Court File and Parties

Court File No.: FC-72/19 Date: 2023/05/05 Ontario Superior Court of Justice

Between: MARIE YVETTE LOUISE DANIELLE BOUTIN, Applicant – and – KEVIN JOHN LUCITT, Respondent

Counsel: Self-Represented, for the Applicant Mark S. LaFrance, for the Respondent

Heard: May 10, 11, 12, 13, 16, 17, 18, 19, 20, 24, 2022

Amended Reasons for Judgment

The text of the original Reasons for Judgment dated May 5, 2023, was amended on May 9, 2023 and the explanation of the amendment is appended.

LABROSSE J.

Overview

[1] The parties, Danielle Boutin (the “Applicant”) and Kevin Lucitt (the “Respondent”), cohabited for approximately 21 years. They never married. They have two adult children, both boys.

[2] During the period of cohabitation, the parties resided as a family unit. The Respondent was a train engineer, and the family was required to move at various times at least in part to facilitate residing in proximity to the Respondent’s work. The Applicant worked sporadically prior to the birth of the children. When the children were born, she was a stay-at-home parent for a number of years and worked when she could as an uncertified substitute teacher. When the children were in school, she obtained her teaching degree and continues to work as a full-time teacher.

[3] The Respondent is now retired. At the time of trial, the eldest child was completing his first university degree and the youngest child was beginning a two-year college degree.

[4] The main dispute surrounds the Applicant’s claim for an equalization of the family law value of each parties’ pension. Relevant to this issue is whether the Applicant made the claim within the two-year limitation period for such claims. Thus, the determination of the date of separation is important: initially, both parties claimed that it was December 9, 2016. The Applicant commenced her Application on February 15, 2019. On August 15, 2019, the Applicant was granted leave to amend her Application to seek an interest in the Respondent’s pension. On March 2, 2020, the Applicant amended her Application to claim unjust enrichment and joint family venture in respect of the difference in family law value of their respective pensions. Both parties agree on the methodology used to calculate the family law value of their respective pensions.

[5] Otherwise, the Applicant claims various relief including child support, section 7 expenses and expenses and adjustments related to the ownership and sale of three jointly held properties. Finally, the Applicant claims spousal support and the Respondent challenges entitlement and the commencement date of spousal support.

[6] The Respondent claims that the Applicant pay her share of a number of “hard costs” related to the ownership and operation of the three jointly held properties.

[7] For the reasons set out below, I conclude that the date of separation is December 9, 2016. Thus, the Applicant’s claim for unjust enrichment and joint family venture is statute barred. The Applicant has established a valid claim for child support arrears and spousal support. The court concludes that her spousal support claim extends from September 1, 2017 (being the date that the Respondent vacated the family home) to April 30, 2020 (being the Respondent’s date of retirement). The Respondent has a valid claim for adjustments to amounts he spent in relation to the jointly held properties but not all his claims are accepted. The Applicant’s claims for operating expenses, related to the family home after the Applicant moved out, are denied. Finally, the Court makes a series of adjustments pursuant to various claims made by the Applicant for s. 7 expenses.

Factual Background

[8] The Applicant was born on March 24, 1964 and the Respondent was born on December 4, 1959. At the time of trial in the spring 2022, the Applicant was 58 years of age and the Respondent was 62 years of age.

[9] The parties’ children are:

a. B.L., born June, 1999. He was completing his first undergraduate degree and is residing independently. B.L. resides in Ottawa;

b. P.L., born October, 2002. He was to commence a two-year college course in September, 2022 and resides in Ottawa.

[10] The parties met in 1995 while the Applicant was residing in the province of Québec and the Respondent was residing in Burlington, Ontario. Soon thereafter, the Applicant moved to Burlington and the parties cohabited from 1995 until the date of separation. In 1995, the Respondent was a train engineer employed by Canadian National (“C.N.”) and the Applicant had an undergraduate degree in physics. After moving to Burlington, the Applicant began working in door-to-door sales and soon thereafter obtained full-time employment with an insurance company as a life insurance telemarketer. At the time, the parties were residing in the basement of the Applicant’s home in Burlington and the main floor was rented.

[11] When the parties began residing together in 1995, the Respondent was reporting to the Georgetown train station and the Applicant was working in downtown Toronto. In April 1996, the parties relocated from Burlington to Etobicoke when the Respondent bid on a different Go Train out of Etobicoke as part of his work with C.N. They resided in Etobicoke for less than a year and then moved to Port Perry, Ontario. The Respondent wanted the Applicant to purchase a house and create equity as a homeowner.

[12] In 1999, the Applicant was pregnant with their first child and the parties agreed to relocate to a new residence in Whitby, Ontario. They resided in Whitby until 2006 when they moved to Kingston, Ontario.

[13] There was conflicting evidence on the various moves and the reason for those moves. The Applicant has taken the position they consistently relocated to accommodate the Respondent’s work with C.N. The Respondent takes the position that the decisions to move were to accommodate both parties.

[14] The Applicant’s employment history can be qualified as inconsistent, prior to 1999. There is evidence that the parties agreed the Applicant would remain at home with the children when they were young. Suffice to say that the Applicant never did secure full-time, long-term employment until the parties moved to Kingston in 2008. The Applicant worked in the insurance industry, started a mite abatement business in Port Perry and worked as an uncertified substitute teacher in Whitby. The Applicant’s prior employment history was not a source of dispute within the family, and it is clear that the Respondent did not object to the fact that he was the main income earner for the family and that he was covering most of the expenses associated with the family. Essentially, this continued until the date that the Respondent moved out of the family home and also beyond that date, to a certain extent.

[15] After the birth of the first child, the Applicant obtained work as an uncertified substitute teacher at a French high school in Whitby. The Applicant’s work was inconsistent and on a part-time basis, subject to certain periods where she obtained longer-term contracts. For at least a portion of the next eight to nine years, there is no dispute that the Applicant was a stay-at-home mother and that her primary responsibility was to care for children. On days when she was working, the Respondent helped in providing support and stayed home with the children at times, assisted with the morning routine and on a few occasions by bringing a child to the mother’s school so that she could breast-feed during the day. Regardless, there is no dispute that the Applicant was essentially a stay-at-home parent and that she did not take any significant steps to re-enter the workforce until 2007.

[16] The Applicant worked part-time as a substitute teacher from 1999 until 2007. During this time, B.L. was born on June 13, 1999 and the youngest child was born on October 7, 2002. There is no evidence that there were any significant disputes between parties as to the Applicant’s status as a stay-at-home parent. While the Applicant contends that it was explicitly agreed to between the parties that she would stay home for a period of five years for each child, the Respondent stated that he did not recall such an agreement but did not specifically deny it. Rather, he relies on the fact that the Applicant did return to work, on a part-time basis much sooner.

[17] In September 2007, the Applicant returned to school to obtain her teaching degree. She graduated in May 2008. The Respondent paid her tuition during her return to school and supported her while she was at school. Following her graduation in May 2008, the Applicant immediately commenced work as a full-time teacher for a two-month period at the school where she had previously worked as a substitute teacher.

[18] In or about August 2008, the Respondent’s employer, C.N., lost its contract with the GO Train where the Respondent had been working. As a result, the Respondent transferred to the C.N. facility in Belleville, Ontario as a freight train engineer where he remained employed until April 30, 2020.

[19] This change in employment brought about another move whereby the family relocated from Whitby, Ontario to the Kingston area. The Applicant was immediately able to obtain a permanent position as a teacher in Kingston starting in the fall of 2008. Given that the Respondent’s transfer was not completed in the Fall of 2008, the Applicant only worked an 80% workload at the start to support the family in the move to Kingston. The Applicant has continued to be employed as a teacher in Kingston and now in Ottawa.

[20] In the fall of 2014, the Applicant commenced a four-year period whereby her salary was reduced by 20% for four years so that she could take the fifth year off at a reduced income of 80%. While the Respondent contends that the Applicant did not discuss this decision with him, the Respondent did not dispute it at the time and he did not voice any apparent objection to the Applicant’s decision to proceed in this fashion. His attempt to distance himself from that decision was not credible. The Applicant’s evidence on this point was more credible and she states the decision was made to support the Respondent who had health problems and also to support P.L. who had various challenges. This is clearly a factor that had an impact on the Applicant’s career.

[21] During the course of their relationship, the Respondent’s income was deposited into the parties’ joint account for payment of family-related expenses, and the Applicant’s income was deposited into her own personal account with certain identified contributions made to the family expenses. For example, the Respondent covered the cost of family vacations. This was a pattern established since the parties first commenced cohabiting.

[22] Both parties agree that on or about December 9, 2016, the Respondent informed the Applicant of his desire to separate. The Applicant’s evidence supports this date as they would not have celebrated the Christmas holidays as a family that year and the Applicant advised her parish priest of the Respondent’s desire to separate.

[23] Between December 2016 and September 2017, the evidence of the parties differs as to whether they continued to live as a family or not. The Applicant contends that the parties continued to share a bedroom, that they continued to have family dinners together, that they were intimate on at least one occasion, and they attended the graduation of the eldest child as a family. Conversely, the Respondent denies that they continued to share a bedroom, they did not eat as a family, and did not participate in any holidays as a family unit. He states they did not exchange gifts and were no longer intimate. The Respondent contends that the parties were living separate and apart under the same roof from December 2016 until August 2017, when the Respondent left the Shepherd Drive residence and moved to into a jointly owned rental property at 2201 McKendry Road. Prior to September 2017, it had been occupied by tenants.

[24] From December 2016 until August 2017, the Respondent continued paying most of the household expenses with the exception of the Applicant’s contribution of $200 each week towards the mortgage on the Sheppard Drive home. After he moved out, he slowly stopped paying for various expenses over the following months.

[25] In September 2017, B.L. commenced a four-year university program at the University of Ottawa. His first-year expenses were paid from an RESP and a scholarship. He returned to Kingston in the spring of 2018 and resided with the Applicant for the summer. For the second year, he rented a house with four other persons. Once again, the balance of his expenses were paid from an RESP. At the end of his second year, he returned to Kingston and resided at his girlfriend’s parents’ residence. For his third year at university, B.L. then returned to Ottawa and continued his university studies where he resided with his girlfriend. Following the shutdown of in-person classes in March 2020 due to COVID-19, B.L. and his girlfriend moved into the Respondent’s residence where they remained until June 1, 2020. He did not return to complete his degree as he did not want to attend university virtually. It was anticipated at trial that he would be returning to the University of Ottawa in September 2022 and that his studies would continue to be paid by way of the Respondent’s RESP.

[26] It was the Respondent’s evidence that the youngest child, P.L., resided with both parties, on an equal time basis, from August 2017 until May 2018. Thereafter, he resided primarily with his mother until early March 2019 at which time he got in trouble at school and his residential accommodations varied until the end of the trial. The parties agree with the residential schedule which forms part of Exhibit 73.

[27] The Applicant testified about many of the challenges faced by P.L. during the period from 2018 until 2022. She described issues of alcohol and drug abuse and a series of poor choices made by him surrounding the use of his vehicle. These included being stopped a number of times for excessive speed and causing significant damage to the vehicle following a one-car accident. During this period of time, the Applicant has continued to support P.L. both financially and emotionally and has attempted to be there for him.

[28] The Respondent also supported P.L. by allowing him to reside at his residence and by indicating his willingness to support P.L. with his studies when he is prepared to continue with his postsecondary education. P.L. was scheduled to commence a two-year program at Algonquin College in September 2022. The Respondent indicated that there is ample room in the RESP to cover his educational expenses.

[29] The Applicant led evidence concerning P.L.’s mental health challenges and periods where he sought medical assistance. While this evidence demonstrates the support provided by the Applicant to P.L. and her efforts to provide financial support, it does not take on particular relevance in this trial except for the Court’s consideration of s. 7 expenses. P.L. seemed to be doing well at the time of trial and was scheduled to return to school in September 2022. The evidence presented by the Applicant would not warrant a finding that P.L. continued to be a child of the marriage beyond June 2020.

[30] The parties have essentially agreed on the issues surrounding child support and the periods for which support is payable. If there is not specific agreement, they agreed not to pursue any disputes. Exhibit 73 has been accepted as the proper calculation for child support arrears. However, the parties disagree on the issue of section 7 expenses and in particular a series of payments made by the Applicant for which the Respondent disputes as either being excessive or not proper section 7 expenses. These will be dealt with in detail below.

[31] The Respondent’s evidence is that B.L. moved to Ottawa on June 1, 2020. P.L. also moved to Ottawa on August 3, 2020. They resided together and each worked full-time for a period of time. The Applicant also relocated to the Ottawa area in August 2020 in order to teach with a local school board starting in September 2020.

[32] The Respondent retired from C.N. on April 30, 2020 after 41 years of service. At the time of his retirement, he was 60 years of age. The circumstances surrounding the Respondent’s retirement are not in dispute. In March 2020, the Respondent’s doctor advised in writing that the Respondent’s chronic lung condition put him at increased risk of pneumonia and which in turn put him at greater risk if he were to contract a viral infection. He was also diagnosed as immunocompromised by reason of Crohn’s disease. It was the Respondent’s evidence that there was no alternative work available to the Respondent through his employment which would accommodate his vulnerabilities. The Applicant did not challenge this evidence and did not argue that the Respondent had an obligation to seek alternative employment. The retirement date of April 30, 2020 is accepted, and it is also accepted by the Applicant as the date whereby spousal support would end.

[33] At the time of trial, the Applicant’s income was approximately $102,000 and the Respondent’s retirement income was approximately $62,312.

Jointly Held Properties

[34] Since moving to Kingston in 2008, the parties jointly owned three properties:

i. 2202 Shepherd Drive, Glenburnie (the family home);

ii. 2201 McKendry Road, Glenburnie (previously rented and now solely owned and occupied by the Respondent);

iii. 377 Alfred Street, Kingston (a student rental sold on March 31, 2020).

2202 Shepherd Dr., Glenburnie

[35] The family home was purchased by the parties at some point after the move from Whitby to the Kingston area. Over the years, the Respondent handled all of the finances related to all three properties with the exception of the Applicant’s weekly contribution of $200 to the Shepherd Dr. mortgage. It is not disputed that during most of the period of cohabitation in Kingston, the Respondent covered most of the expenses in respect of these properties.

[36] The parties resided in the family home beyond December 9, 2016, being the date the Respondent claims to have advised the Applicant that he wanted to separate. He states that they resided in the family home separate and apart.

[37] The Applicant had sole possession of the family home from August 2017 until its sale on August 31, 2020. By temporary order dated July 13, 2021 the proceeds were divided equally between the parties. Each party received a $249,210 share.

[38] The Respondent claims that after he moved out of the family home, the Applicant rented out a portion of this residence to third parties and has never reported or accounted for the rent received. The Applicant did not dispute this, but states that the income derived was minimal.

[39] Both parties have made claims for the reimbursement of expenses related to the Shepherd Drive property. These are dealt with below.

2201 McKendry Road, Glenburnie

[40] This property was purchased in joint names. It was used as a rental property for a number of years until May 2017 when the Respondent gave notice to the tenants of his intention to occupy this property for his own use. The Respondent has resided at this property since mid-August 2017.

[41] It was the Respondent’s evidence that all rental income previously received from tenants was applied to the debt associated with this property. By temporary order dated October 5, 2021, the Respondent purchased the Applicant’s interest in this property on November 1, 2021 whereby she received a payment of $164,277. The Applicant opposed the order for the sale of this property to the Respondent and the cost of that order was reserved to the trial judge. The Respondent has sought reimbursement of $2500 for the cost of the motion required for the sale of this property.

[42] From the period commencing September 1, 2017 onwards, the Respondent alone paid all the hard costs associated with this property (primary mortgage, taxes and insurance, and indirectly the $150,000 Shepherd mortgage). The primary mortgage was reduced by over $25,000 prior to the transfer by the Applicant to the Respondent.

[43] Both parties have made claims for the reimbursement of expenses related to the McKendry Road property. These are dealt with below.

377 Alfred Street, Kingston

[44] This student rental property was purchased in joint names and sold on March 31, 2020. The sum of $199,070 was held in trust by the parties' real estate lawyer. Prior to the sale, the Respondent’s evidence was that 100% of the net rental income was applied to the mortgage principal, interest and line of credit.

[45] After the sale, the Applicant opposed the distribution of the proceeds of sale. By order dated June 13, 2021, those proceeds were divided equally between the parties and each party received $99,878.44.

[46] There are no adjustments sought by either party in respect of the Alfred Street property.

Pension and Date of Separation Evidence

[47] As for the pension issues, the Applicant seeks an equalization of the value of the parties’ respective pensions. The parties agree that the family law value of the Applicant pension is $220,764.42 and that the family law value of the Respondent’s pension is $611,082.

[48] The Applicant also seeks for a division of CPP pension credits, but no further information was given on this issue. Such a claim is to be made directly to CPP.

[49] There is no dispute that the Respondent contributed to his pension for much longer than the Applicant. The Applicant has also claimed that the move from Whitby to Kingston caused a loss of pensionable time pension credits that she had earned while supply teaching, however, the evidence provided established that this claim was insufficient. The documentation filed confirms that the Applicant joined the pension plan on April 16, 2006. This was two years before she completed teachers’ college and two years before the move from Whitby to Kingston.

[50] The Applicant testified that there was an agreement between the parties that she would stay at home with each child for a period of five years. This has left her with a significantly lower pension for which she claims the Respondent has been unjustly enriched. Furthermore, the Applicant testified that she always supported the Respondent’s career and put his career first. He was responsible for the finances, and she invested in the relationship and the family. The family was her life, and her career came after.

[51] There is much dispute surrounding factual circumstances related to the date of separation and the applicable limitation period for the unjust enrichment claim. I highlight the following relevant evidence:

a. On December 9, 2016, the Respondent informed the Applicant that he wanted to separate. The Applicant does not deny this;

b. The Respondent testified that after informing the Applicant of the separation, the Applicant stated they would have to advise the children. The Applicant denies that this was said. However, the Applicant could not explain how the children found out about the separation.

c. After December 9, 2006 the parties never engaged in counselling. The Applicant alleges that they continued to share a bedroom and the Respondent denies it.

d. Commencing as of Christmas 2016 and for the following holidays, the Applicant agreed that they did not spend holidays as a family.

e. The Applicant called evidence at trial to corroborate the fact that she did not share the Respondent’s desire to separate and that she wanted to fight for her family.

f. In February 2018, the Applicant had the benefit of legal counsel.

g. On February 15, 2019 the Applicant commenced these proceedings. In her Application she indicated that the separation date was December 9, 2016. At the time of filing her Application, the Applicant had the benefit of legal counsel.

h. In her Financial Statement dated February 15 2019, the Applicant indicated that the valuation date was December 9, 2016.

i. In August 2018, the Applicant prepared a Financial Services Commission of Ontario document that indicated the date of separation was December 9, 2016.

j. At a case conference on August 15, 2019, the Applicant first advised that she was seeking to amend her application in order to seek an interest in the Respondent’s pension. Leave to amend was granted on that date.

k. On March 2, 2020, the Applicant filed her amended application and in that document she indicated the date of separation was the “end of April, 2017”.

l. In the Respondent’s Amended Answer, the Respondent raised the limitations defense to the claim for unjust enrichment. The Applicant did not file a Reply to rebut the defense and plead the facts that oppose the limitation defence.

m. At trial, the Applicant stated that the date of separation is August 2017, being the date that the Respondent moved out of the Shepherd Drive home.

[52] The Respondent’s tax return for 2016 identifies that he is in a common-law relationship. He explains that he indicated this relationship status given that he had spent most 2016 in a common-law relationship.

Section 7 Expenses

[53] The Applicant has also advanced a claim for section 7 expenses. The largest of these claims concerns a vehicle which she purchased for P.L. in March 2020. P.L. completed high school in June 2020 and is still driving the vehicle. The Respondent’s evidence was that he could have repaired the Applicant’s 2006 Volvo, but the Applicant proceeded to purchase a 2018 Honda Civic that was described by the Respondent as a sports car.

[54] The Applicant testified that she would not have allowed P.L. to drive the old Volvo as it was unsafe, and she felt that it was important that P.L. be in a safe vehicle. He also needed the vehicle given that there was no public transportation at the Shepherd Drive home. The evidence was that the Volvo needed significant repairs.

[55] The other main section 7 expense claimed by the Applicant is for a computer for P.L. purchased on November 23, 2018. The Applicant testified that P.L. needed the computer because of his musical interests which required specific applications. The Respondent highlighted that he also bought a computer for P.L. the previous year but did not seek reimbursement from the Applicant.

Issues

[56] The parties have presented the following issues for adjudication:

i. The Applicant’s claim for equalization of the family law value of their respective pensions;

1. Is the Applicant’s claim statute barred?

2. Has the Applicant established unjust enrichment?

3. If there is unjust enrichment, what is the proper remedy?

ii. Child support (and retroactivity);

iii. Section 7 Expenses;

iv. Spousal Support (entitlement, quantum, duration and retroactivity);

v. An accounting with respect to the three jointly owned properties.

[57] There was also one issue that was not fully explored at trial involving the costs of the motion for the distribution of the sale proceeds of the McKendry property which the motion judge referred to the trial judge. That issue is more properly dealt with along with the costs of the trial.

Analysis

Equalization of Pensions

Limitation Period Issue

[58] The law on the equalization of net family property in this case begins with s. 5 of the Family Law Act, R.S.O. 1990, c. F.3 which specifies that the equalization process is only available to spouses who are married as per the definition of “spouse”. Neither party took issue with this base principle.

[59] The Applicant’s claim for an equalization of the family law value of the pensions is based on a claim of unjust enrichment and joint family venture. The Applicant relies upon the jurisprudence as set out in Cloutier v. Francis, 2011 ONSC 5550, 13 RFL (7th) 331 to support her claim given that the parties were never married, and the Family Law Act does not give a right to an equalization of net family property to unmarried spouses. The Applicant also claims a division of CPP credits.

[60] Prior to embarking on the analysis of unjust enrichment, the Respondent has raised a preliminary issue in his amended answer that the Applicant’s claim for unjust enrichment is statute barred by reason of section 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. That section sets out the basic limitation period that proceedings shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[61] The Respondent’s position is that the date of separation was December 9, 2016. The Applicant commenced her application on February 15, 2019 and amended her application to include the claim for unjust enrichment on March 2, 2020, well after the expiration of the two-year limitation period.

[62] The Applicant admitted at trial that she was aware, as of December 9, 2016, that the Applicant’s pension was of a much lesser value that the Respondent’s pension. However, the Applicant would not have known the specific difference in value between their pensions until she obtained the Ontario Teachers Pension Plan valuation dated April 22, 2022.

[63] As for the specific date of separation, both parties have argued how the court should apply the criteria for determining the date of separation as set out in Oswell v. Oswell (1990), 74 OR (2d) 15 which are:

a. if there was a physical separation;

b. if there was a withdrawal by at least one spouse from the matrimonial obligation with the intent of destroying the matrimonial consortium;

c. the absence of sexual relations is not conclusive;

d. other relevant matters include communication, joint social activities, meal patters;

e. household tasks can be relevant;

f. the method in which the spouse has filed income tax returns;

[64] Overall, I accept the Respondent’s evidence in terms of his intention to separate as of December 9, 2016 and that his intention never changed during the nine months of living separate and apart under the same roof. The parties both referred to an office retirement party that they attended together and where the Applicant claims the parties were intimate. I prefer the Respondent’s evidence in this regard and that the office party in question was in October 2016. Furthermore, I accept the Respondent’s evidence that he no longer shared a bedroom with the Applicant after December 9, 2016 and that they ceased living as a family unit in terms of not attending social functions together and not vacationing together. I also accept the Respondent’s evidence that in February 2017 they discussed where the Applicant may go if she left the Shepherd home.

[65] The Applicant’s evidence on the issue of the separation date was vague as she could not accurately point to valid specific evidence which would support the continuation of the relationship beyond December 9, 2016. The parties did not attend any counselling after that date and the only evidence the Applicant could point to which corroborates her position was her discussion with Father Germain where he stated that she should fight for her marriage. It is not sufficient to defeat the criteria in Oswell if one party does not want to separate. The analysis goes beyond that to determine how the parties lived.

[66] It is also noteworthy that the Applicant points to no evidence which would allow the Oswell criteria to be applied for a finding of a date of separation beyond April-May 2017, other than the Respondent’s move. The worst-case scenario for the Respondent would be that the positive step for moving out was done when he notified the tenants of his intention to occupy the McKendry property in May 2017. The Applicant provided no evidence to address the Oswell criteria beyond that date.

[67] I conclude that on a balance of probabilities, the Respondent has established that the date of separation was December 9, 2016. However, this conclusion has little impact on the overall analysis given that the Applicant’s latest date of separation would have been when the Respondent moved out in mid-August 2017. As such, she would have had to make her claim for unjust enrichment by mid-August 2019 if she was bound by the two-year limitation period.

[68] Sections 4 and 5 of the Limitations Act, 2002 reads as follows:

Basic limitation period

4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24 , Sched. B, s. 4.

Discovery

5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24 , Sched. B, s. 5 (1).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24 , Sched. B, s. 5 (2).

[69] Section 4 of the Limitations Act, 2002 was referred to by the Court of Appeal for Ontario in Studley v. Studley, 2022 ONCA 810 whereby the Court of Appeal acknowledged the difference between the two-year limitation period under the Limitations Act, 2002 and the 10-year limitation period pursuant to section 4 of the Real Property Limitations Act, RSO 1990, c L.15. In that case, the two-year limitation period did not apply because the claim was being made in respect of a trust interest in land.

[70] In McConnell v. Huxtable, 2014 ONCA 86, 370 DLR (4th) 554 the Court of Appeal considered the tension between s. 4 of the Limitations Act, 2002 and s. 4 of the Real Property Limitations Act. Briefly stated, if the Limitations Act, 2002 applies, a claim for equitable relief can be statute barred. In McConnell, the issue was that the appellant claimed an interest in land, with an alternative claim for monetary compensation. In the end, the Court of Appeal acknowledged that it was open to the legislature to prescribe different limitation periods for unjust enrichment actions where the claim is for a proprietary remedy and that an equitable claim such as a claim for unjust enrichment is caught by s. 4 of the Limitations Act, 2002.

[71] As properly stated by the Respondent, the Applicant led no evidence of discoverability of her claim to unjust enrichment. She admitted she was aware that the Respondent’s pension was worth more than hers as of December 9, 2016. When she commenced her Application on February 15, 2019, with the benefit of legal advice, she included in her pleading a request for the family law value of the pensions to be divided equally between the parties. In his answer, the Respondent denied that the Applicant was entitled to an equalization of net family property. Consequently, the Applicant amended her pleading in March 2020 without the knowledge of the actual family law value of their respective pensions. As such, she did not require the Ontario Teachers Pension Plan valuation to know that a claim could be made for unjust enrichment. There is no evidence that anything happened between December 9, 2016 until either February 15, 2019, to allow the Applicant to discover a potential claim for unjust enrichment. She knew, as of the date of separation that there was a significant difference in the value of her pension and the Respondent’s pension. She had the benefit of legal advice at different times and by operation of section 5(2) of the Limitations Act, 2002, she is presumed to have known about her right to claim unjust enrichment.

[72] The Applicant could argue that she notified the Respondent on August 15, 2019 at a case conference of her desire to amend her application to seek an interest in the pension. However, she did not actually amend her pleading until March 2, 2020.

[73] I have concluded that the date of separation is properly December 9, 2016 and as such, that is the date when the Applicant is deemed to have discovered her claim for unjust enrichment. The Applicant has not discharged her onus to demonstrate the date upon which her cause of action for unjust enrichment arose and as such, that date is presumed to be the date of separation: see McConnell at para 54.

[74] Thus, the Applicant’s claim for equitable relief in the form of unjust enrichment and joint family venture is statue barred by operation of s. 4 of the Limitations Act, 2002.

Claim for Unjust Enrichment

[75] As a result of my finding that the Applicant’s claim for unjust enrichment is statute barred, I need not provide a detailed analysis of the claim for unjust enrichment and joint family venture.

[76] I wish to highlight that in my view, the claim for unjust enrichment could not have been limited to the value of each parties’ pension. As considered in Cloutier, an important issue is if one party is retaining a disproportionate amount of the family’s assets. Here, the family law values of the pension are $611,082.00 vs $220,764.42, leaving an equalization of roughly $195,158.79.

[77] However, when considering each party’s net family property excluding the value of their pensions, the Respondent provided evidence that the Applicant’s NFP is $654,000 and the Respondent’s NFP is $566,000. As such, the Applicant’s NFP (excluding the pensions) is $88,000 higher than the Respondent’s. Taking all the assets into consideration, if the parties had been married, the Respondent would owe an equalization payment to the Applicant in the range of $150,000.

[78] On the issue of unjust enrichment, my preliminary view is that there are still significant factual differences in this case with the facts in Cloutier. In particular, one of the significant issues in Cloutier was the risk that a party would leave a long-term relationship with a disproportionately greater share of the wealth accumulated during the cohabitation. As stated above, both parties left the relationship with significant assets. The Applicant continues to work and she continues to build on the value of her pension. Also, the factual history shows that the Applicant’s work history prior to 1999 demonstrates little ability for advancement. Even if she was working, she would not have been earning pension benefits during those initial years. This goes to reduce the disparity between the parties’ respective pensions.

[79] Further, when the parties did relocate, it was not clear if one benefitted more than the other but likely the Respondent benefitted more than the Applicant. It is not until 2006 that the Respondent was in a position to be earning pension benefits. The Applicant’s compensatory claim to spousal support is dealt with below. However, the delay in beginning to earn pension benefits is certainly a reason for the disparity in value between the two pensions. It was following the move to Kingston that the Applicant was able to properly start her career as a full-time teacher and start earning pension benefits. As such, the factual matrix differs greatly compared to Cloutier.

[80] In addition, the evidence of a corresponding loss to the Applicant is not evident. The Applicant did not contribute her financial resources for use by the family in the same fashion as the Respondent did and the examples of her contributions to the family expenses are limited. However, there is no doubt that she was the primary caregiver for the children.

[81] What seems evident is that when the Applicant started working as a substitute teacher after the birth of the first child, her role as the primary caregiver likely impacted her ability to go to teacher’s college for eight years until the children were older. This is the key period where the Applicant’s significant contribution as a primary caregiver had a corresponding impact on her ability to start her new profession as a teacher.

[82] While the analysis of unjust enrichment would require greater depth, the factual circumstances of Applicant’s work history prior to 1999, the parties’ joint ability to acquire significant joint assets during the cohabitation, and the Applicant’s ability to retain her personal income during the cohabitation are all relevant. As part of the analysis, mutual benefit would be a live issue.

[83] In all the circumstances, it is not apparent that the Respondent has left the cohabitation with a disproportionate greater share of the wealth accumulated during the cohabitation.

[84] However, the court appreciates that the analysis surrounding claims for unjust enrichment and joint family venture require a much more in-depth analysis which is not required given the court’s conclusion on the limitation issue.

Child Support

Income Available for Support Purposes

[85] When determining a party’s income for support purposes, the analysis begins with the provisions of the Ontario Child Support Guidelines, O. Reg. 391/97 of the Family Law Act (“the Guidelines ”) and the determination of income under sections 15 to 20. Section 15 states that a spouse’s annual income is determined by the court in accordance with sections 16 to 20.

[86] In the present situation, the Applicant did not provide complete information on the parties’ annual income as she limited herself to the Line 150 figures from the tax returns. The calculation of income under s. 16 also requires consideration to adjustments to income under Schedule III. The clearest applicable adjustment in the case of these parties are the amounts attributable to union dues which are deductible from the line 150 amount. The Applicant did not do such an adjustment.

[87] The parties each provided their calculations for retroactive child support and child support arrears. The Applicant filed Exhibit 7 and the Respondent filed Exhibit 73. Initially, the parties were both making adjustments for the periods when each child was residing with the other. Overall, the best available evidence are the amounts set out in Exhibit 73.

[88] I have copied the table from the Respondent’s written argument to highlight the difference in their positions and I have adjusted the figures to be reflective of the amounts set out in Exhibit 73:

[89] It should be noted that the Respondent did not review in great detail the income figures relied upon for child support and as will be seen later, the same applies to the spousal support calculations. When looking at the income figures in Exhibit 73, the Respondent has properly deducted union dues and appears to have deducted other employment expenses purporting that they qualify as a Schedule III deductions under the Guidelines.

[90] The Applicant raised no objections to the Respondent’s calculations and hers are clearly in error given that she did not include union dues. At this point, I conclude that the Respondent’s calculations in Exhibit 73 and under the column “Mr. Lucitt’s data” above, are the best evidence.

[91] Conversely, I have reviewed Exhibit 73 filed by the Respondent and I have reviewed the income tax returns and I am unable to arrive at the same income calculations. It is unclear to me if the deductions made to both parties’ incomes properly qualify as Schedule III Adjustments to Income, but this document appears to be the best evidence. As such, I will accept the income figures submitted by the Respondent as the best available evidence, subject to either party requesting an appearance with the Court to request adjudication on the application of Schedule III to the Guidelines.

[92] In the end, the Respondent’s approach to calculating child support was done on an annual basis by determining where the children were predominantly residing as seen in Exhibit 73. I accept the Respondent’s figure for child support owed by the Respondent to the Applicant in the amount of $15,076.

Duration of Child Support

[93] In terms of duration, there is little dispute that P.L. stopped attending school on a full-time basis in June 2020. Prior to the trial, the Applicant advised that she was not seeking child support during times when the children were not in school. At trial, the Applicant suggested that given P.L.’s substance abuse and mental health issues, she considered P.L. continued to be a child of the marriage. She relied on Exhibit 1 in support of her position and the hospital records filed. However, she did not support that contention with any authority, and she did not forcefully oppose the Respondent’s position that child support should end in June 2020. Furthermore, I have no evidence of how much income P.L. earned over the years. I conclude that the Applicant has failed to provide an evidentiary basis to support a contention that P.L. continued to be a child of the marriage beyond June 2020 nor has she provided a legal basis for such a finding. I conclude that P.L. stopped being a child of the marriage in June 2020.

[94] Going forward, the evidence was that the parties anticipated that P.L. would be returning to complete his studies and both agreed that he would resume being a child of the marriage. Also, B.L. still has one year remaining to complete his first degree. No party made any submissions as to the status of the children beyond their first post-secondary degree. This may or may not be an issue in the future.

[95] As such, it seems that the parties were in agreement that while the children continued to qualify as children of the marriage, the remaining amounts in their respective RESPs would be firstly exhausted and then the parties would respond to additional expenses. While the Respondent contended that such contribution should be on a proportionate basis, I am not persuaded that it should. As the parties would be using their respective savings to cover the costs of post-secondary studies for both children and in consideration of the parties’ respective assets, I am of the view that they should contribute equally. All of this will be subject to the circumstances which are applicable on an annual basis and could be subject to adjustment in accordance with the Guidelines.

[96] Finally, the Applicant suggested that once P.L. completes his post-secondary studies, any balance remaining in the RESP should be divided between the parties. No authority was provided in support of her position. I disagree with the Applicant’s position and conclude that any balance remaining in the RESP is an asset which is in the Respondent’s name, and it remains his property. However, if there is a shortfall in B.L.’s RESP to complete his degree, the parties should have this paid from any excess amount in P.L.’s RESP. The Respondent shall also be responsible for any taxes or required reimbursements of the RESPs if the unused balance in either RESP is cashed in.

Section 7 Expenses

[97] The Applicant presented a number of items and expenses that she claimed were proper expenses for P.L. pursuant to s. 7 of the Guidelines. A summary of those items were included mainly in Exhibit 10 and various receipts were filed as part of Exhibits 11, 12, 13, 37 and 53.

[98] Given the manner in which this court has now dealt with child support as having been paid from September 1, 2017 to June 2020, most of those expenses would be covered as normal expenses covered under the child support payments. I particularly note issues such as the purchase of electronics, leisure expenses, food and clothing. Other minor amounts were paid in 2020 and 2021 when P.L. was no longer in school on a full-time basis.

[99] The Court should not be requiring that the Respondent pay his share for expenses that would otherwise be covered by the base child support. Furthermore, the Applicant made various voluntary payments to P.L. to cover things such as towing, licence reinstatement and impound costs from the misuse of his vehicle.

[100] I have considered the Applicant’s evidence and I am of the view that the only amounts which are warranted to be considered as s. 7 expenses are the following:

a. The laptop and storage capacity - $1,912.48;

b. 2014 Honda Civic - $11,493.35.

[101] To determine whether such an order should be made for the payment of s. 7 expenses, the court has to take into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouse and those of the child, and to the family’s spending pattern prior to separation.

[102] Beginning with the laptop, I find that this expense was warranted, and I accept the Applicant’s evidence that it was necessary for P.L.’s hobby in the area of music. It is in this area that the challenges faced by P.L. are more relevant and the Applicant took steps to put him in a better position to succeed by facilitating his interest in music. I conclude that it was a necessary expense and that the amount is reasonable given the parties’ financial circumstances.

[103] No challenge was made to the quantum and the Respondent only stated that he did not submit the account when he bought a computer for P.L. That is not a proper factor to consider. If the Respondent chose not to put something forward as a s. 7 expense, it does not invalidate the claim made by the Applicant for the laptop and the storage capacity. The amount of $1,912.48 is accepted. Given that the expense was incurred in 2019, the parties shall share that expense on a proportionate basis with the Respondent responsible for 66% and the Applicant responsible for 34%.

[104] In respect of the vehicle, the Respondent’s evidence was that it was too much car for P.L. and it was described as a race car. Further, the expense was unreasonable given that it was incurred at the end of P.L.’s high school and he did not return to school full-time in September of 2020 and thus he was no longer going to be a child of the marriage.

[105] To be clear, the Respondent has not established that a Honda Civic is a race car. The value of the entire purchase was $11,493.35. It was not the vehicle that made P.L. drive it irresponsibly. These were poor choices made by P.L. The Applicant decided to bail him out a number of times in terms of towing charges and reinstatement fees – those were not proper s.7 expenses.

[106] However, I accept the Applicant’s evidence that the residence where P.L. was residing was out in the country and did not benefit from public transportation.

[107] It should be noted that the Respondent did not object to P.L.’s need for a vehicle and accepted that P.L. should have been given access to the Applicant’s 1992 Volvo. It was the Respondent’s evidence that he would have paid for the necessary repairs to the 1992 Volvo. The Respondent agreed that the vehicle needed repairs to the heater fan and to the ABS breaks. He provided no estimate for the costs of those repairs.

[108] I accept the Applicant’s position that her 1992 Volvo was not a safe vehicle for P.L. to drive. At the same time, she admitted that it may have been too much to spend on a vehicle, but she was of the view that it has had a positive impact on P.L.’s life. While the Respondent stated that he could have repaired the Volvo, he did not and provided no evidence of what a reasonable amount would have been to spend on the Volvo. Also, the Respondent voiced his opposition of the purchase of the Honda at trial, but he never did so at the time of the purchase; although he may have only found out after-the-fact. His evidence focussed on the irresponsible use made of the Honda and not on P.L.’s need for a vehicle.

[109] In the end, I accept that P.L. needed a vehicle and that this was a necessary expense considering the financial circumstances of the parties. I have no evidence as to the costs associated with all the repairs needed to the 1992 Volvo. I am of the view that the purchase of a 2014 Honda was a reasonable expense and should properly be considered a s. 7 expenses. Further, with P.L. continuing his post-secondary studies in September 2022, the evidence was that he was still driving that vehicle at the time of trial.

[110] As this was an expense incurred in 2020, that expense will be shared proportionately with the Applicant being responsible for 51% and the Respondent responsible for 49%.

Spousal Support

Entitlement

[111] The issue of spousal support was a significant issue in this trial. The Applicant claimed that she was clearly entitled as a result of the agreement between the parties that she would stay home for five years for each child. She was also impacted by the numerous moves made to accommodate the Respondent and particularly the move from Whitby to Kingston in 2008 whereby the Applicant lost pension credits from her previous school board. On this last point, the Applicant has failed to provide proper evidence that the move to Kingston resulted in lost pension credits given that she joined that same pension plan two years before the move to Kingston, being on April 16, 2006.

[112] The Respondent has argued that there is no entitlement. He states that although the Applicant has requested spousal support from the date the Respondent left the family home, the start date can only be as of the date of the filing of the Application, being March 1, 2019. The Respondent also argues that the proper range of spousal support is at the mid-range. Finally, the Respondent argues that much of the calculation of spousal support is academic as a result of the significant amounts owing by the Applicant to the Respondent which would offset any spousal support awards.

[113] There are three bases for the entitlement to spousal support, being compensatory support, non-compensatory support and contractual support. Compensatory support is meant to acknowledge the contributions of a spouse to the relationship and any financial opportunities that the spouse has forgone for the sake of the family or other spouse. Generally, compensatory awards are seen where one spouse has sacrificed career opportunities, has made significant contributions to the household, and/or where one spouse has made significant contributions to the other spouse’s career: see Kerr v. Erland, 2014 ONSC 3555. Non-compensatory support is based on the need of the recipient and may include a reduction in the recipient standard of living in comparison to the marital standard of living: see Switzer v. Switzer, 2021 ONSC 5760; Gray v Gray, 2014 ONCA 659, 122 O.R. (3d) 337.

[114] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that in making an order for spousal support the court shall consider the following:

15.2 Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[115] The Respondent has argued against entitlement, however, those arguments were not persuasive. The Respondent states that the Applicant is not entitled based on non-compensatory spousal support given that her financial circumstances improved by $20,000 between December 2016 and March 2020. As for compensatory support, the Respondent argues that the income difference in 2019 was due to the Applicant’s sabbatical. The Respondent also relies on the similarity in income for 2020 to justify his position that a spousal support award is not warranted.

[116] In the end, these arguments do not negate the fact that for a number of years, the Applicant clearly made a number of relevant decisions which delayed her career opportunities to support the Respondent. There were a number of moves, some of which also benefited the Applicant but in large part, the most significant moves supported the Respondent’s work as a train engineer. Most importantly, the move from Whitby to Kingston in 2008 was clearly to allow the Respondent to change employment within C.N. The Applicant had established herself with a school board in the Whitby area and she clearly lost the relationships that she had built through part-time work and also the full-time position she secured after finishing teacher’s college.

[117] When looking at the parties’ employment history, the numerous relocations and their financial circumstances from December 2016 until April 2020, I have no difficulty identifying entitlement on both a compensatory and non-compensatory basis.

[118] The Applicant’s compensatory claim over that period can be seen in the differences in their income from 2016 to 2019 together with the clear discrepancy in asset base.

[119] Further, I reject the Respondent’s contention that he had nothing to do with the Applicant’s decision to take a sabbatical after having deferred 20% of her income over a number of years. This decision was made prior to separation, and it is not credible of the Respondent to attempt to distance himself from that decision made when they were a family.

[120] However, the more significant argument for entitlement is the compensatory claim. It is clear that the Respondent’s employment was the driving force behind numerous family decisions made over the years. This is particularly so when they moved to the Kinston area in 2008. Further, I accept the Applicant’s evidence that the parties had an agreement, at some level, that she would not work after the birth of the children for a certain period. On this point, the Respondent’s evidence that he could not remember an agreement for the Applicant to remain at home for five years following the birth of the children was not persuasive. Regardless of the existence of a specific agreement to that effect, the fact is that is essentially what happened.

[121] The Applicant went to teachers’ college in 2006 when P.L. was approximately 4 years of age and her career as a schoolteacher did not commence until almost 9 years after the birth of their first child. This delay to entering the workforce is clearly linked to the Applicant having been the primary caregiver during that period. Any suggestion otherwise by the Respondent is not in accordance with the evidence. Furthermore, I reject the Respondent’s suggestion that the Applicant returned to work in 2003. The reality is that she took a few contracts as an uncertified teacher and was able to earn income when it did not interfere with raising the children. The Court must keep in mind that the Respondent was working full-time during this period and while there is some evidence that the Respondent supported the Applicant at home while she was doing contract work, she did not pursue her career as a teacher until 2008 after completing teachers’ college.

[122] The court concludes that the Applicant is entitled to spousal support on both a compensatory and non-compensatory basis.

Quantum and Duration of Spousal Support

[123] The Applicant seeks spousal support from the date the Respondent moved out of the family home on September 1, 2017 until the date of the Respondent’s retirement on April 30, 2020. She does not dispute that the Respondent’s retirement is a proper event to bring an end to spousal support. Her application seeks spousal support at the mid-range of the Spousal Support Advisory Guidelines (“SSAG”).

[124] The Applicant has provided her spousal support calculations based on the parties’ income. However, as with child support, she has used the line 150 income figures without adjustment. Consequently, the Court accepts the Respondent’s figures as the best evidence and will remain available if there are disputes.

[125] The question then turns to the start date for spousal support. In her original application and in the amended application, the Applicant sought spousal support from September 1, 2017 despite the fact that her original application was only filed on February 15, 2019. Neither her original application nor her amended application makes any reference to retroactive spousal support.

[126] Normally, the presumptive start date for the payment of spousal support is the date that the original application was made and notice of the claim was brought to the attention of the Respondent: See Douglas v. Douglas, 2022 ONSC 585, at para 148.

[127] However, the more relevant issue here is that the Respondent continued to make most of the payments on the jointly held properties after he moved out on September 1, 2017. Then, years later as part of this trial, he seeks reimbursement for those amounts that he paid. Also, I was not directed to any evidence that he gave notice to the Applicant that he would be seeking reimbursement for those amounts.

[128] It is obvious that there was no need for the Applicant to request spousal support prior to the date of the application because the Respondent continued to cover most of the expenses. Effectively, the Respondent was paying spousal support. If he is to be reimbursed for those expenses now, it is only fair that the payment of spousal support should begin as of September 1, 2017. Consequently, the start date for spousal support shall be September 1, 2017.

[129] Turning now to the quantum of spousal support, the Respondent has provided calculations for the three common ranges – being low, mid and high.

[130] In her Amended Application, the Applicant requested that spousal support be awarded at the mid-range. In evidence, she did not address the issue nor did she do so in argument. Once again, the Applicant’s inability to apply the law to the facts of this case has worked against her.

[131] However, the Court must still apply the law to the facts of this case despite the shortcomings in the Applicant’s argument.

[132] It has been stated in many cases and legal reviews of the SSAGs that the court must avoid to simply default to the middle of the range, absent agreement by the parties. In the present case, the analysis the Court has considered several factors in assessing the appropriate location on the range of spousal support awards:

a. For the period from September 1, 2017 to April 2020, the receipt of spousal support is for a short duration when considering a 21 year relationship;

b. The Applicant has, in my view, a strong compensatory claim even if only for a short duration. She has moved to accommodate the Respondent, her application to teachers’ college was clearly influenced by her status as a stay-at-home parent for the children and the Respondent clearly benefitted from the fact that she was at home with the children to continue his employment with C.N. in different locations;

c. Following separation, the Applicant was “with child” as P.L. resided principally with her and there is no dispute that she principally supported him during his difficult times.

d. As of the date of separation, the Applicant’s income was significantly lower than the Respondent’s income and although she was in the process of being self-sufficient, her income did not reach a similar level to the Respondent’s income until 2020;

e. The Respondent clearly had an ability to pay but did not pay any spousal support but chose not to because he challenged the Applicant’s entitlement to spousal support.

[133] All of these factors favour an award at the high end of the range for spousal support but for a limited duration.

[134] Conversely, the Applicant’s asset base is the main factor that favours an award at the lower end of the range.

[135] Overall, an award at the high end of the range will recognize the interrelationship of duration and amount given the short duration that the Respondent will end up paying spousal support: see Cassidy v. McNeil, 2010 ONCA 218, 2010 ONCA 2018, 99 OR (3d) 81.

[136] While considering all the factors in this case, the Court concludes that the spousal support award should be at the high end of the range.

Tax Treatment of Spousal Support

[137] The Respondent has put forward his calculations for spousal support by relying on the approach taken in decisions of this court in Curry v. Curry, 2016 ONSC 1893 and Charron v. Carriere, 2016 ONSC 7523, 86 RFL (7th) 108. The Respondent argues that the court should use the mid-point of the after-tax cost/benefit for the lump sum spousal support payments. The Applicant did not oppose this approach.

[138] I agree that the parties should use the figure of spousal support amount that represents the mid-point between the after-tax benefit of support that the Applicant would have received if she had to declare the spousal support and the after-tax cost to the Respondent had he been able to deduct the spousal support.

[139] The best evidence provided to the Court on the proper amounts for lump sum spousal support arrears commencing on September 1, 2017 is found within Exhibit 73 and those net-of-tax amounts are:

a. 2017: $3,750;

b. 2018: $7,597;

c. 2019: $8,002.

[140] Based on the spousal support arrears calculations provided by the Respondent, lump sum spousal support arrears from September 1, 2017 to April 30, 2020 are fixed at $19,349, net of tax.

Accounting of expenses

[141] As a preliminary statement, the Court is critical of the manner in which the Applicant has approached the issue of the accounting of expenses. It was made clear at trial that a significant amount of accounting documentation was sent to the Applicant in September 2020. The Applicant essentially dismissed that disclosure by stating she did not bother or have time to review it and also stated she never bothered to share it with her counsel at the time. Her evidence was that after September 2020 and leading up to the commencement of trial, the Applicant never asked any questions about the Respondent’s expenditures. However, she came to trial making a number of unsupported statements about the lack of accounting information, that funds withdrawn from lines of credit were not justified, that numerous cheques were written and that they were not accounted for. The Applicant’s approach to the accounting of expenses was reprehensible. In the end, much of the accounting exercise was done by the Respondent and where the parties conflict in the evidence, the Respondent’s evidence should generally be accepted on the numbers, unless specifically stated otherwise.

[142] The Respondent seeks reimbursement for what he deems “hard costs” associated with the McKendry Rd and Shepherd Dr. properties as of September 1, 2017, being the date that the Respondent moved to the McKendry property. As of that date, each had exclusive use of one jointly held property. The end date for the Shepherd property would be August 31, 2020, the date that the Applicant sold the property. The end date for the McKendry property would be October 31, 2021, the date that the Respondent became the sole owner.

[143] The Respondent also seeks reimbursement from the Applicant for her use of the Costco credit card, the payment of internet accounts and utilities paid by the Respondent for Shepherd Drive.

[144] Conversely, the Applicant seeks reimbursement for what the Court deems to be operational expenses that are considered occupation costs or costs that are otherwise covered by spousal support or child support. Further, the Applicant has opposed the Respondent’s request for reimbursement for the Costco credit card as most of those expenses were incurred for P.L. and were at a time when the Respondent was not receiving spousal support and child support was not paid consistently. She also objects to having to contribute to the debt associated with the solar panels at the McKendry property as she stated that she disagreed with their purchase and never received any profits.

[145] The Applicant has never been paid spousal support. However, as previously stated, the Respondent continued to pay expenses that could be seen as being in lieu of spousal support. I have already concluded that spousal support is payable as of September 1, 2017 at the high end of the range and this is relevant to determine which expenses the Applicant should be reimbursed for. To a certain extent, it becomes a mathematical calculation to determine if any balances are owing by either party. In Exhibit 73, the Respondent has waived any repayment of amounts owing from the Applicant.

[146] I have considered the various exhibits filed by the Respondent in his calculation of the amounts owed to him for the hard costs related to the various jointly held properties. I have also considered the Applicant’s claim for occupation rent, first made at trial. As was explored during the trial, I am unable to rationalize how the Applicant should be paying a share of what could be seen as the carrying costs for McKendry Rd. after the date that she sold the Shepherd Dr. property. As of September 1, 2020, the Applicant was paying rent and the Respondent seeks to have her continue to pay her share of interest on financing, home insurance and municipal taxes. I am of the view that those costs properly belong to the Respondent from September 1, 2020 to November 1, 2021.

[147] However, when considering the reduction in principle on the financing relating to McKendry Dr., that contribution would not form part of the carrying costs and the Respondent should be reimbursed for half of $24,398.27 being the reduction in the principal amount of the McKendry mortgage.

[148] Turning to the Applicant’s claims for reimbursement of a portion of the funds that she spent on the Shepherd property, she claims utilities (gas and hydro), water treatment, mortgage payment, property taxes, home insurance and maintenance. See Exhibit 35. When considering these various expenses, the claims relating to operating costs such as utilities and water treatment costs and regular repairs are denied. Those costs are properly paid by the person occupying the premises. This is particularly the case when that individual is in receipt of spousal support during the relevant period. However, the parties did agree that the Applicant is entitled to a credit of $1,108.38 as she overpaid the taxes for Shepherd Drive.

[149] Turning to mortgage payments, property taxes and home insurance, those amounts have been adjusted for in the Respondent’s accounting found at Exhibit 68. However, those amounts do not line up exactly with the amounts claimed by the Applicant at Exhibit 35 but she does not seem to have considered the Respondent’s contributions. My review of those exhibits along with the supporting calculations provided by the Respondent in various other exhibits starting at Exhibit 57 suggests that there is little difference between their respective calculations for the mortgage and taxes for Shepherd Dr. Also, interest on the line of credit already seems to have been divided. I am of the view that the Respondent’s calculations are more detailed and represent the best evidence of the proper calculation of those items.

[150] The Respondent seeks to have the Applicant reimburse $10,765.30 for certain amounts charged to the Shepherd Dr. line of credit. Those amounts are comprised of the following:

a. $4,403.30 – this amount was to help pay for P.L.’s car;

b. $4,000.00 – Applicant’s first and last month’s rent;

c. $1,262.00 – child support that was late;

d. $1,000.00 – to pay for some of the Applicant’s incoming bills.

[151] Starting with the contribution to P.L.’s car, this should be reimbursed as I have dealt with that issue as part of s. 7 expenses. As for the rent and the payment of bills, I have now found that the Respondent was entitled to spousal support during the period that these amounts were withdrawn. Finally, the Respondent demonstrated that child support was paid during the month when this amount was withdrawn. Accordingly, each of these amounts should be offset against the Applicant’s expenses on the Shepherd Dr. property.

[152] The Respondent has also claimed reimbursement for expenses that he paid for the Applicant either on his Costco credit card, to Bell for internet or the payment of utilities after he moved out of Shepherd Dr. The Applicant provided no rationale to support her contention that the Respondent should pay these expenses. This is particularly so now that she has been awarded spousal support during that period.

[153] Finally, the Applicant has objected to the fact that the debt associated with the solar panels on the McKendry Dr. roof was paid out of the proceeds of sale and attributed equally to both properties. The Respondent’s position was that this was a debt registered against the property that had to be vacated on closing. However, this would mean that upon payment of the associated debt, the solar panels were owned by both parties – free and clear. Part of the evidence at trial was Exhibit 14, being a summary of the revenues generated by the solar panels starting in 2016. Also, the Applicant listed the purchase and installation costs as being $32,933.87.

[154] The Applicant testified that she opposed this purchase and that she should not have to contribute to the associated debt. I view it as a project undertaken when the parties were part of a family unit. When questioned about whether she had reviewed the related documents for the Financeit Loan, she responded that she had not looked at them. Ultimately, she agreed that she never questioned the loan for the solar panels. The Applicant’s evidence in respect of the solar panels is rejected. It was a debt incurred by the family, registered against a joint property and Exhibit 14 suggests that it did create income for the parties.

[155] The Respondent testified about the listing agreement for the McKendry Property and the solar panels were listed. As such, if a third party was to purchase the McKendry Property, they would have received the solar panels with the house. Consequently, as a result of the Respondent being the ultimate purchaser of the McKendry property after having put it on the open market, it follows that he should acquire the property without the debt associated with the solar panels. The Applicant’s request to be reimbursed for her share of the solar panel debt is denied.

[156] Finally, the court comments on the fact that the Applicant made various statements during her evidence which cast doubt on the expenses claimed by the Respondent and the various amounts charged to the lines of credit. I note the following examples: the commission on the sale of McKendry Road, her claim for a share of the sale price of Shepherd Dr., her claim that she did not receive her share of the profits for the solar panels, her claim for occupation rent and her suggestion that the lines of credit on Shepherd Dr. and McKendry Rd. were inflated. The Applicant failed to demonstrate that adjustments are warranted for those briefly mentioned matters.

[157] The court makes the following findings in respect of the evidence relating to the adjustments from the jointly held properties:

i. The Applicant’s claim for reimbursement of the gas, hydro and water treatment at Shepherd Drive are denied.

ii. The Applicant’s claim for reimbursement of her share of the debt associated with the solar panels is denied.

iii. The Applicant’s claims for reimbursement of various maintenance costs are denied as those form part of regular maintenance. The amounts spent by the Applicant on repairs prior to the sale of the property were properly paid from the line of credit (see Exhibit 53).

iv. The Respondent’s calculations at Exhibits 61, 68 and 70 are accepted subject to deducting the Applicant’s share of the carrying costs for McKendry Road from September 1, 2020 to October 31, 2021 in the amount of $6,376 (see Exhibit 81).

v. The adjusted credit to be applied to support arrears is $40,507.00

Summary

[158] As is evident from the findings made in this decision, the parties must now recalculate the s. 7 expenses and expenses from the jointly owned properties. I shall remain available to resolve disputes.

[159] I therefore summarize the matters on which I have adjudicated:

i. The Applicant’s claim for equalization of the pensions/ resulting trust and CPP credits is dismissed.

ii. The Respondent shall pay child support arrears to the Applicant in the amount of $15,076 in accordance with Exhibit 73;

iii. The Respondent shall pay his proportionate share of s. 7 expenses for the purchase of the laptop and accessories in the amount of $1262.24 (66% of $1,912.48) and for P.L.’s vehicle in the amount $5,631.74 (49% of $11,493.35).

iv. The Respondent shall pay spousal support arrears fixed at $19,349, net of tax, in accordance with Exhibit 73.

v. The Applicant will reimburse the Respondent for expenses relating to the jointly owned properties in the amount of $40,507.00 ($46,883 - $6,376).

vi. This court will resolve any disputes in the wording of the Final Order as the parties have taken very different approaches in their respective drafts.

Costs

[160] The parties are encouraged to resolve the issue of the costs of the trial and the costs of the motion for the transfer of the McKendry property which were reserved to the trial judge by Robertson J. If they are unable to do so, they may make written costs submissions of no longer than five pages excluding all attachments. Each party will provide their costs submissions within 20 days from the date of these Reasons for Judgment and each party will have a right of reply 10 days thereafter and such reply must not exceed 3 pages plus attachments. Those costs submissions should be made once the parties have dealt with the recalculation of figures, values and their respective NFP statements and that the terms of the Final Order have been determined. This may or may not require the court’s intervention. If the parties are unable to agree on a timetable for the delivery of their costs submissions when the outstanding matters are complete, they may contact me for assistance.

Justice Marc R. Labrosse Released: May 5, 2023 Re-released: May 9, 2023

Appendix

Paragraph 160 previously stated:

The parties shall have the opportunity to make written submissions as to the costs of this trial and the costs thrown away following the commencement of the trial in December 2020 before Summers J. Those costs submissions should be made once the parties have dealt with the recalculation of figures, values and their respective NFP statements and that the terms of the Final Order have been determined. This may or may not require the court’s intervention. If the parties are unable to agree on a timetable for the delivery of their costs submissions when the outstanding matters are complete, they may contact me for assistance.

Paragraph 160 now reads as follows:

The parties are encouraged to resolve the issue of the costs of the trial and the costs of the motion for the transfer of the McKendry property which were reserved to the trial judge by Robertson J. If they are unable to do so, they may make written costs submissions of no longer than five pages excluding all attachments. Each party will provide their costs submissions within 20 days from the date of these Reasons for Judgment and each party will have a right of reply 10 days thereafter and such reply must not exceed 3 pages plus attachments. Those costs submissions should be made once the parties have dealt with the recalculation of figures, values and their respective NFP statements and that the terms of the Final Order have been determined. This may or may not require the court’s intervention. If the parties are unable to agree on a timetable for the delivery of their costs submissions when the outstanding matters are complete, they may contact me for assistance.