ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Allison Jane Gray
Applicant
- and -
David Anthony Vossen
Respondent
Allen Skuce, for the Applicant
Laura Camarra, for the Respondent
HEARD: November 12, 13, 14, 17, 18, 19, 20, 21 and December 4, 2025
T. PRICE, J.
Overview
1The primary issues in this trial between two unmarried parties who are the parents of three young children were:
a) which party will be granted final decision-making responsibility in circumstances where they fail to agree;
b) the determination of by how much the Respondent (Mr. Vossen) overpaid child support after the parties’ separation, with a focus on whether certain prior withdrawals by him from his RRSP should be excluded from his income for the years of the withdrawals; and
c) whether Mr. Vossen was unjustly enriched because of efforts expended by Ms. Gray during the period of the relationship.
2While the issues will be considered individually, the parties agreed that decision-making responsibility was the key issue to be determined.
3Before the trial commenced, the parties had settled on making final the interim parenting time schedule ordered on June 7, 2024, under which the children reside with each of them one-half of the time on a 2-2-3 schedule.
General Background
4After dating for a couple of years, the parties began to cohabit in 2014. At that time, Mr. Vossen was, as he had been since 2011 and continues to be, a licensed electrician. Ms. Gray was enrolled in a one-year certificate program in Geographic Information Systems (GIS) at Fanshawe College in London, which she completed later that year. She had already earned an Honours Bachelor of Arts degree from Trent University in 2004 and had worked for a number of years as a field archaeologist.
5When the parties began to cohabit in 2014, it was in a house in London that Mr. Vossen had purchased in 2008 for $167,000 with the assistance of his parents. He had been the sole owner since 2011.
6The parties never married. They, however, had agreed while dating that they wanted to have children. They achieved that goal on three occasions. Their children are now 8, 6 and 3 years of age.
7The parties separated in August 2022, a year after moving from London to St. Thomas and within months of the birth of their third child.
Pre-Separation Decisions About the Children
8Before the parties separated, Ms. Gray was responsible for making and keeping most appointments for the children. She would advise Mr. Vossen when that had been done, without issue.
9Major decisions about the children were decided jointly. Mr. Vossen pointed to the parties’ agreement that the children be vaccinated because neither was against the procedure. Ms. Gray deferred to Mr. Vossen on the decision about circumcision for their eldest child.
10As to where the eldest child would attend school, the children were not baptized, so the plan was that they would attend the public elementary school for the attendance area where they resided in London. That was Prince Charles Public School. While there was also a nearby Catholic school, because Ms. Gray is an atheist Mr. Vossen accepted that she would not have wanted the children to go to that school.
Pre-Separation Child Care
11During her maternity leaves, Ms. Gray was the children’s primary caregiver while Mr. Vossen was at work. When he returned home after work, he took on responsibility for the children, thereby allowing Ms. Gray to rest after a full day of providing childcare. On weekends, both parties spent time with and cared for the children.
12After Ms. Gray’s return to work, the parties agreed that she would, and did, stay home with the children, when necessary, such as during periods of them being ill, because Mr. Vossen had the greater income. That, however, became an issue the more often that Ms. Gray had to be absent from work to care for sick children. She received warnings from Canada Life about her growing absences. Once that occurred, Mr. Vossen assisted by sometimes taking time off to care for the children.
13Driving arrangements for getting the children to daycare often hinged on who was working, as Mr. Vossen was subject to period layoffs as a unionized electrician. If Ms. Gray was working and he was on layoff, he cared for the children. He also drove the eldest child to daycare to maintain a spot in the program. Initially, the eldest child attended a daycare in Lambeth, which was miles from their residence. The child later got into a daycare closer to the London residence, and driving was shared by them.
14After the parties moved to St. Thomas, during Covid, the parties’ eldest child was enrolled in school while their second child attended a daycare in Lambeth. Ms. Gray worked from home for a period during which Mr. Vossen drove the children if he was on layoff. If not, the parties shared the driving.
Issue: Final Decision-Making Responsibility
15The parties informed me they had agreed that, as a starting point, on decision-making responsibility, any order that is made should begin with them endeavoring to jointly make major decisions affecting their children. They are, however, entrenched in their opposing positions about who should have final decision-making responsibility in circumstances where they might fail to agree.
16Based on the evidence at trial, I find that the reason they cannot agree on who should have final decision-making responsibility in the event of a disagreement is because Mr. Vossen is often disrespectful of Ms. Gray, while she views him as being a less competent caregiver than her. Neither party trusts the other, and they often fail to communicate civilly.
17I provide several examples to illustrate those findings.
Pre-Separation Conflict in the Parties’ Relationship
18According to Ms. Gray, a trend had developed in their relationship over a period of years whereby Mr. Vossen would manifest cyclical outbursts of anger.1 It would, on occasion, be explosive. His anger outbursts, she claimed, frightened her. He would then calm and apologize, sometimes crying as he did. There would be peace in the relationship for a while, then the cycle would begin again. Mr. Vossen not only failed to deny this evidence, he agreed with Ms. Gray’s assertion that he sometimes entered her room at night, after she was asleep, to yell at her.
19For her part, Ms. Gray acknowledged regularly telling Mr. Vossen during their arguments that he must speak to a counsellor or the relationship would be over. These demands were said to be born of Mr. Vossen’s anger, his inability to manage it,2 and his propensity to blame her for causing it in him.
20Because of Ms. Gray’s ultimatums, Mr. Vossen did attend private counselling. Because of the acrimony in their relationship, the parties had also been involved in couples counselling on two occasions with two different counsellors. With their differences unresolved, they had also met, unsuccessfully, over the course of a few months with a family mediator. They also obtained counselling for their children because they had been occasional witnesses to Mr. Vossen’s anger outbursts. The children’s counsellor occasionally met with them to discuss parenting issues.
21Ms. Gray described the relationship between her and Mr. Vossen as “bad” at the time of their third child’s birth, with the year preceding it, following the move from London, being described by her as “always bad” and “terrible for all.”
22In the period beginning in August 2021 and ending with their separation, the parties argued frequently, most often about money. Their financial circumstances were not as good as they had been in London once they moved to St. Thomas because of the larger debt that had been taken on with the purchase of the St. Thomas residence. It did not help when Ms. Gray broke her tailbone three months before the child’s birth and had to go on short-term disability at 80% of her regular salary.
23After the parties moved to St. Thomas in August 2021, things continued to be somewhat tense. However, by September 2021, from Mr. Vossen’s perspective, they seemed to improve. Ms. Gray returned to work, leading him to conclude that some of what he called her “attitude” toward him had been a reflection of her being forced to stay at home during the Covid-19 pandemic, eighteen months of which she had taken as parental leave after the birth of their second child.
24The improvement was short-lived. For example, on October 29, 2021 Ms. Gray sent a text message to Mr. Vossen at his work in which she called him a “fucking asshole” because he had not cleaned some dishes to her satisfaction the previous day. In November 2021, the parties had an argument which ended up with Ms. Gray and her mother speaking on the telephone, with Mr. Vossen yelling at both.
25Shortly after the third child’s birth, Mr. Vossen tried, unsuccessfully, to enlist the help of Ms. Gray’s visiting mother to address a number of texts from Ms. Gray which he claimed were insulting of him. Later that evening, Ms. Gray summoned him to the bedroom, as he was sleeping on the couch, complaining about being tired and having difficulties breast-feeding. She asked Mr. Vossen to bottle feed the baby, which he did. At some point, however, an argument erupted over Ms. Gray’s alleged “impatience” with the baby. Ms. Gray, who claimed at trial she was exhausted at the time, struck Mr. Vossen on the shoulder, took back the baby, and resumed her efforts to breastfeed.
26Mr. Vossen left the room claiming, at trial, that he “felt like [he] was living in a nightmare” because of the tension in the house. As a result, he called the police to complain that he had been struck. It was late at night. Two officers came to the house. By the time of their arrival, the baby had settled. The police wanted to speak with Ms. Gray, so Mr. Vossen alerted her to their presence. She confirmed to them that she had struck Mr. Vossen. The police then separated the couple and spoke with them individually. Mr. Vossen told them that he did not want criminal charges laid so none were.
27Recognizing the volatility of the entire event, before departing the police spoke to them together and delivered what Mr. Vossen called “a pep talk” about the need for families to stick together.
28The next day, Ms. Gray emailed Mr. Vossen and asked what his goal was in summoning the police. He responded that he wanted a normal family life. Nothing more came of the entire event.
The Parties’ Separation
29The parties continued to meet virtually with a counsellor after moving to St. Thomas. In August 2022, during their participation in a virtual couples counselling session, the counsellor asked Ms. Gray if she wanted to stay in the relationship with Mr. Vossen. She replied that she did not. Mr. Vossen, who was elsewhere in the residence, became angry, and exited both the virtual session and the residence.
30According to him, his anger on this occasion was driven by two issues. First, he feared that the children had been with Ms. Gray when she answered the counsellor’s question. Second, he felt that Ms. Gray’s response was a “gut punch,” and it caused him to conclude that he had been “strung along” and “used” by her.
Assessment:
31As the parties’ relationship deteriorated, it is clear that Mr. Vossen’s distrust of Ms. Gray grew. From her repeated threats to end the relationship in response to his unwarranted anger to her pressing for the sale of the house that he owned in order to move to a larger, more expensive house, only to tell him on the day the purchase closed that she was through with him, had to have severely undermined any trust that he had in her. This lack of trust was added to his belief that she was taking advantage of him financially.
32On the other hand, Ms. Gray was clearly too often the subject of Mr. Vossen’s repeated outbursts of anger, which likely seriously damaged any sense of safety and security that she might have had earlier in their relationship.
33The foundation of mistrust was well under construction by the time that they separated.
August to November, 2022: The Immediate Post-Separation Period
34The parties did not physically part when they separated in August 2022. That occurred when Ms. Gray moved out of the jointly owned St. Thomas residence in November 2022.
35The parties began to implement a shared parenting regime with respect to their two eldest children shortly after she did so.
36What is particularly interesting about their nearly immediate implementation of a shared parenting regime is that they did so despite what I find to be their obvious distrust of each other in other respects. This suggests that, despite the other issues between them, neither saw or claimed about the other the parenting deficiencies that one often sees when couples with children separate – at least not at the outset.
Post-Separation
Mr. Vossen’s Changing of the Locks
37Evidence of Mr. Vossen’s lack of trust for Ms. Gray began to manifest itself as soon as she left their residence. He immediately changed the locks on the front and rear doors and changed the garage code. He claimed that he had done so out of fear of her because she is volatile. He did, however, change them back when told to do so.
Assessment:
38This event demonstrates both Mr. Vossen’s quickness in taking actions that would tend to demonstrate a strategy of gaining control over Ms. Gray, and a willingness to admit that he was wrong to do so, given the chance to reflect on his action.
Communications Issues
39In or about January 2023, the parties began to communicate and argue through their exchanges on the Talking Parents application. Several pages of those communications were entered into evidence, of which the following is one example. Others are detailed elsewhere in connection with other topics.
40On February 12, 2023 Mr. Vossen sent Ms. Gray a photograph of the sidewalk leading to the porch of his residence. A red line was drawn across the photo of the sidewalk, and the words “stay behind this line” were written on it. The line represented a point beyond which Ms. Gray was not to pass when delivering the children to Mr. Vossen.
41He claimed that when Ms. Gray was dropping off the children she would get into his personal space and make him uneasy. His explanation was that he wanted to set a boundary to avoid Ms. Gray making allegations against him. He added that he never told her she had to leave before he retrieved the children from the porch. This issue was later resolved with exchanges occurring at school or the police station, a location chosen by Mr. Vossen because of his claimed fear of Ms. Gray.
Assessment:
42This event demonstrates clearly how Mr. Vossen distrusted Ms. Gray and treated her as a risk to him. However, as before, the parties also demonstrated an ability to work through their differences about this issue.
Disrespectful Language
43At trial, Mr. Vossen confirmed that, in his written communications with Ms. Gray, he had called her “volatile and emotionally abusive” and a “high conflict individual.” He also confirmed that, at different times, he had accused her of “engaging in parental alienation,” “lying,” and “saying anything to create conflict.”
Assessment:
44Mr. Vossen’s willingness to use abusive language in his communications with Ms. Gray is an indicator of his lack of respect for her. This must stop. The continued use of such language will undermine any effort by the parties to achieve the joint decisions that both have indicated is their preferred starting point.
Mr. Vossen Records Some Exchanges of the Children
45In January and February 2023, Mr. Vossen began to have his cell phone camera ready to record when he attended to retrieve the children for his parenting time. This ceased, however, after approximately six months with the help of the mediator.
Assessment:
46As was the case with the changed locks, these events demonstrated both Mr. Vossen’s lack of trust in Ms. Gray and his willingness to listen to the suggestions of the mediator, thus bringing this unnecessarily provocative and inflammatory behaviour to a conclusion.
Refusals to Disclose Information
47In July, 2023, Mr. Vossen proposed to Ms. Gray that on September 5, 2023 she drop their youngest child at his residence so that he could spend the day with her as he would be completing a vacation. Ms. Gray responded that she would be dropping the child at the daycare and he could retrieve her from there.3 When he asked her why, her response was that September 5 was “ a regular day, not a parenting day for you.” He responded that he did not understand why she refused to drop off the child at his residence. Ms. Gray failed to reply. Mr. Vossen then retrieved the child from the daycare.
48At trial, Ms. Gray explained that she did not want to drop the child at Mr. Vossen’s residence because that would reduce the number of days that the child could miss attendance at the daycare due to illness or vacation before she would lose her daycare subsidy. She did not explain why she had not explained this to Mr. Vossen in their July communications.
Assessment:
49While the parties seemed to be developing a post-separation relationship in which the care of their children was being shared, this incident demonstrates that power and control issues ran both ways. There was no reason for Ms. Gray to withhold necessary information from Mr. Vossen, other than to irritate him.
Involvement of the Children’s Aid
50One morning, during the autumn of 2023, Ms. Gray drove by Mr. Vossen’s residence when he was out walking with the children. She observed their eldest child, who has ADHD and who is “impulsive,” walking or biking ahead of Mr. Vossen “at some distance.” The child was, however, within view of Mr. Vossen.
51Ms. Gray drove by again the next day and observed the same thing happening. She became upset and notified her lawyer. Correspondence was exchanged between counsel but according to Ms. Gray no explanation was provided for what she had observed. As a result, she contacted the Children’s Aid Society to report what she had seen. She then met with a child protection worker. The Children’s Aid did not open a file and took no further steps in connection with Ms. Gray’s report.
52At trial, Mr. Vossen explained that he and the eldest child had been in constant communication on both occasions via two walkie-talkies that he had borrowed from his workplace. He had never let the child out of his sight and, if the child got too far ahead, he was instructed to return, which he always did.
Assessment:
53These events illustrate that, rather than asking legitimate questions of Mr. Vossen, Ms. Gray was quick to involve the Children’s Aid Society, thus possibly tarnishing his abilities as a caregiver in the event of continuing conflict between the parties.
54However, her explanation was equally plausible - that she could not raise the issue of their eldest child being ahead of his father and siblings because of her expectation of being criticized by Mr. Vossen for doing so.
55Such behaviour on her part, driven by unacceptable behaviour on his, suggests the strong potential for the parties having difficulty holding discussions about issues of significance to the children in a calm, open, and respectful manner.
Mr. Vossen’s Hospitalization in March 2025
56That month, Mr. Vossen had been fighting an ear infection for which he had attended the emergency department at St. Thomas Elgin General Hospital on three occasions. On March 3, while caring for the children, he passed out. When he awoke, he was being attended to by paramedics. The parties’ son had gone to the neighbour’s residence for help and a 911 call had been made by them. Mr. Vossen was taken to the hospital. Ms. Gray was contacted by the police, who asked her to retrieve the children from Mr. Vossen’s residence because he had to go to the hospital. She arrived as the ambulance was leaving.
57The parties spoke later that day. Mr. Vossen reported that he was in the hospital because his infection had worsened. He also told Ms. Gray that she could take the children to North Bay for March break because he expected to be in the hospital for a while. She did so.
58After 3 days at St. Thomas Elgin General Hospital, Mr. Vossen was transferred to University Hospital in London. He was told that his infection had spread into his skull and he required surgery.
59Mr. Vossen messaged Ms. Gray and told her that he was going in for brain surgery imminently and wanted to speak with the children. What followed were several written skirmishes between the parties about when Mr. Vossen would be able to speak with the children while they were in North Bay. He was ultimately able to do so, but Ms. Gray arranged for it to happen according to her view of the priority of events happening in North Bay.
60Throughout his time in hospital, despite her inquiries, Mr. Vossen failed or refused to give Ms. Gray much detail about his medical condition.
61When Ms. Gray and the children returned to London, Mr. Vossen’s efforts to have them visit him in hospital were deflected by Ms. Gray. They were, however, permitted to speak with Mr. Vossen on several occasions over the following week.
62After 15 days, Mr. Vossen was released from hospital. He did not inform Ms. Gray.
63On March 20, 2025, two days after Mr. Vossen’s release, Ms. Gray received a phone call from the youngest child’s daycare, asking that she retrieve the child because she was ill. As she was en route to do so, Mr. Vossen texted her to tell her that he had the child in his care. He had learned of the illness when he called the daycare to speak with the child.4 Ms. Gray did not read the text because she was en route to retrieve the child. Mr. Vossen then called her to tell her that the child was in his care.
64This “shocked” Ms. Gray. She had no idea that Mr. Vossen had been released from the hospital. She also knew nothing of his condition, and now he was caring for an ill two-year-old. She told him that she would pick up their daughter at his residence and proceeded there. On her arrival, Mr. Vossen described Ms. Gray as having “pounded” on his door while being “agitated.” He emerged from the house and told her to leave. When she asked about his health, he told her he was fine, then entered the house and closed the door.
65Because she remained concerned about their child’s safety, given that she had understood that Mr. Vossen had brain surgery, Ms. Gray contacted the police and, after telling her story, asked them to attend his residence to check on the child’s welfare. They did so.
66On their arrival, Mr. Vossen allowed them into the house. After meeting with him, the police emerged and told Ms. Gray that they had no concerns about Mr. Vossen’s ability to care for their daughter. They also told her that Mr. Vossen had been home for a few days and had wanted some time to himself. He was also demanding that she leave and retrieve their daughter later. Assured by police that all was well, Ms. Gray left, came back at the end of the day, and retrieved their daughter without a problem.
67Because the next day was to be a regular parenting day for Mr. Vossen, Ms. Gray delivered their youngest daughter to him for his parenting time. Later that day, a letter arrived from his lawyer that reported that he had not had brain surgery.
68Attached to the letter from his lawyer was a medical report that suggested that he was capable of driving. However, the Ministry of Transportation had suspended his license, a fact about which he failed to inform Ms. Gray because he “did not want to have more conflict.”
69In fact, it later led to just that on July 7, 2025 when he failed to attend an exchange of their youngest child at the St. Thomas Police station because he could not drive. Instead of telling Ms. Gray why he could not meet her at the police station, he pressed Ms. Gray to attend a different location near his residence for the exchange to occur. 5 The exchange never occurred. He testified that he did not feel comfortable telling Ms. Gray that he could not drive because he would be showing her his “weakness” and he was “worried that she might exploit” it.
70At trial, Ms. Gray laid the blame for a month of uncertainty on Mr. Vossen, indicating that it could have been avoided if he had been more forthcoming with her.
71Mr. Vossen, on the other hand, expressed being upset that Ms. Gray chose not to visit him while in the hospital and would not let the children visit him. He portrayed Ms. Gray as choosing to go to North Bay with the children for March break, in preference to staying near him, despite agreeing that he had told her that she could take the children to North Bay.
Assessment:
72This bizarre event brings the discussion back to where it began. It illustrates Mr. Vossen’s continuing lack of trust in Ms. Gray. That lack of trust led to his failure to disclose crucial information to Ms. Gray that would have helped her make decisions about the children, such as when they might be able to contact him and whether they could visit him in the hospital. By withholding information, Mr. Vossen handed Ms. Gray the opportunity to make these key decisions unilaterally.
73On the other hand, in the absence of such information, Ms. Gray demonstrated her willingness to take control of the children’s communications with Mr. Vossen, even after he told her he wanted to speak to them and have him visit them in the hospital, a request she refused. Their communications when Ms. Gray was in North Bay with the children were argumentative.
74This entire incident demonstrates the need for the parties to be open with each other if they want to successfully make joint decisions that are in the best interests of their children.
Issues Concerning the Children’s Health and Safety
An Ear Injury
75The parties’ second child injured her ear on September 30, 2024. They became embroiled in a disagreement about the maintenance of the bandages covering the stitches she received at the hospital. It began with Ms. Gray criticizing Mr. Vossen’s care of the injury, evolved into Mr. Vossen, who is trained in first aid, telling Ms. Gray how to care for the child’s ear, and ended up with him accusing her of being “on a rampage for fodder for litigation.”
Assessment:
76While there was a reasonable explanation for why the child had two bandages on her ear, when Ms. Gray criticized Mr. Vossen’s care of the injury, she jumped to the conclusion that he was not a competent caregiver. His response demonstrated that he saw any criticism of him as tactical, designed by Ms. Gray to gain a litigation advantage. This exchange is hardly supportive of the parties working together to achieve a joint decision when the health of their children is an issue.
Differences in the Interpretation of Medical Advice
77In December 2024 and January 2025, the parties’ son’s pediatrician had recommended that they try to achieve some measure of consistency between their homes when he was in their respective care as he had been diagnosed with ADHD. Mr. Vossen took this to mean that he should share with Ms. Gray all of the routines that he followed with the child in his residence, many of which seemed to have an almost military precision about them, and that she should follow them in her residence. Ms. Gray had interpreted the physician’s recommendation less strictly and applied it to things such as consistent bedtimes. She refused strictly to comply with Mr. Vossen’s suggestions. He accused her of failing to follow the doctor’s recommendation. Their son was discharged from the physician’s care in November 2025.
Assessment:
78Mr. Vossen’s stridency about his understanding of the physician’s advice suggests that joint decision-making about a health issue for their children, while desirable, may be difficult for this couple to achieve.
Dental Issues
79In 2024, the parties’ second child tripped and injured some teeth on a plastic picnic table while in the care of Mr. Vossen. He informed Ms. Gray about the incident, telling her that he had checked the child’s mouth and all seemed fine. The next day, Ms. Gray called the dentist to have the child examined. She also contacted Mr. Vossen to inform him about some questions that were being asked by the dentist about the incident. Mr. Vossen contacted the dentist to respond to the questions. When he did not tell Ms. Gray what he had told the dentist, she accused him of withholding information from her. The parties met later with the dentist. There were no major concerns about the child’s injury. Both followed the dentist’s recommendations after the child had been examined by the dentist.
80Sometime later, the child re-injured her tooth. Mr. Vossen contacted the dentist to inform him and to seek advice. He was asked to bring the child in for another examination. In the ensuing hurry to gather all three children together for the trip to the dentist, Mr. Vossen’s cell phone was dropped onto the grass at his residence. Once at the dental office, he asked that Ms. Gray be contacted to explain why the children were there. That was done.
81Ms. Gray again accused him of withholding information from her about the child’s tooth being reinjured. Her concern was that she had not been informed before the child was taken to the dentist.
Assessment
82In the end, the dental issues were of no major concern to the dentist. These events, however, again illustrate that these parties neither communicate well nor trust each other.
The Use of Appropriate Car Seats
83Ms. Gray identified this issue as being particularly important for her, saying that she was “not going to give up on it.’
84When Ms. Gray was pregnant with their third child, the parties addressed the future need for three car seats through the purchase by Ms. Gray of a van that would accommodate three car seats. Mr. Vossen used the van if he was picking up the children.
85Between August 2022, when the parties separated, and 2024, Ms. Gray was the youngest child’s primary caregiver. Mr. Vossen transported the older two children by simply transferring two car seats from the van to his vehicle.
86In 2023, however, when the youngest child also began to be transported to Mr. Vossen’s residence along with the older two children, he placed the then 6-year-old eldest child in a booster seat located in the front seat of his vehicle. He also began to do so even if the two younger children were not in the vehicle. Thus began a conflict between the parties about whether it was safe for Mr. Vossen to transport the eldest child in the manner he was doing.
87In August 2023, because of Ms. Gray’s position that Mr. Vossen should not be transporting the eldest child in the front booster seat in the absence of the other two children, he had the booster seat inspected. Its use was found to be acceptable by the inspector. When Mr. Vossen next met with Ms. Gray on September 8, 2023 and was to transport the three children, meaning that he had to use the booster seat for the eldest, he held the inspection sheet against his car windshield to show it to Ms. Gray. As he did so, he was some distance from her. The certificate could not be read from a distance. It is unclear if he told her what he was holding against the car’s windshield. He later provided Ms. Gray with a copy.
88Ms. Gray continued to press her position by doing some research, which caused her to conclude that, while the booster seat was not illegal to use, the front seat airbag adjacent to the seat should be disconnected. This had been noted on the August 2023 inspection report for the booster seat.
89Unable to bridge their differing opinions (legality of the booster seat versus its safety for use), Ms. Gray contacted the local Children’s Aid. A worker wrote Mr. Vossen in February 2024 and suggested that he should not transport the eldest child in the front seat if space was available in the rear seat of his vehicle, which was really not the issue by the time the letter was sent.
90This whole issue was finally resolved when Mr. Vossen ended up purchasing a van that would hold three car seats in the rear. Despite that, Ms. Gray then insisted that he was installing them unsafely, claiming that he had installed the car seats in her van in a manner that caused issues for which she had to have the car seats inspected. In response, Mr. Vossen had the car seats, when installed in his van, inspected in April 2024. No safety issues were found.
91Despite that, in June 2024, when the court heard a motion brought by Ms. Gray to address a number of other issues, all of which were settled on consent, a term was included that required neither party to “transport any of the children in the front seat of their vehicle” which was no longer the issue of concern since Mr. Vossen had purchased his van.
Assessment:
92This example demonstrates the parties’ tendency to dig in the heels and hold to their position of being correct, even if to do so prolongs the discord between them. An unwillingness to be open-minded, or to reconsider one’s position can only lead to an impasse. In the end, as seen previously, Mr. Vossen yielded on his position and solved the issue of having all three children positioned behind the driver in rear seats when he purchased a van like that owned by Ms. Gray. However, instead of recognizing his concession, she raised the issue in court and obtained what appears to be an order that articulated a solution for a problem that no longer existed. In my view, this was an example of her not letting go of a settled issue because she sensed an opportunity to belittle Mr. Vossen. As with so many of these examples, one party wanting or needing to control a decision is unlikely to lead to reasoned, joint decisions.
Issues Concerning Education
Eldest Child’s School Registration
93After the parties sold the residence in St. Thomas, both moved out of the attendance area for the public school that their eldest child would have begun attending. Efforts to secure a boundary exemption failed.
94In January 2023, Ms. Gray raised the question of which of the two schools available to them – a different one serving the attendance area in which each party was residing – should the children be registered to attend. She was attempting to prompt a discussion about the merits of each school in an effort to see if the parties could agree on a school.
95Instead, the inquiry quickly descended into a debate not just about the schools but also about parameters each was using to advocate for his or her preferred school. While several different factors were raised - some meritorious, some not – Ms. Gray’s primary concern was the availability of before and after school care. The reason this was so important was that she could not return to work if it was not available to her. Their texts on this topic, like so many others, were full of personal attacks and arguments.
96Ultimately, on August 18, 2023, as a result of motions brought by both parties, Justice Sah made the decision that the eldest child would be registered to attend the school serving the attendance area in which Mr. Vossen was residing.
Assessment:
97This event provided the parties with their first opportunity to work together to make a decision in the best interests of their son. They failed. Instead of having a rational discussion, they resorted to tactics such as hurling insults and engaging in personal attacks rather than logically attempting to respond to information provided by the other with which they disagreed. In the end, Justice Sah had to make the decision for them.
Junior Kindergarten Enrollment of their Second Child
98In January 2024, Mr. Vossen enrolled the parties’ second child in Junior Kindergarten, then notified Ms. Gray of what he had done. Her response was that the parties should have discussed the issue before he acted. As was the case with her older brother, a series of accusatory text messages ensued. The primary response of Mr. Vossen focused on the fact that Ms. Gray had allegedly enrolled the children in a couple of extracurricular activities without consulting him, so that gave him license to do the same with the second child’s school registration. Ms. Gray’s position was that school registrations need to be discussed before they are done, even if the children are going to attend the same school as an older sibling. She pointed to this as just another example of Mr. Vossen making unilateral decisions without consulting her. The child attends the same school as her brother.
Assessment:
99How can people who do not communicate about an issue make a joint decision? This example illustrates the point. While Mr. Vossen’s registration of their second eldest child in the same school as her older brother made sense, he ought not to have done it without first discussing it with Ms. Gray. That aspect of the decision-making order that the parties agree on would have them conferring in an effort to reach a joint decision before one or the other of them makes the final decision in the event of a disagreement. Mr. Vossen simply proceeded with the result. While it may have seemed like a waste of time to him to discuss the school registration at all, given the inevitability that the second child would attend the same school as the eldest, procedure matters, even if it sometimes seems redundant.
Issues About Registration for Extracurricular Activities
100On July 28, 2024, Mr. Vossen informed Ms. Gray that their son was interested in playing basketball. He told her of an eight-week program that he had located which was to commence in October 2024, the days of the week when the games were to occur, the cost, and the location. Times would be confirmed on registration. He asked Ms. Gray if she was “willing to coordinate” on his participation.
101Ms. Gray’s response failed to answer the question asked of her. Instead, she wrote about an entirely different activity about which the child had reportedly told her of his interest.
102Thus started a lengthy series of back-and-forth texts containing accusations about alleged past wrongs committed by both parties in respect of registering the children for extracurricular activities, allegations by Ms. Gray that Mr. Vossen was “hiding” information from her, which the records shows he was not, and an argument why she was not answering the original or subsequent questions put to her originally.
103The testy exchanges continued until September 20, 2024 when the program, for which the child had not yet been registered, was cancelled. At that time, Ms. Gray had still not answered the question put to her in the initial text from Mr. Vossen. Her position was that a meeting with the children’s counsellor would help them resolve their inability to communicate.
104Mr. Vossen then located a basketball clinic for which he sought Ms. Gray’s consent for their son to participate. When she failed to respond, he registered the child. When he informed Ms. Gray, she brought up coordinating the children’s activities, which Mr. Vossen regarded as a separate issue.
105When the clinic ended, Mr. Vossen registered their son for a different basketball program. Ms. Gray ultimately agreed to take the child to the basketball program during her parenting time.
106One of the difficulties with the Talking Parents application is that conversations about different topics can be commenced with a heading about that topic. Both parties were guilty of including in their messages about one topic, information or a response about another. This could only have added to their confusion and partly fueled their arguments.
107A case in point is the co-incident effort by Mr. Vossen to register their second child in gymnastics. He raised that topic in a separate Talking Parents thread that he started, as he did for basketball, on July 28, 2024. He asked Ms. Gray for her willingness to “coordinate” about the activity. After she failed to respond, he wrote her several times asking that she do so. She finally indicated that she had answered his question in a message that she had placed in the basketball thread. She did not tell him her response when he asked. As a result, the opportunity to register the child in the subject program was lost.
108Mr. Vossen then enrolled their second child into a dance class. Ms. Gray became upset and repeatedly told him, when he raised questions with her, that he could not register the children in activities without consulting with her. He pointed out that she had done precisely that one year before for the same child. Eventually, Ms. Gray ended up taking the child to the dance class during her parenting time, without issue. The argument about the children being registered for extracurricular activities without the parties having a prior discission continued, off and on in the same thread, until late September 2024.
Assessment:
109These examples illustrate behaviours that will sink an opportunity to make a joint decision. These include: the non-answer answer, in which a question is answered by raising a different topic; being silent when asked to respond; taking too long to answer; and projecting on to the other one’s failure to adhere to a process intended to engender joint decision-making.
110For these events, Ms. Gray was far more obstructionist than she should have been. Her failure to respond to simple questions drove Mr. Vossen to act unilaterally or the children would have missed opportunities to engage in some of their extracurricular activities. The exchanges also show that Ms. Gray was as willing as Mr. Vossen to act unilaterally when it suited her purposes.
Issue #1: Decision-Making Responsibility
Discussion
111Despite their past conflicts over so many issues, the parties’ agreement to begin with a shared decision-making regime can be seen as evidence of a more settled post-separation relationship. Additional indicators are their settlement of parenting time before trial, and Mr. Vossen’s testimony that, despite their past conflicts, he, Ms. Gray, and the children are still a family, albeit living in two different homes.
112That noted, the mutual lack of trust has fueled their challenging relationship, whatever its current status, and leaves little doubt that they will, again, hold strongly opposing views about significant matters affecting one or more of their children.
113As in so many matters that come before this court in which decision-making responsibility is in dispute, including those that settle short of a trial, it is often the case that the terms of settlement assign ultimate decision-making responsibility to one party or the other when the parties cannot arrive at a joint decision on some issue or another affecting their children.
114As I have noted earlier, each of the parties wants that ultimate responsibility. In my view, for these parties, such an outcome will become a prescription for further conflict as the party who lacks any final responsibility will inevitably grow to be resentful of the other.
115In assessing what order to make on this issue, I have considered a number of the cases presented to me by counsel including, on behalf of Mr. Vossen: Grindley v. Grindley, 2012 ONSC 4538; Khavich v. Navarro, 2024 ONSC 4669; McBennett v. Danis, 2021 ONSC 3610 and S.V.G. v. V.G., 2023 ONSC 3206; and on behalf of Ms. Gray: Moghimi v. Moodi, 2023 ONSC 2568; Liu v. Huang, 2020 ONCS 450 (Ont. C.A.).
116I am of the view that the following edited excerpt from Khavich v. Navarro sets out the applicable principles:
89Section 16.3 of the Divorce Act provides that the court may allocate decision-making responsibility in respect of a child, or any aspect of that responsibility, to either spouse, to both spouses, to another person authorized to seek a parenting order or to any combination of those persons. This provision gives the court a wide discretion to craft a tailor-made decision-making responsibility framework that supports and promotes the best interests of the child before the court, taking into consideration the unique facts of each case.
90The options available to me include the following:
I could grant sole decision-making responsibility in all areas to one spouse.
I could grant joint decision-making responsibility in all areas to both spouses.
I could grant joint decision-making responsibility to both spouses in one or more areas of responsibility but give sole decision-making authority in the other areas to one spouse or allocate those other areas of decision-making between the spouses.
Alternatively, I could allocate each party sole decision-making responsibility in separate specified areas, with no provision for joint decision-making in any areas.
Another option open to me is to require the parties to engage in all reasonable efforts to make some or all significant decisions jointly, but to designate which party has final say in each area of decision-making in the event of disagreement.
91In deciding on an appropriate decision-making responsibility regime, I am required to consider all possible frameworks, and not simply those proposed by the parties.
92The Ontario Court of Appeal in Kaplanis v. Kaplanis set out the following principles in determining whether a joint decision-making responsibility order (formerly custody order) is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It can’t be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
The younger the child, the more important communication is.
94No one factor listed in section 16(3) of the Divorce Act is dispositive, and not every parenting dispute will contain every factor. Each parenting dispute must be decided on its own facts, in relation to the factors that are present with the primary consideration being the child’s physical, emotional, and psychological safety, security, and well-being.
Allocations of Final Decision-Making Responsibility
117In reaching my conclusions on this issue, I have taken into account the facts described above, the parties’ successful history of co-parenting while together, their settlement of parenting time, and their ability to readily agree that, as a starting point, joint decision-making is to be preferred. I have also considered that both are strong-willed and take different views about some issues, particularly the children’s involvement in certain extracurricular activities.
118In the result, I have concluded that the solution that will maintain a balance between the parties, while giving each a role in making decisions that best serve their children in the event that they cannot achieve a joint decision, is for there to be parallel final decision-making responsibility for some issues, meaning each will have the final authority to decide on specific issues should the parties not come to an agreement.
Health
119The good health of their children should be a top priority for all parents, as I find it was for both parties. Each appropriately sought medical care for the children when necessary. What interfered with them making joint decisions that would ensure that the children’s health was attended to without drama were their occasional petty disagreements and distrust of each other. The parties’ demonstrated inability to not be the “winner” when they have a disagreement must play no role when it comes to their children’s health.
120My order will require the parties to consult in an effort to make joint decisions about the children’s medical care. Should they be unable to reach a consensus, and because of my decision concerning the children’s education, I am giving final decision-making responsibility to Ms. Gray. However, before making a decision, she must also consult with the children’s physician. If she elects not to follow the physician’s advice, she must explain why to Mr. Vossen.
Education
121Having regard to the evidence, I find that Mr. Vossen should have final decision-making responsibility about the children’s education. While he was guilty of not discussing with Ms. Gray his decision to enroll the parties’ second child in the same school as her older brother, I find that Ms. Gray’s insistence that there be a discussion about it first was raised more as an irritant than as a necessity, given the inevitability of the decision that was made by Mr. Vossen.
122Moreover, as Justice Sah found, his rationale for the children attending their current school was more compelling than that of Ms. Gray for the children to attend her preferred school.
123Additionally, in his evidence, Mr. Vossen articulated a reason for wanting the children to attend a specific secondary school had the parties remained in London. This showed that he was thinking longer-term about their educational best interests. He also spoke about the things that he was doing currently with the children, particularly the parties’ son, to augment what they are learning at school.
Religion and Cultural Matters
124Ms. Gray shall have final decision-making responsibility about the children’s religion and cultural matters. It seemed far more important to her that the children be raised without a religious affiliation than it did to Mr. Vossen, who appeared to not be troubled by Ms. Gray’s atheism.
125That noted, Ms. Gray’s clear overreaction to the children attending a social function at a church is something that she must avoid in the future. In that instance, she allowed her own anti-religion bias to override an objective assessment of whether the non-religious activity in which Mr. Vossen had allowed the children to participate with a friend might be something they would enjoy.
Extracurricular Activities
126It is differences between the parties about which extracurricular activities the children should participate in that fueled their most vigorous disputes, which covered everything from the nature of an activity to how they communicated, or did not, about those activities. As a result, the children lost opportunities that should have been made readily available to them by cooperating parents.
127Having considered this matter, I have concluded that the best way to ensure that each party has an opportunity to break an impasse is to alternate that responsibility between them on a yearly basis, but not one based on the calendar year.
128The activities of school-aged children are often matched to the school year. Therefore, the twelve months that define the year for the parties with respect to extracurricular activities will begin on July 1 and end the following June 30, annually.
129A year defined in such a manner will give each party, in alternating years, the right to make the ultimate decision about the children’s participation in extracurricular activities that will occur during the summer school vacation and the autumn, winter and spring school terms.
130Of course, if they cooperate and agree on the children’s extracurricular activities, there will be no need for either to exercise final decision-making responsibility. However, in those instances where they cannot agree about which of two, or more, activities the children should participate in, the parent whose preference is rejected one year will have the opportunity to ensure that the activities that they prefer for the children will be selected the next – if the children have not changed their minds about what they want to do try by then!
Issue #2: Amount by Which Mr. Vossen Has Overpaid Child Support
131The evidence shows that Mr. Vossen overpaid child support during the period between November 2022 and November 2025.
132Ms. Gray testified that, while Mr. Vossen regularly paid her child support each month from the outset of their separation, he never explained to her how he determined the amount that he was paying. Instead of asking, she simply accepted what he sent. Ultimately wanting clarity on the issue, in July 2025, mere months before trial, Ms. Gray brought a motion for child support.
133On July 25, 2025, Justice Tobin set each party’s monthly child support payment for the three children due to the parties sharing parenting equally, and the set-off amount payable by Mr. Vossen monthly as of July 1, 2025.
134In making his order of July 25, 2025, Justice Tobin held that Mr. Vossen’s income did not include his RRSP withdrawals used to pay his legal fees for this matter. When, at the opening of trial, Mr. Skuce raised the issue of wanting to re-visit Justice Tobin’s ruling on this issue, I had to concede that, because Justice Tobin’s order was made on an interim basis, the issue remained open for re-examination at trial.
135Consequently, the dispute between the parties on this issue is three-fold.
136Firstly, they disagree on the amount by which Mr. Gray overpaid child support. The issue underlying that dispute is whether Mr. Vossen should be permitted to exclude from his Line 15000 income in the years 2023 and 2024 the amounts that he withdrew from his RRSP to pay his legal fees. According to Mr. Vossen, his 2023 income was $121,855, which included RRSP income of $32,900.71, which was used to pay legal bills connected to the separation. The money came from an RRSP that he had with IBEW. His 2024 income was $99,021, which included RRSP income of $15,028.83, utilized for the same purpose as the year before and taken from the same source.
137If Mr. Vossen is permitted to exclude the RRSP amounts, the evidence shows that he overpaid child support between November 2022 and November 2025 by $15,437. If he is not permitted to exclude the RRSP amounts, the evidence shows that he overpaid child support in that period by $6,413.
138Secondly, they disagree about how to calculate child support for previous years where the parties’ incomes are now known, as opposed to what they estimated them to be, prospectively, at the time.
139Lastly, they disagree whether Ms. Gray should be required to reimburse Mr. Vossen for his overpayments, whatever the amount may be.
Analysis
Exclusion of RRSP income
140In J.M.M. v. C.R.M., 2025 ONSC 3067, [2025] O.J. No. 2316, Justice D. Chappel reviewed the issue of RRSP withdrawals being included or not, in income. She wrote:
599 With respect to RRSP withdrawals and non-recurring pension amounts such as the father's payout in 2020, these must be reported as income on the T1 Income Tax Return, and therefore they presumptively form part of a spouse's income for the purposes of the Guidelines, subject to sections 17 to 20 of the Guidelines (Fraser, at para. 97; Ludmer v. Ludmer, 2014 ONCA 827 (C.A.), at para. 22) However, section 17 of the Guidelines grants the court the flexibility to exclude such non-recurring amounts from a party's income in appropriate circumstances. The unique facts of every case must be carefully considered to determine whether or not the inclusion of these amounts would generate the fairest determination of the party's income for Guidelines purposes (Fraser; Ludmer, at para. 23; Burzminski, at para. 11; McKenzie v. Perestrelo, 2014 BCCA 161 (C.A.), at para. 82).
600 Given that RRSP withdrawals and non-recurring pension payouts are presumptively included in the income calculation for support purposes, the onus is on the party seeking to exclude them from their income pursuant to section 17(1) of the Guidelines to satisfy the court that it is appropriate to do so (Fraser, at paras. 97-99; Burzminski, at para. 82; McKenzie, at para. 82). In considering whether to fully include the amounts in income, the court must keep in mind that the object is to arrive at income levels that fairly reflect the financial capacities of the spouses for support purposes (Ludmer, at para. 25)…. The reason for the RRSP withdrawal is an important factor in determining whether it should be included in income… In Ludmer, the court upheld the trial judge's decision to exclude RRSP withdrawals from the parties' respective incomes on the basis that they were non-repeating encroachments on capital. Similarly, in Warsh v. Warsh, 2012 ONSC 6903 (S.C.J.), the court did not include non-recurring RRSP withdrawals in a payor spouse's income for spousal support purposes on the basis that the draw-down on the RRSP funds was not sustainable. The need for RRSP withdrawals to fund Family Law litigation between the parties is also a factor that the courts have considered in deciding to back out RRSP proceeds from income for support purposes (Ludmer; M.(J.C.) v. M. (K.C.), 2016 ONCJ 475 (O.C.J.); Zigiris v. Foustanellas, 2016 ONSC 7528 (S.C.J.); McKenzie, at para. 86; Swirsky v. West, 2020 ONSC 1213 (S.C.J.), at para. 400). (Bolding added)
141As noted, this issue was before Justice Tobin in July 2025 as part of a motion dealing with interim support. On that motion both counsel filed briefs addressing the issue of the inclusion or exclusion of RRSP income from income for support purposes. Based on this, I conclude that the issue was fully canvassed with Justice Tobin.
142In his affidavit filed for that motion, Mr. Vossen deposed that he had used his RRSP funds “for the purpose of funding this costly litigation.” Ms. Gray responded, not by challenging his claim, but by indicating that she, too, had incurred legal expenses. She also claimed that Mr. Vossen had required access to his RRSP income because he had “significantly and voluntarily reduced his employment income following our separation.”
143Mr. Skuce relied on three cases6 in which the court refused a support payor’s request to exclude RRSP income from income for support purposes.
144In Boyer v. Brown, the support payor had given no notice of his request to exclude the RRSP income for calculating child support, nor did he provide any evidence about his request. Mr. Vossen had made clear his intention to make that request and, in fact, succeeded on the motion before Justice Tobin.
145In both Richard v. Holmes and Tone v. Tone, the court held that, without the support payor producing specific evidence to support a claim that RRSP funds had been used to pay legal bills, there was no evidence to corroborate their claims that they paid legal accounts with the RRSP withdrawals. In Tone v. Tone, the trial judge also appeared to have exercised her discretion to not allow the deductions of RRSP income from income for support purposes partially to penalize the support payor for his failure to have complied with a number of court orders, including several for the payment of costs. That factor is missing in this case.
146However, as to Mr. Vossen’s failure to produce documents proving that he paid legal fees with the RRSP withdrawal I note that, in other cases not involving the payment of legal fees, deductions have been allowed in the absence of documentary evidence supporting the payor’s claim that the money was used to pay necessary expenses. One such case - M.(J.C.) v. M. (K.C.), 2016 ONCJ 475 - was cited by Justice Chappel in the excerpt quoted from J.M.M. v. C.R.M , supra. In that case, the funds were said to have been used to pay for a repair to a broken pipe.
147I also note that Mr. Skuce did not question Mr. Vossen about this issue or challenge his lack of documentation establishing the amounts that he had paid for legal fees when he could have done so and, perhaps, caught Mr. Vossen off-guard if he was being untruthful, especially since he had indicated at the outset of trial that he wanted to re-visit Justice Tobin’s ruling.
148Had he done so, Mr. Vossen might also have produced the documentation to support his claim. That he did not do so when providing his evidence in chief might have been a reflection of the fact that, having already had a ruling in his favour on this issue from Justice Tobin, he or his counsel could have concluded that the issue would again merely be the subject of submissions.
149Apart from that, the real issue, as noted by Justice Chappel, and the Court of Appeal in Ludmer, supra, “is to arrive at income levels that fairly reflect the financial capacities of the spouses for support purposes.”
150Mr. Vossen only withdrew from RRSP once per year in two consecutive years while this litigation was ongoing. In Ludmer, the fact that the parties were engaged in high conflict litigation, leading to large legal bills, played a role in the court allowing the RRSP withdrawals to be excluded from income for child support purposes. There can be no doubt that family litigation is growing increasingly expensive. In this case, the parties were “dug in” on the remaining issues litigated and seemed intent on having the court rule on them, regardless of what it might cost them personally. To that extent, this case, too, was high conflict. I fully expect that, once this judgment is released, I will see Bills of Costs that are not inconsequential for these people of average means.
151In my view, to saddle Mr. Vossen with the extra income that he swore, without challenge, was used to pay some legal bills connected with this litigation, would not be setting for those two years an income level that “fairly reflected” his financial capacity to pay support.
152Accordingly, I agree with Justice Tobin’s conclusion that Mr. Vossen’s RRSP withdrawals for 2023 and 2024 need not be included in his income for child support purposes.
Calculating Arrears for Prior Years
153The dispute between the parties over this issue is easily resolved. It was addressed by the Court of Appeal in Vanos v. Vanos, 2010 ONCA 876, [2010] O.J. No. 5539, at paragraphs 13 to 16, where the Court of Appeal wrote:
13 In our view, where the amount of child support that should have been paid in a prior year is under consideration, the payor's actual income for that year is the amount that should be used to calculate support for the prior period, so long as the payor's actual income for the prior period is known.
14 When calculating prospective child support, income from the previous year is used to calculate future support, essentially as a matter of convenience, because actual income for the upcoming year is incapable of exact determination. However, where, as here, the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid.
15 Our conclusion in this regard is rooted in common sense - but also in s. 2(3) of the Child Support Guidelines, SOR/97-175, which states"[w]here, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used."
16 Further, we agree with the following comments of Baltman J. in Desjardins v. Bart, 2006 33701 (ON S.C.) at para. 17:
Although the normal practice, based on convenience, is to address child support going forward based on the previous year's income, once the court is intervening and looking backwards at a particular period, it makes sense to adjust child support retroactively for the relevant period, which in this case is 2004.
Should Ms. Gray Be Required to Return Mr. Vossen’s Overpaid Child Support?
154While conceding that Mr. Vossen overpaid child support between November 2022 and November 2025, Ms. Gray balked at the suggestion that she should reimburse him for the overpayments. Her rationale was that she cannot pay him back because the money has been spent. When it was suggested to her that the money could be paid out of the funds held in trust arising from the sale of the jointly owned family residence, Ms. Gray claimed that to allow such a mechanism to be used to reimburse Mr. Vossen would be akin to holding her accountable for his errors in calculating what he felt in the past he was required to pay for child support.
155Ms. Gray’s arguments lack merit. She is required to return Mr. Vossen’s overpaid child support.
A Subsidiary Issue About Child Support
156One of the issues that the parties agreed needed to be addressed was the issue of the division of the Canada Child Benefit in circumstances where the parties are sharing parenting of the children on an equal basis and using s. 9 of the Child Support Guidelines to determine the child support obligations of each.
157I was advised by Ms. Camarra that, in practice, the Government of Canada will not divide the Canada Child Benefit if there is only one person who pays support to the other each month, as is usually the case unless the parties earn the same amount. In most s. 9 cases, the parties will include a statement of each party’s support obligation, with the higher income party paying the set-off amount to the other party.
158As can be seen in a number of decisions in the Tax Court of Canada7 and, in one case, the Federal Court of Appeal,8 the practice of the Government of Canada in such cases is exactly as it was told to me by Ms. Camarra.
159The solution to the problem was spelled out in Paragraph 8 of the decision in Ochitwa v. Canada: “Both parents are ordered to pay support.”
160No set off is referred to in my order. Indeed, if each parent pays the support required of them one day apart and does so by means of an electronic funds transfer, it appears that the Government is unlikely to successfully deny the parties a division of the Canada Child Benefit.
Issue #3: Was Mr. Vossen Unjustly Enriched by Ms. Gray’s Efforts During Their Relationship??
161As to this issue, in her application Ms. Gray sought “an order that the parties entered into a joint family venture in relation to the jointly owned family home, all Registered Retirement Savings Plans, and all assets accumulated by the family during their period of cohabitation and a reasonable sharing of the value of those assets.”
162At the end of the trial, Ms. Gray quantified the amount that she is seeking. She seeks an order that would provide each of the parties with 50% of the net proceeds of sale of the parties’ jointly owned residence in St. Thomas, plus $60,000.00 of Mr. Vossen’s total RRSP savings.
163Mr. Vossen, on the other hand, pleaded for an order that would provide each party with 50% of the net proceeds of sale of the parties’ jointly owned residence in St. Thomas after deducting therefrom the amount that he contributed as a deposit toward the purchase price of the St. Thomas residence. That deposit consisted of the proceeds of sale of his former residence in London, in which the parties were residing, together with their two eldest children, when it was sold in 2021.
Joint Family Venture Defined
164The “joint family venture” was defined by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269. It is not a stand-alone claim. It is, instead, a component of some claims for unjust enrichment. A joint family venture is a description of how some unmarried couples might have ordered their affairs while together. It must be factually established by a party seeking to be compensated upon the breakdown of the relationship. The compensation consists of either an interest in real property or a share of the value of some or all of the parties’ assets.
165At paragraph 60 of the Supreme Court’s judgment in Kerr v. Baranow, Justice Crowell described the joint family venture, and its effect, if found to exist, as follows:
60 At least one other basis for an unjust enrichment claim is easy to identify. It consists of cases in which the contributions of both parties over time have resulted in an accumulation of wealth. The unjust enrichment occurs following the breakdown of their relationship when one party retains a disproportionate share of the assets which are the product of their joint efforts. The required link between the contributions and a specific property may not exist, making it inappropriate to confer a proprietary remedy. However, there may clearly be a link between the joint efforts of the parties and the accumulation of wealth; in other words, a link between the "value received" and the "value surviving." Thus, where there is a relationship that can be described as a "joint family venture", and the joint efforts of the parties are linked to the accumulation of wealth, the unjust enrichment should be thought of as leaving one party with a disproportionate share of the jointly earned assets.
Unjust Enrichment
166The correct approach to when it is appropriate to consider whether or not a joint family venture has been established was addressed by the Ontario Court of Appeal in Reiter v. Hollub, [2017] O.J. No. 1097 at paragraph 26, where the Court, in addressing how the trial Judge approached the determination of a joint family venture in that case, wrote that “it would have been preferable to first establish whether there was any unjust enrichment before considering the possibility of a joint family venture. The joint family venture inquiry concerns remedy.”
167Accordingly, I begin with an analysis of whether Mr. Vossen has been unjustly enriched by the parties’ relationship. The Court of Appeal set out the process for such an analysis in Reiter v. Hollub as follows:
17 The test for unjust enrichment is well-settled. To establish unjust enrichment, the person advancing the claim must prove three things:
An enrichment of or benefit to the defendant;
A corresponding deprivation of the plaintiff; and
The absence of a juristic reason for the enrichment.
18 There are two steps to identifying whether there is a juristic reason for the responding party to retain the benefit incurred. First, the court must consider whether the case falls within a pre-existing category of juristic reason, including a contract, a disposition of law, donative intent, and other valid common law, equitable or statutory obligations: Kerr, at para. 43. If a case falls outside one of these established categories, the reasonable expectations of the parties and public policy considerations become relevant in assessing whether recovery should be denied: Kerr, at para. 44.
19 In Kerr v. Baranow, at para. 46, the Supreme Court outlined two possible remedies where unjust enrichment is established -- a monetary award or a proprietary award. The court counseled, at para. 47, that the first remedy to consider is always the monetary award and that, in most cases, a monetary award is sufficient to remedy the unjust enrichment….9
21 The court held that there are two different approaches to valuation for a monetary award: Kerr, at para. 55. First, a monetary award may be based on a quantum meruit, value received or fee-for-services basis. Second, a monetary award may be based on a value survived basis. This is where the joint family venture analysis becomes relevant.
22 To receive a monetary award on a value survived basis, the claimant must show that there was a joint family venture and that there was a link between his or her contributions to the joint family venture and the accumulation of assets and/or wealth: Kerr, at para. 100. Whether there is a joint family venture is a question of fact to be assessed in light of all of the relevant circumstances, including the four factors noted above -- mutual effort, economic integration, actual intent and priority of the family: Kerr, at para. 100.
23 Justice Cromwell was careful to note that cohabiting couples are not a homogenous group: Kerr, at para. 88. The analysis must therefore take into account the particular circumstances of each relationship. The emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court's view of how they ought to have done so: Kerr, at para. 88.
24 While the four factors identified above are helpful to determine whether the parties were engaged in a joint family venture, there is no closed list of relevant factors: Kerr, at para. 89. The factors Cromwell J. suggested were not a checklist of conditions, but a useful approach to a global analysis of the evidence and examples of relevant factors that a court may take into account: Kerr, at para. 89.
Facts Relied on By Ms. Gray in Support of a Claim for Unjust Enrichment
The Parties’ Initial Place of Residence and the Births of Two of the Children
168Apart from taking three periods of maternity leave, Ms. Gray worked at Canada Life throughout the parties’ cohabitation.
169According to Ms. Gray, after she moved into Mr. Vossen’s house in London, she worked to improve its appearance. She did some landscaping, which she described as “removing some vines and planting some hostas,” and generally “freshening the look” of the residence. That said, she acknowledged that, apart from “updating” the bathroom, she did nothing significant inside the residence other than setting it up as a family home. No evidence was provided about who paid for the bathroom “update.”
170The parties’ first child was born in 2017. Ms. Gray took a twelve-month maternity leave. After Ms. Gray returned to work, the parties divided the cost of daycare, with each paying a portion.
171Their second child was born in 2020, just before the onset of Covid. Both parties were home for a period with this child because of the shutdowns of work. Ms. Gray again received Employment Insurance maternity benefits for twelve months but took an extended eighteen -month maternity leave from work.
172In August 2021, the parties moved from London to St. Thomas because the house in London did not have an adequate number of above-grade bedrooms to accommodate them and their two children. Their then-youngest child required her own bedroom. The new house in St. Thomas was larger, with four bedrooms, and had a bigger yard.
173As the parties prepared for the move to the new residence, Mr. Vossen painted the downstairs and paid for the main floor to be painted by a third party who Ms. Gray had hired. Ms. Gray also rented an on-site storage unit into which the parties’ and children’s non-essential effects were placed pending the move. She staged the residence for sale and hired and paid the movers, although Mr. Vossen and a friend, with the assistance of Ms. Gray, also moved several items between the residences. Once the parties’ furnishings and other items were in St. Thomas, Ms. Gray began to set up the new residence because Mr. Vossen continued his work as an electrician.
174After moving to St. Thomas, the parties had a third child, who was born in 2022, two months before they separated. Ms. Gray was on a maternity leave when the separation occurred.
Financing for and Title to, the St. Thomas Residence
175The purchase of the St. Thomas property closed on August 6, 2021, and the sale of the London residence closed on August 21, 2021.
176The St. Thomas residence was initially to be obtained in only Mr. Vossen’s name. According to his evidence, however, when he and Ms. Gray went to the bank to discuss financing and he told the staff person that he had purchased the residence, Ms. Gray became upset. She accused him, in a private conversation, of not wanting to commit to being in a relationship with her. He testified that this made him feel bad and, as a result, he agreed to add Ms. Gray to the title. Of course, this also meant that she became subject to the mortgage. Inconsistently, however, Mr. Vossen also testified that there had been a plan for the two of them to own the St. Thomas property jointly. The contradiction was not explained.
177The St. Thomas residence was purchased for $682,000.00. Bridge financing was secured to cover the approximately two-week period when Mr. Vossen owned two residences – one in London and an undivided half interest in one in St. Thomas.
178The London residence sold for $435,000.00. On the date of closing, it was subject to a mortgage in the amount of $96,781.11, which was paid from the proceeds of sale.
179After all fees and expenses of sale, including payment of the bridge loan, Mr. Vossen received $101,637.43. However, he used those funds to reduce the mortgage required to purchase the property in St. Thomas. In the result, with the purchase of the St. Thomas residence, Mr. Vossen’s mortgage indebtedness increased by approximately $273,000 to approximately $370,000.00. Of course, Ms. Gray’s real estate indebtedness also increased - from zero to approximately $370,000.00. She, however, had put no money into the transaction. All that had been paid by either party from personal resources into the purchase transaction had come from the sale of Mr. Vossen’s property in London.
Analysis – Unjust Enrichment
180Was Mr. Vossen enriched during, or did he receive a benefit from, the parties’ relationship?
181This aspect of an unjust enrichment claim was described by Justice Cromwell in Kerr v. Baranow as follows:
38 For the first requirement - enrichment - the plaintiff must show that he or she gave something to the defendant which the defendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant and which can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible. It may be positive or negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake. (internal citations omitted)
182The only two things that could have been given by Ms. Gray to Mr. Vossen that would have enriched or benefitted him, in my view, are the efforts that she expended in connection with his first residence in London, and the child care that she provided while she was on maternity leave after the births of their eldest two children and for a period of five months between the birth of their third child and their date of separation.
183As to Ms. Gray’s efforts in connection with the London residence, her evidence was rather thin about what it was she did. She testified to having done some landscaping and “freshening up” of the residence and making it more of a “family home.” Her landscaping efforts were limited. I find that, minimal landscaping efforts are insufficient to be said to have “enriched” or benefitted Mr. Vossen, especially since he had resided in the house for six years and had not, apparently, undertaken those activities on his own. Additionally, if Ms. Gray was going to claim that her landscaping efforts increased the value of Mr. Vossen’s home, she ought to have adduced evidence to that effect. The onus was on her to establish an enrichment of or benefit to Mr. Vossen.
184As for her efforts inside the house, it seems that she did nothing more than anyone moving into a new residence might do to make themselves comfortable there.
185As to only this aspect of Ms. Gray’s claim that her efforts enriched or benefited Mr. Vossen, I adopt the following comment made by Justice Audet at Paragraph 63 of her judgment in Stever v. Lewis, [2026] ONSC 37:
63 The above falls very short of demonstrating the kind of benefit and corresponding deprivation necessary to establish unjust enrichment. The party claiming that there has been unjust enrichment carries the burden of establishing that they gave something to the other party which that party received and retained, to their detriment. The [claimant] has not met her onus in that regard, and as a result her claim for unjust enrichment must fail.
186I next consider whether Ms. Gray’s efforts in providing care for each of the children in the periods after their births, while on maternity leaves, could enrich or benefit Mr. Vossen.
187This issue was addressed specifically in J.C. v. T.B., [2025] N.B.J. No. 144 (N.B.K.B. – Family Division), in which Justice C.M. D’Entrmont wrote:
145 The mother's argument is that because she took two maternity leaves to care for the children, the father was enriched as he was able to continue working and contribute to his RRSP and purchase cryptocurrency.
146 For the first requirement - enrichment - the mother must show that she gave something to the father, which the father received and retained. There must be a tangible benefit. Such benefit to the father would spare him an expense that he would have to undertake. I recognize that with the mother taking two maternity leaves to care for the young children, this spared the expense of paying for childcare for the children for approximately 30 months, as such the father was enriched during the maternity leave as he was spared from paying childcare expenses.
188This finding lends support to the observation by Justice M.A. Fraser in Cameron v. Vincent, [2024] O.J. No. 5277 at paragraph 71(g) that “some examples of benefits received include… domestic services.”
189I find that, before the parties finally separated in November 2022, Mr. Vossen was enriched by Ms. Gray providing childcare for the children during the periods of her maternity leaves. He did not have to pay for childcare during those periods. When working, he was able to contribute to his RRSP.
Was Ms. Gray in some way deprived of something because of her efforts which benefited Mr. Vossen?
190Justice Cromwell discussed this aspect of such a claim in Kerr v. Baranow, as follows:
39 Turning to the second element - a corresponding deprivation - the plaintiff's loss is material only if the defendant has gained a benefit or been enriched... That is why the second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered….
42 … A spouse or domestic partner generally has no duty, at common law, equity, or by statute, to perform work or services for the other. It follows, on a straightforward economic approach, that there is no reason to distinguish domestic services from other contributions (Peter, at pp. 991 and 993; Sorochan, at p. 46). They constitute an enrichment because such services are of great value to the family and to the other spouse; any other conclusion devalues contributions, mostly by women, to the family economy (Peter, at p. 993). The unpaid provision of services (including domestic services) or labour may also constitute a deprivation because the full-time devotion of one's labour and earnings without compensation may readily be viewed as such. The Court rejected the view that such services could not found an unjust enrichment claim because they are performed out of "natural love and affection" (Peter, at pp. 989-95, per McLachlin J., and pp. 1012-16, per Cory J.).
191As Justice Fraser wrote in Cameron v. Vincent, at paragraphs 73 and 74, about paragraph 39 of Kerr v. Baranow:
73 The claimant's loss is only material if the respondent has gained a benefit or has been enriched: Kerr at para. 39. The claimant must establish not only that the respondent has been enriched, but also that the enrichment corresponds to a deprivation which the claimant has suffered: Kerr at para. 39. There will usually be a relatively direct connection between the benefit to the respondent and the loss of the claimant, but it may not be as clear in some cases….
74 …Examples include… where one party contributes labour or time that allows the other party to focus on building another asset, developing their career or saving them costs.
192According to the evidence of Ms. Gray, the entire time that she worked at Canada Life, she held the position of customer service representative. She did some cross training at other positions but any opportunities they presented were lost due to her maternity leaves. She was never promoted despite regularly receiving “decent reviews” and always being paid any bonuses available for her position.
193She further testified, without contradiction by Mr. Vossen, that her maternity leaves meant that she could not advance at work because the only openings that came up were when she was on her maternity leaves. She said that several of her colleagues moved on to other, better jobs, while she always had to requalify for her position on returning from maternity leave.
194While Ms. Camarra submitted on behalf of Mr. Vossen that Ms. Gray never applied for any jobs at Canada Life which would have advanced her career there, she called no evidence to refute Ms. Gray’s claims that she had to requalify for her former position, to which she was returning, after each maternity leave, and that there were no opportunities available to her when she was on maternity leave.
195According to the evidence at trial, Ms. Gray’s incomes over the periods when she was giving birth to the parties’ children and taking maternity leaves, were as follows:
2016– $47,300.54
2017– $36,725.39 [birth of first child]
2018– $33,699.20 [maternity leave for large part of the year; EI income: $23,088]
2019– $49,197
2020– $30,901 [birth of second child; income mostly from EI; no Covid benefits]
2021 – $24,917 [paid maternity leave for part of the year; balance unpaid: 18 months’ leave]
2022 – $37,778 [third child born; on STD at 80% pay for 3 months due to injury]
196As can be seen, Ms. Gray was paid less during the years that she was giving birth to and rearing children while on maternity leave. Moreover, she testified that, while she was a participant in a pension plan at Canada Life, she made no contributions while on maternity leaves. This is in contrast to Mr. Vossen, who continued to work during Ms. Gray’s maternity leaves, Covid lockdowns excepted, and who continued to contribute to his RRSPs during these periods.
197Based on these facts, I find that Ms. Gray did suffer deprivations during the periods that she was on maternity leave, in that her income was reduced and she could not or did not contribute to her pension plan during those periods.
Was there a juristic reason for Mr. Vossen to retain the benefits he gained at the expense of Ms. Gray?
198Justice Cromwell addressed this issue in Kerr v. Baranow as follows:
40 The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason. To put it simply, this means that there is no reason in law or justice for the defendant's retention of the benefit conferred by the plaintiff, making its retention "unjust" in the circumstances of the case:…
42 A critical early question in domestic claims was whether the provision of domestic services could support a claim for unjust enrichment. After some doubts, the matter was conclusively resolved in Peter, where the Court held that they could….10
43 In Garland, the Court set out a two-step analysis for the absence of juristic reason… The first step of the juristic reason analysis applies the established categories of juristic reasons; in their absence, the second step permits consideration of the reasonable expectations of the parties and public policy considerations to assess whether recovery should be denied:
First, the plaintiff must show that no juristic reason from an established category exists to deny recovery... If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case under the juristic reason component of the analysis.
The prima facie case is rebuttable, however, where the defendant can show that there is another reason to deny recovery. As a result, there is a de facto burden of proof placed on the defendant to show the reason why the enrichment should be retained. This stage of the analysis thus provides for a category of residual defence in which courts can look to all of the circumstances of the transaction in order to determine whether there is another reason to deny recovery.
As part of the defendant's attempt to rebut, courts should have regard to two factors: the reasonable expectations of the parties, and public policy considerations.
199In this case, Mr. Skuce referred to the two-step process of Kerr. v. Baranow. He noted the absence of any of the reasons contained within the first step “established category,” such as “a contract between the parties, a disposition of law, or a donative intent.”
200As to the second step, he acknowledged that the parties did not marry, and argued that while “their conscious decision not to marry may be an indication of their decision to opt out of the net family property regime provided for in the Family Law Act, it cannot on its own, be equated to a conscious decision to opt out of equitable remedies to which they might otherwise be entitled.”11 Consequently, he wrote, there is no juristic reason to deny recovery in this case.
201While Ms. Camarra discussed the concept of juristic reason, she did not specifically address whether, in this case, one existed for her client to retain whatever benefits he derived from the deprivations of Ms. Gray through her care of the children and loss of income while on maternity leave.
202Regardless, I find that there is no juristic reason Mr. Vossen should be entitled to retain that by which he was enriched by the efforts of Ms. Gray, on either the basis of the “first step” or the “second step” described by Justice Cromwell in Kerr v. Baranow.
Conclusion Regarding Unjust Enrichment of Mr. Vossen
203In the result, I find that Mr. Vossen was unjustly enriched during:
a) the entirety of the periods when Ms. Gray was on maternity leave after the births of the parties’ first two children; and
b) the five months between the birth of their third child and their final separation, after which Mr. Vossen became responsible for the payment of child support,
but not including the three (3) months when, according to Ms. Gray, Mr. Vossen was unable to work and was home full time during Covid.
To what remedy is Ms. Gray entitled as a result of Mr. Vossen having been unjustly enriched?
204As the Supreme Court wrote in Kerr v. Baranow:
46 Remedies for unjust enrichment are restitutionary in nature; that is, the object of the remedy is to require the defendant to repay or reverse the unjustified enrichment. A successful claim for unjust enrichment may attract either a "personal restitutionary award" or a "restitutionary proprietary award". In other words, the plaintiff may be entitled to a monetary or a proprietary remedy.
205In this case, Ms. Gray is not seeking a proprietary remedy. She wants financial compensation based on what she alleges to be the overall increase in the couple’s wealth during the period of what she alleges was their joint family venture. This claim is based on what is written in paragraphs 60 of the decision in Kerr v. Baranow, supra, and the following paragraphs of that decision:
80 Where the unjust enrichment is best characterized as an unjust retention of a disproportionate share of assets accumulated during the course of what McLachlin J. referred to in Peter (at p. 1001) as a "joint family venture" to which both partners have contributed, the monetary remedy should reflect that fact.
81 In such cases, the basis of the unjust enrichment is the retention of an inappropriately disproportionate amount of wealth by one party when the parties have been engaged in a joint family venture and there is a clear link between the claimant's contributions to the joint venture and the accumulation of wealth. Irrespective of the status of legal title to particular assets, the parties in those circumstances are realistically viewed as "creating wealth in a common enterprise that will assist in sustaining their relationship, their well-being and their family life." The wealth created during the period of cohabitation will be treated as the fruit of their domestic and financial relationship, though not necessarily by the parties in equal measure. Since the spouses are domestic and financial partners, there is no need for "duelling quantum meruits". In such cases, the unjust enrichment is understood to arise because the party who leaves the relationship with a disproportionate share of the wealth is denying to the claimant a reasonable share of the wealth accumulated in the course of the relationship through their joint efforts. The monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the claimant to the accumulation of the wealth.
Did the Parties participate in a Joint Family Venture?
206The Supreme Court discussed this issue in Kerr v. Baranow, holding that, before the monetary remedies that can flow from a finding that parties participated in a joint family venture, “it is first necessary to identify whether the parties have, in fact, been engaged in a joint family venture.” (at para.87)
207The following key principles relating to the existence, or not, of a joint family venture were set out at paragraph 88:
a) “the analysis must take into account the particular circumstances of each particular relationship;”
b) “there can be no presumption of a joint family venture;” and
c) “a joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence. The emphasis should be on how the parties actually lived their lives, not on their ex post facto assertions or the court's view of how they ought to have done so.”
Based on these key principles, the Supreme Court suggested that any analysis of whether or not a joint family venture existed may be helped by considering the evidence under the following four headings: mutual effort, economic integration, actual intent, and priority of the family.
Mutual Effort
208The Supreme Court expanded on what it meant by the term “mutual effort” in paragraphs 90 and 91, writing:
90 One set of factors concerns whether the parties worked collaboratively towards common goals. Indicators such as the pooling of effort and teamwork, the decision to have and raise children together, and the length of the relationship may all point towards the extent, if any, to which the parties have formed a true partnership and jointly worked towards important mutual goals.
91 Joint contributions, or contributions to a common pool, may provide evidence of joint effort. Pooling of efforts and resources, whether capital or income, has also been noted in the appellate case law. The use of parties' funds entirely for family purposes may be indicative of the pooling of resources. The parties may also be said to be pooling their resources where one spouse takes on all, or a greater proportion, of the domestic labour, freeing the other spouse from those responsibilities, and enabling him or her to pursue activities in the paid workforce.
209In this case, the evidence as to the parties’ formation of a “true partnership” is somewhat conflicting. While it is clear that the parties agreed early in their relationship that they wanted to have children, which they did, on three occasions, including during a period when their relationship was less than ideal, as it was in the year after the move from London to St. Thomas, when they were under financial stress, it is also clear that their relationship was not foundationally sound.
210On the other hand, I also advert to Ms. Gray’s admission that she frequently told Mr. Vossen that if he did not seek counselling for his anger, their relationship would be over. One cannot be a committed team member while threatening to disband the team. However, while Ms. Gray’s statements suggest that she was not so committed to the relationship, she remained, and Mr. Vossen sought the counselling.
211That noted, according to the uncontradicted evidence of Mr. Vossen, on the day that the purchase of their St. Thomas residence closed in August 2021, Ms. Gray again told him that she was leaving him12 before walking out of the residence.
212While Ms. Gray’s repeated declarations that she was terminating the relationship seemed to be more tactical than sincere, her declaration to that effect on this occasion left Mr. Vossen feeling “depressed.” This suggests to me that he wanted the relationship to continue, despite Ms. Gray’s declaration. They had, after all, been together since 2014, a period of seven years, when this declaration was made.
213Despite that, based on these factors, it is difficult to discern what were the “common goals” or “important mutual goals” toward which the parties were working.
214In reaching this conclusion, I also disagree with Mr. Skuce’s submission that the parties “worked together to improve the condition of the home both on the inside and on the outside.” I have already discussed this issue and drawn my conclusions about Ms. Gray’s efforts at the London residence.13
Economic Integration
215As to this factor, the Supreme Court wrote:
92 Another group of factors, related to those in the first group, concerns the degree of economic interdependence and integration that characterized the parties' relationship. The more extensive the integration of the couple's finances, economic interests, and economic well-being, the more likely it is that they should be considered as having been engaged in a joint family venture. For example, the existence of a joint bank account that was used as a "common purse", as well as the fact that the family farm was operated by the family unit, were key factors in Dickson J.'s analysis in Rathwell. The sharing of expenses and the amassing of a common pool of savings may also be relevant considerations.
93 The parties' conduct may further indicate a sense of collectivity, mutuality, and prioritization of the overall welfare of the family unit over the individual interests of the individual members. These and other factors may indicate that the economic well-being and lives of the parties are largely integrated.
216The parties did not pool their resources. While they cohabited in Mr. Vossen’s residence in London, he paid the utility bills. Early on, the parties shared other costs. Ms. Gray paid Mr. Vossen $750.00 per month for an undefined period, but she eventually stopped doing so.
217It is clear that they did not maintain a joint bank account or savings, other than one account that was required because their mortgage in St. Thomas was in their joint names. While their efforts at cost-sharing were not always successful, mainly because Ms. Gray could not contribute her share during periods when she was on maternity leaves, Mr. Vossen, at least, insisted that they try to adhere to the principle of cost-sharing to the end of their relationship.
218The parties discussed splitting their expenses at the residence in St. Thomas proportionate to their incomes, which would have resulted in a 70% contribution by Mr. Vossen and a 30% contribution by Ms. Gray. She purchased household items and used the receipts to determine the share of each party, who then transferred funds electronically depending on who owed money to whom.14 Mr. Vossen never verified the figures and said that Ms. Gray would simply tell him the amount that was owed by each party to the other.
219However, that arrangement became problematic when Ms. Gray was on maternity leave after the parties were residing in St. Thomas. Mr. Vossen expected her to continue paying 30% of all bills when she had a reduced income. She could not do so. In the result, he was paying part of her share and complaining about it vigorously. This issue was at the heart of many of their arguments in the months preceding their separation.
220A series of texts exchanged between the parties showed them arguing over money issues in June 2022. In them, Mr. Vossen tells Ms. Gray that she has been taking financial advantage of him for months. Examples of his statements to her, which speak to the lack of economic integration, include:
a) I’ve been taken advantage of financially too long;
b) you’ve been playing me for months;
c) I get browbeaten into paying everything;
d) you don’t contribute the 30% you promised plus you take as much from me as you can;
e) paying for you for months has caused me financial harm.
221The evidence disclosed that the parties were constantly passing funds back and forth between themselves to cover expenses that were attributable to either the other party or to the children, 15 about whom it seems they were less likely to insist on a strict separation of financial issues.
222My conclusion that the parties did not integrate their economic resources is at direct variance with the submission of Mr. Skuce, which was that the back-and-forth flow of monies between the parties to cover household expenses was evidence of economic integration.
223To me, economic integration would not result in a reckoning of accounts between parties. It would, instead, be reflected in one party or the other paying bills without seeking contribution from the other. It would be reflected in joint accounts out of which those household expenses are paid.
224I do agree with Mr. Skuce, however, that the parties’ agreement to use the Canada Child Benefit for each of the children to fund a RESP for each can suggest some measure of economic integration – at least on that issue. However, I also note that Mr. Vossen suggested that the agreement be changed to cover other expenses as the parties’ relationship was in its dying days.
Actual Intent
225As to this factor, the Supreme Court wrote:
94 While domestic partners might not marry for a host of reasons, one of them may be the deliberate choice not to have their lives economically intertwined. Thus, in considering whether there is a joint family venture, the actual intentions of the parties must be given considerable weight. Those intentions may have been expressed by the parties or may be inferred from their conduct. The important point, however, is that the quest is for their actual intent as expressed or inferred, not for what in the court's view "reasonable" parties ought to have intended in the same circumstances. Courts must be vigilant not to impose their own views, under the guise of inferred intent, in order to reach a certain result.
95 Courts may infer from the parties' conduct that they intended to share in the wealth they jointly created. The conduct of the parties may show that they intended the domestic and professional spheres of their lives to be part of a larger, common venture. Similarly, the intention to engage in a joint family venture may be inferred where the parties accepted that their relationship was "equivalent to marriage" or where the parties held themselves out to the public as married. The stability of the relationship may be a relevant factor as may the length of cohabitation. When parties have lived together in a stable relationship for a lengthy period, it may be nearly impossible to engage in a precise weighing of the benefits conferred within the relationship.
96 The title to property may also reflect an intent to share wealth, or some portion of it, equitably. This may be the case where the parties are joint tenants of property. Even where title is registered to one of the parties, acceptance of the view that wealth will be shared may be evident from other aspects of the parties' conduct. For example, there may have been little concern with the details of title and accounting of monies spent for household expenses, renovations, taxes, insurance, and so on. Plans for property distribution on death, whether in a will or a verbal discussion, may also indicate that the parties saw one another as domestic and economic partners.
97 The parties' actual intent may also negate the existence of a joint family venture or support the conclusion that particular assets were to be held independently. Once again, it is the parties' actual intent, express or inferred from the evidence, that is the relevant consideration.
226As to this factor:
a) the parties deliberately chose not to marry. As Ms. Gray testified, they “never seriously discussed marriage because neither felt it was necessary and they were not being pressured [to do so] by family members;”
b) while the parties and the children visited with Ms. Gray’s family in North Bay before the relationship ended, there was no evidence that they either held themselves out to family members or anyone else as being either married or “equivalent to married;”
c) there was no evidence that the parties intended to share jointly in the wealth that they created, nor can I infer such an intent by their actions. The only possible exception to this is in relation to the jointly owned residence in St. Thomas. Mr. Vossen’s claim that he was, in effect, coerced to add Ms. Gray to the title to the property was undermined by his later admission to Mr. Skuce that the long-term plan was that the parties would own the property jointly;
d) I have already noted that the relationship was not entirely stable, mainly because of Mr. Vossen’s anger directed at Ms. Gray and her constant threats to walk away if he did not obtain counselling. On the other hand, the parties cohabited for approximately eight years, five of which occurred while they had children;
e) taking the title to the St. Thomas property as intended to be jointly held suggests that the parties at least intended to share in its increases in value;
f) as has been noted, the parties did maintain separate accounts throughout their relationship and accounted back and forth for expenditures for which one or the other was responsible;
g) the first Financial Statement filed by Mr. Vossen, sworn October 5, 2022, disclosed the existence of two life insurance policies. Both were term policies. There was no indication about who was the beneficiary of either policy. According to Mr. Vossen, one policy was available to him through his union (IBEW), while he purchased the other one. He testified that he obtained the policies because he wanted the children to be cared for in the future. Contrary to the evidence of Ms. Gray, who claimed that she was the beneficiary of the IBEW policy, as he was on her policy through her place of employment, he claimed that he could not recall if Ms. Gray was the beneficiary of either policy. In his Financial Statement sworn December 5, 2023, there is only one policy noted. By then, Mr. Vossen was no longer working through the IBEW. The one policy listed had his mother, Lesley Anne Vossen, in trust for the children, as the beneficiary. There was no evidence as to when she, as Trustee, was named as the beneficiary; and
h) no evidence was provided about whether either party had a will during the term of their relationship or cohabitation.
227I am unable to conclude one way or the other who was the beneficiary of Mr. Vossen’s employment-related life insurance policy. What was clear, however, was that Ms. Gray did not claim that she was the beneficiary of Mr. Vossen’s other policy. Additionally, Mr. Vossen’s IBEW RRSP and RPP statement from Canada Life covering the period between January and August 2022, located at Tab 68 of Exhibit 16B, clearly noted that his mother was the named beneficiary, and that no spouse’s name was “on file.” A statement covering the period between January 1, 2014 and January 31, 2014 for the same RRSP and RPP, before Mr. Vossen was cohabiting with Ms. Gray, located at Tab 63 of Exhibit 16B, also showed Mr. Vossen’s mother to be the beneficiary of his RRSP and RPP. This suggests that no change in beneficiary occurred between 2014 and 2022.
228On the totality of the evidence relating to this factor, I cannot conclude that Ms. Gray adduced sufficient evidence such as would lead me to find that the parties ever intended to either create wealth collectively or to share in their accumulated wealth as a couple.
Priority of the Family
229The Supreme Court addressed this factor in the following paragraph:
98 A final category of factors to consider in determining whether the parties were in fact engaged in a joint family venture is whether and to what extent they have given priority to the family in their decision making. A relevant question is whether there has been in some sense detrimental reliance on the relationship, by one or both of the parties, for the sake of the family. As Professor McCamus puts it, the question is whether the parties have been "[p]roceeding on the basis of understandings or assumptions about a shared future which may or may not be articulated" (p. 365). The focus is on contributions to the domestic and financial partnership, and particularly financial sacrifices made by the parties for the welfare [page319] of the collective or family unit. Whether the roles of the parties fall into the traditional wage earner/homemaker division, or whether both parties are employed and share domestic responsibilities, it is frequently the case that one party relies on the success and stability of the relationship for future economic security, to his or her own economic detriment. This may occur in a number of ways including: leaving the workforce for a period of time to raise children; foregoing career or educational advancement for the benefit of the family or relationship; and accepting underemployment in order to balance the financial and domestic needs of the family unit.
230The evidence in this case suggests very strongly that, in making decisions, the children were the parties’ focus, and not the family unit. Mr. Skuce submitted that the decision to move from London to St. Thomas gave priority to the family unit. I disagree, it was said to be precipitated by the need of one of their two children at the time for her own bedroom.
231Ms. Gray also produced no evidence that she detrimentally relied on the relationship for the sake of the family. She only took time away from work during her periods of maternity leave. She otherwise was employed throughout the relationship. Apart from taking her maternity leaves, she did not “leave the workforce… to raise the children or forego career or educational advancement for the benefit of the family or relationship or accept underemployment in order to balance the financial and domestic needs of the family unit.”
232Neither party produced evidence that they made financial sacrifices for the welfare of the family collective, which would include both the parties and the children.
Conclusion as to the Existence of a Joint Family Venture
233Based on my assessment of all of the evidence about the parties’ relationship. I find that they were not in a joint family venture. Accordingly, I reject Ms. Gray’s request that she be awarded a share of Mr. Vossen’s RRSP. This is not only because the parties were not participating in a joint family venture, but also because Ms. Gray did not demonstrate that her efforts at raising the children while at home on maternity leave contributed directly to the increase in Mr. Vossen’s RRSP. Had she returned to work immediately after giving birth, Mr. Vossen would still have worked and his ability to contribute to his RRSP would have remained, untethered to anything that Ms. Gray was doing.
Ms. Gray’s Remedy for Mr. Vossen’s Unjust Enrichment
234That, however, does not mean that Ms. Gray is not entitled to restitution for what I have determined to be Mr. Vossen’s unjust enrichment at her expense over the period when she was on her maternity leaves.
235As the Supreme Court wrote in Kerr v. Baranow:
31 At the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain… For recovery, something must have been given by the plaintiff and received and retained by the defendant without juristic reason...
71 The Court has often emphasized the flexibility of equitable remedies and the need to fashion remedies that respond to various situations in principled and realistic ways… Binnie J. affirmed that "the Court has ample jurisdiction to fashion appropriate relief out of the full gamut of available remedies, including appropriate financial compensation"…In doing so, he cited this statement with approval: "... the remedy that follows [once liability is established] should be the one that is most appropriate on the facts of the case rather than one derived from history or over-categorization" … Similarly, in the context of the constructive trust, McLachlin J. (as she then was) noted that "[e]quitable remedies are flexible; their award is based on what is just in all the circumstances of the case"…(internal citations omitted)
73 Thus, the remedy should mirror the flexibility inherent in the unjust enrichment principle itself, so as to allow the court to respond appropriately to the substance of the problem put before it. This means that a monetary remedy must match, as best it can, the extent of the enrichment unjustly retained by the defendant. There is no reason to think that the wide range of circumstances that may give rise to unjust enrichment claims will necessarily fall into one or the other of the two remedial options into which some have tried to force them…
79 The unjust enrichment principle is inherently flexible and, in my view, the calculation of a monetary award for a successful unjust enrichment claim should be equally flexible…
113 While Garland dealt with the payment of money, my view is that the same approach should be applied where the alleged enrichment consists of services. Provided that they confer a tangible benefit on the defendant, the services will generally constitute an enrichment and a corresponding deprivation.
236In my view, the remedy that will most return to Ms. Gray the loss she suffered by remaining home on maternity leave and caring for the children while Mr. Vossen worked is to compensate her for the childcare she provided during the entirety of her first two maternity leaves, plus the five months of her third, before the parties physically separated and Mr. Vossen began to pay child support.
Ms. Gray’s Childcare During Her Maternity Leaves
237Ms. Gray was on maternity leave for 12 months after the birth of the parties’ first child. Ms. Gray was providing that childcare at no cost to Mr. Vossen.
238I was not provided with any formation about the cost of daycare in 2017, when the parties first child was born, However, according to a 2019 report by the Financial Accountability Office of Ontario16 entitled “Child Care in Ontario: A Review of Ontario’s New Child Tax Credit and Implications for Ontario’s Labour Force,”17 the “average cost of childcare in Ontario was approximately $12,800 in 2018.”
239Because the parties’ first child was born in late 2017, I will use the 2018 childcare figures to determine compensation for Ms. Gray for this child. Thus, the compensation for Ms. Gray for providing childcare to the parties’ first child amounts to $12,800.00.
240I am allocating all of that cost to Mr. Vossen because Ms. Gray was not in the labour force to contribute to the cost of her own efforts, nor would it have made sense to assess a cost against her for the childcare that she was providing.
241When the parties’ second child was born in early 2020, Ms. Gray took a combined maternity leave and parental leave of 18 months; duration, as she was permitted to do under the Employment Standards Act, 2000, S.O. 2000. C. 41. Only the first 12 months of that leave would have been paid pursuant to the Employment Insurance Act, S.C. 1996, c. 23.
242Allowing for an increase in the cost of childcare by a combined total of the percentage increase in the cost of living18 in Canada in 2019 over 2018 (1.9%) and the percentage increase in the cost of living in Canada in 2020 over 2019 (0.7%), I have determined that the cost to Mr. Vossen of having Ms. Gray care for their second child for 18 months would have amounted to $19,702.19 However, this amount is to be reduced for the three months when Mr. Vossen was not working during Covid and was home full-time with Ms. Gray and the children. That amounts to $3,284, thereby reducing the amount of compensation for Ms. Gray during this maternity leave to $16,418.
243The parties’ third child was born in 2022, approximately five months before Ms. Gray left the family residence. As before, allowing for a combined total of the percentage increase in the cost of living in Canada in 2021 over 2020 (3.4%) and the percentage increase in the cost of living in Canada in 2022 over 2021 (6.8%), I am determining that the cost to Mr. Vossen of having Ms. Gray care for their third child for those five months20 amounts to $6,074.21
244Accordingly, I have determined that the compensatory payment required by Mr. Vossen to Ms. Gray for providing childcare for:
a) the duration of her maternity leave for the parties’ first child;
b) the duration of her maternity and parental leaves for the parties’ second child, less the three months that Mr. Vossen was not working due to Covid, and
c) the five months of her maternity leave for the parties’ third child prior to Ms. Gray leaving the jointly owned family residence,
amounts to $35,292.00.
245This amount cannot be reduced for Mr. Vossen by a notional tax deduction because monies paid to the other parent of a child for childcare are not tax deductible as “child care expenses.”22
The Effect of Mutual Benefits
246In his Answer, Mr. Vossen sought to recover from Ms. Gray’s share of the net proceeds of sale of the parties’ jointly owned residence in St. Thomas an amount equal to the amount that he contributed as the down payment to that residence, derived from the sale of his residence in London. The question is, by what mechanism did he seek its recovery?
247Because the St. Thomas residence was owned jointly, the parties would be presumptively entitled to an equal share of the net proceeds of sale. However, with the entire downpayment having been provided by Ms. Vossen from the proceeds of sale of his solely-owned London residence, it was open to him to argue that Ms. Gray held her share of the net proceeds of sale in trust for him by way of a resulting trust.23
248To succeed, he would have been able to rely on a rebuttable presumption of a gratuitous transfer by him to Ms. Gray of a half interest in the title to the St. Thomas property. However, when asked about this during Mr. Skuce’s submissions about the ownership of the St. Thomas property, Ms. Camarra stated that Mr. Vossen was not arguing the issue of gratuitous transfer. Thereafter, she made no reference to it being applicable in this case.
249That still leaves to be considered the issue of mutual benefits as a component of Ms. Gray’s unjust enrichment claim.
250The issue of mutual benefits in a case involving a claim of unjust enrichment was discussed by the Supreme Court in Kerr v. Baranow as follows:
101 As discussed earlier, the unjust enrichment analysis in domestic situations is often complicated by the fact that there has been a mutual conferral of benefits; each party in almost all cases confers benefits on the other: Parkinson, at p. 222. Of course, a claimant cannot expect both to get back something given to the defendant and retain something received from him or her: Birks, at p. 415. The unjust enrichment analysis must take account of this common sense proposition. How and where in the analysis should this be done?...
109 As I noted earlier, my view is that mutual benefit conferral can be taken into account at the juristic reason stage of the analysis, but only to the extent that it provides relevant evidence of the existence of a juristic reason for the enrichment. Otherwise, the mutual exchange of benefits should be taken into account at the defence and/or remedy stage. It is important to note that this can, and should, take place whether or not the defendant has made a formal counterclaim or pleaded set-off….
251The difficulty with quantifying Mr. Vossen’s claim is that, when the trial ended, I did not have the benefit of any submissions about this issue.
252As I have already noted, Mr. Vossen’s indebtedness on the mortgage registered against the property in St. Thomas exceeded $300,000, as did Ms. Gray’s. The difference is, however, that he had used the full proceeds of sale of his residence in London to reduce the mortgage registered against the St. Thomas property, whereas she had contributed nothing toward the purchase price.
253If I were to order that Mr. Vossen be repaid his down payment before the net proceeds of sale of the St. Thomas property are divided, given the amount that remains in trust, Ms. Gray would receive nothing from the sale of the property in St. Thomas despite being a joint owner. Her compensation for Mr. Vossen having been unjustly enriched would be eliminated.
254Recovery of his full contribution to the purchase of the St. Thomas property appears not to have been what Mr. Vossen was seeking at the end of the trial. In the draft order presented by Ms. Camarra on his behalf, it was suggested that a clause be included which would pay a priority sum of $45,871.71 to Mr. Vossen from the net proceeds of sale of the St. Thomas property, with the balance being divided between the parties equally.
255Because Ms. Camarra made no submissions about this proposal, I sought an explanation from her about this term, after trial, with notice of my inquiry also being sent to Mr. Skuce.
256Ms. Camarra responded, with a copy to Mr. Skuce. She wrote that the $45,871.71 claimed is “rooted in unjust enrichment.” She indicated that the amount claimed is equal to the amount that Ms. Gray would have owed Mr. Vossen as an equalization payment if the parties had been married, as demonstrated in a Net Family Property Statement that she filed at trial.
257I must confess that the logic of that claim escapes me. An equalization payment is based on the total value of all of each party’s assets, not just one. Moreover, it is not relief that is available to unmarried parties. (Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325)
258To be fair, however, I inferred that Ms. Camarra was suggesting that, by analogy, Ms. Gray should pay some amount to Mr. Vossen for having used all of his equity in the London property to help the parties acquire the St. Thomas property, with the mortgage being less than it would have been without the funds from the sale of the London residence.
259It cannot simply be a coincidence that the amount that Ms. Camarra put forward for payment to Mr. Vossen would be one that equals the amount that Ms. Gray would have had to pay to Mr. Vossen as an equalization payment had the parties been married and the circumstances were otherwise the same.
260Apart from Mr. Skuce’s submission, based on case law, that it was improper for Ms. Camarra to use a Net Family Property Statement to illustrate, by comparison, what a married person in Ms. Gray’s circumstances might have been required to pay by way of an equalization were I to find that the parties were involved in a joint family venture, he made no submission about how Mr. Vossen’s claim against Ms. Gray should be valued. He did not respond to Ms. Camarra’s written reply to my inquiry about the $45,871.71 that she had used in her draft order.
261Mr. Vossen was free to make a claim for unjust enrichment against Ms. Gray as pertains to some or all of the net proceeds of sale of the St. Thomas property.
262Arguably, the evidence demonstrated that Ms. Gray was enriched at the expense of Mr. Vossen by being presumptively entitled to one-half of the net proceeds of sale of their jointly owned property in St. Thomas after she contributed no money toward its purchase. However, no submissions were made about this. Nor were any submissions were made on behalf of Mr. Vossen about any of the other factors that might have demonstrated that Ms. Gray was, herself, unjustly enriched through the purchase of the St. Thomas property.
263In the result, I was provided with no submissions about how I might determine the value of Mr. Vossen’s claim against Ms. Gray, or whether I should even make an order such as that sought by Mr. Vossen in his draft.
264The one case that Ms. Camarra asked me to review during her submissions, without further comment, but which, as it turns out, appears to address this topic, was Tucker v. Hopkins, [2024] O.J. No. 4174 (S.C.J.) That case stands for the proposition that an owner, who has a sole prior interest in real property that later is owned jointly by the owner and an unmarried partner, is able to deduct from the net proceeds of sale of the property the amount of the owner’s equity at the time that joint ownership began. That is not this case. Ms. Gray never had an ownership interest in the London property. I also note that, in that case, the court found there to be a joint family venture.
265As noted, Mr. Skuce made no submissions on any of these issues because they were not specifically raised for him to respond to.
266In the result, because Mr. Vossen expressly disavowed a willingness to rely on the rebuttable presumption of a gratuitous transfer by him to Ms. Gray of a half interest in the title to the St. Thomas property, which thereby excludes quantification on the basis of a resulting trust of the full value of Mr. Vossen’s down payment in St. Thomas, and in the absence of submissions about whether Ms. Gray was otherwise unjustly enriched by receiving a 50% interest in the St. Thomas property, or the extent of any such unjust enrichment, apart from the use of a net family property statement, the use of which, in these circumstances, seems impermissible, I am left with no choice but to conclude that, on the evidence, the parties are each entitled to one-half of the remaining net proceeds of sale of the St. Thomas property.
Spousal Support
267While Ms. Gray claimed spousal support, Mr. Skuce informed me that she was not proceeding with it because of her claim for unjust enrichment.
268That concession, however, was predicated on her claim being accepted based on the theory of the parties having been involved in a joint family venture.
269While that was not the basis of my findings, I have not addressed spousal support because Ms. Gray is being compensated as a result of Mr. Vossen’s unjust enrichment.
270Additionally, as Ms. Camarra pointed out, based on the DivorceMate calculation sheets provided, child support will use up all of the funds available from Mr. Vossen for support except for some limited circumstances which do not apply in this case, an assertion not challenged by Mr. Skuce.
271Accordingly, I will be making no order for spousal support.
Order
272This Court orders as follows:
Pursuant to the Children’s Law Reform Act
Decision-Making Responsibility
- The Applicant, Allison Jane Gray (hereinafter, Allison), and the Respondent, David Anthony Vossen (hereinafter David), shall have joint decision-making responsibility for their children, Andrew Gray Vossen, born October 29, 2017, Cedar Gray Vossen, born January 26, 2020, and River Gray Vossen, born June 1, 2022 and, subject to Paragraph 2 hereof, shall make important decisions about their children's welfare together, including decisions about their children's health (including major non-emergency healthcare, as well as emergency healthcare as long as both parties can be reached immediately in the event of an emergency, failing which the party with parenting time shall make the emergency decision), education, culture, language, religion and spirituality, and significant extra-curricular activities. The process to be followed by the parties in seeking to make a joint decision is as follows:
(a) The party seeking a decision shall contact the other party, in writing, to advise the other party of the issue about which a decision is required, the time within which the decision must be made, and provide the other party with his or her position with respect to the issue and their reason for taking that position. If no position is being taken by the party seeking the decision, that party shall inform the other party of that fact when seeking the other party's input;
(b) The party receiving notice of an issue shall respond within seven (7) days, or such lesser period as the circumstances require, setting out in their response that party’s position about the issue and the reasons for taking that position;
(c) In circumstances where the decision pertains to the health or education of the child, the parties shall endeavor to consult the child's physician or teacher, as applicable, either together or individually, as the circumstances dictate, in an effort to obtain information to assist them to formulate a position with respect to the decision to be made;
(d) As time permits, the parties shall discuss the issue requiring a decision until such time as they have achieved a consensus.
- Subject to the process for the making of a decision about the children’s emergency healthcare detailed in paragraph 1(a), in the event that the parties cannot agree upon any other joint decision that needs to be made within 14 days of notice being provided under Paragraph 1(a), and only after having exhausted the process set out in Paragraph 1(a):
(a) Allison shall make the final decision about the children’s health (including major non-emergency healthcare.) She shall immediately inform David, in writing, of her decision. She shall explain why she made the decision and why she did not agree with David’s position. If she elects not to follow the advice of the physician for the child about whom the decision is being made, she shall explain to David why she did not do so;
(b) David shall make the final decision about the children’s education. He shall immediately inform Allison, in writing, of his decision. He shall explain why he made the decision and why he did not agree with Allison’s position;
(c) Allison shall make the final decision about the children’s culture, language, religion and spirituality. She shall immediately inform David, in writing, of her decision. She shall explain why she made the decision and why she did not agree with David’s position;
(d) Final decision-making responsibility about the children’s significant extra-curricular activities shall be alternated between the parties on a year-about basis, such years to run from July 1 to June 30, annually. The following applies with respect to this process:
i. Allison shall have final decision-making responsibility for years which begin (or, for the initial year, began) in an odd numbered year and end in an even-numbered year, such as 2025-2026, 2027-2028, and so on.
ii. David shall have final decision-making responsibility for years which begin in an even-numbered year and end in an odd-numbered year, such as 2026-2027, 2028-2029, and so on.
iii. Neither party shall register a child, during that party’s decision-making year, for an activity that will occur during the other party’s decision-making year. (For example: Allison shall not register a child prior to June 30, 2026 in an activity that will occur during David’s decision-making year that begins on July 1, 2026.)
iv. A party shall be entitled to register a child in activity that is going to occur in that party’s decision-making year, even if the registration period occurs during the other party’s decision-making year.(For example: Prior to July 1, 2026, David is entitled to register a child in an activity that is to begin after July 1, 2026.)
Communication
- Commencing on June 1, 2026, the parties shall communicate using the parenting application Our Family Wizard as follows:
(a) The Our Family Wizard application shall be used for all communications unless there is a time sensitive or urgent matter affecting the children, in which case the parties may text or phone one another;
(b) Replies to communications shall be prompt, and in any event, no later than 48 hours from when the question or request was sent;
(c) Communication will be strictly factual and only address parenting issues. For clarity, there will be no preamble, judgment, or opinion;
(d) All medical appointments for children will be communicated through and added to the calendar in the parenting application;
(e) Accusations or derogatory comments will not be made about the other parent; and
(f) The parties shall be responsible for their respective administrative costs of the Our Family Wizard application.
Pursuant to the Family Law Act
Child Support
- Commencing on the first day of December, and on the first day of each moth thereafter, David and Allison shall each pay child support to the other for the benefit of their three children, Andrew Gray Vossen, born October 29, 2017, Cedar Gray Vossen, born January 26, 2020, and River Gray Vossen, born June 1, 2022, pursuant to section 9 of the Child Support Guidelines. Specifically:
(a) David shall pay to Allison monthly table child support in the amount of $1,568, starting on December 1, 2025, and on the first day of each month thereafter, until changed, based on a 2025 income of $78,263; and
(b) Allison shall pay to David monthly table child support in the amount of $1,224, starting on December 1, 2025, and on the first day of each month thereafter, until changed, based on a 2025 income of $62,044.
Allison shall pay David the sum of $15,437 in retroactive child support overpaid to her by David during the period from the date of separation to and including November 2025. There shall be no further retroactive child support payable by either party. This sum shall be paid as an adjustment to the amount to be paid to each party from the remaining proceeds of sale of their jointly owned real property located at 227½ Woodworth Avenue, St. Thomas, Ontario, as specified in Paragraph 14.
Each of David and Allison shall receive credit for all amounts that they have paid to the other as child support prior to the date of this order.
The parties shall share in the special or extraordinary expenses of the children, in proportion to their respective incomes, with Allison contributing 44.2% and David contributing 55.8% toward the special or extraordinary expenses of the children.
In determining each party's contribution toward the special or extraordinary expenses of the children, the parties shall deduct any subsidies, benefits or income tax deductions or credits received for that special or extraordinary expense, before calculating each party's contribution toward that expense.
With the exception of emergency and routine medical costs, routine dental costs, or prescriptions, neither party shall be required to contribute toward the cost of any special or extraordinary expense unless such party has, in advance, consented in writing to such expense being incurred, such consent not to be unreasonably withheld. The party requesting contribution shall provide the other party with proof of the expense having been incurred, before requiring reimbursement for the expense, and reimbursement shall be made within 14 days of receiving proof of the expense having been incurred. Should a party incur a special or extraordinary expense without the consent of the other party, the party incurring the expense shall be solely responsible for any and all costs associated with that expense.
If the parties' obligation to support a child terminates, the parties shall review the child support payable for the other remaining children at that time.
Each party is entitled to one-half of the following income tax benefits/credits:
(a) Canada Child Benefit (including the Child Disability Benefit, if applicable), paid out monthly;
(b) Refundable children's GST/HST credits, paid out quarterly;
(c) Ontario Child Benefit, paid out monthly; and
(d) Ontario Trillium Benefit, paid out monthly.
The parties shall complete any documentation necessary to effect this one-half sharing of these benefits/credits.
- David shall be free to claim the Eligible Dependent Credit for Andrew each year, and Allison shall be free to claim the Eligible Dependent credit for Cedar each year. The parties shall alternate claiming the Eligible Dependent Credit for River Gray Vossen, born June 1, 2022, with Allsion claiming her in even numbered years and the David claiming her in odd numbered years. If there are only two children eligible for the Eligible Dependent Credit, each party shall each claim one child. If there is only one child eligible for the Eligible Dependent Credit, the parties shall alternate claiming that child year-over-year.
Unjust Enrichment
- David shall pay to Allison compensation for unjust enrichment in the amount of $36,933.00. This sum shall be paid as an adjustment to the amount to be paid to each party from the remaining proceeds of sale of their jointly owned real property located at 227½ Woodworth Avenue, St. Thomas, Ontario, as specified in Paragraph 14.
Proceeds of Sale of 227 ½ Woodworth Avenue, St. Thomas
- The remaining proceeds of sale of the jointly owned property located at 227 ½ Woodworth Avenue, St. Thomas, currently held in trust with Bowsher & Bowsher Law Firm, with a value of $220,674.05 as of March 7, 2023, shall be divided as follows:
(a) To Allison: 50% less $15,437, plus $35,292.00
(b) To David: 50% plus $15,437, less $35,292.00
All Other Claims
- All other claims by either party against the other are hereby dismissed.
Costs
The parties are strongly encouraged to settle the issue of costs. If they cannot, they may forward written submissions to me through the Judicial Assistant in St. Thomas by emailing St.Thomas.SCJ@ontario.ca.
The parties’ costs submissions shall not exceed five typewritten pages in Times New Roman 12-point font, with double spacing.
The parties’ costs submissions shall be accompanied by any offers to settle, whether accepted or not, together with a list of all persons who worked on the matter for whom a claim for costs is being made, their position, the amount being sought for costs in respect of that person, and a complete and clear description of the work undertaken by each person for whom a claim for costs is being made.
Each counsel shall also indicate what they have billed to their client, or intend to bill their client, for those steps in this proceeding for which they are claiming costs.
The submissions of the parties are to be served and forwarded to the Family Court Judicial Assistant at St. Thomas by no later than 15 days from the date that this endorsement is released to counsel.
Should either party wish to respond to the written costs submissions of the other, each such party shall serve and forward their responding submissions to the Family Court Judicial Assistant at St. Thomas by no later than 30 days from the date that this endorsement is released to counsel.
If no costs submissions are received from at least one of the parties by the date that is 15 days from the date that this endorsement is released to counsel, costs shall be deemed to have been settled, neither party shall be entitled to an order for costs, and no such order shall thereafter be made.
Justice T. Price
Released: March 23, 2026
CITATION: Gray v. Vossen, 2026 ONSC 1731
COURT FILE NO.: FC216/22
DATE: 2026/03/23
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Allison Jane Gray
Applicant
- and -
David Anthony Vossen
Respondent
REASONS FOR JUDGMENT
T. PRICE, J.
Released: March 23, 2026
Footnotes
- Ms. Gray entered into evidence two text messages to her from Mr. Vossen, both dated in 2014, the year they began to cohabit, in which he acknowledged having an out-of-control temper, and the troubles that it causes him when it emerges.
- Mr. Vossen did show some flashes of anger while being cross-examined by Mr. Skuce. Calm while being questioned by Ms. Camarra, he became aggressive, often pushing back on things that Mr. Skuce suggested to him, while frequently seeking clarifications of some questions to the point that, on those occasions, he ended up appearing to be difficult to deal with.
- Mr. Vossen lived within walking distance of the daycare. Ms. Gray had to drive by his residence to drop the child at daycare.
- While he was in the hospital Mr. Vossen had also been calling the parties’ two older children before and after school.
- Cross-examined about this event, Mr. Vossen said that he was “not content” with his conduct on this occasion.
- Boyer v. Brown, 2023 ONSC 3905; Richard v. Holmes, 2020 ONSC 6485; Tone v. Tone, 2020 ONSC 2695
- Ochitwa v. Canada, [2014] T.C.J. No. 200; Harder v. Canada, [2016] T.C.J. No. 161; Ruel v. Canada, [2017] T.C.J. No. 63
- Verones v. Canada, [2013] F.C.J. No. 272
- I have omitted a paragraph relating to proprietary remedies because Ms. Gray made no such claim in this case.
- I take this comment to mean that the person benefitted could not claim that it was juristically permissible to claim that he or she did not have to account for the benefits derived from the other party’s provision of domestic services. See Kerr, at paragraph 44
- Porteous v. Conway, 2015 ONSC 5871 at paragraph 95
- In her Reply, at paragraph 14, Ms. Gray acknowledged that she made “comments from time to time that I will be leaving” Mr. Vossen.
- Supra, at paragraphs 183-185
- According to Mr. Vossen’s uncontradicted evidence, neither party knew what the other did with their money.
- For example, after moving to St. Thomas, Ms. Gray fronted the payment for the children’s daycare costs, but Mr. Vossen fully reimbursed her by funds transfers.
- Established by the Financial Accountability Officer Act, 2013, S.O. 2013, c. 4. The statutory authorization for releasing reports to the public is found in s. 15(1).
- Queen’s Printer for Ontario, 2019: ISSN 978-1-4868-3759-5 (Online)
- All cost-of-living increases taken from Statistics Canada: https://www150.statcan.gc.ca/n1/daily-quotidien/
- $12,800 x 1.019 x 1.007 x 1.5 = $19,702. All resulting amounts have been rounded.
- Mr. Vossen became responsible for paying child support a soon as Ms..Gray left the jointly owned residence.
- ($19,702 x .67 x 1.034 x 1.068) x (5/12) = $6,074
- Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.), s. 63(3)(b)(1) (definition of “child care expense”)
- Kerr v. Baranow, paragraphs 17-20