COURT FILE NO.: FC-22-55 DATE: 20231101

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

B.G. Applicant – and – H.R. Respondent

Counsel: Andreus R. Snelius, for the Applicant Respondent - Self-represented and not in attendance at trial

HEARD: September 26 and 27, 2023

Justice D.A. Broad

Background

[1] The applicant and the respondent commenced living together in September 2012 and separated on November 1, 2021. They are the parents of two daughters M.J.G. date of birth [omitted] age 10 and M.R.G. date of birth [omitted] age 8. For the sake of clarity, the applicant will be referred to in these Reasons as the "father" and the respondent referred to as the "mother." The names of the parties and the children are initialized in these Reasons to protect the privacy of the children in light of the nature of some of the evidence described below. The parties’ and the children’s names and the children’s dates of birth shall be set out in the formal Order to be issued.

[2] Prior to separation the parties resided together with the children at a residence municipally known as 215 East 33rd Street, Hamilton, Ontario (the “family residence”). Title to the family residence was registered in the mother’s name alone. The family residence was sold by the mother on December 17, 2021, generating net proceeds of sale of $480,498.47 after payment of the outstanding mortgage on the property and closing costs. The father has received $25,000 to date from the proceeds of sale and the further sum of $120,000 is currently being held in trust by his counsel pending the outcome of the trial.

Pleadings

[3] The father commenced his application on April 20, 2022 in which he claimed, inter alia:

(a) sole decision-making responsibility for the children; (b) that the primary residence of the children be with him; (c) child support; (d) an order declaring that the mother’s interest in the family residence was subject to a trust in his favour by way of constructive trust in and/or unjust enrichment; and (e) an order that the mother not deplete the net proceeds of sale of the family residence.

[4] In her answer filed September 15, 2022 the mother sought, inter alia:

(a) sole decision-making responsibility for the children; (b) parenting time with the children; and (c) child support.

Existing temporary parenting order

[5] The existing temporary parenting order is that of MacLeod, J. dated May 19, 2023, made in writing pursuant to the father’s motion, the mother having filed no responding material, providing that:

(a) the residence of the children be with the father; (b) the father have sole decision-making responsibility for the children; (c) the mother be prohibited from communicating directly or indirectly with the father and the children pending further order of the court; and (d) the mother to pay child support in the amount of $884 per month commencing May 1, 2023

Circumstances of the mother’s non-attendance at trial

[6] The mother did not attend on the first Trial Management Conference on May 26, 2023. Madsen, J. put the trial of the matter to the September 26, 2023 sittings and directed that a further Trial Management Conference be held on June 30, 2023 to permit one further opportunity for the mother’s participation.

[7] At the second Trial Management Conference on June 30, 2023 the mother again failed to attend. Bale, J. ordered the mother, if she intended to participate at the scheduled trial, to provide a witness list, to bring herself into full compliance with all outstanding orders for disclosure, serve an updated and sworn Financial Statement and serve a brief of any documentation she intends to rely upon at trial.

[8] The matter was called for trial on September 20, 2023. The mother was not in attendance notwithstanding the trial coordinator having emailed her on September 18, 2023 at 4:20 PM advising of the date and time for commencement of the trial. In light of the earlier endorsement directing the matter to be placed on the September 26, 2023 trial sittings I adjourned the trial peremptory against the mother to that date and directed that my endorsement be emailed to the mother at her last known email address.

[9] The mother failed to attend the trial on September 26, 2023 and did not respond to the email from the trial coordinator advising of the adjournment to that date, nor did she communicate with the father’s counsel.

[10] The mother was paged in the courthouse at 10:45 AM on September 26, 2023 with no response. The trial proceeded in the absence of the mother on that date.

Relief sought by the father at trial

[11] At trial father filed a draft a final order setting forth the relief that which he sought, including the following:

(a) the residence of the children shall be with the father; (b) the father shall have sole decision-making responsibility with respect to the children; (c) the mother be prohibited from communicating directly or indirectly with the father and the children; (d) commencing October 1, 2023 the mother pay child support to the father in the amount of $755 per month based on the mother having annual imputed income of $50,000; (e) the father and the mother share section 7 special and extraordinary expenses proportionate to their income, based upon the father’s income of $70,000 and the mother’s imputed income of $50,000, the father’s share being 58.3% in the mother’s being 41.7%; (f) the father has a 50% interest in the net proceeds of sale of the family residence. The father having already received $25,000 of the said proceeds, the balance of $215,249 owing to him shall be satisfied by the release of $120,000 held in trust by the father’s lawyer and the mother forthwith pay to the father $95,249.

Evidence

[12] The father testified to the following:

(a) he is 35 years of age and has a grade 12 education. He has been employed as an auto assembly worker with Ford Motor Company of Canada since September, 2014. (b) the mother is 34 years of age and holds a diploma in practical nursing and is a Registered Practical Nurse. She had previously been employed on a full-time basis at St. Joseph’s Villa but as of the date of separation was not employed, having gone on leave and then terminated for failure to comply with the employer’s order for vaccination; (c) the parties shared parenting responsibilities for the children during cohabitation. They each dropped the children off at daycare as needed, took the children to medical and dental appointments and were both active in the children’s activities. The mother had no complaints with respect to his parenting and he had no complaints regarding hers. He described her as a good mother prior to separation. (d) In 2020 the parties began homeschooling the children during the Covid 19 pandemic, sharing the responsibilities, which his shift work schedule permitted; (e) the family residence was purchased for $275,000 in approximately 2015 and was financed by a $264,000 mortgage. Prior to separation, the parties agreed that the family residence be sold with the intention of moving the family to a smaller community. The mother entered into an agreement of purchase and sale for the sale of the family residence on October 18, 2021; (f) on November 1, 2021, while the father was at his brother’s home delivering material, the mother left with the children. Three or four days later the mother dropped the kids off with the father and later in November she returned to the home where she stayed until the closing of the sale transaction on December 17, 2021. Following closing the mother informed the father that she was taking the children to her sister’s home in eastern Ontario. The father did not see the children until December 25, 2021 and had them in his care for nine days thereafter; (g) in the New Year, the parties adopted a de facto “week about” arrangement for parenting time with the children. On February 25, 2022, the father was informed by the mother’s sister and father of excessive drug use and alcohol consumption by the mother in the presence of the children and he withheld the children from the mother due to his concerns about the mother’s reported behaviour. The Children’s Aid Society became involved but did not take any action; (h) on March 15, 2022, the mother attended at the father’s residence and retrieved the children. The father attempted to communicate with the mother afterwards but she did not respond. From March 15 to April 2, 2022 the father did not have the children in his care nor any access to them by telephone or otherwise; (i) on the evening of April 2, 2022 the father was contacted by telephone by the Ontario Provincial Police reporting that the mother had been involved in a serious motor vehicle accident with the children in the car and that she had been arrested for impaired driving. The father attended at the scene of the accident to retrieve the children and take them to his mother’s home where he resided; (j) the father commenced the proceeding on April 20, 2022. The mother retained counsel on June 1, 2022. The parties were unable to negotiate a schedule for parenting time until the Case Conference on July 28, 2022 when they entered into temporary without prejudice Minutes of Settlement providing for an equal parenting time schedule for the month of August and joint decision-making. The Minutes also provided for the sum of $20,000 to be paid to the father from the proceeds of sale of the family home and for the sum of $120,000 to be placed in trust by the mother with her lawyer pending further court order. The father had previously received $5000 from the proceeds following closing. The moneys paid into trust with the mother’s lawyer was subsequently transferred by agreement to the father’s lawyer in trust; (k) the mother failed to exercise her parenting time for 5 of the 15 days provided in the Minutes of Settlement; (l) no extension of the parenting time schedule was agreed to by the parties after August. The father enrolled the children in school commencing September 2022 in his catchment area in the village of Jarvis. The mother continued to reside in an apartment in Hamilton; (m) no agreement was reached between the parties respecting parenting at the first settlement conference on September 15, 2022; (n) a second stage Settlement Conference was held on February 9, 2023. During the period from September 15, 2022 to February 9, 2023 the mother’s parenting time with the children was very sporadic. She would call the father on weekends to ask for time with the children either from Friday to Saturday or from Saturday to Sunday. The father drove the children to the mother’s residence as her driver’s license was suspended; (o) at the Settlement Conference on February 9 the parties consented to a without prejudice order of Bale, J. providing for primary residence of the children to be with the father pending further agreement or court order and for the mother to have parenting time with the children for two consecutive weekends in every four-week period; (p) the mother paid $800 by e-transfer to the father for child support on February 10, 2023, however she has made no further support payments; (q) on February 11, 2023, the father drove the children to the mother’s residence. At approximately 6:30 PM he started receiving “Facetime” calls, first from the children, and then from the mother who began complaining and yelling at him. She continued calling throughout the evening, became increasingly incoherent and the father could tell that she was intoxicated. The mother told the father “if you try to take the kids I will kill them” and “try me [expletive omitted] I will do it. I will do it;” (r) the father took a video on his phone of the mother making the threats and called 911 to the Haldimand County Police. The father drove immediately to the mother’s residence where he met with police officers and showed them the video that he had taken. The police arrested the mother in connection with her death threats against the children; (s) the father retrieved the children, who were emotionally distraught, and took them to his home; (t) the father described the children’s emotional state. They were terrified that the mother would show up at the home and displayed fear and panic. Through Victim’s Services the father was able to arrange 10 counselling sessions for each child; (u) since the threat incident, the children never talk about their time with their mother and never express a desire to see her; (v) by letter dated March 23, 2023 the Children’s Aid Society of Hamilton wrote to the father expressing confidence that he will continue to make choices that are in the best interests of the children and that will keep them safe. The Society advised, among other things, that it would be closing its file as there was no further role for it in the matter; (w) the father was advised by the police that the mother had been released on an undertaking not to communicate with him or with the children and was subsequently advised that she had been charged with a breach of her undertaking; (x) the father produced an email from a worker with the Victim/Witness Assistance Program dated September 7, 2023 outlining the status of the charges against the mother which comprised two counts of uttering threats to cause death or bodily harm and failure to comply with a probation order from the incident in February, failure to comply with an undertaking and failure to comply with a probation order from an incident on March 22, 2023, and two counts of failure to comply with an undertaking from an incident on June 2, 2023. The email advised of the mother’s next court date of October 11, 2023 for a guilty plea. No particulars of the proposed plea were provided; (y) the father and the children reside with his mother in a five-bedroom home in Nanticoke, Ontario. His mother is 70 years of age and his father is deceased. Each of the children have their own bedroom and they love living in their grandmother’s residence; (z) the children also see their maternal grandparents quite frequently as well as the mother’s siblings any time they ask; (aa) the father has primary responsibility for the children who are transported to school by bus. The father takes the children to their activities including gymnastics and water activities in the park in the summer; (bb) the children are receiving appropriate medical and dental care and are doing very well at school as exemplified by their June 2023 report cards; (cc) the father’s annual income was reported on his Notices of Assessment at $57,918 in 2022, $63,822 in 2021 and $73,643 in 2020. His income varies from year to year due to frequent periodic layoffs. He produced a pay stub showing his year-to-date income to September 3, 2023 in the sum of $38,559.70; (dd) the mother failed to produce full financial disclosure as ordered, including an up-to-date Financial Statement and proof of income for 2021, 2022 and year to date in 2023. Her notice of assessment for 2019 disclosed annual income of $54,664 and for 2020 the sum of $56,843. (ee) the father has applied for the Child Tax Benefit on three occasions but has not been approved and to his knowledge the mother continues receive it; (ff) the mother produced her first payslip dated July 6, 2022 in respect of her employment as a registered practical nurse at Hamilton Health Sciences Corporation, showing an hourly rate of $30.55; (gg) as indicated previously, the family residence was purchased by the mother for $275,000. Although not clear, it is evident that the purchase took place sometime in 2015. The down payment of $15,000, as well as additional closing costs for land transfer tax and lawyers fees, was paid from the mother’s bank account; (hh) following the purchase the father made the mortgage payments, including municipal taxes, until June 2020 when the mortgage was refinanced and the mother took over the payments. The father paid for the house insurance throughout which was consolidated with the insurance on two vehicles; (ii) the parties shared living expenses including for groceries, utilities, and gasoline for their vehicles on an ad hoc basis without any accounting between them and without disagreement prior to separation; (jj) when the family residence was purchased, it needed updating and immediately upon taking possession the parties jointly decided to carry out extensive renovations, both interior and exterior; (kk) the labour for the renovations was primarily performed by the father and continued throughout the time that the family resided in the home. The father was busiest with renovations in 2020 and 2021; (ll) the majority of the material costs for the renovations was paid for by the father; (mm) the father produced statements showing the following payments by him (i) Home Depot from November 13, 2015 to March 25, 2021 totaling $8209.67; (ii) Lowes for the period February 1, 2016 to October 14, 2021 in the sum of $4935.72; (iii) from his RBC account to Home Hardware from June, 2019 to October, 2020 in the sum of $2719.18; and (iv) to Turkstra Lumber from October, 2015 to June, 2020 in the sum of $1166.64; (nn) the father made additional expenditures toward the renovations at Canadian Tire which he estimated at another “couple of thousand.” He also paid a friend of his brother for the cost of faucets for the bathrooms; (oo) the father produced bank records showing e-transfers back and forth between himself and the mother for the period November 30 to December 17, 2020 in varying amounts; (pp) prior to separation the parties saw themselves as a family working together for their future. Prior to completion of the renovations to the family residence the father did not think or believe that he was performing the labour and contributing towards the material costs as a gift to the mother; (qq) the father and mother each referred to the family residence as “our house” or “our home” prior to separation; (rr) the father plans to continue to live with the children at his mother’s residence. His mother is happy to have the opportunity to see her grandchildren every day. The children love residing at their grandmother’s residence; (ss) the father expressed fear associated with the prospect of the mother having parenting time with the children but stated that he would facilitate the children speaking with her if they wanted to do so.

Discussion

Parenting

[13] As indicated above, the parties never married. The applicable legislation is therefore the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the "CLRA" or the "Act").

[14] Amendments to the CLRA came into force on March 1, 2021. The amendments change the terminology, expand on the matters to be considered and otherwise codify the legal principles developed over time in the case law.

[15] Sections 24 and 28 of the CLRA deal with parenting orders. I have had regard to all of the relevant provisions of these sections, with particular reference to the following provisions which are especially pertinent to the issues to be determined in the case at bar:

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

(3) Factors related to the circumstances of a child include,

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(b) the nature and strength of the child's relationship with each parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

(d) the history of care of the child;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(g) any plans for the child's care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person's decision-making responsibility, parenting time or contact with respect to the child.

28 (1) The court to which an application is made under section 21,

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

18 (1) In this Part,

“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct;

(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,

(c) threats to kill or cause bodily harm to any person.

[16] Based upon the evidence led by the father at trial I am satisfied that it is appropriate and in the best interests of the children to continue on a final basis the temporary parenting order of MacLeod, J. dated May 19, 2023 that the residence of the children be with the father and that he have sole decision-making responsibility with respect to the children, that the mother be prohibited from communicating directly or indirectly with the father or the children pending further order of the court.

[17] I find that the mother put the children at risk on April 2, 2022 by driving with the children late in the evening while impaired by alcohol. While driving impaired she was involved in a serious accident which led to the children being exposed to her being arrested by police.

[18] Even more concerning was the mother’s conduct on February 11, 2023 when she again became intoxicated while the children were in her care. In the presence of and within the hearing of the children the mother made verbal threats to kill the children. The children were again required to witness their mother being arrested by police as a consequence. I find that the mother’s conduct and verbal expressions caused the children serious emotional harm and upset.

[19] I accept the submission of the father’s counsel that the mother’s true intentions in making the threats against the children’s lives are not relevant. The court was not provided with evidence of whether the mother intended to follow through on the threats. She did not avail herself of the opportunity to attend at trial to offer any explanation for her conduct and what her true intentions were. Without this evidence it is not possible for the Court to conclude that the threats were simply statements of an impaired person who would not have carried through with them. Based upon the evidence there are serious concerns respecting the mother’s mental state and what she might do in the future should the children be entrusted to her care.

[20] Moreover, apart from her conduct described above, the mother’s parenting time with the children has been sporadic and largely driven by her own needs and preferences rather than the needs and best interests of the children. Even when the parties agreed on and equal parenting time regime for a 30-day period in August, 2022, the mother missed one-third of the 15 days allocated to her.

[21] I find that the father has demonstrated care and responsibility towards the children. The evidence indicated that they are flourishing at school, are receiving appropriate medical and dental care, are involving in extra-curricular activities such as gymnastics and are comfortable and cared for in the home where they reside with the father and the paternal grandmother. The father encourages contact between the children and their maternal grandparents and the mother’s siblings.

[22] By contrast the mother has acted irresponsibly in her dealings with the children.

[23] I find that parenting time to the mother and contact between the mother and the children are not in the children’s best interests.

[24] The final order proposed by the father and found by the court to be in the children’s bests interests does not close the door forever to the re-establishment of contact and parenting time between the mother and the children. This would require evidence of a material change in circumstances supporting such a change as being the best interests of the children, including demonstration of the mother’s stability and an appropriate parenting plan.

Child Support

[25] The father relies upon paragraphs (a) and (f) of subsection 19(1) of the Federal Child Support Guidelines (the “Guidelines”) to support his claim that an annual income of $50,000 should be imputed to the mother. Those paragraphs read as follows:

19(1) the court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of the child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;...

(f) the spouse has failed to provide income information when under a legal obligation to do so.

[26] Some of the principles which apply where a party seeks to impute income to the other party for the purpose of determining the quantum of child support pursuant to the Guidelines were usefully reviewed by Dennison, J. in the case of Saeed v. Khalid, 2020 ONSC 939 at paras. 96 and 98-102 as follows:

Sections 15-20 of the Federal Child Support Guidelines are the starting point for the calculation of child support. The goal is to ascertain current income of the payor spouse.

Section 19 of the Federal Child Support Guidelines permits the court to impute income that the court thinks is appropriate in the circumstances, including circumstances where the spouse has failed to provide financial disclosure when under a legal obligation to do so: s. 19(1)(f).

Determining the amount of income to impute to a party is a matter of discretion for the trial judge. The only limitation on the discretion of the court is that there must be some basis in the evidence for the amount that the court has chosen to impute: Drygala v. Pauli (2002), 61 O.R. (3d) 711 (Ont. C.A.), at para. 43.

Although the onus is on the party seeking to impute income, once the party has established a prima facie case, the onus shifts to the person seeking to defend the income position the payor takes. The reason for this is that the information that can actually determine the person's income is in their possession and no one else's. It is not fair to expect the person seeking to impute income to bear the entire onus of proving the imputation of income: Lo v. Lo, 2011 ONSC 7663 (Ont. S.C.J.), at para. 57.

Where a party fails to provide income information, s. 23 of the Federal Child Support Guidelines allows the court to draw an adverse inference and to impute an income to the spouse that the court considers appropriate based on the evidence available: Jassa v. Davidson, 2014 ONCJ 698 (Ont. C.J.), at para. 35; Smith v. Pellegrini, at para. 34; Sharma v. Sharma, 2018 ONSC 862 (Ont. S.C.J.), at para. 71.

[27] In the case of Zawalreh v Alkhoury, 2021 ONSC 7956 A. Himel, J. stated as follows with respect to paragraph 19(1)(a) at paras. 59-60.

The leading case that defines intentional under-employment in Ontario is Drygala v. Pauli. "Intentionally" means a voluntary act. The person required to pay support is intentionally under-employed if that person chooses to earn less than he or she is capable of earning. The person required to pay support is intentionally unemployed when he or she chooses not to work when capable of earning an income.

When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors include age, education, experience, skills and health of the parent. The availability of job opportunities, number of available work hours (in light of the parent's overall obligations including educational demands), and a reasonable hourly rate may be considered.

[28] In the case of Michaud v. Kasali, 2016 ONSC 443 McGee, J., noted at paras. 49 and 51 that, although the amount to be imputed must be grounded in the evidence, the evidentiary basis may be less than satisfactory, provided that it is sufficient for a court to judicially exercise its discretion.

[29] In the case at bar, I find that there is a sufficient evidentiary basis for the court to judicially exercise its discretion to impute income to the mother in the amount proposed by the father being the sum of $50,000 per annum.

[30] The mother is a Registered Practical Nurse and has worked extensively in that field. Based upon the income disclosure provided by the mother she had an annual income of $54,664 in 2019 and $56,843 in 2020. Her most recent disclosure of her payslip from Hamilton Health Sciences in June 2022 indicated that she was earning $30.55 per hour which would represent $55,601 per annum based upon a 35-hour work-week.

[31] I find that the father his discharged the onus on him of showing that income should be imputed to the mother at not less than $50,000, which would call for child support under the Guidelines of $755.00 per month.

[32] I find that section 7 expenses should be apportioned between the parties at 58.35% to the father based on an annual income of $70,000 and 41.7% to the mother based upon an annual income of $50,000.

Proceeds of sale of the family residence

[33] The father’s claim for an equal interest in family residence and the net proceeds of its sale is based upon the doctrine of unjust enrichment. Counsel for the father made reference to the following passage from Supreme Court of Canada’s decision in Kerr v. Baranow, 2011 SCC 10 at paragraph 60:

At least one other basis for an unjust enrichment claim is easy to identify. It consists of cases in which the contributions of both parties over time have resulted in an accumulation of wealth. The unjust enrichment occurs following the breakdown of their relationship when one party retains a disproportionate share of the assets which are the product of their joint efforts. The required link between the contributions and a specific property may not exist, making it inappropriate to confer a proprietary remedy. However, there may clearly be a link between the joint efforts of the parties and the accumulation of wealth; in other words, a link between the "value received" and the "value surviving", as McLachlin J. put it in Peter, at pp. 1000-1001. Thus, where there is a relationship that can be described as a "joint family venture", and the joint efforts of the parties are linked to the accumulation of wealth, the unjust enrichment should be thought of as leaving one party with a disproportionate share of the jointly earned assets.

[34] It is evident from the evidence that the accumulation of the parties’ wealth in the case at bar was almost, if not exclusively, represented by the family residence which was registered in the mother’s name.

[35] The mother contributed the down payment of $15,000 and for five years after the purchase of the residence until June 2020 the father made the mortgage payments, which included municipal taxes, and paid the house insurance which was linked to the parties’ car insurance. Commencing almost immediately following the acquisition of the residence the parties carried out extensive renovations to it. The father testified to his provision of extensive time and labour to the renovations as well as considerable contribution to the cost of materials. In my view it impossible to allocate with any degree of precision the relative financial contributions of the parties to the acquisition, maintenance and improvement of the family residence. The parties shared their living expenses as well as the expenses associated with the improvement of the residence and although they maintained separate bank accounts to which their respective earnings were deposited, they routinely transferred moneys between their accounts as needs and circumstances warranted.

[36] Throughout the relationship father always earned more income than the mother. The mother would not have accumulated wealth represented by the residence on her income alone but rather a substantial contribution from the father contributed to the accumulation of that wealth.

[37] In my view the financial relationship between the father and the mother can clearly be described as a “joint family venture” and that an equal distribution of the net proceeds of sale of the family residence would be equitable and would avoid leaving the mother with a disproportionate share of the jointly earned assets.

Disposition

[38] In accordance with the foregoing, it is ordered on a final basis as follows:

1. The residence of the children shall be with the Applicant.
2. The Applicant shall have sole decision-making responsibility with respect to the children.
3. The Respondent is prohibited from communicating directly or indirectly with the Applicant and the children.
4. Commencing October 1, 2023, and on the first day of each month thereafter the Respondent shall pay to the Applicant child support in the amount of $755.00, said support based on the Respondent having an annual imputed income of $50,000.00.
5. The Applicant and the Respondent shall share s. 7 special and extraordinary expenses proportionate to their income. Based on the Applicant’s income of $70,000.00 and the Respondent’s imputed income of $50,000.00, the Applicant’s share is 58.3% and the Respondent’s share is 41.7%.
6. The Applicant has a 50% interest in the net proceeds of sale of the parties’ residence at 215 East 33rd Street Hamilton, Ontario. The net proceeds of sale being $480,498.47, the Applicant’s share is $240,249.00. The Applicant having already received $25,000 of the said proceeds, the balance of $215,249.00 owing to the Respondent shall be satisfied as follows: a. the $120,000 held in trust by Snelius Family Law Corporation shall be released to the Applicant; and b. the Respondent shall forthwith pay to the Applicant $95,249.00.
7. Support Deduction Order to issue.
8. For as long as child support is to be paid, the payor and recipient, if applicable must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.
9. Unless the support order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.

Costs

[39] I find that the applicant was the successful party and is presumptively entitled to an award of costs of the proceeding from its inception pursuant to Rule 24 of the Family Law Rules. There is nothing which would displace this presumption.

[40] Counsel for the applicant presented a Bill of Costs prepared on a full indemnity basis providing for total costs in the sum of $62,367.64, comprised of lawyer’s fees of $49,745, clerk’s fees of $4,187.50, HST on fees of $7,009.93 and disbursements of $1,435.21.

[41] The applicant submits that the respondent’s conduct in the proceeding, particularly her failure to provide timely and proper financial disclosure contrary to the Family Law Rules and multiple court orders, and her failure to attend on scheduled conference dates appointments unnecessarily drove up the costs. The applicant’s counsel prepared for trial on the basis that a full trial with participation of the respondent would be required.

[42] Although the applicant seeks costs on a full indemnity basis, his counsel fairly recognized that an award of costs of $62,367.64 may be considered disproportionate for a trial that involved one day of evidence and one-half day of submissions and suggested that an award of costs representing 60% to 65% of the full indemnity costs may be considered.

[43] In the case of Beaver v Hill, 2018 ONCA 840 the Court of Appeal observed at para. 12 that “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs” in family law proceedings.

[44] In my view, in all of the circumstances, the fee component of the applicant’s costs should be calculated at 60% of his full indemnity fees or $32,360. It is ordered that the respondent pay costs rounded to $38,000, inclusive of HST and disbursements within 30 days hereof.

Formal Order

[45] I have signed and released the formal order in accordance with the draft order submitted by the applicant to give effect to the foregoing. Approval of the formal order by the self-represented respondent is hereby waived.

D.A. Broad Released: November 01, 2023