Anthony v. Ogunbiyi, 2024 ONSC 7287

COURT FILE NO.: FS-20-98502

DATE: 2024 12 30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Austin Anthony, Applicant

AND:

Aderonki Ogunbiyi, Respondent

BEFORE: M.T. Doi J.

COUNSEL: Harpreet Singh Makkar, for the Applicant

Ajit Kaura, for the Respondent

HEARD: June 25, 26, 27 and 28, 2024

REASONS FOR JUDGMENT

Overview

[1] The Applicant father and the Respondent mother seek various relief due to the breakdown of their relationship. There are two (2) children from the relationship: M.I.A. (born June 29, 2005) and M.E.A. (born December 28, 2008). The issues for determination at trial include the primary residence of the children, decision-making responsibility, parenting time, child support, property claims (i.e., based on competing ownership and trust claims) in respect of a residential property, a claim for occupation rent, and other corollary relief.

[2] For the reasons that follow, I find that the father’s claim should be granted in part. In my view, it would be in M.E.A.’s best interests to primarily reside with the father, to have him exercise decision-making responsibility for her, and to share parenting time with the mother. As M.I.A. is 19-years old and mature, I decline to make orders for her primary residence, decision-making, or parenting time as I find that her preferences on these issues should be respected. As the children remain dependents of the parties’ relationship, I find that the mother should pay the father child support after vacating the disputed property, for which I am satisfied that she has no ownership or trust interest. In addition, I find that the mother owes the father occupation rent for a period of time in which she resided at the subject property. Subject to granting some corollary relief, the balance of the claims in the application and answer are dismissed.

Preliminary Issues

a. The Mother’s Answer

[3] At the outset of trial, the father asserted that the mother improperly amended her answer to include a constructive trust claim in contravention of a procedural direction that Shaw J. ordered on February 2, 2023.[^1] In light of this contravention, the father objected to the mother advancing her constructive trust claim at trial. After hearing submissions, I reserved my decision on the father’s objection and indicated that I would decide the matter after hearing evidence on this point in a blended voir dire along with the evidence at trial. As set out below, I find that an unintended procedural irregularity arose due to inadvertence by court staff. In addition, I am satisfied that leave should be granted for the mother to amend her answer, nunc pro tunc, to assert a constructive trust claim in this proceeding.

[4] By Endorsement released February 2, 2023, Shaw J. granted the father’s motion for partial summary judgment by declaring that the parties are not married spouses under ss. 1(1) of the Family Law Act, RSO 1990, c. F.3 (“FLA”) and, therefore, the family home is not a matrimonial home: Anthony v. Ogunbiyi, 2023 ONSC 861 at para 13. In addition, Shaw J. dismissed the father’s motion (i.e., brought as the common law “owner” spouse) for the mother (i.e., as the common law “non-owner” spouse) to vacate the subject residential home after finding that each party had led conflicting evidence of their financial contributions to the home that raised genuine issues for trial. Given Shaw J.’s finding that the parties were unmarried, and as the mother had pleaded only an equalization claim and not a constructive trust claim, Shaw J. ordered the mother to seek leave to amend her answer by March 1, 2023 to add a constructive trust claim failing which the mother was ordered to vacate the home by September 1, 2023: Anthony at para 28.

[5] On or about February 7, 2023, the mother tried to schedule a motion for leave to amend her answer in accordance with Shaw J.’s order dated February 2, 2023. In seeking to bring the leave motion, mother’s counsel filed a copy of Shaw J.’s Endorsement dated February 2, 2023 and specifically flagged the order directing a leave motion to amend the answer. However, court staff inadvertently came to the view that Shaw J. had granted leave to amend the answer and emailed mother’s counsel on February 7, 2023 that a leave motion was not required.[^2] In response, mother’s counsel simply proceeded to amend the answer without trying to correct court staff or otherwise taking any steps to seek leave to add a constructive trust claim as Shaw J. had directed. In turn, the mother served and filed her amended answer on February 17, 2023 along with a copy of the email from court staff dated February 8, 2023.

[6] Taking this all into consideration, and in light of the incorrect information that court staff inadvertently gave after mother’s counsel tried to schedule a leave motion to amend the answer, I am persuaded that the mother did not intentionally fail to comply with Shaw J.’s order dated February 2, 2023 as the father now claims. It clearly would have been preferable for mother’s counsel, as an officer of the court, to take steps to rectify court staff’s apparent misunderstanding and bring the leave motion as Shaw J. had ordered: Anthony at para 28. Nevertheless, the law will not normally allow an innocent client to suffer the irrevocable loss of a right to proceed due to inadvertence by their counsel: Koohestani v. Mahmood, 2015 ONCA 56 at para 62.

[7] In the circumstances of this case, I am persuaded that the mother’s failure to obtain leave to amend her answer resulted from inadvertence and was unintentional. In my view, it would be just and appropriate to grant her leave to amend her answer to include the constructive trust claim. The test for granting leave strongly favours amendments being allowed unless prejudice is shown: under Rule 11(3); Studley v. Studley, 2022 ONCA 810 at para 15. I do not find that granting the mother leave to amend the answer to allow the trust claim would prejudice the father, as he clearly knew of her intention to pursue the claim when the motion before Shaw J. was argued. Moreover, the father did not claim any prejudice beyond asserting that the mother wilfully disregarded court orders to gain a litigation advantage. Taking everything into account, including the inadvertent information conveyed by court staff, I find it to be in the interests of justice to grant leave nunc pro tunc for the mother to amend her answer to include the constructive trust claim.

b. Lack of Notice under s. 35 of the Evidence Act

[8] During the father’s cross-examination, the mother sought to introduce a series of cheques and other financial records. The father objected to this evidence as the mother failed to give the required 7-day notice under ss. 35(3) of the Evidence Act, RSO 1990, c. E.23 for this evidence to be adduced at trial. I reserved my decision on the objection and heard evidence for this objection on a blended voir dire with the evidence at trial. As set out below, I find that this evidence should be admissible.

[9] Both sides acknowledge that the mother gave no notice as required under ss. 35(3) of the Evidence Act.

[10] Despite a party’s non-compliance with the requirement under ss. 35(3) for notice to introduce business records, the court may, in the circumstances of a trial, exercise its discretion to admit this evidence: Kumsathira v. Pembridge Insurance Company, 2007 ONCA 53 at para 3. The purpose of the notice requirement under ss. 35(3) is to avoid surprises at trial and ensure that a party knows the case they need to make in preparing for trial. I add that the most basic obligation in family law is the duty to disclose financial information, and that a party’s failure to abide by this fundamental principle impedes the progress of family litigation, causes delay, and generally acts to the disadvantage of the other party and the administration of justice: Roberts v. Roberts, 2015 ONCA 450 at paras 11-12. I acknowledge the importance of having relevant and probative evidence before the court so it has the best possible evidentiary record for its consideration.

[11] In objecting to the admission of the mother’s financial records at trial, the father further argued that the mother has been chronically non-compliant with procedural rules and court orders that required her to make financial disclosure throughout the course of this litigation. Although the father served a request for information (“RFI”) on June 29, 2021, the mother did not respond: Rule 13(11)(b). On July 22, 2021, Bielby J. ordered the mother to respond to the father’s RFI within 14 days but she did not comply. The father then questioned the mother in February 2022, whereupon she refused to answer 8 questions and failed to answer her 15 undertakings. On July 28, 2022, Agarwal J. ordered the mother to answer her refusals and undertakings by August 26, 2022.[^3] Thereafter, the mother served the father with two (2) affidavits sworn August 26, 2022 with partial answers to her outstanding refusals and undertakings. The mother subsequently served a 10-page affidavit sworn September 25, 2022 that attached 113 pages of exhibits in further response to Agarwal J.’s order dated July 28, 2022, that included her August 26, 2022 affidavits. Among other things, the September 25, 2022 affidavit disclosed statements for a bank account that the mother had not disclosed in her Financial Statement sworn October 27, 2020, which is the only financial statement that she has delivered in this proceeding. In addition, the mother further served an affidavit sworn December 6, 2022 to provide answers to outstanding refusals and undertakings. Notably, most of the cheques and other financial records that the mother sought to adduce at trial were included in the materials that she late-served on the father in her efforts to belatedly comply with Agarwal J.’s order dated July 28, 2022.

[12] Having regard to the circumstances of this case, I found that it would be appropriate to exercise my discretion to allow the mother to adduce the subject cheques and financial records into evidence. The father acknowledged that the mother paid him the amounts reflected in the cheques, testified that these payments comprised his share of the child tax benefit that the mother had initially received and then paid to him to share the benefit (n.b., although he disagrees with her claim that certain amounts beyond the child tax benefit were paid to him), and has not asserted any particular prejudice by the admission of these documents. I also accept that the father was able to answer questions about these documents with relative ease and a reasonable level of understanding or familiarity, and gave meaningful evidence about the records and their context without apparent difficulty. In the circumstances, I accept that the father would not be prejudiced by the admission of these records despite the lack of prior ss. 35(3) notice

Background

[13] The father immigrated from Nigeria to Canada in 2000 on a visitor’s visa and initially settled in Toronto before relocating to Brampton in 2010. Over time, he obtained refugee status and became a Canadian citizen.

[14] The parties first met in Nigeria in 1997 and started a romantic relationship in 1999. After the father left Nigeria for Canada in 2000, the parties lost touch and stopped communicating. Sometime thereafter, the father claims that the mother entered into another relationship with another person and married in Nigeria. The mother denies that she married in Nigeria.

[15] On April 13, 2002, the father married his ex-wife, Sonia James, and settled in Oshawa where they resided. They had no children. They divorced on September 16, 2005.

[16] Sometime in 2003, the father and the mother resumed their communications with each other. Around this time, the mother indicated that she wanted to live in Canada. The father agreed to help her immigrate to Canada.

[17] The mother arrived in Canada in March 2004. The father met her at Pearson airport when she landed. Around this time, he claims that he told her that he was married. The mother denies that he told her this. He also claims that he learned that the mother had been married in Nigeria when he reviewed her paperwork for her immigration to Canada, and produced a consent divorce judgment by the Grade “A” Customary Court located in Lagos, Nigeria, dated September 19, 2006 that granted a petitioner named “Aderonke Olawunmi Olalekan (nee Ogunbiyi)” a dissolution of her December 16, 2000 marriage to Mr. Igiyomi Olalekan. The mother denies that she was married in Nigeria. She testified that the petitioner in the consent divorce judgment shares her name but denies being the petitioner and claims that she is a different person.

[18] Shortly before the mother arrived in Canada, the father claims that he had been living with Ms. James in Oshawa and commuting to work in Mississauga. Given the length of his commute, the father began to share a rental apartment on Dennison Road in Toronto with a roommate during the week to shorten his commuting time. To help settle the mother upon her arrival in Canada, the father claims that he arranged for her to share a separate bedroom in the Dennison Road apartment where he lived during the week while returning to his Oshawa home on weekends.

[19] The mother claims that she immediately began to co-habit with the father upon her arrival in Canada in March 2004.

[20] In or around July 2004 the father claims that he began to co-habit with the mother at the apartment on Dennison Road after his separation from Ms. James. When the father and the mother initially started to co-habit, it is clear that he remained lawfully married to Ms. James, his spouse. Sometime thereafter in 2004, the mother became pregnant with M.I.A., the parties’ first child.

[21] On December 18, 2004, the parties attended a religious ceremony at their church. Although the mother claims that the ceremony was intended to be a wedding, the father claims that it was a ceremony for their pastor to bless their cohabitation relationship. The mother invited me to find that this religious ceremony was, in fact, a form or wedding ceremony that resulted in her marriage to the father. However, in deciding the father’s motion for summary judgment, Shaw J. held that any such marriage was void ab initio as the father clearly was married at the time of this ceremony on December 18, 2004 and, therefore, could not have entered into a marriage with the mother while married to another spouse: Anthony at paras 11-12.[^4] As noted above, there is also some evidence that the mother herself was married at the time of this ceremony. Having regard to all of this, I decline to find that the mother married the father at this ceremony.

[22] After living in the apartment on Dennison Road for about a year or so, the parties moved to a different apartment on Cabana Road in Toronto where they welcomed the birth of their first child, M.I.A., on June 29, 2005. Later on, they moved to another apartment on Brookwell Drive in Toronto where their second child, M.E.A., was born on December 28, 2008.

[23] In or around October 2009, the father claims that his relationship with the mother ended. At the time, the family was living at the Brookwell Drive apartment in Toronto. The father claims that the parties separated after he left the family home and lived with a friend in the eastern part of the Greater Toronto Area. Initially, around the time of this separation, he claims that the children remained in the care of the mother who was studying to become a nurse. The father, who worked as a student loan analyst, claims that he financially contributed to rent the apartment on Brookwell Drive and initially shared parenting time with the children about twice per week. Thereafter, on September 1, 2010, he claims that he purchased a residential home on Horatio Court in Brampton and brought the children there to primarily reside with him after developing concerns with the mother’s ability to care for them. After the children began to reside at the Horatio Court home, he claims that the mother visited the home on weekends to share parenting time. As the children enjoyed their parenting time with the mother, the father claims that he supported the visits and encouraged the mother to share parenting time at the Horatio Court home and occasionally stay a night or two at the residence.

[24] The father is solely on title to the Horatio Court home. He claims that he acquired downpayment funds to buy the home by obtaining a loan through an affordable home program at Peel Region, his employer, on June 18, 2010. He also claims that he obtained a TD home mortgage to buy the property, and that the mortgage was paid off and discharged on September 12, 2017. Since 2017, the father has been renting out a basement apartment in the Horatio Court home that currently rents for $775.00 per month.

[25] The mother flatly denies the father’s account. She claims that both parties jointly decided to buy their own home while residing in the Brookwell Drive apartment and ended up purchasing the Horatio Court home together and relocating there with the children as a family. She claims that she and the children had accompanied the father to view other prospective homes, but that she did not actually view the Horatio Court home after the father chose to view it by himself as going to home viewings with their young children was difficult and stressful. She also claims that she had expected the father to put her on title to the property but only learned much later that he had failed to do this in an effort to unfairly exclude her from having an ownership stake in the property.

[26] Among other things, the mother claims that she had discussed buying a family home with the father while residing at the Brookwell Drive apartment. After the father allegedly expressed concerns with their ability to make the required monthly mortgage payments, the mother claims that she convinced him that they could carry a mortgage as the monthly mortgage payments would not significantly exceed their monthly rent payments and let them build equity in their own home. To buy the Horatio Court home, the mother claims that she gave the father about $5,000.00 in cash that she withdrew from her bank account with an automated teller machine (“ATM”) to pay for the downpayment, legal fees, and other closing costs. She also claims that she gave the father about $5,000.00 in 2017 to repay his affordable home loan from Peel Region by withdrawing this amount in cash from an ATM in two (2) tranches. However, under cross-examination, she essentially conceded that it would not have been possible to withdraw these sums of cash from an ATM given the cash withdrawal limits for ATM transactions.

[27] The mother claims that she contributed to the mortgage payments for the Horatio Court home by providing the father with whatever she could afford, that resulted in her making monthly payments to him that varied between $700.00 and $1,000.00 per month, depending on what her available savings happened to be at any given time.

[28] The father claims that the mother had solely received the child tax credit over the course of their relationship, and that she continued to solely receive the credit after they separated in October 2009. As the mother was a nursing student at the time of separation and was initially caring for the children, the father claims that the parties mutually agreed that she should continue to receive the full child tax credit to defray the children’s living expenses. The father also claims that he contributed funds to partly pay the monthly rent for the Brookwell Drive apartment. Over time, he claims that the mother informally began to share some portion of the child tax credit with him by providing him with ad hoc amounts of cash or e-transfers.

[29] The mother acknowledges that she solely received the child tax benefit around that time and claims that she used the funds to pay for the children’s clothing, groceries, and various school-related incidentals. Later on, when M.I.A. no longer qualified for the child tax credit due to her age, the mother claims that CRA reduced the credit and then split it between the parties at source.

[30] In or around July 2012, the parties and the children went on vacation together to Nigeria. The mother points to this trip as evidence that the parties remained in a relationship at the time. The father denies this and asserts that the parties had separated by then. He claims that the mother learned of his plans to vacation with the children in Nigeria and asked to join them on the trip that he initially booked for three weeks. He also claims that he agreed to her request to join them so that the children could vacation with her in their ancestral country. While in Nigeria, the mother asked to stay there with the children for about two months. As the children were enjoying the trip, the father claims that he relented. As he needed to return to Canada for work, he claims that he opened joint bank accounts in Nigeria with the mother so that she could access funds to pay for the children’s needs during their extended stay overseas. However, after he left for Canada, he claims that the mother encountered difficulties accessing the funds from the accounts.

[31] The mother claims that the joint Nigerian bank accounts are further proof that the parties were in a relationship at the time. When asked why the parties opened the Nigerian accounts, she testified that the parties had felt that opening the accounts was a good idea. She also testified that the parties had a joint account in Canada then to save funds for the children, although her evidence on this was not supported by any records. She vaguely suggested that the Nigerian accounts were intended to fund some unspecified future business transactions, or possibly provide available funds for the family if they ever returned to Nigeria in the future. She claims that she never accessed the Nigerian accounts as she had no need for the funds during her extended stay in the country.

[32] After the maternal grandmother visited Canada in 2015, the father claims that the mother stayed over more frequently at the Horatio Court home. Towards the end of 2015, he claims that she began to continuously reside at the home without his consent. Initially, the father apparently considered the mother’s extended visits as being positive for the children and raised no concerns. Over time, however, he claims that he began to disapprove of her conduct and began to repeatedly ask her to leave the home, but without success. Left with no other recourse, the father commenced a civil application (CV-17-119) on January 11, 2017 to have the mother removed from the home. The mother concedes that she did not contest the application. The father claims that the mother settled that case by voluntarily leaving the Horatio Court home after negotiating her departure date, only to later return about 4 months later to resume her residence at the home.

[33] At some point in 2017, the mother claims that the father asked her for financial assistance due to his debt load that had forced him to take out a second mortgage on the Horatio Court home. The parcel register for the Horatio Court home shows an unspecified charge that was registered on title before it was discharged in 2017.

[34] On March 27, 2017, the father assigned to the mother without consideration an agreement of purchase and sale for a condominium unit located on Eglinton Avenue in Mississauga. This was an investment property that he had wanted to buy with the intention of renting it out and using the rent proceeds to pay for its carrying costs. But having made a consumer proposal in 2015, he could not secure mortgage financing after paying a deposit to buy the property.[^5] To qualify for financing, he required a co-signor for the mortgage. As a result, he arranged for the mother to co-sign the mortgage and hold the property for him in trust by having the agreement of purchase and sale assigned to her without consideration. After the sale closed and the condominium unit was rented, he allegedly gave her the rent proceeds to pay the monthly mortgage. Although he claims to have paid for some other costs, both parties are said to have shared any shortfalls in the carrying costs for the Eglinton Avenue property.

[35] The mother acknowledges that the father asked her to hold the Eglinton Avenue property in her name (i.e., due to her better credit history) and assume carrying fees for this investment property. She claims that she paid for the closing and assignment fees, obtained the mortgage in her name, and ultimately acquired the property in her name.

[36] On April 12, 2017, the father emailed his real estate solicitor for the purchase of the condo unit on Eglinton Avenue to advise that the parties were cohabiting with the children as a family at the Horatio Court home in Brampton, and that both parties would be responsible for the Eglinton Avenue property. The mother cites this email in support of her claim that the parties were in a relationship at that time. The father claims that the email was sent to close the purchase of the Eglinton Avenue property (i.e., that did not close on April 10, 2017 as initially scheduled) and to avoid having to pay additional charges by assuring the vendor that the parties could manage their financial obligations by falsely advising that they were in a common law relationship.

[37] On April 19, 2017, the mother signed a solemn declaration to close the sale of the Eglinton Avenue property in which she expressly declared that she was not a spouse within the meaning of the FLA. The father submits that this declaration correctly shows that the parties were not common law spouses at that time.

[38] Sometime in 2019, the mother told the father that she no longer wanted to act as the co-signer on the mortgage for the Eglinton Avenue property after the lender threatened to foreclose, ostensibly due to issues with the carrying costs. In turn, the father arranged to sell the Eglinton Avenue property. However, after the sale closed, the mother allegedly tried to keep all of the net proceeds of sale without giving the father his share of the proceeds. When the father refused to produce the keys and documents required to close the deal, the parties resolved their differences and settled the distribution of the sale proceeds (i.e., by which the mother paid him $51,916.84 by cheque dated August 8, 2019) that allowed the sale to close in August 2019.

[39] While the parties were jointly engaged in the Eglinton Avenue investment venture, the mother continued to reside at the Horatio Court home with the father and the children. Although the father may not have expressly consented to the mother’s continuing residence at the Horatio Court home, I find that he acquiesced to her extended stay there as he needed her cooperation to preserve his investment in the Eglinton Avenue property that she leveraged to her advantage.

[40] At some point in 2019, the father claims that the mother took over his master bedroom in the Horatio Court home after taking his key to the room while he was asleep and by screaming, “Rape, rape, rape!” as a pretext to gain leverage against him. The father denies that he engaged in any wrongdoing. However, to lower tensions from the incident that greatly upset the children, the father claims that he chose to leave the bedroom (i.e., that the mother immediately occupied) and sleep downstairs in the living room. Around this time, he claims to have learned that the mother owned a property in Barrie and another property on Sunny Meadow Boulevard in Brampton.

[41] According to the mother, the parties’ date of separation is July 15, 2019. Around this time, she claims that she announced, “I’m done” with her relationship with the father after learning that he had solely listed himself on title to the Horatio Court home. The father denies this, and submits that it is no coincidence that her proposed date of separation falls shortly before the time that she purchased the Sunny Meadow Boulevard property, as further set out below.

[42] On August 23, 2019, the mother bought a condominium unit located on Sunny Meadow Boulevard in Brampton for a $420,000.00 purchase price. She bought this property right after the Eglinton Avenue property was sold and each party had received $51,916.84 from its sale proceeds. To finance the purchase of the Sunny Meadow Boulevard property, she took out a mortgage with CIBC and expressly declared, “I am not a spouse” on the charge registered on title to the property. The father relies on this to show he was not in any relationship with the mother around this time.

Legal Principles for Parenting Orders

[43] As explained earlier, Shaw J. found that the parties never married and lived in a common law relationship. It follows that the parenting-related issues for the children are governed by the provisions of the Children’s Law Reform Act, RSO 1990, c. C.12 (“CLRA”). In deciding the parenting-related issues, I am guided by the best interests of the children after considering all of the pertinent factors related to their circumstances in this case with primary consideration to their physical, emotional, and psychological safety, security and well-being: ss. 24(1)-(3) of the CLRA. In deciding the children’s best interests, the court shall not consider any past conduct unless it is relevant to the exercise of decision-making responsibility, parenting time or contact time: ss. 24(5) of the CLRA. In allocating parenting time, the court gives effect to the principle that each child should have as much time with each parent as is consistent with their best interests: ss. 24(6) of the CLRA.

Parenting Analysis

[44] On July 22, 2021, Bielby J. granted an order to request the involvement of the Office of the Children’s Lawyer (“OCL”) in respect of both M.I.A. and M.E.A. in this case. On August 12, 2021, the OCL accepted the case and assigned a clinician, Pauline Flanagan, who prepared a voice of the child report to summarize the children’s parenting views and preferences.

[45] As the older child, M.I.A., is now 19 years of age, the mother took the position that it would be unnecessary to make parenting orders for the child. The father did not take serious issue with this, but argued in the alternative that he should exercise sole decision-making responsibility for both M.I.A. and the younger child, M.E.A., who is almost 15 years old and attending grade 11. The children are strongly bonded with each other.

[46] Having considered the totality of the evidence and the parties’ submissions, and having regard to M.I.A.’s maturity and awareness, I accept that it would be in M.I.A.’s best interests to not grant parenting orders for her at this time beyond directing the parties to respect her parenting preferences, as both agreed to do. M.I.A. is a bright, articulate, kind-hearted, and sensitive young woman who shared reflective and thoughtful information with the OCL clinician during their sessions together. I am satisfied that M.I.A. is fair-minded and quite aware of how her parenting preferences will affect other family members. M.I.A. described her father as a warm, outgoing and caring person who communicates well, works hard to support both children, and models positive parenting traits by guiding the children, looking out for their safety and well-being, and supporting their educational activities. M.I.A. also described the father as having shared some aspects of the adult conflict while actively supporting the children during the day. M.I.A. described her mother as a caring and fun parent who is strong, independent, and supportive of her education but generally less available to the children (i.e., ostensibly due to her work schedule). M.I.A. indicated that she would prefer to have a different relationship with the mother that affords more communication and emotional bonding. Given M.I.A.’s maturity and awareness, I find that she and the mother should share parenting time in M.I.A.’s sole discretion, and that M.I.A.’s preferences should be respected by both parties.

[47] I am satisfied that it would be in M.E.A.’s best interests to primarily reside with the father who should exercise sole decision-making responsibility after reasonably consulting the mother on key issues related to the child’s religious upbringing, medical and health issues, and educational matters. In arriving at this finding, I find that the parties in this high-conflict case lack the ability to communicate effectively about the child as needed for shared decision-making responsibility to be a realistic or viable parenting arrangement for the child: Kaplanis v. Kaplanis, 2005 CanLII 1625 (ONCA) at para 11; M.A.J. v. C.J.P., 2024 ONSC 5300 at paras 57-58.

[48] M.E.A. is a thoughtful and mature teen who has developed fairly strong insight into her family dynamics as the adult conflict has progressed over the years. Among other things, M.E.A. has come to accept that it would be better if the parties separated as they have tried unsuccessfully on multiple occasions to improve their relationship without real success. Instead, the adult conflict has persisted and resulted in arguments that led child protection workers to become involved with the family. During her sessions with the OCL clinician, M.E.A. clearly expressed a preference to primarily reside with the father and with M.I.A., and to share weekend parenting time with the mother. Although the father clearly shared some aspects of the adult conflict with M.E.A. (and also with M.I.A., as set out earlier), I accept that M.E.A. has managed to effectively filter his comments after deciding for herself that she does not know whether what he said about the mother is true or not. Nevertheless, M.E.A. has taken to heart the father’s efforts to encourage the children to love the mother as she is their parent. For her part, I find that the mother has tried to shield the children from the adult conflict, although M.E.A. wishes that the mother was “more real” or transparent about family dynamics. Amid challenging circumstances, I find that M.E.A. has come to trust and rely on the father to care for her and M.I.A. to ensure their best interests and well-being by sharing time together and giving them emotional and financial support. Although M.E.A. has indicated that both parties do not necessarily fulfill all of their parenting responsibilities, she clearly expressed that the father does most parenting activity with her and generally shares more parenting time with both children. M.E.A. indicated that she has a positive parenting relationship with the mother, but would prefer to build a stronger connection to better progress the relationship. Having regard to M.E.A.’s maturity, insight, and thoughtfulness, I am satisfied that it would be in her best interests to share parenting time with the mother based on the teen’s preferences, subject to both parties encouraging M.E.A. to liberally share parenting time and calls with the mother to best progress their parenting relationship together.

Child Tax Benefit

[49] Given the above-noted findings, I am satisfied that the father should receive the entire child tax benefit for M.E.A. once the mother vacates the Horatio Court home.

Child Support and Section 7 Expenses

[50] The father seeks an order for the mother to pay child support and s.7 expenses after she vacates the Horatio Court home without any arrears over the period in which she resided there. As set out below, I find that this relief is appropriate and should be granted.

[51] As the parties were not married, each party’s obligation to provide child support is set out under ss. 31(1) of the FLA. The purpose of an order for child support is to, a) recognize that each parent has an obligation to provide support for the child, and b) apportion the obligation according to the child support guidelines: ss. 31(7) of the FLA; Ontario Child Support Guidelines, O.Reg. 391/97 (“CSG”); Tsafaroff v. Plejic, 2024 ONSC 5198 at para 22 onwards. Table amounts of child support are presumptive based on the number of children to whom the order relates, the income of the parent against whom the order is sought, and the amount of any s.7 expenses: ss. 3(1) of the CSG. However, when a child lives roughly equally with both parents, the court has the discretion to order child support in an amount other than table amounts: s. 9 of the CSG.

[52] The ultimate goal of child support is to ensure that children benefit from the support they are owed at the time they are owed it, and any incentives for payor parents to not meet their support obligations should be eliminated: D.B.S. v. S.R.G, 2006 SCC 37 at para 4. Retroactive awards of child support are not presumed nor regarded as exceptional orders made only in exceptional circumstances: D.B.S. at para 5.

[53] In deciding whether any child support arrears are owed, the first issue to consider is whether the children lived with the parties under a shared parenting arrangement: Tsafaroff at para 32-34. Pursuant to s.9 of the CSG, in cases when a parent shares parenting time with a child for not less than 40% of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,

a. the amounts set out in the applicable tables for each of the parents;

b. the increased costs of shared parenting time arrangements; and

c. the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

[54] To this end, s. 9 of the CSG requires a 2-step analysis. First, it must be shown that a parent exercises a right of access to or has physical custody of a child for not less than 40% of the time over the course of a year. Second, if the 40% threshold is not met, the court must then decide the party’s child support obligation by considering ss. 9(a) to (c) of the CSG.

[55] I am satisfied that the mother should owe no arrears of child support as a shared parenting arrangement was in place while both parties resided at the Horatio Court home. Having considered all of the evidence at trial, I accept that the parties essentially followed a equally-shared parenting arrangement from the time that the mother began to continually reside with the children and the father at the Horatio Court home. Although the record is not entirely clear, I am satisfied that both parties essentially parented both children equally and largely shared their parenting responsibilities albeit with some deviations from time to time. Although the children suggested that the father devoted more of his time to parenting activities, I accept the father’s position that the children essentially had a close-to-equal parenting schedule during the time that both parties resided at the Horatio Court home, and that the children spent at least 40% of the year with each party.

[56] From the limited evidence in the record, I am not persuaded that either party experienced any increased costs of the shared parenting arrangement that was in place while they both resided at the Horatio Court home. No evidence was led to show any such costs, and none were claimed. In addition, I am satisfied that each party had comparable means, needs, and circumstances to the other, and that both children had comparable needs as siblings in the same household. Although the father testified that he was laid off from his position with the Region of Peel in 2019, he did not adduce documents to establish any changes to his income and instead argued in submissions that his overall income remained comparable to the mother’s income even though the financial disclosure she gave of her income was less then complete. The father also conceded that the mother had shared at least some portion of the children’s tax benefit with him over an extended period, although the actual extent of his share of the benefit is less than clear and seemed to reflect whatever amount she was prepared to offer him at any time, to which he apparently acquiesced without serious opposition given his apparent belief that his share was not unreasonable. Taking this all into account, I am not persuaded that any set-off child support should be payable by either party during the period in which they both were residing at the Horatio Court home.

[57] During the trial, the mother testified that CRA assessed her 2022 income at $52,126.00 when she was working part-time hours at VON Canada. She also testified that she obtained a full-time position at VON Canada in December 2023 with a higher hourly rate (i.e., $31.00 per hour) but earned less that year (i.e., about $48,000.00) as she worked fewer hours after the maternal grandmother passed away that year. Although she claimed that her income had been disclosed prior to trial, and purportedly served a certificate of financial disclosure attesting to this, I find on the evidence presented at trial that the mother did not adequately disclose records to appropriately substantiate her income for child support purposes. That said, I find that it is just and appropriate to impute her current income at $52,126.00 based on her 2022 income that, in my view, reflects a fair and reasonable amount to impute for child support, as the father argued in submissions.

[58] Accordingly, based on an imputed income of $52,126.00, I find that the mother should pay child support of $471.11 per month for M.A.E., subject to paying $774.19 per month in child support for both M.I.A. and M.A.E. in the summer months should M.I.A. come home from university and reside with the father while still a dependent of the parties’ relationship and enrolled in a full-time undergraduate program: ss. 3(2) of the CSG. In arriving at this, I note that M.I.A. has student loans, works a part-time job, and contributes to her post-secondary expenses. In light of this, I accept that applying the standard guidelines approach is appropriate for M.I.A. when she is home from university: Lewi v. Lewi, 2006 CanLII 15446 (ONCA) at paras 126-130.

[59] Despite some ambiguity in his evidence, I am prepared to accept the father’s testimony that he currently earns about $50,526.72 per year based on all of his various sources of income, as set out in his Financial Statement sworn January 9, 2024. Based on this, and applying $52,126.00 of imputed income to the mother, I am persuaded that the parties should equally share the children’s reasonable s.7 expenses on a 50:50 ratio, as the father proposed, given their comparable annual incomes. I add that M.I.A. and M.E.A. (i.e., who plans to pursue a post-secondary education) are both expected to contribute to their post-secondary education expenses: Lewi at para 159.

[60] I am not persuaded that the father’s claim for retroactive s.7 expenses should be granted. An award of retroactive child support seeks to balance fairness to the children and the payor, and calls for the following factors to be considered: a) is there a reasonable excuse for why the claim was not sought earlier? b) has the conduct of the payor parent been blameworthy? c) do the child’s circumstances support a retroactive support order? and d) would a retroactive order cause hardship to the payor parent?: D.B.S. v. S.R.G., 2006 SCC 37. These principles apply in considering whether to retroactively award s.7 expenses: Gough v. Blanchard, 2017 ONSC 523 at para 7; McAdams v. McAdams, 2018 ONSC 7690 at para 42. It is usually inappropriate to award retroactive child support more than 3 years before formal notice was given to the payor parent: D.B.S. at para 123. But if the payor parent engages in blameworthy conduct, such as failing to disclose an increase in income, the date of retroactivity can be adjusted accordingly: D.B.S. at paras 124-125.

[61] Applying the D.B.S. factors to this case, I find that none would support an award of retroactive s.7 expenses. I am not persuaded that the father had a reasonable excuse for not seeking s.7 expenses earlier, and no compelling explanation for not claiming this relief earlier was given. Second, I am not persuaded that the mother’s conduct was “blameworthy” for the purpose of the D.B.S. analysis as the evidence shows that she jointly supported the children while residing with them in the Horatio Court home. Although she initially refused to vacate the home (i.e., that led the father to bring a civil application for her removal) and later refused to leave after her investment in the Eglinton Avenue property with the father had concluded, I am not persuaded that this is the sort of moral blameworthiness that should justify awarding retroactive s.7 expenses under the D.B.S. analysis. In any event, I see no circumstances of the children to warrant making a retroactive order for s.7 expenses. M.I.A. was expected to work, take student loans, and contribute to her post-secondary education expenses, as she has done, and M.E.A. is expected to do the same when she becomes a post-secondary student. Furthermore, I accept that ordering retroactive s.7 expenses at this time would cause hardship for the mother in light of my award for occupation rent, as further discussed below.

The Mother’s Claim for a Constructive Trust

[62] For the reasons that follow, I decline to grant the mother’s constructive trust claim in respect of the Horatio Court home.

a. The Father’s Limitations Argument

[63] I am not persuaded by the father’s submission that the mother’s constructive trust claim is statute-barred.

[64] An action “to recover any land” is subject to a 10-year limitation period: s. 4 of the Real Property Limitations Act, RSO 1990, c. L15 (“RLPA”). This includes an action to advance an equitable claim to enforce a beneficiary’s title as against the trustee by way of a constructive trust: Gomes v. Da Silva, 2024 ONCA 792 at para 12; Studley v. Studley, 2022 ONCA 810 at paras 28-33; Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623 at paras 31-32. Where the interest in land is an equitable title under a constructive trust, the 10-year limitation period under the RLPA is subject to the principle of discoverability: McConnell v. Huxtable, 2014 ONCA 86 at paras 53-54; Chopra v. Vincent, 2015 ONSC 3203 at para 10; Andreacchi v. Andreacchi, 2023 ONSC 4877 at para 48.

[65] In this particular case, the mother claims that she first learned that she was not on title to the Horatio Court home shortly after July 15, 2019 (i.e., the date when she claims the parties had separated) after she had instructed her lawyer to review the parcel register for the property. She claims that she understood all along that she had been registered on title after the parties jointly purchased the home in 2010, although she never actually verified this as she purportedly trusted the father to place her on title to the property. The father did not seriously challenge the mother’s evidence on this point, but submitted that she clearly knew of his position that she did not own the Horatio Court home after being served with his civil application (in CV-17-119) issued January 11, 2017 to have her evicted from the property. I tend to agree with the father that it likely would have been clear to the mother upon receiving his civil application in late January 2017 that he did not believe that she had an ownership stake in the Horatio Court home. Nevertheless, his proposed earlier discoverability date in January 2017 does not meaningfully change the limitation analysis as her constructive trust claim was brought well within the 10-year limitation period under either discoverability date.[^6]

[66] Accordingly, I find that the mother’s constructive trust claim is not statute-barred.

b. Legal Principles for Constructive Trust and Unjust Enrichment

[67] A constructive trust is an equitable remedy by which one person is required by law to hold property for the benefit of another, regardless of any intention to do so: Moore v. Sweet, 2018 SCC 52 at para 32. It is a broad and flexible tool for determining beneficial entitlements to remedy unjust enrichment and corresponding deprivation by considering all of the circumstances of a case, including the respective contributions of the parties: Soulos v. Korkontzilas, 1997 CanLII 346 (SCC) at para 43.

[68] Unjust enrichment, if established, permits an equitable remedy of a constructive trust. To establish unjust enrichment, a claimant must show three (3) elements: a) an enrichment of or benefit to another party; b) a corresponding deprivation of the claimant; and c) the absence of a juristic reason for the enrichment: Kerr v. Baranow, 2011 SCC 10 at para 32; Moore at para 37. These elements are to be applied flexibly to identify circumstances where justice and fairness requires that one party restore a benefit to another: Moore at para 38.

[69] A remedy for unjust enrichment may be either monetary or proprietary, but the first remedy to consider is a monetary award: Kerr at paras 46-47. Where a monetary award is inappropriate or insufficient, a proprietary remedy may be required. Where a claimant shows “a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour:” Kerr at para 50.

c. The Mother’s Claim for Unjust Enrichment

[70] In this case, the mother claims that the father was enriched through a series of payments that she gave him from October 2010 to June 2023 to help pay for the cost of the mortgage on the Horatio Court home. As set out below, I do not find that she has shown that the father was unjustly enriched by these alleged payments.

[71] In her amended answer, the mother pleads that she gave the father a series of payments totalling $103,982.14 over a period of more than 12 years, as set out in the following table:

2010	October - December	$900 x 3	$2,700
2011	January – December	$900 x 12	$10,800
2012	January – December	$800 x 12	$9,600
2013	January – July	$800 x 7	$5,600
2013	August - December	$700 x 5	$3,500
2014	January - December	$700 x 12	$8,400
2015	January - December	$700 x 12	$8,400
2016	January – December	$700 x 12	$8,400
2017	January – April	$700 x 4	$2,800
2017	May – December	$1,000 x 8	$8,000
2018	January – May	$1,000 x 5	$5,000
2018	June – December	$1,100 x 5	$5,000
2019	January – July	$1,100 x 7	$7,700
2019	August – December	$580.98 x 5	$2,905
2020	January – July	$580.98 x 7	$4,066.86
2020	August – December	$380.98 x 5	$1,904.90
2021	January – December	$380.98 x 12	$4,571.76
2022	January – December	$380.98 x 12	$4,571.76
2023	January – February	$380.98 x 2	$761.96
Peel Region Refund			$5,000.00
Total			$103,982.14

[72] However, the mother did not produce any supporting records to corroborate any of her alleged payments from October 2010 to December 2015. Given my concerns with the mother’s credibility, as discussed further below, I am not prepared to accept that her alleged payments to the father were actually made without corroborating financial records. Accordingly, I find that the mother has not established that her alleged payments to the father were made over this period.

[73] The mother produced four (4) cheques to the father from 2016 along with bank account records to show that she paid him $700.00 on four occasions, being March 16, 2016, June 1, 2016, July 6, 2016, and August 3, 2016, respectively (i.e., for a total of $2,800.00 paid to him in 2016). However, there is nothing written on the cheques to explain the reason for any of these payments. The mother produced a cheque to the father dated January 1, 2016 for $700.00, with “mortgage payment” written in the memo line. Importantly, however, her bank account records for that period show that this cheque was never cashed. When cross-examined on this point, the mother asserted that these records that she had produced had been altered. From the evidence, I find that this alleged payment was not made. The mother produced another cheque to the father dated February 1, 2016 for $700.00. But as her account records show that a differently-numbered cheque was cashed that day, I am not prepared to accept that this particular cheque was ever paid to the father in light of this discrepancy. The mother produced another cheque to the father dated May 1, 2016 for $700.00, but as her account records for that period show that this cheque was not cashed, I do not find that this alleged payment was made.

[74] In any event, and apart from the January 1, 2016 cheque that I have found was never cashed, nothing is written in the memo line for any of the other cheques, or indeed on any of her other cheques or in any records from 2016 that she produced, to show that any of these payments were meant to pay for the mortgage on the Horatio Court property. The mother claims that the cheques were intended to pay for the mortgage, but she could not recall the amount of the mortgage payments and could not explain how or why the amounts she allegedly paid covered her share of the mortgage beyond claiming that she contributed what she could afford. The father flatly denies that the mother contributed to the mortgage for the Horatio Court property, and claims that the payments he actually received from her were to reimburse him for his share of the child tax benefit that she had solely received, as further discussed below.

[75] Pointing to her bank account records from 2017, the mother sought to establish that she paid the father a total of $4,500.00 through a series of cash withdrawals or transfer payments, being $900.00 on January 17, 2017, a total of $1500.00 in two cash withdrawals (i.e., of $1,000.00 and $500.00, respectively) on January 25, 2017, $700.00 on February 1, 2017, $700.00 on March 1, 2017, and $700.00 on April 3, 2017. However, her records do not show that it was the father who received any such funds. The balance of her alleged payments to him in 2017 are completely unsupported by any records whatsoever. In the circumstances, I am not prepared to accept that any of her alleged payments in 2017 went to pay for the mortgage on the Horatio Court home.

[76] The mother did not produce any records to verify that any of her alleged payments to the father in 2018, or from January 2019 to July 2019, were actually made. As such, I decline to find that she made any such payments to him over this period.

[77] I accept that the mother paid the father $580.98 by online transfers on September 3, 2019, September 30, 2019, and October 31, 2019, respectively, as the records produced for these transactions confirm that he received these funds. I am also prepared to accept that she transferred $580.98 to him on July 31, 2019 and December 2, 2019 (i.e., for a total of $2,904.90 in 2019) given the unique amount for each transaction, even though her records do not identify the actual recipient for these last two transactions. As the mother produced no records to verify any other payments to the father in 2019, I decline to find that she made any other payments to him that year.

[78] Having reviewed the financial records that the mother produced for 2020, I am prepared to find that she paid the father $580.98 on May 1, 2020, June 1, 2020, and July 2, 2020, and further paid him $380.98 on August 3, 2020 and September 1, 2020, respectively (i.e., totalling $2,504.90 in payments for 2020). She offered no records to verify any other payments to him that year.

[79] From the mother’s 2021 and 2022 banking records, I am satisfied that she paid the father $380.98 per month in both years (i.e., for a total of $9,143.52 over that 2-year period).

[80] The mother produced her banking records for January 2023 to June 2023 to show that she paid the father $380.98 per month over this 6-month period (i.e., for a total of $2,285.88 over this timeframe). I am satisfied that she made these payments to him.

[81] As noted earlier, the father claims that the mother periodically gave him a “share” of the children’s tax benefit, as reflected by her various payments to him in the amounts of $700.00 in 2016 and 2017, before these amounts were reduced to $580.09 in 2019 and part of 2020, and then further reduced to $380.98 from about mid-2020 to June 2023, respectively. Although the mother denies that these payments related to the children’s tax benefit, I am persuaded that the father’s explanation is sensible. The mother’s bank account records show that she received a total of $1,099.39 in combined federal child tax and provincial benefits in December 2019.[^7] Based on this, I accept that her $580.09 payments to the father in 2019 were intended to share a portion of these funds to reimburse him for some of the children’s expenses that he had paid for. Later, by October 2020, the mother was receiving only $613.26 in combined benefits that correlates with the reduced amount of $380.98 that she purportedly started to pay him in or around that time.[^8] The mother did not produce records for any such payments to the father after June 2023. This aligns with the time when MIA was no longer eligible for the child tax benefit (i.e., as she no longer qualified for the benefit upon attaining 18 years of age on June 29, 2023), after which CRA began to split the child tax benefit with the parties at source. Taking this all into account, I am persuaded that all these various payments by the mother to the father were made for the purpose of sharing social benefits and not for the purpose of paying the mortgage on the Horatio Court home.

[82] I have other concerns with the mother’s evidence about her alleged payments in respect of the Horatio Court property. During examination in chief, she testified that she gave the father a $5,000.00 cash contribution in 2010 for the downpayment of the Horatio Court home, and that she drew these funds from an account through an ATM cash withdrawal. The mother did not plead this claim in her amended answer. She also testified that she gave the father $5,000.00 in cash (i.e., that she obtained by making two (2) ATM cash withdrawals) to discharge the loan in 2017 from the Region of Peel’s affordable home program for the Horatio Court home. But under cross-examination, the mother conceded that her ATM cash withdrawal limits would not have permitted her to make these cash withdrawals as she had initially claimed. She then suggested that she would have used an ATM to withdraw the maximum cash amount possible before going to a bank teller to make further withdrawals to obtain $5,000.00 in cash on both occasions. None of her evidence was corroborated by any records. In my view, the mother’s evidence in chief on this point was false and misleading, and her subsequent effort to explain herself under cross-examination was unlikely and contrived. Considering her evidence as a whole, I find that she clearly demonstrated a carelessness or indifference to the truth that led me to develop very serious concerns with the credibility, reliability, and plausibility of her evidence: R v. A.M., 2014 ONCA 769 at paras 13-14; Liu v. Huang, 2018 ONSC 3499 at paras 12-13; S.S. v. R.A., 2024 ONSC 2870 at para 266.

[83] As noted earlier, the Horatio Court home is registered solely in the name of the father who claims to have bought it himself on September 1, 2010, with a downpayment from the Peel Region affordable home loan program, after his relationship with the mother ended around October 2009. He produced various bank records and testified that he solely paid for the mortgage that amounted to $1,081.00 per month as of January 10, 2019 (i.e., including principal, interest, and property taxes) and all other carrying costs for the home without contribution from the mother, who claims that she contributed $1,100.00 per month for the mortgage from January to July 2019 but without any records to corroborate her account. I find it unlikely that the mother would have essentially paid the entire amount of the mortgage by herself at that time. Thereafter, the mortgage payments increased due to rising interest rates and amounted to $2,409.91 per month as of August 2, 2023 based on mortgage records produced by the father. The mother claims that she paid $380.98 per month for her share of the mortgage then. But given the monthly mortgage payments due at that time, it seems unlikely that her mortgage contribution were in that amount. Instead, I find that her $380.09 monthly payments were made to share benefits with the father, as explained earlier.

[84] Having considered all of the circumstances in this matter, I am satisfied that the mother has not established an unjust enrichment or corresponding deprivation to justify an equitable remedy: Moore at paras 37-38; Kerr at paras 32, 46-47 and 50. Accordingly, her constructive trust claim is dismissed.

The Father’s Claim for Occupation Rent

[85] As set out below, I find that the father’s claim for occupation rent should be granted in part.

[86] Occupation rent is discretionary relief that the court may consider to address the equities of a case: Griffiths v. Zambosco, 2001 CanLII 24097 (ONCA) at para 49; Cirota v. Cirota, 2024 ONSC 4117 at para 184; Guziolek v. Guziolek, [2006] OJ No 1361 (SCJ) at para 21; Khan v. Khan, 2015 ONSC 6780 at para 11. An award of occupation rent should be reasonable but need not be exceptional: Non Chhom v. Green, 2023 ONCA 692 at para 8. In Bluestone v. Dagarsho Holdings Ltd., 2004 CanLII 11271 (ONSC) at para 26, affirmed 2005 CanLII 39321 (ONCA), occupation rent was described by Karakatsanis J. (as she then was) in the following terms:

Occupation rent is an equitable remedy. The often cited general principle of occupation rent is that “if a person is in occupation without a lease, although the relationship of landlord and tenant will not exist, the law will imply a contract for payment to the landlord or a reasonable amount for the use and occupation of his land:” Young v Bank of Nova Scotia (1915), 1915 CanLII 531 (ON CA), 34 O.L.R. 176, 23 D.L.R. 854 (Ont. C.A.). The principle is based upon the presumption that the parties have agreed to reasonable compensation. That presumption can be rebutted by evidence that the parties intended that the occupation be without compensation. Occupation rent is also an appropriate measure of damages for trespass and unjust enrichment.

[87] A grant of occupation rent is not automatic, and should only be awarded when it is reasonable and equitable to do so to achieve justice in the circumstances of the case: Khan at para 11. The factors to consider in deciding an occupation rent claim in a family law context are:

(a) the timing of the claim for occupation rent;

(b) the duration of the occupancy;

(c) the inability of the claiming spouse to realize on their equity in the property;

(d) any reasonable credits to be set off against occupation rent; and

(e) any other competing claims in the litigation.

Non Chhom at para 9; Griffiths at para 49.

[88] An award of occupation rent usually represents one-half of the rent that could have been earned had neither party lived in the property and it had been rented out: Cirota at para 184, citing Doyle v. De Sousa, 2023 ONSC 3163 at para 40; Skrak v. Skrak, 2024 ONSC 1574 at para 94.

[89] As explained earlier, the father brought a civil application (CV-17-119) on January 11, 2017 to remove the mother from the Horatio Court home after she had been residing there for an extended period without his permission. Shortly after the civil application was served, the mother emailed the father’s lawyer on January 17, 2017 that the parties had resolved the matter amicably and would no longer be litigating the case. The father testified that the mother settled the civil application by agreeing to voluntarily leave the home after negotiating a departure date with him. According to the father, the mother left the Horatio Court home for several months before returning to reside there with himself and the children.

[90] In or around March 2017, the father asked the mother to co-sign the mortgage for a condominium unit on Eglinton Avenue in Mississauga that he wished to buy as an investment property. Having made a consumer proposal in 2015, he found himself unable to secure financing after paying a deposit to buy the property. To obtain financing, he needed someone with better credit to co-sign the mortgage. Faced with limited options, he arranged for the mother to co-sign the mortgage, take an assignment of the agreement of purchase and sale without consideration, and hold the unit in trust for him. He later rented out the unit, gave her the rent proceeds to make the monthly mortgage payments, and jointly shared some carrying costs with her while she paid certain fees and costs for the Eglinton Avenue property for which both parties became its investors. Around this time, the mother again took up residence at the Horatio Court home and the father emailed his real estate lawyer to advise that the parties were cohabiting there as a family and would be responsible for the Eglinton Avenue property. From the record, I find that the parties had not reconciled but instead were residing at the Horatio Court home under an arrangement of convenience, or perhaps financial necessity, to close the purchase of the Eglinton Avenue property without paying additional charges by falsely advising that they were in a common law relationship to assure the vendor that they would meet their financial obligations. My finding on this point is supported by the mother’s declaration made on April 19, 2017 in which she clearly states that she is not a spouse within the meaning of the FLA. Taking everything into account, I find that her declaration correctly shows that the parties were not spouses at that time. That said, I accept that the mother took up residence at the Horatio Court home with the father’s consent as part of their investment arrangement for the Eglinton Avenue property by which both parties accepted that she would reside at the Horatio Court home without paying any rent.

[91] After a period of about two years, the mother indicated that she was no longer willing to co-sign on the mortgage for the Eglinton Avenue property after the lender threatened to foreclose. Around this time, the arrangement between the parties had begun to unravel. The father arranged to sell the Eglinton Avenue property, but disputes over carrying costs arose as the mortgage went into default that led the mother to withhold the father’s share of the sale proceeds until he refused to produce the keys and records to close the sale transaction. The parties eventually resolved their differences by agreeing to equally share the net sale proceeds. This allowed the sale of the property to close in August 2019, but the dispute impacted their relationship.

[92] Sometime after the Eglinton Avenue investment venture fell apart, the father began to ask the mother to leave the Horatio Court home. After she refused, the mother claims that the father called CAS to report concerns with her parenting of the children. After investigating, CAS staff apparently found no concerns with the children’s well-being.

[93] In or around October 2019, the father claims that the mother took his key to the master bedroom of the Horatio Court home and falsely accused him of “raping” her in a bid to assume the bedroom to entrench her residence at the property. To de-escalate the adult conflict, the father claims that he voluntarily began sleeping in the living room while continuing to ask the mother to vacate the home. On September 28, 2020, he brought this family application for various relief including a claim for occupation rent.

[94] Considering the whole of the evidence, I am satisfied that the mother resided at the Horatio Court home with the father’s consent under an arrangement of financial convenience in which they agreed to live together to invest in the Eglinton Avenue property while avoiding further costs by falsely representing that they were in a relationship to assure the vendor of their financial viability. To this end, I am satisfied that the father agreed to let the mother reside at the Horatio Court home from about March 1, 2017 to around August 8, 2019 (i.e., when the parties agreed to split the net sale proceeds for the Eglinton Avenue condo unit and largely concluded their investment in the property). Thereafter, I am satisfied that the mother repeatedly refused to vacate the Horatio Court home even after the father repeatedly asked her to leave.

[95] In my view, the doctrine of laches should prohibit the father’s claim for occupation rent before March 1, 2017. His claim for occupation rent is subject to a 10-year limitation period and, therefore, is not statute-barred: ss. 4 of the RPLA; Finch v. Finch, 2018 ONSC 5575 at para 64. However, the doctrine of laches allows a party to successfully resist an equitable claim, such as a claim for occupation rent, where the claimant, by delaying the institution or prosecution of the claim, has either a) acquiesced to the party’s conduct or b) caused the party to alter their position in reasonable reliance on the claimant’s acceptance of the status quo, or otherwise permitted a situation to arise that would be unjust to disturb: M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 SCR 6 at 77.

[96] Having regard to the parties’ agreement in or around March 2017 to invest in the Eglinton Avenue property and cohabit as a matter of financial convenience to facilitate the investment, I find that the father either agreed or effectively acquiesced to the mother’s prior period of residence at the Horatio Court home, for which he never pursued occupation rent or damages in his earlier civil application. Moreover, I accept that the mother understandably would not have acceded to the father’s request to invest in the Eglinton Avenue property and reside with him at the Horatio Court home had she known that he intended to pursue an occupation rent claim against her for the period before March 2017. Although delay alone is not sufficient for laches to apply, I find that the father either agreed or acquiesced to the mother’s earlier stay at the Horatio Court home which led her to alter her position in reasonable reliance after he asked her in or around March 2017 to reside with him at Horatio Court (i.e., in keeping with his written representation to the vendor) as part of the parties’ arrangement for jointly investing in the Eglinton Avenue property that would now be unjust to disturb: M.(K.) at 77. By his actions, I am satisfied that the father effectively waived his rights to occupation rent prior to March 2017: M.(K.) at 78.

[97] That said, I am satisfied that the father should have occupation rent for the period after August 8, 2019 by which time the investment in the Eglinton Avenue property had largely ended, the parties’ relationship had fallen apart, and the mother was persistently refusing to leave the Horatio Court home or otherwise contribute to any of their living expenses despite the father’s repeated requests for her to do one or the other.

[98] I am satisfied that the mother intentionally continued to reside at the Horatio Court home long-after her arrangement with the father to live there rent-free had concluded. Although she bought a new condominium unit on Sunny Meadows Boulevard in Brampton with her share of the proceeds of sale for the Eglinton Avenue property, she chose to rent out the Sunny Meadows condo and collect the rent proceeds while living at the Horatio Court home without paying any rent or living expenses for a period that is now approaching almost 5 ½ years. Although I am prepared to accept that the mother was entitled to remain at the Horatio Court home for a reasonable period to allow her a fair opportunity to relocate to a new residence, I find that her steadfast refusal to leave or pay rent or living expenses in the face of repeated requests that she do so was quite unreasonable.

[99] I accept that the father was not prevented from realizing on his equity in the Horatio Court home due to the mother’s occupation. In addition, I find that the mother has no reasonable credits or competing claims to set off against the occupation rent claim: Non Chhom at para 9; Griffiths at para 49. The mother did not raise any offsets in her evidence or submissions at trial.

[100] An award of occupation rent usually represents one-half of the rent that could have been earned had neither party lived in the property and it had been rented out: Cirota at para 184, citing Doyle v. De Sousa, 2023 ONSC 3163 at para 40; Skrak v. Skrak, 2024 ONSC 1574 at para 94

[101] On consent, the parties have adopted the findings of Tarsem Jutla CRA who broadly found that the market rental rate for the Horatio Court home from January 1, 2017 to December 31, 2023 fell within $1,900.00 to 2,950.00 per month.[^9] More specifically, Mr. Jutla found that the property’s average or mean monthly market rent rate from 2019 to 2023 was as follows:

2019 $2,177.00 per month

2020 $2,250.00 per month

2021 $2,436.00 per month

2022 $2,680.00 per month

2023 $2,875.00 per month

2024 $2,875.00 per month

[102] Since 2017, the father had a basement tenant at the Horatio Court home. Based on his unchallenged evidence, I find that his tenant paid rent of $800.00 per month from July 1, 2019 until it changed on July 1, 2021 to $750.00 per month, before it then changed on March 1, 2023 to $775.00 per month. On balance, I find for the purpose of determining occupation rent that it is fair and appropriate to offset the rental income from the average market rent figures as follows:

2019 $2,177.00 - $800.00 = $1,377.00 per month

2020 $2,250.00 - $800.00 = $1,450.00 per month

2021 $2,436.00 - $800.00 = $1,636.00 per month (for first 6 months)

$2,436.00 - $750.00 = $1,686.00 per month (for next 6 months)

2022 $2,680.00 - $750.00 = $1,930.00 per month

2023 $2,875.00 - $750.00 = $2,125.00 per month (for first 2 months)

$2,875.00 - $775.00 = $2,100.00 per month (for next 10 months)

2024 $2,875.00 - $775.00 = $2,100.00 per month

[103] Having regard to the evidentiary record at trial, I am not persuaded that utility costs should be included in calculating the mother’s obligation to pay occupation rent. The father seeks to add the costs of certain utilities to his occupation rent claim by apparently taking the position that the mother, like any other tenant, would be responsible for these additional costs. Although he gave some evidence of his monthly utility costs, including costs for natural gas, hydro, water, and waste removal, he led no evidence to show whether his existing basement tenant was paying any of these utility costs. Mr. Jutla’s expert rent report was entirely silent on this point. In the circumstances, I shall exercise my discretion to not include utility costs in calculating occupation rent in this case.

[104] The father also sought to add maintenance costs in calculating the mother’s occupation rent obligation. However, maintenance costs are clearly the obligation of a landlord, and not a tenant. Accordingly, I decline to include maintenance costs in calculating occupation rent.

[105] As noted earlier, an award of occupation rent usually represents one-half of the rent that could have been earned had neither party lived in the property and it had been rented out: Cirota at para 184, Doyle at para 40; Skrak at para 94. Accordingly, I find that the above-noted rent figures should be adjusted for this as follows:

2019 $1,377.00 ÷ 2 = $688.50 per month

2020 $1,450.00 ÷ 2 = $725.00 per month

2021 $1,636.00 ÷ 2 = $818.00 per month (for first 6 months)

$1,686.00 ÷ 2 = $843.00 per month (for next 6 months)

2022 $1,930.00 ÷ 2 = $965.00 per month

2023 $2,125.00 ÷ 2 = $1,062.50 (for first 2 months)

$2,100.00 ÷ 2 = $1,050.00 per month (for next 10 months)

2024 $2,100.00 ÷ 2 = $1,050.00 per month

[106] As the mother had continually resided at the Horatio Court home with the father’s consent from around March 2017 to August 2019 (i.e., a period approaching 2 ½ years), I accept that she should be allowed a reasonable period to vacate the premises. To account for this, I find that her obligation to pay occupation rent should not start until November 1, 2019.

[107] Accordingly, I find that the mother’s occupation rent obligation from November 1, 2019 to December 31, 2024 amounts to $56,848.00 based on the following:

2019 November to December $688.50 x 2 months $1,377.00

2020 January to December $725.00 x 12 months $8,700.00

2021 January to June $818.00 x 6 months $4,908.00

June to December $843.00 x 6 months $5,058.00

2022 January to December $965.00 x 12 months $11,580.00

2023 January and February $1,062.50 x 2 months $2,125.00

March to December $1,050.00 x 10 months $10,500.00

2024 January to December $1,050.00 x 12 months $12,600.00

Total $56,848.00

[108] For clarification, I note that the mother’s obligation to pay occupation rent to the father shall continue to accrue at $1,050.00 per month on a pro rata basis until she has vacated the Horatio Court home.

Restraining Order

[109] I do not find that the father has shown that a restraining order is warranted in this case. To obtain a restraining order under ss. 46(1) of the FLA or ss. 35(1) of the Children’s Law Reform Act, RSO 1990, c. C.12, the following factors are considered:

a) whether there are reasonable grounds for the claimant to fear for their physical or psychological safety, or for the safety of the children:

b) the “reasonable grounds” standard is lower than the civil “balance of probabilities” standard;

c) in assessing subjective fear, the order must only be granted where such fear has “a legitimate basis” to show a connection or association between the allegedly-frightening behaviour and the subjective fear; and

d) the responding party’s liberty interests request that a restraining order not be imposed lightly, or as a precautionary measure, but only in the face of a clear and demonstrable risk.

J.K. v. R.K., 2021 ONSC 1136 at paras 28-30; Sheldon v. Seraphim, 2024 ONSC 2678 at para 53; Visakaperumal v. Seevaratnam, 2024 ONSC 3113 at para 23; Whibbs v. Dobson, 2024 ONSC 2211 at paras 8 and 9.

[110] I accept that the father finds the mother to be unpredictable, verbally aggressive, and quite angry towards him due to the high-conflict nature of the family dispute. To the extent that the mother is said to have leveraged sexual assault allegations against the father to take over the master bedroom in the Horatio Court home from him, no evidence was led to show that the father called police or authorities to report allegations of violence against the mother.

[111] I am mindful that granting a restraining order may adversely impact the mother’s future ability to be employed as a nurse, and her future ability to travel internationally. Furthermore, I would expect the current adult conflict to abate significantly after the mother vacates the Horatio Court home as ordered. Taking everything into account, I decline to grant a restraining order. However, in an effort to lower tensions between the parties, a mutual non-disparagement and non-harassment order shall be granted.

Outcome

[112] Based on all of the foregoing, I make the following orders:

a. the child M.E.A. shall have her primary residence with the father, who shall exercise sole decision-making responsibility, and shall share parenting time with the mother based on M.E.A.’s preferences or as mutually agreed upon by the parties, failing which her parenting time shall be determined by the father in his sole discretion;

b. the father may apply for, obtain, and/or renew any government documents for M.E.A. as required and the consent or signature of the mother for this is hereby dispensed with;

c. the father may travel with M.E.A. within and outside of Canada, and the consent and signatures of the mother for this is hereby dispensed with;

d. given her age, no parenting orders are made in respect of M.I.A. in respect of the exercise of decision-making responsibility or parenting time for her, although the parties are to respect her preferences;

e. the mother shall maintain workplace benefit and insurance coverage for M.I.A. and M.E.A. for as long as they are entitled to support from the mother;

f. starting the first day of the month after the mother vacates the Horatio Court property, the mother shall pay table child support to the father for M.E.A. in the amount of $471.00 per month (i.e., based on an imputed income of $52,126.00), subject to paying table child support of $774.19 per month for M.I.A. and M.A.E. in the summer months should M.I.A. come home from university then to reside with the father while still a dependent of the parties’ relationship and enrolled in a full-time undergraduate program;

g. a support deduction order shall issue and shall be enforced by the Director of the Family Responsibility Office unless withdrawn;

h. for as long as support remains payable by the mother, the parties shall exchange income information, as required under s. 21 of the Child Support Guidelines, O.Reg. 391/97, by July 31^st each year;

i. starting January 1, 2025, the parties shall equally share any agreed upon special and extraordinary expenses for M.I.A. and M.E.A., for which neither party shall unreasonably withhold their agreement;

j. starting January 1, 2025 the father shall receive any child tax benefits for which either child is eligible, and the mother shall fully cooperate with government authorities to implement this and repay any amounts paid to her on or after this date;

k. the father is declared to be the sole owner of the Horatio Court home and the mother is declared to have no right or interest in the property;

l. the mother shall vacate the Horatio Court home by February 28, 2025, failing which the father is hereby granted leave for a writ of possession to issue so that he may arrange for enforcement by the sheriff;

m. the mother shall pay the father occupation rent totalling $56,848.00 for the period from November 1, 2019 to December 31, 2024, and shall continue to pay him occupation rent for the period thereafter at a rate of $1,050.00 per month on a pro rata basis until she vacates the Horatio Court property;

n. neither party shall disparage or harass the other, or allow others to do so while in their presence;

o. the balance of the claims are dismissed; and

p. this order bears interest at the post-judgment interest rate of 7% per year from the date of this order, and a payment in default bears interest only from the date of default.

[113] Should the parties be unable resolve the issue of costs for the application, the father may deliver written costs submissions of up to 3 pages (excluding any costs outline or offer(s) to settle) within 20 days, and the mother may deliver responding submissions on the same terms within a further 20 days. Reply submissions shall not be delivered without leave.

Date: December 30, 2024 M.T. Doi J.

COURT FILE NO.: FS-20-98502

DATE: 2024 12 30

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Austin Anthony, Applicant

AND:

Aderonki Ogunbiyi, Respondent

BEFORE: M.T. Doi J.

COUNSEL: Harpreet Singh Makkar, for the Applicant

Ajit Kaura, for the Respondent

REASONS FOR JUDGMENT

M.T. Doi J.

DATE: December 30, 2024

[^1]: See the Trial Management Conference Endorsement of Emery J. dated August 18, 2023 at paras 4-7.

[^2]: See Case Centre at B891gt.

[^3]: By Endorsement dated July 28, 2022, Agarwal J. held that 7 of the 8 refusals by the mother at questioning were proper questions that she should answer, but that one refusal had become moot.

[^4]: In addition, there is some evidence that the mother was previously married and may still have been married when the December 18, 2024 ceremony took place, although this evidence was rather unclear.

[^5]: The father initially paid a $5,000.00 deposit to place a hold on the Eglinton Avenue property, and later paid a further deposit of about $40,000.00.

[^6]: The mother’s constructive trust claim was included in her amended answer dated February 16, 2023. The mother did not bring a motion under Rule 11(1) for leave to amend the answer due in part to a misunderstanding by court staff that I accept prevented the motion from being brought, at least initially. That said, I have granted leave nunc pro tunc to allow the amended answer with the constructive trust claim as pleaded.

[^7]: The mother received $85.67 on December 10, 2019 and $1,013.72 on December 13, 2019 for a combined total of $1,099.39 in provincial benefits and federal child tax benefits: Case Centre A1120.

[^8]: The mother received $64.76 on October 9, 2020 and $548.50 on October 20, 2020 for a combined total of $613.26 in provincial benefits and federal child tax benefits: Case Centre A1122.

[^9]: Mr. Jutla’s rent report dated January 24, 2024 is found at Case Centre A1186 to A1205.