Court File and Parties

COURT FILE NO.: FS-20-62 DATE: 04-17-2024

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Kimberly Ann Lefebvre Applicant

Esra Samli, for the Applicant

• and -

Ryan Moreau Respondent

Self-represented

HEARD: April 3, 2024

JUDGMENT

Wilkinson J.

[1] This matter proceeds as an uncontested trial, in which the Applicant, Kimberly Ann Lefebvre, seeks sole decision-making for the thirteen-year-old child of the relationship, and asks that his primary residence remain with her. Ms. Lefebvre also seeks a final order regarding parenting-time, communication between the parties, child support including arrears, section 7 expenses, and a claim for unjust enrichment pertaining to the matrimonial home.

[2] The Respondent, Ryan Moreau, appears to have been participating in the litigation until recently, including filing an affidavit sworn on January 15, 2024. However, he did not appear at a motion brought by Ms. Lefebvre in March 2024, and he does not appear for the trial despite being notified of the trial date by the trial office.

Background

[3] The parties began a common law relationship in August of 2009. The parties separated briefly in March of 2020, and then permanently on July 4, 2020. The matrimonial home was owned solely by the Respondent, Ryan Moreau, throughout the duration of the parties’ cohabitation.

[4] Ms. Lefebvre provided oral evidence that the Respondent, Mr. Moreau, regularly engaged in violent behaviours during the time that they lived together, resulting in criminal charges on at least one occasion. She further testified that communication between the parties is presently quite limited.

[5] Ms. Lefebvre provided a copy of the parcel registry of the matrimonial home to confirm that it was sold by Mr. Moreau on January 17, 2024 for $430,000. Ms. Lefebvre provided further oral evidence that she has been informed by Mr. Moreau’s son from a former relationship, W., that Mr. Moreau is continuing to reside at the property while renting from the new owners. As Mr. Moreau did not attend the trial, I have no reliable confirmation as to where he is presently living, or his plans for his future accommodations.

[6] Mr. Moreau has failed to comply with a financial disclosure Order from Rahman J., from February 8, 2023, which requires Mr. Moreau to provide financial disclosure including complete income tax returns for 2019, 2020 and 2021; Financial Statements for Mr. Moreau’s business from 2020, 2021 and 2022; and a statement of salaries paid, management fees, and other business expenses for Mr. Moreau’s company.

[7] Ms. Lefebvre also advises that Mr. Moreau has failed to comply with a March 13, 2024 Order from Emery J., compelling him to provide particulars regarding the sale of the matrimonial home.

[8] There are also three outstanding cost awards from August 25, 2020, October 18, 2023 and March 13, 2024 totalling $4,000, that remain unpaid by Mr. Moreau.

Sole Decision-Making Responsibility for B.M.

[9] Ms. Lefebvre provided both oral and affidavit evidence that from the time of B.M.’s birth, she has been the primary parent to make arrangements for B.M.’s medical, academic, and extra-curricular activities, including making medical appointments and other appointments for B.M., ensuring that he receives all prescribed medications, attending parent/teacher interviews, registering B.M. for activities and, in the past, helping B.M. access proper support from his school and other counsellors.

[10] In his affidavit, Mr. Moreau objects to Ms. Lefebvre having sole decision-making responsibility for B.M., yet he does not provide evidence as to why joint decision-making between the parties will be in the best interests of B.M. In addition, Mr. Moreau did not appear to provide evidence as to why this relief sought by Ms. Lefebvre should not be granted. Given that the parties rarely communicate, and given the evidence provided by Ms. Lefebvre as to her historic reasonable management of B.M.’s affairs, I am satisfied that it is in B.M.’s best interests for Ms. Lefebvre to have sole decision-making responsibility for B.M.

Primary Residence and Parenting-Time

[11] Ms. Lefebvre provided both oral and affidavit evidence that the parenting-time arrangements for B.M. have been working well, and have been in place for four years. B.M. spends every other weekend with each parent, and also spends Tuesday from after school until Wednesday morning when Mr. Moreau takes him to school. In the summers, there is a week-about parenting schedule in place.

[12] Ms. Lefebvre also testified that the current parenting schedule has been arranged to allow B.M.’s time with Mr. Moreau to coincide with the time that Mr. Moreau spends with W., his child from a previous relationship. Ms. Lefebvre testified that it is desirable to allow B.M. to have time with W. when spending time with Mr. Moreau. I agree.

[13] Mr. Moreau indicates in his affidavit that he seeks equal parenting time for B.M., but his affidavit does not provide specific evidence as to the reasons why granting equal parenting time will be in B.M.’s best interests. Mr. Moreau’s affidavit provides evidence of his past efforts in supporting B.M. in his extra-curricular activities, making meals for him, and caring for him when Ms. Lefebvre was working. However, this is a trial, and as Mr. Moreau did not attend the trial, his affidavit evidence remains untested.

[14] Ms. Allen attends the trial as counsel for B.M., to make submissions regarding B.M.’s views and preferences with respect to parenting-time. She indicates that B.M.’s views have consistently been that he wishes to spend equal parenting-time with both parents. Ms. Allen indicated that B.M. presents as a content and mature young man, who is clear in communicating his wishes. Ms. Allen confirms that B.M. reports that neither parent discusses the litigation issues in dispute with him.

[15] Ms. Lefebvre submits that the current parenting-time and residence arrangements which are well established and known by B.M., should remain in place to ensure stability for B.M., and also to ensure that he continues to spend time with his brother W. Given that the status of Mr. Moreau’s future accommodations are unknown, it is also recommended by B.M.’s lawyer that the status quo for parenting-time arrangements remain in place. I agree. I find that it is in B.M.’s best interests for the current parenting-time schedule to be followed, to ensure stability for B.M. and the parties, and to ensure that B.M. spends time with his brother W. Accordingly, I also find that it is in B.M.’s best interests that his primary residence remain with his mother, Ms. Lefebvre.

Communication Between the Parties

[16] All communication between the parties shall be via email, except in the event of an emergency. The parties will respond to all communication as soon as possible, and no later than 48 hours from first contact.

Child Support - Retroactive

[17] Ms. Lefebvre previously brought a motion seeking a temporary Order for child support, which I granted on October 18, 2023, imputing income of $53,813 to Mr. Moreau, and requiring him to pay monthly table child support of $497.00. Ms. Lefebvre now seeks for that Order to be declared a final order.

[18] Mr. Moreau has failed to provide current income information to both Ms. Lefebvre and to the court, in breach of the Order of Rahman J. Mr. Moreau has, however, provided evidence of his 2019 gross income of $53,813. In 2020, he initially agreed to pay child support at a rate of $497 per month based upon this income. The payments continued at that rate until November 2020, when Ms. Lefebvre testified that Mr. Moreau stopped making consistent child support payments.

[19] Ms. Lefebvre testified that in November 2023 Mr. Moreau made a payment of $2,500 that he indicates in his affidavit provided support payments for five months, to the end of March 2024. She provides affidavit evidence that in total his retroactive child support payments have been underpaid by $6,788. This amount remains due and owing to Ms. Lefebvre.

Final Order for Child Support

[20] Ms. Lefebvre asks that the temporary Order for child support at $497 per month be made into a final Order. Ms. Lefebvre testified that Mr. Moreau is a self-employed carpenter and landscaper. Mr. Moreau has failed to provide any additional information to the court to justify changing the quantum of the current Order for child support. Based on Mr. Moreau’s failure to provide financial disclosure in breach of the Order of Rahman J., and recognizing the income earning potential of his profession, I infer that his income is at minimum $53,813 gross per year. On a final basis, Mr. Moreau is ordered to pay child support of $497 per month starting April 1, 2024 and ongoing.

Section 7 Expenses

[21] Ms. Lefebvre testified that she works as an assembler. She provides her 2022 Notice of Assessment which indicates that her annual gross income in 2022 was $44,854. She also provides her 2023 Notice of Assessment which indicates that her gross income in 2023 was $45,536. Despite her income being less than the $53,813 annual income being attributed to Mr. Moreau, she is only requesting that Mr. Moreau pay 50% of all future section 7 expenses for B.M. In addition, although she has paid for past expenses such as his gym membership, school trips, and dental and medical expenses that exceed her coverage through work, she does not seek to be reimbursed for these expenses. Based on the respective incomes of the parties it is reasonable for Mr. Moreau to pay 50% of B.M.’s future section 7 expenses commencing on April 1, 2024.

Unjust Enrichment Claim

[22] Ms. Lefebvre testified that she moved into the matrimonial home in Georgian Bluffs, Ontario on August 9, 2009. She lived in that property continuously for almost eleven years, until she left the matrimonial home permanently on July 4, 2020.

[23] Ms. Lefebvre testified that Mr. Moreau owned the home when she moved in, and the title of the property was in his name only.

[24] Ms. Lefebvre further testified that the arrangement between the parties was that Mr. Moreau was supposed to be responsible for paying the mortgage, property taxes and the vehicle insurance, and she was to pay the rest of the household expenses, including vehicle loans, cell phones for both parties, groceries, heat, hydro, internet expenses, appliances, firewood, and maintenance for the property, including hiring electricians, plumbers, and replacing doors and flooring. She testified that she also paid for B.M.’s day care expenses when she returned to work. Ms. Lefebvre provided evidence that she used her line of credit and credit cards to pay for these expenses.

[25] Ms. Lefebvre also testified that Mr. Moreau had a gambling addiction, and that he often borrowed money from her to pay for the mortgage. To cover these expenses, Ms. Lefebvre testified that she worked all the overtime that she could obtain, and received payment for banked time and vacation.

[26] Ms. Lefebvre further testified that Mr. Moreau had advised her that he was going to sell the house, but she was unable to find a listing for it on the MLS. In February of 2024, she found out from a real estate agent that the property was sold privately on January 17, 2024. Ms. Lefebvre subsequently obtained the parcel registry for the property, which confirms that the property was sold for $430,000. Mr. Moreau has failed to provide Ms. Lefebvre with any documentation regarding the sale of the property, notwithstanding the March 13, 2024 Order from Emery J. to produce this information.

[27] Ms. Lefebvre points to the January 14, 2024 affidavit from Mr. Moreau in which he indicated that there was a mortgage of $151,000 on the property, and submits that Mr. Moreau received $279,000 net proceeds from the sale of the property. Ms. Lefebvre submits that a payment of $80,000 to her is appropriate to acknowledge Mr. Moreau’s unjust enrichment following the sale of the property. She points out that she lived almost eleven years in the property, and that she made significant financial contributions to maintain the property. She also paid for the day care expenses, the daily living expenses of the parties, and sometimes she loaned money to Mr. Moreau to pay for the mortgage.

[28] In his affidavit, Mr. Moreau denies that he has been unjustly enriched, and opposes any payments for same being made to Ms. Lefebvre. In his affidavit, Mr. Moreau claims that Ms. Lefebvre has never made a mortgage payment for the matrimonial home, and that he has provided the majority of financing for the family, including truck payments for one of the family vehicles, car insurance for both vehicles, utilities, home repairs, groceries, hydro payments, and internet payments. Mr. Moreau also provides a list of household contents and appliances that he claims that Ms. Lefebvre has sold since the date of separation. He also claims in his affidavit that Ms. Lefebvre took two vehicles with her when she left, which had a combined total value of $60,000. As Mr. Moreau did not attend the trial, this affidavit evidence remains untested. Accordingly, I am unable to rely upon it when considering the evidence at the trial. I accept Ms. Lefebvre’s oral testimony that her income was used to financially support the family, to maintain and repair the matrimonial home, and to sometimes pay for the mortgage payments.

[29] By solely retaining the net proceeds of sale from the sale of the matrimonial home, Mr. Moreau has retained a disproportionate share of the main asset from this eleven-year common law marriage. I accept Ms. Lefebvre’s evidence that she was the primary caregiver for the child of the relationship, and that she made substantial financial contributions to the family from which Mr. Moreau derived financial benefit. Having heard the evidence of Ms. Lefebvre, I am satisfied that her request for a payment of $80,000 is reasonable recognizing Mr. Moreau’s unjust enrichment following the sale of the matrimonial home. Mr. Moreau’s property increased in value while Ms. Lefebvre lived there. Ms. Lefebvre’s financial contributions to the home and the family entitle her to equitable relief on the basis of unjust enrichment.

[30] To establish unjust enrichment, the claimant bears the onus of establishing three elements: (1) an enrichment of the respondent, (2) a corresponding deprivation of the claimant, and (3) the absence of a juristic reason for the enrichment (Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 36-40; Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R. 303, paras. 35, 37). I find that Ms. Lefebvre has established these three elements. Mr. Moreau has benefited financially from the increase in value of the matrimonial home which Ms. Lefebvre helped to create by the financial support she provided to Mr. Moreau during the marriage. He has now sold the matrimonial home and has provided none of the proceeds of sale to Ms. Lefebvre. Finally, there is not sufficient evidence before me to justify why Mr. Moreau should be entitled to this enrichment.

[31] The Ontario Court of Appeal in Lesko v. Lesko, 2021 ONCA 369, provides guidance as to the appropriate remedy when there has been a finding of unjust enrichment. Brown J.A. states at para. 14:

The framework in which a court should assess the appropriate remedy was summarized by this court in Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 52:

In this way, the framework established in Kerr requires the court to ask the following questions:

1. Have the elements of unjust enrichment – enrichment and a corresponding deprivation in the absence of a juristic reason – been made out?;

2. If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money?;

3. If the answer to question 2 is yes, should the monetary damages be quantified on a fee-for service basis or a joint family venture basis?; and,

4. If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest?

[32] Considering the test as set out in Lesko, having made a finding that Mr. Moreau has been unjustly enriched, I must consider if monetary damages will be sufficient to address the unjust enrichment. In this case, as the matrimonial home has already been sold, monetary damages are the only remedy available to Ms. Lefebvre.

[33] On the evidence before me, I find that Ms. Lefebvre and Mr. Moreau were engaged in a joint family venture when Ms. Lefebvre’s financial resources were used by the parties to pay for numerous family expenses, including maintaining and repairing the matrimonial home, and by sometimes paying the mortgage payments, in addition to being the primary care provider for B.M.

[34] Ms. Lefebvre is awarded $80,000 to compensate her for Mr. Moreau’s unjust enrichment following the sale of the matrimonial home. This award is reasonable and just, given Ms. Lefebvre’s financial and other important contributions to the family for the almost eleven-year duration of the parties’ cohabitation.

Costs

[35] Ms. Lefebvre requests $5,000 in costs for the trial. Ms. Lefebvre provided a substantial affidavit for the trial, and also viva voce evidence. I am satisfied that $5,000 is a reasonable request for costs in the circumstances. I also note that Mr. Moreau has not yet paid the additional $4,000 that he owes to Ms. Lefebvre in outstanding cost awards.

Orders

[36] I make the following Orders on a final basis:

a) Ms. Lefebvre is to have sole decision-making responsibility for B.M.;

b) B.M. is to have his primary residence with Ms. Lefebvre;

c) The parties’ present parenting-time schedule shall remain in effect. As set out in the August 25, 2020 Order of Doi J., Mr. Moreau’s parenting-time shall be as follows:

i) Alternating weekends from Friday after school at 3:00 p.m., until Sunday at 8:00 p.m.;

ii) Every Tuesday from 3:00 p.m. until Wednesday before school at 8:30 a.m.;

iii) Shared summer holidays.

d) All communication between the parties shall be via email, except in the event of an emergency;

e) Mr. Moreau shall pay Ms. Lefebvre $6,788 in retroactive child support;

f) Mr. Moreau shall pay ongoing child support in the amount of $497 per month commencing on April 1, 2024;

g) Mr. Moreau shall pay 50% of B.M’s future section 7 expenses commencing on April 1, 2024;

h) Mr. Moreau shall pay $80,000 to Ms. Lefebvre in recognition of her claim for unjust enrichment;

i) Mr. Moreau is to pay Ms. Lefebvre $5,000 costs for this trial, combined with the $4,000 in outstanding cost awards, for a total outstanding combined cost award of $9,000; and

k) SDO to issue, which shall include the cost awards totalling $7,500 from the motions of August 25, 2020 and October 18, 2023 and the trial, all of which dealt with child support payments.

Released: April 17, 2024