COURT FILE NO.: FS-17-90650
DATE: 2023 11 24
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Oluwaremy Abbey Ogundipe, Applicant
AND:
Bolatito Olajumoke Apata and Samuel Afolabi Apata, Respondents
BEFORE: M.T. Doi J.
COUNSEL: Chaitali H. Desai, for the Applicant
Bolatito Olajumoke Apata and Samuel Afolabi Apata,
self-represented Respondents
HEARD: May 15 to 19 and 23, 2023
REASONS FOR JUDGMENT
Overview
[1] This trial dealt with the Applicant father’s claim for equalization, the Respondent mother’s claim for ongoing child support and arrears, and the Respondent maternal grandfather’s trust claim in relation to the matrimonial home. The parties previously settled all other issues in dispute.
[2] The main issue in dispute is whether the maternal grandfather loaned the mother funds to buy a property (i.e., which became the matrimonial home), or whether he gifted the funds to her. The father claims that the grandfather gave the funds to the mother who was not required to repay them. The grandfather and the mother claim that the funds were a loan that must now be repaid.
[3] For the reasons that follow, I find that the father has rebutted the presumption of resulting trust, that his equalization claim should be granted, and that the maternal grandfather’s trust claim should be dismissed. In addition, I find that the mother’s claim for ongoing child support and arrears should be granted in part.
Background
a. The Parties
[4] The Applicant father was born and raised in Nigeria. The Respondent mother was born in Canada and raised in Nigeria. The couple met in 2004 and married in Nigeria on April 2, 2005. The father immigrated to Canada in April 2006 after the mother sponsored him. The couple then resided together in the matrimonial home located on Thorntree Cres. in Brampton (“Thorntree”) before moving to a home on Delambray Street in Brampton (“Delambray”) in 2016. There are three (3) children of the marriage, being two sons (born on July 16, 2007 and November 6, 2010) and a daughter (born on January 1, 2012).
[5] The Respondent maternal grandfather immigrated to Canada around 1972 and, by his own admission, accumulated not-insignificant savings over the course of his working career.
b. The Thorntree Property
[6] Sometime before 2004, the mother’s brother-in-law purchased the Thorntree property but without informing his wife, who disliked the home and wanted a different home. Around this time, the mother, who was renting a basement apartment, was approached by her sister and brother-in-law who asked if she wanted to live at Thorntree. When she expressed her interest in living there, the sister and brother-in-law asked the maternal grandfather to buy the home with an understanding that the mother would be residing at the property.
[7] At the time, the maternal grandfather already had properties in Calgary and Nigeria and initially did not want to buy Thorntree. After some reflection, however, he agreed to buy the home to help the mother who wanted to live there. At the time, he had a successful business and the financial means to purchase Thorntree without difficulty. The family members all understood that the mother, who was working two jobs and attending community college while living in a $900.00 per month basement apartment, could not afford to buy the property herself. Among other things, she had credit issues after co-signing a car loan for a friend who later defaulted on the loan. As a result, the grandfather arranged to buy Thorntree and have the mother live there and make monthly mortgage payments as “rent” with the understanding that he would send her money or pay the mortgage himself if she was unable to afford the payments. The mother testified that the Thorntree mortgage payments were about $1,250.00 per month. The grandfather and the mother did not record their arrangement in writing. At trial, the grandfather described his purchase of Thorntree as an investment for his retirement.
[8] The maternal grandfather, who lived in Calgary, gave the mother his power of attorney so that she could deal with the purchase of Thorntree on his behalf and have its mortgage payments drawn from her bank account. On October 27, 2004, the brother-in-law sold Thorntree to the grandfather. The property had a purchase price of $235,000.00, a $15,000.00 downpayment, and a $215,730.00 mortgage with monthly mortgage payments of $1,400.84. The grandfather received an undisclosed amount on closing as the mortgage exceeded the amount required to buy Thorntree. After closing the purchase, the mother began to reside at the property.
[9] The mother claims that she never missed a monthly payment for the Thorntree mortgage. However, as she was unable to afford to pay the property taxes for the home, she took in tenants between January and July 2005. She later lived at Thorntree alone while working full-time at a cardboard factory and part-time at a furniture retailer. In addition, her younger sister from Calgary came to attend college in Toronto and lived with her at Thorntree for a period. Occasionally, her sister paid for groceries to help defray the cost of their living expenses.
c. The Marriage
[10] On April 2, 2005, the mother and the father married in Nigeria.
[11] On April 25, 2006, the father immigrated to Canada and joined the mother in Brampton where they lived at Thorntree, the matrimonial home, until it was sold in 2016 as detailed below. The mother claims that she told the father, shortly after he moved in, about how the maternal grandfather bought Thorntree and how she came to live there. The father denies this and claims that he was informed, or perhaps assumed, that she financed the purchase of Thorntree by herself.
[12] On November 20, 2007, the maternal grandfather placed a $25,936.63 second mortgage on the Thorntree property. He does not remember why he placed the charge. He surmised that he might have used the funds to renovate Thorntree or a home on Bowsfield Drive in Brampton where he lived after moving from Calgary to start up a dry cleaning business in Toronto. The dry cleaning business operated from July 2007 to August 2008 when it closed as it was unprofitable.
[13] On October 29, 2008, the grandfather filed for personal bankruptcy. Importantly, he did not declare Thorntree as a personal asset in his statement of affairs for the bankruptcy, for which he obtained a discharge on July 30, 2009. In addition, he never retired his power of attorney for Thorntree, assumed any mortgage payments, or otherwise dealt with the property after he moved to Brampton in 2007. Instead, the mother continued to reside at Thorntree with the father and deal with the property as if it belonged to her.
[14] During the marriage, the father and mother equally shared the cost of household expenses that included groceries, mortgage payments, monthly utilities, and various other expenses. Within three months of his arrival in Canada, the father found work. Afterwards, he regularly transferred about $800.00 each month, more or less, to the mother as his contribution to household expenses. Over time, as he earned more income, he increased his contributions to $1,000.00 per month, and later to $1,500.00 per month. He also paid for other household expenses. Among other things, he shared the cost to re-shingle the roof and re-surface the driveway with the mother, paid to replace the furnace, and paid for repairs or renovations to certain parts of the home (i.e., including the cost to replace bathroom floors and ceilings, to repair water damage to the kitchen, and to install new hardwood floors). In addition, he repainted the interior of the home and performed landscaping work for the property. The mother does not dispute that the father contributed to household expenses and various home improvements to Thorntree over the course of the marriage.
[15] According to the mother, the marriage grew rocky soon after the couple began to co-habit. She also claims that the marriage soured over time while the couple kept up appearances to please their family without necessarily pleasing themselves. She reported being “separated” in her income tax return for 2009, but went on to have two more children with the father in 2010 and 2012, respectively.
[16] In or around July 2012, the mother and the father entered into a separation agreement. They later reconciled their relationship which voided the agreement.
[17] By 2014 and into 2015, the mother claims that serious marital issues arose which prompted her to arrange for major renovations to the home (i.e., involving cabinetry work and resurfacing the floors) from either April or May to June or July 2015 in order to ready Thorntree for sale in anticipation of a marital separation, although she never clearly raised any of this with the father.
[18] In or around May 2015, the mother claims that she confronted the father to advise him to find a new place to live as she planned to leave with the children, sell Thorntree, and end the marriage. However, the father categorically denies that any such conversation ever took place.
[19] According to the mother, the Thorntree renovations, which are said to have cost between $15,000.00 to $20,000.00 but went undocumented, were financed with a $35,000.00 line of credit that she used to draw cash to pay the contractor without any contributions from the father. It is unclear how she secured this line of credit. She concedes that she never spoke with the maternal grandfather about the renovations or how its costs would be dealt with. In addition, she concedes that she paid off the line of credit by using the Thorntree proceeds of sale.
[20] After learning of the couple’s marital discord around April or May of 2015, the maternal grandfather asked several friends to meet with the couple in an effort to help them reconcile their marital differences.
d. The Delambray Property
[21] In or around May 2015, the mother apparently first viewed the Delambray property but did not seek to buy the home as it had already been sold. Around this time, she spoke to the maternal grandfather about divorcing the father. The grandfather responded by firmly expressing his unwillingness to support a divorce. However, he agreed to help her move to a different home. In late June or early July 2015, the mother again viewed Delambray after it came back on the market. Preferring Delambray to Thorntree as it was a bigger home on three levels with five bedrooms and more space for the children, the mother signed an agreement to purchase Delambray and gave a $10,000.00 downpayment. She then took the grandfather to see Delambray. However, she did not immediately disclose her purchase of Delambray to the father. She apparently felt no need to do this as she saw herself as being separated from the father even though she still lived with him at Thorntree, albeit separately and apart in her own opinion. For his part, the father claims that he continued to reside and cohabit with the mother as a married couple throughout this period.
[22] When the mother purchased Delambray, she was working as a business process analyst, apparently had good credit, and initially believed that she could independently afford to buy the property by herself. However, as she conceded at trial, she could only afford to buy the Delambray property by using the Thorntree sale proceeds. She also testified that the father had previously said during the marriage that they, as a couple, would later buy a home of their own at some point. The father claims that the mother always wanted a bigger home to match her sister’s more spacious residence, particularly after their children came along, although he was always content to live modestly at Thorntree given its affordability.
[23] Around this time, the maternal grandfather purportedly told the mother that he would agree for her to use the Thorntree sale proceeds to finance the Delambray purchase. The grandfather claims that he did not need his money in Thorntree to be paid to him when it sold, and that he saw Delambray as being another investment.
[24] At some point, the father learned about the mother’s plans to sell Thorntree and move to Delambray. The father disliked Delambray, which was a townhouse-style home, as his preference was for the family to purchase a fully-detached home if they were to acquire a new property. In addition, he felt that the location of the property, which was close to the maternal sister’s home, might cause issues. But after speaking with the maternal grandfather, the father reconsidered and ultimately was prepared to live at Delambray with the mother and the children.
[25] In late August 2015, the couple had a conversation in which the father purportedly tried to resolve his differences with the mother. The mother claims that she adamantly refused to reconcile and repeatedly told the father to find another place to live after October 26, 2016 when she planned to move to Delambray. Later on, she relented after the maternal grandfather and other members of her family, including her sister, urged her to have the father reside with her and the children at Delambray. The mother claims that she relented because the grandfather was helping her by agreeing to have the Thorntree sale proceeds used to purchase Delambray.
[26] The mother received $42,000.00 in proceeds from the Thorntree sale. But instead of paying this to the maternal grandfather, she used the funds to renovate Delambray by creating a basement apartment which she planned to rent out. She apparently did this with the grandfather’s approval.
[27] In October 2016, the mother hired a moving crew to move the family’s household items from Thorntree to Delambray. The father later rented a U-Haul to move some remaining items to their new residence.
[28] After moving to Delambray, the couple continued to share the same living arrangements. To this end, they continued to share a bed in the master bedroom, although the mother claims that they did not engage in sexual relations due to their martial issues. She claims that the couple did not speak with each other, apart from occasional limited conversations that usually concerned the children, as the father had anger management issues which she tried to avoid by limiting their discussions. According to the father, the couple continued to cohabit as a married couple while continuing to share the family’s living expenses and otherwise carrying on with the marriage. The couple continued to share household chores. The father did laundry for the children and himself as well as some cleaning and other tasks. The mother did grocery shopping and cooking for the family, although the father also bought some food, cooked some meals and looked after some other household duties. The father typically woke at 4:00 am to go to work, returned home later in the day or evening, and ate dinner which the mother had prepared for the family. Using separate bank accounts, the couple continued to jointly pay their mortgage and other household expenses. As before, the maternal grandfather was prepared to help the mother pay the mortgage as needed.
[29] In November 2016, the mother wanted to buy furniture for the Delambray home through her employer as she was eligible for a discount and would not have to pay any interest for a period if the father’s store credit card were used to finance the purchase. The father agreed to buy the furniture and the purchase was charged to his credit card. At the time of the purchase, the maternal grandfather apparently contributed some money. Later on, the mother refused to help the father pay off the furniture-related debt.
e. The Trip to Nigeria
[30] In December 2016, the couple travelled together to Nigeria to attend a wedding. The father claims that the couple had continued to live and vacation as a married couple up until this time. According to the mother, the couple previously had bought their plane tickets in February 2016 and chose to attend the wedding after committing themselves to be guests at the celebration. While in Nigeria, the couple stayed at the home of a paternal aunt who had a strong relationship with the mother whom she welcomed into her home despite the couple’s marital issues. The mother claims that she simply maintained appearances during the trip to Nigeria for the family’s sake despite having a very strained relationship with the father by then.
[31] While in Lagos, Nigeria, the mother and the maternal grandfather purported to execute a trust agreement on December 21, 2016 to retroactively document a loan for $230,000.00 which the grandfather allegedly loaned the mother in 2003 when the Thorntree property was purchased. By doing this, both sought to establish a trust in the grandfather’s favour over Delambray which the mother purchased on November 1, 2016 with the Thorntree sale proceeds. The agreement purported to name the mother and the maternal grandfather as the beneficial owners of Delambray in proportion to their contributions in acquiring the property and thereby remove the father from having any interest in the property. Under the terms of the trust agreement, the mother was to make mortgage payments for the Delambray property of $2,500.00 per month and hold title to Delambray until the maternal grandfather had transferred his stake to her or until she had fully repaid him for what he had contributed to buy the property. As further set out below, I have serious concerns with this purported trust instrument which seeks to retroactively create a trust instrument in favour of the grandfather (i.e., after the mother had purchased the property) by (re)characterizing events that had occurred when Thorntree had been purchased on October 27, 2004, well over twelve (12) years earlier.
f. The Machete Incident
[32] Sometime in February 2017, the mother bought a new tv which was delivered to Delambray in March 2017. When the tv was delivered, the father saw that one of four tv’s that he previously bought for the family was no longer on its wall mount. When he inquired, the mother explained that she had given away his tv to her sister as she felt that it was no longer needed. The father grew livid and said that people would be “dead”, or words to that effect. To calm the father, the mother asked the maternal grandfather, who was visiting with the family at Delambray, to speak with him.
[33] While speaking with the grandfather, the father renewed his request for records about the purchase of Delambray, which he repeatedly had asked for since November 2016 without success as the mother persistently refused to disclose any details to him by stating that he was not entitled to this information. Upset and angry, the father stated that he was paying for the property but did not know where his money was going. He also indicated that his name should be on title. When the mother again rebuffed his request for disclosure, the father picked up a gardening machete in a fit of rage and began to yell. Seeing this, the maternal grandfather held the father’s hand, asked him to put the machete down, and tried to wrestle it from the father until he eventually lowered it. After the father found a measure of calm, the maternal grandfather called a paternal aunt in Nigeria to reason with the father and lower tensions in the household. According to the mother, the grandfather convinced her to not call police which led her to call her sister instead. After several family members spoke with the father, his anger subsided and the incident de-escalated. Following the incident, the mother began to sleep in a different room with the children.
[34] In June 2017, the couple celebrated their oldest son’s birthday. The father joined the mother and their other children at the birthday celebration along with some friends.
[35] The family continued to attend church together.
[36] In August 2017, the maternal grandfather returned to his home in Nigeria where he would typically spend the winter months.
[37] On September 18, 2017, the mother went to a birthday party at church around 9:00 pm that evening. She left the children at home with instructions to unlock the door for the father when he returned home from work. At around 11:30 pm that evening, she drove home and saw the father leaving the home as she entered the driveway. Seeing this, she drove to her sister’s house and stayed overnight after coming to the realization that she feared the father. The next day, she told her sister that she could no longer resume living at Delambray.
[38] Within the next day or two, the mother asked the father to leave Delambray which he declined to do. She then tried to negotiate a proposal for him to continue residing at Delambray while solely caring for the children. He refused her proposal as he felt it was unmanageable given his work schedule. He would only agree to leave Delambray if the home were sold.
[39] From mid to late September 2017, the mother split her time between Delambray and her sister’s nearby home where she was given a bedroom. By October 2017, the mother and children essentially had vacated Delambray to live with her sister. By her own admission, the mother called police multiple times in an effort to evict the father from Delambray but without success.
[40] In or around early November 2017, the father served the mother with his application in this family proceeding. Around this time, the mother went to police to report the machete incident that had occurred in March 2017 (i.e., roughly seven months earlier). Police responded by asking the father to leave Delambray, which he did after retrieving some personal items. Although he had continued to give the mother $1,500.00 per month for household expenses even after she vacated Delambray, he stopped his contributions after vacating Delambray. Around February 2018, police charged him for the machete incident. The charges were later dropped.
[41] The maternal grandfather tried to convince the mother to reconcile and repair the marriage, which she refused to do. As a result, the grandfather’s relationship with the mother grew strained. In November 2017, the mother travelled to Nigeria with a church group and visited the grandfather at his home in Nigeria. However, the grandfather refused to see the mother, or let her in his home, as he was quite disappointed and upset with her.
[42] After the father stopped his financial contributions for the family, the mother found herself unable to pay the Delambray mortgage. In time, the mortgage lender closed her bank account and withheld her debit card when she tried to use an ATM to access funds. She later arranged for a new first mortgage for Delambray with a different lender at a higher rate on June 11, 2020 but without obtaining the father’s prior knowledge or consent. In doing so, she breached the terms of a preservation order that Price J. granted on September 20, 2019 which prevented any party from encumbering Delambray without further court order.
[43] After renting Delambray to a tenant as of March 25, 2021, the mother refinanced the home on June 11, 2021 and later placed charges from other lenders on the property on May 21, 2020, April 27, 2022 and September 22, 2022, respectively. Each charge further breached Price J.’s preservation order. While this was unfolding, the mother bought a home on Golden Eagle Rd. in Brampton (“Golden Eagle”) on June 11, 2021 after she apparently obtained unspecified funds from an undisclosed party. She then arranged to have Golden Eagle renovated while she resided at her sister’s home with the children. The mother refused to disclose how she financed the purchase of Golden Eagle or its renovations. Unfortunately, her Delambray tenant stopped paying rent after May 2021 while staying in the apartment until being evicted in November 2022. This strained the mother’s finances. In turn, the utility bills and property taxes for Delambray went into arrears which led the first mortgage lender to demand the second mortgage to be paid out which the mother could not afford. In the end, the lender for the first mortgage on Delambray, which also held a mortgage for Golden Eagle, brought a power of sale for both properties in March 2023. By April 2023, Delambray was sold. Apparently, the mother managed to refinance Golden Eagle.
Resulting Trust
[44] In my view, the father has rebutted the presumption of resulting trust in this case by showing on the evidence that the maternal grandfather gifted the Thorntree home to the mother.
[45] There are two lines of authority which apply to this analysis. The first involves the presumption of resulting trust. The second deals with the validity of loans from family members in family law proceedings.
[46] In certain situations, a rebuttable presumption of a resulting trust may arise. A rebuttable presumption in law is a legal assumption that a court will make if insufficient evidence is adduced to displace the presumption. The presumption shifts the burden of persuasion to the opposing party who must rebut the presumption: Pecore v. Pecore, 2007 SCC 17 at para 22, citing Sopinka, Lederman and Bryant, The Law of Evidence in Canada (2nd ed., 1999) at pp. 105-6.
[47] The Supreme Court in Pecore at paras 24-25 explained the doctrine of the presumption of resulting trust as follows:
[24] The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters' Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts.
[25] The presumption of resulting trust therefore alters the general practice that a plaintiff (who would be the party challenging the transfer in these cases) bears the legal burden in a civil case. Rather, the onus is on the transferee to rebut the presumption of a resulting trust.
[48] In Kerr v. Baranow, 2011 SCC 10 at para 18, the Supreme Court explained that trial courts should assess the presumption of resulting trust by applying the applicable presumption and by weighing all of the evidence to determine the transferor’s actual intention:
[18] The Court’s most recent decision in relation to resulting trusts is consistent with the view that, in these gratuitous transfer situations, the actual intention of the grantor is the governing consideration: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 43-44. As Rothstein J. noted at para. 44 of Pecore, where a gratuitous transfer is being challenged, “[t]he trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention” [emphasis in original].
[49] The Court of Appeal distilled the legal principles that govern an inter vivos gift and the presumption of resulting trust in Foley (Re), 2015 ONCA 382 at paras 25-27 as follows:
[25] A valid inter vivos gift is one that is intended to take effect during the lifetime of the donor. It consists of a voluntary transfer of property to another with the full intention that the property will not be returned. To establish a gift, one must show intention to donate, sufficient delivery of the gift and acceptance of the gift: McNamee v. McNamee (2011), 106 O.R. (3d) 401, [2011] O.J. No. 3396, 2011 ONCA 533, at para. 24.
[26] Equity presumes bargains, not gifts. Thus, when a parent gratuitously transfers property to an adult child, the law presumes that the child holds the property on a resulting trust for the parent: Pecore v. Pecore, [2007] 1 S.C.R. 795, [2007] S.C.J. No. 17, 2007 SCC 17, at para. 36. The onus shifts to the adult child to rebut the presumption by proving the contrary intent on a balance of probabilities: Sawdon Estate v. Watch Tower Bible and Tract Society of Canada (2014), 119 O.R. (3d) 81, [2014] O.J. No. 573, 2014 ONCA 101, at paras. 56-57; Mroz (Litigation guardian of) v. Mroz (2015), 125 O.R. (3d) 105, [2015] O.J. No. 1284, 2015 ONCA 171, at para. 72. The trial judge must begin her inquiry with the presumption and then weigh all the evidence in an attempt to determine the parent's actual intent at the time of the transfer: Pecore, at para. 44; Sawdon, at para. 57; Mroz, at para. 72.
[27] The evidence necessary to rebut the presumption depends on the facts of the case: Pecore, at para. 55. Evidence of the parent's post-transfer conduct is admissible, so long as it is relevant to the parent's intention at the time of the transfer: Pecore at para 59.
[50] It follows that the presumption of resulting trust applies when a parent makes a gratuitous transfer to an adult child. The presumption is that the adult child holds the property in trust for the parent who hold an interest in the subject asset, which may comprise real property or loaned funds. The parent is presumed to not have intended a gift. However, this presumption may be rebutted by the evidence: Barber v. Magee, 2015 ONSC 8054 at para 40, affirmed 2017 ONCA 558. Evidence of the parent’s post-transfer conduct is admissible if relevant to their intention at the time of the transfer: Pecore at para 59.
[51] Generally, objective factors can inform the analysis of whether a transfer is a gift or a loan, which may include the following:
whether there [are] any contemporaneous documents evidencing a loan
whether there [are] any contemporaneous documents evidencing a loan;
whether the manner for repayment is specified;
whether there is security held for the loan;
whether there are advances to one child and not others, or advances of unequal amounts to various children;
whether there has been any demand for payment before the separation of the parties;
whether there has been any partial repayment; and
whether there was any expectation, or likelihood, of repayment
Chao v. Chao, 2017 ONCA 701 at para 54; Locke v. Locke, 2000 BCSC 1300 at para 21; Kuo v. Chu, 2008 BCSC 504 at para 78, aff’d 2009 BCCA 405 at para 9; Barber (ONCA) at para 4.
[52] Additional factors to consider in deciding whether a transfer by a parent to an adult child was a gift or a loan include the following:
the alleged debt is old and no demand was made until the one motivated by the separation of the parties;
the money had been advanced to help out a party;
the parent advancing the funds would not have demanded the money, or would have not taken action against their adult child without the separation, leading to the conclusion that the demand resulted from the separation to benefit the adult child in the litigation;
the parent did not expect to be repaid until the adult child could afford it, which is now improbable due to the separation; and
the parent does not need the money.
Barber (SCJ) at para 43; Klimm v. Klimm, 2010 ONSC 1479 at para 30; Cade v. Rotstein, 2002 CanLII 2811 (ONSC) at para 61.
[53] Heeney J. in Poole v. Poole, 2001 CanLII 28196 (ON SC), [2001] OJ No 2154 (SCJ) at para 36 helpfully noted the importance to the court of the role of fairness in making a trust determination:
There is a compelling reason for taking this good hard look at the reality of the situation. A debt constitutes a credit in the equalization calculation, and reduces the net family property of the spouse claiming the debt. This has a direct impact on the equalization payment due, by either reducing the amount that the party has to pay to the other (if he has the higher net family property), or increasing the amount that he will receive (if his net family property is lower). Fairness dictates that he should not receive a credit for debt, with the financial benefits that flow from that credit, if he will never be called upon to pay the debt.
[54] Neither the mother nor the maternal grandfather produced any contemporaneous records for the period around October 27, 2004 (i.e., when he bought Thorntree from his son-in-law), to evidence a loan, trust or rental agreement, respectively. It was only much later, on December 21, 2016 (i.e., more than twelve (12) years afterwards), when they signed a so-called trust agreement in Lagos, Nigeria, to retroactively establish or evidence the alleged loan and trust arrangement in respect of the Thorntree property. Taking this all into account, I am not persuaded that their efforts to create a fresh paper trail to retroactively bolster their claims should be given much, if any, weight in deciding this case. Furthermore, no other witnesses were called and no other records were adduced to corroborate the alleged loan or trust agreement which they claim to have made in 2004.
[55] Quite apart from the conspicuous lack of any contemporaneous records to show any kind of loan, trust or rental agreement arising from the maternal grandfather’s purchase of Thorntree, I am satisfied that the maternal grandfather, by his own admission, never imposed any requirement for the mother to repay his purported loan to her. More specifically, there was no evidence of any contemporaneous loan agreements, terms, or repayment schedule, nor was there any evidence of any interest charges on the amounts that the mother purportedly owed to the maternal grandfather. Apart from the trust agreement signed on December 21, 2016, which I find to be quite unreliable, neither disclosed anything to establish any terms for his alleged $230,000.00 loan to her.
[56] There was no evidence that the maternal grandfather held any security for the loan allegedly given to the mother. Although it was open for the grandfather to register a mortgage ranking second in priority to the first mortgage on Delambray, or to otherwise register a lien on the property to secure his alleged interest in the $230,000.00 loan to the mother, he chose to not do this. He specifically testified under cross-examination that he was unwilling to register a charge or lien on the property that would cloud her title and possibly affect their personal relationship which he was not prepared to risk or compromise over money
[57] At trial, no evidence was adduced to show whether the maternal grandfather had made any other monetary advances to his other children.
[58] There was no evidence of any demands by the maternal grandfather for repayment of the alleged loan to the mother before this family proceeding was commenced by the father.
[59] At no time before the father started this family proceeding did the maternal grandfather make any effort to collect his alleged loan to the mother, that effectively went unpaid and remains outstanding ever since he purportedly made the loan to her on October 27, 2004 when he bought Thorntree from the son-in-law. Moreover, instead of seeking to recover his alleged loan from her, he actually allowed her to retain $42,500.00 from the remaining Thorntree sale proceeds as he candidly conceded under cross-examination.
[60] There was no evidence of any partial repayment of the alleged loan.
[61] In my view, the evidence disclosed no meaningful expectation or likelihood that the alleged loan would ever be repaid by the mother to the maternal grandfather. To date, no repayments have ever been made. In his evidence, the grandfather expressed his willingness to have the mother repay the alleged loan whenever she can repay it. Furthermore, he confirmed that he was always willing to help her with any mortgage payments that she could not pay on her own.
[62] At no time since buying Thorntree has the maternal grandfather ever tried to exert any control of the property despite apparently contributing $230,000.00 to acquire it. Instead, he was content to allow the mother to effectively deal with the property as her own over the years, even to the point of agreeing that she could use all of the sale proceeds for Thorntree, including the $42,500.00 in remaining sale proceeds that she kept, to purchase the Delambray property.
[63] The alleged loan or debt owed by the mother to the maternal grandfather arose in 2004 and is now rather old. Until the father started his family application for an interest in the Delambray property, no demand was ever made for this alleged loan or debt to be repaid.
[64] The maternal grandfather advanced all of the funds in question to the mother for the purpose of helping her out.
[65] The maternal grandfather clearly confirmed that he would not have looked to the mother to pay the alleged loan or debt or otherwise have taken any action against her to collect the money. This clearly leads to the inescapable conclusion that his demand for repayment only arose as a result of the separation and to benefit the mother in this family litigation by reducing her net family property to lower the father’s entitlement to an equalization payment.
[66] The maternal grandfather also testified that he did not expect to receive the money back from the mother until she could afford to repay it. In my view, her separation from the father made her ability to repay the maternal grandfather just as improbable as was the situation in the Poole and Barber cases, respectively.
[67] From the record, I find on balance that the maternal grandfather does not need the money. Although he claims to need the funds to support his retirement, I am satisfied that he is maintaining a more than comfortable lifestyle with homes in both Canada and Nigeria and the ability to travel frequently between both countries which he has continued to regularly do for quite some time. Although he filed for bankruptcy in October 2008, I accept that he has sufficient means to support himself and his family into the future. Notably, the grandfather did not disclose a personal interest in the Thorntree property in his statement of affairs for the bankruptcy, which is further evidence that leans in favour of the father’s effort to rebut the presumption of a resulting trust.
[68] Taking everything into account, I am satisfied on a balance of probabilities that the father has rebutted the presumption of a resulting trust. Despite their opportunity to adduce meaningful evidence to corroborate the alleged loan, the mother and the maternal grandfather have not done so. Having taken a good hard look at the reality of the situation based on all of the evidence, I find that the maternal grandfather, by advancing the funds to buy Thorntree, fully intended to gift this money to the mother at the time of transfer. In my view, this finding is particularly apparent as he essentially allowed her to reside at the home and then deal with the property as being her own with no real expectation that the funds would ever be returned or repaid. It was only after the mother’s relationship with the father seriously deteriorated as it approached its conclusion that she and the maternal grandfather began to characterize his contribution to acquire Thorntree as a loan or debt. However, fairness dictates that she should not receive the financial benefits that would flow from the purported loan or debt if she would never have been called upon to repay it, as I have found: Poole at para 36; Klimm at para 29.
Date of Separation
[69] A determination of the date of separation under ss. 4(1)(1.) of the FLA requires an objective assessment of the date when the parties separated with no reasonable prospect that they will resume cohabitation: Warren v. Warren, 2019 ONSC 1751 at paras 4-7. The concept of separation for the purpose of equalization under ss. 4(1)(1.) is to fix the date when the economic partnership should fairly be terminated: Warren at para 5; Strobele v. Strobele, [2005] OJ No 6312 (SCJ) at para 29; Oswell v. Oswell, 1990 CanLII 6747 (ONHC) at para 8, aff’d 1992 CanLII 7741 (ONCA). There are two (2) aspects to this analysis: a) the date on which the spouses separate; and b) that there is no reasonable prospect that they will resume cohabitation: Chan at para 24. As Corbett J. noted in Strobele at paras 29-30:
The structure of the section links the concepts of separation and cohabitation. These concepts, though assuredly related, are not interchangeable. Cohabitation implies conjugality, as that term is understood by the law. Separation requires more than living under separate roofs to encompass a cessation of the multi-levelled intricate relationship between couples. No one factor determines when the test has been met. The global question is, when was it that the parties knew or, acting reasonably, ought to have known, that their relationship was over and would not resume?
[T]here will be many cases where one spouse knows that there will be no reconciliation and the other does not because the one has decided he or she does not wish to reconcile, but the other does not yet understand this. A fair determination of the issue requires that an objective eye be cast upon the unique circumstances of the couple. [Emphasis added]
See also Chan v. Chan, 2013 ONSC 7465 at para 24.
[70] In applying the principles in Warren at paras 4 to 7 for determining the date of separation, Hood J. in Zahelova v. Wiley, 2020 ONSC 6990 at paras 21- 22 noted the importance of applying an objective determination to all of the unique circumstances of the parties:
[21] At paragraph 7 of Warren, a list of objective factors is set out to assist the reasonable person in determining whether there has been a separation with no reasonable prospect of resuming cohabitation. It has to be an objective determination. A relationship requires two people and sometimes one of the parties does not understand or accept the relationship is over. On the other hand, sometimes one of the parties may harbour a secret resolution that the relationship is over but has not made it clear to the other of this fact. It must also be remembered that the purpose of the separation date is to set a date at which time the parties ceased being one entity for financial purposes - a couple - and became another, a separated couple: see Strobele v. Strobele, [2005] O.J. No. 6312, at paras. 29 - 32.
[22] The main point in Warren and in all the cases cited is recognition that each relationship is different. Because of this, the list of factors set out in Warren at paragraph 7 is only that: a list. It is not as if one factor takes precedence, or that a certain combination of factors is necessary, or a majority of factors will decide the issue. [Emphasis added]
[71] In deciding on the date of separation, the test is whether a reasonable person knowing all of the circumstances would reasonably believe that the parties had a prospect or expectation of resuming cohabitation based on their true intentions, which must be joint and not one-sided or mere wishful thinking: Warren at para 6, citing Torosantucci v. Torosantucci, 1991 CanLII 12851 (ONSC) at para 14. A fair determination of this issue requires an objective consideration of the unique circumstances of the couple, which in some cases results in a finding that a couple has met the test for separation under ss. 4(1) even though both continue to live in the matrimonial home: Strobele at para 30.
[72] Parties may be separated while living under the same roof: Chan at para 25; The date of separation is tricky when the parties remain under the same roof and, to some extent, continue to carry on a life together.
[73] The following are some criteria which the court has applied in determining when spouses, who occupy the same premises, are living separate and apart:
a. There must be a physical separation. Often, this is indicated by the spouses occupying separate bedrooms;
b. There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium;
c. The absence of sexual relations is not conclusive but is a factor to be considered;
d. Other matters to be considered are the discussion of family problems and communication between the spouses, the presence or absence of joint social activities, and the meal pattern;
e. Although the performance of household tasks is also a factor, help may be hired for these tasks and greater weight should be given to those matters which are peculiar to the husband and wife relationship.
Oswell at para 6; Chan at para 26.
[74] When spouses residing at the same premises are living separate and apart, the court must assess the true intent of a spouse as opposed to their stated intention: Oswell at para 7; Chan at para 27. In assessing a spouse’s true intent, their income tax returns may be considered: Ibid.
[75] Where the marriage has irretrievably broken down so that the resumption of cohabitation is not reasonably foreseeable, there will be no reasonable prospect of resuming cohabitation: Strobele at para 31, citing Czepa v. Czepa, [1988] OJ No 1002 (HC). The purpose for which this question is considered is to set the valuation date, namely the date when the parties ceased being one kind of entity for financial purposes (i.e., a couple) to became another (i.e., a separated couple). As there may not be one moment in time that can be fixed as the objectively true separation date, the Court should determine the date on which it is fair for the parties to no longer share the financial consequences of being married: Strobele at para 31.
[76] Where a spouse intending to end the relationship transfers or dissipates assets, an early valuation date may be appropriate. In contrast, where a spouse has decided to terminate the relationship, but has not made this clear to the other spouse, a later valuation date may be in order. The test is not purely subjective. Groundless hopes of reconciliation should not extend a valuation date where a spouse has been clear in their intention to end the relationship: Strobele at para 32.
[77] In Chan at para 29, McGee J. commented on the need to cautiously assess each marriage on its own unique facts, as follows:
As every marriage is different, the courts must consider the various objective factors to determine of the parties are living separate and apart. Some marriages are by nature stormy and erratic. The court must exercise caution and differentiate between a couple living together albeit with some unhappiness and dissention, on the one hand, and a situation where they are instead both living there but as two separate individuals: Galbraith v Galbraith (1969,) 5 D.L.R. (3d); Dupere v Dupere (1974) 1974 CanLII 1858 (NB CA), 10 N.B.R. (2d) 148 (C.A.) A marriage may be at times stormy, but ongoing: William v Williams 1990 N.W.T.J. No 1180. Newman v. Newman R.F.L. Vol 2 page 220. [Emphasis added]
See also Taylor v. Oliver, 2022 ONSC 7186 at paras 96-107.
[78] Both parties have the onus of establishing on the balance of probabilities the date of separation they propose: Bouffard v. Bouffard, 2020 ONSC 3079 at para 39.
[79] The father and the mother always had a rocky and tumultuous relationship. They were extremely hardworking individuals who worked multiple jobs and long hours to get established and give their children a good home and a comfortable lifestyle. But over the course of the marriage, they frequently disagreed which led to a strained and often unhappy relationship. To make the marriage work, both kept up appearances with their extended families and friends and repeatedly tried to work out their differences in the face of cultural and religious norms which frowned on marital separation. They also grappled with the expectations of their immediate family members who repeatedly encouraged the couple to resolve their issues and preserve the marriage, all of which was done in the spirit of trying to help or support the couple with the best of intentions.
[80] The mother declared in her 2009 income tax return that she was “separated”, but went on to have two children with the father (i.e., one in 2010 and another in 2012).
[81] Around July 2012, the couple entered into a separation agreement. They later reconciled, which voided the agreement.
[82] In her 2012 tax filing, the mother declared herself to be separated. However, given her reconciliation with the father around that time, I am not persuaded that this particular tax filing should carry significant weight. The mother later declared herself to be separated in her 2017 and 2019 tax returns, which I accept are factors for the analysis in deciding the date of separation.
[83] Over the course of the marriage, the couple would not always eat their meals together as a family. Although the mother and the children together ate meals that she would prepare, the father would rise early for work, have breakfast alone, and often eat the dinner she had prepared later in the evening after returning home. That said, the father periodically would join the mother and the children at meals, and occasionally prepared meals for the family. Until October 2017 when the mother and children vacated the Delambray home, the family continued this meal pattern while the couple continued to share the responsibility of grocery shopping. In addition, the couple more or less shared the responsibility of performing other household chores including doing laundry, cleaning the house, performing yard work, running errands, and dealing with other sundry tasks. Although the couple maintained separate bank accounts, they always pooled their funds (i.e., with the father routinely providing the mother with monthly amounts to pay for recurring and other household or family expenses, including the mortgage and other carrying costs for Thorntree and Delambray, as well as child-related expenses) until after the mother vacated Delambray with the children in October 2017. In addition, the couple individually or jointly paid for a number of home renovation and other improvement costs. When the family moved to Delambray, the couple jointly bought new furniture for the home.
[84] Until October 2017, the couple went to church and social activities together, and celebrated occasions together as late as June 2017. In addition, they vacationed together, most recently in December 2016 when they travelled to Nigeria together for a wedding. Until October 2017, both held themselves out as a married couple to family and friends, albeit with a measure of unhappiness or dissatisfaction.
[85] Sometime in 2016, the mother claims that she approached the father to ask him to find a new place to live after the Thorntree home was sold. The father steadfastly denies that any such conversation ever took place. The maternal grandfather claims that he implored the mother to have the father reside with her and the children in the Delambray home, ostensibly to save the marriage. Ultimately, the mother relented and the father joined her and the children in moving to Delambray. On balance, I find that the couple intended to stay in the marriage which was not interrupted by their relocation from Thorntree to Delambray. Although unsteady, the marriage at that point was ongoing: Chan at para 29. From the evidence at trial, I am not persuaded that the couple knew or, acting reasonably, ought to have known that the relationship was over by then: Strobele at para 29.
[86] Regardless of where they resided, the couple always shared a bed in their master bedroom until the incident involving the gardening machete in March 2017, after which the mother began to sleep with the children in a different bedroom over concerns for their safety. After September 18, 2017, she began to say over at her sister’s home while spending some time at Delambray. By the end of September 2017, she and the children had vacated Delambray to live with her sister.
[87] In the particular circumstances of this case, I find that the couple separated by September 30, 2017. In arriving at this, I decline to adopt the mother’s proposed earlier separation dates in 2015 and 2016 as I find that the couple remained in the marriage beyond these proposed dates and never truly intended to separate until September 2017. Among other things, I have considered the credibility of the father and the mother in light of the factors in 730453 Ont. Inc. v. 2380673 Ont. Inc., 2022 ONSC 6660 at para 50. While I have reservations with some of the evidence that each gave at trial, I prefer the father’s evidence where it conflicts with the mother’s evidence. In my view, the father gave direct and straight-forward evidence and largely testified in a forthright manner. In contrast, the mother’s evidence was often vague, imprecise and guarded. In addition, I have serious concerns with her effort to create a retroactive paper trail to document the alleged loan or debt by signing the purported trust agreement with the maternal grandfather on her trip to Nigeria. Taking everything into account, I find that her evidence should be treated with caution.
[88] It not open for the mother to separate from the father in secret, as she tried to suggest she did in her evidence: Chan at para 37. Until the machete incident in March 2017, the father had continued to cohabit with the mother, and continued to share household roles and pay his share of household expenses even after she vacated Delambray by September 30, 2017. Based on all of the evidence, I find on balance that the father would not reasonably have known or understood that the marriage was over, or that there was no reasonable prospect of the couple resuming their cohabitation, until the end of September 2017 by which point I accept that the parties had separated without any reasonable prospect of resuming cohabitation.
[89] Accordingly, I find that the date of separation is September 30, 2017.
Equalization
[90] Pursuant to s.5(1) of the Family Law Act, RSO 1990, c. F.3 (“FLA”), the spouse whose net family property is the lesser of the two net family properties is entitled to an equalization payment of one-half the difference between them.
[91] Equalization recognizes that childcare, household management and family finances are joint spousal responsibilities, and that a martial relationship inherently involves an equal contribution, whether financial or otherwise, by the spouses to assume these responsibilities, which entitles each spouse to an equalization of net family property, subject to equitable considerations: ss. 5(6) and (7) of the FLA. Net family property is defined at ss. 4(1) of the FLA and refers to the value of all property owned by a spouse on the valuation date, after deducting their debts and other liabilities on the valuation date and after deducting the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage less debts and other liabilities apart from those directly related to acquiring or significantly improving a matrimonial home, as of the date of marriage: Bakker v. Bakker, 2023 ONSC 3025 at paras 82-83. Certain property under ss. 4(2) of the FLA, such as a gift or inheritance, other than a matrimonial home, that was received by a spouse from a third party after the date of marriage, is excluded from a spouse’s net family property.
[92] Subsection 4(2)(1.) of the FLA provides as follows:
4(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:
Property, other than the matrimonial home, that was acquired by gift or inheritance for a third person after the date of the marriage.
Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced
[93] It follows under ss. 4(2)(5.) of the FLA that an otherwise excluded assets that is invested in the matrimonial home loses its status as an excluded asset: Ward v. Ward, 2012 ONCA 462 at para 73; Martin v. Sansome, 2014 ONCA 14 at para 71; Chao at para 87. As the funds which the maternal grandfather gifted the mother were invested in the Thorntree matrimonial home, they are not excluded from her net family property.
[94] The mother did not seriously contest the father’s equalization calculation in his net family property statement, apart from asserting the maternal grandfather’s trust claim. Accordingly, I accept that his equalization calculation is fair and accurate and find that the mother should pay the father an equalization payment of $134,456.63 based on a September 30, 2017 separation date.
Child Support
[95] Pursuant to s. 15.1 of the Divorce Act, RSC 1985, c.3 (2nd Supp), the court may order a spouse to pay child support. A child support order is made in accordance with the Child Support Guidelines, SOR/97-175 pursuant to ss. 15.1(3) of the Divorce Act.
[96] The purpose of child support is to help a custodial parent pay for the daily expenses of raising children: Drygala v. Pauli (20020, 2002 CanLII 41868 (ON CA), 61 OR (3d) 711 (CA) at para 53.
[97] The court may impute income to a spouse as it considers appropriate in the circumstances, which may include intentional under-employment or unemployment: s. 19 of the Guidelines. In deciding whether a spouse is intentionally under-employed or unemployed, the court is to consider:
a. Is the spouse is intentionally under-employed or unemployed?
b. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
c. If no, what income is appropriately imputed in the circumstances?
Drygala at para 23.
[98] The concept of intentional under-employment or unemployment does not require a specific intent to evade a child support obligation, and there is no requirement to show bad faith: Drygala at paras 25-26 and 29. Imputing income is a method by which the court may give effect to the joint and ongoing obligation of parents to support their children. To meet this obligation, a parent must earn what he or she is capable of earning: Drygala at para 32; Bakker v Bakker, 2023 ONSC 3025 at para 43. To award an amount as imputed income, the court must have a rational basis for its selection of any such figure which must be grounded in the evidence: Drygala at para 44.
[99] The court has the discretion to award retroactive child support that is fit and just in the circumstances after first considering: a) whether a retroactive award should be made on the facts of the case; and b) deciding the amount of support that would adequately quantify the payor’s obligation to pay support during the intervening time: D.B.S. v. S.R.G., 2006 SCC 37 at paras 133-134. Before awarding retroactive child support, a court should then assess the fairness of making such an order by considering the following four (4) main but non-decisive factors: i) the reason for the delay by the recipient parent; ii) the conduct of the payor parent (e.g., any blameworthy behaviour); iii) the circumstances of the child; and iv) any hardship occasioned by a retroactive award: D.B.S. at paras 94-116; Wharry v. Wharry, 2016 ONCA 930 at para 59.
[100] A party seeking retroactive child support must provide evidence that the child suffered from a lack of financial support during the period in question: Drygala at para 53. Ability to pay, as well as need, must be considered by the court in exercising its discretion to award retroactive child support: Ibid. In considering the evidence, the court must consider what is reasonable in the circumstances by looking at criteria such as the age, education, experience, skills and health of the payor parent: Drygala at paras 44-45. The court has wide discretion in deciding what income to impute: Bakker at para 49, citing A.E. v. A.E., 2021 CarswellOnt 18880 (SCJ) at para 262(2)(c).
[101] As set out below, I find that retroactive child support should be awarded in this case.
[102] Based on a review of his bank account statements, the father’s actual annual income was $59,566.98 in 2017 when he worked throughout the year as a road-side assistance operator on contract with CAA through Stellar Roadside, his closely-held company.[^1] Applying this annual income, table child support for three (3) children was $1,181.00 per month. Having regard to his bank records over this period, I am satisfied that he paid the mother monthly unallocated support of $1,500.00 per month for the period from October 1, 2017 to December 31, 2017, inclusively. Having determined that the date of separation should be September 30, 2017, I find that he should not be required to pay retroactive child support in 2017.
[103] Having regard to the father’s bank records, I find that he did not pay any support in 2018. Although the father claims that he paid the mother $1,500.00 in unallocated support in January 2018, the bank records he produced for this period do not show any such payment. As such, I am not persuaded that he paid any support during that month. On June 9, 2018, he was involved in a motor-vehicle accident in which he sustained a very serious leg injury. As a result, his 2018 work-related income was only $28,847.63 through Stellar Roadside. He went on to receive $4,800.00 in income replacement benefits (“IRB’s”) from his automobile insurer in 2018. By combining both of these income figures, with a 25% gross up to reflect the tax-free nature of the IRB’s, I find that the father earned a total of $34,847.63 in 2018.[^2] Applying his annual income figure for 2018, table support for three (3) children was $714.00 per month for the period from January 1, 2018 to December 31, 2018. Accordingly, on the facts of this case, I find that it is just and reasonable to require the father to pay the mother retroactive child support of $8,568.00 (i.e., $714.00 x 12 months) for 2018.
[104] In 2019, the father drew $630.00 in income from Stellar Roadside and received $9,600.00 in IRB’s (i.e., to which I add $2,400.00 to reflect a 25% gross up for the tax-free nature of the benefits), for a total income of $12,630.00 that year.[^3] He paid no support in 2019. In view of his very modest income that year, I find that he should not pay retroactive child support for 2019.
[105] The father paid no support in 2020. According to his 2020 notice of assessment, his annual income that year came to $24,810.00, which I accept accurately represents the amount of his total 2020 annual income. Applying this figure, table support for three (3) children is $513.00 per month for the period from January 1, 2020 to December 31, 2020. In turn, and having regard to the record at trial, I am satisfied that it is just and appropriate for the father to pay the mother retroactive child support of $6,156.00 (i.e., $513.00 x 12 months) for 2020.
[106] The father paid no support in January or February 2021. On February 7, 2021, Tzimas J. ordered the father to pay temporary child support of $245.00 per month (i.e., which approximates an imputed income of about $16,800.00 per year) on a without prejudice basis starting on March 1, 2021. As the mother concedes, the father complied with the order and paid her this monthly child support amount since March 1, 2021. For reasons that are unclear, the father did not disclose any records to show: a) his 2021 income (n.b., his financial statement sworn January 6, 2022 baldly asserts that his 2021 income was $12,800.00 without any supporting records to corroborate this figure); and b) any work limitations that would have prevented him from earning income that year. In light of the father’s lack of meaningful disclosure, the mother only had a very limited ability to ascertain his ability to work and income for child support purposes. In the circumstances, I find that it is fair and appropriate to impute a part-time minimum-wage income to the father that approximates a 66% return-to-work schedule for him that year for the purpose of determining his obligation to pay child support for 2021. The Ontario general minimum wage was $14.25 per hour for the period from January 1, 2021 to September 30, 2021 before it was increased to $14.35 per hour for the period from October 1, 2021 to December 31, 2021, respectively. Applying these figures, I find that it is fair and just to impute a total income of $16,393.42 to him for 2021.[^4] Based on this, table support for three (3) children is $229.00 per month for the period from January 1, 2021 to December 31, 2021, for a total of $2,748.00 (i.e., $229.00 x 12 months) in child support owing for 2021. Pursuant to the temporary child support order, the father actually paid $2,450.00 in total child support from March 1, 2021 to December 31, 2021 (i.e., $245.00 x 10 months). Accordingly, I find that it is fair and just for him to pay $298.00 in retroactive child support for 2021 (i.e., $2,748.00 - $2,450.00).
[107] In 2022, the father claims that he began to work as an Uber driver in May 2022, although he provided no records to corroborate this nor any medical information to suggest any employment limitations. Given the absence of any meaningful disclosure from the father, I accept the mother’s submission that income should be imputed to the father by roughly approximating a full-time minimum wage without any reductions to account for any employment limitations. The Ontario general minimum wage was $15.00 per hour from January 1, 2022 to September 30, 2022, and increased to $15.50 per hour for the period from October 1, 2022 to December 31, 2022. Based on these figures, I find that it is just and reasonable to impute a total income of $26,317.50 to him for 2022. [^5] Table child support for three (3) children on an imputed income of $26,317.50 is $544.00 per month, leaving the father owing $6,528.00 in child support for 2022 (i.e., $544.00 x 12 months). Pursuant to the temporary child support order, the father actually paid $2,940.00 in total child support from January 1, 2022 to December 31, 2022 (i.e., $245.00 x 12 months). Accordingly, I find that it is fair and just for the father to pay the mother retroactive child support of $3,588.00.
[108] The father produced no meaningful information to show his ability to work or his earnings in 2023. Applying the same approach to imputing his income, I find that it is just and reasonable to impute an annual income to him that approximates a full-time minimum wage income from January 1, 2023 to November 30, 2023. The Ontario general minimum wage was $15.50 per hour from January 1, 2023 to September 30, 2023, and increased to $16.55 per hour for the period from October 1, 2023 to November 30, 2023. Applying these figures, I find it to be just and reasonable to impute a total income to him of $27,426.75 for 2023.[^6] Table child support for three (3) children on an imputed income of $27,426.75 is $568.00 per month, which leaves him owing child support of $6,248.00 for the period from January 1, 2023 to November 30, 2023. In order to have complied with the temporary child support order, the father would have paid $2,695.00 in total child support from January 1, 2023 to November 30, 2023 (i.e., $245.00 x 11 months), leaving him owing $3,553.00 in retroactive child support.
[109] Starting on December 1, 2023, I find that the father should pay ongoing monthly child support of $598.10 per month by imputing an annual $28,797.00 income to him based on a full-time minimum wage position, which I find to be just and reasonable in all of the circumstances. As of December 1, 2023, the Ontario general minimum wage is $16.55 per hour.[^7]
[110] Accordingly, I find that the father should pay the mother $22,163.00 in retroactive child support arrears (i.e., $8,568.00 + $6,156.00 + $298.00 + $3,588.00 + $3,553.00) for the period running from the date of separation of October 1, 2017 until November 30, 2023, respectively. To avoid any financial hardship, I find that the father’s obligation to pay this amount of retroactive child support should be offset against his equalization payment from the mother.
Outcome
[111] Accordingly, I make the following orders:
a. The Respondent mother shall provide the Applicant father with an equalization payment of $134,456.63 based on a separation date of September 30, 2017;
b. The trust claim by the Respondent maternal grandfather is dismissed;
c. The Applicant father shall pay the Respondent mother $22,163.00 in child support arrears, which shall be offset against his equalization payment;
d. Starting December 1, 2023, the Applicant father shall pay ongoing child support of $598.10 per month (i.e., based on an imputed annual income of $28,797.00);
e. Either party may proceed to obtain a divorce on an uncontested basis; and
f. Pre and post judgment interest is awarded as set out under the Courts of Justice Act, RSO 1990, c. C.48.
[112] A final order may issue to give effect to these reasons.[^8]
[113] If the parties are unable resolve the issue of costs for this motion, the father may deliver written costs submissions of up to 3 pages (excluding any costs outline or offer to settle) within 15 days, and the mother and the maternal grandfather may deliver responding costs submissions on the same terms within a further 15 days. Reply submissions shall not be delivered without leave.
Date: November 24, 2023 M.T. Doi J.
COURT FILE NO.: FS-17-90650
DATE: 2023 11 24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Oluwaremy Abbey Ogundipe, Applicant
AND:
Bolatito Olajumoke Apata and Samuel Afolabi Apata, Respondents
BEFORE: M.T. Doi J.
COUNSEL: Chaitali H. Desai, for the Applicant
Bolatito Olajumoke Apata and Samuel Afolabi Apata, self-represented Respondents
REASONS FOR JUDGMENT
M.T. Doi J.
DATE: November 24, 2023
[^1]: The father’s actual income figure of $59,566.98 for 2017 is drawn from the father’s bank statements at Exhibit 7 of the trial record based on the total of the following monthly payments to him from his holding company, Stellar Roadside, through which he earned the following monthly income (i.e., from January to December 2017) as roadside-assistance operator: $2,255.96 + $5,626.88 + $6,132.71 + $5,066.47 + $4,688.25 + $6,667.50 + $2,760.75 + $5,731.27 + $6,919.80 + $4,362.83 + $4,686.95 + $4,667.61 = $59,566.98).
[^2]: The father’s actual income figure of $34,847.63 for 2018 is based on: a) his total earnings from Stellar Roadside of $28,847.63 from January to June 30, 2018 (i.e., based on monthly earnings of $4,771.04 + $4,149.42 + $6,172.50 + $4,358.85 + $5,052.63 + $4,343.19) as set out in his bank statement at Exhibit 7 of the trial record); and b) $6,000.00 reflecting his $4,800.00 in IRB’s from July to December 2018 (i.e., based on $800.00 per month) + a 25% gross up (i.e., $1,200.00) to reflect the tax-free nature of the benefit
[^3]: The father drew $630.00 in income from Stellar Roadside in January 2019, as set out in Exhibit 7.
[^4]: The $16,393.42 imputed annual income figure for 2021 is based on the following calculation: ($14.25 per hour x 7.25 hours/day x 3.3 days per week (i.e., based on a 66% work schedule) x 4 weeks per month x 9 months (i.e., January 1, 2021 to September 30, 2021) + ($14.35 per hour x 7.25 hours/day x 3.3 days per week x 4 weeks x 3 months (i.e., from October 1, 2021 to December 31, 2021) = $16,393.42.
[^5]: The $26,317.50 imputed annual income figure for 2022 is based on the following calculation: ($15.00 per hour x 7.25 hours/day x 5 days per week (i.e., to approximate on a full-time work schedule) x 4 weeks per month x 9 months (i.e., January 1, 2022 to September 30, 2022) + ($15.50 per hour x 7.25 hours/day x 5 days per week x 4 weeks x 3 months (i.e., from October 1, 2022 to December 31, 2022) = $26,317.50.
[^6]: The $27,426.75 imputed annual income figure for 2023 is based on the following calculation: ($15.50 per hour x 7.25 hours/day x 5 days per week (i.e., to approximate a full-time work schedule) x 4 weeks per month x 9 months (i.e., January 1, 2021 to September 30, 2021) + ($16.55 per hour x 7.25 hours/day x 5 days per week x 4 weeks x 3 months (i.e., to reflect the period from October 1, 2023 to December 31, 2023) = $27,426.75.
[^7]: The $28,797.00 imputed annual income for the father from December 1, 2023 onwards is based on the following calculation: ($16.55 per hour x 7.25 hours/day x 5 days per week (i.e., to approximate a full-time work schedule) x 4 weeks per month x 12 months per year = $28,797.00.
[^8]: I may be spoken to within 30 days of the release of this decision should any calculation issues arise with respect to my decision.