CITATION: Stever v. Lewis, 2026 ONSC 37
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Matthew Clayton Lloyd Stever, Applicant
-and-
Nicole Rose Lewis, Respondent
COUNSEL: Peter Sammon, for the Applicant
Richard Bowles, for the Respondent
HEARD: September 22, 23, and 24, 2025
TRIAL Decision
1This trial was held to determine the following issues:
The Respondent’s claim for unjust enrichment and associated claim for a constructive trust on the entirety of the Applicant’s assets held on the date of the parties’ separation;
The Respondent’s claim for child and spousal support, including appropriate adjustments of the support paid since January 2022;
The Applicant’s request to impute a higher income to the Respondent than what she has been earning since the parties separated.
2The parties were able to resolve parenting issues by way of Final Partial Minutes of Settlement dated December 11, 2024.
BACKGROUND
3The parties met in 2007 and began dating shortly thereafter. At that time, the Applicant father (“the father”) was employed by the Atomic Energy of Canada Limited (“AECL”) in Chalk River as an Electrical Engineer (Section Head Projects NLBU Nuclear Operations). The Respondent mother (“the mother”) was completing her training as a Physiotherapy Assistant and Occupational Therapy Assistant.
4The mother found out in June 2008 that she was pregnant with the parties’ first child. At that time, the mother was still living with her parents. As a result of the pregnancy, the parties decided to move in together and started to look for a home. In July 2008, the parties moved in the home located at 1503 Perretton Road (then “Indian Road”), in Pembroke (“the property” or “the home”).
5The property was purchased by the father in his sole name at a purchase price of $315,000, with a mortgage in an amount unknown to me1, also in the father’s sole name. It is not disputed that throughout the parties’ twelve-year relationship, it is the father alone who paid the mortgage, municipal taxes, home insurance, maintenance and repairs, in addition to most of the utilities.
6The parties have three children together; L.S. who was born in 2009 (she is now 16 years old); Z.S. who was born in 2010 (he is now 15 years old); and J.S. who was born in 2012 (who is now 13 years old).
7The parties never married. They separated briefly in 2016, and then for a final time on November 17, 2020. Although separated, the parties continued to reside in the home with their children until the father was required to move out in May 2021 due to criminal charges laid against him.
LITIGATION HISTORY
8The father commenced this application in January 2021, seeking an equal time-sharing and decision-making regime for the children, the establishment of child support, and an order requiring the mother to vacate the home. In her initial Answer filed with the Court in February 2021, the mother was seeking an order granting her sole decision-making responsibility for the children as well as primary residence, parenting time to the father every other weekend as well as one evening per week, child and spousal support, exclusive possession of the home, as well as “the division at source of the father’s pensions” and “a 50% interest in the home”.
9After she retained new counsel in 2024, the mother was granted leave to amend her Answer to properly plead her property claims. In her Amended Answer, she seeks a declaration that she has an equitable 50% interest in the father’s property (including but not limited to his real property and his pension) based on unjust enrichment and resulting trust principles. At trial, the mother confirmed that she was no longer grounding her property claims on resulting trust principles, but solely on unjust enrichment principles.
10As stated earlier, after they separated in November 2020, the parties continued to reside together in the property. In May 2021, criminal charges were laid against the father following a complaint made by the mother to the police following an altercation between them in May 2021. At that time, the father was required to leave the home, and the mother remained in the home with the children.
11On August 24, 2021, James J. heard a motion brought by the father seeking exclusive possession of the home, as well as the implementation of a shared parenting arrangement for the children. The mother brought her own motion seeking exclusive possession of the home as well as temporary child and spousal support.
12On September 1, 2021, James J. released his decision granting the father exclusive possession of the home and he ordered the mother to vacate the property by October 1, 2021. He also implemented a week-about parenting regime to begin on that date and required the father to pay temporary child support in the amount of $2,141 per month (set-off amount based on the father’s income of $146,957 and the mother’s income of $24,782) and temporary spousal support in the amount of $1,882 per month. Other orders were made on that day to deal with various interim issues. Of note is the following provision contained in James J.’s temporary order:
- The (mother) shall make a good faith effort to secure more work and increase her income.
13When the father reintegrated the home, he realized that the mother had left with some of his personal property, including a John Deere Tractor with a significant value. After unsuccessfully seeking its return, the father brought a motion which was ultimately resolved on consent by the mother agreeing to return the tractor to him, with costs against the mother.
14On April 14, 2023, the parties settled the parenting issues between them by essentially consenting to a Final Order reflecting the terms of James J.’s temporary order. That final order is still in full force and effect. In summary, the parties have equally shared the parenting of their three children on a week-about basis since September 1, 2021.
SUPPORT
1- The parties’ relationship, income, and employment history
15Based on all the evidence provided during this trial, I come to the following factual conclusions.
16While the parties’ relationship, in its early years, appeared to have been positive, the parties seem to have been mostly driven together by their mutual desire to have children.
17At the time they moved in together in July 2008, the mother was completing her clinical placements to acquire her degree as a Physiotherapist and Occupational Therapist Assistant. In January 2008, she started working at Centric Health as a Physiotherapy Assistant. After the parties’ first child was born in February 2009, she went on maternity leave for six months and then returned to work. The parties’ second child was born in February 2010, and the mother was again on maternity leave, this time for one year. In January 2011, the mother began working at Miramichi Lodge, a long-term care facility, as a Rehabilitation Assistant, on a part-time basis.
18The parties’ third child was born in July 2012, and once again the mother took a year off to care for the baby. She returned to work at Miramichi Lodge in the summer of 2013, and continued to work there until February 2016, when she made the decision to quit her employment.
19Throughout that time and until September 2012, the father continued to work for AECL although he went through various positions within the organization. After the birth of each child, the father took a few weeks of paternity leave coupled with a few weeks of vacation to help care for each of the newborns. In September 2012, he accepted a position with Abbott Laboratories located in Kanata, as the Principal Electrical Engineer. The parties’ intention at that time was to sell the home in Pembroke and move to Ottawa to be closer to the father’s work. However, after they were unable to find an adequate and affordable home in that area, they decided to remain in Pembroke.
20As a result, during the one-and-a-half year that the father worked for Abbott, he travelled back and forth from Pembroke to Kanata during the week. In May 2014, the father returned to work for AECL (which by then had become the Canadian Nuclear Laboratories, or “CNL”), as a Senior Operations / Maintenance Specialist. In June 2015, the father became a Project Manager, a position that he still holds today.
21The father’s work hours, regardless of where or in which capacity he worked, remained relatively the same throughout. It is not disputed that he would leave the home around 7 a.m. in the morning, returning between 6 and 6:30 p.m. each night. Since he became a Project Manager for NCL, he has been responsible for the decommissioning of a nuclear plant in Trois-Rivière, Quebec, which requires him to be away, on site, one week every month or every other month (depending on needs). When required to be in Trois-Rivière, the father leaves early on Monday morning and returns after work on Thursday night.
22In early 2016, the mother was diagnosed with cervical cancer. She testified that this was a stressful time in her life, which is why she chose to quit her job at Miramichi Lodge. The father did not approve of the mother’s decision to leave her employment. By that time (if not well before that), the parties’ relationship had deteriorated significantly and the mother’s decision to quit her job did not help matters between them.
23Following a dispute between the parties in October 2016, the father allegedly shoulder checked the mother which led her to call the police. I am not aware of the nature of the charges laid against the father following this incident, but for a few weeks he was not permitted to return to the home. During that time, the mother underwent a hysterectomy which required that she be on bed rest for six to eight weeks. As the father was not permitted to be in the home during that time, it made things quite difficult for the mother who was recovering and left in a full-time caregiving role to all three children. Ultimately, the parties agreed to try and mend their relationship, and the father’s criminal charges were resolved with the father being required to complete anger management programming. He returned to the home in November 2016, and the parties resumed their relationship.
24As part of their renewed commitment to staying together, the father changed the beneficiary designations on his RRSP from his own father to the mother, and the mother agreed to return to work and to start contributing financially to the household expenses. In January 2017, the mother began working for HouseCalls Physiotherapy, as a self-employed Rehabilitation Assistant. In that capacity, the mother is assigned clients who need rehabilitation services at home. From 2017 to the date of the parties’ separation, the mother worked part-time hours which fluctuated depending on the number of clients she had at any given time. This is where she continues to work to this day.
25In addition to her work as a Rehabilitation Assistant, in 2019 the mother completed her training as a Volunteer Firefighter. In that capacity, she is on-call 24/7, but it is entirely up to her to decide whether she takes a call or not. She also completed her firearm safety course.
26The parties separated on November 17, 2020, when the mother told the father that she wanted to separate and handed over to him a demand letter from her lawyer.
2- Entitlement to spousal support
27While it is clear to me that the father was a loving, devoted and engaged parent, it is equally clear that the mother took on most of the childcare and household responsibilities during the parties’ relationship. She was home after the birth of each child for six months to a year; she was primarily responsible to get the children ready for school, to put them on the bus or drive them to school or daycare; she was responsible for them after school; she made sure they completed their homework after school; she prepared most meals; did the laundry; maintained the home; and she is the one who arranged and attended the children’s medical appointments.
28Although the mother could have worked on a full-time basis if she had wanted to, her choice to work part-time hours cannot possibly be criticized given the parties’ circumstances. Even if the father was more than prepared to support the mother’s career endeavours in every way he could, the parties had three children in a little more than three years, and the father’s employment required him to be away from home from 7 a.m. to 6 – 6:30 p.m. each weekday, in addition to being away from home for a week most months starting in 2015.
29When J.S., the youngest, was about two years old (in 2014), she began experiencing neurological issues which required her to be followed at the Children’s Hospital of Eastern Ontario (“CHEO”). For the next two years, she needed to attend many medical appointments at CHEO in addition to attending speech therapy once a week for two years. The mother was primarily responsible to take J.S. to her medical appointments.
30From a very young age, all three children were involved in all sorts of extracurricular activities including swimming, hockey, gymnastics, piano and dirt biking (an activity enjoyed by all members of this family, including the parents). Although the father was equally engaged in attending sports and activities with the children after work and on weekends, this was a very busy family with three very active children, and the mother’s choice to work part-time only made ample sense and was certainly not unreasonable.
31Section 33(8) sets out the purpose of a spousal support award:
(8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
32The Supreme Court of Canada's decision in Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, continues to be the leading case and the starting point for any analysis on the issue of entitlement to spousal support. In Moge, the Supreme Court recognized the following at pp. 848-49:
Conversely, marriage and the family often require the sacrifice of personal priorities by both parties in the interests of shared goals. All of these elements are of undeniable importance in shaping the overall character of a marriage. Spousal support in the context of divorce, however, is not about the emotional and social benefits of marriage. Rather, the purpose of spousal support is to relieve economic hardship that results from "marriage or its breakdown". Whatever the respective advantages to the parties of a marriage in other areas, the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party's economic prospects". [First emphasis in original. Second emphasis added.]
21 At pp. 861-62, the Court adds:
Women have tended to suffer economic disadvantages and hardships from marriage or its breakdown because of the traditional division of labour within that institution. Historically, or at least in recent history, the contributions made by women to the marital partnership were non-monetary and came in the form of work at home, such as taking care of the household, raising children, and so on. Today, though more and more women are working outside the home, such employment continues to play a secondary role and sacrifices continue to be made for the sake of domestic considerations. These sacrifices often impair the ability of the partner who makes them (usually the wife) to maximize her earning potential because she may tend to forego educational and career advancement opportunities. These same sacrifices may also enhance the earning potential of the other spouse (usually the husband) who, because his wife is tending to such matters, is free to pursue economic goals. This eventually may result in inequities.
Hence, while the union survives, such division of labour, at least from an economic perspective, may be unobjectionable if such an arrangement reflects the wishes of the parties. However, once the marriage dissolves, the kinds of non-monetary contributions made by the wife may result in significant market disabilities. The sacrifices she has made at home catch up with her and the balance shifts in favour of the husband who has remained in the work force and focused his attention outside the home. In effect, she is left with a diminished earning capacity and may have conferred upon her husband an embellished one." [Emphasis added.]
33Having three children did not impact the father’s ability to pursue his career, achieve his full earning potential, and access all available career enhancement opportunities offered to him. This cannot be said of the mother. Taking on primary responsibility for the children and the household had significant economic consequences for the mother, and adversely impacted her career opportunities and future earning potential. On the facts of this case, there is no doubt that the mother is entitled to spousal support on compensatory principles, due to the role she assumed as the children’s primary caregiver during the parties’ relationship.
34It is also not disputed that throughout the relationship, the father was the main breadwinner, and he assumed the vast majority of the family’s household expenses. The breakdown of the parties’ relationship, and the termination of the father’s contributions to the mother’s living expenses, had significant financial consequences for the mother, considering how they managed their financial affairs during their twelve-year relationship, and the significant disparity in their income at the time of their separation. The mother’s entitlement to spousal support, therefore, is also needs-based.
3- The father’s income
35The father’s income for all relevant years is not in dispute, and comprised almost exclusively of employment income (including commissions and bonuses):
2020: $165,540
2021: $166,470
2022: $170,505
2023: $174,154
2024: $179,186
2025: $185,486 (estimated)
4- The mother’s income
36Over the relevant years, the mother’s income comprised of her self-employment income earned as a Rehabilitation Assistant, and a modest amount of employment income earned as a Volunteer Firefighter.
37The mother’s professional expenses deducted from her professional income as a Rehabilitation Assistant are limited to motor vehicle expenses, capital cost allowance for the use of her personal vehicle when traveling to and from clients’ homes, and her cell phone. The mother agreed that capital cost expenses should be added back to her income. Her income for the relevant years was as follows:
2020: Net professional income of $7,539 ($9,286 gross) and employment income of $4,102, for a total of $11,641
2021: According to her notice of assessment (income tax return was not provided), Net professional income of $8,984 ($11,283 gross). Her employment income cannot be determined from her notice of assessment (excluding spousal support)
2022: Net professional income of $7,891 ($13,441 gross) and employment income of $2,810, for a total of $10,701 (excluding spousal support)
2023: Net professional income of $20,031 ($27,634 gross) and employment income of $2,068, for a total of $22,099 (excluding spousal support)
2024: Net professional income of $15,794 ($24,081 gross on ITR, but according to a Whitewater Physiotherapy (HouseCalls Physiotherapy) Statement of Income for 2024, the mother’s gross professional income was $28,609) and employment income of $2,792
2025: not yet known. According to the mother’s most recent financial statement, she estimates that her total income will be in the range of $31,400.
38The father takes the position that the mother is intentionally under-employed and seeks an adjustment of his support obligations going back to January 2022, based on an imputed income for the mother in the amount of $44,000 for that year, increasing each year until present. For 2025, the father seeks to impute an income of $74,880 to the mother.
39Justice Shelston provided a comprehensive summary of the legal principles applicable to a Court’s ability to impute income In Zigiris v. Foustanellas, 2016 ONSC 7528. He said:
30 In this case, the relevant part of Section 19 of the Federal Child Support Guidelines, S.O.R./97-175, as am. ["Guidelines"] is as follows:
- Imputing income. — (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
31 The Court of Appeal in Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.), at para. 23, set out a three-part test for determining whether income should be imputed on the basis of intentional under-employment or unemployment as follows:
Is the spouse intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs? (change to “If so, is the intentional under-employment or unemployment required by virtue of the reasonable educational or health needs of the parent or spouse needs?” if appropriate)
If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
32 A spouse is intentionally under-employed if he or she chooses to earn less than he or she is capable of earning having regard to all of the circumstances (Drygala, at para. 28). There is no requirement that the under-employment or unemployment be undertaken in bad faith or with the intention of avoiding support payments (Drygala, at paras. 29-36).
33 The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (Homsi v. Zaya (2009), 2009 ONCA 322, 65 R.F.L. (6th) 17 (Ont. C.A.), at para. 28).
Step one
34 When considering the spouse's capacity to earn income, the court should consider, among others, the following principles:
(a) There is a duty on the spouse to "actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children" (Thompson v. Thompson, 2014 ONSC 7503 (Ont. S.C.J.), at para. 99);
(b) A spouse's capacity to earn income can be influenced by his or her age, education, health, work history, and the availability of work that is within the scope of his or her capabilities (Marquez v. Zapiola, 2013 BCCA 433, 344 B.C.A.C. 133 (B.C. C.A.), at para. 37);
Step two
35 The second step of the Drygala test is generally treated as an overall test of reasonableness. In Jackson v. Mayerle, 2016 ONSC 72 (Ont. S.C.J.), at para. 702, the court held that:
Once intentional underemployment is established, the onus shifts to one of the exceptions of reasonableness.
36 Justice Pazaratz notes in Jackson v. Mayerle, at para. 715:
Parents are required to act responsibly when making financial decisions that may affect the level of child support available. They must not arrange their financial affairs so as to prefer their own interests over those of their children.
Step three
37 Where the spouse is intentionally and unreasonably under-employed or unemployed, the court has a large range of discretion to impute as income an amount founded on a rational basis, as detailed in the Court of Appeal case of D. (D.) v. D. (H.), 2015 ONCA 409, 335 O.A.C. 376 (Ont. C.A.).
38 The main factors a court should consider are the age, education, skills, and health of the spouse, along with the number of hours that can be worked in light of competing obligations and the hourly rate the spouse could reasonably obtain (Drygala, at para. 45).
40When the parties separated in November 2020, the mother had been self-employed on a part-time basis working for HouseCalls Physiotherapy as a Rehabilitation Assistant. In 2020, she earned less than $15,000. However, it is important to note that, in the years prior to the parties’ separation, the mother’s income had started to pick up. In 2018, she earned a total income of $23,679 (a combination of her gross professional income and her wages as a volunteer firefighter, with a net taxable income of $16,068), and in 2019 she earned a total income of $24,782, with taxable income of $20,528.
41The mother explains that as a self-employed Rehabilitation Assistant, she earns $48 per client that she treats. Her consultation with each patient takes between 45 minutes to an hour. Her clients are all located in Pembroke, Petawawa and Renfrew. Her work hours vary from week to week, depending on the fluctuation of her clients and their needs. Over the past few years, she has worked in the range of 20-25 hours per week.
42When asked why she had not been looking for full-time employment since the parties’ separation, given that currently she earns less than minimum wages, the mother stated that she likes the flexibility that she has in her current employment, and that her parenting responsibilities on the weeks she has the children do not permit her to work full-time hours as an employee. Among other things, she explains that her two eldest children work part-time on some weekdays, and she needs to be able to pick them up from school to take them to their place of employment once or twice per week. She points to the fact that the father, since the pandemic, works from home and as a result, he is free to do the same on his parenting weeks while holding a full-time job.
43I find that it was not unreasonable, in the year or so following James J.’s September 2021 temporary order, for the mother to continue to work part-time to settle herself and the children in another home. Once the children transitioned to an equal time-sharing arrangement, as imposed by James J., it was incumbent upon the mother to begin increasing her hours and to grow her business to allow her to achieve her maximum earning capacity. I accept that this does not happen overnight.
44However, I find that since January 2023, the mother is intentionally under-employed. The reasons given by the mother to maintain part-time hours only, given the children’s age and the fact that they are in her care only every other week, are not reasonable. The children’s ability to work part-time as students does not supersede the mother’s duty to maximize her income to meet their needs.
45As this trial was fast approaching, the mother made efforts to increase her clientele by speaking to her superior about it. He arranged for a marketing campaign to promote her services on the radio, and very quickly she gained three new clients. No explanation was offered as to why she did not do this much earlier. The mother was ordered to provide evidence of all efforts made since the date of separation to find gainful, full-time employment, and the only evidence provided by her is less than ten online applications for various positions in her field. No evidence was provided by her showing that she had followed up on any of these offers, nor was any evidence provided as to what she had done to actively seek out these positions. A handful of online applications does not meet one’s obligation to demonstrate that they have done all they could to locate reasonable employment or maximize their earnings.
46The mother is trained and has significant experience as a Physiotherapy and Occupational Therapy Assistant. She is also a trained firefighter. There is no reason why the mother, over the past five years, has not been able to maximize her income and work full-time hours.
47In my view, had the mother deployed genuine efforts to locate new clients, it would be open to her to treat five clients per day. At $48 per client, five clients per day (on average, which leaves enough time for travel to and from clients’ homes), working five days per week, 46 weeks per year (which takes into account four weeks of vacation, statutory holidays and potential sick days), the mother is able to earn a gross professional income of $55,200 per year. Accounting for some deduction on account of motor vehicle expenses (but not capital cost allowances or cell phone expenses), I find that the mother has the capacity to earn $50,000 per year, since at least 2023.
48This said, in my view it would be futile to go back to January 2023 to re-calculate the child and spousal support owing by the father to the mother on account of this new income. Firstly, any reduction in child support would lead to an increase in spousal support. Secondly, the father’s income has increased since the September 2021 Temporary Order was made. At the time, the income used to calculate the father’s income was $146,957. As indicated earlier, the father’s income in 2021 was indeed higher, and increased gradually to $179,186 in 2024. If adjusted back to January 2023, his support obligations would not be materially different.
49For these reasons, I agree with the mother’s view that there should be no support adjustments for previous years, simply a new ongoing support order made. The support order I make today is effective October 1, 2025, and is based on the new child support Table amounts which came into force on that day.
5- Ongoing child and spousal support
50The parties agree that the set-off method is appropriate in the circumstances of this case to establish the parties’ child support obligations. Using the father’s estimated income for 2025, in the amount of $185,000, and the mother’s imputed income of $50,000, the set-off between the father’s Table amount ($3,320) and the mother’s Table amount ($1,003) is $2,317.
51As stated above, the spousal support in this case is both compensatory and non-compensatory. I am not prepared to impose a termination date to the father’s spousal support obligation at this time, although the parties’ relationship only lasted twelve years. This is due to the compensatory nature of the spousal support in this case, the significant disparity in the parties’ income, and the fact that they share the parenting of three (still) dependent children equally.
52Based on the parties’ income above, and considering the child support payable by the father, the Spousal Support Advisory Guidelines suggest the following ranges of spousal support:
Low range: $1,194 (resulting in each party receiving 50% of the combined NDI);
Mid range: $2,036 (resulting in the mother receiving 52.8% of the combined NDI), and;
High range: $2,672 (resulting in the mother receiving 54.9% of the combined NDI.
53I see no reason in this case for either party to retain more than 50% of the combined NDI. As a result, I order the father to pay indefinite spousal support in the amount of $1,194 per month. Given that each party has the same amount of net income available to them, they shall share all the children’s special and extraordinary expenses equally.
54I am providing both parties a copy of the support calculations I have used to come to these amounts. If either party takes objection to my calculations, I may be spoken to.
UNJUST ENRICHMENT
55The legal framework applicable to unjust enrichment claims was thoroughly set out by Fraser J. in Vincent v. Cameron, 2024 ONSC 6531, paras. 65 to 94. I find it unnecessary to reproduce all these paragraphs here but confirm that I have thoroughly reviewed all of them and I adopt them as my own. For the purpose of this decision, the following excerpt of her analysis is sufficient:
65 The elements of unjust enrichment are: 1. a benefit, 2. a corresponding deprivation and 3. the absence of juristic reason for the benefit and the loss: Kerr v. Baranow, 2011 SCC 10, [2011] S.C.R. 269, at para 32.
66 As the Supreme Court of Canada explained in Kerr, at para. 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." Put another way, unjust enrichment may be defined as "the unjust retention of a benefit to the loss of another, or the retention of money or property of another, against the fundamental principles of justice or equity and good conscience": Bruyninckx v. Bruyninckx 1995 1796(BC CA), at para. 58 and Ingram v. Kulynych Estate 2024 ONCA 678 at para. 51.
67 The companion cases from the Supreme Court of Canada in Kerr sets out the current foundation for property claims between unmarried spouses upon separation. Cromwell J. in Kerr lays out a framework of principles which attempts to harmonize the various strains of the unjust enrichment jurisprudence in family law and non-family law cases.
68 Unjust enrichment is a legal finding that leads to an equitable remedy to address an inequitable distribution of assets on separation. There are two stages to the application of an unjust enrichment claim: establishing the claim by meeting the test of unjust enrichment, and then determining the appropriate remedy, either monetary or proprietary.
69 The test for unjust enrichment is:
(a) A benefit/enrichment conferred on the respondent;
(b) A corresponding deprivation of the claimant;
(c) No juristic reason for the respective benefit and deprivation: Moore v. Sweet, 2018 SCC 52; Kerr at paras 31-32.
70 The party claiming there has been unjust enrichment carries the burden of establishing that they gave something to the other party which that party received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched that party and which can be restored to the claimant in specie or by money: Kerr at para. 38.
71 Some examples of benefits received include:
(a) Money;
(b) Title to a bank or investment account;
(c) Title to real property (sole or joint);
(d) Direct payment of expenses;
(e) Providing accommodations or use of real property that saves expenses;
(f) Labour, including administrative or physical labour that creates, enhances, or preserves property, including real property;
(g) Domestic services; and
(h) Anything else of economic value.
72 It is not a "net benefit" analysis at this stage of the inquiry. Rather the court must determine whether there has been any benefit to the respondent as the analysis of the mutual conferral of benefits comes in later.
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. Examples of cases where this is relatively clear have included instances where cash or property is given by one party to the other.
74 In some cases, the benefit is less clear. Examples include:
(a) where one party pays for aspects of or improvements to real property when it is owned by the other; or
(b) 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.
75 Whether the deprivation was counter-balanced by benefits flowing to the claimant from the respondent does not get addressed in the first two steps of the unjust enrichment analysis: Kerr at para. 113; Granger v. Granger, 2016 ONCA 945 at para. 48. That consideration is addressed when considering the defence and remedy stage, or in a limited fashion, at the juristic reason stage. It is only appropriate to consider mutually conferred benefits if they shed light on the parties' reasonable expectations: Kerr at paras. 113-115.
76 Finally, the benefit and corresponding deprivation must have occurred without a juristic reason: Kerr at para. 40. This means that there is no reason in law or justice, for the respondent's retention of the benefit conferred by the claimant, making its retention "unjust" in the circumstances of the case: Kerr at para. 40. This involves a two-part test, the second part of which also has two parts:
(a) None of the usual categories apply:
(i.) A gift;
(ii.) A contract; or
(iii.) A legal obligation; and
(b)
(i.) what were the reasonable expectations of the parties; and
(ii.) whether there are any moral and policy-based arguments that would support the argument that the enrichment should be retained.
56In that case, the mother was claiming unjust enrichment and seeking an equitable interest in the father’s pension plan. The Court found that the father had been unjustly enriched as a result of the mother’s contributions and awarded her damages representing the difference in value of the parties’ respective pensions at the conclusion of their relationship.
57The Court found that the parties had clearly shared assets and liabilities in a manner that indicated an intention to share the product of their mutual contributions. The parties had joint bank accounts and credit cards and had opened a spousal RRSP for the mother in which significant contributions were made during the relationship. When she was working, the mother was contributing to the household expenses and utilities. The parties named each other as beneficiaries of their respective life insurance and health plans. After the father racked up debts due to gambling, the mother used some of her own funds to repay the debts incurred by the father on her credit card.
58Additionally, the mother had contributed the vast majority of the downpayment for the purchase of the parties’ joint home by withdrawing approximately $40,000 of her tax-free savings account, by borrowing $24,500 from her spousal RRSP, and by withdrawing an additional amount from her own savings. Much of these funds came from an inheritance that the mother had received from her grandfather. The Court found that neither party had brought significant assets into the relationship, and that all their assets at the time of their separation had been acquired during their relationship.
59Finally, there was compelling evidence in that case that the mother, at the insistence of the father, had left her gainful employment twice during the parties’ relationship, staying out of the workforce for many years without the ability to contribute to her own pension plan. She did so based on the father’s clear promises that he would work and support the mother while she provided domestic support to him. The Court found that the parties indeed planned their future on the basis that they were one social and economic unit and considered themselves as such.
60None of these elements are present in the within case. The compelling evidence before me demonstrates that there was never any economic integration between the parties throughout their relationship, and they never considered themselves an economic unit. They did not have a joint bank account, and they kept their respective financial affairs completely separated. At the mother’s own admission, there were never any discussions about the parties’ respective retirement plans, nor did she have any information about the father’s financial affairs, or how much he was contributing towards the home or the family’s expenses. The father was required to re-finance the mortgage on the home to pay for debts accumulated because of the family’s ongoing expenses, something the mother does not appear to have been aware of.
61The father brought important assets into the relationship, in the form of a RRSP (approximately $125,000 from a pension cashout) and various motor vehicles (cars, tractor and recreational motorcycles), whereas the mother did not. The father purchased the family residence in his sole name, and with the use of his own funds. The mother was not involved in the transaction and during her testimony admitted that she had no knowledge of the financial aspects of the purchase. Throughout the relationship, the father paid all expenses related to the home (mortgage, insurance, taxes, repairs) as well as the majority of the household expenses and children related expenses. Indeed, the mother’s failure to contribute financially to the household expenses (when she was working) was a significant source of conflict between the parties.
62The evidence, at its highest, shows that the mother contributed to maintaining the inside of the home during the relationship, and that she and some of her family members contributed some labour on a couple of occasions when the father built a garage on the property, removed the old shingles on the roof (before hiring a contractor to replace them) and built a barn. It is not disputed that the entire costs for all three projects were paid by the father alone. The mother also contributed the doors and windows of the chicken coup that the father built (the costs were insignificant - $100 according to the father – as these were purchased from the mother’s uncle). According to Ms. Jean Lambert (the children’s maternal grandmother) who testified at trial, the father helped with repairs on their cottage and also assisted her son with repairs on his house. In exchange, they provided some help when he built his garage and replaced the roof shingles.
63The above fails 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 mother has not met her onus in that regard, and as a result her claim for unjust enrichment must fail.
64For the same reasons, her claim for unjust enrichment in relation to the father’s retirement plan also fails.
ORDER
1- There are no arrears of child or spousal support as of September 30, 2025.
2- Commencing on October 1, 2025, and every month thereafter until further order of the Court, the Applicant father shall pay to the Respondent mother child support in the (set-off) amount of $2,317 for the parties’ three children, calculated as follows:
a. The father shall pay table child support in the amount of $3,320 per month based on his estimated 2025 income in the amount of $185,000;
b. The mother shall pay child support in the amount of $1,003 based on an imputed 2025 income in the amount of $50,000.
3- Commencing on October 1, 2025, and every month thereafter until further order of the Court, the Applicant father shall pay to the Respondent mother spousal support in the amount of $1,194 (being the amount which provides each party with 50% of their combined net disposable income).
4- The parties shall share special or extraordinary expenses for the children in proportion to their respective incomes in accordance with the Federal Child Support Guidelines. At this time and considering the spousal support payable by the Applicant father, each party shall contribute an equal amount (50%) towards the children's special or extraordinary expenses.
5- On or before May 1st of each year, commencing in 2026, the parties shall exchange income information for the prior calendar year. They shall use this information to adjust the child support payable by them including both the table amount of child support and the proportionate sharing of the children's special or extraordinary expenses.
6- Any change in the table amount of child support and the proportionate sharing of special or extraordinary expenses will commence retroactive to January 1st of each year, unless the parties agree otherwise.
7- The Applicant father shall maintain a life insurance policy in the amount of $250,000 to secure his support obligations. The Applicant father shall designate the Applicant mother as irrevocable beneficiary of the life insurance policy until further order of the Court.
8- The Applicant father shall provide the Respondent mother with a copy of the policy confirming the amount and beneficiary designation within 30 days of this Order.
9- The Respondent mother’s unjust enrichment claims are dismissed.
COSTS
65If the parties are unable to resolve the issue of costs, I will accept written submissions not exceeding eight (8) pages, double-spaced, with a Bill of Costs and relevant offers to settle in accordance with the following timelines:
The Applicant father to serve and file by January 23, 2026;
The Respondent mother to serve and file by February 6, 2026;
The father’s reply, if any, to be served and filed by February 13, 2026.
Justice J. Audet
Date: January 5, 2026