2013 ONSC 3034, 2013 ONSC 3034

CITATION : Best v. Hill, 2013 ONSC 3034 COURT FILE NO.: 11-217 DATE: 20130430 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) DANIEL GRANT BEST ) ) ) Scott C. Vining, for the Applicant ) Applicant ) ) - and - ) ) ) DEBBIE HILL ) ) ) Gavin Grant, for the Respondent ) Respondent ) ) ) ) HEARD: April 22, 24, 25, 26, 2013 REASONS FOR JUDGMENT Conlan J. Introduction and the Background Facts as Summarized from the Evidence at Trial [ 1 ] This case is about money and property. And there is a fair bit of both to go around. [ 2 ] This trial was held in Owen Sound on April 22, 24, 25 and 26, 2013.

It was well litigated on both sides. [ 3 ] The Applicant (“Mr. Best”), 45 years old, commenced this Application in July 2011. I commend the parties and their counsel for getting this matter to trial in relatively short order and for filing, on consent, three volumes of a joint document book at the commencement of the trial (Exhibit 1). The Cohabitation Between the Parties and Their Children

[ 4 ] Mr. Best and the Respondent (“Ms. Hill”), 50 years old, were not married but lived together for twelve years from July 1998 to their separation in October 2010. [ 5 ] The parties have no children together, however, there are children from prior relationships. Ms. Hill’s son B, born August 22, 1990 (22 years old), and her daughter A, born April 29, 1993 (20 years old), lived with the parties during their cohabitation. [ 6 ] Mr. Best admits that he stood in loco parentis to the children B and A during the cohabitation with Ms. Hill. It is disappointing that Mr.

Best has no current relationship at all with those children. He was their dad for many years; it is too bad that the separation between the parties robbed the youngsters of any further contact with him. [ 7 ] Just as Mr. Best helped raise B and A, Ms. Hill helped care for M (Mr. Best’s 17-year old daughter from a prior relationship) when she had access with her father. [ 8 ] The child B receives Ontario Disability Support Program benefits ($823.00 monthly) for autism. He requires attendant care and constant supervision from either his aunt or Ms. Hill. He will never be self-supportive. Ms.

Hill pays B’s aunt $700.00 per month in July and August and $325.00 weekly for the rest of the year. [ 9 ] Neither B nor A is currently in a program of education, although A is starting a beauty school program in Barrie this year. The cost of that school to be paid by Ms. Hill is nearly $10,000.00 in tuition alone. Ms. Hill sacrificed $9,000.00 to pay for A to attend Conestoga College last year, but the program was never completed.

A has had a few jobs in the past including a full-time one at Chapman’s Ice Cream. [ 10 ] There are trust funds in place for the children B and A through the estate of their late father. Each child has about $128,000.00 held in trust with Ms. Hill, plus another $40,000.00 total for both children in Canada Pension Plan cheques received by Ms. Hill in the names of the children since the time that their now deceased father became unable to work. [ 11 ] Ms. Hill plans to use none of that money to pay for A’s education. Ms. Hill does not expect A to contribute any money towards her school. Ms.

Hill has not applied for any government assistance as her income is likely too high. [ 12 ] Upon Ms. Hill’s separation from her children’s father in 1997 and the father’s death in 2010, the father paid very little child support and racked up tens of thousands of dollars in arrears. Ms. Hill never took the father to Court. [ 13 ] Mr. Best’s daughter M, born November 3, 1995 (17 years old), lives with her mother but enjoys regular access with Mr. Best and did so on weekends during the time that Mr. Best lived with Ms. Hill. [ 14 ] Mr.

Best was previously married to and divorced from the mother of his daughter M. [ 15 ] Mr. Best pays child support for the benefit of M - $400.00 per month plus half of the

section 7 Guidelines expenses. In the fall of 2013, M will be starting a two-year program at Seneca College. [ 16 ] Ms. Hill was previously married to the now deceased father of the children B and A. The Money and the Matrimonial Home [ 17 ] The parties enjoyed a very comfortable lifestyle while together. Ms. Hill was the primary breadwinner and largely supported Mr. Best financially. As examples, she paid for their vacations and dining out. The parties never shared a bank account. [ 18 ] Ms. Hill has a current gross income of close to $200,000.00 annually ($4,380.00 gross and $2,652.00 net every two weeks).

She is an executive with Chapman’s Ice Cream (“Chapman’s”) in Markdale, Ontario. Her compensation includes a healthy salary and a very healthy Christmas bonus ($80,000.00 last year). She is the Director of Strategic Planning. From past history, it is likely though not for certain that she will receive the same or a higher bonus in 2013. Her employment income has risen steadily at more than 5% per annum for many years now. [ 19 ] Mr.

Best’s current gross annual income is $65,000.00 ($2,500.00 gross/$1,867.90 net every two weeks). [ 20 ] The matrimonial home (I use this term throughout these Reasons for Judgment even though the parties were not married) is worth close to one-half of a million dollars (the parties each have appraisals). The parties are joint owners of the home. Ms. Hill lives there currently with her children B and A. Mr. Best lives alone at his parents’ cottage in Wasaga Beach. He has recently started paying $500.00 per month for rent. [ 21 ] Mr. Best is in debt to the tune of more than $50,000.00.

His minimum credit card and line of credit payments combined are nearly $1,300.00 monthly. He has virtually no savings. But he would be totally debt-free if he receives $200,000.00 or so from his share of the net proceeds of sale of the matrimonial home. [ 22 ] Ms. Hill, on the other hand, currently has about $200,000.00 in savings and investments. [ 23 ] The purchase of the matrimonial home for $208,000.00 in late 2000 included a vendor take-back mortgage ($100,000.00) and a mortgage through the Bank of Montreal. The vendor take-back mortgage was paid off when Ms. Hill’s former home sold in the fall of 2001. Ms.

Hill testified that the $100,000.00 was never intended to be a gift to Mr. Best, in whole or in part. [ 24 ] Ms. Hill testified that she did not understand the consequences of placing the matrimonial home in the names of the parties as

joint tenants. She always intended that her children would inherit through her Will her half interest in that home plus the $100,000.00 that she paid to satisfy the vendor take-back mortgage. [ 25 ] For many years, Ms. Hill’s father, Ken Strong (although he is actually her step-father, she referred to him as her father and, thus, so will

I) lived in a garden suite above a multiple car garage on the property of the matrimonial home, which entire building was constructed after the parties purchased the home. The father paid no rent but contributed towards some of the expenses (Mr. Best said that the father paid $125.00 monthly for television and hydro; Ms. Hill testified that the father paid that amount plus telephone and propane costs; Mr. Strong testified that he paid the heating costs for the garage and the suite above, plus a portion of the overall hydro expenses, plus for a short time a portion of the overall property taxes). According to Ms.

Hill, she contributed $25,000.00 and her father another $50,000.00 to the garden suite project, which Ms. Hill said was the idea of Mr. Best. Mr. Best testified that Ms. Hill’s father paid less than $30,000.00. Mr. Strong testified that he contributed $50-55,000.00. Mr. Best contributed labour and equipment to the project (he states the value of that is as high as $75,000.00; Ms. Hill strongly disagrees). Although he planned to live there for the rest of his life, because of the prospect of the home and property being sold, Ms.

Hill’s father moved out of the garden suite in September 2011, and it has been vacant since then. [ 26 ] The parties roughly shared the expenses for the matrimonial home. Ms. Hill financed improvements, while Mr. Best contributed “sweat”. She bought the furnishings and appliances. Mr. Best’s Business [ 27 ] Mr. Best is a one-third owner of a business called Best Contracting. His father owns the other two-thirds. The business is based at the father’s place in Flesherton, Ontario. Mr. Best has worked in the construction industry for 25 years. [ 28 ] Ironically, Chapman’s is a major customer of Best Contracting. Mr.

Best works at Chapman’s almost every day, although there is no contract. Best Contracting received approximately three million dollars in revenues from Chapman’s a few years ago. [ 29 ] Some of Mr. Best’s personal expenses are run through the business. [ 30 ] John Gerald Bowler testified on behalf of Mr. Best. Mr. Bowler is the accountant for Best Contracting. On consent, he was declared an expert witness entitled to give opinion evidence in two fields: accounting practices and the

interpretation of business financial statements. [ 31 ] Mr. Bowler clarified that the Financial Statements in Exhibit 1 were prepared with information supplied by Best Contracting. That information supplied by the client, including whether the company received cash not put through the business and whether certain receipts for expenses are personal rather than business related, cannot be seen as having been independently verified by the accountant. I point this out because Ms. Hill testified that Mr.

Best runs most of his personal expenses through the business (such as gasoline) and was frequently paid cash for jobs. [ 32 ] Although Best Contracting had two really good years in 2009 and 2010, mainly due to major contracts with Chapman’s after its plant in Markdale, Ontario was destroyed by a fire, the company’s gross revenues have now returned to what they were, approximately, in 2008. For example, Best Contracting had a net income of about $330,000.00 in 2010 but net losses of about $136,000.00 and $96,000.00 in 2011 and 2012 respectively. [ 33 ] In the opinion of Mr.

Bowler, the declining fortunes of the business are due to major investments in equipment in 2009 and 2010 and the resulting high overhead costs without the work currently to sustain those expenses. The company cannot continue to operate for long given the current numbers. [ 34 ] According to Mr. Bowler, the company cannot afford to pay its shareholders, including Mr. Best, more than they are currently drawing while, at the same time, continue to pay off its long term debt and cover its operating costs. [ 35 ] Mr.

Bowler testified that the starting point for determining the value of Best Contracting would be to look at the company’s retained earnings, subject to other items including taxes and the value of the company’s equipment. Other Property [ 36 ] Mr. Best is the sole owner on title to a 50-acre parcel of land adjacent to the matrimonial home property. The land was bought for Mr. Best by his mother. Both Mr.

Best and his mother assert that it was meant as part of his inheritance. [ 37 ] Shirley Best, the mother of the Applicant, was adamant in her testimony at trial that there was never any intention on her part that Ms. Hill would have any ownership interest in the 50 acres of land. Ms. Hill disputes that. She testified that the 50 acre plot was always considered as belonging to her and Mr. Best, and she alleges that the property was put in the name of Mr.

Best alone only for planning purposes (to avoid it being merged with the matrimonial home property which was in the parties’ names jointly). [ 38 ] Many years ago, the parties signed a joint application for a quarry that was to be mainly on the 50-acre plot but which was to spill over a little on the matrimonial home property. Thousands and thousands of dollars was spent on that application, which was ultimately denied. Ms. Hill never really supported the idea. Mr. Best alleges that he owes Best Contracting $140,000.00 for costs associated with the quarry application. Ms. Hill testified that Mr.

Best told her before that the debt owed was only $60,000.00, but regardless of the amount, she takes the position that she has nothing to do with it. [ 39 ] The parties jointly own three motor vehicles – a recreational vehicle (“RV”) that, in light of the purchase price, must be a small home on fancy wheels (there is less than $30,000.00 equity in it, and it will be very difficult to sell it for more than what is owed on it); a Ford Mustang; and a Ford F150 truck. There is a Court Order to sell the RV. The Mustang is paid off and is currently in the garage at Ms. Hill’s place.

The F150 is being driven daily by Ms. Hill (she made all of the payments on that truck). Exhibit 1, tabs 56-58, includes some estimated values for these vehicles, although Ms. Hill testified that the market value of the Mustang is higher than its

black book figure. The Temporary Order in Place Before Trial [40] On July 20, 2012, Ricchetti J. made a Temporary Order that Ms. Hill pay to Mr. Best spousal support in the amount of $500.00monthly. His Honour also ordered that Mr. Best pay no child support, including s. 7 Guidelines expenses, for the benefit of the childrenB and A. That Temporary Order was made on consent of the parties and in accordance with Minutes of Settlement. Issues and the Positions of the Parties Mr. Best [41] Mr.

Best asserts that neither B nor A is a dependant under the Family Law Act (Ontario), given their ages and the fact thatneither is currently in school. Thus, he resists any request by Ms. Hill for child support. [42] Mr. Best seeks spousal support and has provided DivorceMate calculations to the Court. [43] Regarding the matrimonial home, Mr. Best wants it sold and the net proceeds divided equally between the parties. Exhibit 2 is alist of improvements to the matrimonial home that Mr. Best states he was responsible for in terms of labour and heavy equipment. [44] Mr. Best disputes that Ms.

Hill has any valid constructive trust claim against either the 50-acre plot of land or Best Contracting. [45] With regard to the motor vehicles, Mr. Best suggests that he have the Mustang and Ms. Hill the F150. The RV would be soldand the net proceeds of sale split evenly between the parties. Ms. Hill [46] Ms. Hill submits that Mr. Best should pay child support for B and his proportionate share of s. 7 Guidelines expenses for A. [47] Ms. Hill opposes any claim by Mr. Best for spousal support. In her opinion, he should just grow up; be a man; and stop livingoff of others (her words). She claims that Mr.

Best has always tried to keep his reported income deceptively low so as to avoid supportpayments to his former spouse. [48] Regarding the matrimonial home, Ms. Hill opposes an equal division of the net proceeds of sale. She wants more than halfgiven her extinguishment of the vendor take-back mortgage and her contributions to the value of the home after purchase.

She suggeststhat, if the home is sold, she be paid out the amount of the vendor take-back mortgage that she extinguished; then her father be paid out$50,000.00 as his investment in the garden suite project; then the remaining net proceeds be split evenly between her and Mr. Best. [49] Ms. Hill asserts constructive trust claims against the 50-acre parcel of land and Best Contracting. In short, she states that she hascontributed significantly to Best Contracting by, for example, securing its biggest customer – Chapman’s. The business was a jointventure which, according to Ms.

Hill, has expanded and has done well financially since she started living with Mr. Best. And she allegesthat the intention was for the parties to jointly own the 50 acres of land. [50] Regarding the jointly owned motor vehicles, she wants to keep the Ford F150 truck (because she has paid for everything relatingto it and because it was a dealer error that it was put into their names jointly to begin with). She proposes that the RV be sold with thenet proceeds or loss divided equally between the parties. She suggests that the Mustang be sold with the net proceeds split evenlybetween the parties. Analysis Mr.

Best’s Claim for Spousal Support [51] This claim is dismissed as Mr. Best has failed to prove on a balance of probabilities his entitlement to spousal support. [52] The current law of spousal support in Canada offers a fairly expansive basis for entitlement. Generally, if there is a significantincome disparity between the parties after separation, there will be an entitlement to some spousal support. [53] The decision of the Supreme Court of Canada in Moge v.

Moge, (SCC), [1992] 3 S.C.R. 813, created a broadbasis for compensatory claims for spousal support based on economic disadvantage from the marriage or the conferral of an economicadvantage on the other spouse. [54] In Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420, the need basis for spousal support was outlined by theSupreme Court of Canada.

A spouse may advance a non-compensatory claim based on need or hardship created by the loss of themarital standard of living. [55] In determining the length of the relationship for spousal support purposes, the Court should look to the start of cohabitation,even before marriage, to the date of separation. The simplest approach is to round up or down to the nearest full year. [56] “Indefinite” spousal support does not mean permanent spousal support. It simply means that the order is without a time limit atthe time that it is made.

Indefinite support orders remain open to variation as the circumstances of the parties change, and the ordersmay have review conditions attached to them. In other words, indefinite spousal support means support that is subject to the normal

process of variation and review. [57] Indefinite spousal support orders are more common in long relationships (twenty years or more). [58] A strong compensatory claim generally favours a spousal support award at the higher end of the ranges regarding both durationand quantum. Similarly, a strong compelling need on behalf of the recipient will generally result in a spousal support award that islonger and higher in amount.

There are other factors that affect duration and quantum, and some of these considerations are specified inthe legislation. [59] Subsections 33(8) and (9) of the Family Law Act, R.S.O. 1990, c.F.3, as amended, set out the purposes of a spousal supportorder and the factors that the Court shall consider in determining the amount and duration of any such order. [60] Although Ms. Hill submitted that the Court ought to impute extra income to Mr. Best, it is unnecessary to decide the issue onthat basis. I make no finding on the issue of whether Mr. Best is intentionally underemployed. [61] Mr. Best and Ms.

Hill had a fairly lengthy cohabitation. And there is no doubt that Ms. Hill’s income has been substantiallyhigher than that of Mr. Best since separation. [62] But I am not satisfied that the evidence proves on balance that Mr. Best has sustained any economic disadvantage from themarriage or has conferred any economic advantage on Ms. Hill. Mr. Best was a valuable caregiver for Ms. Hill’s children, but no moreso than any decent father figure. He was still working full-time. And I am convinced that Ms. Hill would have been just as successfulprofessionally without the contributions of Mr.

Best. [63] On a need basis, Mr. Best will soon be much healthier financially once the property issues are resolved. It is true that I must notrob Mr. Best of spousal support just because he will be receiving a property settlement, however, the overall picture cannot be lost. Mr.Best earns good money. He is a shareholder in a relatively stable company, which company assists at least to some degree with hispersonal expenses. He has lived until recently rent-free. I am not satisfied that he has a need for spousal support or had one afterseparation. [64] Mr. Best is an industrious man with valuable work skills.

I give him credit for those attributes. He can make it on his own. Ms. Hill’s Claim for Child Support [65] This claim is dismissed as Ms. Hill has failed to prove on a balance of probabilities that either B or A is currently a dependant ofMr. Best. [66] In closing submissions, Ms. Hill effectively abandoned the child support claim for her son B, as he clearly is not a minor and isnot enrolled in a full-time program of education: subsection 31(1) of the Family Law Act. [67] I place no weight on the fact that there is no current relationship between the children, B and A, and Mr. Best. That is irrelevantas Mr.

Best cannot withstand a child support order simply by unilaterally withdrawing from the children’s lives: Chartier v. Chartier, (SCC), [1998] S.C.J. No. 79. [68] Having said that, Ms. Hill’s children are adults and not currently in school, although A is planning to attend this year. She is notcurrently a dependant under section 31(1) of the Family Law Act. [69] Further, it would be unfair and unreasonable to order Mr. Best to pay child support. Ms. Hill has a gross income much higherthan that of Mr. Best. Ms. Hill never pursued the children’s father or his estate for child support arrears.

There exists close to$300,000.00 in trust for the children. And Ms. Hill testified in court in Barrie in March 2013 that her children had been adequatelyprovided for. In that Barrie court proceeding (see Exhibit 5), Ms. Hill chose to not pursue a further $84,000.00 in her children’s father’sestate. Ms. Hill agreed in cross-examination at the trial before me that she wants to save the nearly $300,000.00 in trust for her childrenwhile forcing Mr. Best to pay child support. [70] Ms. Hill is not a bad person. I admire her tremendous work ethic, professional success and loving mothering of her children.

She ought to be commended for those assets. But this child support claim is borne out of bitterness. It has no merit. It is dismissed. The Matrimonial Home [71] This Court Orders that the jointly owned home shall be sold and the net proceeds distributed equally between the parties. [72] Mr. Strong is not a party to this proceeding. His claim for the return of some of the money that he invested in the garden suite isa derivative one, through Ms. Hill. Even if I have the jurisdiction to order that he receive some of the net proceeds of sale, I decline to doso. It seems to me that, even assuming that Mr.

Strong contributed as much as $55,000.00 to the project, and even assuming that he paidas much as $300.00 per month on other expenses, Mr. Strong did okay. He lived at that property, which he testified he was pleased with,for eight years or so and at a total cost to him of less per month than what he is paying now to rent the ground floor of a house inEugenia, Ontario ($900.00). It is true that Mr. Strong has no asset now, but it is clear on everyone’s testimony that Ms. Hill and Mr.Strong agreed to proceed with the garage and garden suite project (as opposed to the trailer option).

It is equally clear that there wasnever any agreement by Mr. Best to have Mr. Strong acquire an ownership interest in the property. [73] It could be argued that Mr. Strong’s investment improved the overall market value of the property and, thus, it would beequitable for the parties to consider voluntarily giving him a fraction of his investment out of the net proceeds of sale as recognition forthat. But that I must leave for the parties. I make no such Order. [74] With regard to Ms. Hill’s claim for an unequal division of the net proceeds of sale because of her satisfaction of the vendor take-

back mortgage on the property, I conclude that Ms. Hill has not overcome the legal presumption found in subsection 14(

a) of the FamilyLaw Act. I am not saying that Ms. Hill is a liar. I am simply saying that it is, at its very highest, a “draw” for her on the evidence. Shetestified that the $100,000.00 was never intended as a gift from her to Mr. Best. Mr. Best testified that it was always intended for theparties to own the property jointly (and that means all of the property, not less the value of the vendor take-back mortgage). And thelegal presumption is that joint tenancy means just that. There is no credible and reliable evidence that anything was intended to thecontrary of that legal presumption found within subsection 14(

a) of the Family Law Act. The Motor Vehicles [75] I accept Ms. Hill’s position. This Court Orders that, unless the parties agree otherwise, the jointly owned Mustang shall be soldand the net proceeds divided equally between them. The parties both contributed to its purchase and payment. If Mr. Best wants it, hecan arrange to buy out Ms. Hill. If she refuses, it shall be sold. [76] This Court Orders that the jointly owned F150 truck shall remain with Ms. Hill. Mr.

Best contributed nothing towards itspurchase or payment. [77] This Court Orders that the jointly owned RV shall be sold and the net proceeds divided equally between the parties. The partiesboth contributed to its purchase and payment. Ms. Hill’s Claim for a Constructive Trust Regarding Best Contracting [78] This claim is dismissed as Ms. Hill has failed to prove on a balance of probabilities that she is entitled to a constructive trustagainst the business, one-third of which is owned by Mr. Best. [79] The test is well known: a benefit to or enrichment of Mr. Best; a corresponding loss or deprivation to Ms.

Hill; and no juristicreason for the benefit or loss. Kerr v. Baranow, 2011 SCC 10 , [2011] 1 S.C.R. 269. [80] Constructive trusts are designed as equitable remedies to combat unjust enrichment. [81] I am satisfied that Ms. Hill’s employment with Chapman’s benefitted Best Contracting and Mr. Best himself. [82] I am not satisfied that Ms. Hill suffered any corresponding loss. In fact, she also benefitted from her common law husband’ssuccess in 2009 and 2010, up until the date of separation. [83] Further, I am not satisfied that Best Contracting was in any way a joint venture between Mr. Best and Ms. Hill. Ms.

Hill’s Claim for a Constructive Trust Regarding the 50 Acres [84] Although this issue was effectively abandoned during the closing submissions by counsel for Ms. Hill, for her sake I will addressit in any event. [85] This claim is dismissed as Ms. Hill has failed to prove on a balance of probabilities that she is entitled to a constructive trustagainst the land owned solely by Mr. Best. [86] None of the elements of this equitable remedy have been established. [87] Further, I accept the evidence of the Applicant and Shirley Best that there was never any intention for Ms.

Hill to have anyinterest in the 50 acres. [88] Counsel for Ms. Hill was responsible and exemplified high standards of advocacy in withdrawing this claim based on theevidence at trial. Conclusion [89] Final Order to go as per these Reasons for Judgment. [90] If the parties are unable to settle the issue of costs, counsel may contact the Trial Coordinator in Owen Sound to

schedule afurther Court attendance of thirty minutes in length to hear submissions and consider filings in that regard. I shall consider the matter ofcosts resolved between the parties if the Trial Coordinator is not contacted by counsel within two weeks of the release of these Reasonsfor Judgment. [91] I encourage the parties to focus their attention on their children. They are growing up fast. ___________________________ Conlan J.

Released: April 30, 2013 CITATION : Best v. Hill, 2013 ONSC 3034 COURT FILE NO.: 11-217 DATE: 20130430 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: DANIEL GRANT BEST Applicant - and – DEBBIE HILL Respondent REASONS FOR JUDGMENT Conlan J. Released: April 30, 2013