)) Megan Booth Applicant – v. –, 2023 ONSC 7521

CITATTION: Booth v. Raats , 2023 ONSC 7521 COURT FILE NO.: FC-19-2082 DATE: 2024/02/21 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) Megan Booth Applicant – and – Michel Raats Respondent ))))))))) ) ) ) ) Self Represented for the Applicant John Summers for the Respondent ) ) ) HEARD: December 4,5,6,7 and 8, 2023 (at Ottawa) reasons for judgment The text of the original judgment was amended on February 21, 2024.

SHELSTON J. [ 1 ] The applicant (“Megan”), and the respondent (“Michel”), met in March 2010, started to live together in April 2011 and are the parents of three children, namely J., born in 2012 and currently 11 years of age, L., born in 2013, currently 10 years of age and B., born in 2015 currently 8 years of age. [ 2 ] The parties separated on March 27, 2019, with Michel physically leaving the Belmeade Road residence on April 21, 2019.

Megan has had exclusive possession of that residence since that date with Michel paying all of the expenses related thereto. [ 3 ] The issues for this trial are which parent should have decision-making responsibility; determining Michel’s parenting time schedule; determining Megan and Michel’s income, the quantum of table child support, Megan’s entitlement, quantum, and duration of spousal support, Megan’s claim of unjust enrichment, setting the date of departure for Megan from Belmeade Road and costs. FACTUAL BACKGROUND [ 4 ] Megan is 39 years of age. She graduated from high school.

In January 2010, she started to work at a grocery store in Ottawa, as a cashier at minimum wage. She is not bilingual. [ 5 ] Michel is 43 years of age. He graduated from high school and took a diesel mechanic course which he did not complete. He has worked as a farmer with his brother since 2002. [ 6 ] The parties met in March 2010 when Megan was 25 years of age. They dated and Megan became pregnant. Megan was attending Everest College to become a cardiology technologist while working as a cashier at the grocery store on different shifts per week at minimum wage.

Michel was 29 years of age and working as a farmer. By August 2011, Megan moved into Michel’s residence, being the former home of his parents on the family homestead. [ 7 ] The first child, J., was born in January 2012. Megan was on maternity leave for approximately one year. [ 8 ] In January 2013, Megan returned to work, working up to six hours a day, with the number of shifts disputed between 3 to 4 times a week or 4 to 5 times a week at the grocery store.

[ 9 ] In April 2013, Michel and his brother decided to divide their assets resulting in Michel retaining the snowplowing business.

At that time, Michel bought his brother out of his interest in various pieces of property at a cost of approximately $600,000 financed by his parents payable at $2800 per month, payable for 20 years. [ 10 ] Megan went on maternity leave in October 2013 after the parties second child, L., was born in late October 2013. [ 11 ] Megan went back to work in September 2014 until August 2015 when she went on maternity leave when the parties third child, B., was born in September 2015. [ 12 ] Megan was on maternity leave until August 2016 when she returned to work six hours a day, 3 to 4 times a week at the grocery store. [ 13 ] On September 7, 2017, Megan’s mother and sister were killed in a car accident.

Megan was emotionally affected by their loss. Michel admitted that their death had a significant toll on Megan. [ 14 ] After the birth of the children to date, Megan receives the child tax benefits which she deposits into her own account. [ 15 ] Megan has not returned to work since the accident. Megan testified that she received, starting from January 2018 to October 2020, approximately $164,000 comprising of both Canadian and US funds.

These funds were received as part of Megan’s inheritance. [ 16 ] After the accident, Megan stayed home with the children and was their primary caregiver. [ 17 ] From September 2018 to January 2019, the parties were in virtual counselling both individually and together. [ 18 ] Both parties agree that the date of separation is March 27, 2019. Both parties subsequently retained counsel. From March 27 to April 21, 2019, there was no communication between the parties in the home.

Michel left Megan and the three children on April 21, 2019, and moved in with his mother. [ 19 ] On June 19, 2019, the parties attended mediation where they agreed that the children’s primary residence would be with Megan, that Michel would have the children every second weekend after school on Friday to Sunday at 6 PM, Tuesday and Thursday after school to 6 PM on the week when Michel had no weekend parenting time and on Wednesday after school to 6 PM on the week when he had weekend parenting time. This

schedule has been in place since that time. [ 20 ] Since Michel started parenting time in 2019 to date, every weekend that the children are in his care, Megan has called and spoken to all three children on Friday evenings at 7 PM for approximately one to one and a half hours, Saturday morning at 9 AM for 15 minutes, Saturday evening at 7 PM for approximately one to one and a half hours and finally Sunday morning at 9 AM for 15 minutes. [ 21 ] On October 23, 2019, Megan commenced proceedings seeking an order that the parties have joint custody of the children, the primary residence of the children be with Megan, that Michel have access to the children as agreed upon by the parties, child support, spousal support and an order for exclusive possession of the family residence. [ 22 ] On November 27, 2019, Michel signed an answer where he sought an order that the parties share all parenting decisions and responsibilities for the children and that they share equal time with the children. [ 23 ] On February 10, 2021, Megan amended her claim seeking new relief requesting sole custody of the children and adding a claim seeking an order to vest title in an undivided share of property. [ 24 ] In August 2022, despite having no background in the field, Megan started a massage therapy course through Willis College and received OSAP loan of approximately $31,000.

Megan testified that Willis College is seeking accreditation for the course. Megan does not know when she will return to school, which school she will attend including moving to Niagara Falls, Ontario or Victoria, British Columbia, where her sister resides, to pursue the course. The OSAP loan is Megan’s only current liability as approximately $10,000 was paid to Willis College and Megan has retained $21,000 in her bank account.

Megan testified that she started the massage therapy course as she thought she was going to trial in November 2022 but that the matter was removed from that trial sittings because of illness to Michel’s counsel. [ 25 ] On August 29, 2023, Justice McEachern, in dealing with a motion regarding which school the children would attend, appointed the Office of the Children’s Lawyer (OCL) to complete a Voice of the Child report. The report was completed on September 27, 2023.

DECISION-MAKING RESPONSIBILITY [ 26 ] Megan’s position is that she should have sole decision-making responsibility and Michel’s position is that the parties should have joint decision-making responsibility. [ 27 ]

Section 24 of the Children’s Law Reform Act requires the court to only take into account the best interests of children in making a decision regarding decision-making responsibility and parenting time and that the court should consider all factors related to the circumstances of the children giving primary consideration to the children’s physical, emotional and psychological safety, security and well-being.

Section 24 sets out a list of factors that the court is to take into consideration. [ 28 ]

Section 28 of the Children’s Law Reform Act grants the court jurisdiction to make orders regarding decision-making responsibility, parenting time and contact and sets out the various factors that the court is to consider in making such decisions.

Section 39.1 sets out the procedure for a person who has decision-making responsibility or parenting time with respect to a child and who intends to make a change in residence or in the child’s residence, requiring notice to be given to the other person with respect to the child of that intention.

[29] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Further, theonly consideration is the best interests of the children in any custody decision: see Gordon v. Goertz, (SCC), [1996] 2S.C.R. 27, at para. 28. [30] No one factor in the statutory definition of a child’s best interests is given statutory pre-eminence: see Wilson v. Wilson, 2015ONSC 479. [31] When the parties started to reside together in August 2011, Megan was pregnant with their first child.

From January 2012 toAugust 2016, Megan was on maternity leave for three full years and in the intervening period, she returned to work part-time as a cashierat the grocery store. [32] Michel worked in the farming industry as well as winter snowplowing. Michel admitted that from the birth of the first childuntil he left the family home in April 2019, he attended three or four family doctor appointments. He did attend a medical appointmentwith a surgeon regarding the injury to J’s hand and did not rebut the testimony of Megan that he never attended a dental appointment.

Onthe other hand, while Megan denies that Michel had any role in caring for the children, I accept Michel’s evidence that he changeddiapers, was up in the middle of the night with the children, played with the children, participated in bathing them, brushing their teethand tucking them in at night. [33] After Megan went back to work after her three separate maternity leaves, the paternal maternal grandmother cared for thechildren when she was at work. I accept Megan’s evidence that she was the primary caregiver of the children throughout the period ofcohabitation.

While Michel did participate in attending to the children when he was home, the primary responsibility fell to Megan, andshe was the person who took the lead. [34] Megan opposes a joint decision-making responsibility order because she cannot communicate with Michel and that he ignoresher text messaging and that they cannot jointly make decisions regarding the children. Further, she states that she was the parent whoalways made the major decisions. [35] Currently, B., is in ballet while the boys are not currently in any extracurricular activities, but that may change.

I find thatMegan was the person to register B., in ballet. I find that Megan was the parent who pursued counselling for J., and L. and soughtcounselling for the boys. I accept Megan’s evidence that Michel did not respond to her text message regarding the water leak in thebasement in February 2022 and it took him until the spring of 2023, when there was a flood in the basement, to act to remove mould.

Iaccept Megan’s evidence that she advised Michel that B., should be on all whole-wheat diet and avoid juice and that during cross-examination, Michel seemed oblivious to the concern raised by Megan. [36] In response, I find that Michel justified his lack of communication with Megan because she continually criticized him, whichwas one of the major reasons, he left the relationship. [37] I accept Michel’s evidence that Megan did not tell him about L. pulling his hair out and did not tell him that she took L. to adoctor in February 2023.

It was only in February 2023 that Megan told Michel regarding the eyelash incident with J. [38] I accept Michel’s evidence that Megan told him not to enter the home after separation but find that his decision not to attend atthe home in February 2022, when there was a leak in the basement, to be ill advised. His children were in the home and eventually hehired contractors to deal with the damage resulting in the drywall being replaced, in April 2023 and Michel receiving insurancereimbursement. That should have been addressed well before that date. [39] It is clear that the parties have conflict.

Megan has alleged that Michel was negligent when B., was involved in an accident withher four-wheeler, that Michel did not allow the children to bring stuffed animals, that Michel drove with the children in a backhoe on theroad, that Michel failed to follow Covid protocols, and that Michel would text while driving with the children in his vehicle. Micheldenied Megan’s allegations which were based on statements allegedly from the children. I find that the accident regarding the four-wheeler was unfortunate but, I do not find any evidence that Michel has acted negligently in the care of his children.

On the other hand,Megan stated that she has taken excellent care of her children. In cross-examination, she admitted that she accidentally ran over J., with alawnmower causing him to suffer serious injuries. While clearly an accident that Megan regretted, it still occurred while the child was inher care. [40] My concern is that Megan has not informed Michel of important events regarding the children.

For example, Megan sent Michela text message indicating that B. wanted to join ballet to which Michel responded that it was a good idea for her to become involved andasked if the boys were interested in doing something. Megan never responded to Michel’s inquiry. [41] In cross-examination, Megan admitted that she made most of the decisions after speaking with Michel but that on certain things,that he made certain decisions, and she did not have a say. I find that the parties discussed where the children would attend school andboth parties agreed that it would be Metcalfe Public school.

I find that prior to separation, both parties had a role in the major decisionsaffecting their children. [42] Even though Megan’s position at trial was that she should have sole decision-making responsibility, in cross-examination, whenasked why she originally sought joint custody, she indicated that she was trying to be fair but that difficulties over time changed her mindand that she had told her lawyer that she wanted sole decision-making responsibility. It was only in February 2021 that Megan changedher claim to sole decision-making responsibility.

Megan is attempting to shift the blame of her original request for joint custody to herlawyer despite her signing the document and only amending it in February 2021. [43] Megan testified that she decided to register the children in virtual school in August 2020 after Michel never responded to hermessage about her proposed plan. In cross-examination, she denied receiving the email exchange between counsel dated August 12/August 13, 2020, where Michel’s counsel indicated his view that the children should be attending school in person. I do not find thatMegan’s testimony as credible on this point.

I find Megan unilaterally decided to have the children continue to attend virtually and hasfailed to consider Michel’s desire for his children to attend in person.

[ 44 ] I find that Megan’s view is that she should have sole decision-making responsibility and that Michel should have no input into the major decisions affecting his children. Since separation, I find that Megan has attempted to have control over the children’s major decisions. I do not find that granting Megan sole decision-making responsibility is in the children’s best interests. I find no evidence to support an order removing Michel from that joint decision-making process. While I agree that there are difficulties between these parties, there is no allegation of domestic violence.

Even without domestic violence, the situation may be so toxic as to render a joint decision- making responsibility arrangement impractical. However, the children’s major decisions regarding school, education and activities are currently in place. I find no reason to grant one party sole decision-making responsibility to the exclusion of the other. [ 45 ] Megan has indicated that she may pursue a massage therapy course outside of Ottawa including joining her sister in Victoria, British Columbia.

I am concerned that if Megan is granted sole decision-making responsibility, she will not consult or consider Michel’s views regarding his own children. At this point, Megan has not presented an educational plan or an employment plan. This order is based on the circumstance that exists in December 2023.

If there is to be a change in circumstances, I find that providing both parties with decision-making responsibility will protect the children so that their parents each have an equal say in major decisions regarding them including education, health, activities and their residence. [ 46 ] For those reasons, I order that the parties have joint decision-making responsibility as follows:

a) I grant Megan the right to make the initial decisions regarding the children’s education, health and extracurricular activities. Megan shall communicate with Michel at least 14 days before any such decision is required. Michel shall respond within seven days. If Michel fails to respond, Megan can make the decision. If the parties do not agree, the parties shall submit the dispute to the Superior Court of Justice.

b) The parties are to communicate through text messages unless there is an emergency. In the event of an emergency, the party with the child shall attempt to reach the other parent before making emergency medical decisions for the child.

c) Megan shall retain the children’s birth certificates and shall apply for a passport for the children. She will retain possession of the passports and shall give them to Michel when he travels outside of Canada. Said passports which shall be returned promptly after traveling.

d) Megan shall

schedule all regular health and dental care appointments after consultation with Michel. Both parties may attend such appointments. The children’s health card will travel with them between the parties’ homes.

e) The parties may make inquiries and be given information by the children’s teachers, school officials, doctors, dentists, health care providers, summer camp counselors or others involved with the children. The parties shall have access to any information or documentation to which a parent of a child would otherwise have a right of access. The parties will cooperate and execute any required authorization or direction necessary to enforce the terms of this order.

f) Neither party shall be permitted to relocate the children outside of the city of Ottawa without the prior written consent of the other parent or court order.

g) Neither party may change the children’s name. MICHEL’S PARENTING TIME [ 47 ] Megan has agreed that Michel will have parenting time every Wednesday after school to 6 PM if the children attend Metcalfe Public School and to 7 PM if they attend Nationview Public School. Megan agrees that Michel can have the children every second weekend from school to Sunday at 6 PM. [ 48 ] Michel has requested that he have the children every Wednesday after school to 8 PM, every second weekend commencing on Thursday if Friday is a non-school day and until Tuesday if Monday is a statutory holiday.

In addition, he seeks to have extended parenting time for holidays including March break, summer holidays, Christmas school holidays as well as an equal sharing of Christmas Eve and Christmas Day. [ 49 ] During the trial, I received evidence from Michel’s girlfriend, Megan’s sister, and a family friend. I find that Michel’s girlfriend’s evidence supports a finding that the children have a close and loving relationship with their father and that she has developed a warm relationship with the children. I accept her evidence that the children did not show any fear or being uncomfortable in Michel’s care.

I find that Megan’s sister’s evidence is limited because from 2002 until 2017, she lived either in the Yukon or in Australia and had limited interaction with Megan, Michel and the children restricted to visits to the family. In 2017, she has lived in Perth, Ontario and then subsequently moved to British Columbia. Her evidence is that Michel does not interact with the children and that Megan assumes all of the childcare responsibility is limited to her limited interaction.

In addition, Megan’s sister admitted that much of her information is based on discussions with her sister and not from personal observations except in limited circumstances when visiting. Further, the family friend’s evidence is again restricted to family special occasions. Voice of the Child Report [ 50 ] In the Voice of the Child Report dated September 27, 2023, the OCL clinician met the children on September 19, 2023, while in the care of Megan and on September 23, 2023, while in Michel’s care. The interviews were held virtually, and all three children were alone in the room at the time of the interviews.

According to the clinician, the children’s views can be summarized as follows: J.’s interviews

a) J., 11 years of age, indicated that he does not want to attend Metcalfe Public School and that his preferences are to attend the

Nationview Public School because it is in the jurisdiction of Megan’s home, that he could be bused to and from school and that he no longer has any connections at the Metcalfe Public School. Further, the child indicated that the most prominent memory of going to the Metcalfe Public School was that his maternal grandmother and aunt died in a car crash on the first day of school in 2017, and that he finds it difficult to think about his maternal grandmother and aunt dying when he thinks of the Metcalfe Public School and indicated he had bad memories at that school.

b) J., indicated not wanting overnight weekday visits with his father because it was interrupt his schooling, that he does not like his father making processed packages meals, that he does not want equal time but it might be okay for a week in the summer or in the winter holidays but does not want any additional time added to the regular schedule.

c) He further indicated that his main concern with adding more time with the regular parenting

schedule is how his sister and brother would handle it because his brother has great difficulty in being away from the mother. L’s interviews

a) The clinician indicated that this child, 10 years of age, was anxious and emotional and he appeared to worry a great deal about being taken away from his mother.

b) The child indicated he does not want to attend the Metcalfe Public School but rather the Nationview Public School because he lives with his mother and can get to school bus from his mother’s home. He indicated he does not want more time with his father but wanted less time with his father. He reported that he worries about his mother but could not explain why. He stated he did not feel good at his father’s home but indicated it had nothing to do with what his father does or does not do.

c) The child stated that he did not feel the best when it was time to leave his mother’s care and go to his father’s home, especially on weekends and that when he goes to bed while in his father’s care, his tummy hurts, and he worries. B’s interviews

a) The child, 8 years of age, stated she had a good relationship with her brothers, mother and father.

b) She indicated that she finds that going to her father’s home to be boring and that she is not a big fan of overnights because she would be scared. She is not happy that Michel has a girlfriend.

c) She stated that she wanted to attend Nationview Public School but that she no longer knows anyone at Metcalfe Public School and does not have any memories of attending school four years ago, but that she did not tell her father directly that she wanted to go to that school because she is too scared to tell him but noted that her father does not get mad very often.

d) She reported that she does not want an increase in the time that she and her brothers stay with the father because she gets scared because of some of the YouTube videos that she watches despite her father telling her to not watch the videos. [ 51 ] The clinician concluded by indicating that the children did not want to attend Metcalfe Public School and wanted to attend Nationview Public School. The clinician indicated that the views and preferences of the children must be viewed in light of the fact that the children are all aware that their parents are in a dispute about the parenting

schedule and the school placement. The clinician concluded that despite this awareness, based solely on the two interviews, there is no indication that their views and preferences have been directly influenced. Disputed Issues [ 52 ] The parties do not agree on the following issues:

a) What school should the children attend?

b) At what time are the children returned to Megan on the Wednesday parenting time; and

c) Holiday schedule. What school should the children attend? [ 53 ] The parties do not agree on the school the children should attend. Megan requests that the children attend Nationview Public School while Michel proposes Metcalfe Public School. [ 54 ] All three children attended the Metcalfe Public School but with the onset of the Covid pandemic in March 2020, the children did not attend school but were homeschooled by Megan. In August 2020, over the objections of Michel, Megan registered the children to attend school virtually.

I accept Michel’s evidence that Megan was concerned that the children would be scared if they saw a teacher with a mask over their mouth with a face shield. [ 55 ] Megan’s position is that the children should attend Nationview Public School because the school is in her catchment area and the children can be picked up and returned by school bus. Megan indicates that all three children have told the OCL clinician that they want a new school.

Further, Megan submits that the children have no community at the Metcalfe Public School as they have not attended it in over 3 ½ years, but rather have engaged in an online community with students who participate in the virtual school setting. [ 56 ] Michel argues that the children attended Metcalfe Public School and should have returned in September 2020, but that Megan unilaterally stopped their in person attendance.

I accept Michel’s evidence that after the untimely death of Megan’s mother and sister, in 2017, the father would drive the boys to his mother’s residence where the children would be picked up by bus and delivered to and from the Metcalfe Public School. Within a few months, Michel started to drive and pick up the boys directly to the Metcalfe Public School.

This evidence is corroborated by Michel’s brother, who testified that he was surprised to see his brother in the village of Metcalfe in the middle of the afternoon to pick up his children. Normally, according to the brother, Michel would be working as a farmer. [ 57 ] Michel does not want the children to attend virtually and Megan now agrees that the children should attend in person. As a result of moving to Vernon, Ontario, Michel lives in the same catchment area as the Metcalfe Public School and has no intention of moving outside of the catchment area.

During the trial, Megan testified that she has not finalized her future plans to pursue massage therapy but has considered potentially moving to Victoria, British Columbia where her sister lives. Further, Michel has requested that Megan vacate the family residence by May 1, 2024.

As such, Michel argues that Megan’s residence will change in 2024 that may result in the children having to change schools again. [ 58 ] Michel argues that his mother, who has a close relationship with his three children, has in the past and is available in the future, to care for the children both before and after school, the children are in the catchment area of the Metcalfe Public School and that they would be picked up at his home and dropped off at his home. [ 59 ] Finally, Michel argues that Megan has influenced the children because they have evidently indicated that they wish to attend a school that they have only seen from the outside.

Megan and her sister attended the Nationview Public School. [ 60 ] The issue of which school the children should attend is focused on their best interest and not the best interests of the parents. I have considered the views and preferences of the children who are 11, 10 and 8 years of age. According to the OCL clinician, the children wish to attend Nationview Public School. I am concerned that Megan, with whom the children live primarily, has influenced the children to that view. I note that the OCL clinician indicated that after two virtual interviews, she could not find any influence.

However, I have observed Megan testify and participate in this trial and I find that that she is very reluctant to allow the father to have any influence on the three children. I find it very unusual that Megan insists on calling the children four times on the weekend when they are with their father. While I respect her role as a mother, I find that she is not supportive of Michel’s role.

I also note that J., has indicated a negative emotional response to return to Metcalfe Public School while the two younger children want to attend the new school because they no longer have memories of their old school. [ 61 ] I find that if the children attend the Nationview Public School, the children would be picked up at Megan’s home at approximately 8:45 AM and return sometime after 4 PM. If the children attend Metcalfe Public School, they have bus service from Michel’s home.

However, there is no evidence as to what time the bus would pick up and return them to his home or to the paternal grandmother’s home where the children were picked up and dropped off after school, prior to the Covid pandemic. Further, there is no plan as to how the children are going to be dropped off at Michel’s home in Vernon to be picked up or from the paternal grandmother’s home in Metcalfe.

I find having to move the children to either of those homes during the week when they are in the primary care of their mother, is not in their best interests. [ 62 ] Prior to separation, Megan was the primary parent responsible to ensure that the children attended to their homework. Once the Covid pandemic struck, Megan has been homeschooling the children. Since June 2019, the children live with Megan during the week returning to her home after Michel’s parenting time during the week at 6 PM.

I find that Megan has been the parent attending to the children’s education and that the children’s primary residence is at her home. Michel will have the children on Wednesdays and every second weekend. [ 63 ] Based on the ages of the children and my concern that they have been influenced by Megan, I do not place much weight on their views and preferences. However, I accept the clinician’s comment about the emotional response for J. to attend that school. I prefer Megan’s plan of having the children picked up and dropped off at their primary residence when compared to Michel’s plan.

I conclude by finding that all three children will attend the Nationview Public School as of the return to school in January 2024. [ 64 ] I recognize that Michel’s concern is that once Megan leaves the Belmeade Road residence, that she may move again. In the event that Megan seeks to move the children’s school, she will require Michel’s consent failing which this issue will be litigated in the Superior Court of Justice. At what time are the children returned to Megan on the Wednesday parenting time [ 65 ] The parties agree that Michel will have the children every Wednesday after school.

The parties disagree when the children would be returned to Megan’s care. Megan submits that the children should be returned at 6 PM if they attend the Metcalfe Public School and 7 PM if the attend Nationview Public School. Michel requests to return the children at 8 PM. Megan testified that the children have supper between 5 PM and 5:30 PM, take their baths around 6 PM, B. goes to bed around 9 PM, L. at approximately 9:30 PM and J. at approximately 9:45 PM. [ 66 ] I accept Michel’s evidence that it is approximately a 40-minute drive from his home in Vernon to the Nationview Public School.

I see no reason why Michel cannot feed his children supper and return them to Megan’s home at 8 PM. Any homework that is required can be completed by the children while in their father’s care. [ 67 ] One of the reasons that Megan seeks that the children be returned home is because she talks to them before bed about their day. While I appreciate that Megan has that opportunity, I find that Megan fails to recognize the importance of the father, Michel, spending quality time with his children.

During the school year, the children will reside with Megan every Monday, Tuesday and Thursday evening as well as every second Friday. I find that Megan will have many more opportunities than Michel to talk to the children as they go to bed about their day. [ 68 ] Balancing the factors set out herein, I find that it’s in the children’s best interests to be with their father on Wednesday after school until 8 PM. Holidays [ 69 ] Michel requests that he would have parenting time with his children from Friday after school until 8 PM (extended to Thursday

after school if Friday is a non-school day) and to Monday evening at 8 PM if Monday is a statutory holiday. Megan opposes such an extension of parenting time because the children should be with her on these days. I find that Megan has not provided any valid reason why the children should not be with their father if Friday is a non-school day and if Monday is a statutory holiday. I find Megan’s opposition is an extension of her attempt to restrict Michel’s parenting time with his children. My focus is the best interests of the children and not the parent.

For that reason, I see no reason why Michel should not have the extension of time as requested and that such an extension of time would be in the children’s best interests. I grant Michel’s request. [ 70 ] For holidays, Michel requests the following schedule:

a) The children will stay with Michel during the March break in odd-numbered years and with Megan in even-numbered years, from after school as the break starts until the start of school following the break.

b) The children will stay with Megan on Easter weekend in odd-numbered years and with Michel in even numbered years, from after school on Thursday before the Easter weekend until Easter Sunday at 1 PM and with the other parent from 1 PM on Easter Sunday until Monday evening at 8 PM.

c) If the children are not otherwise with Megan on the Mother’s Day weekend, the children will stay with Megan on the Mother’s Day weekend from Saturday at 7 PM.

d) If the children are not otherwise with Michel on the Father’s Day weekend, the children will stay with Michel on the Father’s Day weekend from Saturday at 7 PM until Sunday evening at 8 PM.

e) Michel will have three weeks of summer holidays of which two weeks shall be consecutive and Megan will have three weeks of summer holidays of which two weeks may be consecutive. Michel shall have the right in even numbered years to advise Megan by May 1 as to which three weeks of holidays he is selecting. Megan will advise Michel by June 1as to which three weeks of holidays she is selecting. In odd-numbered years, Megan will advise Michel by May 1 as to which three weeks of holidays she is selecting. Michel will advise Megan by June 1 as to which three weeks of holidays he is selecting.

f) The children will stay with Michel on the Thanksgiving weekend in odd-numbered years and with Megan in even-numbered years, from after school on the Friday before Thanksgiving until Sunday at 1 PM and with the other parent from 1 PM on Sunday until Monday at 8 PM.

g) The parties will equally share the children’s Christmas school break. The children will stay with Michel for the first half of the Christmas school break in odd-numbered years and the last half of the Christmas school break in even-numbered years and with Megan for the first half of the school break in even-numbered years and the last half of the school break in odd numbered years. The first half of the school break will start after school on the last day of school in December and end at noon on the date that is the halfway point of the Christmas school break.

The second half will start at noon on the date that is the halfway point of the Christmas school break and end at the start of school on the January return date.

h) Regardless of the Christmas school break

schedule set out herein, in odd-numbered years, the children will stay with Michel from December 24 at 9 AM until December 25 at noon and with Megan from December 25 at noon until 9 PM on Boxing Day and in even- numbered years, the children will stay with Megan from December 24 at 9 AM until December 25 at noon and with Michel from December 25 at noon until 9 PM on Boxing Day.

i) Each child will spend their birthday in accordance with the regular parenting routine. [ 71 ] Megan’s position is that the parties would follow the regular parenting time for March break, Easter and Thanksgiving weekend, summer vacation, children’s birthdays and that each parent would have the children on Father’s Day and Mother’s Day from 9 AM to 6 PM. Megan requests that the regular parenting

schedule should continue during the Christmas school break except that Michel will have the children on Christmas Eve from 12 PM to 9 PM and Boxing Day from 10 AM to 6 PM while she will have the children Christmas Day and in the event that Christmas Day is on Michel’s weekend /day, the children will be with her from 9 PM on Christmas Eve until 10 AM on Boxing Day. [ 72 ] On the issue of Christmas, Megan indicates that Christmas has historically been a very special time for her family and that since the children were born, they have always spent Christmas Day with her family.

She states that Christmas Eve is more important for Michel and for these reasons, she proposes that Michel never have the children on Christmas day. [ 73 ] I find Megan’s position that Michel should have no extended holiday time with his children to not be in the best interests of these three children. I find that Megan has not supported the children’s relationship with their father.

I prefer Michel’s evidence that after separation he attended at the family home every second day from approximately 4:30 PM to 5:30 PM to visit his children and that Megan did not allow him to re-enter his property and that he spent time with his children outside of the family home. I accept Michel’s evidence that he drew frustrated and wanted more time with the children, but that Megan refused resulting in the parties going to mediation. [ 74 ] Despite working out a temporary parenting plan, Megan never increased Michel’s time with his children.

In his answer filed in November 2019, Michel sought equal parenting time. [ 75 ] I find that Michel acquiesced to Megan’s request to return the children early during his parenting time when on September 15, 2019, Michel dropped the children off early at Megan’s home at 3 PM instead of 6 PM and on October 31, 2019, he dropped the children off early at 5 PM instead of 6 PM. For Christmas Eve, 2019, Michel asked Megan if he could return the children at 9 PM rather than 6 PM. She refused and only allowed him an extension to 7 PM.

When he was a few minutes late, she called him on his cell phone asking where he was with the children. Michel did not answer but delivered the children a few minutes after 7 PM. [ 76 ] For the year 2020, 2021, 2022 and 2023, Megan has not allowed Michel to have the children on Father’s Day except on one occasion when it fell on his weekend. Megan has never allowed Michel to have the children on Christmas Day, share in the March break,

or have any summer holidays. [ 77 ] As the mother of these children, Megan has a positive obligation to foster and encourage a relationship with the children. I find Megan has failed to do so. [ 78 ] Even when Michel has the children in his care for weekend parenting time, Megan calls four times every weekend. I find that this is an attempt by Megan to have control of her children even when they are in the care of Michel. This attempt to dominate Michel’s relationship with his children is reflected in her position for holiday time.

Megan’s proposal to not permit Michel to have children on Christmas Day, March break and summer holidays is not in the children’s best interest as the father has an equal right to spend time with his children. [ 79 ] The additional time sought by Michel must be viewed in an analysis of the best interests of his children. I find that the requests by Michel are in the best interests of their children when compared to the very restrictive and unjustifiable position taken by Megan. Megan has provided no justification for Michel not having the children during the holiday time requested.

Megan testified that when asked about Michel’s request to keep the children longer if it is a professional development day on Friday or a statutory holiday on Monday, she testified that the children should be with her. I find that Megan does not have any concept of the equal role that parents have in raising their children. [ 80 ] It is time for Megan to allow the children to spend quality time with their father rather than being restricted , during the school year, to Wednesday evenings and every second weekend. The current

schedule allows the children to sleep at their father’s home 4 nights out of 28 nights. I find no evidence that the children are at risk in his care but rather, I find that there is a close and loving relationship between the children and the father. [ 81 ] I find that it is in the children’s best interests that Michel have parenting time on Father’s Day, the March break, the Easter weekend, summer holidays, the Thanksgiving weekend and an equal sharing at Christmas time. As such, I grant the relief claimed by Michel in paragraph 3 of his draft order set out in paragraphs 70 herein.

Ancillary issues [ 82 ] Both parties have requested a right of first refusal to care for the children if the other parent is unavailable. The specific requests by each party do not provide any indication as to when this right would arise such as when a parent is unavailable for a specific number of hours, or overnight or being out of town. As both parties have agreed that each have the necessary parenting ability, it will be up to the parent with whom the children are residing to make necessary arrangements always ensuring the best interests of their children.

I reject such relief to both parties. [ 83 ] Michel seeks an order for permission to travel outside of Canada with the consent of Megan, which is not to be unreasonably withheld. Megan indicates that the parents can travel freely during the regular parenting time and if travelling outside of the country, the other parent is to be informed in an itinerary provided with up-to-date contact information for the children while out of the country. I agree that both parties now will have the opportunity to have extended vacation time with their children including March break and summer holidays.

I order that either party may travel outside of Canada with their children with the consent of the other party, which consent is not to be unreasonably withheld. The travelling party shall provide 60 days notice in writing to the other parent setting out a detailed itinerary as to where the parent is travelling with the children, when the children will leave Canada and return, the address of the location where the children will be travelling outside of Canada and any particulars regarding travel including flight information, if applicable.

If the parties are unable to agree on either party travelling outside of Canada with the children, that issue may be submitted to the Superior Court of Justice for adjudication. TABLE CHILD SUPPORT [ 84 ] On the issue of child support, Megan seeks table child support commencing January 2020,

section 7 expenses, annual disclosure, review of the table amount of child support, termination of child support and seeks to claim the eligible dependent credit for the child. [ 85 ] Michel seeks to impute an income minimum wage income to Megan commencing in January 2020. Megan opposes any imputation of income to her. Megan’s income [ 86 ] Megan has provided her notices of assessments which disclosed that she had no income in 2020, $4913 in income in 2021, no income in 2022, and that she testified she has no income in 2023. As the children have lived primarily in the care of Megan, her income is relevant for determining her share of the

section 7 expenses and on the issue of spousal support. The only expense currently being incurred is ballet and there is no information about the cost or any request that Michel contribute. Michel’s income [ 87 ] Michel is self employed as a farmer. Michel filed two financial statements in this litigation being November 27, 2019, and November 22, 2023. Michel filed an income tax return for 2015 and 2022. He provided notices of assessments for the years 2019, 2020, and 2021.

His two financial statements provide the exact same amount of monthly income being $1666.67 of self-employment income and $274.71 of income from other sources for an annual income of $23,296.56. [ 88 ] Megan’s sought to impute an income to Michel in the amount of $55,000 and according to her, it is probably closer to $100,000. Michel agreed to have an income imputed to him of $55,000. [ 89 ] Michel’s two financial statements disclose no monthly expenses. After Michel was examined in chief and cross-examined by Megan, I asked Michel to explain why there were no expenses on his financial statement.

He indicated that they were paid by the

business. As Michel is a self-employed person, he has an obligation to provide full financial disclosure. I find he has failed to do so. [ 90 ] Faced with no expenses, I requested if certain expenses were paid by his business that should have appeared on his financial statement. In response, Michel admitted that the mortgage on his current residence, Hydro, propane, Internet, property taxes, property insurance, repairs, personal gas and life insurance are all paid by his business to the monthly amount of $2683.

Further, he indicated that the family residence where Megan and the children reside, he paid for heat, Hydro, property taxes and insurance in the amount of $824 per month. Even though there is a mortgage registered on that property in favour of his mother, he testified he makes no monthly payments. [ 91 ] Based on those admissions, I find that in addition to his income of $23,296.56, Michel has expenses in the amount of $42,084 per year paid by his business which should be included as income after being grossed up for applicable income taxes.

I requested that counsel for Michel prepare a Divorcemate calculation and based on that calculation, including Michel’s income of $23,296.56 plus $42,084 grossed up, Michel’s annual income is $82,768. [ 92 ] Michel testified that his income, since 2020, has been approximately the same income and at that same personal expenses were paid by his business as he moved into his new home in 2019. I find that for the years 2020, 2021, 2022, and 2023 going forward, I impute an income to Michel in the amount of $82,768 every year. [ 93 ] The children have been in Megan’s primary care since separation.

Based on an income of $82,768, Michel should have paid table child support to Megan in the amount of $1635 per month. Megan claimed table child support without an exact amount in her initial application filed in October 2019. I find that Megan did so because she did not know Michel’s annual income.

On Michel paying table child support of $1635 per month from January 1, 2020 to December 1, 2023, a period of 48 months, Michel would owe Megan $78,480 in child support. [ 94 ] Michel argues that there should be no child support paid as of January 1, 2020, because it was an implicit agreement that he would cover the expenses of the family residence and that Megan never complained. Michel argues that reasonable arrangements were in place by acquiescence.

I reject that submission because Megan did not know what the expenses were being paid for the family residence, Megan did not know what Michel’s actual income was up to this trial and consequently, Megan did not know what the table child support should have been. Further, neither party testified as to any such agreement. [ 95 ] Michel argues that the children have been in the same standard of living from the date of separation and that there should be no order because a standard of living is the same. The standard of living is not the applicable test for the payment of table child support.

All parents have an obligation to pay table child support in accordance with their income. There is no calculation in the child support guidelines for standard of living of table child support. This argument is rejected. [ 96 ] Michel argues that Megan admitted that if she is required to move from the family residence, it will cost her approximate $3000 a month to rent a similar property. Based on that statement, Michel argues that he should be credited with the $3000 a month towards support plus the $824 a month that he actually paid for carrying costs for the Belmeade Road.

While Michel is not seeking a credit for his alleged overpayment, he submits that he should receive the benefit of such a de facto payment resulting in him owing no arrears of table child support. I reject this argument. The evidence is that Megan supported the children based on the child tax benefits and partly through the inheritance she received in 2018, 2019 and 2020. Megan’s budget filed in this proceeding is frugal and based on the funds that she lived on.

Michel never paid any support directly to Megan. [ 97 ] I agree that Michel should be credited the $824 per month he paid for carrying costs for the family residence for the 48 month period totaling $39,552. I find that Michel owes Megan the net some of $38,928 for the period of January 1, 2020 to December 1, 2023.

I order Michel to pay the sum of $38,928 to Megan on or before March 1, 2024. [ 98 ] Commencing January 1, 2024, based on Michel’s income, Megan remaining in the Belmeade road residence until the end of June 2024 and Michel paying all expenses related thereto, Michel shall pay to Megan table child support in the amount of $1635 less $824 for the carrying costs resulting in a net payment of $811 per month. [ 99 ] Commencing on July 1, 2024, based on Michel’s income of $82,768, I order Michel to pay table child support to Megan for the three children in the amount of $1635 per month.

ONGOING OBLIGATION OF FINANCIAL DISCLOSURE [ 100 ] By May 1 of each year, in which child support is payable, both parties shall deliver to each other a copy of their income tax return for the previous year. In addition, both parties shall, within 10 days of receipt, email a copy of their notice of assessment or notice of reassessment (if any). [ 101 ] Based on the disclosure obtained, the parties shall determine the appropriate amount of child support and proportionate share of

section 7 expenses. In the event the parties cannot agree, the matter shall be submitted to the Superior Court of Justice for adjudication. SPOUSAL SUPPORT [ 102 ] Megan seeks spousal support retroactive to January 1, 2020, which is opposed by Michel. [ 103 ]

Section 30 of the Family Law Act (“FLA”) provides that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of. Section 33(8) of the FLA provides that an order for 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 provisions 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 Part One. [104] Section 33(9) of the FLA states that in determining the amount and duration, if any, of support for a spouse or a parent in relationto need, the court shall consider all the circumstances of the parties. [105] Compensatory support is meant to acknowledge the contributions of a spouse to the relationship and any financial opportunitieswhich the spouse has forgone for the sake of the family or other spouse.

Generally, compensatory awards are seen where one spouse hassacrificed career opportunities, has made significant contributions to the household, and where one spouse has made significantcontributions to the other spouse’s career. Kerr v. Erland, 2014 ONSC 3555. [106] In Bennett v. Young 2009 CarswellOnt 5099, the court stated at paragraph 208: “The point of compensatory support and its statutory enabling in s. 33(8) of the Family Law Act is meant to acknowledge thecontributions of one spouse to the domestic sphere and the effect of that contribution in future.

Rather than merely allowing for supportas a limited, means-to-and-end to make the other party “self-sufficient”, the Supreme Court of Canada has emphasized that supportshould knowledge the significant domestic contributions during the existence of the family as a unified entity, and as a way to repositionthe family, post-dissolution, to the same place.” [107] In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain thestandard of living to which he or she was accustomed to at the time cohabitation ceased.

The analysis must consider the recipient’s abilityto support him or herself, in light of his or her income and reasonable expenses. Gray v. Gray, 2014 ONCA 659. [108] Where a spouse maintains a similar standard of living to that he enjoyed before separation, there is no basis for a needs-based,non-compensatory claim for support. Lamothe v. Lamothe, . [109] Non-compensatory support may arise from the mere fact that a person who formerly enjoyed inter-spousal entitlement to supportnow finds herself or himself without it.

A party’s accustomed standard of living during a relationship is an appropriate part of contextupon which need should be based. Blackstock v. Comeau, 2018 ONSC 193. [110] The word “need” is not limited to one’s basic needs. It can be interpreted to cover situations where a spouse suffers a significantdecline in the standard of living, he or she enjoyed during the relationship. Nixon v. Lumsden, 2020 ONSC 147.

Entitlement [111] Michel submits that Megan has no entitlement to spousal support because she has not suffered any economic disadvantage andMichel has not received any economic advantage by the roles assumed by the parties. He argues that Megan did not complete hercardiology technology course and that she was a cashier when he met her and was a cashier until she stopped working in September2017.

He argues that she has not sustained any loss that needs to be compensated. [112] Michel submits that Megan has produced no evidence of her inability to work and that her own sister testified she is a verycapable and very intelligent individual. She suffered no career loss as she had no career. [113] With respect to Megan’s career, she admitted that Everest College no longer exists and that she has no plans to resume thateducation. When she met Michel, she was studying to be a cardiology technologist, but she never progressed to the final stage.

After thebirth of all three children, after a maternity leave, she returned to working as a cashier. Michel worked as a farmer throughout therelationship. [114] I do not find that Megan has an entitlement to compensatory spousal support. I do not find that Megan sacrificed any careeropportunities, that she made significant contributions to the household or that she made significant contributions to Michel’s farming. [115] I find that Megan has an entitlement to needs based spousal support. Megan paid for groceries and gifts for the children andMichel paid for everything else.

Megan has received child benefits which according to her financial statement dated May 1, 2020, in theamount of $1845 per month and in her financial statement November 24, 2023, she now receives $2,067.41 per month. [116] Megan testified that she surprised when Michel left April 21, 2019. At that time, she was dependant on Michel as he provided ahouse and paid all expenses. After separation to date, Michel pays the same expenses. Megan resides in the house with the children andpays for groceries and gifts. Based on Michel paying the housing expenses, Megan had lived off the child tax benefits and herinheritance.

Michel created this need by providing a house with a rental value, according to Megan and accepted by Michel, of $3,000 permonth with all expenses paid. Quantum [117] In determining the quantum of spousal support, I have taken into consideration the ranges and duration of spousal support as setout in the Spousal Support Advisory Guidelines (“SSAG”) calculations. Counsel for Michel provided three Divorcemate calculations asfollows:

a) based on no income being imputed to Megan, Michel having an imputed income of $82,768 and paying table child support of$1635, that the range of spousal support would be low-$190 per month, mid-$388 per month and high $575 per month as spousalsupport.

b) based on Megan having an imputed full-time minimum wage of $32,272 for the year 2023, Michel having an imputed income of$82,768 and paying table child support of $1635, the SSAG’s provide for no amount of support.

c) based on Megan and imputed part-time minimum wage income of $20,592, with Michel having an imputed income of $82,760 and paying $1635 per month as table child support, the SSAG’s provide for no amount of support. [ 118 ] The question is when should Megan have an imputed income? I prefer and accept Michel’s evidence that he never agreed that Megan would never work and would stay at home raising the children.

While I accept that Megan was not in a position to return to work in September 2017, since separation in March 2019, Megan has chosen not to work and has provided no evidence that she was unable to work or that she even pursued any type of work. [ 119 ] Megan’s sister testified that her sister was bright and very intelligent. Megan presented as an intelligent and resourceful person. Megan is 39 years of age without any medical issues. I see no reason why she could not have returned to work before December 2023. [ 120 ] Megan has never worked more than parttime hours when she lived with Michel.

I find that it is appropriate to impute part-time hours to Megan which is more consistent with her work up to September 2017. I find that if Megan was working full-time at minimum wage that her income would range between $30,000 in 2020 to $32,272 in 2023. I find that if Megan was working part-time that her total income would be approximately $20,592.

I impute an income to Megan of $20,592 per year starting in 2022. [ 121 ] In my view, Megan should have returned to work by January 1, 2022, as that recognizes the period of the COVID pandemic when she home schooled the children, and this period of time was enough for Megan to return to work on a parttime basis or go to school. She did neither until August 2022. [ 122 ] Starting January 1, 2020, based on Michel’s income of $82,768 and Michel paying table child support of $1635, Megan would be entitled between $190 to $575 per month in spousal support.

However, having found that Megan has a needs-based entitlement to spousal support, the question is does Megan need spousal support for that period of time? [ 123 ] Megan commenced proceedings in 2019 and never brought a motion for interim spousal support. From 2018 to 2020, Megan received over $200,000 from an inheritance which has been completely exhausted including paying $110,000 in legal fees. Megan received child tax benefits. [ 124 ] I find that Megan has no need as of January 1, 2020, to December 1, 2021. Her circumstances were the same that existed throughout the relationship.

She supported herself with her own resources. Her standard of living did not change. She remained in a home with all expenses paid by Michel. She provided no evidence that she ran a deficit of expenses confirmed by her only debt being an OSAP loan. [ 125 ] By imputing a part-time income to Megan as of January 2022, imputing an income to Michel and Michel paying child support, no spousal support is payable. [ 126 ] The SSAG’s range of the duration of spousal support is a minimum of 3.75 years and a maximum duration of 15 years.

Megan may return to the Willis Business College despite not having attended since the end of 2022 or may seek to pursue another course of study. However, at the trial, Megan did not present an educational plan for the court to consider. Consequently, Megan is not working, the children will be returning to school in person in January 2024 and she has no firm plan to pursue any education. [ 127 ] At this time, Michel does not have a support obligation based on the circumstances of Michel, Megan and the children.

Things may change. [ 128 ] I have considered that the parties lived together from August 2011to March 27, 2019. At the time of separation, J., was seven years of age, L., was five years of age and B., was three years of age. At the time of the trial, Megan is 39 years of age and will either return to work or to school. I find 8 years from January 1, 2020, is an appropriate period of time during which Megan may claim spousal support if there is a material change in circumstances of herself, Michel or the children. As such, Megan’s entitlement to spousal support shall cease as of December 1, 2028.

Security for Support [ 129 ] Section 34(1) of the FLA provides that a court may require a spouse who has a policy of life insurance as defined under the Insurance Act to irrevocably designate the other spouse or child as the beneficiary. [ 130 ] Currently, Michel has designated the children as the beneficiaries of his life insurance policy with Cooperators in the amount of $500,000.

In Michel’s first financial statement dated November 27, 2019, Megan was the designated beneficiary of the life insurance. [ 131 ] According to the Divoremate calculations, the amount of life insurance required to secure a monthly child support payment of $1,635 is $161,294. [ 132 ] Michel agrees to designate Megan as a beneficiary in trust for the children in the amount of $161,294 of his life insurance policy with Cooperators to secure his obligation of child support. [ 133 ] I order that Michel designate Megan as the irrevocable beneficiary in trust for the children of his Cooperators life insurance policy in the amount of $161,294 for so long as Michel has an obligation to pay child support.

Michel is to provide Megan with a copy of the designation within 30 days of the release of these Reasons for Judgment. [ 134 ] The amount of life insurance may be varied in the event of a material change in circumstance. UNJUST ENRICHMENT [ 135 ] Megan testified that during the period of cohabitation, she contributed to farm work and assisted with the farm and that both Michel and Megan considered the farm a joint venture. Megan indicated that she primarily assisted with the business part of the farm as

she was a certified bookkeeper and that she applied her bookkeeping qualifications to assist Michel’s farm. Further, she argued that the parties discussed issues related to the farm and worked together towards acquiring assets for their retirement. Megan testified that the parties considered their relationship a partnership and that the parties acted as a married couple. Based on the unjust enrichment, she seeks a payment for Michel of $400,000. [ 136 ] Michel denies that Megan has any entitlement to compensation for unjust enrichment.

Michel indicates that the parties never had a joint bank account, that Megan received the child tax benefits monthly and deposited the amount, unknown to Michel, into her own bank account and that she received inheritance related to the death of her mother that she deposited to her joint account. Michel denies that he never viewed the relationship as a partnership. [138] Megan has the burden of proof to provide evidence to justify a finding of unjust enrichment.

In Kiriakou v Pentzos , 2020 ONSC 227 McGee, J. described the remedy of joint family venture as follows in para. 1: Joint family venture is a remedy that first requires a finding of unjust enrichment. An unjust enrichment is more than the exchange of mutual benefits arising from cohabitation or the sharing of expenses. As stated by Justice Cromwell at paragraph 31 of Kerr v. Baranow 2011 SCC 10 , it is an unequal retaining of benefits that equity does not permit.

Megan has the burden of proof to show that Michel has been enriched, that Megan has suffered a corresponding detriment and that there is no juristic reason for Michel’s enrichment. If unjust enrichment is determined, a joint family venture and/or a constructive trust may be ordered by the court as a remedy for unjust enrichment. [139] From 2002 to 2010, Michel and his brother operated a farming business. In 2003, they started a snowplowing business including being a subcontractor on contracts in the city of Ottawa.

By 2006, they stopped working in the city of Ottawa as they had a very successful snowplowing client base. In 2006, they started purchasing land and farming themselves. [ 137 ] By 2006, they purchased the family homestead financed by his parents agreeing to a vendor take back mortgage.

In 2008, they purchased 100 acres financed by Farm Credit and a second 100 acres the subsequent year, primarily financed by a vendor take back mortgage. [ 138 ] In 2010, the brothers started a dairy business, forage harvesting, manure spreading, farming, and snowplowing in the winter. [ 139 ] When the parties met in 2010, Michel’s business comprised of approximately 400 acres of cash crops, forage harvesting, manure spreading and snowplowing in the winter. In 2010, the brothers received a grant from the Dairy Farmers of Ontario to start dairy farming which required them to purchase cows.

This purchase was financed by a loan from Farm Credit. [ 140 ] When the parties started to live together in August 2011, Michel had these assets and corresponding liabilities. Megan had no involvement in creating the farming assets up to the date the parties started living together. [ 141 ] When they started living together in August 2011, they lived in the former home of Michel’s parents on the family farm. In 2013, they sold the farm.

Michel purchased a property, in his name alone, on Belmeade Road for $300,000 in May\June 2013 financed by Michel putting down a $50,000 down payment and his parents financing the balance of $250,000. The parties moved into the residence after purchase. [ 142 ] In April 2013, the brothers agreed to divide their joint assets and to operate independently. Michel’s brother retained the manure spreading and forage harvesting services while Michel the snowplowing operation.

Michel borrowed $600,000 from his parents to buy out his brother’s interest in the joint lot purchased in 2007 and is one quarter interest in the second lot purchased in 2010. [ 143 ] By August 2011, Megan was pregnant with their first child, J. She continued to work 4-5 shifts of six hours per week at the grocery store and Michel planted and harvested his cash crops during the farming season.

After the birth of each of the three children, after Megan was on maternity leave for a year, she returned to work as a cashier 4 to 5 times per week. [ 144 ] In July 2015, Michel purchased the East quarter of Lot 25 which was vacant lot at a cost of $210,746 which was financed by a mortgage from his parents of $210,000. In July 2016, Michel purchased more property in Elgin, Ontario financed by a mortgage to his parents in the amount of $492,443. Michel was required to drive to and from that property to plant and harvest crops for sale.

In addition, Michel had vacant lots throughout the area where he would plant and harvest cash crops. [ 145 ] Megan testified that Michel and Megan considered themselves a unit and that it was through joint efforts that Michel was able to accumulate wealth. Megan filed a copy of an insurance policy as exhibit number five dated June 11, 2013, which was completed by the insurance broker and indicates the marital status of the parties to be “married”. Michel denied telling the insurance agent that the parties were married and by that date, the parties were not married.

As a form was not reviewed by Michel but rather prepared by the insurance agent, I accept Michel’s evidence that the agent made a mistake to indicate that the parties were married. [ 146 ] Megan argued that during the planting and harvesting season, she took care of the children allowing him to attend to his various fields as well as to purchase new equipment. Michel admitted that during the harvesting and planting season, there were many hours required to accomplish the various tasks subject to the weather.

He readily admitted that his snowplowing business could not be maintained without Megan being able to care for the children because he would go out at 4 AM for a morning shift and returning for an evening shift. However, Michel indicated that in a normal winter there were approximately 20 to 25 shifts between November 15 and April 15. [ 147 ] Megan indicates she graduated with a bookkeeper certificate from Algonquin College on May 1, 2015, which was an online course that she took while on maternity leave.

Megan testified that her role as a bookkeeper was limited to spending between 1 to 2 weeks per year to post all of the receipts provided to her by Michel for farm income and expenses to an accounting program to provide to the accountant. Michel agreed that Megan did this task once a year and that she performed no other bookkeeping services. Michel testified that the current services for that work cost him annually $500.

[ 148 ] Megan testified that she helped promote Michel’s snow plowing business by making a flyer from the Internet, making the necessary copies and taking the flyers to be distributed in the Osgoode post office. I prefer the evidence of Michel as he indicated that he made 700 copies of the flyer and delivered it to the post office in Embrun which was put in the weekly flyer at a cost of between $400 to $500. [ 149 ] Megan testified that Michel’s current residence, that he purchased in June 2019, has renovations inside the home and has various sheds and concrete blocks outside the home.

Overall, Megan submits that Michel’s net worth has increased from 2019 to 2023. [ 150 ] I find that the parties never merged their finances. Michel and Megan each had their own bank account. Neither party ever disclosed the amount in their bank account. Megan received the child tax benefit as well as the inheritance funds which he deposited in her bank account and never told Michel how much she received.

This lack of co-mingling and merging of finances is admitted by Megan in paragraph 56 of her amended application dated February 10, 2021, which states: “The respondent refused to integrate the parties’ finances, despite the applicant’s request to do so and despite the applicant’s contributions to the accumulation of wealth. The applicant therefore had to rely on her own funds to pay for family related expenses and made contributions to the Term Family RESP.” [ 151 ] I find that when Michel met Megan and they started to live together in August 2011, Michel’s net worth was accumulated through his own efforts.

I find that from 2011 to 2019, Michel and his brother accumulated their assets financed by his parents. Farm Credit and vendor take back mortgages.

During the trial, Michel’s mother testified that Michel could never have accumulated the land that he owns without the financial support of his parents. [ 152 ] By November 2019, Michel’s net worth for land consisted of the Belmeade Road residence, Michel’s residence in Vernon 100% financed by his parents, the land purchased from his brother in 2007, the land where he purchased his brothers quarter interest in 2010, 48 acres purchased in 2015 financed by RBC, 100 acres in Elgin, Ontario which he owned jointly with his father who financed the purchase and 50 acres of bare land bought in 2018 by his father.

I find that all of the real estate purchase by Michel, both before and after he started to live with Megan, was financed primarily by his parents, Farm Credit or vendor take back mortgages. [ 153 ] Michel’s financial statement dated November 27, 2019, indicates that he had $3,089,763.66 of assets with debt totaling $1,713,300 for a net worth of $1,376,463.33. I find that the majority of his net worth, six properties valued at $2,528,333.33 of land, was primarily financed by his parents or vendor take back mortgages.

In his financial statement sworn November 22, 2023, Michel’s land value increased to $3,460,000 based on seven pieces of property including his residence in Vernon valued at $600,000. The property value increases are related to the increase in value of the Belmeade Road property from $385,000-$500,000 and the 100 acres owned with his parents from $333,333.33 to $500,000 and a slight increase in one of his Elgin properties from $250,000-$300,000.

I find that the increase in the value of the land owned by Michel at the date of separation is as a result of market increase and the addition of a $600,000 residence in Vernon. Correspondingly Michel’s debt has increased from November 27, 2019, from $1,713,300.00 to $2,545,238.04 as of November 22, 2023. [ 154 ] Megan produced a

summary of the funds that she received from her mother’s inheritance. From January 3, 2018 to December 10, 2020, Megan received $74,878.18 in Canadian funds and $119,247.80 in US funds. Megan testified that she received approximate $164,000. I find that Megan actually received in excess of $200,000 during this three year.

In 2018, I accept Megan’s evidence that she paid $4767.13 for materials to construct a deck on the back of the Belmeade Road residence and that she paid $7345 to purchase a new furnace for that residence. [ 155 ] I recognize that Megan assumed the lion share of the childcare responsibilities throughout the parties’ relationship.

However, when Megan went back to work after the maternity leave for each of the children, Michel’s mother acted as the childcare provider where the children would be dropped off to be picked up by bus to attend the Metcalfe public school and the younger children would stay in the care of the paternal grandmother. At the end of Megan’s workday, either she or Michel pick up the children at the paternal grandmother’s home and return to their residence. [ 156 ] I reject Megan’s submission that there was a joint unit focused on accumulating wealth for both parties. The evidence does not support such a finding.

I find that Megan had nothing to do with the acquisition of the Belmeade Road property or any of the farm land, farm equipment or snow plowing equipment, that the parties maintained their own accounts and had no joint accounts, that Michel paid for all expenses for the home except groceries and gifts for the children, that the couple did not discuss their individual finances, the parties did not save together and in fact, did not disclose their financial circumstances, that the parties never discussed marriage, that there was no intention from Michel that Megan would share in his assets accumulated both before and during their cohabitation.

I find that these individuals effectively led separate financial lives where there was no disclosure or joint planning regarding their assets. The only expenses that Megan paid from August 2011 to March 27, 2019 was the materials for the deck and the furnace. [ 157 ] Consequently, for these reasons, I dismiss Megan’s claim for unjust enrichment. MEGAN’S DEPARTURE FROM 7138 BELMEADE ROAD, OTTAWA, ONTARIO [ 158 ] Michel originally sought an order that Megan vacate his residence by May 1, 2024.

As the children’s school year for 2023-2024 ends at the end of June 2024, with Michel’s consent, I order that Megan shall vacate the property by June 28, 2024. COSTS [ 159 ] If the parties cannot resolve the issue of costs by January 3, 2024, I order Megan to provide her cost submissions, limited to two pages, plus a detailed bill of costs and any offers to settle by no later than January 10, 2024. The respondent shall provide his costs

submissions subject to the same restrictions by no later than January 24, 2024. Judge M. Shelston Released: December 15, 2023