COURT FILE NO.: FS-20-18682-0000 DATE: 20231003 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Delicia Gaddon Applicant – and – Carlos da Silva Respondent

Counsel: Aida Pasha, for the Applicant Matthew Schleifer, for the Respondent

HEARD June 12, 13, 14 and 16, 2023; written submissions completed July 28, 2023

L. Brownstone J.

Introduction

[1] The applicant mother, Delicia Gaddon, and the respondent father, Carlos da Silva, lived together for six-and-one-half years. They are the parents of two children, a son born in 2014 and a daughter in 2016. On August 24, 2020, Ms. Gaddon took the children with her and left the home in which the family had been living.

[2] Ms. Gaddon started this application in September 2020. She claimed relief in respect of parenting time and decision-making, child and spousal support, damages for battery, and interests in the home in which the couple resided at 9 Guinness Avenue, as well as in Mr. da Silva’s RRSP and work pension. The litigation had a difficult course, but the parties were able to settle parenting time before trial. Mr. da Silva also began paying child support before trial, and the parties are agreed that Mr. da Silva shall continue to pay table child support, but they have not settled the issue of s. 7 expenses.

[3] Ms. Gaddon argues that she is entitled to a share of Mr. da Silva’s property on the bases of resulting trust in respect of the home at 9 Guinness, or unjust enrichment as a result of any or all of the following: unpaid domestic services; unrecognized contribution to the acquisition and maintenance of 9 Guinness; and the existence of a joint family venture leading to Mr. da Silva’s accumulation of wealth, which she claims is a product of their joint efforts.

[4] The basis of Ms. Gaddon’s spousal support claim is unclear but appears to be both needs-based and compensatory. She seeks $150 monthly in support. Mr. da Silva denies that Ms. Gaddon is entitled to support, but claims that even if she is, based on the applicable calculations he owes no monthly support.

[5] Mr. da Silva served Ms. Gaddon with a Request to Admit, which Ms. Gaddon did not answer in the time prescribed by the Family Law Rules or the later deadline of March 14, 2023 set out in the Trial Scheduling Endorsement Form. At the exit pre-trial conference held on May 17, 2023, Kristjanson J. set out a procedure that Ms. Gaddon was required to follow if she intended to seek to set aside the admissions she was deemed to have made due to her failure to respond to the Request to Admit. She did not follow that procedure. On the morning the trial began, she brought a motion to withdraw the admissions she was deemed to have made by her failure to respond to the Request to Admit. For oral reasons released on the first day of trial after hearing argument, the written version of which I append to these reasons as Schedule A, I denied her request for relief in respect of the admissions. I permitted her to file her affidavit evidence, despite the fact that she had not complied with the deadlines established in the Trial Scheduling Endorsement Form (45 days before trial) or the endorsement of Kristjanson J. from the exit pre-trial conference on May 17, 2023 (May 23, 2023), only to the degree that the affidavit did not conflict with the admissions deemed to have been made by operation of the Request to Admit. I made similar rulings in respect of the affidavits of the other witnesses. Portions of those affidavits were also struck as irrelevant.

[6] The admissions from the Request to Admit put an end to Ms. Gaddon’s claim for damages for battery. She was deemed to have admitted that there was never any violence during the relationship, that Mr. da Silva was never violent with her or the children, and that he did not use physical discipline with the children. Her claim for damages for battery is dismissed.

[7] The issues that remain to be determined are:

1. Does Ms. Gaddon have interests in Mr. da Silva’s property on the basis of a resulting trust or unjust enrichment, including as a joint family venture? If so, what is the appropriate remedy?
2. Does Mr. da Silva owe Ms. Gaddon spousal support? If so, what is the quantum and duration of support?
3. Does Mr. da Silva owe Ms. Gaddon for section 7 expenses already incurred? How are s. 7 expenses to be managed going forward?

[8] For the reasons that follow, I find that Ms. Gaddon has no claim to Mr. da Silva’s property. I find that Ms. Gaddon is entitled to spousal support on both needs-based and compensatory bases from August 24, 2020 to March 13, 2023, but that the amount of spousal support payable is zero. I find that Mr. da Silva is required to contribute to s. 7 tutoring expenses incurred, in an amount proportionate to the parties’ income from January 1, 2022 to March 14, 2023, and to contribute to 50 per cent of tutoring expenses and other s. 7 expenses as may be agreed between the parties from March 14, 2023 forward.

Issue one: Does Ms. Gaddon have interests in Mr. da Silva’s property on the basis of a resulting trust or unjust enrichment, including as a joint family venture? If so, what is the appropriate remedy?

Positions of the parties

[9] Ms. Gaddon bases her property claims on the principles of resulting trust in respect of 9 Guinness, and unjust enrichment leading to damages, a constructive trust or compensation for a joint family venture in respect of 9 Guinness and Mr. da Silva’s pension assets.

[10] With respect to 9 Guinness, she claims that when Mr. da Silva’s father found out she was pregnant, he offered to give to her, or to both her and Mr. da Silva, a gift of $50,000 toward the $350,000 down payment for 9 Guinness. The father made this offer, Ms. Gaddon states, because he felt sorry that she did not have money to put toward the property and wanted her to feel that it belonged to her as well as to Mr. da Silva. Ms. Gaddon also claimed that she contributed household items to 9 Guinness, and that all of her earnings were available to Mr. da Silva for him to decide how to use. She claimed Mr. da Silva had her bank card and made decisions about the use to which her funds were put. She claims to have lived meagerly in order to provide for the needs of the family. Further, Ms. Gaddon claims to have taken on the larger share of looking after the children, to have taken on the majority of the domestic duties, and to have been responsible for the “social give and take” relating to Mr. da Silva’s extended family. She claims that Mr. da Silva advised her that 9 Guinness was theirs jointly, that they would be married, and that she need not worry that her name was not on title.

[11] Mr. da Silva gives a very different version of events. He states that: a) the parties’ finances were never mingled; b) they had very different approaches to money - he was a saver and Ms. Gaddon a spender; c) as his last marriage had ended quite recently, he did not want to get married again and never told Ms. Gaddon otherwise; d) he purchased the property at 9 Guinness from the proceeds of sale of his matrimonial home from his previous marriage; and e) he paid the carrying costs of the home and most household expenses. He denies that there was any plan for his father to give him and Ms. Gaddon, or just Ms. Gaddon, a gift toward the down payment of 9 Guinness and that his father did not do so. He denies that Ms. Gaddon has any entitlement to any of his property.

Governing principles and analysis

[12] The applicant bases her claims on the principles of both resulting trust and unjust enrichment.

[13] While she makes a claim on the basis of a resulting trust, she argues no specific facts or law in support of her bare claim. A resulting trust is intended to return property to its true or beneficial owner when a gratuitous transfer has occurred: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 16 and 17. There is no longer a “common intention resulting trust” in family law: Kerr, at para. 29. Here, there was no gratuitous transfer of property. There is no suggestion that the property was in Mr. da Silva’s name without consideration: Lazier v. Mackey, 2012 ONSC 3812. The doctrine of resulting trust simply has no application to the facts of this case and I dismiss Ms. Gaddon’s resulting trust claim.

[14] The requirements for finding unjust enrichment are well-known: one party must be enriched, the other must suffer a corresponding deprivation, and there must be no juristic reason therefor: Kerr, at para. 3. The onus of showing the requirements are met is on the person making the claim. In family law cases, the enrichment and corresponding deprivation often take the form of unpaid domestic labour or unrecognized contributions to the acquisition, maintenance or improvement of property. In the case of a joint family venture, the unjust enrichment arises because the parties have together worked to amass wealth, but legal title to the wealth is held solely or disproportionately by one party.

[15] If unjust enrichment is found to exist, the court considers the appropriate remedy. The sufficiency of a monetary remedy must be considered first, before considering the imposition of a constructive trust: Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522.

[16] Ms. Gaddon claims to have made contributions by way of a down payment, other financial contributions and domestic labour to Mr. da Silva’s accumulation of property, focused largely on the property at 9 Guinness.

The $50,000 Down Payment

[17] Ms. Gaddon advances a claim that Mr. da Silva’s father contributed $50,000.00 to the down payment of the home on her behalf. Ms. Gaddon testified that Mr. da Silva’s father promised to give her, or her and Mr. da Silva together, $50,000 so that she could contribute to the down payment of 9 Guinness and could feel that the home belonged to her as well as to Mr. da Silva. She states this conversation happened within about a month of meeting Mr. da Silva’s father, when he found out she was pregnant. She acknowledged on cross-examination that she was never given a cheque for $50,000. At one point she saw a cheque, not filled out, that Mr. da Silva’s father said he would make out to her when she saw the house they were going to buy. She acknowledged she never saw any cheque made out to Mr. da Silva from his father. She conceded she did not know if his parents gave Mr. da Silva money around the time he bought 9 Guinness, but claimed that it was promised to her. She testified that although she was a bit sad when Mr. da Silva purchased the house in his name only, Mr. da Silva told her that “my house is your house”, and she loved, trusted and believed him. She testified that he told her three times they would get married.

[18] Mr. da Silva’s evidence is that he separated from his previous spouse in about 2011, and that after their matrimonial home was sold, the proceeds of sale remained in trust until they finalized their separation agreement in 2013. In addition to those proceeds, he had funds from an equalization payment. He did not receive any money from his parents to assist with the purchase of 9 Guinness.

[19] Mr. da Silva’s father testified that he did not intend to provide, did not promise to provide, and did not provide, any money to either Ms. Gaddon or Mr. da Silva for the purchase of 9 Guinness.

[20] By virtue of the Request to Admit, Ms. Gaddon is deemed to have admitted, and I find as a fact, that the funds for the down payment of 9 Guinness came from the proceeds of sale of Mr. da Silva’s previous matrimonial home.

Financial Contributions

[21] Ms. Gaddon claimed to have made various financial contributions to the family, swearing that she lived meagerly while contributing heavily to the home during the time she was employed, and later supported herself on the child tax benefits she received. She claims to have sacrificed her earnings and capacity to earn for the benefit of the relationship and to build family assets. Ms. Gaddon claimed, on cross-examination, to have made financial contributions to repairs for the house. At questioning, however, she had given the opposite response. When confronted with this inconsistency during cross-examination, she attempted to explain that she had meant, at questioning, that she did not herself perform the repairs, but that she did contribute to them financially. However, the questioning transcript is clear. The question was, “Did you contribute to the cost of repairs and improvements to 9 Guinness?” and in her answer, Ms. Gaddon stated that she did not contribute to repairs but she bought other things for the house. She also gave evidence that she brought items of furniture or décor to the home with her, and that she spent somewhere between $4,000 and $12,000 on items for the home. She stated that while they lived together, Mr. da Silva took her debit card and controlled the purchases, using it for groceries and household items. She acknowledged that Mr. da Silva also contributed significantly to furniture and other household items.

[22] Mr. da Silva’s evidence was that he used his income to support the children, and that Ms. Gaddon used the child tax benefit for herself. He denied ever asking her for, or controlling, her debit card.

[23] The documentary evidence provided sheds little light on Ms. Gaddon’s financial contributions, although it does show the elimination of Ms. Gaddon’s credit card debt during the early years of the relationship, with debt rising again in later years. Ms. Gaddon’s counsel argues that the fact that her credit card debt was paid off in 2015 supports her contention that she lived meagerly thereafter. What it does not support, however, is an argument that she contributed to household expenses or a combined venture in any substantial way.

[24] By virtue of the Request to Admit, Ms. Gaddon is deemed to have admitted, and I find as facts, that Mr. da Silva paid the carrying costs associated with 9 Guinness, that Ms. Gaddon did not contribute to the mortgage payments, utilities, cable, taxes or other carrying costs, and that the parties kept their finances separate.

[25] With respect to Mr. da Silva’s SunLife pension, Ms. Gaddon is deemed to admit and I find as a fact that Mr. da Silva earned that pension through his current employment, and started contributing to it in 2014. All contributions to the pension were made by Mr. da Silva and by matching contributions provided by his employer. Ms. Gaddon did not make any contributions to the pension and the parties did not discuss it.

[26] Similarly, with respect to his RRSP, Ms. Gaddon is deemed to admit and I find as a fact that Mr. da Silva has been responsible for all contributions to his RRSP and that Mr. da Silva never discussed making contributions with Ms. Gaddon.

Domestic Labour

[27] Ms. Gaddon stated that she cleaned snow at 9 Guinness when Mr. da Silva did not do it, and that she did the mopping. Her evidence is that she provided significant hours of care and support for the children. Mr. da Silva gave evidence that he did maintenance, grass-cutting, snow removal, roof repair, painting and other maintenance. Based on the Request to Admit, I find as a fact that both parties took on primary caregiving responsibilities for the children.

[28] Resolving the issue of whether Mr. da Silva was enriched and Ms. Gaddon correspondingly deprived requires the court to assess the credibility of the relevant witnesses. Assessing credibility requires the court to consider many factors, and to do its best to explain “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events": R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. Credibility is not an all-or-nothing assessment. The court may accept some, none or all of a witness’ evidence: R. v. D. R., 1996 SCC 207, [1996] 2 S.C.R. 291, at para. 93. It is true that the assessment of credibility is a “holistic undertaking, incapable of precise formulation”: Dunford v. Hamel, 2018 ONSC 3427, at para. 20. However, in the 2021 decision of McBennett v. Danis, 2021 ONSC 3610, at para. 41, Chappel J. lists various factors to be considered in undertaking the assessment, of which I find the following to be particularly relevant in this case:

a. inconsistencies in the evidence, which may exist between a witness’ evidence and various other things – the evidence of other credible witnesses, the documentary evidence, or the witness’ previous evidence; b. whether the evidence is inherently improbable and implausible? That is, is the evidence “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?": Faryna v. Chorny, 1951 BCCA 252, [1952] 2 DLR 354 (B.C.C.A.) at p. 357; c. Whether there is other independent evidence that confirms or contradicts a witness’s testimony, or, I would add, lack of independent evidence where some might be expected; d. Whether a witness is straightforward or “evasive, strategic, hesitant or biased”; e. Whether a witness is able to make concessions, or gives self-serving evidence.

[29] I find Ms. Gaddon’s testimony on financial issues to be, in many respects, not credible. It is implausible that Mr. da Silva’s father, within one month of meeting her and knowing that his son was dealing with the financial aftermath of a first divorce, would offer her $50,000 so that she could own part of a house to which she was otherwise unable to contribute. Mr. da Silva’s parents are not people of significant means - Ms. Gaddon herself described them as “simple people”, testifying she and Mr. da Silva would hide eating in restaurants from his parents because they did not like to spend money on things like meals out. Further, there is no independent evidence of funds being provided; she herself acknowledges she never saw, much less received, a cheque. I found her to be argumentative at times, such as when confronted with her questioning answer about contributing to repairs, which was obviously contradictory to evidence she had just given in the witness stand. I find that she did not contribute financially to repairs of 9 Guinness. I draw these conclusions taking into account that Ms. Gaddon testified through an interpreter, which can make giving and receiving evidence less fluid. I find that the problems with her evidence on financial matters were problems of substance.

[30] I found Mr. da Silva’s evidence on financial matters to be generally credible. He was willing to make concessions, such as that he gave Ms. Gaddon’s sister reduced rent because he took the money in cash and therefore did not have to pay tax on it. He acknowledged that Ms. Gaddon both purchased and brought with her household items for 9 Guinness. I find that he downplayed his feelings about Ms. Gaddon, and his desire to build a life with her. For example, he stated that the reason he agreed that Ms. Gaddon could move in with him once he purchased 9 Guinness was so that he could be part of their child’s life - he could not have the child without having her. Yet, he invited her to home showings with him, and text messages exchanged reveal that he was clearly emotionally invested in the relationship.

Conclusion on the issue of unjust enrichment

[31] Applying the law to the facts I have found, I find that Ms. Gaddon’s claim fails on the first branch of the unjust enrichment analysis. Mr. da Silva has not been enriched by Ms. Gaddon. The evidence establishes that he alone purchased the property at 9 Guinness, and that he alone financed the carrying costs and the costs of repairs to the property. Ms. Gaddon benefitted from living in the property, and she has not shown that any contributions she made to household items or groceries rose to a level that enriched Mr. da Silva and deprived her. No evidence was adduced as to what became of the household items, such as linens and kitchen utensils, that Ms. Gaddon provided. Both parties claim to have paid for groceries and I find that both parties did so. I do not find that Ms. Gaddon covered those or other expenses to a degree that spared Mr. da Silva an expense he otherwise would have had to undertake: Kerr, at para. 38.

[32] Nor do I find that Ms. Gaddon has suffered a corresponding deprivation. The evidence demonstrates that she had debts owing at the time the relationship commenced, and she acknowledges that those were paid off early in the relationship. While the debt rose again towards the end of the relationship, there is no evidence that such debt was incurred to the benefit of Mr. da Silva or otherwise in support of a joint family venture. The evidence establishes, and I find as a fact, that the parties kept their finances separate. The parties agree that Ms. Gaddon bought some gifts for Mr. da Silva. Mr. da Silva does not appear to have appreciated the gifts, and Ms. Gaddon does not understand why. Mr. da Silva considers gifts to be wasteful. While this issue demonstrates their different approaches to money, it does not assist Ms. Gaddon’s claim. To the degree that she provided gifts to Mr. da Silva, he has a juristic reason to retain them. Her contributions were not sufficiently substantial to establish any enrichment or corresponding deprivation.

[33] Conferring a benefit does not by itself constitute unjust enrichment: Belvedere v. Brittain Estate, 2009 ONCA 1, 94 O.R. (3d) 655, at para. 46. In balancing the benefits conferred and received in this case, I find that there is no justifiable reason to provide compensation to Ms. Gaddon: Belvedere, at para. 46. I find she had no reasonable expectation of compensation: Feaver v. Curno, 2010 ONSC 4009, at para. 199. I find that Mr. da Silva has not unfairly benefitted at the expense of Ms. Gaddon. The appreciation of an asset does not create unjust enrichment: Kyriacou v. Zikos, 2021 ONSC 7589, at paras. 109-110.

[34] Having found no unjust enrichment, I do not need to consider whether the parties were engaged in a joint family venture, which is a question of remedy if unjust enrichment is found to exist: Peters v. Swayze, 2018 ONCA 189, at para. 11. However, as the applicant provided case law on this issue only, I will address it.

[35] I find that the parties were not engaged in a joint family venture. The evidence is clear that their finances were separate. The Request to Admit establishes that Ms. Gaddon studied to undertake insurance sales, but was secretive and did not reveal to Mr. da Silva whether she completed her studies or earned any income through such sales. Mr. da Silva came into the relationship recently separated, and with assets. Ms. Gaddon entered the relationship with debt. They moved in together soon after meeting, as Ms. Gaddon was pregnant. The parties differ on whether there was talk of marriage. I find that question to be immaterial. Even if there was such talk, it does not change the facts that the parties kept their finances separate, that they did not speak about finances, and that Mr. da Silva contributed to parenting responsibilities and provided for the housing and child-related expenses. The facts do not support that the parties were engaged in any joint efforts linked to the accumulation of wealth. Rather, the evidence demonstrates that the parties moved into a home paid for by Mr. da Silva, kept their finances separate, lived largely off of Mr. da Silva’s income, and shared in parenting responsibilities. There was no mutual effort, economic integration, or intent to embark on a joint family venture toward a future together: Reiter v. Hollub, 2017 ONCA 186, at paras. 8-9, 33.

[36] I therefore find no unjust enrichment and dismiss Ms. Gaddon’s property claims.

Issue two: Is Ms. Gaddon entitled to spousal support and if so, for what duration and in what amount?

[37] Ms. Gaddon claims spousal support of $150 per month from the date of separation until March of 2023. She does not specify the basis for her claim or the calculation. Her entire spousal support argument was this: “Applicant is only claiming arrears in spousal support at the rate of $150 per month from the date of separation until March of 2023. She is seeking this amount due to the fact that care for the child by third parties would have cost much more to the parties during that period.” Presumably this is a reference to s. 33(9)(l)(v) of the Family Law Act, R.S.O. 1990, c. F3.

[38] Ms. Gaddon’s claim stops in March of 2023 because she was deemed to admit as of March 14, 2023 that she has relevant experience as a PSW and a deli counter worker, and can find and maintain steady full-time employment. There are no issues that prevent her from returning to work full-time.

[39] Based on the Request to Admit, the following admissions, relevant to spousal support, are deemed to have been made and I find them as facts:

a. When the parties met, Ms. Gaddon was working as a Personal Support Worker full time. Her earnings as a PSW were comparable to Mr Da Silva’s earnings. b. Both parties took on primary caregiving responsibilities for the children during the relationship; c. Mr. da Silva encouraged Ms. Gaddon to go back to work or upgrade her training, but she was reluctant to return to work; d. In October 2015, when their first child was just over one year old, Ms. Gaddon worked part-time as a PSW, on weekends only, until June 2016, shortly before their second child was born. e. In 2017, Mr. da Silva encouraged Ms. Gaddon to return to work but she did not; f. In the spring of 2018, Ms. Gaddon began studying to sell insurance, but she did not provide disclosure or details regarding her studies or income earned from selling insurance.

[40] Ms. Gaddon’s evidence is that when their son was young, she stayed home to care for him, as childcare was expensive. She stated that she tried to leave their son with Mr. da Silva during weekend shifts, but that Mr. da Silva “Tylenoled” their son so her ability to take weekend shifts was reduced to times when Mr. da Silva’s parents could be involved in caring for their son. She later was stressed and anxious about leaving the children with Mr. da Silva.

Governing law and principles

[41] There is no question that Ms. Gaddon is a spouse within the statutory definition.

[42] Section 30 of the Family Law Act requires each spouse to provide support for him or herself and for the other spouse, in accordance with need, to the extent that the spouse is capable of providing support.

[43] The guiding principles for support entitlement under the Family Law Act are set out in s. 33(8), which provides:

(8) An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse; (b) share the economic burden of child support equitably; (c) make fair provision to assist the spouse to become able to contribute to his or her own support; and (d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home)

[44] Subsection 33(9) provides guidance to the court in determining amount and duration of support, as follows:

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant’s and respondent’s current assets and means; (b) the assets and means that the dependant and respondent are likely to have in the future; (c) the dependant’s capacity to contribute to his or her own support; (d) the respondent’s capacity to provide support; (e) the dependant’s and respondent’s age and physical and mental health; (f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together; (g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures; (h) any legal obligation of the respondent or dependant to provide support for another person; (i) the desirability of the dependant or respondent remaining at home to care for a child; (j) a contribution by the dependant to the realization of the respondent’s career potential; (k) Repealed: 1997, c. 20, s. 3 (3). (l) if the dependant is a spouse, (i) the length of time the dependant and respondent cohabited, (ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation, (iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents, (iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents, (v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support, (vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and (m) any other legal right of the dependant to support, other than out of public money.

[45] With respect to the needs and means of the parties, Mr. da Silva argues that he does not have the means to pay spousal support. As a modest income earner who is paying support for his children and rent for himself, he states that he has no remaining funds for support.

[46] When considering the factors in s. 33(8) and the facts of this case, I find that Ms. Gaddon has established entitlement to spousal support for the period of time in question. While Mr. da Silva cared for the young children when Ms. Gaddon was working weekends, she is the one who was off work for periods of time with both children. Because Ms. Gaddon had periods of time off work to care for the children, there is also entitlement on a compensatory basis. However, due to the effect of the Request to Admit, I find that her compensatory entitlement is small. Both parties assumed primary caregiving responsibilities, and despite being encouraged to return to work, she did not do so.

[47] In terms of returning to work, I find that Ms Gaddon did take some steps to prepare herself for work that would enable her to work during hours that were more compatible with her childcare duties than PSW shifts (for example, the insurance studies, and further studies she engaged in post-separation). Mr. da Silva’s Request to Admit specifically states that she “did not need to work to support herself,” that he used his income to support the children and that she used the child tax benefit to support herself. There was evidence that the parties’ son has some special needs to which Ms. Gaddon has been attending, with professional input. The evidence demonstrates that Ms. Gaddon’s income for 2020 was $8,410, for 2021 it was $8,637, and for 2022 $6885 (although Mr. da Silva claims her Income in 2022 is at least $31,676 taking into account OSAP grants). There has been a clear drop in her standard of living post-separation and she has experienced economic hardship. I find that for the period in question, from August 20, 2020 to March 14, 2023, Ms. Gaddon has also established a needs-based entitlement to spousal support.

[48] In considering the amount of spousal support, the reality of Mr. da Silva’s means comes into focus. The applicant has provided no basis to support her claimed figure of $150 per month, other than that the parties saved childcare expenses during that time period, which she claims would have cost more than the amount she is claiming. She provides no reason for not applying the Spousal Support Advisory Guidelines. None of the exceptions to the application of those Guidelines applies in this case. The respondent has included, appended to his closing argument, calculations that show that the amount of spousal support to be paid for the period in question, even assuming entitlement, is zero. I reach the same result in performing the DivorceMate calculations. Ms. Gaddon provides no other calculations.

[49] Therefore, while I find that Ms. Gaddon has a spousal support entitlement for the period in question (August 24, 2020 to March 14, 2023), the amount of spousal support payable is zero.

Issue three: Does Mr. da Silva owe Ms. Gaddon for past section 7 expenses? What is the approach to s. 7 expenses moving forward?

[50] Ms. Gaddon seeks Mr. da Silva’s contribution for Kumon and A-plus tutoring expenses incurred for the children. Mr. da Silva objects on the grounds that he did not agree to these expenses in advance and they are too expensive. Ms. Gaddon attributes her children’s improvement at school to Kumon attendance; Mr. da Silva attributes it to their return to in-person schooling. Going forward, Ms. Gaddon seeks to have tutoring expenses considered necessary and reasonable s. 7 expenses, as one child is on the autism spectrum and she herself has language difficulties which she feels will make it difficult for her to support the children adequately, without tutoring assistance, as they get older. She first accessed tutoring at the suggestion of their son’s teacher. The children switched from Kumon to A-plus tutoring on June 30, 2022. Although Ms. Gaddon preferred Kumon, as A-plus is on-line, A-plus is markedly less expensive.

[51] Ms. Gaddon also asks the court to order that the children be permitted one extra-curricular activity per year, up to a maximum expense of $1,000 per party.

[52] Under s. 7 of the Child Support Guidelines SOR/97-175, special or extraordinary expenses may be ordered to be paid, taking into account the necessity and reasonableness of the expense in relation to the means of the parents or spouses and the child’s best interests. The onus is on the party seeking contribution to demonstrate that the expense falls within one of the categories under s. 7, and that they are reasonable and necessary, considering the parties’ financial circumstances: Park v. Thompson (2005), 2005 ONCA 14132, 77 O.R. (3d) 601 (C.A.).

[53] Both parties testified about the children’s tutoring expenses. It was clear from the evidence that Ms. Gaddon tried different tutoring options for the children. She determined that Kumon worked best, but subsequently enrolled them in A-plus, an on-line tutoring service, as it was cheaper. She put the children on a waiting list for free services from the government, but never moved from the waiting list to receipt of services. While the tutoring was expensive, she was of the view that it was of central importance to the children’s academic success. Given their ages, the fact that they were affected by disruptions in schooling caused by the pandemic, the son’s particular circumstances and the suggestion of his teacher, I find these expenses to be appropriate extraordinary educational expenses. I also find that the amounts claimed exceed expenses that Ms. Gaddon can reasonably cover, taking into account her income and the child support that is and was available to her. I find that, while Mr. da Silva is of modest means, the amounts claimed are reasonable given their importance to the children and the other assets available to Mr. da Silva. I make these findings in respect of tutoring expenses incurred to date as well as tutoring expenses to come.

[54] Ms. Gaddon paid $1,740 to Kumon for the year 2022. She testified the children attended Kumon for 6 months. Commencing June 30, 2022, when the children moved to A plus tutoring, the monthly cost is $154.00 per month for three years for tutoring for both children. Based on their respective incomes, Mr. da Silva shall pay 85 per cent of this cost from January 1, 2022 to March 14, 2023, and 50 per cent of the cost thereafter.

[55] Ms. Gaddon also seeks Mr. da Silva’s contribution for an expense incurred when the parties’ son was assessed by a psychologist in 2021, at a cost of $225.00. Under s. 7(1)(g) of the Guidelines, and given the son’s special needs and the means of the parties, I find this to be a reasonable special expense and Mr. da Silva shall reimburse Ms. Gaddon for 85 per cent of that cost.

[56] Given the means of the parties and the need for tutoring, I am not prepared to order that Mr. da Silva pay $1,000 per year for other unspecified extra-curricular activities. To the degree the parties may agree on other section 7 expenses, they shall share those expenses on an equal basis.

Disposition

[57] I make the following orders:

a. The applicant’s claims for damages for battery are dismissed. b. The applicant’s property claims are dismissed. c. The applicant is entitled to spousal support from August 24, 2020 to March 14, 2023, but the amount payable is zero. d. Commencing on the 1st day of October, 2023 and on the first of every month thereafter, Mr. da Silva shall pay table child support for the two children of the marriage, Sebastian Ezequiel Gaddon da Silva born September 13, 2014 and Sabrina Clotilde Gaddon da Silva born June 20, 2016, in the amount of $738.00; e. Unless the order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the order shall be paid to the Director, who shall pay them to whom they are owed; f. For as long as child support is to be paid, the payor and recipient must provide updated income disclosure to the other party each year, within 30 days of the anniversary date of this order, in accordance with section 24.1 of the Child Support Guidelines. This shall be used together with the imputed income of paragraph 1 above in calculating each parties’ income; g. With respect to special and extraordinary expenses, Mr. da Silva shall reimburse Ms. Gaddon for 85 percent of the cost of Kumon and A-plus tutoring incurred between August 24, 2020 and March 14, 2023, and 50 per cent of those costs, or such other reasonable tutoring costs as shall be incurred, after March 14, 2023; h. Mr. Gaddon shall reimburse Ms. Gaddon for 85 per cent of the cost of the psychological assessment for Sebastian undertaken in 2021; i. The parties shall share other agreed-upon section 7 expenses going forward on an equal basis.

[58] The parties are encouraged to agree on costs of the trial. Should they be unable to do so, the respondent may provide costs submissions of no more than seven pages double spaced, along with a bill of costs and any offers to settle, within 14 days. The applicant shall have 14 days to respond, with the same page limits. There shall be no reply submissions without leave. These submissions may be sent to my judicial assistant at linda.bunoza@ontario.ca.

L. Brownstone J

Schedule A – Oral Ruling Delivered June 12, 2023

The trial began this morning with consideration of two requests made by the applicant. First, she seeks the court’s permission to withdraw admissions she has been deemed to have made due to her failure to respond to the Respondent’s Request to Admit as required under Rule 22(4) of the Family Law Rules and under the terms ordered in the Trial Scheduling Endorsement Form (TSEF). She also seeks to file her affidavit of her evidence in chief, despite her failure to comply with more than one deadline by which she was to have served and filed that affidavit.

Background

The TSEF was completed on November 17, 2022. On that same date, trial dates were set to commence today. The TSEF also provided, among other things, that the applicant’s evidence in chief would proceed by affidavit. Her affidavit was to be provided 45 days before trial. Requests to admit were to be served 120 days before trial commencement, and responses were to be served 90 days before trial. Therefore, responses to requests were due by March 14, 2023.

The exit trial management conference was held on May 17, 2023. Kristjanson J. noted that the applicant had failed to comply with several terms of the TSEF. The respondent served a request to admit, dated February 8, 2023, which contained statements of facts. The applicant did not respond to that request or provide her proposed exhibits by March 14, 2023. The applicant did not provide her affidavits for witnesses, including her own affidavit, by April 28, 2023. She did not provide an updated financial statement by May 13, 2023. In addition, the applicant has two unpaid costs orders.

Kristjanson J. ordered in relevant part:

[10] Leaving to the trial judge’s discretion the effect on the Applicant’s case at trial, including (i) whether the Applicant will be allowed to call any evidence in chief or (ii) whether the Respondent’s request to admit will be set aside, I make the following orders:

(a) … (b) … (c) Applicant to serve the affidavits for all witnesses, originally due April 28, 2023, by Tuesday May 23 (d) … (e) Applicant intends to bring a motion at the outset of trial pursuant to rule 22(5) of the Family Law Rules to set aside the deemed admissions in the Respondent’s Request to Admit, to which she failed to respond. The Applicant is to serve her Notice of Motion and all affidavit evidence explaining her failure to respond, the deemed admissions she seeks to set aside, and the basis for setting aside the deemed admissions, by Monday May 26th. The Respondent may cross-examine the affiants at trial, and they should all be available for the trial Monday June 12 at 10 a.m. The Respondent is to advise by May 31 if he intends to cross-examine all or any of the affiants at trial. The Respondent, if he chooses to file responding evidence, may serve a responding affidavit by June 1. His affiant(s) too are to be made available for cross-examination on June 12 at 10 a.m. Each party shall provide a legal brief in the Trial documents, with hyperlinked cases, on the sole issue of the test for withdrawal of deemed admissions pursuant to FLR R. 22(5). Subject to the trial judge’s discretion, (a) the motion shall be argued at the outset of trial, and (b) all time required by both sides for cross examination and to argue the Applicant's motion to be subtracted from the time allotted to her for trial. (f) {referred to motion materials if applicant intended to seek to adduce in evidence text messages from December 2013 to December 2014}, (g) The parties shall upload to Caselines the affidavits serving as examination in chief, opening statements, orders being sought, hyperlinked list of cases to be relied on at trial, updated financial statements, and Trial Records 5 days before trial. The additional affidavits to be filed by the applicant re phone records and withdrawing deemed admissions, together with the hyperlinked legal brief regarding the test for withdrawing admissions, shall also be clearly labelled and uploaded to Caselines five days before trial.

I required counsel to attend a conference for trial management purposes on Friday June 9, 2023 (the last business day before trial). By that time, no motion had been brought in respect of setting aside the Request to Admit; no affidavit had been filed in respect of the applicant’s evidence in chief; The trial record had been served but not uploaded to CaseLines; and the costs orders remained unpaid.

At that attendance, Applicant’s counsel advised that she had been busy on a series of trials and that, as a sole practitioner, the deadlines had been unattainable. I indicated that trial would begin today with argument on procedural matters, including

1. any requests the applicant has for the court to admit affidavit evidence of the applicant;
2. any requests the applicant has for the court to hear a motion to set aside deemed admissions in the request to admit;
3. any relief the respondent seeks in respect of the above issues.
4. arguments, if any, of both parties regarding the admissibility of either or both of the applicant’s other two proposed witnesses.

Over the weekend, the applicant served and uploaded a Notice of Motion and supporting affidavit seeking to submit her affidavit evidence in chief at trial, and to withdraw admissions deemed to have been due to her failure to respond to the Request to Admit, among other relief. She also uploaded a proposed Response to the Request to Admit.

Evidence regarding delay in the provision of the Affidavit of her evidence in chief

In her affidavit filed in support of her motion, the applicant provided two reasons for her delay in submitting the trial record and affidavit containing her evidence in chief.

First, she obtained, on consent, an endorsement from Davies J. permitting her to obtain text messages from Freedom Mobile from 2013-2014. She states that these messages were required in order to complete her trial record and affidavit. The affidavit states that through inadvertence, she did not have the consent order issued until May 16, 2023. She learned on May 23, 2023 that the records were no longer available. She is critical of Freedom Mobile not having told her earlier that the records were no longer available.

The second reason she provides in her affidavit for the delay in filing her trial record and affidavit evidence in chief is that her counsel was involved in another trial in Oshawa from May 19, 2023 to June 2, 2023. On May 22, 2023 her counsel prepared the affidavits of her two other witnesses. There was no time to prepare hers. They then could not prepare her affidavit until June 9, because the applicant wanted her sister with her to ensure she understood all of the evidence properly.

As noted, her affidavit was due April 28, 2023. A second deadline, without determining the issue of admissibly at trial, was set by Kristjanson J. for May 23, 2023. The applicant chose to provide her other witnesses’ evidence by that date, and not her own. Her proposed affidavit was uploaded to CaseLines on the weekend before trial. A legal brief for this motion was never provided.

Evidence explaining the delay regarding the Motion to withdraw the admissions

The applicant explained her delay in responding to the respondent’s request to admit in two ways:

1. When she received the Feb 8, 2023 request to admit, she “was certain” that the parties were very close to settlement.
2. She hoped to settle the matter and had to focus her attention on her children.

At the hearing of the motion, applicant’s counsel advised the court that she had recently been advised that she suffers from ADHD and dyslexia. No evidence about this was before the court.

Analysis and conclusion

The applicant relies on the test set out in Ramoutar v. Ramoutar, 2019 ONSC 2448 as the test to withdraw admissions. She also relies on the court’s power to extend timelines on terms.

The Ramoutar test requires the applicant to show three things, first that the proposed evidence sets out triable issues; second, that the admission was a mistake and the party offers a reasonable explanation for the change of position, and third that any prejudice caused can be cured or compensated for in costs.

I am prepared to assume that the issues of property and spousal support are triable issues for the purpose of this motion. However, I find the applicant fails on the requirements of a reasonable explanation and the ability to cure prejudice by a costs order.

The explanations provided, set out above, are not reasonable explanations for delay.

The endorsements in this matter show a continued pattern of the applicant’s failure to meet court-ordered deadlines. This has been noted in the endorsements of Davies J and Kristjanson J. It resulted in an order of costs by Davies J. In her October 31, 2022 endorsement, attached as an exhibit to the Applicant’s affidavit on this motion, Davies J noted:

[7] Very little was accomplished between October 5, 2022 and October 31, 2022. Ms. Gaddon did not produce an updated financial statement as ordered. She did not comply with my disclosure order. And she did not respond to Mr. da Silva's efforts to settle the parenting and support issues.

[8] Ms. Pasha sent Mr. Schleifer the outstanding disclosure during the trial management conference….

[11] Because Ms. Pasha did not communicate with opposing counsel or the court in a timely fashion, today's conference was largely wasted on a contested adjournment request. I reluctantly agreed to adjourn the conference to allow one more opportunity for the parties to settle the parenting and support issues.

With respect to her affidavit and Freedom Mobile, I note that the endorsement of Davies J dated November 4, 2022 stated as follows:

No later than November 1, 2022, Ms Gaddon shall prepare a draft order for Freedom Mobile to produce Ms Gaddon’s text messages from October 1, 2013 to December 31, 2014 for Mr. Da Silva's approval. Once approved by Mr. Da Silva, Ms Gaddon shall send the draft order to my assistant, (name and email provided) for my review and signature.

Had the applicant complied with the deadline as required by Davies J., or followed up in a timely way with respect to the order, the unavailability of the messages would have been revealed to her in November, 2022, permitting her more than enough time to prepare her evidence and meet her obligations set out in the TSEF.

Similarly, the evidence and submissions that the applicant had little time to devote to this matter and that counsel was involved in other matters are insufficient explanations. Court time is a limited resource. Participants have a duty to comply with orders to make proper use of that resource. Other parties are waiting to obtain dates for their own matters. The system simply cannot operate with any fairness to its many participants if its orders are not complied with. The applicant had many months and many chances to comply with court orders and court-imposed deadlines. She has not done so. The manner in which she proposes to proceed, and the reasons given for proceeding this way, are unfair to the respondent and to the court’s processes.

With respect to prejudice, the applicant suggests that the respondent suffers no prejudice because all of the facts were known to him before receiving her motion record or affidavit. This misunderstands the purpose of Requests to Admit and affidavit evidence. The respondent is entitled to know, before the weekend before his Monday trial, the case he is facing. He was entitled to prepare for his trial on the basis of the evidence as it stood at the time all deadlines were missed.

The applicant also argues that any prejudice to the respondent in permitting her to respond to the request to admit and file her affidavit evidence could be cured or compensated for in costs. In her reply submissions at the hearing of the motion she suggested that that any prejudice could also be compensated for by an adjournment.

The position that costs could compensate for prejudice has two fatal problems. First, it disregards the issue of fairness in the trial process. Deadlines are made so that there is not “trial by ambush”. The respondent was entitled, under the order of Kristjanson J., to file responding evidence on the applicant’s motion to set aside her deemed admissions and to prepare cross-examinations for today. Those entitlements were removed by the applicant’s conduct in her late service. They cannot be rectified by costs.

Second, the applicant’s affidavit evidence explaining her failure to pay costs ordered to date is that she is a single mother of limited means. That is, even if a costs award were ordered, it appears that she has little intention or ability to pay it. She argues that if she succeeds on her property claim in this hearing, costs will be paid from those funds. In effect, she asks that the respondent’s costs be borne by him, payable if he ultimately loses the case. The respondent is not required to take a speculative position on the applicant’s case.

With respect to an adjournment, the respondent points out that this matter was commenced three years ago, and that there has been a pattern of the applicant failing to abide by deadlines. He is entitled to have his case heard on the merits and has waited years for this to happen. He notes that any adjournment would have to be accompanied by an order that the applicant pay costs thrown away, and for the reasons above, he would not be able to obtain those costs. I agree with both of those submissions and reiterate the importance of proper use of court resources, as noted above.

Order

I therefore order as follows:

1. The applicant’s request to bring a motion on short notice to seek leave of the court to withdraw the admissions of fact deemed to have been made in respect of the respondent’s request to admit is denied.
2. The facts in the respondent’s request to admit are deemed to be true for purposes of this proceeding.
3. The applicant may file an affidavit of her evidence in chief ONLY insofar as that evidence does not contradict the facts contained in the respondent’s request to admit, which are deemed to be true.