Court File and Parties

Court File No.: FC-22-679 Date: 2025-09-22 Ontario Superior Court of Justice

Between: Jason Byrne, Applicant – and – Michelle Milner, Respondent

Counsel: Colin Steffler, Counsel for the Applicant Self-represented (Respondent)

Heard: June 2-5, 2025

Reasons for Decision

R.S. Jain J.

Introduction

[1] This four-day trial was heard during the spring 2025 trial sittings on the following issues:

a. the Applicant's unjust enrichment claim relating to a property owned solely by the Respondent;

b. the Respondent's claim relating to funds deposited to the Applicant's Tax-Free Savings Account ("TFSA"); and

c. the Respondent's tort claim against the Applicant.

[2] The parties met in or around the summer of 2006. The Applicant was born in 1976 and the Respondent in 1965. The parties do not agree on the dates of cohabitation or separation. The parties never married. They have one child together, namely, CJ, who is 15 years old.

[3] As a result of partial final minutes of settlement, the parties resolved all the parenting issues, as well as the child support and spousal support issues in the Final Consent Order of Justice Bruhn dated August 9, 2024.

[4] Both parties have shared decision-making responsibility for CJ. Regarding major decisions, the person with whom CJ primarily resides with may make the final decision when the parties are unable to agree. The parties must consider CJ's views and preferences and commit to reasonable consultation with each other and relevant professionals. CJ resides primarily with the Respondent and has a regular schedule of parenting time and holiday time with the Applicant. The Applicant pays the Respondent child support in the amount of $835.00 per month based on his income of $90,123.00. Neither party is owed spousal support from the other.

[5] When the parties met, the Respondent was already the owner of the home municipally located at 1369 St. Vincent Street in Midhurst, Ontario ("the Midhurst property"). The Respondent also owned a rental property in London, England ("the rental property"). At the time of the trial, the Respondent continues to solely own both the Midhurst property and the rental property. The Applicant asserts that the Respondent has been unjustly enriched during the relationship and claims an interest in the Midhurst property for his contributions, improvements, and renovations. The Respondent denies the Applicant's claims and seeks an order dismissing the Applicant's unjust enrichment claim.

[6] Prior to the parties' separation, the Respondent deposited funds into the Applicant's TFSA. The Respondent invested the funds. Unfortunately, the investment went down in value. The Respondent blames the Applicant for the losses. She asserts that the Applicant reneged on their agreement regarding the deposits she made to his TFSA and the management of the investment. The Applicant reimbursed the Respondent the remaining funds in the TFSA, less his own deposits. The Respondent requests the court to order the Applicant to reimburse her an additional $63,000 plus 8% interest and penalty. The Applicant denies that he owes the Respondent any further reimbursement, interest or penalty. He seeks an order dismissing the Respondent's claim.

[7] On April 4, 2022, the parties engaged in an argument that escalated and required police involvement. The Respondent was charged with assault, and she was removed from the Midhurst property. The Respondent asserts that she suffered emotional and physical harm as a result of the Applicant engaging in family violence. She has brought a tort claim against the Applicant. The Applicant denies the Respondent's tort claims and seeks an order dismissing the Respondent's claim.

[8] It is also important to note that this trial was not reached during two prior trial sittings, namely, the spring and fall 2024 sittings. The approximately one-year delay in bringing this matter to trial contributed to its conflicted nature. In addition, the Respondent was self-represented. Due to the complicated nature of this trial, and to avoid the risk and expense of a trial, the parties were encouraged to participate in settlement discussions. The Respondent was strongly encouraged by the bench to get legal advice. It is unknown to the court whether this was done.

[9] As will be seen in this decision, during the trial the Respondent and the court were presented with significant evidence in support of the Applicant's unjust enrichment claim that directly contradicted the Respondent's position. At the end of the trial, there were 74 Exhibits admitted and entered into the record. While under cross-examination, the Respondent admitted that some statements in her affidavits were not true. Despite this, the Respondent remained steadfast in her position. This caused the court to question the Respondent's credibility and reasonableness.

[10] Both parties and counsel for the Applicant, Mr. Steffler, behaved civilly and were well organized. Counsel is commended for his effectiveness, and professionalism in his presentation during the trial.

Issues

[11] The questions the court needs to answer are as follows:

1. Should the court grant the Applicant's unjust enrichment claim related to the Midhurst property that is solely owned by the Respondent? If so, what is the value of the Applicant's interest?

2. Should the court grant the Respondent's claim for reimbursement relating to the Applicant's TFSA?

3. Should the court make a finding in favour of the Respondent for her tort claim against the Applicant?

Decision

[12] The court shall partially grant the Applicant's unjust enrichment claim to the Midhurst property. The Respondent shall pay to the Applicant the sum of $313,500.00 to account for her unjust enrichment as a result of the parties' relationship and its breakdown. The court shall partially grant the Respondent's claim with respect to the Applicant's TFSA. There shall be a reimbursement paid by the Applicant to the Respondent in the amount of $16,231.14 for the funds she deposited in his TFSA. The court is not satisfied with the Respondent's evidence regarding her tort claim against the Applicant. The Respondent's tort claim shall be dismissed.

Facts and Analysis

Preliminary Issue: Dates of Cohabitation and Separation

[13] As a preliminary issue, there is a factual disagreement between the parties as to the date of cohabitation and date of separation. This issue is relevant both to the Applicant's unjust enrichment claim and the Respondent's claim for reimbursement of funds deposited to the Applicant's TFSA. It is further relevant to both parties' overall credibility. As such, it must be addressed first.

[14] Both parties signed a Statement of Agreed Facts dated May 1, 2024. They agreed that the statements made on the form were true and that the form may be filed with the court and may be read to the court as evidence. The Statement of Agreed Facts confirmed the following:

1. During their relationship, the parties resided together in three properties: (1) the Midhurst property, owned solely by the Respondent, (2) the home of the Respondent's late sister in Calgary ("the Estate Home"), and (3) the townhouse located at 703-5340 17th Avenue Southwest in Calgary, to which the Applicant held title ("the Townhouse").

2. The parties commenced an intimate relationship around October 2006, and the Applicant began to stay in the Midhurst property around November 2006.

3. In January 2007, the Respondent travelled to Calgary, Alberta to care for her terminally ill sister and her niece. Sadly, the Respondent's sister died in February 2007.

4. In or around February 2007, the Respondent invited the Applicant to come to Calgary and stay with her in the Estate Home.

5. On or about March 2007, the Respondent returned to the Midhurst property temporarily.

6. The parties drove to Calgary together in June 2007 and began residing in the Estate Home in Calgary.

7. In early 2008, the Applicant purchased the Townhouse, which was located close to the Estate Home.

8. The Respondent gave the Applicant $40,000 to use for the purchase of the Townhouse. She signed documentation at the time of the purchase stating that the $40,000 she contributed was a gift to the Applicant.

9. The Applicant paid approximately $17,500 for the down payment, legal fees, and land transfer tax for the purchase of the Townhouse. Title was registered in the Applicant's name alone.

10. The Respondent helped arrange tenants for the Townhouse.

11. While the Applicant and Respondent resided together in the Townhouse, the Respondent did not contribute to the household expenses.

12. The Respondent became pregnant in 2009, and the parties' son CJ was born in early 2010 in Alberta.

13. After CJ was born, the Respondent informed the Applicant that she intended to move back to Ontario to live at the Midhurst property with CJ, with or without the Applicant.

14. The Applicant did not want to move back to Ontario, however, he ultimately agreed to return to Ontario with the Respondent and CJ in 2010.

15. The Townhouse was sold in 2010. The net proceeds from the sale of the Townhouse amounted to approximately $40,000.00. The Applicant gave the Respondent $25,000 from the sale proceeds of the Townhouse.

16. The Applicant wanted to sell the Midhurst property so the parties could purchase a home elsewhere in Ontario together. The Midhurst property was for sale in early 2011.

17. In early 2011, the Applicant secured employment in Fort McMurray, Alberta.

18. The Applicant would fly to Alberta for work and return home to Midhurst during his time off.

19. The Respondent lost his job in Fort McMurray in 2018 due to illness.

20. There was a physical altercation between the parties on April 4, 2022. Police were called and the Respondent was arrested and charged with assault.

21. While the assault charge was pending, the Respondent was prohibited from attending at the Midhurst property and from having contact with the Applicant.

22. The assault charge was later withdrawn by the Crown Attorney on January 12, 2023.

23. Between April 4, 2022 and January 12, 2023, CJ resided with the Applicant in the Midhurst property.

24. The Respondent returned to the Midhurst property after her assault charge was withdrawn.

[15] The Applicant's position is that the parties began cohabiting in November 2006, when he began staying over regularly at the Respondent's home and shortly after their relationship became intimate. The Applicant's position is that the parties separated on April 4, 2022, which would mean they cohabited for approximately 16 years.

[16] In contrast, the Respondent asserts that the parties were not cohabiting until June 2010, when they moved back to Ontario from Alberta with their son CJ. The Respondent says that the Applicant continued to pay rent to his sister until January 2007, which is undisputed by the Applicant's evidence. The Respondent further asserts that the parties were not cohabiting consistently for many years due to the Applicant's employment in Alberta from 2011 to 2018. The Respondent's position is that that the parties briefly cohabited in Ontario from 2010, until the Respondent began his employment in Alberta in 2011, and then again from 2018 until mid 2020, when she says she told him the relationship was over. The Respondent's position is that the parties cohabited briefly, for approximately 2-3 years in total.

[17] In my view, the Respondent's position relies on a narrow interpretation of "cohabitation", which is not reflective of the law on this subject. There are several descriptive categories which may be "involved, to varying degrees and combinations, in the complex group of human inter-relationships broadly described" by the term "cohabitation." These categories include shelter; sexual and personal behaviour; services; social; societal; support (economic); and children. The court's decision in Climans v. Latner further illustrates that cohabitation does not depend solely on parties being continuously present within the same residence. In that case, Justice Shore determined that the parties were "spouses" as defined in s. 29 of the Family Law Act, R.S.O. 1990, c. F.3, and had "cohabited… continuously" for a period exceeding 3 years, notwithstanding that the parties had maintained separate residences throughout their relationship.

[18] The Applicant provided a trial affidavit, which he confirmed that he signed and adopted the contents of as his evidence in chief. The Applicant confirmed that he stayed at the Midhurst property in November and December 2006, but he continued to pay rent to his sister. He says that he did this because both the Respondent and him "thought it was a good idea" to keep a room at his sister's, "in case the relationship took a turn and ended suddenly."

[19] The move to Alberta came about due to the Respondent travelling to Calgary in January 2007 to help her terminally ill sister. The Respondent asked him to join her in Alberta for approximately 3 years as she was going to remain there to deal with her sister's estate and take care of her niece. As time went on, he thought they were going to continue residing together in Alberta indefinitely.

[20] The Applicant said that when the Respondent originally left to go to Alberta in 2007, he did not take this as an indication of the end of the relationship. He said, "we were boyfriend and girlfriend" and she "invited him to Alberta to continue their relationship." As time went on, he said that although they weren't married, they discussed marriage, and he commonly referred to her as his wife. He shared that he proposed marriage when the Respondent was pregnant, and she agreed. No rings were exchanged. Then, she changed her mind about marriage when they returned to Ontario.

[21] Despite the changes in their residences, the parties shared a bed or bedroom together in each of the three residences they lived in commencing in or around November 2006 until at least 2020. Their sexual relationship may have ended in 2020, but they continued residing together in the Midhurst property, with separate bedrooms. The Applicant says they agreed to sleep in separate bedrooms due to temperature preferences, not because the relationship had terminated. They continued in their personal relationship, raised their son together, and shared meals together. To outsiders and to long time friends (including the Respondent's witness and long-time friend, Elizabeth Bavelar), the parties had a "passionate" relationship, and Ms. Bavelar confirmed that she regarded the parties as spouses. The Respondent did not deny the Applicant's assertion that this was an exclusive relationship. The parties' communications show expressions of affection and love, with the parties often signing off on emails with "Love", "Love you", "Much love", or "Lots of love."

[22] I find that the parties shared shelter from at least 2007, along with a sexual and personal relationship. They provided services for each other and presented themselves as a couple in society and to their friends and acquaintances.

[23] Although the parties do not agree on their level of financial integration, they planned and executed renovations in both the Midhurst property and the Townhouse, working together at times and contributing significant amounts of money and work for same. They appear to agree that the Applicant paid most of the household expenses while the parties resided in the Townhouse. Further, the Applicant provided significant evidence that showed that after the parties returned to the Midhurst Property, he paid for most of the groceries and contributed to other non-discretionary expenses directly (by paying bills from his own accounts) and indirectly (by maintaining a joint VISA and providing funds to the Respondent so that she could pay expenses). As will be set out below in the analysis about the unjust enrichment claim, this evidence directly contradicted the Respondent's assertions that the Applicant contributed little to nothing to the Midhurst property or the support for their family.

[24] In her testimony, the Respondent confirmed that on discovering she had become pregnant, her decision to continue her pregnancy with CJ represented a significant change from her previous pregnancies, which had been terminated. In my view, her decision to have CJ showed a desire and intention to establish a family with the Applicant, which in turn indicates that the parties were not just "lovers", but were in a committed, long-term relationship.

[25] I find the parties provided economic support for one another and for their family together. I further find that the parties' decision to live together in the Estate house, have CJ, live together in the Townhouse, and then sell the Townhouse to return to Ontario together is significant evidence they were cohabiting as a family in the Midhurst property, despite the Applicant working in Alberta between 2011 and 2018. Although there were periods of time when the parties were geographically separated, the parties maintained their committed relationship from at least January 2007.

[26] In my view, considering the Molodowich factors as a whole, the Respondent's position that the parties did not begin cohabiting until their return to Ontario in June 2010, or until 2018 when the Applicant ceased working in Alberta, is simply not supported by the evidence.

[27] Regarding the date of separation, the Applicant's position is that the parties separated on a final basis, with no reasonable prospect of reconciliation, as a result of the altercation between them on April 4, 2022. The Respondent maintains that she ended the parties' relationship at some point in 2020. As with the date of cohabitation, the Respondent's position on the date of separation focuses almost exclusively on a single factor, namely, the end of the parties' sexual relationship.

[28] As with the indicia of cohabitation, there are several indicia of separation. These were set out by Justice McDermot in O'Brien v. O'Brien, and include:

1. Physical separation, often indicated by spouses occupying separate bedrooms;

2. A withdrawal of one or both spouses from matrimonial obligations with a view to destroying the matrimonial consortium;

3. The absence of sexual relations (which is not conclusive, but a factor to be considered);

4. The discussion of family problems and communication between the parties;

5. The presence or absence of joint social activities;

6. The meal patterns; and

7. The performance of household tasks.

[29] I found that the Respondent's evidence on this issue was contradictory and inconsistent. For example, in her Financial Statement Form 13.1 dated April 5, 2024, she swore the "valuation date" was "July 2022" and the date of commencement of cohabitation was June 14, 2010. At Tab 1 of the Trial Record, and at page 3 of the Application (Family History), the Applicant indicated the dates of cohabitation were November 2006 until April 4, 2022. The Respondent said she has always disagreed with these dates; however, this is contradicted by her own Answer found at Tab 2 of Trial Record, where at page 1 (Question 5 – Family History as set out in Application), the Respondent indicated it "is correct".

[30] It appears to be common ground that the parties' sexual relationship ended in 2020. Aside from this point, there was little change in other aspects of the relationship. There seems to have been little change in the parties' social lives, as each of them has indicated they did not have extensive friend groups, and neither described frequent interactions or close relationships with other family members. In or around May 2021, the Respondent began using the Applicant's TFSA to generate tax-sheltered income. She deposited $88,400 in the Applicant's TFSA. In my view, this action alone would require a great deal of trust, and it not the typical behaviour of persons who are separated. Both parties indicated that meal patterns and other household patterns remained largely unchanged until the Respondent was removed from the Midhurst property due to the criminal charges. Although the parties' relationship may have been deteriorating in 2020 and 2021, in my view, it was not until the incident on April 4, 2022, that the relationship was irreparably damaged with no chance of reconciliation.

[31] Accordingly, for all the reasons set out above, I find that the parties began cohabiting in January 2007 and that April 4, 2022, is the parties' date of separation.

The Unjust Enrichment Claim

[32] To prove the Applicant's claim for unjust enrichment, he must show: (1) that the Respondent has been enriched; (2) that he suffered a corresponding deprivation; and (3) that there is no "juristic reason" for the enrichment.

[33] A claim for a "joint family venture," like a constructive trust, is a remedy for the claim of unjust enrichment. Both unjust enrichment and joint family venture are pled at para. 13 of the Application, and paras. 24 and 25 of the Amended Application. The facts supporting the Applicant's claims were laid out.

[34] Because the parties were never married, the Midhurst property is not a matrimonial home. The unjust enrichment claim cannot be addressed through the equalization, post-separation adjustments or unequal division of net family property. As such, if the court finds in favour of the Applicant's claim, a monetary or proprietary award may be necessary or justified to address the claim.

[35] The Applicant requests that the court declare the Applicant holds a beneficial interest in the Midhurst property. The Applicant's claim is by virtue of a resulting trust, constructive trust, and/or the parties having entered into a joint family venture. The Applicant is seeking an order requiring the Respondent to pay monetary compensation to the Applicant in the amount of $400,000.00, or alternatively, an amount to be determined by the court. The Applicant asserts that he made direct and indirect contributions to the maintenance and improvement of the Midhurst property. He asserts he is entitled to compensation to account for the Respondent's unjust enrichment as a result of the parties' relationship and its breakdown and through the parties' joint family venture.

[36] There are two components to the Applicant's unjust enrichment claim. The first component focuses on the value he added to the Midhurst property. The second component focuses on his assertion that the parties were involved in a joint family venture, and he received an unequal benefit of same. He asserts that he provided his time and energy to improve and maintain the Midhurst property, and she was enriched for those contributions; and further, on the parties' separation, she maintained a disparate share.

[37] The Applicant's evidence is that the Respondent was enriched because even though she owned the Midhurst property prior to their relationship, he contributed to, and she benefited from, the increase in the value of the Midhurst property with his work, renovations, and financial contributions to the household expenses. In addition, he says he worked hard for many years and financially supported the Respondent to maintain the family and the Midhurst property.

[38] The Respondent's position is that the Applicant is not entitled to any damages for an unjust enrichment claim to the property owned by the Respondent prior to the commencement of the relationship. She said that she owned two properties prior to the parties' cohabitation and that the Applicant has not ever had any financial interest in those properties. She made broad, unspecific allegations that she was emotionally and financially abused by the Applicant. Throughout the trial, the Respondent complained about financial unfairness during the relationship. She alleged she was financially abused because she allegedly paid for everything including the Midhurst property, and the Applicant's Townhouse. She was referring to her "gift" of $40,000 to the Applicant so he could purchase the Townhouse in Calgary, and how she gave him all the money for his TFSA.

[39] The Respondent flatly, unequivocally, and repeatedly stated that the Applicant never contributed to the "non-discretionary" expenses for the family and the Midhurst property. She stated repeatedly in her oral evidence, and in her affidavits that "at no point from our meeting in 2006 until January 2023 did Mr. Byrne ever pay rent, mortgage, property tax, home insurance, gas, electricity or water on my Midhurst home." The Respondent was proud of her independence from the Applicant and minimized any or all contributions made by the Applicant to renovate, improve or maintain the Midhurst property or their family and lifestyle. She stated that the Applicant "has put little effort or money into the home and when he has it is less than 5% of any expenditure."

[40] The Respondent's evidence was that her income from the rental property, her financial thrift and her investment savvy, supported her to stay home and care for their child. She said this permitted the Applicant to work and spend his money "as he wished." She said they did not intermingle finances, in the traditional sense (as they didn't have joint bank accounts), however, she admits that her purchases, both personal and for the family, went "onto his VISA" or their joint VISA because "he could trust me not to overspend on it."

[41] Throughout her affidavits and in her oral evidence, the Respondent described the Applicant as "suicidal," "autistic," "self-entitled," "liar," "lacking empathy and compassion," and a "narcissist" with "Machiavellian tendencies." She alleged that he abused her, and he is "gaslighting" her. She suspects that the Applicant has narcissistic personality disorder.

[42] Aside from the way the Respondent minimized the Applicant's contributions to the family and to the Midhurst property, in her evidence (both written and oral), she took every opportunity to express her perceived superiority over the Respondent. She proudly referred to her multiple degrees (MBA, MSc, HNC, 3 cardiac credentials), her independence, and ownership of property prior to their relationship. She said she perceives herself as "a moral compass" to their son.

[43] The Respondent seeks an order dismissing the Applicant's claim of unjust enrichment and a finding that the Applicant is not entitled to damages or monetary compensation from a resulting trust, constructive trust and/or joint family venture in relation to the Midhurst property. The Respondent says that there was no financial integration, and that the Applicant rarely paid for renovations or repairs on the Midhurst property. According to her, the Applicant "barely contributed" to the Midhurst property in the 18 years she has known him. She strongly asserted that the Applicant never contributed to the "non-discretionary costs" for the Midhurst property. She takes the position that it is the Applicant who was enriched because he "paid nothing" for years "except on very rare and unique ad hoc occasions." In all her affidavits and oral evidence, the Respondent repeatedly claimed that she has never been dependant on the Applicant with respect to finances. She never asked him for "a cent that did not involve an activity for our son which I also paid for."

[44] The Respondent's evidence was that she alone paid for repairs and renovations to the Midhurst property. She said that the Applicant contributed nothing to her household. She estimated that the Applicant "worked at most 30 hours" on the Midhurst property renovations and that he spent "maybe $20,000." She asserted that none of his contributions come close to the non-payment of rent or other non-discretionary expenses that she paid. She said that she did all kinds of renovations and bought furniture herself, while he had "free food, cooking and cleaning, and childcare." She stated that all contributions he made to her property are viewed by her as "gifts." She said that within one year of having their son, the Applicant commenced work in Fort McMurray, Alberta. For that approximately 7-year period, the Applicant would fly to Alberta for work and return home to Midhurst during his time off. She asserted that he has suffered no loss from living in her home for 13 years and not paying any rent or non-discretionary expenses. She said that "he spends his money on whatever he wants. He has always wanted to take her house from her." She speculated that if he is successful in this trial and she is ordered to compensate him, she will necessarily have to sell her home that is the only home their son lived in.

[45] The Statement of Agreed Facts confirmed the following undisputed facts:

1. Since 2012, the Respondent's primary source of income has been her rental property in London, England.

2. The parties' incomes for 2012 to 2023, as listed on their Notices of Assessment, were as follows:

Year	Applicant's Income	Respondent's Income
2012	$132,507	$20,699
2013	$130,720	$21,697
2014	$123,571	$14,184
2015	$83,783	$26,439
2016	$75,286	(left blank)
2017	$111,820	$33,123
2018	$101,307	$33,584
2019	$57,907	$31,492
2020	$68,493	$1,911
2021	$86,743	$81,942
2022	$61,131	$33,731
2023	$93,978	$38,080

3. The Applicant provided labour and purchased materials for renovations. He was not paid for his labour or reimbursed for purchases.

4. The renovations to the Midhurst property improved the appearance and increased the value of the property.

5. The Applicant's provision of labour and purchase of materials contributed to a lasting increase in the value of the Midhurst Property.

[46] The Applicant advised the court that he has been a ticketed "red seal" carpenter since 2006, and he holds a licence from Ontario that is registered throughout Canada. This was achieved after a four-year apprenticeship of at least 7200 hours, and three terms of schooling of 320 hours each term. He described how in addition to working full-time and supporting the Respondent, he used his knowledge, skilled labour, and income to complete significant renovations on the Midhurst property during their cohabitation.

[47] The details of the Applicant's contributions were clearly set out in his affidavit dated April 10, 2025 from paras. 56 to 76, and in his oral evidence. He said that after all of the renovations, only three bedrooms were left unchanged or untouched from the time of their cohabitation to separation. He said, "everything else was totally remodelled, and the changes that were done are not changes that could be easily done by yourself." For example, "putting drywall on a ceiling by yourself is rather difficult." He attached numerous pictures, emails, and invoices for the work in Exhibits B through to Exhibit U.

[48] In his affidavit sworn April 10, 2025, under the heading "Renovations to Midhurst Property" and in his oral evidence, the Applicant described the following:

1. The Applicant said that the parties "shared in the labour" for all the renovations.

2. The driveway was widened, and the front foyer entrance was redone in or about 2013 or 2014. He paid the deposit and then the deposit was lost because the Respondent cancelled the contract. Exhibit B shows the "before," and Exhibit F shows the "after" where they installed wooden borders and planter boxes. He estimates that he spent about 80 hours to work on the retaining walls. At the time he was working on the driveway, he said he was also working in Alberta or Saskatchewan earning about $56-57 per hour.

3. Regarding the upstairs bathroom renovation in 2012, the Applicant said he worked on it for an estimated 120 hours. He described how they took it down to the studs and they moved a wall. He had to change duct work. He installed a wall to put in an adjacent stand-up shower. He moved the toilet and closet. All plumbing was redone and changed location. All electric lights were removed and changed. Ceiling fan and insulations, vapour barrier, sealants, drywall, and tiling were all redone. He installed a new medicine cabinet. He described how the whole floor was taken up and a new subfloor was put in. He said he also took all the demolition to the dump. Details of work is found in a picture shown at Exhibit H.

4. The Applicant said that while he was doing these renovations, he was also working with Atco Structures and Logistics at the time.

5. Regarding the family room renovation between 2012-2014 the Applicant estimates he did about 56 hours of work. He provided significant and minute details about the work that was done. Again, he said everything was "taken down to the studs including the ceiling. New concrete poured for the woodstove." He described the new doors and trim, new electrical, and acoustic sealant. He took the carpet to the dump. He acknowledged the work that the Respondent did, including helping with drywall, mudding, and painting. He said that "We would install insulation and vapour barrier together and we put on the drywall together and she would plaster, tape and paint. She painted the trim, and he would install. He cut the tiles most of the times especially if there were custom angles. She would fill in the pin holes from any installations on the wood."

6. At para. 65 of the Applicant's affidavit, he described the kitchen renovation. He estimated he spent approximately 30 hours to repair a wall – because there were ants in the kitchen and exterior wall. He acknowledged that the Respondent began taking drywall up and sprayed for the ants. Then, he disconnected the sink and counter to remove the drywall. He said he had to purchase sills and installed posts to support the structure of the wall. He installed everything. He was working at the time for Fort McMurray for a scaffolding company. The company was paying him approximately $35-48 per hour.

7. At para. 67 of the Applicant's affidavit, he described changing the flooring in 2015. He acknowledged that the Respondent purchased tiles for the kitchen floor. The tiles were laid. The tiling took 2 days, but the tiles were found to be not level because they make the floor in the kitchen noticeably higher than the threshold in the dining room. The Respondent then tore up the floor. The levels of the floor had to be fixed. He described how they had to use hardwood instead to correct the floor levels. He said he was working at Safeway in Christmas of 2015 and was being paid approximately $47 per hour.

8. The Applicant described how he replaced the kitchen cabinets sometime in 2020. He described in detail the installation and reinstallation of sinks and plumbing. He said the Respondent helped move the cabinets into place and he installed them. He built a template to be able to lift the uppers into place. He said they worked together on this project.

9. At para. 69 of the Applicant's affidavit, he described the renovations to the upper foyer and stairs in June 2015. The old stairs and railings were taken down. He said, "I had to build a scaffold and platform to be able to open the door and go in and out the front door. I had to take down all the drywall on walls and ceiling. Everything was vapour barriered and new drywall. I created an opening to allow lighting through to the living room." He said the Respondent helped with plaster and painting and they purchased blocks to help with the crown moulding. He took out the old stairs and built brand new stairs. He installed oak plywood for the risers. He described in detail the railing being put in. The trim and blocks were described in detail. Exhibit O shows pictures. He said he was working with Safeway at this time, earning approximately $47 per hour.

10. At para. 71 of the Applicant's affidavit, he described the renovations to the lower foyer. He said the parties built two large landings on an angle with hardwood placed on top. Exhibit P shows pictures. The Applicant described the trim and nosing and how he replaced the doors and retrimmed them. He said this was done at the same time as the upper foyer and stairs. So, he was also still working at Safeway at the time. He acknowledged that the Respondent sanded, stained, and painted the foyer.

11. At paras. 72-73 of the Applicant's affidavit, he discussed the renovations that were completed in the living room in or around 2015. Exhibit Q shows pictures. He described how he "created the opening into the living room." He "changed all the crown moldings and strapped the whole ceiling and shimmed it to make it a whole plane." He installed a shelf with oak and the interstitial pieces of crown molding. He added the wall sconces. He moved the doorway to the kitchen. He replaced flooring with the Respondent. He described how the Respondent would lay out the boards and he would attach them and sanded it. She would stain it and put the varnish on top. He said he was also working at Safeway or Atco, earning approx. $47-50 per hour.

12. At para. 74 of the Applicant's affidavit, he described how the fuse box in the Midhurst property was outdated, and how he paid to have it "replaced with a proper, upgraded electrical panel." The cost of which was approximately $2,000 plus tax.

13. At para. 75 of the Applicant's affidavit, he described how he purchased some new windows. At Exhibit "T" he attached a copy of the service contract and a copy of his Mastercard statement showing the payment to Northern Comfort Windows and Doors Ltd.

14. At para. 76 of the Applicant's affidavit, he described how he assembled and installed a wrought iron fence that the Respondent had acquired. He described how he measured, mortised, cut, and installed the posts and attached the iron segments. He attached pictures at Exhibit U.

[49] The Applicant and Respondent had significantly disparate incomes throughout their relationship. The Respondent has been unemployed since 2012. Despite this, the Respondent denied there were periods of time when the income from the rental property wasn't enough to cover her bills.

[50] The Applicant said that whenever the Respondent required funds, he would pay the expense or send whatever amount the Respondent requested. He said he paid property taxes at times and paid her income taxes on occasion. He said he regularly transferred her money, but he was not sure how much. He said it was approximately 10 times per year, but the bank records that predate the 7 years record-keeping are unavailable. He said that when CJ was in daycare, he paid for it. He also paid for all of CJ's extracurriculars over the years. Basically, he paid for "anything that was required." The expenses that were put on the credit card by the Respondent, the Applicant paid for it.

[51] In addition to the above evidence of the Applicant's improvements and renovations, through Mr. Steffler's cross-examination of the Respondent, he was able to show that the Respondent's assertions of complete financial independence, and her denials and minimization of the Applicant's financial contributions and support for the Midhurst property and the family, were simply untrue.

[52] During cross-examination, the Respondent repeated and confirmed the contents of her prior affidavits and her signatures on same. She confirmed that she had sworn them to be true and that she maintains they were true. However, when faced with the significant evidence of the Applicant's contributions, the Respondent suddenly acknowledged that her sworn statements were not true. She contradicted her own affidavits and prior statements and acknowledged that she did ask for contributions from the Applicant and that the Applicant paid "some bills, but not regular bills."

[53] Mr. Steffler confronted the Respondent with numerous email threads that show her requesting money from the Applicant or discussing payment on "their debts" and the mortgage on the Midhurst property. The Respondent continued to maintain that she had enough income from the rental property to pay for everything. Many times, during the cross-examination, she tried to twist the truth or minimize it. She never admitted that she was dependant on the Applicant's income to maintain the Midhurst property.

[54] Mr. Steffler asked the Respondent whether there any years when her income was significantly higher than in the two financial statements she had provided, other than in 2021. The Respondent said "no." She confirmed that her reported income has been on average between $20,000 to $34,000. She went on to confirm that somehow with that income, she was able to double up on mortgage payments, pay for renovations and save money. She confirmed that she "did all of this with no assistance from Mr. Byrne."

[55] Mr. Steffler pointed her to Exhibit 18, Respondent's Affidavit sworn January, 8, 2024, at para. 46 – where she said, "at no point from our meeting in 2006 until January 2023 did Mr. Byrne ever pay rent, mortgage, property tax, home insurance, gas, electricity or water on my Midhurst home." She confirmed that she said this, and that it is not true. She now confirms that he helped pay her property taxes, but she could not confirm the years. She says he did this "maybe 2-3 times in all the years." She admitted that he may have helped her with the property taxes in 2020 when her income from the rental property was reduced due to the COVID-19 Pandemic.

[56] The Respondent refused to admit that the Applicant had regularly paid the property taxes on the Midhurst property. This forced Mr. Steffler to have to go through numerous years of records to contradict the Applicant and show that the Applicant had regularly paid the property taxes at least from 2014. Surprisingly, even when faced with the evidence, the Respondent still did not budge in her narrative. Instead, she complained that she didn't know how the Applicant had accessed her private records that proved he paid the taxes for the Midhurst property.

[57] It was the same refusal to admit for the joint VISA and the Applicant's contributions to household expenses. The Respondent maintained that they did not have a joint VISA in 2011 and that "the Applicant worked in Fort McMurray from the age of our son being 1 year old to the approximate age of 9 years old away from the home more than 6 months per year and did not make financial contributions/place mother on joint credit card until October 2016 and not as he specified from 2011 in court documents. As such he has had free primary care to his son, free housekeeping etc." The Respondent swore this was and still is true. She maintained there was no financial integration until 2016, then she backpedaled and said, "sorry, minimal integration." Mr. Steffler took the Respondent to Exhibits 57 through to Exhibit 66 which all contradicted the Respondent's evidence and showed the Applicant paying for the Respondent's transactions on the joint credit card and sending her thousands of dollars. She still maintained that none of the payments were for household expenses.

[58] I found the Respondent's evidence simply impossible to believe. It was shocking how she ignored all the evidence. She was unmoved even though all her inaccuracies and contradictions were pointed out to her in her own testimony and cross-examination.

[59] The Applicant asserts that while the Respondent received the benefits of his contributions to the Midhurst property, he suffered a corresponding deprivation. He says that his hard work and contributions enabled the Respondent to maintain ownership of the Midhurst property and her rental property and investments so they could grow in value. The Respondent was unemployed from at least 2012, and her income from the rental property could not cover all the expenses, renovations, and improvements for the Midhurst property. The Applicant did not purchase his own home. He assumed the parties were in a joint family venture and that he was contributing and providing for their family for the benefit of all of them in the future. He asserted that his contributions helped result in their joint accumulation of wealth and the maintenance of the Midhurst property, and that on their separation, the Respondent kept a larger share of the assets.

[60] In my view, the four factors as set out by the Supreme Court in Kerr v. Baranow, with respect to establishing unjust enrichment and the remedies of a constructive trust and joint family venture, are established in the case at bar. Those factors are mutual effort, economic integration, actual intent, and priority of the family.

Mutual Effort & Economic Integration

[61] It is an undisputed fact that at the time the parties met, the Respondent was already the owner of the Midhurst property and the rental property in London, England. Despite the Respondent's prior ownership, and her repeated denials and refusals to acknowledge his contributions, the Applicant's evidence unequivocally showed there was mutual effort and economic integration.

[62] In my view, the Respondent's position in this matter was simply unreasonable. In addition to the Applicant's evidence with respect to the renovations and improvements the parties undertook in the Midhurst property, the Applicant provided significant evidence of his financial contributions and payments that directly contradicted the Respondent's version of the events. The Applicant had taken on a large share of the responsibility for the renovations to the Midhurst property, and in doing so, had saved the Respondent significant expenditures. The evidence showed that the parties were economically integrated, and were in a partnership for approximately 15 years, where they pooled and integrated their efforts and resources for their family's economic well-being.

[63] I find that both the Applicant and the Respondent made contributions over time that resulted in their accumulation of wealth, and that following the breakdown of their relationship, the Respondent has retained a disproportionate share of the assets which are the product of their joint efforts.

Actual Intent & Priority of the Family

[64] The parties cohabited for at least 15 years and had one child together. They moved from Ontario to Alberta and then back to Ontario again, residing together in three different residences. The Applicant asked the Respondent to marry him, and the Respondent said yes initially. The fact that she made a conscious decision against marriage is not sufficient reason to find that the parties did not intend to form and prioritize their family, nor can it "on its own be equated to a conscious decision to opt out of equitable remedies to which they might otherwise be entitled." When the Applicant became employed in Fort McMurray, Alberta, the Respondent would drive him to the airport and pick him up again when he returned home. Their communications and actions all showed their intention to support each other and their family unit.

[65] The Respondent called her friend Ms. Elizabeth Bavelar as a witness. She gave evidence regarding the parties' relationship and regarding the events after the April 4, 2022 incident. Ms. Bavelar said that she has known the Respondent for many years, and they met in school. She described the Respondent as "extremely smart. Socially awkward sometimes. She is very set in her ways but also been there for people when they need them. She is giving and challenging at the same time." She went on to say that "Ms. Milner makes a good argument. She doesn't admit easily when she is wrong."

[66] Ms. Bavelar said that she has known the parties as a couple for "15-18 years. I have lost track of time." She characterized their relationship as "passionate at first and rocky in the end. They were spouses and lived together and had a child." She noticed there were times she thought the relationship was in its ending, but not before the arrest.

[67] From the evidence of the Applicant, the Respondent, and the Respondent's own witness Ms. Bavelar, I find it was the clear intention of both parties to operate and present as a couple while residing common-law. They held themselves out as such to family and friends.

[68] I found the Applicant's evidence more compelling and credible than the Respondent's. The court was presented with significant evidence in support of the Applicant's unjust enrichment claim that directly contradicted the Respondent's position. The evidence showed how the Applicant and Respondent worked hard to support their family.

[69] At the end of the trial, there were 74 Exhibits admitted and entered into the record. While under cross-examination, the Respondent admitted that some statements in her affidavits were not true. This caused the court to seriously question the Respondent's credibility and give less weight to her evidence.

[70] For these reasons, I am granting the Applicant's unjust enrichment claim in the Midhurst property, as I find the parties engaged in a joint family venture.

Monetary Award

[71] As the court has found in favour of the Applicant's unjust enrichment claim in the Midhurst property owned by the Respondent prior to the marriage, a monetary or proprietary award will be necessary or justified to address the claim. The Applicant is seeking an order requiring the Respondent to pay monetary compensation to the Applicant in the amount of $400,000.00 (or an amount to be determined by the court). The Applicant is seeking a monetary award that would provide him with approximately 42%-50% of the increase in the value of the Midhurst property. The amount of the award would depend on the value of the Midhurst property. I find the Applicant has suffered damages as a result of unjust enrichment that can be addressed through a monetary award. I find that the Applicant has demonstrated a causal connection between his contributions and the Respondent's preservation, maintenance, and improvement of the Midhurst property.

[72] The court will order that the Respondent provide the Applicant with a monetary award proportionate to the unjust enrichment. As stated in Kerr v. Baranow, in joint family venture cases, where "the unjust enrichment is an unjust retention of a disproportionate amount of wealth by one party […] and there is a clear link between the claimant's contributions to the joint venture and the accumulation of wealth", the monetary award "should be assessed by determining the proportionate contribution of the claimant to the accumulation of wealth." In order to determine the value of the monetary award, I required evidence regarding the value of the Midhurst property at the time of cohabitation and at the time of separation. I also required evidence of both parties' net wealth at the commencement of cohabitation and at the date of separation.

[73] The Respondent purchased the Midhurst property in 2004 for $276,000. She put a $100,000 down payment on the purchase, and she took on a mortgage of $165,750. The value of the mortgage in or around June 2010 was $114,855.44. The Municipal Property Assessment Corporation ("MPAC") assessed the value of the Midhurst property. On January 1, 2012, it was $319,661 and on January 1, 2016, it was $392,000. When the parties listed the Midhurst property for sale in 2011, the asking price was $310,000.

[74] The parties' financial statements were somewhat helpful. In his Financial Statement Form 13.1 dated April 4, 2024, the Applicant listed the commencement of cohabitation as November 2006 and the date of separation as April 4, 2022. He listed his beneficial interest in the Midhurst property and estimated the Midhurst property's current value as "$900,000 to $1.3 million." He estimated there was approximately $160,000 to $180,000 in equity at the start of cohabitation.

[75] The Respondent's Financial Statement Form 13 dated August 4, 2022, shows that at that time, the Respondent valued the Midhurst property at $1,097,600.00 and her Rental property at $800,000. She listed the Midhurst property having one mortgage/line of credit debt in the amount of $190,000. On August 4, 2022, the Respondent swore that her net worth (total assets less total debts) was $1,965,900.00. She provided no information as to the value of the Midhurst property on the date of cohabitation.

[76] In her Financial Statement Form 13.1 dated April 5, 2024, the Respondent provided different values for her properties and investments. She valued the rental property at $450,000 on the "valuation date", and at $500,000 as of April 5, 2024. She stated that the Midhurst property was worth $300,000 on the "date of marriage", $1,097,000 on the "valuation date", and "$750,000" on April 5, 2024. She stated the "valuation date" was "July 2022" and the date of cohabitation was June 14, 2010. She claimed that the Applicant owed her $63,000 under "Part 4 (f) Money Owed to You." She listed the RBC line of credit on the Midhurst property as being $190,000 on the "valuation date" and that it was $195,000 as of April 5, 2024. However, this was contradicted in her oral evidence whereby she advised that she paid off the line of credit in or around 2017-2018. She did not provide any evidence or statements proving the existence or amount of the RBC line of credit as of April 4, 2022.

[77] From the evidence, it appears that the value of the Midhurst property increased minimally from $265,000 (on the date of purchase in 2004) to approximately $300,000-$310,000 when the parties moved back from Alberta in 2010 and listed the Midhurst property for sale in 2011. Further, the value of the Midhurst property increased significantly by the date of separation to approximately $820,000-$830,000.

[78] Neither party provided any expert evidence or opinion of the value of the Midhurst property at the date of cohabitation, separation or currently. As a result, I used the best evidence that I had to determine the value, which was the Faris Team Home Evaluation of the Midhurst property dated May 5, 2021. Neither party objected to my reliance on this valuation. Further, both parties agreed I could take judicial notice of the peak that took place in the real estate market in 2022, and the downward change since then. Both parties agreed that the value of the Midhurst property today would not be the same as it was in 2022 at the height of the real estate market. Both parties agreed that the value in 2021 was closer to the current value. The Respondent said that she believes that the value of the Midhurst property today is close to the value of a similar house at 1539 St. Vincent Street that recently sold for $822,000 in October 2024. She said that house was "commiserate to her house." I agree that is a realistic value for the Midhurst property as it comes within the range of the Faris Evaluation, and it is not as artificially high as it may have been worth in 2022. For these reasons, I find the Midhurst property is worth $822,000.

[79] As the value of the Midhurst property was approximately $310,000 in 2010-2011 and there was a mortgage/line of credit of approximately $114,855.44, that means the Respondent had approximately $195,000 of equity in the Midhurst property before the renovations and improvements were completed. If I subtract $195,000 from the $822,000 that leaves $627,000 representing the increase in value of the Midhurst property during the parties' cohabitation.

[80] The Respondent has maintained sole ownership of this asset, so she has solely retained and enjoyed the increase in its value. Although some of the increase in its value is attributable to the real estate market, in my view, the Respondent's contributions improved the Midhurst property and made it possible for the Respondent to retain and maintain it.

[81] For these reasons, I find that the Applicant is entitled to a monetary award that would provide him with approximately 50% of the value of the equity in Midhurst property after subtracting the Respondent's equity at the date of cohabitation of $195,000. I find that the Applicant is entitled to 50% of $627,000 which is $313,500. Therefore, there will be an order that the Respondent shall pay the Applicant $313,500 in damages for unjust enrichment.

The Respondent's Reimbursement Claim

[82] The Respondent's Answer did not make a claim for unjust enrichment. She asked for an order that "the Applicant does not have a beneficial interest in the family home." Her Amended Answer dated April 18, 2024 repeats this same request. At para. 11 of the Amended Answer, she requests an order that the Applicant pay her the "sum of $63,000 in respect of the TSFA money she provided to him."

[83] The Respondent asserts that she deposited funds to the Applicant's TFSA in 2021. This was as a result of an agreement between the parties that she could invest the funds in his account to generate profit to cover capital gains tax owed in relation to her own accounts. She promised that the Applicant could keep what was left. She alleges that her investment grew substantially by at least $20,000 and that when she informed the Applicant of her intention to transfer the profit out of the TFSA, he blocked her access to the account causing her to lose the opportunity to make trades and "moves", and thus a significant portion of the funds she deposited and any profits from the investment were lost.

[84] It is undisputed that the Respondent deposited $88,400.00 Canadian dollars ("CAD") into the Applicant's TFSA. The TFSA dispute concerns what the agreement between the parties was, and what happened after the Respondent's deposit was made. Unfortunately for the Respondent, much of her version of the events is not supported by the evidence.

[85] The evidence shows the following:

1. The Applicant's TFSA has both a CAD account and a USD account.

2. The Applicant had $3,769.49 USD in his TFSA account when Respondent's $88,400 CAD was deposited.

3. The Respondent's deposit was exchanged for a total of $72,063.70 USD. The Respondent then used these funds to purchase a total of 1660 Class A Common Shares in AMC Entertainment Holdings Inc. ("the AMC Shares").

4. The cost of the AMC Shares ranged from $37.35 to $58.635 per share. The total cost of the shares was $75,593.14 USD.

5. The Respondent used at least $3,529.44 of the Applicant's $3,769.49 USD that was already in his TFSA to purchase the AMC Shares.

6. The value of the AMC Shares dropped substantially after June 2021, falling from a total value of about $75,000 in June 2021 to about $58,000 by the end of October 2021, and again dropping to approximately $45,000 by the end of December 2021.

7. From the time of their purchase to the date of separation, the value of the AMC Shares never returned to the price for which they were purchased, let alone grow by $20,000 as alleged by the Respondent.

8. The Respondent had access to the TFSA investment all throughout this free fall in the value of the AMC shares.

9. In November 2021, the Respondent was locked out of the account due to her incorrectly entering the password. The Applicant provided the updated password to the Respondent, but she continued to have issues accessing the account.

10. In February 2022, the Applicant sold 660 of the AMC Shares for a total of $12,713.01 USD. He then exchanged the US funds for Canadian funds, receiving $16,257.26 CAD, and then transferred $18,000 CAD to the Respondent.

11. The Applicant sold the remaining 1000 AMC Shares in March 2022 for $15,204.97 USD, which he exchanged for $18,930.19 CAD in April 2022.

12. The balance in the Applicant's TFSA as of the date of separation was $19,187.45.

[86] The Applicant takes the position that it was agreed that he should receive $6,000 for the use of his TFSA account and the Respondent's use of the funds that were already in the account. He asserts after deducting this amount from the $18,930.19 CAD retained by the Applicant, it leaves approximately $12,000 from the fund originally deposited by the Respondent. It should be noted that in the Respondent's first Financial Statement dated August 4, 2022, the Respondent indicated that the Applicant owed her $10,000.

[87] I find that the Respondent's version of the events is almost entirely untrue. There was no $20,000 profit on the AMC Shares. She purchased the AMC Shares during a very brief spike in their value and the price rapidly declined afterwards. I find there is no evidence that supports the Respondent's assertion that the Applicant owes her a full reimbursement for the funds she deposited to his TFSA that subsequently declined in value.

[88] I further find there is no evidence that supports the Applicant's assertion that he should receive $6,000 for the use of his TFSA and the use of the funds already in the account. There is no evidence that either party was shielding the other from risk or indemnifying each other from loss. In my view, they both took a gamble on the stock market and lost. They both must bear the consequences.

[89] The Applicant has already returned $18,000 to the Respondent.

[90] As stated above, the Applicant originally had approximately $3,769.49 USD in his TFSA, of which $3,529.44 was used by the Respondent to purchase the AMC Shares leaving a balance of $240.05 USD.

[91] The value of the AMC Shares dropped from $75,593.14 USD to $27,917.98 ($12,713.01 + $15,204.97 USD). This is a drop of approximately 63% for both parties' funds that were invested in the AMC Shares. If I deduct 63% from the Applicant's $3,529.44 USD, this brings his share of the funds down to a total of $2,223.54 USD plus the balance of $240.05 USD, totalling $2,463.59 USD. From the Applicant's evidence, it appears that the exchange rate in April 2022 was approximately $1.20, so the Applicant's portion of the funds remaining in the TFSA is approximately $2,956.31. After deducting this from the balance in the Applicant's TFSA on the date of separation, that leaves $16,231.14.

[92] I find that the Applicant owes the Respondent $16,231.14 as reimbursement of funds she deposited in his TFSA. For the reasons set out above, the Applicant shall be ordered to pay the amount of $16,231.14 to the Respondent.

The Respondent's Tort Claim Against the Applicant

[93] The Respondent's tort claim was not clearly made out. The Respondent claims that she is entitled to damages for "the hardship, pain and suffering of long lasting and remaining intermittent anxiety and triggered PTSD and 9 months homelessness Applicant did cause by initiating assault of 4 April 2022." Her Amended Answer does not clearly specify what tort she is relying on to make this claim, nor does she quantify the damages claimed. She referred to her tort claim in various ways, making some allusions to a history of family violence, as well as repeated references to "coercive control."

[94] The Respondent's affidavit dated May 22, 2024, provided some clarification, indicating that she is relying on the "Tort of Family Violence due to battery as in Ahluwalia v Ahluwalia, 2022 ONSC 1303." The trial scheduling endorsement form ("TSEF") indicated that the Respondent was claiming "abuse compensation." In her affidavit dated March 11, 2024, the Respondent requested an order that the Applicant pay her $150,000 "for commencing assault on 4 April 2022, misrepresentation of that assault to police, crown attorney which caused 9 months homelessness, mental suffering and anxiety to the Respondent and for a history of multiple threats." These alleged threats included a threat of throwing water on the electricity panel; taking a can of gasoline to a treehouse which the Respondent perceived as evidence of the Applicant's intention "to burn the forest down" and undermining the discipline of their son CJ in relation to electronics usage. The Respondent also "had visions" of falling down the stairs and "visions" of hitting her head in the garage during the incident on April 4, 2022.

[95] The Respondent is not barred from making a tort claim on the basis that the exact phraseology was not utilized in the Amended Answer and TSEF. However, I found the Respondent's exact claim was very unclear and confusing. This made it difficult for the Applicant to properly respond, and for the court to analyze the claim.

[96] It may be inferred that the Respondent is attempting to rely either on the "tort of family violence" that Justice Mandhane attempted to establish in Ahluwalia v Ahluwalia, 2022 ONSC 1303, 161 O.R. (3d) 360, rev'd 2023 ONCA 476, leave to appeal granted and appeal heard and reserved February 12, 2025, [2023] S.C.C.A. No. 529, or the alternative tort of "coercive control" that was proposed on the appeal of that decision. At present, neither of these torts exist under Ontario law. The Court of Appeal for Ontario held that Justice Mandhane erred in creating a new tort of family violence and also declined to recognize a new tort of coercive control. As such, at this time, the Respondent cannot advance a tort claim based in a tort that does not exist.

[97] Even though the issue is currently before the Supreme Court of Canada, I am bound by the Court of Appeal. At the time of the writing of this decision, the torts of family violence and coercive control do not exist. In my view, even if the torts of family violence and coercive control existed, I am not satisfied with the evidence to make any findings in favour of the Respondent regarding her tort claim, whether they exist or not. The findings and facts that led Justice Mandhane to her conclusions in Ahluwalia are vastly different than the facts in the case at bar.

[98] In my view, the violence that occurred on April 4, 2022 was "situational violence." Situational violence is violence that occurs because the couple has a conflict which turns into an argument that can escalate into emotional and possibly physical violence. It differs from domestic abuse because the violence is specific to the situation and is generally minor; it does not escalate over time. While one or both partners may use violence to gain control during a fight, there is not an ongoing effort to exert power or control over the other between fights.

[99] The Respondent's tort claim could be inferred to be a claim to the tort of assault or battery, or intentional infliction of emotional distress. Assault involves intentionally causing another person to fear imminent contact of a harmful or offensive nature, while battery involves actual physical contact. The tort of battery requires direct interference with one's person. The interference must be "harmful or offensive" and "non-trivial." The tort of intentional infliction of emotional distress has three elements: a) the defendant's conduct was flagrant and outrageous; b) the conduct was calculated to cause harm; and c) the conduct caused the plaintiff to suffer a visible and provable illness.

[100] The Respondent was charged with respect to the incident that took place on April 4, 2022. The charges were withdrawn on January 12, 2023. There is no agreement with respect to the incident on April 4, 2022. Each party has provided the court evidence of their version of the event, which seems to have commenced as a result of a disagreement about money and finances. When they could not agree, the Applicant turned off the Wi-Fi to prevent the Respondent from logging in to her online banking from her computer and transferring monies from their son's RESP. The Respondent responded by disconnecting the Applicant's central processing unit ("CPU") and taking it upstairs. The parties physically struggled over the CPU on the stairs and the Applicant was able to grab the CPU and take it back. The Respondent then took CJ's laptop and went into the garage. The Applicant followed the Respondent to take it back from her. They physically struggled again. The physical altercation escalated and resulted in the Applicant grabbing the Respondent and the Respondent hitting and biting the Applicant.

[101] Aside from this incident, the Respondent admitted in her evidence that during the parties' previous conflicts, she threw objects (including a laptop) off a balcony; she threatened to burn the Applicant with her cigarette by "gesticulating" as if she intended to burn his forehead; she threw two coffee cups; she threw a lamp; and she verbally abused the Applicant in front of their son. She also admitted that she had a physical altercation with CJ when she kicked a door to CJ's bedroom down. She further admitted that she bit the Applicant on April 4, 2022 (in self-defence) during their altercation that led to her being charged with assault.

[102] The Respondent called Constable Acero as a witness to give evidence about the events of April 4, 2022 and her arrest. He confirmed that he arrested her on April 4, 2022 once he "formed [his] grounds to arrest." In response to the Respondent's questioning, he said that "we have a protocol we follow regarding domestic violence risk management report. You didn't disclose any previous abuse. I can't recall if I asked if there was previous abuse. I recall when I was processing you that you mentioned a small bruise on your bicep, but you couldn't identify when or how you got it."

[103] The Respondent asked Constable Acero if he knew "she had been suffering from months of psychological abuse." He testified that she "[n]ever mentioned any physical violence." He recalled the injury to Mr. Byrne's wrist. He observed it was "a very defined, fresh bite mark. I recall the incident took place in the garage about a laptop." He recalled seeing a small bruise on the Respondent's bicep and he asked her about it. He testified that "[she] couldn't recall where the bruise came from. I don't recall anything else about it."

[104] Constable Acero said that the Applicant didn't want to provide a statement on the scene, so he had to do an affidavit for the Crown. He indicated it was Occurrence E220336617, and it stated that on April 4, 2022, the Respondent was charged with assault on the Applicant. The investigation disclosed they were in a common law relationship for approximately 12 years at a residence on St. Vincent St. They had an argument about their son's savings account. The Respondent took the computer into the garage and the Applicant thought she was going to remove funds. The Respondent held herself in a fetal position and shielded the computer in her arms. The Respondent bit the Applicant. He testified that in general, we would document any injuries if appropriate at the time. My understanding is that the Respondent bit the Applicant once.

[105] Constable Acero spoke to the standard protocol in a domestic assault charge that one cannot return to the home when they are charged. He confirmed that the Respondent drove off on her own from the station and he didn't know where she went. He said that he didn't recall the Respondent being uncooperative or hostile to the officer.

[106] Constable Acero said that when discussing testifying at the criminal trial, the Applicant said he believes that the Respondent "is controlling of him and he suffers anxiety dealing with her. He feels overwhelmed about being questioned by his ex at the criminal trial." Constable Acero said that he has been a police officer for 13 years, he had received domestic violence training, and he has been dispatched to numerous domestic calls. He confirmed that he has no personal relationship or reason to prefer the Applicant's version. There was no benefit to him personally. He recalled the injuries to the Applicant being on his right wrist, and that there was a clearly defined bite mark. He mentioned he was hit on the back of the head, but no injury. He confirmed that he had grounds to arrest the Respondent. The charges were not improper at all. There was clearly a struggle in regard to the laptop. He deemed her as the primary aggressor. He said "we can't choose whether or not to arrest. We shall make an arrest under the circumstances."

[107] It is clear to the court that the parties engaged in conflict during their relationship. In my view, both parties contributed to the creation and the deterioration of their family. The evidence of both parties shows that the incident that took place on April 4, 2022, was a situational physical conflict that in my view, was the result of the culmination or escalation of previous conflicts. The incident on April 4, 2022, likely caused physical and emotional harm to both parties. However, it is clear that any physical harm resulting from the conflict that day was trivial and unintentional. There were no serious injuries. That incident resulted in the termination of the relationship. The Respondent was charged by the police and removed from the Midhurst property to keep the peace.

[108] It appears to me that most of the Respondent's allegations of harm are based on the hardship she experienced as a result of the criminal charges, her perceptions of the parties' past conflicts, and her "visions" and speculation of the possible outcome of their physical struggles and conflicts. In my view, her allegations are not based on actual imminent fears or direct interference.

[109] The Respondent's witness Elizabeth Bavelar identified Exhibit 16, as a photo of the Respondent's arm taken by Elizabeth Bavelar. She confirmed that she took that photo when the Respondent arrived at her home after the assault. There is no date on the photo, but she said she remembered taking the photo when the Respondent arrived after the assault. The photo is of the Respondent's forearm and has multiple bruises.

[110] Ms. Bavelar confirmed that the Respondent stayed a couple of times at her home. She said that the Respondent kept herself busy to try and keep her mind off things, she helped around the house, painted her stairwell and bathroom, and helped when she worked outside. She said that she saw a "physical and mental deterioration" in the Respondent after the separation.

[111] I have no doubt that both the Applicant and the Respondent experienced distress, hardship, and some incidental minor injuries as a result of the incident on April 4, 2022. The Respondent further experienced housing instability as a result of the charges and the removal from her home. Her subsequent decisions regarding her housing were her own. The Applicant was not involved with her decisions or the various treatment by social services. The Respondent reported suffering anxiety and PTSD, but she gave no evidence of them or connection to the events. They were simply not within the Applicant's control. The charges were subsequently withdrawn, and the Respondent returned to reside at the Midhurst property. In my view, neither of the parties' conduct could be defined as flagrant, outrageous, or causing either party a visible and provable illness.

[112] Family conflict and arguments occur in most relationships that end in separation. Some parties allege and/or feel they were abused in one way or another. Some parties strongly feel they were treated unfairly. That does not automatically mean that there should be findings of a tort of assault, battery or intentional infliction of emotional distress. Allegations are not facts. Feelings are not facts. Visions are not facts.

[113] It appears to me that over the years, both parties were involved in some unfortunately very common relationship conflicts over finances and parenting. I find that whatever emotional harm they experienced was mutual, and a direct result of their inability to maturely discuss or compromise to help themselves out of their disagreements. They both need to take responsibility and accept that they both suffered emotionally, for which there is no redemption.

[114] I am not satisfied with the evidence to make findings in favour of the Respondent regarding the torts of assault, battery, and/or intentional infliction of emotional harm. For the reasons set out above, the Respondent's tort claim is hereby dismissed.

Conclusion

[115] The parties disputed various material facts in this case. Therefore, as assessment of credibility was required. Some material facts are not in dispute. These were included in the Statement of Agreed Facts. Many complex and sophisticated questions and issues were put to both the Applicant and the Respondent during the trial. The issues of unjust enrichment and the tort of assault are not simple issues.

[116] The Applicant was very clear in his evidence throughout the trial about the renovation work he completed on the Midhurst property. He provided details of what had to be done for each renovation or improvement including the demolition, the electrical, plumbing, construction, flooring, and outdoor work. He gave credit to the Respondent for her contributions by her doing all the sanding and staining for the floors, tiling, plaster/mudding, taping, and painting. He provided an estimate of the hours he worked on each renovation project. He provided evidence of payments he made for household expenses, including the mortgage, property taxes, and utilities, that directly refuted the Respondent's repeated assertion that the Applicant "never" contributed.

[117] I can believe, all, some, or none of the evidence proffered by a witness. In this case, due to the constantly changing and contradictory evidence provided by the Respondent, I was unable to rely on much of the Respondent's evidence at all. She unequivocally stated multiple times in her affidavits and pleadings that the Applicant contributed "nothing", and he "never" paid the mortgage, property taxes or any "non-discretionary" expenses. In her evidence and cross-examination, she would repeat and rely on these same statements. It was only after she was repeatedly shown the property tax bills and payments out of his account, that she changed her evidence. Then, she began saying he contributed "minimally" and that he had paid "2-3" property tax bills. She said nothing about the mortgage payments or payments on the utilities. She maintained that she reimbursed him for everything else that he paid. However, she provided no evidence to support that statement.

[118] The dates of cohabitation and separation changed repeatedly for the Respondent. They were indicated to be different dates in her pleadings, financial statements, and affidavits. She never accepted the Applicant's dates of cohabitation beginning in November 2006 and ending on April 4, 2022. She stated it wasn't until June 2010 that they began cohabiting. She admitted that he came to "stay" with her "rent-free" in the Estate house. However, she would never admit they were "cohabiting." It was only in cross-examination she admitted they began cohabiting briefly in the Applicant's Townhouse in Calgary that was purchased in 2008.

[119] The Respondent repeatedly stated that she was independent throughout their relationship, and she "never" needed or relied on the Applicant for any money, household expenses or renovations. She says she alone paid off her mortgage on or by 2017/2018 with no help from the Applicant. Yet, she admitted that her income never rose above $35,000. She provided no evidence as to how was she able to do this on such a modest income.

[120] The Respondent sought an order for the reimbursement of funds she deposited into the Applicant's TFSA. The Applicant showed that the Respondent purchased the AMC stocks at the high point in June 2021 and their value dropped consistently from the time of purchase. They never made any profit. The Applicant sold the AMC stocks and gave a portion of the amount, approximately $18,000, back to the Respondent. I found that he must reimburse the Respondent with an additional amount from the TFSA.

[121] The Respondent sought an order that the Applicant pay her for the monetary damages she suffered as a result of the alleged tort of assault that he committed against her on April 4, 2022, when she was charged by the police with assault against him. The Respondent provided insufficient evidence required to establish the required elements of any torts. The Respondent did not make out any of the elements of a tort claim, whether her claims were for the existing tort of assault and battery, and/or intentional infliction of emotional harm, or a "new" tort of family violence and/or coercive control (if they existed).

[122] For all the reasons set out above, I find in favour of the Applicant's unjust enrichment claim and determine that he is entitled to a monetary award. I find in favour of the Respondent with respect to her entitlement to a partial reimbursement of the funds she deposited in the Applicant's TFSA. Lastly, I am dismissing the Respondent's tort claim for damages against the Applicant.

Order

[123] For the reasons set out above, a final order shall issue as follows:

1. The Applicant's unjust enrichment claim is partially granted. The Respondent shall pay to the Applicant the sum of $313,500.00 to account for her unjust enrichment as a result of the parties' relationship and its breakdown.

2. The Respondent's claim for reimbursement of amounts paid into the Applicant's TFSA is partially granted. The court finds that the Applicant owes the Respondent $16,231.14.

3. The Applicant's unjust enrichment claim shall be offset by the Respondent's reimbursement claim. Therefore, the Respondent shall pay the Applicant the difference, in the amount of $297,268.86. The Respondent shall make this payment in full to the Applicant on or by 60 days from the date of this order.

4. The Respondent's tort claim against the Applicant is dismissed.

Costs

[124] Pursuant to r. 24 of the Family Law Rules, O. Reg. 114/99, there has been mixed success. Neither party is presumed to be entitled to costs. If the parties cannot agree on costs, I will receive written submissions commencing with the Applicant serving and filing his submissions on or by October 10, 2025, followed by the Respondent serving and filing her submissions on or by October 17, 2025, then the Applicant's reply submissions (if any), served and filed on or by October 24, 2025. Cost submissions shall be no more than 5 pages in length (12 pt. font size, regular 1-inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submission shall be delivered via email at BarrieSCJJudAssistants@ontario.ca. If no submissions are received by October 24, 2025, the issue of costs will be deemed to have been settled between the parties.

Justice R.S. Jain

Released: September 22, 2025