Court File and Parties
Court File No.: FS-20-00000148-0000 Date: 2025-08-19 Ontario Superior Court of Justice
Between: Caryn Smith, Applicant – and – Michael Andrew Okros, Respondent
Before: K.E. Cullin J.
Counsel:
- Kim Guillemette, for the Applicant
- Self-represented (Respondent)
Heard: May 28, 2025 & August 15, 2025
Reasons for Decision on Binding Judicial Dispute Resolution Hearing
Introduction
[1] This matter appeared before me for a Binding Judicial Dispute Resolution Hearing ("the hearing"), which was conducted over the course of two days on May 28, 2025, and August 15, 2025. At the conclusion of the hearing, the decision was reserved to provide written reasons; these are those written reasons.
[2] The issues to be determined in this hearing involved parenting time and decision-making, child support, spousal support, and division of property. I will address each issue in turn.
Definitions and Terms
[3] For the purpose of the orders made herein:
a. The applicant, Caryn Smith, shall be referred to as "the applicant" and the respondent, Michael Andrew Okros, shall be referred to as "the respondent".
b. The applicant and the respondent may be referred to as a "party" individually and as "the parties" collectively.
c. The child, Ayden Smith, born October 13, 2011, shall be referred to as "Ayden", and the child, Ava Okros, born July 7, 2015, shall be referred to as "Ava".
Parenting Time and Decision-Making
On Consent
[4] The following orders are made on consent:
a. Parenting time and decision-making for the child, Ayden, shall be the sole responsibility of the applicant. The respondent shall have no parenting time, right to access information, or decision-making authority with respect to Ayden except with the consent of the applicant, which consent shall be granted within her sole and absolute discretion.
b. The parties shall have shared parenting time with the child, Ava.
c. Ava shall reside with each party on a week-about schedule. Presently, each party's week begins and ends on Tuesday evenings. The parties shall retain the discretion to vary the schedule to accommodate their work schedules and Ava's schedule.
d. If either party is unable to care for Ava for more than 50% of their parenting week, that party shall give the other party the right of first refusal to care for Ava. For greater clarity, this is not intended to restrict Ava from spending time with third-parties such as extended family or friends.
e. The parties shall register for and communicate using Our Family Wizard (OFW). OFW shall be used by the parties solely for the purpose of communicating about Ava. Each party shall register for OFW within (10) business days of this order and shall confirm their registration to the other party. Each shall pay their respective costs for the program.
f. Each party shall ensure that Ava attends her scheduled extracurricular activities during their own parenting time. If one party cannot facilitate Ava's attendance during their parenting time due to work or exceptional circumstances, they shall promptly inform the other party, who shall have the right to take Ava to the activity and promptly return her to the other party's residence when it is concluded.
g. Each party shall ensure that Ava attends all scheduled medical, dental, or other third-party service-provider appointments during their own parenting time. Absent extenuating circumstances, neither shall schedule an appointment during the other's parenting time without first consulting them about their availability.
h. If a party cannot facilitate Ava's attendance at an appointment that they have scheduled during their own parenting time due to work or exceptional circumstances, they shall promptly inform the other party, who shall make their best efforts to take Ava to the appointment. If a party cannot facilitate Ava's attendance at an appointment that the other party has scheduled during their parenting time, they shall promptly inform the other party, who shall be required either to take Ava to the appointment or to reschedule it.
i. Each party shall ensure that the other is advised, using OFW, of any appointments that they have scheduled for or regarding Ava with her teachers, school officials, doctors, dentists, health care providers, or other involved service-providers. Both parties shall have the right to attend all scheduled appointments. If a party is unable to attend a scheduled appointment, the other party shall promptly advise them of its outcome.
j. Both parties shall be listed as emergency contacts with Ava's schools, health care providers, and other organizations/persons involved with caring for Ava.
k. The applicant and the respondent may make inquiries and be given information by Ava's teachers, school officials, doctors, dentists, health care providers, or other involved service-providers. This order is intended to provide each of them with access to any information or documentation to which a parent of a child would otherwise have a right of access. This order shall serve as authorization from each party for any third party to provide all requested information or documentation with respect to Ava to each parent. If, for whatever reason, this order is not sufficient, the parties shall cooperate and execute any required authorization or direction necessary to enforce the intent of this order.
l. The party whom Ava is scheduled to be with according to the parenting time schedule shall make the day-to-day decisions affecting Ava during that time.
m. Emergency decisions shall be made by both parties, provided both parties can be reached. Failing this, the party attending to the emergency may make the decision until such time as the other party can be reached. If either party makes an emergency decision regarding Ava, they shall immediately use best efforts to contact the other party and inform them.
n. In the event of a disagreement regarding any decision of significance involving Ava's healthcare or education, the parties shall consult with any applicable third-party professionals involved with Ava. If the parties continue to disagree after consulting with each other and the third-party professionals, the recommendations made by the applicable third-party professionals shall be binding on the parties, unless and until otherwise ordered by the court.
o. Neither party shall speak negatively about the other party in either Ayden or Ava's presence. Both parties shall make their best efforts to prevent any other person from speaking negatively about the other party in either Ayden or Ava's presence.
p. Neither party shall discuss these legal proceedings or other adult issues involving the parties with either Ayden or Ava and shall make their best efforts not to involve Ayden or Ava in any conflicts, including involving them in making decisions regarding issues that the parties should be resolving between themselves.
Child Support and Section 7 Expenses
On Consent
[5] The following orders are made on consent:
a. The parties shall each pay fifty per cent (50%) of the special or extraordinary expenses under section 7 of the Child Support Guidelines for the child, Ava. This order shall commence on August 15, 2025, and shall continue until child support is no longer payable for Ava pursuant to the terms of this order.
b. The expenses for Ava's participation in ringette shall be considered s. 7 expenses for the purpose of this order.
c. All medical and healthcare-related expenses not covered by the parties' benefits shall be considered s. 7 expenses for the purpose of this order.
d. For so long as Ava is eligible for child support the parties shall maintain her on any extended healthcare benefit plans available through their respective places of employment for which she is eligible.
e. In determining their respective contributions towards s. 7 expenses for Ava, the parties shall deduct any approved subsidies or benefits relating to the expenses. The parties shall make reasonable efforts to obtain such benefits and subsidies and any party submitting an application or claim shall provide the other with all documents confirming the approval of such subsidies and benefits, including the amounts approved.
Not on Consent
[6] The following orders are made by the court following the hearing:
a. It is declared that Ayden is the respondent's child within the meaning of ss.1(1) and 31(1) of the Family Law Act, R.S.O. 1990, c.F.3.
b. It is declared that the applicant's income within the meaning of the Child Support Guidelines (Ontario) fixed as of September 1, 2025, is $41,750.
c. It is declared that the respondent's income within the meaning of the Child Support Guidelines (Ontario) fixed as of September 1, 2025, is $69,422.68.
d. Paragraph (1) of the Order of Justice R. Riopelle, dated August 26, 2021, shall be amended to provided that, commencing September 1, 2025, and payable on the first day of each month thereafter, the respondent shall pay child support to the applicant for Ava and Ayden in the amount of $529 per month. This child support is based upon the applicant's annual income of $41,750, the respondent's annual income of $69,422.68, the applicant's sole parenting of Ayden, the parties' shared parenting of Ava, and the existing child support order for Ayden.
e. The arrears of child support owing by respondent to the applicant pursuant to the Order of Justice R. Riopelle, dated August 26, 2021, shall be adjusted to reflect the fact that, as of August 15, 2025, the respondent has overpaid child support to the applicant in the amount of $7,283.04.
f. Commencing September 1, 2025, and payable on the first day of each month thereafter, the respondent shall pay $250 per month toward any outstanding child support arrears owing to the applicant pursuant to the Order of Justice R. Riopelle, dated August 26, 2021, or accruing after today's date pursuant to this order.
g. The applicant and the respondent shall provide to the other party and to the Director of the Family Responsibility Office notification of any change in their address or employment, including full particulars about the change, within ten (10) days of the change taking place.
h. Commencing on June 1, 2026, and continuing on or before June 1 st of each year for so long as child support is payable, the applicant and the respondent shall each provide to the other a copy of their respective Notice of Assessment or Re-Assessment, and their T1 Income Tax Return with enclosures for the previous tax year. Table child support shall be adjusted on June 30 th annually in accordance with the Child Support Guidelines (Ontario). For the purpose of clarity, the adjustments shall be based upon the following income amounts in the parties' T1 income tax returns for the previous tax year, unless otherwise ordered by the court:
i. The applicant's income for the purpose of the Child Support Guidelines (Ontario) shall be deemed to be the amount reported as employment income at line 10100 of her T1 income tax return for the most recent tax year; and,
ii. The respondent's income for the purpose of the Child Support Guidelines (Ontario) shall be deemed to be the amount reported as total income at line 15000 on his T1 return for the most recent tax year, subject to a 35% gross-up of any earned WSIB income.
i. The parties shall each pay fifty per cent (50%) of the special or extraordinary expenses under s. 7 of the Child Support Guidelines for the child, Ayden. This order shall commence on September 1, 2025, and shall continue until child support is no longer payable for Ayden pursuant to the terms of this order.
j. For so long as Ayden is eligible for child support the parties shall maintain him on any extended healthcare benefit plans available through their respective places of employment for which he is eligible.
k. In determining their respective contributions towards s. 7 expenses for Ayden, the parties shall deduct any approved subsidies or benefits relating to the expenses. The parties shall make reasonable efforts to obtain such benefits and subsidies and any party submitting an application or claim shall provide the other with all documents confirming the approval of such subsidies and benefits, including the amounts approved.
l. For any s. 7 expense where there is a benefit or subsidy available to pay all or part of the expense, the party whose benefits carrier is primarily responsible for the expense ("the paying party") shall be responsible for paying the expense up front, submitting it to their benefit carrier for coverage, and then seeking reimbursement for any amount not covered from the other party ("the reimbursing party"). Any request for reimbursement shall be accompanied by receipts or statements showing the total amount of the expense paid and the total amount of any coverage paid for the expense.
m. Reimbursements shall be paid by the reimbursing party within (5) business days of being requested. To the extent that an expense is eligible for secondary benefits coverage through the reimbursing party, they shall pay the entire reimbursement amount requested by the paying party and thereafter seek payment from their own benefit carrier. If the payment from the secondary carrier exceeds what the reimbursing party was required to pay, they shall pay any excess amount to the paying party within (5) business days of receiving the payment.
n. For the purpose of this order, the children's Band and the Non-Insured Health Benefits Program through Indigenous Services Canada shall be considered a benefits carrier of the applicant.
o. If either party is required to incur an urgent healthcare-related expense for a child while they are in their care, that party shall pay the upfront cost of the expense. If their benefit carrier is not the primary carrier, the other party shall reimburse them for 100% of the expense within (5) business days and sharing of the expense shall then be addressed using the framework established in this order.
p. For expenses which are not eligible for a benefit or subsidy, the party who has a child in their care when the expense arises shall pay it and seek reimbursement of the one-half share of the expense from the other, providing any necessary receipts or supporting documents when making that request. The other party shall pay their share of the expense within (5) business days of being requested.
q. Neither party shall incur a s. 7 expense for a child in excess of $250 total without first consulting the other. Failing agreement, if the expense pertains to the child's healthcare or education, the party may incur the expense and the other shall be required to pay their share within (5) business days of being requested. If the expense pertains to an extra-curricular activity other than Ava's ringette, the other party may incur the expense but shall only receive reimbursement for up to 50% of $250 unless the parties agree or a court orders otherwise.
r. Any expenses submitted by one party to the other for reimbursement that remain unpaid after five (5) business days may be submitted to FRO for enforcement.
s. The parties shall co-operate with respect to the submission of claims for benefits or subsidies. Each shall promptly sign any authorizations or documents, or provide any requested information, as required by the benefits carrier.
t. Commencing on June 1, 2025, and continuing on or before June 1st of each year for so long as child support is payable, the applicant and the respondent shall each provide to the other a summary of any benefits coverage available to them for which the children are eligible.
u. The applicant may, within 60 days of the date of this order, submit a 14B motion, directed to my attention, to claim retroactive s. 7 expenses for Ayden for the period from June 28, 2019, to August 15, 2025. Any expenses claimed shall be accompanied by supporting documents, including confirmation of any amounts received as benefits or subsidies toward the claimed expenses. The respondent shall have 30 days after receiving the 14B motion to file a responding affidavit, after which the court shall either determine the issue in writing or convene a case conference to request further submissions.
Reasons
Child Support - Entitlement
[7] The applicant claims child support for both Ayden and Ava in accordance with the Child Support Guidelines. The respondent agrees that Ava is his "child" within the meaning of the Family Law Act, R.S.O. 1990, c.F.3 ("FLA"), however he denies that Ayden is his "child". It is his position that Ayden has a biological father, and that the applicant's new partner has also assumed a parental role with respect to Ayden since the parties' separation.
[8] Pursuant to s.1(1) of the FLA, a "child" is defined as, "a person whom a parent has demonstrated a settled intention to treat as a child of his or her family".
[9] In Chartier v. Chartier, [1999] 1 SCR 242, at para. 32, the Supreme Court found that a person who has demonstrated a settled intention to act as a child's parent cannot unilaterally withdraw from that relationship upon separation. In determining whether a person has demonstrated a settled intention, the court must objectively examine the nature of the relationship between the person and the child prior to the separation. Every matter is assessed on its own facts, on a case-by-case basis.
[10] The parties were involved in an "on-again, off-again" relationship that commenced in or about October 2002. Ayden was conceived through a relationship between the applicant and another partner during one of the "off-again" periods. The respondent acknowledges that he was aware that Ayden was not his child since shortly after his birth; this was confirmed through a DNA test. The respondent has not adopted Ayden.
[11] Ayden has no relationship with his biological father. Pursuant to an order made in the Ontario Court of Justice by Justice Carr, dated July 27, 2012, the applicant has sole custody of Ayden, and his biological father has no access to him. That order requires Ayden's biological father to pay child support in the amount of $150 per month, commencing July 1, 2012. It is the applicant's evidence that no payments have ever been made pursuant to the order.
[12] Until the parties' most recent and final separation, Ayden was not aware that the respondent was not his biological father. For the first eight years of his life, the respondent was the only father that Ayden knew. During prior separations, the respondent exercised parenting time with both children. After the parties' final separation in June 2019, the respondent exercised parenting time with Ayden until April 2020, after which he severed his relationship with him.
[13] The respondent acknowledges that, prior to the parties' final separation, Ayden called him "Dad". He alleges, however, that he was not permitted to have a meaningful role in Ayden's upbringing, and that the applicant would constantly remind him that he was not Ayden's biological father.
[14] The respondent acknowledges that he attended to Ayden's needs during the relationship, when he was permitted to do so by the applicant. He acknowledges that he attended Ayden's school and extra-curricular activities, although he alleges that he did so only as a source of "moral support" for the applicant. He acknowledges that, prior to April 2020, Ayden attended family functions with the respondent's family.
[15] I am satisfied on the evidence that, during the parties' relationship, the respondent demonstrated a settled intention to treat Ayden as a child of his family. Ayden is the respondent's "child" for the purpose of determining child support.
Child Support – Calculation of Income
[16] Each party alleges that income should be imputed to the other. The applicant alleges that the respondent is intentionally underemployed. The respondent alleges that the applicant has failed to fully disclose her income.
[17] The applicant submits that, for the purpose of child support, her income should be imputed to be $31,500, which reflects approximately what she would earn with minimum wage employment. The respondent submits that an income of $47,000 should be imputed to her.
[18] The respondent submits that, for the purpose of child support, his income should be imputed to be $50,000, which is his combined income from WSIB and his present employment with Dumas Construction.
[19] Annual income for the purpose of child support is determined in accordance with the Child Support Guidelines, O.Reg. 391/97 ("CSG"). For employed individuals, income is determined using their T1 return, specifically using their "Total Income" at line 15000 of the return. The court can make adjustments considering both patterns of income and non-recurring losses, as well as the adjustments set out in Schedule III of the CSG.
Income of the Applicant
[20] The applicant is employed by Boreal Asset Management. In support of her position regarding her income for the purpose of child support, she relies on her 2023 T1 return which discloses a total income of $35,854.41, and a net income of $21,663.41, which amounts are calculated as follows:
| Income or Deduction | Amount |
|---|---|
| Employment Income | 41,750 |
| Interest and Investment Income | 376.87 |
| Rental Income (Net) | (9,493.86) |
| Taxable Capital Gains | 3,221.40 |
| Total Income | $35,854.41 |
| RRSP Deduction | (7,136) |
| Child Care Expenses | (4,200) |
| Disability Supports Deduction | (2,500) |
| CPP Enhanced Contribution Deduction | (355) |
| Net Income | $21,663.41 |
[21] Since the parties' separation, the applicant's total income in her T1 return has fluctuated from a low of $20,296.99 in 2020 to a high of $51,261.72 in 2021. In some years, that income has included non-recurring taxable capital gains with respect to the sale of rental real estate.
[22] The applicant's 2023 net rental income was from three properties, one of which is jointly owned with the respondent. In 2023, the last year of income disclosure before me, that income was calculated as follows:
| Property | 48 Bannerman (Jointly Owned) | 289 Maple N. | 228 Maple N. | Totals |
|---|---|---|---|---|
| Gross Rents | 10,200 | 4,585 | 9,000 | 23,785 |
| Insurance | (1,206) | (763) | (1,969) | |
| Interest & Bank | (4,257.61) | (4,257.61) | ||
| Repairs | (150.00) | (4,871.23) | (17,258.02) | (22,279.25) |
| Property Tax | (1,659.60) | (1,659.60) | ||
| Other Expenses | (1,200) | (1,050) | (2,250) | |
| Net Income | 1,726.79 (½ = 863.40) | (2,099.23) | (8,258.02) | (9,493.86) |
[23] By comparison, the applicant's net rental losses were $7,218.06 in 2020 and $2,696.02 in 2022. In 2019, she had a net rental income of $264.07, while in 2021 she had a net rental income of $5,071.12. In 2023, the applicant sold the property at 289 Maple Street North, and it is the parties' intention to sell the property at 48 Bannerman Avenue.
[24] There is no evidentiary basis upon which to impute an income of $47,000 to the applicant as requested by the respondent, however in my view her submission that her income be fixed at $31,500 is also not reflective of her true income.
[25] In my view, the applicant's income for the purpose of child support should be her employment income as reported at line 10100 of her T1 return. Her rental income fluctuates between net income and net losses, and her taxable capital gains are non-recurring; in my view, it is most appropriate that they be removed from the equation for the purpose of calculating guideline support.
[26] The respondent has also argued that the calculation of the applicant's income should consider her household income, as well as income that he alleges she earns from additional business ventures. I find that there is no evidence to support that the applicant has any undisclosed sources of income. Neither has a viable argument been advanced for undue hardship, and as such there is no basis upon which to consider the income of the applicant's current spouse.
[27] The applicant's income for the purpose of calculating ongoing child support will therefore be fixed at $41,750 as of September 1, 2025. For the purpose of calculating arrears, her income will be fixed at the amount of her employment income reported at line 10100 on her T1 returns, plus any CERB or CERB-type benefits received by her during the pandemic and reported as "other" income. Going forward, absent a material change in circumstances, the applicant's income for the purpose of calculating support will be adjusted annually to reflect her employment income reported at line 10100 on her T1 return.
Income of the Respondent
[28] The respondent is presently employed by Dumas Construction and is also in receipt of WSIB benefits.
[29] The respondent takes no issue with the formula proposed by the applicant for the gross-up of his WSIB income in recognition of the fact that it is non-taxable.
[30] Although there is some debate in the respondent's medical records about his precise diagnosis, he suffers from some form of colorectal disease that requires ongoing medical and surgical intervention. This has been present since at least December 2020. I am satisfied that it has interfered with the respondent's ability to consistently maintain gainful employment, and that it is likely to continue to interfere with his employability in the future. I am satisfied that the respondent has not been intentionally underemployed since the separation.
[31] The respondent's income from WSIB fluctuates; in 2023 it was $25,290.87. Applying the 35% gross-up proposed by the applicant and accepted by the respondent, this results in an annual income from WSIB of $34,142.68, which is the best evidence before me of the respondent's present WSIB income.
[32] It is the respondent's evidence that he is also earning $20/hr, for 10.5 hours per day and 14 days per month, working at Dumas Construction. This produces an annual income of $35,280. There is no evidence that the respondent earns additional income from rent or other sources.
[33] The respondent's income for the purpose of calculating ongoing child support will therefore be fixed at $69,422.68 as of September 1, 2025. For the purpose of calculating arrears, his income will be fixed at the amount of his total income reported at line 15000 on his T1 returns, subject to a 35% gross-up of his WSIB income to reflect the fact that it is non-taxable. Going forward, absent a material change in circumstances, the respondent's income for the purpose of calculating child support will be adjusted annually to reflect his total income reported at line 15000 on his T1 return, subject to a 35% gross-up of his WSIB income.
Child Support – Quantum of Ongoing Support
[34] Ongoing child support is payable is based upon the following:
a. The applicant's annual income of $41,750;
b. The respondent's annual income of $69,422.69;
c. The applicant's sole parenting of Ayden;
d. The parties' shared parenting of Ava;
e. The Order of Justice Carr dated July 27, 2012, regarding support for Ayden.
[35] Although the existing order for child support for Ayden is not presently being paid, there is no evidence that the payor is incapable of paying it. In my view, that is an enforcement issue between the applicant and payor. In making an order requiring the respondent to pay child support the court should be mindful of the potential for "double-dipping". Child support payable by the respondent will therefore be adjusted to reflect this existing source of support for Ayden.
[36] On these facts, the respondent has an obligation to pay child support to the applicant in the amount of $529 per month. It is calculated as follows:
a. Child support for two children based on the respondent's income of $69,422.69 is $1,057.59 per month.
b. Child support for one child based on the applicant's income of $41,750 is $378.40 per month.
c. Child support payable for Ayden pursuant to the Order of Justice Carr, dated July 27, 2012, is $150 per month.
d. Net child support payable by the respondent to the applicant is $529.19 (rounded down to $529) per month.
Child Support - Arrears
[37] Pursuant to the Order of Justice Riopelle, dated August 26, 2021, the respondent is presently required to pay the following, on a without prejudice basis:
a. Commencing September 1, 2021, child support in the amount of $795 per month, for the benefit of Ava. This support was based on an income of $30,000 for the applicant and $69,362 for the respondent.
b. Commencing September 1, 2021, child support arrears, fixed at $21,083, and payable at a rate of $250 per month. It is not specified in the order, but they appear to be child support arrears for the benefit of Ava.
[38] For the purpose of calculating arrears, the parties agree that their date of separation is June 28, 2019.
[39] Based upon the criteria that I have established to determine income and offsets for the purpose of calculating child support, the resulting child support for Ayden and Ava from the date of separation to August 15, 2025, based upon the income tax returns of the parties in evidence before me, would be the following:
| Year | Applicant Income | Respondent Income | Monthly Child Support* |
|---|---|---|---|
| 2019 | 5,291 | 98,204.89 | 1,299.46** |
| 2020 | 27,515.05 | 84,372.13 | 895.56 |
| 2021 | 40,706.56 | 82,725.30 | 733.54 |
| 2022 | 44,638.52 | 68,485.90 | 479.40 |
| 2023 | 41,750 | 75,907.50 | 623.85 |
| 2024 | 41,750 | 69,522.69 | 529 |
| 2025 | 41,750 | 69,522.69 | 529 |
*Adjusted downward by $150/month to reflect Order of Justice Carr **Payable from July 1st
[40] Based upon these figures, the total amount of child support that the respondent should have paid for the period from July 1, 2019, to August 15, 2025, is $51,164.96. The total amount of child support that accrued during this period pursuant to the existing Order of Justice Riopelle, including the arrears provided in that order, is $58,448. The difference is $7,283.04, representing an overpayment by the respondent to the applicant.
[41] The evidence before me is that the respondent continues to owe child support arrears to the applicant pursuant to the Order of Justice Riopelle. My order will therefore direct that those arrears be reduced by the amount of the respondent's overpayment.
Section 7 Expenses
[42] While the parties were agreed regarding the apportionment of s. 7 expenses for Ava, they were not agreed about how to approach the up-front payment and reimbursement of those expenses. This is due to mistrust between the parties with respect to financial issues.
[43] In my view, neither party should be solely responsible for paying the up-front costs of s. 7 expenses and then be left to chase the other for reimbursement. It is also my view that each party should be responsible for dealing with their own benefit carrier(s). A framework will be ordered with these objectives in mind.
[44] Given my findings regarding the respondent's obligation to pay child support for Ayden, he will be required to contribute to fifty percent (50%) of Ayden's s. 7 expenses. Apportionment has been determined having regard to the parties' agreement regarding Ava's s. 7 expenses.
[45] The applicant will also be permitted to submit a claim for retroactive s. 7 expenses for Ayden for my review.
Spousal Support
Not on Consent
[46] The following orders are made by the court following the hearing:
a. Neither party shall be required to pay spousal support to the other. The applicant's claim for spousal support is dismissed.
Reasons
[47] In the application, the applicant advanced a claim for spousal support. It was not identified by her as an issue for the purpose of the hearing, although the respondent sought to make submissions on it.
[48] Except for perfunctory submissions, this issue was not the subject of any evidence of note. It was the applicant's evidence that she has re-partnered. The respondent submitted that she has moved on to a substantially improved standard of living.
[49] It is not necessary that I make any findings regarding the applicant's post-separation standard of living as it is not relevant to any of the issues before me. What I do find is that, although there is an arguable issue regarding the applicant's entitlement to spousal support given the parties' roles during the relationship, there is no evidence supporting a need for spousal support post-separation. The applicant is employed and is earning an income which is allowing her to maintain a standard of living which is, at minimum, comparable to her standing of living during the relationship.
[50] In the circumstances, there will be no order requiring either party to pay spousal support to the other, and the applicant's claim for spousal support will be dismissed.
Apportionment of Rental Income Received from Date of Separation
Not on Consent
[51] The following orders are made by the court following the hearing:
a. The respondent's claim for an apportionment, from the date of separation, of rental income received by the applicant with respect to the parties' jointly held rental properties is denied.
Reasons
[52] The respondent claims that he should receive a proportionate share of the rental income received by the applicant with respect to the parties' jointly held rental properties since the date of separation. He claims that the parties always profited from the rental properties prior to the separation, and that the applicant has retained those profits to his exclusion since the separation.
[53] The applicant denies that the rental properties were always profitable. She submits that the Statements of Real Estate Rentals disclosed with her income tax returns clearly demonstrate that the properties have not been consistently profitable since the date of separation. To the contrary, she has been required to incur out-of-pocket expenses to maintain some of the properties, without contribution from the respondent.
[54] I agree with the applicant that the rental properties as a portfolio have not been consistently profitable. Even prior to the separation, in 2017, 2018 and 2019, to the extent that profits were earned they were modest. The Statements of Real Estate Rentals both before and after the date of separation do not disclose any obviously inflated or unreasonable expenses. The expenses claimed are quantifiable out-of-pocket expenses. No management or employee fees are claimed. "Other" expenses claimed are not significant.
[55] I have not permitted net rental income or losses to be considered for the purpose of establishing the applicant's income to calculate ongoing child support and child support arrears. In my view, this is the most appropriate adjustment to make with respect to rental income from the date of separation to present, as it considers that fact that there have been declared profits, but also declared losses. It also considers the fact that the parties have divested themselves of most of their rental real estate portfolio since the separation.
[56] While the respondent's proposed approach would require the applicant to remit profits to him, it would also require that he remit payments to the applicant for those years that there have been losses. The respondent has not satisfied me that any rental income losses declared by the applicant since the date of separation are fabricated. Ordering an adjustment would also require both parties to re-file their income tax returns and possibly to pay income taxes. In my view, there is no benefit to either party with this approach.
[57] In the circumstances, no further apportionment of rental income received by the applicant for the parties' jointly held rental properties from the date of separation will be ordered.
Applicant's Claim re: 85 Montgomery Avenue, Timmins
Not on Consent
[58] The following orders are made by the court following the hearing:
a. It is declared that the applicant has an equitable interest in the property municipally located at 85 Montgomery Street, Timmins, Ontario ("the Montgomery property"), to the extent of twenty percent (20%) of the equity in the Montgomery property as of June 28, 2019. For the purpose of clarity, the equity in the Montgomery property shall be deemed to be its appraised value as of June 28, 2019, minus the outstanding balance of any mortgage or other secured credit facilities registered against it as of June 28, 2019 ("the equity payment").
b. The parties shall obtain an appraisal of the Montgomery property to ascertain its value of as of June 28, 2019. They shall retain Northern Ontario Appraisals Ltd. ("Northern") to conduct the appraisal, subject to its consent. Failing such consent, they shall retain a mutually agreeable qualified real property appraiser.
c. The respondent shall contact Northern by or before September 1, 2025, to conduct the appraisal at its earliest availability and shall advise the applicant and her counsel of the scheduled date and time of the appraisal by email. If the respondent has not notified the applicant and her counsel of the scheduled date and time by or before 9am on September 2, 2025, the applicant shall proceed to schedule the appraisal and notify the respondent of its scheduled date and time.
d. The respondent shall co-operate with the appraisal including, but not limited to, allowing the appraiser unfettered access to the Montgomery property, and providing the appraiser any requested information regarding renovations or upgrades undertaken to the Montgomery property since June 28, 2019.
e. The applicant shall be permitted, in her sole discretion, to either attend personally or to have a third party of her choosing attend at the Montgomery property during the appraisal to observe the appraisal process and to provide any information that the appraiser may request regarding the Montgomery property. The applicant shall promptly notify the respondent of who shall be attending for that purpose.
f. The respondent shall pay the up-front cost of the appraisal and shall be entitled to deduct one-half of that cost from the equity payment. To claim this deduction, he shall provide a copy of the appraiser's invoice and his proof of payment to the applicant's counsel.
g. If the respondent fails to pay the up-front cost of the appraisal, the applicant shall pay it and shall be entitled to recover the entire cost of the appraisal from the respondent in addition to the equity payment. If this occurs, she shall provide a copy of the appraiser's invoice and her proof of payment to the respondent.
h. The respondent shall, not later than September 1, 2025, sign an authorization and direction to be provided to him by email by the applicant's counsel authorizing any financial institution with a mortgage or secured credit facilities registered against the Montgomery property as of June 28, 2019, to disclose particulars of the outstanding balances of those mortgages or credit facilities as of June 28, 2019, to the applicant's counsel.
i. The respondent shall remit the equity payment, once calculated, subject to any upward or downward adjustment for the cost of the appraisal, through payments to be remitted as follows:
i. The respondent's share of the net sale proceeds being held in trust with respect to the Laurier property shall be applied first to satisfy the equity payment;
ii. Any remaining amount of the equity payment after the payment in (i) shall be satisfied next from the respondent's share of the proceeds of sale of the Bannerman property; and,
iii. Any remaining amount of the equity payment after the payments in (i) and (ii) shall be satisfied next by payment to be remitted by the respondent to the applicant within (90) days of the disbursement of the proceeds of sale of the Bannerman property. In the event that the respondent fails to make such payment within (90) days, the applicant may schedule a case conference before a judge of the Ontario Superior Court of Justice to address the issue of payment.
j. The applicant shall have a charge against the Montgomery property to the extent of the value of her twenty percent (20%) interest in the property pending the payment in full of the equity payment by the respondent. The applicant may take any necessary steps to register that charge, including bringing a 14B motion without notice to the respondent, to give effect to this order.
Reasons
[59] The property municipally located at 85 Montgomery Avenue in Timmins, Ontario ("the Montgomery property") was purchased in the respondent's name in or about 2007. The applicant has advanced a claim for an equitable interest in one-half of the Montgomery property.
[60] The applicant's claim is grounded in two arguments: (1) that the Montgomery property is her childhood family home, and it was only purchased in the respondent's name for financial reasons; (2) the parties occupied the Montgomery property as their family home throughout the majority of their relationship.
[61] At the time of their separation, the parties owned the following properties, either on their own or jointly:
| Property | Ownership |
|---|---|
| 85 Montgomery Avenue | Respondent solely |
| 70-72 Montgomery Avenue | Applicant & Respondent jointly |
| 35 Laurier Avenue | Applicant & Respondent jointly |
| 48 Bannerman Avenue | Applicant & Respondent jointly |
| 289 Maple Street North | Applicant Solely |
[62] While there is evidence that the parties occupied the Montgomery property during periods of their relationship, the evidence does not support a finding that it was primarily occupied as their family home. What the evidence does reveal is the following:
a. From approximately 2007 until early 2011, the parties occupied the Montgomery property as a shared residence. They had no children during that time.
b. The applicant left the residence when the parties separated briefly sometime in early 2011 when the applicant became pregnant with Ayden. There was another brief separation in the summer of 2011. Otherwise, the parties resided in the Montgomery property.
c. Between September 2012 and May 2015, the parties occupied the property at 70-72 Montgomery Avenue in Timmins as their family home. During that time, they separated from April 2012 to July 2012 (during which time the applicant purchased and resided in the property located at 289 Maple Street North in Timmins), approximately 3 months in the winter of 2013, and approximately 5 months between December 2014 and March 2015.
d. After the parties reconciled in 2015, they returned to the Montgomery property. The respondent has resided exclusively at the Montgomery property since May 2015. It was the applicant's evidence that she also resided in the Montgomery property except between December 2018 and March 2019 when she resided at 752 Riverside Drive in Timmins, Ontario. It was the respondent's evidence that the applicant moved in and out of the Montgomery property for periods of separation, but that when she resided at the property, she paid rent to him and spent periods of time residing in the basement. The applicant denies that she paid rent at any time to the respondent.
e. The applicant's income tax returns for the years 2017 and 2018 (prepared in 2018 and 2019) list 752 Riverside Drive, Timmins, Ontario as the applicant's residence as of the date of filing. The applicant says that this was her parents' address, and that she used it as a mailing address.
f. The applicant's 2017, 2018, and 2019 income tax returns were filed as "single". She says that she made this election to optimize her child tax credits and other taxable benefits, but that it did not reflect her true marital status.
g. The applicant's 2017 income tax return indicates in the "Application for the 2018 Ontario Trillium Benefit and Ontario Senior Homeowners' Property Tax Grant" that she lived in the Montgomery property for 12 months in 2017, but that she paid $14,400 in rent to live there. The applicant says that this was declared because she was a mortgage broker and claimed rent as a deductible business expense. This is contradicted by her "Statement of Business or Professional Activities" where she identified the Montgomery property as her business address, but she did not claim rent, or any other business use of home expenses as deductible expenses.
h. The applicant's 2018 income tax return indicates in the "Amounts for Spouse or Common-Law Partner and Dependants" that her son Ayden (who she claimed as an eligible dependant) was residing with her at 752 Riverside Drive. The applicant did not declare rent payments or business income in that tax return.
[63] The question, then, is what to do with this conflicting evidence.
[64] I would note as a preliminary observation that it is irrelevant that the Montgomery property was the applicant's childhood home. The applicant's claim will not be resolved on sentiment. What matters is the de facto living and financial arrangements with respect to the Montgomery property from the date it was purchased to the date of the parties' separation.
[65] Several facts do not assist the applicant's claim for a 50% equitable interest.
[66] The parties owned several properties, both jointly and solely. This suggests that, when the parties intended to own properties jointly, they purchased them jointly. The applicant is not suggesting, for example, that the respondent should have any interest in the property at 289 Maple Street North, which she owns solely.
[67] The applicant submits that her name was not added to the title for the Montgomery property due to issues with financing. This assertion is not supported with documentary evidence and relies upon my assessment of the applicant's credibility.
[68] The parties did not consistently reside in the Montgomery property from 2007 to 2019. Throughout that time, they circulated through multiple properties. There were periods of separation during which the applicant vacated the Montgomery property and resided elsewhere. There were periods that she was residing in the Montgomery property and reporting to Revenue Canada that she was there as a tenant. There were periods during which she says she was residing in the Montgomery property but reported to Revenue Canada that she was residing elsewhere.
[69] The applicant submits that the parties' periods of separation were not lengthy. She denies that she ever paid rent to reside at the Montgomery property. In my view, however, I must approach this evidence with caution because it is contradicted by documentary evidence that was prepared at a time when the parties were not embroiled in litigation.
[70] The respondent acknowledges that the applicant was residing at the Montgomery property more often than not between May 2015 and June 2019, but says that she insisted that she wanted to pay rent and spent some of the time residing in the basement. He vacillated about whether they were a couple during that time, but at one point during his evidence was quick to point out that the parties separated in June 2019. This suggests to me that, when the parties did reside together at the Montgomery property, it was not as roommates.
[71] I find that the Montgomery property was occupied by the parties as their family home during some, but not all, of the time between 2007 and 2019. I am satisfied that, while she was residing in the Montgomery property, the applicant made contributions to its maintenance and upkeep, both financially and in-kind, that give rise to an equitable interest.
[72] I am not, however, satisfied that the value of that interest is 50% of the equity in the Montgomery property as of the date of separation. In my view, this argument fails to recognize the fact that there were extended periods between 2007 and 2019 when the applicant did not reside in the Montgomery property and was not contributing to the accumulation of equity in it. It also fails to recognize that there were periods of time when the applicant held herself out as a tenant, and single, and accrued financial benefits from that status. In my view, it would be inequitable to permit her to revise history to secure further financial benefits now.
[73] On the evidence before me, I am satisfied that the applicant's equitable interest in the Montgomery property was 20% of the equity in the property as of June 28, 2019. A declaration will be issued accordingly, and orders will be made for the valuation and realization of that equitable interest.
Respondent's Claim re: Boreal Assessment Management and Boreal Investment Corp.
Not on Consent
[74] The following orders are made by the court following the hearing:
a. It is declared that the respondent has no equitable interest in the applicant's share of either Boreal Assets Management or Boreal Investment Corp., or any dividends received by the applicant from either corporation. The respondent's claim for an equitable interest is dismissed.
Reasons
[75] The respondent has advanced a claim for a "declaration that the respondent is the half owner of the beneficial interest in the applicant alienated business interests in Boreal Assets Management and Boreal Investment Corp. pursuant to a remedial constructive trust".
[76] The uncontradicted evidence before me establishes that the applicant divested her shares in Boreal Assets Management ("BAM") shortly prior to the parties' separation. She submits that she did so due to conflict with the respondent regarding her work hours, in an eleventh-hour attempt to save the parties' relationship. The applicant's 2019 income tax return confirms the payment of a dividend in the amount of $18,795.
[77] I accept the applicant's evidence that her interest in BAM was divested prior to the parties' separation and that she has no ongoing interest in this business, other than working as an employee. There is no evidence to the contrary, other than the respondent's submission that something is amiss with the arrangement; this evidence is insufficient to satisfy me on the balance of probabilities that the applicant continues to have an interest in BAM.
[78] The respondent also has no claim to the applicant's dividend income from BAM, which was received by her prior to the parties' separation. I will also not be including the dividend for the purpose of calculating her 2019 income as it was a non-recurring payment received prior to the parties' separation.
[79] The uncontradicted evidence before me also establishes that the applicant continues to have a 33% interest in Boreal Investment Corp. ("BIC"), but that the corporation operates at a loss. Again, there is no evidence to the contrary, other than the respondent's submission that something is amiss with the arrangement; this evidence is insufficient to satisfy me on the balance of probabilities that the applicant's equity in BIC has any appreciable value.
[80] Even if the respondent were able to demonstrate that the applicant has an interest of value in either corporation, he has failed to satisfy me that he has an equitable interest in either corporation. The parties were unmarried and, as a result, the respondent has no statutory claim to an equalization of the value of these assets. He has marshalled no evidence which demonstrates that he has contributed either financially or "in kind" to either corporation. On its own, the fact that he was involved in a relationship with the applicant during a period of her ownership is insufficient to satisfy this burden.
[81] The respondent's claim to an equitable interest in the applicant's share of BAM and BIC will be dismissed.
Sale of the Property at 48 Bannerman Avenue
Not on Consent
[82] The following orders are made by the court following the hearing:
a. The property municipally located at 48 Bannerman Avenue, Timmins, Ontario ("the Bannerman property"), shall be listed for sale with Tammy Cook of Claimpost Realty ("the realtor"), subject to her consent.
b. The Bannerman property shall be listed for sale on an "as is" basis. It shall be listed for a purchase price to be determined by the realtor in their sole and absolute discretion.
c. All offers shall be presented by the realtor to the parties "blind"; that is, the identity of the prospective purchasers shall not be disclosed to the parties.
d. Either party may submit their own offer to purchase the Bannerman property, but neither party shall have a right of first refusal with respect to any offers received from third parties.
e. The Bannerman property shall be sold to the purchaser(s) who:
i. Submits the highest unconditional offer that is within not less than $1500 of the listing price;
ii. Failing any offers as described in (i), submits the highest offer that is within not less than $1500 of the listing price, with the fewest conditions;
iii. If more than one offer is received as described in (ii), submits the highest offer that is within not less than $1500 of the listing price, with the fewest conditions and the earliest closing date; or,
iv. Any other prospective purchaser as may be agreed between the parties.
f. The real estate lawyer to complete the sale transaction for the parties shall be Luc Maisonneuve ("the lawyer") subject to his consent.
g. The parties shall co-operate with the realtor, the lawyer, and any prospective or actual purchaser of the Bannerman property or their agent(s) in providing access to the Bannerman property for the purpose of completing its sale. This shall include providing requested information or access to the Bannerman property to any appraisers, inspectors, insurers or other third parties on behalf of any prospective or actual purchaser for the purpose of complying with the conditions of any accepted Agreement of Purchase and Sale.
h. The parties shall comply with all terms of the Agreement of Purchase and Sale, and specifically the terms relating to the fixtures and chattels to remain in the Bannerman property after its sale.
i. The net proceeds of sale shall be divided equally between the parties, subject to the following:
i. From the applicant's share of the proceeds of sale, the respondent shall receive the amount of $9,850.03, plus a per diem amount of $5.84 from July 1, 2025, to the date of closing of the sale of the Bannerman property; and,
ii. From the respondent's share (which shall include the amount in (i)), the applicant shall be paid any outstanding balance of the equity payment.
j. In the event that either party fails or refuses to sign any necessary documents pertaining to the listing, the acceptance of offers to purchase, or the closing of the real estate transaction for the Bannerman property within (24) hours of a request for their signature, then their consent shall be and is hereby dispensed with and the other party shall sign all other necessary documents to complete the sale of the Bannerman property without their signature.
k. The parties shall provide a copy of this endorsement or any issued order arising from it to the realtor and the lawyer.
l. If any issues arise regarding the sale transaction or the implementation of this order, the parties or the lawyer may seek an urgent case conference before me or any other available judge of the Ontario Superior Court of Justice by contacting the trial co-ordinator on notice to the other party and the lawyer. If a case conference is requested on notice, any undistributed net sale proceeds shall be held in trust pending the completion of the case conference.
Reasons
[83] On the date of separation, the parties jointly owned a property municipally located at 48 Bannerman Avenue in Timmins, Ontario ("the Bannerman property"). It was an income-earning rental property. The Bannerman property was listed for sale very briefly however, the listing was discontinued due to conflict between the parties.
[84] One of the barriers to a sale is the lack of trust between the parties. There is a perception by the respondent that some of the parties who have made offers in the past are not arms-length purchasers and that they are colluding with the applicant to purchase the Bannerman property for less than market value. There is no evidence to support this beyond his suspicions.
[85] The respondent has suggested in his submissions that the Bannerman property should be appraised before it is listed. In my view, this is an unnecessary expense. If the Bannerman property is being sold, its value will be whatever the market will bear, and an appraisal does not assist in determining what that value will be. Listing agents have expertise in determining the appropriate listing prices for properties, and any listing agent will be motivated to ensure that the Bannerman property is sold at the highest price that the market will bear, as their compensation is tied to the sale price.
[86] To be clear, however, this is not intended to act as a barrier to a purchaser obtaining an appraisal for any purpose.
[87] A framework will be ordered for the listing and sale of the Bannerman property. To ensure the successful completion of a sale transaction for the Bannerman property, a framework will also be ordered to resolve conflicts, with ultimate resort to the court if required.
Liability for Line of Credit Used to Purchase Bannerman Property
Not on Consent
[88] The following orders are made by the Court following the hearing:
a. The respondent shall receive a reimbursement from the applicant on account of his Scotiabank line of credit used to purchase the Bannerman property in the amount of $9,850.03, plus a per diem amount of $5.84 from July 1, 2025, to the date of closing of the sale of the Bannerman property. This sum shall be paid by the applicant to the respondent from her share of the proceeds of sale of the Bannerman property, subject to any payments owing by the respondent to the applicant for the equity payment.
Reasons
[89] The Bannerman property was purchased by the parties' using lines of credit; no mortgage funds were borrowed for the purchase. It was the parties' evidence that each had a $30,000 line of credit that they used to contribute to the purchase price.
[90] The respondent claims that his interest payments on his line of credit were serviced with rental income from the Bannerman property. It was his evidence that his line of credit fell into arrears following the parties' separation because the applicant collected the rents for the Bannerman property to his exclusion. He was eventually required to enter into a "bad debt" settlement with Scotiabank. He now seeks reimbursement for that payment from the net proceeds of sale of the Bannerman property.
[91] The applicant denies that the respondent's line of credit was paid using rental income. It is her evidence that each party was responsible for their own line of credit from their own income. She asserts that she paid her own line of credit, and that it would be inequitable to allow the respondent to have his line of credit paid from the Bannerman property's sale proceeds.
[92] The applicant's evidence is not supported by her income tax documents, which disclose that interest and bank charges were deducted from the rental income for the Bannerman property as follows:
| Taxation Year | Interest and Bank Charges Claimed |
|---|---|
| 2017 | 3,756.51 |
| 2018 | 3,758.56 |
| 2019 | 3,778.94 |
| 2020 | 0 |
| 2021 | 3,879.52 |
| 2022 | 3,287 |
| 2023 | 4,257.61 |
[93] The deduction of interest and bank charges against rental income for tax purposes is limited to expenses incurred for financing. As no mortgage was taken to purchase the Bannerman property, the only explanation for these claimed interest and bank charges is that line of credit interest and bank charges were being paid from the rental income of the Bannerman property, contrary to the evidence of the applicant.
[94] I find that the respondent should be entitled to some payment toward his line of credit debt. I accept on the evidence that line of credit interest was serviced from the Bannerman property rental income prior to the parties' separation. The respondent's line of credit interest should have continued to be serviced from the Bannerman property's rents after June 28, 2019.
[95] The only documentary evidence before me regarding financing interest payments for the Bannerman property made after the date of separation is that contained in the applicant's income tax returns. The respondent has filed no supporting documents particularizing his "bad debt" settlement with Scotiabank.
[96] I am not prepared to order that the entire amount of the "bad debt" settlement be paid to the respondent from the proceeds of sale of the Bannerman property. The respondent had an obligation to mitigate his damages by making his interest payments to ensure that his line of credit remained in good standing; he cannot visit this failure to mitigate on the applicant.
[97] In my view, the most appropriate remedy is to order that the respondent receive a payment from the applicant's proceeds of sale of the Bannerman property representing one-half of the interest and bank charges claimed by her against the Bannerman property rental income from the date of separation. This shall be calculated as follows:
| Dates | Total interest & bank charges claimed | Owing to respondent |
|---|---|---|
| July 1, 2019 to December 31, 2019 | ½ of 3,778.94 (½ year) = 1,889.47 | ½ of 1,889.47 = 944.74 |
| January 1, 2020 to December 31, 2020 | 0 | 0 |
| January 1, 2021 to December 31, 2021 | 3,879.52 | ½ of 3,879.52 = 1,939.76 |
| January 1, 2022 to December 31, 2022 | 3,287 | ½ of 3,287 = 1,643.50 |
| January 1, 2023 to December 31, 2023 | 4,257.61 | ½ of 4,257.61 = 2,128.81 |
| January 1, 2024 to December 31, 2024 | 4,257.61 (imputed from 2023) | ½ of 4,257.61 = 2,128.81 |
| January 1, 2025 to June 30, 2025 | ½ of 4,257.61 (½ year) (imputed from 2023) = 2,128.81 | ½ of 2,128.81 = 1,064.41 |
| July 1, 2025 to ongoing | 4,257.61 / 365 = $11.67 per diem interest | ½ of per diem of $11.67 = $5.84 |
| TOTAL | $9,850.03, plus per diem of $5.84 per day from July 1, 2025 to date of closing |
Distribution of the Proceeds of Sale from 35 Laurier
Not on Consent
[98] The following orders are made by the court following the hearing:
a. The net proceeds from the sale of the property located at 35 Laurier Avenue, Timmins, Ontario ("the Laurier property") shall continue to be held in trust pending the determination of the equity payment.
b. For the purpose of distributing the net sale proceeds of the Laurier property, they shall be divided equally between the parties, subject to the following:
i. Any costs ordered against the respondent to be paid from the net proceeds from the sale of the Laurier property shall be paid from his one-half share of the proceeds, and he shall receive the remaining amount of his one-half share after deducting those costs;
ii. Any remaining amount of the respondent's one-half share of the net proceeds shall be paid to the applicant to satisfy any outstanding balance of the equity payment;
iii. Any remaining amount of the respondent's one-half share after satisfying (i) and (ii) shall be paid to the respondent.
Reasons
[99] Several costs orders have been issued against the respondent, with a direction that the costs be paid from the proceeds of the sale of the parties' jointly owned property located at 35 Laurier Avenue in Timmins, Ontario.
[100] The respondent submits that the remaining funds held in trust should be divided equally between himself and the applicant. The applicant submits that this would undermine the intention of the costs orders; the orders were not intended to result in the applicant paying costs to herself from her share of the net proceeds of sale.
[101] I agree with the applicant that the costs awards should be payable from the respondent's one-half share of the proceeds and not from any part of her one-half share, and an order will be made accordingly. The distribution order will also contemplate that the respondent's funds be applied to any balance owing for the equity payment owing by the respondent to the applicant.
Other Property Claims
Not on Consent
[102] The following orders are made by the court following the hearing:
a. All other claims by either party for any interest in the property of the other arising from the parties' relationship and separation shall be and are hereby dismissed.
Reasons
[103] While neither party claimed an interest in any other property of the other either in the application or the answer, for the sake of being thorough I find it necessary to confirm that this decision represents a final decision with respect to all property claims between the parties arising from their relationship. Specifically:
a. In his evidence and submissions, the respondent alluded to an equitable interest in the applicant's property located at 289 Maple Street North in Timmins, Ontario. That is not a property that the parties ever occupied together, and I am not satisfied that the repairs, if any, that the respondent undertook at the property entitle him to an equitable interest. This is not an order that would have been granted had it been requested in the respondent's answer.
b. In his evidence and submissions, the respondent alluded to an interest in personal property either owned by or in the possession of the applicant (for example, a trailer and an ATV). He also alluded to the fact that some of her assets were registered to corporations with the intention of preventing him from asserting an interest in them. At the same time, however, the respondent's answer stated at paragraph (39) under "Important Facts Supporting my Claim(s)" that "no further property relief is appropriate as the parties have already divided their property to their mutual satisfaction". There is no evidence before me that would support any orders for the disposition of personal property in favour of either the applicant or the respondent, and none shall be made.
Costs
Not on Consent
[104] The following orders are made by the court following the hearing:
a. Each party shall bear their own costs of this Binding Judicial Dispute Resolution hearing, and in every other step of this proceeding to date which has not already been the subject of a costs order.
b. Nothing in this order precludes either party from seeking costs with respect to any step that they are required to take to enforce this order, save and except for the cost of any steps by the applicant to register a charge with respect to her interest in the Montgomery property.
Reasons
[105] In my view, the results of this hearing for the parties have been mixed. Both parties appeared before the court with strengths and weaknesses in their arguments, and this is reflected in the decision which has been rendered. It is appropriate that the parties bear their own costs.
[106] In the event that either party fails to co-operate in the implementation of this order, they can expect that costs are likely to follow any required step to secure their co-operation.
Implementation
On Consent
[107] The following orders are made on consent:
a. Should either party identify any outstanding issues in the proceeding not addressed in this decision, they may schedule a case conference before me by contacting the trial co-ordinator within (30) days of the date of this order.
b. Should either party require the direction of the court with respect to the implementation of any aspect of this order which does not already provide a mechanism by which they can seek such directions, they may schedule a case conference before me by contacting the trial co-ordinator.
Disposition
[108] A complete list of the orders made in this Binding Judicial Dispute Resolution is attached as Schedule A.
The Honourable Madam Justice K.E. Cullin
Released: August 19, 2025