(g) On January 21, 2019, the mother withdrew $160,000 from the parties’ joint line of credit. She did this without notice to the father. He discovered this shortly before the parties separated;
(h) The parties separated on January 31, 2019;
(i) The property was sold on November 13, 2019 for gross proceeds of $1,411,113.26;
(j) After taking into account a $63,732 realtor’s commission on the sale, the remaining gross proceeds of sale amounted to $1,348,183.40 from which were paid lawyer’s fees ($1,375.66), the mortgage ($807,877.54), property tax to the Town of Aurora ($2,195.80) and the father ($161,454.77),[^13] thus leaving net proceds of $375,279.63 in trust.
[24] Title to the property was registered in the names of the parties as joint tenants. The mother claims that the father intended to gift to her an equal interest in the property’s equity. He claims that no such gift was ever intended-the only reason why joint title was registered was that it conferred a right of survivorship should he predecease the mother-in that circumstance he wanted their child to have a home.
[25] The parties were represented by a law firm for the purchase. These facts are relevant:
(a) The parties never met the lawyer whose firm was acting for them. They dealt solely with his real estate clerk. Neither party had dealt with this law firm, lawyer or any of the firm’s employees before;
(b) Shortly after the parties signed the final form of the purchase agreement, they were sent an Introduction letter from a law clerk to which was attached a letter signed by the lawyer. Certain information was provided. Paragraph 3 of that letter dealt with title.
If it is your intention that there be more than one owner of the property, please advise whether you wish the owners to hold as “joint tenants” or “tenants in common”. Where title is owned as joint tenants and one of the owners dies, the survivor automatically becomes the sole owner of the entire property by operation of law. This is the manner of holding title most commonly used by spouses. However, where title is held as tenants in common and one of the owners dies, the deceased owner’s interest passes to his or her beneficiary under his or her Will or, if there is no Will, to his or her heirs in accordance with the law.
(a) The parties were directed to complete a Buyer(s) Memorandum that accompanied the lawyer’s letter and remit that to a designated real estate clerk to whom they were also directed to contact if they had any questions. The memorandum asked the parties to mark a box whether title was to be taken in joint tenancy or tenancy in common. The former was selected;
(b) The mother had never owned realty before this transaction. The only realty that the father owned was the Oakville property registered in his name alone;
(c) The father testified that before the transaction closed the parties had discussed many times their unequal equity contributions to the purchase and that not only was it never his intention to gift to the mother a share of his larger contribution but also that she expected, like him, to get their deposits back if anything were to happen to their relationship. The mother never testified about this in her evidence-in-chief or called any reply;
(d) The father testified that at no time was it ever explained to the parties the difference between title to realty being taken in joint tenancy as distinct from tenancy-in-common, except that the former conferred survivorship rights-that’s all he understood;
(e) The lawyer’s reporting letter dated June 12, 2018 confirmed that title was taken in joint tenancy in accordance with the parties’ instructions. There was no other discussion about, or comment made with respect to, the legal implications of either form of realty ownership.
Analysis and discussion
[26] The issue to be decided is whether the father intended to gift to the mother an equal share of his larger financial contribution to the Aurora property purchase. The father’s actual intent to gift contemporaneous with the transfer event is the governing evidentiary consideration[^14]; post-event evidence showing intent may also be considered but with greater caution to guard “against evidence that is self-serving or that tends to reflect a change in intention”.[^15] The mother acknowledges that the burden of rebutting the presumption of resulting trust is hers.
[27] A legally valid gift involves three elements:
(a) An intention to gift on the part of the donor, without consideration or expectation of remuneration;
(b) An acceptance of gift by the donee: and,
(c) A sufficient act of delivery or transfer of property to complete the transaction.
[28] In this case the mother submits that the father’s intention to ensure that the parties’ child would have a home in the event of the his death rebuts the presumption. It is easy though to conflate conferring, or taking property with, a right of survivorship with an intent to gift. A right of survivorship alone is not sufficient to rebut the presumption.[^16] This is the father’s case, namely that he intended that if he predeceased the mother she would have survivorship benefits so that their child would have a home; that was his sole understanding of, and intent respecting, joint ownership. The legal consequences of that form of ownership and tenancy in common were never explained to the parties by their lawyer or his clerk. This evidence was not challenged by the mother. Further, the father’s position is that if the parties’ relationship failed then they would be entitled to be paid back the funds each had contributed to the purchase. The mother claims a gift had to be intended because the circumstances surrounding the decision to take title jointly included the parties’ engagement and the birth of their child a week before the Buyer(s) Memorandum was submitted to their lawyer. She suggested other circumstances such as the father’s new job and his listing for the sale of his Oakville property but the former event took place before the parties decided to purchase the Aurora property and the latter can only be understood in relation to funding the purchase.
[29] The parties discussed having a domestic contract that, according to the father, would deal with the parties’ financial contributions to the purchase, but the mother made it clear that she was uninterested in that. He testified that there was too much going on around that time to pursue the issue further and that the mother was an anxious person. She submitted that the absence of such a contract was also evidence that a gift was intended but that ignores the context when the issue was discussed. There was a lot going on: the mother was experiencing a difficult pregnancy, she was leaving her job and going on maternity leave, the parties were looking for a home that, in the end result, each acknowledged was at the outer limit of their affordability and the father needed to sell his Oakville property to help finance the purchase, this all happening shortly before and after the late April birth of their child and the May 31st closing of the Aurora property purchase.
[30] In addition, the mother testified that the parties had discussed her becoming a joint owner of the Oakville property after they began cohabiting. The father insisted that she would need to contribute half of the property’s then current value if that were to happen.[^17] That he insisted on this contributory amount and yet title to the Aurora property was taken jointly was, according to her, an implicit, if not explicit, acknowledgement that the father understood what joint ownership involved and really did intend to make a gift.
[31] In MacIntyre,[^18] a case to which both parties refer (for different reasons), the Court of Appeal observed that,
Our courts are strewn with cases where people in a relationship wound up in litigation because they did not take a commercial approach to their domestic arrangements from the outset. This is just another of those cases. While it may be regrettable, it does not change the fact that it is a very frequent reality. Although the absence of contemporaneous documentation is a relevant consideration (see Chao v. Chao, 2017 ONCA 701, at para.54), the absence of such documentation by itself is not necessarily sufficient to conclude that a gift was intended. The most that the evidence establishes, even taken entirely from Ron’s point of view, is that the issue was simply not discussed – an undertstandable result in a domestic relationship. It is precisely in such situations, where the evidence in insufficient, that the presumption of a resulting trust “determine[s] the result”: Pecore, at paras. 22, 44…
[32] In Griffiths v. Davidson,[^19] a case upon which the mother relies, the issue was whether a resulting trust applied to unequal contribtions to a jointly owned property by unmarreid parties. An arbitrator had ruled that the claimant (Ms. Davidson) had not discharged the onus of proving gift on a balance of probabilities. Ms. Davidson appealed. Donohue J. disagreed with the arbitrator and allowed the appeal. The mother pointed to Griffiths-like facts in this case involving the parties’ engagement and the Aurora property mortgage being in joint names.[^20]
[33] Notably significant to the determination of Mr. Griffith’s intention (as Donohue J. stated) were the length of the parties’ relationship (twenty one years), the fact that Mr. Griffiths understood the significance of joint title tenancy and the inferential evidence that shortly after the property was purchased both parties executed Wills making the other party a beneficiary.[^21] There was also evidence that new Powers of Attorney were part of the parties’ estate planning none of which evidence obtains on the facts in this case.
[34] It is this court’s view that the mother has not rebutted the presumption of resulting trust for these reasons:
(a) Neither party had owned property jointly before the Aurora property was purchased;
(b) There is no evidence that the parties’ real estate solicitor, or anyone from his offices, ever explained to the parties the consequences of title to realty being taken in joint names as distinct from tenancy-in-common, apart from a survivorship right relating to spouses. This evidence was not challenged by the mother;
(c) The court accepts as fact that that neither party, importantly the father, understood the significance of joint tenancy title after the purchase and before the parties separated;
(d) The father’s evidence about what the parties were advised about title is supported by the relevant documentary record;
(e) The parties cohabited for twenty months before they separated and for only eight months after the purchase closed;
(f) There is no evidence that the parties ever engaged in any estate planning at or after the Aurora property was purchased that included Wills, Powers of Attorney or, for example, appointing the other as a beneficiary of any policy of life insurance, Pension, Registered Retirement Plan or Tax Free Savings Account;
(g) The parties discussed a domestic contract but none was pursued in the few months before and after the purchase. The father’s evidence about the circumstances associated with the purchase, the parties’ scrambling to afford the property, the mother’s difficult pregnancy, their child’s birth and the breakdown of the relationship within a few months after the purchase leading to unsuccessful counselling and soon afterward separation plausibly explain why further discussions about a contract were not pursued. The absence of such a document is not evidence that a gift was intended given all the events then taking place;
(h) That the mortgage on the property was in joint names does not assist the mother that a gift was intended as that would have, in any event, been required by any mortgagee.
[35] The net proceeds of sale of the Aurora property shall be divided and distributed in proportion to each party’s direct contribution to the purchase after accounting for sale expenses (the parties resolved the issue of post-separation adjustments before the trial started). As the parties collectively contributed $742,657.43 from their own resources to the purchase, the mother shall be proportionally credited with her $203,240.25 or 27.4%, say 27% rounded, and the father shall be proportionally credited with his $539,417.08 or 72.6%, say 73% rounded. After the parties’ realtor was paid its commission, the gross proceeds of sale received by the parties’ solicitor were $1,348,183.40 (this amount included $802.14 interest on the $160,000 withdrawn by the mother and which, pursuant to an August 2019 agreement between the parties, she agreed to repay)[^22]. Legal fees ($1,375.66), payment of the mortgage ($807,877.54)[^23] and municipal realty taxes ($2,195.80) reduce the net proceeds to $536,734.50. But for the $160,000 withdrawn by the mother the net proceeds would have amounted to $696,734.50. Applying the proportional credits to each party, the mother is presumptively entitled to $188,118.30 (i.e. 27%) and the father is entitled to $508,616.20 (i.e. 73%), both amounts rounded.[^24]
[36] There remains $375,279.63 in trust (subject to any additional interest accrued since trial). This amount is net of the $160,000 that the mother took in January 2019 and net of $158,917.46 later paid to the father from the closing proceeds. He was also paid a further $2,537.41 for what appears to be an overpayment of childcare expenses although that seems unclear.[^25] The Order made at the start of trial based on the parties’ May 12, 2012 Partial Final Minutes of Settlement (see paragraph 4(x) above) provided that $20,920.01 be paid to the mother from the father’s presumptive share of the net sale proceeds for retroactive child support arising up to and including May 2, 2022. As there may be further child support accruing pursuant to the Order (dealing with the child’s s. 7 expenses as set out in the Order) and spousal support owing to the mother that requires further calculation (see Spousal Support below) those amounts must be determined and taken into account before any final disposition of the net sale proceeds is made.
Spousal support
Evidence
[37] The parties’ child was born on April 21, 2018 three days after the mother went on maternity leave. She had been working for the same employer for about fifteen years and was earning $46,000 a year plus benefits. She returned to her former employment on October 21, 2019.
[38] The mother stopped working on or about January 8, 2020. She told the court that she had had to leave work that day for a short time to pick up the child from daycare because he was reported to be sick. The father was also notified by the daycare. The mother informed the father through Our Family Wizard that she was going to pick up the child. She took the child to her parents’ residence, then returned to work. The father, who happened to be on duty in the area, offered to pick up and transport the child but heard nothing further even though he asked. He later attended at the mother’s workplace. An argument ensued about the child’s wherabouts. The parties dispute what was said and what happened. The mother said that she was “shocked, terrified, embarrassed and upset” and called her Human Resources colleague to arrange for the father to be escorted from the building; the father left the area of the mother’s work station in frustration and met the mother’s colleague and another person downstairs as he was departing the building. He told them that he just wanted to know the child’s whereabouts and was leaving so as not to create a disturbance.
[39] The mother spoke to her Human Resources colleague. She left her car at work; her brother picked her up. She and the child have lived with her parents ever since. She had not returned to work by the time of trial, almost twenty-eight months afterward. Her Record of Employment noted “Illness or injury” as being the reason for her employment ending. She applied for and received short-term disability income (about $6,000). At the time of trial an application that she had made for CPP disability compensation was pending as was a long-term disability claim submitted in September 2020.
[40] Apart from the mother’s testimony and her Record of Employment, no medical evidence was tendered dealing with the mother’s post-January 8, 2020 health.[^26]
[41] The mother submitted that her claim is based on need with a modest compensatory element and she seeks the following Orders dealing with spousal support:
(a) That there be imputed to the father rental income with respect to a condominium property owned by him and his mother;
(b) That the father pay retroactive spousal support for the period from April 1, 2019 to June 1, 2022, inclusive, in the lump sum amount of $44,175; and,
(c) Starting July 1, 2022 to and including October 1, 2026, monthly spousal support of $1,277 based on an imputed income of $134,252.
[42] The father denies that the mother is entitled to spousal support and seeks an Order dismissing her claim.
Analysis and discussion
[43] As the parties never married, the provisions of Part III of the Act apply, particularly, sections 30, 33(8) and 33(9) if the mother is entitled to spousal support:
- Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
33(8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
33(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed:
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
(v.1) Repealed.
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.
Entitlement
[44] Cohabitation and the birth of a child do not relieve a spousal support claimant from proving entitlement. Disparity of income, in and of itself, does not establish entitlement.[^27] The key to entitlement is economic interdependency. As this court observed in Hollefriend v. Cole[^28] the fact that the parties have a child and child support is payable does not elevate a relationship to one of “some permanence”.
[45] A number of observations are relevant from the evidence:
(a) Both parties were gainfully employed before they began cohabiting. In the father’s case, he continued his post-separation employment. The mother planned to return to her former employment where she had worked for about fifteen years after her maternity leave ended;
(b) Apart from the parties reciprocally insuring the other under their respective workplace benefits there was no evidence that they merged their financial affairs before their child was born and their contemporaneous purchase of the Aurora property;
(c) The father paid the expenses of the Oakville and Aurora properties. Beyond the parties being joint mortgagors and having a line of credit secured against title to the Aurora property, there was otherwise no evidence about any commingling or merger of the parties’ financial lives, although there was a merger of their household lives, in particular after their child was born;
(d) The mother did contribute from her own funds (and those which she either did, or did not, borrow from her mother) to the Aurora property purchase;
(e) The mother relocated to the father’s residence, they cohabited for about twenty months and planned to marry;
(f) The mother took maternity leave, although the father disputed her decision to extend it to eighteen months due to the family’s financial needs;
(g) The mother took $160,000 from the parties’ line of credit and used that to fund the living expenses for herself and the child and pay other exenses until the fund was exhausted.
[46] A contextual and flexible approach should be used to determine whether an unmarried spousal claimant is in a relationship of some permanence as required by s. 29(b) of the Act. In this court’s view, there was a relationship of some intended permanence sufficient to entitle the mother to a modest amount of spousal support, not from a compensatory standpoint but needs based. The court notes, and accepts, the mother’s evidence that she had been paying her parents $1,500 monthly rent for herself and the child.
Income imputation
[47] Both parties raised issues about the other’s qualifying income for support purposes. In her submissions, the mother agreed that there should be imputed to her a $50,000 income for 2020 to trial and beyond. Before then her assessed income was $45,527 (2015), $47,387 (2016), $48,392 (2017), $33,109 (2018) and $17,870 (2019). Her assessed 2020 income was $23,642 (2020). Her March 30, 2022 (trial) financial statement declared a $23,642 income for 2021 based on her previous year’s Notice of Asessment; she projected a 2022 income of $8,306.88.
[48] The father’s income for the same years is $119,992 (2015), $126,725 (2016), $140,978 (2017), $111,195.52 (2018)[^29], $142,173 (2019), $108,692 (2020) and $109,797 (2021)[^30]. In his March 30, 2022 (trial) financial statement the father indicated an expected 2022 earned income of $110,459. There was no evidence why this was modestly less than his 2021 income.
[49] The mother seeks to have imputed to the father rental income from a condominium property. This is the evidence and these are the relevant facts:
(a) In 2015 the father and his mother had signed an agreement to purchase a pre-constuction residential condominium unit located in Toronto for investment purposes (Baseball Place). They had made equal contributions to the deposit. The estimated completion date was 2018 but that was delayed such that occupancy was not permitted until January 2020 when there was an interim closing. This was just before COVID;
(b) The father moved into his uncle’s residence after the Aurora property was sold (November 13, 2019). Including the father and his uncle, two other persons lived there. This was understood to be a temporary arrangement;
(c) The condominium was not rented out in January or February 2020. When the OPP imposed virtual working conditions as a result of the pandemic, the father used the condominium for work due to the highly confidential nature of his duties and the close, unsecure, living conditions at his uncle’s residence;
(d) The father paid the monthly occupancy fees of slightly more than $1,422 until the unit was rented on or about February 15, 2021 for $2,000 a month;
(e) The rent was paid to the father’s mother;
(f) The father transferred/assigned his interest in the unit to his mother on July 13, 2021 for $65,000 because he needed the money to close his purchase of a condominium unit that month in which he was later residing at the time of trial (Purcell Crescent).[^31] The mother financially assisted her son with the Purcell Crescent purchase;
(g) For the five month period between February 15, 2021 and July 13, 2021 during which rent was paid to his mother, the father received nothing. He testified that he and his mother had agreed to this arrangement to off-set her loss of potential rental income during his year-long occupancy of the unit.
[50] In seeking to impute rental income to the father, Ms. Radley sought to impeach his testimony by suggesting that that he had manufactured the condominium assignment. The father denied this. This court believes him. His explanation of the circumstances surrounding him residing with his uncle after the Aurora property was sold, his use of the Baseball Place unit for work purposes, his payment of the occupancy fees and why it was his mother, not him, who was paid the rental monies have the ring of common sense and truth. The father provided copies of his solicitor’s letter confirming the Baseball Place assignment, a copy of his mother’s $65,000 cheque for that event and a copy of his mother’s cheque that assisted his purchase of Purcell Crecent. There is no credence to the mother’s suspicions (that is all they are) and no reasonable basis whatsoever to impute to the father any income greater than his declared OPP income.
Determination of spousal support
[51] The Spousal Support Guidelines suggest a duration range of one to fourteen years. The mother proposes that any Order end on October 1, 2026, about eight years after the parties separated and slightly less than mid-range (the mother suggests that the mid-point duration is seven years, eight months). She submits too that the monthly amount awarded be mid-range.
[52] Neither party filed guideline calculations which admitted to an outcome different from their trial positions. Those submitted by the mother adopted a longer period of cohabitation than determined by this court and used income levels inconsistent with the father’s income adjusted pursuant to the guidelines; those also included imputed rental income. The father’s calculations included s. 7 child support expenses (which the court infers relate to the child’s Montessori schooling). The Order made when the trial started dealing with the child’s schooling from 2020 onwards was not factored into the calculations submitted by the mother because the parties agreed on an amount ($11,000) that the father would pay for the 2020-2021 and 2021-2022 school years.
[53] Neither party made submissions about the foregone tax consequences for a retroactive award for a period before January 1, 2021.[^32] Further calculations from the parties are required. These are the directions:
(a) The parties shall collaborate and submit revised spousal support calculations;
(b) The period of cohabitation is 20 months;
(c) The mother’s income shall be $17,870 for 2019 and $50,000 for 2020 and thereafter. The father’s income for the years 2019 to 2021 shall be as set out in paragraph 41 above;
(d) The calculations shall include the (agreed) allocated payment responsibilities for the child’s schooling for the 2020-2021 and 2021-2022 school years (69% father/31% mother);
(e) The parties shall collaborate to produce a range for the net effect of spousal support for the period between February 1, 2019 and December 31, 2021 using the low to mid-range formula (the court will not require the parties to file amended income tax returns for 2021);
(f) The revised calculations shall be forwarded to the judicial assistant;
(g) No other material or submissions shall be submitted by the parties.
Engagement ring
Evidence
[54] There are actually two rings involved with respect to this claim, a cubic zirconia ring that the father gave to the mother when he proposed in October 2017 and a more costly diamond engagement ring (“the engagement ring”) that the parties sourced together and which the father presented to the mother on Christmas morning 2017. The mother is prepared to return the zirconia ring to the father but seeks an Order that she be entitled to retain the engagement ring. The father requests the return of the engagement ring or that the mother keep it for $14,000 (what he paid for it). The mother says that she contributed a further $1,800 for a wedding band.
[55] The mother claims that the father’s pleading is deficient in that he only claimed the return of “the engagement ring” without distinguishing between the two rings. She wants to retain the engagement ring for what she said is its “sentimental” value, an odd reason the father has argued given that the parties never married and their relationship in the months after their son’s birth and before and after their separation was abusive (according to the mother, disputed by the father) and high conflict. The mother’s position is that the father should have amended his pleadings to specifically identify the “diamond” ring as “the engagement ring” to which he referred in his Answer and in his part of the Trial Scheduling Endorsement. But what was that ring if not a more formal and expensive recognition of the parties’ engagement? There is no evidence that the mother was ever confused in these proceedings about, or surprised by, the father’s claim for the return of the “diamond” engagement ring or compensation for its value. The court finds that despite any possible descriptor deficiency in the pleadings it was always clear that the father’s claim involved the diamond ring.
[56] The father asked for the return of the engagement ring on March 20, 2019, slightly less than two months after the parties separated.
[57] The evidence is that when the father proposed he gave the mother the zirconia ring for two reasons. The first was that he was uncertain of her response and the second was that, as she was “very particular with her jewellery”, he wanted her “to have the opportunity to design a ring as she would be the one wearing it”. The mother was much more involved than was he in the design. That it was presented to her on Christmas Eve was solely coincidental due to a delay in the ring’s manufacture (even though it was the father who when presented with the possibility of the ring not being ready until the New Year, texted the mother that if she was happy with the diamond “then let’s get it for Christmas”)[^33].
[58] The mother testified (and the father disputed) that she had contributed to a deposit for the band for the ring. In any event, it was picked up on Christmas Eve and presented to the mother the following morning. According to her the father said that the ring was her Christmas, Mother’s Day, birthday, Valentine’s Day and everything “for a long time” present. It wasn’t just an engagement ring in contemplation of marriage but a costly multi-gift ring.
Analysis and Discussion
[59] The issue is whether an engagement ring given in contemplation of marriage is “conditional” in the sense that if no marriage follows, it must be returned. Fault is not a relevant consideration to determining recovery. This is clear from s. 33 of the Marriage Act..[^34]
- Where one person makes a gift to another in contemplation of or conditional upon their marriage to each other and the marriage fails to take place or is abandoned, the question of whether or not the failure or abandonment was caused by or was the fault of the donor shall not be considered in determining the right of the donor to recover the gift.
[60] There is no reason why the usual evidentiary and equitable considerations should not apply to a dispute whether a gift was conditional. This court agrees with Minnema J. in King v. Mann,[^35] a case to which both parties have referred this court, that there is no stand-alone test regarding engagement rings. Circumstances such as the timely demand for a ring’s return after it is clear that a marriage is not proceeding may impact a finding that the gift was conditional, as would the situation involving, for example, a family heirloom. In King, the court referenced A.G.H. v. M.S.M.[^36] as an example of where a ring was returned when a marriage was called off but regiven when the parties reconciled, then separated again, where no marriage was contemplated. The gift was not conditional.
[61] King is a case where the evidence that the ring was given in contemplation of marriage was not disputed. Its return was ordered. In Newell v. Allen[^37], an earlier case (to which Minnema J. and both parties in this case also referred), an engagement ring was also ordered to be returned. MacKinnon J. observed that the “application [of the common law] to, and the determination of the facts, in particular cases may not always have been readily predictable”.[^38] Another way of emphasising that evidence matters. But the issue in Newell seems to have been whether a timely demand for a ring’s return was enough even though all the constituent elements of a valid legal gift had been made out. If that is the sole test (i.e. timely demand) then this court must disagree. Context is important. Evidence is critical. As the Supreme Court cautioned in Pecore (see para. 26 above), the court must remain cautious about post-event evidence of intent. In this case the mother pointed to the presentation of the ring on Christmas morning, a traditional time for the giving of gifts. The father could have agreed to postpone the event until the New Year but chose not to. His evidence was that for him (and them) the expense was significant. The mother’s more detailed testimony about what the father said to her on Christmas morning and the circumstances in which the event took place is more plausible and persuasive than his. She may retain the ring.
[62] Neither party tendered any evidence about the fair market value of the ring, which is curious because it is quite likely that its’ value at any time after purchase would be less than it cost.[^39] The father has asked in the alternative that he be credited with the value of the ring. The mother shall have the option of retaining the ring or returning it to the father for a $14,000 credit from his distributive share of the net proceeds of sale of the Aurora property. If the mother exercises this option, the ring shall be returned within ten days of the release of these Reasons. In the circumstances it is not necessary to deal with the parties’ dispute about whether the mother contributed to the cost of the band or, if that happened, its amount.
Disposition
[63] An Order shall issue with respect to subparagraphs 4(a) and (d) above. The parties are directed to submit to the court (addressed to the judicial assistant) their submissions about their client’s distributive share of the Aurora property net sale proceeds as noted in 4(b) and the calculations referenced in subparagraph 4(c) by November 30, 2022. The submissions for the former shall comprise a one page table supported by no more than two pages double-spaced explaining (if required) the table entries: those for the support calculations shall comprise Supportmate calculations for each year starting in 2019, and may be accompanied by a two page, double-spaced submission relating to any tax discount factor.
[64] Directions with respect to costs will be given when the court determines the distributive allocation of the Aurora property sale proceeds and the amount and duration of the mother’s spousal support claim.
Justice David A. Jarvis
Date: November 10, 2022
[^1]: Exhibit 4.
[^2]: R.S.O. 1990, c. C.12.
[^3]: 2018 ONSC 4520, at para. 9.
[^4]: A good example is the incident that occurred on January 8, 2020 at the mother’s workplace (see “Spousal Support” below). In the court’s view, the mother exaggerated the impact of the parties’ argument and its effect of her inability for over two years to return to work and the father downplayed the incident.
[^5]: R.S.O. 1990, c. F.3, as amended.
[^6]: 2019 ONSC 1311.
[^7]: 1980 CanLII 1537 (ON SC), [1980] O.J. No. 1904, 17 R.F.L. (2d) 376 (Dist. Ct.).
[^8]: 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3, [1999] S.C.J. No. 23.
[^9]: MacMillan-Dekker v. Dekker, 2000 CanLII 22428 (ON SC) at para. 69.
[^10]: Campbell v. Szoke, 2003 CanLII 2291 (ON SC), [2003] O.J. No. 3471, 45 R.F.L. (5th) 261 (S.C.J.).
[^11]: 2002 CanLII 41745 (ON CA).
[^12]: Excepting interest, these figures include an adjustment for repayment of the mortgage principal and realty taxes paid during the parties’ ownership of the property ($15,304.65) . The father calculated that the initial amounts payable to the parties were $13,167.78 to the mother and $346,807.20 to him; he proposed that the increase in equity relating to the reduction in mortgage principal and payment of realty taxes be equally shared such that the mother would receive $20,820.10 (i.e. $13,167.78 plus [$15, 304.65/2]) and him $354,459.53 (i.e. $346,807.20 plus [$15,304.65/2]).
[^13]: This amount comprises two payments, one for $158,917.46 after the sale and $2,537.31 for childcare expenses as a result of a January 31, 2022 court Ruling.
[^14]: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795.
[^15]: Pecore at para. 59.
[^16]: MacIntyre v. Winter, 2021 ONCA 516, 158 O.R. (3d) 321, at paras. 32-33.
[^17]: There was no evidence that actual figures were seriously discussed at any length.
[^18]: MacIntyre, at para 38.
[^19]: 2017 ONSC 87.
[^20]: The mother also submitted that, unlike Ms. Davidson, she had been employed and was on maternity leave when the Aurora property was purchased.
[^21]: Griffiths, at para. 33.
[^22]: The parties agreed on this fact when trial started.
[^23]: It is the court’s understanding that the repayment of the mortgage included the $160,000 withdrawn by the mother.
[^24]: No consideration is given to the issue about the cabinets supplied by the company owned by the mother’s parents (see para. 10(d) above). The court doubts whether there ever was any expectation of payment and views the post-separation disclosure of an invoice skeptically. In any event the property was sold at a comparative loss.
[^25]: The parties agreed when trial started that this payment was made pursuant to a ruling made by Kaufman J. on January 31, 2022. While the issue of the child’s care expenses was dicussed there is otherwise no reference in the ruling to that, or any, amount or whether it was to be reimbursed to the father from the mother’s presumptive share of the net proceeds of sale.
[^26]: This cannot have been an oversight. In his ruling made in January 2022 Kaufman J. observed that, when dealing with the mother’s income for the purpose of s. 7 expenses, there had been “no medical information which one would have expected both from a family physician and from a specialist” (para. 81) and that”[c]ogent medical evidence in the form of detailed medical opinion should be provided…in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work” (para. 88).
[^27]: Dickson v. Dickson, 2021 ONSC 7180 at paras. 6-7.
[^28]: 2017 ONSC 19, at para. 131.
[^29]: Given that the parties separated in 2019, the court accepts the father’s Line 150 T4 income without adjustment for deductions permitted by Schedule I of the Guidelines for the years prior to 2019. These deductions (i.e., union dues) are factored into the court’s determination of the father’s income for 2019 and beyond. There was no evidence that in any relevant year the mother paid union dues.
[^30]: Pursuant to Schedule III of the Guidelines, the father is entitled to deduct union dues from his earned income. In 2019 he earned $147,177.39 and paid dues of $5,004; in 2020 he earned $110,280 and paid dues of $1,587.71; in 2021 he earned $111,457 and paid dues of $1,659.63.
[^31]: The father testified that there still had not been a final closing of the Baseball Place unit at the time of trial.
[^32]: See Charron v. Carrière, 2016 ONSC 7523.
[^33]: Exhibit 16.
[^34]: R.S.O. 1990, c. M.3.
[^35]: 2020 ONSC 108
[^36]: [1997] Q.J. 4159 (Que. S.C.)
[^37]: 2012 ONSC 6681.
[^38]: Newell, at para 22.
[^39]: See, for example, Virc v. Blair, 2016 ONSC 49, aff’d 2017 ONCA 394, at paras. 154 to 157 on jewellery values.