COURT FILE NO.: FS-20-90-00 DATE: 2023-01-18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Ronald Todd Hurdon Applicant

W. Shanks, for the Applicant

• and -

Kathryne Lindsay Crooks Respondent

M. Petryshyn, for the Respondent

HEARD: Heard in Thunder Bay October 12, 2022 by Zoom

Mr. Justice J.S. Fregeau

REASONS ON MOTIONS

The Motions Before the Court

[1] The applicant (“Mr. Hurdon”) and the respondent (“Ms. Crooks”) each have a motion before the court.

[2] Mr. Hurdon requests the following:

1. An Order granting him temporary exclusive possession of the jointly owned family home and contents located at 213 Summit Avenue, Thunder Bay, Ontario (“213 Summit”);
2. An Order compelling Ms. Crooks to retain a Chartered Business Valuator (“CBV”) to provide a valuation as of the date of separation of her contractual right to receive payment for the “book of business” she administers for Scotia McLeod; and
3. An Order requiring Ms. Crooks to pay spousal support retroactive to the date the Application was commenced and ongoing temporary spousal support based on the respective incomes of the parties and in accordance with the Spousal Support Advisory Guidelines (“SSAG”).

[3] Ms. Crooks requests the following:

1. A temporary Order for joint parental decision making for the two children of the relationship, namely Charles Crooks Hurdon, born November 3, 2006, and Lexi Crooks Hurdon, born May 15, 2003;
2. An Order requiring Mr. Hurdon to pay retroactive child support and ongoing temporary child support and to contribute, retroactively and going forward, to the special and extraordinary expenses for the two children;
3. A temporary Order requiring Mr. Hurdon to pay her occupation rent in consideration of Mr. Hurdon’s exclusive possession of 213 Summit;
4. An order for the immediate sale of 213 Summit and for the division of the net sale proceeds between the parties; and
5. An order for the appointment of an expert to appraise and provide a current fair market value for 213 Summit.

Background

[4] The parties began their relationship in the spring of 1996. They began to live together in a common law relationship in 1998. The parties never married. They are the parents of Charles Crooks Hurdon and Lexi Crooks Hurdon, now 16 and 19 years old respectively (“the children”).

[5] The parties are unable to agree on the date of separation. In his Application, Mr. Hurdon inserted July 8, 2016, as the date of separation. On these motions, Mr. Hurdon deposes that the parties’ “final separation” occurred on August 28, 2019. Ms. Crooks deposes that she and Mr. Hurdon did in fact separate on July 8, 2016.

[6] Mr. Hurdon has a university degree in business and biology. His primary employment during the last 12 years of the relationship was as a self-employed Forester/Surveyor, carrying on business through a sole proprietorship called Taiga Surveying. Mr. Hurdon worked primarily out of Dryden, Ontario on a Monday-Friday basis, returning to the family home on weekends. Mr. Hurdon deposes that his income during these years was approximately $100,000 per year.

[7] In 2019, the demand for the services provided by Taiga Surveying decreased dramatically to the point where the business was no longer viable. In November 2019, Mr. Hurdon secured employment with Northshore Forest Products in Nipigon at an annual income of approximately $118,000. This employment was short-lived due to the pandemic. Mr. Hurdon was laid off in April 2020 and his position made redundant in July 2020. Since that date he has secured contract employment.

[8] Mr. Hurdon’s tax returns confirm his income to have been as follows:

2018 - $98,500 2019 - $76,300 2020 - $88,000

[9] As of November 23, 2021, Mr. Hurdon’s year to date income was $64,000, a substantial portion of which was Employment Insurance benefits for which he is no longer eligible.

[10] Ms. Crooks began employment with Scotia McLeod in late 1995/early 1996. She assumed the position of Senior Wealth Advisor soon thereafter and has been employed continuously in that position to date.

[11] Ms. Crook’s tax returns confirm her income to have been as follows:

2018 – total income $387,217.71, net/taxable income $336,406 2019 – total income $505,850.34, net/taxable income $454,351.65 2020 – total income $526,496.47, net/taxable income $485,543.31

[12] In her May 24, 2022 Financial Statement Ms. Crooks deposes that her 2021 income was $752,943.

[13] The affidavit evidence of the parties as to the general nature of their relationship, and the roles they each assumed during the relationship, is substantially at odds.

[14] Mr. Hurdon deposes that he was a primary care parent to the children throughout the relationship, despite the fact that he worked in Dryden on a Monday-Friday basis. According to Mr. Hurdon, when he was not out of town working or otherwise travelling for work purposes, he assumed day-to-day care and control of the children and responsibility for various household chores and tasks. He further deposes that he was the primary care parent for the children on weekends, including travelling extensively with them throughout North America and Europe while the children pursued their elite downhill skiing activities.

[15] Mr. Hurdon suggests that his role as a primary care parent to the children and his assumption of responsibility for most household responsibilities allowed Ms. Crooks to devote the bulk of her time and energy to her occupation as a financial and investment advisor with Scotia McLeod. Mr. Hurdon deposes that the very significant growth in Ms. Crook’s clientele, book of business and annual income throughout their common law relationship is a direct result of the supportive role he played in the relationship prior to separation.

[16] Ms. Crooks deposes that she was the primary care parent for the children as a result of the nature and location of Mr. Hurdon’s employment. The fact that Mr. Hurdon worked in Dryden during the week and was only at home in Thunder Bay on weekends resulted in her being responsible for caring for the children on a day-to-day basis the vast majority of the time.

[17] According to Ms. Crooks, she was required to employ third party assistance for childcare and household responsibilities precisely because of Mr. Hurdon’s absence from Thunder Bay. The parties employed a family friend for childcare in 2003/2004, employed a live-in nanny for the years 2006-2011, hired a tutor for the children as and when required and employed a cleaning lady on a weekly basis for house cleaning and laundry, according to Ms. Crooks.

[18] Ms. Crooks deposes that Mr. Hurdon has played no direct or indirect role in the development of her business or client management. Her employment with Scotia McLeod predated the parties’ common law relationship and, due to the nature of her employment, all interactions between her and her clients have always been strictly confidential, according to Ms. Crooks. Ms. Crooks deposes that she has kept her personal and business banking arrangements separate throughout the relationship and that she and Mr. Hurdon have had no involvement in the other’s employment or career paths during the relationship, but for her occasionally assisting Mr. Hurdon with accounting responsibilities, paying bills for his business and assisting with payroll.

[19] Mr. Hurdon deposes that it was not until late August 2019 that he and Ms. Crooks separated on a final basis. Mr. Hurdon points to this date as the date of separation because this was the point in time when Ms. Crooks told him that she was seeing someone else and was moving out of the jointly owned family residence with the children and into a newly purchased home. In the years immediately prior to this, the parties lived together under the same roof, represented themselves as a family and lived as a family during weekends, according to Mr. Hurdon.

[20] Ms. Crooks notes that Mr. Hurdon stated in his Application that July 8, 2016 was their date of separation. Ms. Crooks deposes that from this date forward, Mr. Hurdon returned to their jointly owned residence only on weekends and to spend time with the children. Further, when he did so he stayed in a guest room and that they did not have any form of a spousal relationship after July 8, 2016. Ms. Crooks points to a July 17, 2016, email to her from Mr. Hurdon in which he states, among other things, that “I think it’s better for us to be apart”, as corroborative of her position as to the date of separation.

[21] Ms. Crooks alleges that she alone paid the mortgage on 213 Summit and all other expenses associated with the home from July 2016 to August 2019 without contribution from Mr. Hurdon, together with all costs associated with the children, including significant s. 7 expenses, without contribution from Mr. Hurdon.

[22] In August 2019, Ms. Crooks purchased a home and moved into that home with the children and Mr. Hurdon assumed sole occupancy of 213 Summit. Between August 2019 and September 2020, Ms. Crooks contributed $1,500 per month toward the cost of maintaining 213 Summit, with Mr. Hurdon assuming responsibility for the balance of the costs. As of September 1, 2020, Ms. Crooks has deposited $3,000 per month into the parties joint account for the benefit of Mr. Hurdon and as her contribution toward the costs of 213 Summit.

[23] The parties agree that the children have resided almost exclusively with Ms. Crooks since August 2019. They also agree that the children are doing well, have a very good relationship with Mr. Hurdon and that they are at an age where they can decide when and how often they visit with him.

[24] The parties attended a case conference on September 30, 2020. The endorsement of Fitzpatrick J. includes the following notations:

1. The parties agree that [Mr. Hurdon] is entitled to an order for temporary spousal support at least as of April 2020. The parties disagree on the quantum of that support.
2. [Ms. Crooks] asserts that she is owed child support for the two children from July 2016. [Mr. Hurdon] asserts that he is entitled to spousal support from that date as well.
3. For the purposes of any temporary order the parties are content to have it limited to the period of April 2020 forward, without prejudice to their right to assert claims retroactively.

The Positions of the Parties

Mr. Hurdon

[25] Mr. Hurdon submits that he is entitled to spousal support on a compensatory basis. He further submits that the quantum of temporary spousal support awarded to him should be determined in accordance with the SSAGs and Ms. Crooks’ 2021 income, the most recent income information available for her. Mr. Hurdon suggests that temporary spousal support at the low end of the SSAG range is appropriate, retroactive to April 2020.

[26] Mr. Hurdon contends that he is entitled to have temporary spousal support determined in accordance with Ms. Crooks’ current income, while acknowledging that she has experienced a “surge” in her income post-separation, regardless of whether separation is determined to have occurred in 2016 as she contends, or in 2019 as he contends.

[27] Mr. Hurdon submits that he and Ms. Crooks were in a long-term, common-law relationship, equivalent to marriage, during which he sacrificed his career and income earning potential to care for the children, to maintain the jointly owned family home and to support Ms. Crooks. The role that he assumed responsibility for in their relationship provided Ms. Crooks the freedom to focus on her employment and to develop her current skills, experience and client base. Post separation, these same skills, experience and client base have resulted in Ms. Crooks’ very substantial current income that he should now be entitled to share in by way of spousal support, according to Mr. Hurdon.

[28] Mr. Hurdon further submits that the long-term common law relationship that he and Ms. Crooks enjoyed amounts to a joint family venture and, as a result of the breakdown of their relationship, Ms. Crooks has been unjustly enriched by her exclusive retention of the value of her book of business at Scotia McLeod.

[29] Mr. Hurdon submits that Ms. Crooks’ book of business is an asset and property created or enhanced within the joint family venture that is capable of being valued for the purposes of redressing the unjust enrichment resulting from the breakdown of their relationship. Mr. Hurdon contends that Ms. Crooks has an obligation, in advance of trial, to obtain a valuation of her book of business in order that the valuation of it is available at trial should he be successful in establishing a joint family venture.

[30] Mr. Hurdon contends that Ms. Crooks is not entitled to a temporary order compelling the immediate sale of the jointly owned family residence. Mr. Hurdon suggests that he has established a prima facie case or a triable issue as to the existence of a joint family venture and an obvious claim for retroactive and ongoing spousal support. Mr. Hurdon submits that a court can and should refuse a claim for the sale of a jointly owned family residence on an interim basis in such a situation.

[31] Mr. Hurdon notes that s. 34(1) of the Family Law Act (the “FLA”) provides the court with jurisdiction to order property transferred to a support recipient to satisfy a spousal support claim. Mr. Hurdon submits that he intends to invoke this jurisdiction at trial and that he will be prevented from doing so and therefore prejudiced if 213 Summit is sold prior to trial. Mr. Hurdon further contends that the sale of the 213 Summit will deprive him of a potential proprietary remedy to redress unjust enrichment, should he be successful in establishing a joint family venture at trial.

Ms. Crooks

[32] Ms. Crooks disputes that Mr. Hurdon has, or will at trial be able to establish, an entitlement to spousal support on a compensatory basis. Ms. Crooks contends that the record simply does not support Mr. Hurdon’s contention that he experienced any sacrifice to his education, training, employment or income earning potential as a result of anything he did during their relationship. In fact, the record supports the opposite conclusion, according to Ms. Crooks. She was the children’s primary caregiver throughout the relationship and has been their exclusive caregiver since separation. Mr. Hurdon and she pursued their own career paths independently of each other and unfettered by any childcare or relationship responsibilities.

[33] Ms. Crooks further submits that Mr. Hurdon did not and in fact could not assist her, directly or indirectly in the advancement of her career due the confidential nature of her work. Ms. Crooks contends that she and Mr. Hurdon intentionally kept their finances and investments separate, but for a joint “operating account” utilized to address their joint responsibilities pertaining to the family home.

[34] Given that Mr. Hurdon does not have an entitlement to spousal support on a compensatory basis, it follows, according to Ms. Crooks, that he is not entitled to share in her post-separation increases in income when determining the appropriate quantum of spousal support on a temporary basis.

[35] Ms. Crooks submits that there is no presumption of a joint family venture, even in the case of a long-term common law relationship. Ms. Crooks contends that Mr. Hurdon has failed to establish a joint family venture and/or unjust enrichment on a prima facie basis. Ms. Crooks submits that Mr. Hurdon has not directly contributed in any way to her training or education or the development of her book of business. Ms. Crooks notes that she was employed with Scotia McLeod in her current position prior to the start of the parties’ relationship.

[36] Ms. Crooks further contends that Mr. Hurdon never assumed an unequal share of domestic responsibilities to allow her to devote disproportionate time to the development of her career. She asserts that she was in fact the children’s primary caregiver and, when necessary due to Mr. Hurdon’s work related absences from the home, she hired third parties to assist with childcare and domestic responsibilities.

[37] Given that Mr. Hurdon is unable to establish a joint family venture and unjust enrichment and given that the parties are not married, and that Mr. Hurdon is therefore unable to claim an equalization of net family property, it is a pointless and expensive waste of time and money to order an expert valuation of her book of business at Scotia McLeod, even assuming that it has a discernable value, according to Ms. Crooks.

[38] Ms. Crooks submits that as a joint owner she is prima facie entitled to an immediate sale of 213 Summit. Ms. Crooks contends that Mr. Hurdon, as an unmarried common law spouse, has no right to claim temporary exclusive possession of 213 Summit because it is not a matrimonial home.

[39] Ms. Crooks suggests that it has now been three and one-half years since she and the children left the home. Mr. Hurdon has enjoyed de facto exclusive possession of the home since that time. Should Mr. Hurdon wish to remain in the home, Ms. Crooks submits that he should simply purchase her share of the equity in the home. Ms. Crooks submits that she has sufficient financial resources sufficient to satisfy Mr. Hurdon’s spousal support claims without compelling a transfer of her interest in 213 Summit to him in order to do so.

[40] Ms. Crooks submits that Mr. Hurdon has not contributed to the financial support of the children in any meaningful way since July 2016. Ms. Crooks contends that she has been almost exclusively responsible for their support, including significant s. 7 expenses, in the years since separation. Ms. Crooks suggests that any spousal support found owing by her to Mr. Hurdon should be offset by the retroactive child support and s. 7 expenses found owing to her by Mr. Hurdon.

Discussion

[41] As noted by the Ontario Court of Appeal in Sypher v. Sypher, [1986] O.J. No. 536:

Interim orders are intended to cover a short period of time between the making of the order and trial…the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.

At trial, after a full investigation of the facts, a trial judge may well come to the conclusion that a substantially different order should be made…The trial judge’s discretion is unfettered and his judgement will be rendered on a full investigation of the facts.

[42] In accordance with this observation, in my view several of the issues raised in the parties’ motions can be addressed summarily.

[43] The children are now 19 and 16 years old. They have resided exclusively with Ms. Crooks since August 2019 when she moved out of 213 Summit and into a newly purchased home. The parties agree that the children are of an age at which they can and do decide how frequently they visit with their father. The parties agree that the children have a very good relationship with their father. Both parties have expressed their satisfaction with the status quo. In my view, there is no compelling need for a temporary order as to decision-making responsibility or parenting time and I therefore decline to make such an order.

[44] The parties never married and 213 Summit is not a matrimonial home. There is no jurisdiction in the FLA to make an interim order for exclusive possession of 213 Summit, as requested by Mr. Hurdon. That request is dismissed.

[45] The record on these motions is devoid of evidence as to the fair market value rent for 213 Summit, historically or currently. As a result, I decline to make an order for occupation rent in favour of Ms. Crooks, as requested.

[46] Finally, in accordance with the case conference endorsement of Fitzpatrick J., any temporary order for child support, s. 7 expenses or spousal support will be retroactive to April 2020, without prejudice to the right of either party to argue that any support order in their favour be made retroactive to an earlier date.

The Date of Separation

[47] Mr. Hurdon submits that the date of separation was August 28, 2019, as this was the date that Ms. Crooks told him she was seeing someone else and the date she and the children vacated 213 Summit and moved into her current residence. He explains the insertion of July 8, 2016, as the date of separation in his Application as an “oversight” by his previous lawyer.

[48] Ms. Crooks maintains that the parties did in fact separated on July 8, 2016, with no reasonable prospect of resumption of cohabitation after that date. Ms. Crooks submits that Mr. Hurdon only attended 213 Summit after that date on weekends to visit with the children and that when he did so he stayed in a guest room. Ms. Crooks contends that Mr. Hurdon’s July 17, 2016, email to her is substantive proof that their relationship was over at that time.

[49] Neither party makes any reference to attempts at reconciliation between July 2016 and August 2019. Mr. Hurdon has failed to explain the meaning of his July 17, 2016, email to Ms. Crooks. In my view it appears obvious that he is telling Ms. Crooks that their relationship is over. She has deposed that she accepted this. In the absence of a compelling contrary explanation, I have no alternative but to accept the plain meaning of the words he used. His explanation for having stated in his Application that July 8, 2016, was the date of the parties’ separation appears to me to be somewhat revisionary.

[50] Based on the record before me and for the purposes of the motions before the court, I find that the parties separated on July 8, 2016.

Joint Family Venture and the Valuation of Ms. Crooks’ Book of Business

[51] Mr. Hurdon seeks an order requiring Ms. Crooks to have her book of business with Scotia McLeod valued by a Certified Business Valuator. In support of this request, Mr. Hurdon contends that the parties’ 18-year common law relationship (1998-2016) was a joint family venture, the termination of which has resulted in Ms. Crooks being unjustly enriched.

[52] Mr. Hurdon submits that the value of Ms. Crooks’ book of business must be available at trial in order for the appropriate monetary remedy to be ordered should he satisfy the trial judge that the relationship was a joint family venture.

[53] Absent a joint family venture, there is no reason to order the valuation of Ms. Crooks’ book of business. I accept the submission of Mr. Hurdon that Ms. Crooks’ book of business is an asset capable of being valued. I am not, however, persuaded on even a prima facie basis, that the parties’ common law relationship was a joint family venture, the termination of which has resulted in Ms. Crooks being unjustly enriched.

[54] In Kerr v. Baranow, 2011 SCC 10, at para. 87, Cromwell J. explained that when parties have been engaged in a joint family venture, and the claimant’s contributions to it are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions. Obviously, in order to apply this approach, it is necessary to first determine whether the parties have, in fact, been engaged in a joint family venture.

[55] Cohabiting couples are not a homogenous group. The analysis must take into account the unique circumstances of each particular relationship. There is no presumption of a joint family venture. The goal is for the law of unjust enrichment to attach just consequences to the way the parties have lived their lives. A joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence. The emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court’s view of how they ought to have done so: Kerr v. Baranow at para. 88.

[56] Cromwell J. directed trial judges undertaking this analysis to consider the evidence under four main headings: mutual effort, economic integration, actual intent and priority of the family. Cromwell J. further observed that there is inevitably overlap among factors that may be relevant under these headings and that there is no closed list of relevant factors: Kerr v. Baranow at para. 89.

[57] In considering the concept of mutual effort, I note that the parties’ relationship was relatively long term, that they chose to have and raise two children together and that during the relationship they purchased a family residence and recreational property and registered title jointly. I further note that considerable expense, mutual effort and mutual sacrifice was directed at supporting the children’s elite skiing activities.

[58] However, any mutuality of effort appears to have been limited to the above. Each of the parties has, throughout the entirety of the relationship, pursued different career paths without any material or substantive contribution by either of them to the career of the other.

[59] Based on the record before me, I accept the submission of Ms. Crooks that she was responsible for a greater portion of childcare responsibilities than Mr. Hurdon. For a considerable portion of the relationship, Mr. Hurdon’s occupation required him to reside away from Thunder Bay on a Monday-Friday basis, in Dryden and other locations. Therefore, Ms. Crooks, assisted by third parties, was for years the primary care parent.

[60] It follows that I reject Mr. Hurdon’s submission that the nature and extent of his role as a caregiver for the children allowed Ms. Crooks to devote a disproportionate amount of her time to the pursuit of her employment such that he has indirectly contributed to her very successful career. There is no evidence to support a suggestion that Mr. Hurdon directly contributed in any way to Ms. Crook’s education, training or any other aspect of her career development.

[61] There is also no evidence that Mr. Hurdon’s career path was in any way restricted or negatively impacted by any role he may have assumed during the relationship. In fact, I find the opposite to be true. He was able to work and travel extensively away from Thunder Bay because Ms. Crooks assumed the role of primary care parent and equal or primary responsibility for household management responsibilities and the jointly owned family residence.

[62] In considering the parties’ economic integration, as noted they own 213 Summit jointly and maintained a joint operating account to address payments related to the family home. Employment earnings were not comingled but for this joint family operating account. They also had a joint RESP account and a joint investment account with Scotia McLeod, the latter of which was apparently only used to “park” the proceeds from the sale of the jointly owned recreational property until division.

[63] Other than the above, the parties maintained separate investment accounts and RRSPs and appear to have addressed their own financial needs, and the significant financial needs of the children, individually rather than collectively or in an integrated fashion.

[64] Underpinning the law of unjust enrichment is an appropriate concern for the autonomy of the parties, and this is a particularly important consideration in relation to domestic partnerships. Domestic partners choose not to marry for a variety of reasons. One may be the deliberate choice not to have their economic lives intertwined. Therefore, in considering whether a joint family venture exists, the actual intentions of the parties must be given considerable weight. What must be determined as much as is possible on the evidence is the parties’ actual intentions, express or inferred, rather than the court’s view of what the parties ought to have intended: Kerr v. Baranow at para. 94.

[65] In considering all of the evidence on the motions before the court, I am prepared to infer that one of the reasons the parties chose not to marry was to avoid having their lives economically intertwined, except to the limited extent referred to above. It appears to me that the parties were careful to keep the professional aspects of their lives, their earnings and the accumulation of assets and wealth separate.

[66] For the purposes of this motion and in response to Mr. Hurdon’s request for an order requiring Ms. Crooks to obtain a valuation of her book of business with Scotia McLeod, I am not persuaded that the parties’ common law relationship amounts to a joint family venture. I therefore dismiss Mr. Hurdon’s request for an order compelling Ms. Crooks to have her book of business with Scotia McLeod valued.

Temporary Spousal Support

[67] Pursuant to the positions of the parties as expressed at the September 30, 2020 case conference, the temporary order for spousal support will be retroactive to April 2020, without prejudice to Mr. Hurdon’s right to seek retroactive spousal support to the date of separation. Ms. Crooks has paid Mr. Hurdon $3,000 per month from September 2020 to date for which she is entitled to a credit to be applied to her retroactive spousal support obligation, on a dollar-to-dollar basis.

[68] Ms. Crooks’ income has increased significantly following the date of separation, which I have found to be July 8, 2016, for the purposes of this motion. Ms. Crooks submits that Mr. Hurdon’s entitlement to spousal support should be found to be on a non-compensatory basis or means/needs analysis and not on a compensatory basis. She further contends that, as a result, the calculation of the quantum of temporary spousal support to be paid by her should not include her post-separation increases in income.

[69] I accept the submission of Ms. Crooks that Mr. Hurdon’s acknowledged entitlement to temporary spousal support is on a non-compensatory basis only. In my view, the preponderance of the evidence clearly establishes that his career and income earning capacity were not negatively impacted by any role he may have assumed within the common law relationship.

[70] While I have no doubt that Mr. Hurdon contributed significantly to the responsibilities of caring for the two children throughout the relationship prior to separation and that he was equally responsible for home management obligations, it does not follow, and I do not find, that his discharge of these responsibilities had any detrimental effect on his career advancement or that he has suffered any economic disadvantage as a result.

[71] Nor do I find that his role in caring for the children or in discharging other domestic responsibilities contributed in any material way to Ms. Crook’s career advancement or income earning potential or that his career was subordinated to that of Ms. Crooks.

[72] Ms. Crooks deposes that the bulk of her clientele has been acquired post separation. The increase in her income post separation is consistent with this assertion. At the time of separation (July 2016), Ms. Crooks had been with Scotia McLeod for approximately 20 years. I am persuaded that she acquired the skills, experience and reputation which have resulted in her significant post separation income increase independently of any direct or indirect contribution of Mr. Hurdon. It follows, in my view, that the calculation of the quantum of temporary spousal support to be paid by Ms. Crooks to Mr. Hurdon should not include her significant post separation increases in income: Thompson v. Thompson, 2013 ONSC 5500 at para. 103 (h), citing Spousal Support Advisory Guidelines, (Ottawa: Department of Justice, 2008), by Carol J. Rogerson and D.A. Rollie Thompson.

[73] Ms. Crooks deposes that she earned a gross income of $363,918.40 and a net/taxable income of $337,790 in 2016, the year of separation. For the purposes of the calculation of temporary spousal support to be paid by Ms. Crooks to Mr. Hurdon from April 2020 to date, I will use an income figure of $350,000 for Ms. Crooks and the actual incomes of Mr. Hurdon. Pursuant to these income figures, the SSAG calculations are as follows:

1. April 2020 to December 2020 – Ms. Crooks $350,000 – Mr. Hurdon $76,300 – SSAG range per Custodial Payor Formula - $4,005 - $5,340 per month (mid-point $4,673);
2. January 2021 to December 2021 – Ms. Crooks $350,000 – Mr. Hurdon $88,000 – SSAG range per Custodial Payor Formula - $3,846 - $5,128 per month (mid-point $4,487);
3. January 2022 to December 2022 – Ms. Crooks $350,000 – Mr. Hurdon $64,000 – SSAG range per Custodial Payor Formula - $4,213 - $5,617 per month (mid-point $4,915);
4. January 2023 forward – Ms. Crooks $350,000 – Mr. Hurdon $64,000 – SSAG range per Custodial Payor Formula - $4,213 - $5,617 per month (mid-point $4,915).

[74] Mr. Hurdon has not established entitlement to spousal support on a compensatory basis on these motions and has not established a pressing need for temporary spousal support on a non-compensatory basis. As a result, I am of the view that temporary spousal support should be awarded toward the low end of the range suggested by the SSAGs.

[75] For the period April 2020 to December 2020 (nine months), I order that Ms. Crooks pay to Mr. Hurdon temporary spousal support in the amount of $4,500 per month, or $40,500 in total.

[76] For the period January 2021 to December 2021 (12 months), I order that Ms. Crooks pay to Mr. Hurdon temporary spousal support in the amount of $4,250 per month, or $51,000.

[77] For the period January 2022 to December 2022 (12 months), I order that Ms. Crooks pay to Mr. Hurdon temporary spousal support in the amount of $4,500 per month, or $54,000.

[78] This result in spousal support arrears in the amount of $145,500 owing to Mr. Hurdon for the period April 2020 to December 2022, both months inclusive.

[79] I further order that Ms. Crooks shall pay to Mr. Hurdon temporary spousal support in the amount of $4,500 per month beginning January 1, 2023 until further order of the court.

Temporary Child Support and s. 7 Expenses

[80] The temporary order for child support shall be retroactive to April 2020, without prejudice to Ms. Crooks’ right to seek retroactive child support to the date of separation, namely July 8, 2016.

[81] Mr. Hurdon’s guideline child support obligation for April 2020 to December 2020 is calculated based on his 2019 income of $76,300 for two children, or $1,158 per month. His child support arrears for this period are therefore $10,422.

[82] Mr. Hurdon’s guideline child support obligation for the 12 months of 2021 is calculated based on his 2020 income of $88,000 for two children, or $1,326 per month. His child support arrears for 2021 are therefore $15,912.

[83] Mr. Hurdon’s guideline child support obligation for the 12 months of 2022 is calculated based on his 2021 income. For the purpose of this temporary order, I will use his November 23, 2021, year to date income figure of $64,000. His guideline child support obligation at this income figure for two children is $975 per month. His child support arrears for 2022 are therefore $11,700.

[84] I find that Mr. Hurdon’s child support arrears for the period April 2020 to December 2022 are $38,034.

[85] In the absence of current income information for Mr. Hurdon beyond his November 23, 2021, year to date income figure of $64,000, I order that he pay to Ms. Crooks temporary child support, based on income of $64,000, in the amount of $975 per month from January 1, 2023, until further order of the court. This is without prejudice to Ms. Crooks’ right to seek higher child support from January 1, 2023 forward based on Mr. Hurdon’s actual income for 2021 and 2022 and up to the date of trial.

[86] Ms. Crooks’ alleged s. 7 expenses for 2020 are nominal ($150). The alleged s. 7 expenses for 2021 are significant ($21,500). There is no evidence in the record pertaining to Ms. Crooks’ s. 7 expenses for 2022. Based on the parties 2021 incomes, Mr. Hurdon’s proportionate share of the s. 7 expenses for 2020 and 2021 is 20% or $4,330.

[87] I order that $4,330 be paid by Mr. Hurdon to Ms. Crooks as his proportionate obligation of s. 7 expenses for 2020 and 2021, without prejudice to Ms. Crooks right to claim contribution to her s. 7 expenses for 2022 and following at trial.

Appraisal and Sale of 213 Summit

[88] The law is well established that a joint owner of real property has a prima facie right to have the property sold and the proceeds divided. It is equally well established that the jurisdiction to deny a joint owner’s request for sale is narrow and a request for sale by a joint owner should only be denied if the sale is requested for malicious, vexatious or oppressive reasons.

[89] Ms. Crooks requests the home be sold because she and the children have lived elsewhere for over three years and she understandably wants her share of the equity from 213 Summit. Mr. Hurdon does not suggest that Ms. Crooks is motivated by malice in requesting a sale of 213 Summit. Nor does he suggest that she is acting vexatiously or oppressively in doing so.

[90] Mr. Hurdon wants to retain the home once all issues are resolved on a final basis. As I understand his argument, he is resisting the sale of 213 Summit at this stage of the litigation because the sale would defeat his ability to request that Ms. Crooks’ interest in the home be transferred to him to satisfy in whole or in part his unjust enrichment/joint family venture claim and his spousal support claim. In support of his position, Mr. Hurdon argues that a joint family venture exists. He also cites sections 9 and 34 of the FLA.

[91] I have previously determined that a joint family venture does not exist. Section 9 of the FLA provides a court with jurisdiction to transfer property to satisfy an obligation in regard to the equalization of net family properties. Section 9 of the FLA has no application to a case involving common law spouses.

[92] Section 34 of the FLA allows a court to order that property be transferred to a spousal support recipient in appropriate cases. In my view, this jurisdiction is rarely invoked and is properly utilized only when there is a real issue as to the willingness of a support payor to comply with a support order or when there are inadequate resources available to otherwise satisfy a large retroactive spousal support award. Neither are present in this case.

[93] I am not persuaded there is any compelling reason to deny Ms. Crooks her prima facie right to have 213 Summit sold at this time. In her submissions, she has indicated that she is prepared to allow Mr. Hurdon a reasonable period of time to purchase her interest in the equity in 213 Summit, as determined by a current fair market appraisal.

[94] I admit to some confusion as to the parties’ position about an appraisal of 213 Summit. In oral argument, both counsel referred to a Mr. Vecchio as having done a previous appraisal. Ms. Crooks submitted that he is the logical party to update the appraised value. Mr. Hurdon submitted that anyone other than Mr. Vecchio be retained to re-appraise 213 Summit. He suggests that Mr. Vecchio’s independence and or impartiality is somehow compromised because he regularly completes appraisals for Scotia Bank.

[95] However, the January 12, 2022, affidavit of Ms. Crooks contains a February 28, 2021, appraisal completed by Mr. Timothy Groulx of Lakewood Appraisal Services in Thunder Bay.

[96] I order that 213 Summit be appraised forthwith by Mr. T. Groulx of Lakewood Appraisal Services or by another certified appraiser as agreed upon by the parties and that the cost of the appraisal be shared by the parties equally. Mr. Hurdon shall have 60 days from the date of this completion of the new appraisal to decide if he wants to purchase Ms. Crooks’ one-half interest in the equity of 213 Summit. If he chooses to purchase Ms. Crooks’ interest in 213 Summit, that transaction shall be completed within 90 days of the completion of the new appraisal. Should Mr. Hurdon decline to purchase Ms. Crooks’ interest in 213 Summit, it shall be listed for sale forthwith, the first reasonable offer accepted, and the net proceeds of sale divided equally between the parties.

Summary

[97] I have declined to make a temporary order as to decision-making responsibility or parenting time in regard to the children. I have dismissed Mr. Hurdon’s request for a temporary order for exclusive possession of 213 Summit. I have dismissed Ms. Crook’s request for a temporary order requiring Mr. Hurdon to pay her occupation rent on account of his exclusive possession of 213 Summit. I have dismissed Mr. Hurdon’s request for an order compelling Ms. Crooks to obtain a valuation of her book of business with Scotia McLeod.

[98] I have ordered Ms. Crooks to pay retroactive spousal support to Mr. Hurdon from April 2020 to December 31, 2022 and have found that the arrears of spousal support as of December 31, 2022 are $145,500. Ms. Crooks shall receive a credit as against the arrears for the $3,000 per month she has paid to Mr. Hurdon since September 2020. The total amount to be credited to Ms. Crooks to December 31, 2022 is 28 months @ $3,000 per month or $84,000. I have ordered that Ms. Crooks pay ongoing temporary spousal support to Mr. Crooks in the amount of $4,500 per month beginning January 1, 2023.

[99] I have ordered Mr. Hurdon to pay retroactive child support to Ms. Crooks for the children from April 2020 to December 31, 2022. I have found that the child support arrears owing to Ms. Crooks for the period April 2020 to December 31, 2022, total $38,034. I have further ordered Mr. Hurdon to pay temporary child support to Ms. Crooks in the amount of $975 per month beginning January 1, 2023. I have ordered that Mr. Hurdon is to pay to Ms. Crooks $4,330 as his proportionate share of retroactive s. 7 expenses for 2020 and 2021. Ms. Crooks’ spousal support arrears shall be set-off as against the total of these two figures, that being $42,364.

[100] Pursuant to the above, Ms. Crooks’ net obligation for spousal support arrears as of December 31, 2022 is $19,136.

[101] Finally, I have ordered that 213 Summit be appraised forthwith and sold, subject to Mr. Hurdon’s right to purchase Ms. Crooks’ interest in 213 Summit as set out above.

Costs

[102] If the parties cannot agree on the costs of these motions, they shall make written submissions as to costs, not to exceed 5 pages, exclusive of their Bills of Costs/Costs Outlines.

[103] Mr. Hurdon’s costs submissions shall be filed within 14 days of the release of this decision; Ms. Crooks’ within 7 days thereafter.

The Honourable Mr. Justice J.S. Fregeau

Released: January 18, 2023