Court File and Parties

COURT FILE NO.: FC-18-1726 DATE: 2024/01/23 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

OZCAN ILASLAN Applicant – and – JULIE ALMA POIRIER Respondent

Counsel: Self-Represented, for the Applicant Self-Represented, for the Respondent

HEARD: December 1, 4, 5, 6 and 7, 2023 (In Ottawa)

Decision Audet J.

Introduction

[1] A trial was held in this matter over the course of five days, for the Court to decide the following:

i. Whether the December 3, 2012, Separation Agreement entered into by the parties is void because they reconciled for more than 90 days after signing it. This raises the issue of when the parties separated on a final basis; in September 2014 as advanced by the Applicant, or at some point in November 2012 as advanced by the Respondent;

ii. If the agreement is void on the basis that the parties reconciled for more than 90 days after executing the 2012 Separation Agreement, how does that impact the Applicant's claim to an interest in a property that was transferred from the parties’ joint names to the Respondent’s sole name by virtue of the Separation Agreement, in light of the provision contained in the agreement which provides that becoming void does not impact or invalidate any transfers or payments made under the agreement prior to becoming void;

iii. If the agreement is void, whether the Applicant is entitled to a constructive trust remedy to one-half of the equity in the Portland Avenue property as of September 2014 (presumably based on unjust enrichment although the particulars of this claim were never properly pleaded), and whether the doctrine of "clean hands" impacts the Applicant’s trust claim;

iv. If the agreement is void, the impact of the Applicant’s January 2013 bankruptcy on his capacity to pursue a claim for an interest in an asset he says he had an entitlement to prior to him declaring bankruptcy;

v. Whether the Applicant is entitled to spousal support on a needs basis, even if the agreement is valid, and if so, whether the Respondent is entitled to child support for the period from separation to when the children became independent;

vi. What income should be imputed to the Applicant to determine child support and/or spousal support.

[2] It is important to note that the above issues were properly articulated not by the Applicant himself, but by Justice MacEachern after considerable case and trial management efforts. Although the Applicant attempted to expand his claims for relief during this trial (for instance, by seeking an interest in today’s fair market value of the property, and an interest in the Respondent’s RRSPs and other assets), for the same reasons as those set out in Justice MacEachern’s endorsements of June 15, 2022, and February 21, 2023, I made it clear to the Applicant that I would not entertain such claims in this trial.

Preliminary Comments – Trial with Self-Represented Litigants

[3] The claims made by the Applicant in this matter raise complex legal principles. It would have been trying, even for an experienced counsel, to cogently and convincingly present all the relevant evidence necessary to support these claims. For a self-represented party, this was simply an impossible task, no matter how knowledgeable or skilled that self-represented individual might be. The Applicant in this case had very little understanding – if any – of the legal principles applicable to his claims, or of the evidence he needed to adduce to prove them. His understanding of the trial process, including what was relevant evidence and how to present it, was extremely limited.

[4] The Applicant was self-represented for most of this proceeding. His pleadings were fraught with problems and the legal issues he raised several years after the parties’ separation, which were tried more than ten years later, necessitated a massive amount of disclosure which became a whole separate litigation in and of itself, taking up an enormous amount of judicial resources over the course of almost five years.

[5] To add to these significant challenges, this trial proceeded with two self-represented litigants who, with no legal training, struggled to focus on what was relevant to the legal issues before the Court, as opposed to what appeared relevant to them on a personal basis. In that context, cross-examination became an opportunity for them to prolong their decades-long spousal conflict, re-victimize each other, and vent once more all the wrongs they felt they had suffered at the hands of each other (relevant or not) in a different forum.

[6] There is something very wrong about our adversarial system when it becomes the only option available to self-represented litigants to resolve their family disputes.

[7] In many ways, this proceeding was an unfortunate waste of important and scarce judicial resources over the course of five years. Despite countless court appearances, including many conferences in which dedicated and experienced family judges tried to make the parties understand the process, the evidentiary burdens, the legal issues and the complexity of a trial, by the end of day four of this trial, the Applicant was still unable to articulate with any specificity the relief he was seeking from the Court. “I want my rightful share of the home” and “I am entitled to spousal support” were his ultimate requests, which he was still unable to quantify with any degree of specificity (the home was never professionally appraised on the different dates he claimed a share in it, and “whatever you feel is appropriate” was how he quantified his spousal support claim). I was bombarded with thousands of pages of documentary evidence (some relevant, some not) going back more than fifteen years, and I was left as the trial judge with the Herculean responsibility of formulating the Applicant’s claims, quantifying them and generally sorting all this out for these parties.

[8] I am not making these preliminary comments to shame the parties. They did the best they could with the knowledge they were able to gain from all the resources they were directed to over the years by various people. The Respondent, in particular, had been able to retain counsel to guide her through this process and she was somewhat organized, although she had difficulty focusing on (only) what was relevant.

[9] I am making these preliminary comments to reiterate what has been stated over and again by countless legal professionals, scholars, and judges from all levels of court over the course of too many years. [^1] Our adversarial system, no matter how much effort we devote to making it user-friendly, is not suited for self-represented litigants. The resources available within our judicial system, including judicial resources, are stretched way too thin to leave it to the Court to sort out extremely important family issues with self-represented litigants who have no legal training, and most of whom are unable to present their case in any meaningful way in the context of what is a very complex and rule-driven adversarial process.

Background

[10] The parties were never married. When they began cohabiting in April 1991, the Applicant was still married to his former spouse with whom he had three dependent children. At that time, the Respondent was completing her college degree in nursing and working as a cashier. The Applicant was beginning to work as a waiter.

[11] The Respondent completed her nursing degree in 1993 and began working at the General Hospital immediately after, as a nurse. A few years later, in October 1995, she gave birth to the parties’ twin girls; Sera and Birsen (these children are now 28 years old). After her maternity leave, the Respondent resumed her employment as a nurse on a casual basis.

[12] In September 1997, the parties purchased the property located at 1239 Portland Avenue, in Ottawa (“the Property”). Title to the Property was held in the parties’ joint names and was re-mortgaged from time to time during the parties’ relationship to pay off debts. The basement of the Property was rented out, and the rent was used to pay off part of the mortgage and house related expenses.

[13] In August 2009, the Applicant suffered a workplace injury, and from that moment he was never gainfully employed again. After an unsuccessful labor dispute with his former employer, and attempts to obtain WSIB benefits, he successfully applied for ODSP benefits, which he continues to receive to this day. More about this later.

[14] On December 3, 2012, the parties signed a Separation Agreement (“the 2012 Agreement”). The agreement provides for the Property to be transferred to the Respondent's sole name in exchange for the payment to the Applicant of $130,000, and the Respondent assuming sole liability for the mortgage and all house-related expenses. The agreement also provides that no child support would be payable by the Applicant to the Respondent (both children were to remain in the Respondent’s primary care) and contains a mutual waiver of spousal support as well as mutual releases with regards to property.

[15] In relation to the Property itself, the agreement confirmed the fair market value of the Property (which was professionally appraised at the time) and quantified the equity at $219,855. Although the Applicant’s 50% interest in the home would have been $109,927.50, the parties agreed that the Applicant would pay the amount of $130,000 in full settlement of all claims. Title to the Property was transferred from the parties’ joint names to the Applicant’s sole name shortly thereafter, and the Applicant paid the Respondent the agreed upon sum of $130,000, directly from the mortgage refinancing (from the Applicant’s lawyers’ trust account).

[16] Although it was clearly understood that the Agreement contemplated the Applicant’s immediate departure from the home, it took six years for him to leave. It was only in September 2018 that the Applicant finally left the home after the police got involved (once again). From the date of the 2012 Agreement until the Applicant vacated the home in 2018, it is the Applicant who paid 100% of all expenses related to the Property including the mortgage, property taxes, utilities, and household expenses. The Applicant never paid rent.

[17] The Applicant takes the position that the parties reconciled within three months after signing the 2012 Agreement, and that it is only in September 2014 that they finally separated, once it became clear that the relationship was at an end and could not be salvaged. He says that at that time, the parties began sleeping in different bedrooms. For that reason, he takes the position that the parties separated for a final time in September 2014, and that the 2012 Agreement became null and void as a result of their prior reconciliation.

[18] It is important to note that in the intervening time (between the execution of the 2012 Agreement and September 2014), a number of important things happened. The importance of these events will become clear later in these reasons.

[19] Firstly, on December 8, 2012 (the day after the Applicant received his $130,000 settlement), the Applicant had a car accident on his way back from a short trip to the Montreal casino. Although he did not suffer any serious physical injury (he was released from the hospital on the same day), he complained of generalized pain for a long period of time thereafter.

[20] Secondly, on December 17, 2012 (two weeks after the Applicant signed the 2012 Agreement and one week after he received his financial settlement of $130,000), the Applicant served his ex-wife with the Divorce Application that he had originally filed with the Court on December 19, 2011. The uncontested divorce was granted by the Court on March 1, 2013.

[21] Thirdly, in the Spring or Fall of 2013, the Applicant lost his labor dispute against his former employer (or his union, that was not clear) in relation to the injury he allegedly suffered at work in 2009, and he was ordered to pay significant costs.

[22] Fourthly, on December 2, 2013 (one year after he signed the 2012 Agreement and received his financial settlement), the Applicant filed for bankruptcy. He had debts exceeding $45,000 (comprising of credit cards, legal costs and money owing to the government) and his only asset was a locked-in RRSP in the amount of $15,402 which was exempt from bankruptcy. The Applicant was discharged absolutely on May 22, 2015.

[23] Lastly, in February 2014, the Applicant suffered a heart attack. Later that year (or maybe the year after), he underwent a knee surgery.

Analysis

1- Is the 2012 Separation Agreement valid?

[24] It is important to note that the Applicant in his Application [^2] did not allege that the 2012 Agreement was invalid based on any of the circumstances listed in s. 56 of the Family Law Act, R.S.O. 1990, c. F.3 (hereinafter “the Family Law Act”). His only claim was that the 2012 Agreement is invalid because the parties resumed cohabitation for the purpose of reconciling for a period of more than 90 days (the 2012 Agreement required a reconciliation of at least 90 days to void it) [^3].

[25] I come to the conclusion that the parties never reconciled after they signed the 2012 Agreement. In fact, their relationship was over well before they finally entered into this separation agreement, although it was only formalized when they executed the 2012 Agreement. As will be explained in more detail below, I do not believe that the Applicant ever intended to leave the home, as contemplated by the parties’ agreement, and I strongly suspect that he had other underlying motives when he entered into the agreement. Subsequent events out of the Respondent’s control (the Applicant’s car accident, his bankruptcy, his heart attack, his knee surgery) provided the Applicant with the excuses he needed to extend his stay in the home during the first few years, after which it became increasingly difficult for the Respondent to have him removed. I find that the Applicant remained in the home purely for financial reasons, and that he financially abused the Respondent during the six years that followed. I come to these conclusions based on the following findings of facts.

[26] The Applicant suffers from a serious addiction to gambling. The evidence presented at trial in that regard is undisputable. The Respondent became aware of the Applicant’s passion for gambling approximately three years into the relationship. However, the Applicant’s gambling addiction became increasingly serious over the years. The Respondent testified (and this was not disputed) that very soon after the parties purchased their joint property in 1997, she closed the joint bank account that the parties had together to pay the mortgage and household expenses because she realized that the Applicant was misusing those funds at various casinos. From that date forward, the parties each had their own bank and savings accounts, and other than their joint home, they did not own any other assets jointly, nor were they joint owners of any credit cards, lines of credit, or other debts.

[27] As stated earlier, from the moment the Applicant suffered a workplace injury in 2009, he was never gainfully employed. His income comprised of employment benefits, disability benefits and, after his December 2012 car accident, various insurance benefits. From 2009 onwards, it is the Respondent who assumed all the household expenses, including expenses related to the home and the care of the parties’ two children. I find as a fact that from 2009 onwards, the Applicant’s contributions to the household expenses was minimal to non-existent. He spent most of the money he had access to at the casino.

[28] During the course of this trial, the Applicant’s historical gambling activity ( Sommaire des activités de jeu produced by Casinos du Québec ) was adduced in evidence. The summary only covered the period of 2014 to 2022 inclusively and included a month-by-month activity report of the Applicant’s gambling activity. Unfortunately, records for years prior to 2014 were no longer available. However, there is no question based on the evidence before me that records for previous years would tell the exact same story as the records for the years 2014 onwards did.

[29] Although I accept the Applicant’s evidence that he would sometimes lend his gambling card to friends to allow them to play at the Montreal and Gatineau casinos without being discovered by their spouses, and that the amounts shown on his gambling chart refer to the total money gambled as opposed to the actual amounts spent (the same dollar can be gambled more than once on any given day), it nonetheless shows the magnitude of the Applicant’s gambling activity over those years.

[30] These records also show that every time the Applicant came into money for whatever reason, his gambling activity significantly increased during the months that followed. For instance;

• In April 2014, the Applicant cashed out $8,000 from his locked-in RRSP (which had been left untouched by his bankruptcy). In January 2015, he cashed out the balance of $5,294. His gambling activity during the months that followed these transactions significantly increased;
• In 2016, the Applicant received a retroactive payment following his claim for CCP disability benefits (going back to many years). The total amount received was roughly $47,000. In the months that followed, his gambling activity significantly increased.

[31] Indeed, looking at these records and the Applicant’s banking records (going back some ten years) makes it clear that when the Applicant had no money, and relied solely on his meager income to gamble, his gambling activities were modest, and sometimes non-existent for many months. Then, whenever he was in receipt of money of any kind, it would be completely wasted at the casino over the months that followed.

[32] It became obvious to me hearing the Respondent’s testimony as well as the testimony of the other witnesses who came to testify at this trial (including the parties’ own adult daughter) that the Respondent has been the victim of significant financial abuse on the part of the Applicant during and after their relationship, due in large part to his gambling addiction. When he wanted money to play at the casino, he could call at all hours of the night demanding that the Respondent send him money. During those calls, he could be quite abusive. The Applicant’s gambling addition caused significant conflict at home (which included yelling and screaming), to which the parties’ two children and the parties’ tenant (who also testified in this trial) were significantly exposed to.

[33] The Applicant’s evidence in relation to the circumstances leading to the execution of the 2012 Agreement was simply not credible. His theory of the case was that the Respondent had always wanted to get married to him, but that she was afraid that the Applicant’s ex-wife would come after the parties’ joint home if divorce proceedings were initiated. The Applicant had never paid child or spousal support to his ex-wife and children, and their property rights were never settled or adjudicated upon.

[34] According to the Applicant, it is for the purpose of shielding their home from the reach of his ex-wife that the Respondent arranged for the parties to sign a separation agreement allowing for the transfer of the home to the Respondent’s sole name. This, he explained, is supported by the fact that almost all the money he received from the Respondent ($130,000) following the execution of the separation agreement was immediately paid back to the Respondent and deposited in her own bank account. This, in his submission, was clear evidence that the whole arrangement was just a scheme orchestrated by the Respondent, and in which he willingly but naively participated.

[35] That theory did not hold true in light of all the evidence presented in this trial. While it is true that a significant part of the monies paid by the Respondent to the Applicant were deposited in the Respondent’s own bank accounts, the evidence before me confirms that it was all paid back to the Applicant within months of receipt. Furthermore, the undisputed evidence makes it clear that the Applicant spent (and lost) all that money at the casino. Within one year of receiving this amount, the Applicant had nothing left, had accumulated over $45,000 of debts, and was filing for bankruptcy.

[36] I accept the Respondent’s evidence in relation to the following events. The parties’ relationship had deteriorated significantly over the years that led to the separation agreement being signed in 2012. I accept that it is the Applicant, not the Respondent, who advised at some point in 2012 that he wanted a formal separation and access to his equity in the home. Given the state of the parties’ relationship by 2012, the Applicant’s suggestion that the Respondent wished to get married is simply ludicrous. The Respondent testified, and I accept her testimony in that regard, that the last thing she wanted at the time was to marry the Applicant.

[37] Over the course of many months leading up to December 2012, the parties discussed and negotiated the terms of their separation. The Respondent drafted terms of settlement which she submitted to the Applicant, and he provided input. Eventually, the Respondent retained a family lawyer to formalize the terms that the parties had agreed upon.

[38] Even though the Applicant’s 50% share of the equity in the home was $109,927.50, which is the amount her lawyer had originally incorporated into the agreement, the Applicant struck that amount and wrote $130,000, which he insisted upon before he signed the Agreement. It is not disputed that the handwriting on the 2012 Agreement reflecting this change was the Applicant’s.

[39] The Respondent eventually agreed, and she signed the Agreement in the presence of her lawyer on November 28, 2012. It was only on December 3 that the Applicant signed the Agreement in front of his (then) friend, Mr. Yildiz (he chose not to retain counsel). The Respondent, who had already arranged for new financing in her sole name retained a real estate lawyer to complete the transaction. On December 7, 2012, the Applicant attended the Respondent’s real estate lawyer’s office to sign the transfer documents and at his request, was hand delivered two bank drafts; one in the amount of $20,000, and the second in the amount of $110,000.

[40] During his testimony, the Applicant claimed that he had never signed the property transfer and that this transfer had been arranged by the Respondent without his knowledge or consent, with the aid of her real estate lawyer, fraudulently. He claimed that the parties had never intended to go through with the actual transfer, as they believed that the separation agreement in and of itself would be enough to shield the home from any claims by his ex-wife.

[41] The Applicant’s testimony in that regard is also unbelievable. The evidence before me (which includes the real estate lawyer’s final reporting letter, as well as the transfer register) convince me without any doubt that the Applicant signed all necessary transfer documents when he attended the Respondent’s lawyer’s office, and that he knew full well that the property would be transferred to the Respondent in her sole name. The Respondent would not have otherwise been able to obtain the financing necessary to pay off the Applicant’s settlement. Furthermore, the real estate lawyer retained by the Respondent would have also had to engage in this fraudulent scheme, which I am convinced he did not do.

[42] Although the Applicant claimed that a significant portion of his settlement proceeds was used to pay off the Respondent’s debts (credit cards and lines of credit), the bank records adduced in evidence by the Respondent clearly establish that this is untrue. The Respondent’s debts were all paid off directly by her real estate lawyer with the funds generated by the mortgage refinancing, as detailed in his final reporting letter. This was most likely a term of the refinancing imposed by the mortgagor.

[43] The parties only had one vehicle at the time of their separation, which was owned by the Respondent in her sole name. However, it was the Applicant who used it most of the time. Because the parties only had the one car (which by virtue of the 2012 Agreement was to be retained by the Respondent), they attended the real estate lawyer’s office together and after receiving their bank drafts (the Respondent was to receive approximately $10,000 from the mortgage refinancing), they drove to the bank together to deposit their respective bank drafts.

[44] The Applicant’s first bank draft, in the amount of $20,000, was deposited in his own bank account on that day. He then asked the teller to wire the sum of $4,000 to the Respondent, for a reason that remains unclear. The Applicant then gave the Respondent his other bank draft (in the amount of $110,000) asking her to hold it for him, which she did.

[45] The Applicant’s bank and credit card records for the month of December 2012 show unequivocally that over the course of the week that followed, the Applicant used up the entire amount he had left from the first bank draft ($16,000) to play at the casino. I find as a fact that the reason the Applicant gave his $110,000 bank draft to the Respondent to hold was because he did not want to take the risk of spending it all at the casino.

[46] It is interesting to note that the Applicant’s car accident, which took place the day after he received his financial settlement, occurred while he was on his way back from the Montreal casino. It is equally interesting to note that, while the Applicant alleged that he was in significant pain for many months following his car accident, his gambling history and bank records confirm that he spent over $5,500 at the Montreal casino on December 10, two days after his car accident.

[47] On December 18, 2012, the Applicant asked the Respondent to go to the bank with him to deposit his second bank draft, in the amount of $110,000. After he deposited it in his own bank account, and without prior notice to the Respondent, he requested the teller to wire the sum of $102,000 to the Respondent’s bank account. The Respondent testified, and I believe her, that she was stunned by this, but that she nonetheless did not raise objections or asked any questions.

[48] The Applicant maintained during his testimony that the Respondent’s acceptance of that money is undisputable evidence that his theory of the case is correct. I completely disagree. I accept the Respondent’s explanation as to why she accepted that money without asking questions. She explained (with significant emotion) that by that point, she had realized that she had been financially abused by the Applicant for many years. She was angry that she was left having to pay all the bills and supporting the entire family on her own while the Applicant claimed to be disabled, all the while “amusing himself” (her words) at the casino and on the internet. She was angry that she had just been forced to remortgage her home (again) to settle her affairs with the Applicant, who she knew would simply be dilapidating the entire amount at the casino. Given all this, she felt that if the Applicant wanted to give her the money for safekeeping, she was more than willing to accept it without asking any question. At least, she explained, when the Applicant called her in the middle of the night demanding money for gambling, she would be able to send him his own money instead of having to fight off his abuse.

[49] After the Applicant directed the bank teller to transfer $102,000 to the Respondent’s bank account on December 18, he directed the Respondent to transfer $71,000 of that money into a high interest bank account in her name, which she did. Over the course of the next three days, the total sum of $14,500 was transferred to the Applicant by the Respondent, at his request, and he gambled away all that money at the casino. On December 24, the Applicant requested that the Respondent invest the balance of his money held in her bank account into an RRSP, which she did.

[50] Over the course of the three months that followed, the Respondent transferred to the Applicant, at his request, $11,200 from her own bank account, which he spent at the casino.

[51] Then on March 26, 2013, the Applicant directed the Respondent to cash in his $56,000 RRSP, and to transfer him $5,000 immediately, which she did. Over the course of the next five weeks, and always at the Applicant’s request, the Respondent transferred to him the balance of the money she held for him in that account, which he depleted at the casino. The many bank statements, credit card statements and debit memos produced in evidence by the Respondent during this trial confirm unequivocally that the entire sum of $71,000 was paid back to the Applicant by the Respondent within less than five months.

[52] In addition to the above, and as stated earlier, the Respondent had transferred to him the total sum of $11,200 from her own monies, as well as $14,500 from the initial $30,000 transferred to her bank account on December 7. This does not include the many other amounts transferred from another account owned by the Respondent (a CIBC account), and the many cash payments she gave him over the course of that period of time.

[53] I find as a fact that by April 2013 (four months after the Applicant received his settlement), the Respondent had paid the Applicant back the entire $102,000 that he had deposited into her bank account on December 18, 2012. I further find that the Applicant depleted most, if not the entire amount, gambling at the casino.

[54] Based on all the evidence before me, I conclude that the Applicant wanted to formalize the parties’ separation by way of a formal agreement because it was his way of accessing his equity in the home to satisfy his gambling addiction. I also find that one of the reasons why he insisted on transferring all his money into the Respondent’s bank account (except for the first $20,000 which he quickly depleted at the casino) was to shield it from the potential reach of his ex-wife. This is why he felt safe reviving the divorce application that he had initiated one year before (with the assistance of the Respondent), and which had raised the ire of his adult children from his first marriage at that time. Now that he had nothing in his own name, it was safe for the Respondent to proceed with his divorce application, which he did at the end of December 2012.

[55] I find that the parties never reconciled after they signed the 2012 Agreement. For the reasons indicated earlier (the Applicant’s car accident, his bankruptcy, his heart attack, his knee surgery), the Respondent explained that there was never a good time in the first few years that followed the 2012 Agreement to force the Applicant out of her home. She testified that despite the constant conflict within the home, he was the father of her (then) minor children, [^4] and that she never had the heart to kick him out of the home, although she says (and I believe her) she told him many times that he needed to leave.

[56] By 2016, the conflict escalated to the point that the police had to intervene on a number of occasions. Criminal charges of mischief were laid against the Applicant in September 2018 but were later dismissed. With the assistance of his then lawyer, and after criminal charges were laid against him, the Applicant was able to successfully apply for subsidized housing and moved out of the home on or about September 2018. It is following his departure from the home that he initiated this court application. Although they continued to live under the same roof for six years following the 2012 Agreement, I find as a fact that the parties never reconciled.

[57] Based on all the above, I find that the Separation Agreement signed by the parties on December 3, 2012, continues to be valid and enforceable. As a result, the Applicant’s claims in relation to the Property are hereby dismissed.

2- Unjust enrichment

[58] Even if I am wrong in the above conclusion, I would not have granted the Applicant an equitable interest in the Property for several reasons. [^5]

[59] First of all, the Applicant’s claim for a 50% equitable interest in the increase of the equity in the home from December 2012 (when he was paid his 50% share as of that date) to September 2014 (when he claims that the parties separated for a final time) is not quantifiable. This is because I have been provided with no admissible evidence of the fair market value of the Property as of September 2014.

[60] Secondly, in order to grant the Applicant an equitable interest in the home based on unjust enrichment, [^6] I would have had to find that the Applicant conferred some form of benefit upon the Respondent, and that he suffered a corresponding deprivation, for no juristic reason: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 32.

[61] For the same reasons as those set out above, I find that the Applicant made no contribution whatsoever to the increased value and equity in the home between December 2012 to September 2014. The evidence before me clearly shows that the Applicant was not involved with the family or the children after 2012. He did not contribute to the mortgage, the household expenses or the children’s support in any way (admittedly by him), and I have been provided with no evidence of any benefit, financial or otherwise, that he might have conferred on the Respondent during that period of time, other than the few thousand dollars that he transferred to the Respondent from the initial $20,000 bank draft he received following the execution of the 2012 Agreement. Given what followed over the next six years, this modest contribution (the purpose of which continues to be unclear to me) falls significantly short of establishing unjust enrichment claim.

[62] As stated above, the Applicant never paid rent during the six years during which he remained in the Property following the execution of the 2012 Agreement. Instead, he was provided with six years of free room and board. If anyone was unjustly enriched over those six years, it is the Respondent not the Applicant.

[63] Unjust enrichment is an equitable remedy. A party who seeks the aid of equity must come to Court with clean hands: Campbell v. Szoke (2003), 45 R.F.L. (5th) 261 (Ont. S.C.), at para. 91, aff’d , 12 R.F.L. (6th) 263 (Ont. C.A.); Holland v. Holland (2007), 49 R.F.L. (6th) 97 (Ont. S.C.), at para. 13. In addition to my factual conclusions above, including in relation to the Applicant’s motives for depositing most of his settlement funds in accounts owned by the Respondent, I was quite troubled by the following evidence presented to me in this trial, which leads me to conclude that the Applicant did not come to court with clean hands.

[64] In October 2013, shortly after filing for bankruptcy, the Applicant entered into a Tenancy Agreement with his friend, Mr. Yildiz (the same person who witnessed his signature on the 2012 Agreement), who lives in Hammond in the County of Prescott-Russell. It is not disputed that the Applicant never intended to reside at Mr. Yildiz’s home, nor did he spend even one night there. In fact, the main purpose for the Tenancy Agreement (unbeknownst to Mr. Yildiz) was to allow the Applicant to claim Ontario Work benefits in that jurisdiction, which he did for a few months in addition to getting needed dental work covered by social services in that jurisdiction.

[65] The Applicant also represented to his Trustee in Bankruptcy that he lived at Mr. Yildiz’s address, using the Tenancy Agreement he signed throughout his bankruptcy proceedings to support his assertion. Pretending that he was living on his own and paying rent undoubtedly provided him with some financial benefits in the context of his bankruptcy. Mr. Yildiz testified in this trial and confirmed that the Applicant’s mail came to his house for several months, although he never lived there. While Mr. Yildiz was called as a witness by the Applicant himself, it became quickly evident that he did not harbour positive feelings towards the Applicant, and that they had not had contact with each other for many years. Mr. Yildiz did not appear to have known the reasons for which the Applicant sought to enter into a tenancy agreement with him, and he quickly put an end to this scheme after the Applicant’s mail began arriving at his home, even though that the Applicant did not live there.

[66] In addition to the above, the evidence shows that the Applicant received CPP disability benefits that were payable to his two adult children a few years after the parties’ separation, which he never paid back to them (although he may have had to repay some of these benefits to the government when the two children inquired to governmental authorities as to why they were not receiving these benefits and took steps to re-direct them to their own bank accounts).

[67] The evidence also confirms that the Applicant applied for and received significant CERB benefits during the COVID pandemic, as evidenced by his Notices of Assessment for the years 2021 and 2022, in circumstances where he was clearly not entitled to them having been unemployed and in receipt of disability benefits during those years.

[68] Finally, any interest the Applicant may have had in the increased value of the home between December 2012 until the date he was discharged from his bankruptcy in 2016 would have vested to his Trustee in Bankruptcy, not to him. The Applicant did not disclose his alleged interest in the Property to his Trustee at the time he filed for bankruptcy, nor at any time thereafter.

3- Is the Applicant entitled to spousal support based on needs?

[69] In his Application, the Applicant did not claim an entitlement to spousal support based on compensatory principles. He claimed entitlement based on needs. He never amended his pleadings to change his position even though he was given many opportunities to do so and provided with very clear directions in that regard by the case management judge.

[70] As a result, the only issue before me is whether the Applicant is entitled to spousal support based on his needs.

[71] I was provided with scarce information in relation to the Applicant’s income for the years preceding the parties’ separation. However, it is not disputed that until his workplace accident [^7] in 2009, the Respondent was employed on a full-time basis as a waiter at the Chateau Laurier and, later, as a banquet server at the Ottawa Convention Center.

[72] The Respondent testified that while he was paid minimum wages as a waiter, the gratuities he earned working for such reputable establishments “far exceeded his wages”, and at that time were not taxable in his hands. He stated that he would hand over all his gratuities to the Respondent in large amounts of cash for her to cover the family’s expenses. While I have no clear idea of the exact amount of income the Applicant was earning in that capacity (he did not adduce proof of his income for those years), the Respondent insisted that up until 2009, the Applicant was working part-time while caring for the children and he was the family’s breadwinner.

[73] The Respondent’s income from 2012 and the years that followed was as follows:

• 2012: $0
• 2013: CPP disability benefits of $8,035 (pre-bankruptcy) and $694 (post-bankruptcy)
• 2014: $14,216 (income tax return not provided, so the type of income is unknown)
• 2015: $7,302 (income tax return not provided, so the type of income is unknown)
• 2016: CPP disability benefits of $8,328
• 2017: CPP disability benefits of $8,428
• 2018: CCP disability benefits of $9,328
• 2019: CPP disability benefits of $10,650 and interest of $191, for a total of $10,841
• 2020: CPP disability benefits of $10,852, ODSP benefits of $1,690 and CERB of $10,000, for a total of $22,542
• 2021: CPP disability benefits of $10,960, social assistance benefits of $2,010 and CERB of $11,000, for a total of $23,970
• 2022: CPP disability benefits of $11,257 and social assistance payments of $2,307, for a total of $13,563.

[74] In addition to the above income, it is not disputed that in January 2016, the Applicant received a retroactive lump sum of $44,856 on account of past CPP disability benefits (although this does not appear in his income tax return). Also, for several years following his 2012 car accident, the Applicant received non-taxable car insurance benefits as follows:

• Medical and rehabilitation benefits totaling $49,366 (the limit under the car insurance policy was $50,000), which included a lump sum final settlement of $12,501 paid in February 2019;
• Monthly income replacement benefits (Non-Earner benefits) in the amount of $370 bi-weekly, from June 2013 (the Applicant received a retroactive lump sum payment of $18,209.55 in 2015) until he was deemed to no longer meet the test under the applicable legislation at some point in 2018.

[75] This means that from June 2013 to and including the first part of 2018, the Applicant received additional, non-taxable income of $9,620 per year.

[76] The Respondent’s income from 2010 to present was as follows, and comprised mostly of employment income:

• 2010: $85,042
• 2011: $83,455
• 2012: $93,890
• 2013: $94,408
• 2014: $96,758
• 2015: $75,819
• 2016: $79,702
• 2017: $82,313
• 2018: $59,363
• 2019: $55,264
• 2020: $64,092
• 2021: $65,795
• 2022: $65,192

[77] The Respondent was employed throughout as a nurse on a casual basis, and it is not disputed that her income up until 2017, includes significant overtime. She testified that, during the years preceding the parties’ separation, she had to work overtime to meet the needs of the family as the sole income earner. After the parties’ separation, in addition to being the family’s sole provider, she had a much larger mortgage to pay (having paid $130,000 to the Applicant) and needed to make provision for the children’s post-secondary expenses. Due to health reasons and the children’s decreasing needs (in 2018 they turned 23 and by the Spring had completed their first post-secondary education program), in 2018 she took on less overtime hours.

[78] Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so: Family Law Act, s. 30. The Separation Agreement signed by the parties in 2012 contained full and final releases of spousal support. The Court may set aside a waiver of the right to support contained in a domestic contract and may order spousal support in the following circumstances:

a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;

b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or

c) if there is default in the payment of support under the contract at the time the application is made.

[79] For reasons detailed below, I am of the view that the waiver of support contained in the parties’ Separation Agreement does not result in unconscionable circumstances. This leaves the question as to whether the waiver of spousal support should be set aside based on the principles set out by the Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303. [^8]

[80] The Miglin analysis involves a two-step analysis of different considerations. "Stage One" requires a consideration of the circumstances in which the agreement was negotiated and executed, in order to determine whether there is any reason to discount it on that basis: Miglin, at paras. 80-83. This first stage of the analysis also considers the substance of the agreement to determine whether its terms are in substantial compliance with the objectives of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.): Miglin, at paras. 84-86. These objectives include not only the spousal support objectives in s. 15.2(6), but also the general legislative objectives of finality, certainty and the invitation in the Act for the parties to determine their own affairs.

[81] Assuming the contract satisfies the analysis at Stage One, "Stage Two" of Miglin considers the current circumstances of the parties to determine whether the agreement still reflects their original intentions, as well as the extent to which the agreement is still in substantial compliance with the objectives of the Divorce Act: Miglin, at para. 87.

[82] I have already explained the circumstances leading to the execution of the 2012 Separation Agreement. At that time, the Applicant received approximately $20,000 more than his fair share of the equity in the jointly owned home. This is an amount that he insisted upon, and which the Respondent agreed to pay in exchange for a full and final release of spousal support, which came with a full and final release of any obligation on the part of the Applicant to pay child support, at that time and in the future. Although the child support release is not binding on this court, the Respondent never sought child support other than as a defence to the Applicant’s claim for spousal support. In that sense, she honoured the deal reached by the parties in 2012, and supported the children for many years, including throughout their post-secondary education, without any assistance from the Applicant.

[83] I am of the view that the validity of the spousal support waiver contained in the parties’ Separation Agreement is not shaken at stage one of the Miglin analysis. For the reasons that follow, I am of the view that the spousal support release still reflects the original intentions of the parties, and that the agreement is still in substantial compliance with the objectives of the Family Law Act.

[84] First of all, I conclude that the Applicant is intentionally unemployed as defined by s. 19(1)(a) of the Child Support Guidelines, O. Reg. 391/97. After the Applicant lost his labour dispute in September 2013, he applied for benefits from the Workplace Safety and Insurance Board (“WSIB”) based on his 2009 workplace injury. He was not successful. The WSIB Commission concluded:

“I conclude all the conditions under the policy are not met and therefore, entitlement cannot be accepted. The policy indicates entitlement will be accepted where a CPD arises from a work-related injury and there is sufficient credible and objective evidence establishing the disability. The policy indicates there must be a work-related injury and that chronic pain must be caused by that injury, The policy indicates there must be "subjective and objective medical or non-medical evidence" of the worker's continuous, consistent and genuine pain since the time of the injury; and the pain must be compatible with the worker's injury. The pain must persist for six or more months beyond the usual healing time and the degree of pain must be inconsistent with the organic findings. Finally, there must be evidence of persistent effects of the chronic pain in terms of consistent and marked life disruption.

The first condition is met as a work-related low back injury occurred. The other conditions under the policy are not met; in relation to that low back injury.

The pre-injury chart records outline a history of psychological issues that required medication and psychiatric medical attention. These records also outline Mr. Ilaslan's non-work related gambling addiction and its impact on his personal life pre (and post) injury; problems he had with an employer to the point that he asked his family doctor about Canada Pension and the family doctor noting on the record Mr. Ilaslan was not motivated to work.

Shortly after the work accident Mr. Ilaslan began to complain/report pain and numbness in other areas yet on physical examinations essentially normal ROM and findings. These other areas are not compatible with the work injury. This also supports Mr. Ilaslan's subjective complaints of pain and reports of limitations are not compatible and consistent with the objective medical evidence. He was also involved in a significant MVA in December 2012 which is reported to have exacerbated his pain and impacted his function. The gambling addiction also continued to the point that the family doctor urged Mr. Ilaslan to get help for it due to the impact on his personal life. (my emphasis)

[85] When the Applicant was assessed for non-earner insurance benefits, his car insurer provider concluded that he was not entitled to those benefits in relation to any physical inability to work (“It is the opinion of the Orthopaedic Surgeon that you do not meet the Benefits criteria to be eligible for this benefit”). However, in 2015 he was found to meet a “complete inability to carry on a normal life on a psychological basis”. However, by mid-2018, the insurance company concluded that the Applicant no longer met that test, and his insurance benefits were terminated.

[86] I am of the view that the Applicant is intentionally unemployed since at least 2018. While I appreciate that he is 58 years old, and no longer has the ability to work as a server due to his age and lingering physical discomforts associated with his 2012 car accident (none of which supported a finding that he was unable to work), I am of the view that he was as of 2018 [^9] able to engage in other forms of employment and able to earn minimum wage income.

[87] The Applicant has provided no medical evidence supporting a continued inability to work due to physical or psychological issues. In March 2018 his non-earner insurance benefits, which he had been receiving since 2013, were terminated based on the conclusion that he was no longer deemed unable to carry on a normal life based on psychological reasons. The Applicant has provided no evidence whatsoever of ever having made any efforts to find employment after 2009, or after 2018 when his insurance benefits were discontinued. While I appreciate that he continues to receive CPP disability benefits to this day, I was not provided with any of the documents/evidence forming the basis of his CPP disability benefit entitlement, or of any recent re-assessment of his continued entitlement to same.

[88] Even if I am wrong in that conclusion, I find that the Applicant has received significant spousal support from the Respondent for the period of six years following their separation, in the form of free room and board. Since 2012, the Respondent has been the children’s sole provider. She has met all their needs on her own, including their financial needs, and post-secondary education needs (those not covered by the children themselves by their own earnings, OSAP and bursaries) without any contribution from the Applicant.

[89] At the time the parties separated, the children were 17 years old and still in high school. They both pursued post-secondary education and successfully completed a university degree in Health Sciences in the Spring of 2018. Birsen completed a Master’s degree in Occupational Therapy in August 2020, at age 24, and Sera completed a Masters’ degree in Speech Therapy in May 2022, at age 25. Although both girls worked part-time throughout their post-secondary degrees and contributed to their educational costs by obtaining student loans and bursaries, they continuously resided in their mother’s home during that time, and continued to be dependent on her for housing, food, transportation, and other day-to-day living expenses. In addition, the Respondent paid their master’s degree’s tuition with her own savings, as well as other post-secondary expenses that the children could not cover on their own.

[90] Finally, one cannot ignore that this family’s wealth has been significantly depleted by the Applicant’s gambling addition.

[91] For all these reasons, the Applicant’s claim for ongoing spousal support is dismissed.

Costs

[92] The Respondent was entirely successful in this matter. If the parties are unable to agree on costs payable by the Applicant to the Respondent, they are permitted to provide written submissions on costs not exceeding six (6) pages, double-spaced, in addition to a Bill of Costs and any relevant Offers to Settle exchanged during this proceeding in accordance with the following timelines:

• The Respondent shall serve and file her submissions by February 2, 2024;
• The Applicant shall serve and file his submissions by February 16, 2024;
• The Respondent’s reply, if any, shall be served and filed by February 23, 2024.

Madam Justice Julie Audet Released: January 23, 2024

Footnotes

[^1]: See e.g. Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants Final Report (Windsor: University of Windsor Faculty of Law, 2013), online: <scholar.uwindsor.ca/lawnsrlppubs/22>; Noel Semple & Nicholas Bala, Reforming Ontario's Family Justice System: An Evidence-Based Approach, 2013Docs 498, online: <canlii.org/en/commentary/doc/2013CanLIIDocs498>; Law Commission of Ontario, Increasing Access to Family Justice Through Comprehensive Entry Points and Inclusivity (Toronto: LCO, February 2013), online (pdf): <lco-cdo.org/wp-content/uploads/2013/06/family-law-reform-final-report.pdf>; Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (Ottawa: Canadian Forum on Civil Justice, October 2013), online: <digitalcommons.osgoode.yorku.ca/cfcj/58>. [^2]: It is important to note that when he filed his Application, the Applicant was represented by a lawyer. [^3]: While the Applicant tried to question the validity of the agreement on other grounds during this trial, these grounds had never been plead by him before and he was precluded from advancing them for the first time in this trial. [^4]: It is not disputed that the parties’ children did not maintain any form of contact with their father following his departure from the home. [^5]: It is important to note that the 2012 Agreement contained a provision stating that even if the agreement became null and void, any transfers or payments made to that time would not be affected or invalidated. As a result, the transfer of the Property to the Respondent’s sole name would not have been affected by a declaration that the 2012 Agreement was null and void. [^6]: In his pleadings and in the context of this trial, the Applicant claimed a “constructive trust” on the property. However, as has been explained to him many times over the course of this litigation, a constructive trust is a remedy for unjust enrichment, which is what he needed to prove in this trial. [^7]: I was provided with no evidence as to the nature of this workplace injury. However, WSIB documents provided suggest that the Applicant suffered a lower-back injury. [^8]: It is to be noted that the Applicant did not argue Miglin and did specifically seek to set aside the spousal support waiver contained in the 2012 Agreement either in his pleadings or in his oral submissions at trial. However, given his continued request for spousal support, I feel obliged to raise it and consider its impact on the Applicant’s claim. [^9]: And most likely well before that date.