2023 ONSC 4130, 2023 ONSC 4130

CITATION : Brennan v. Fournie, 2023 ONSC 4130 COURT FILE NO.: 1320/16 DATE: 2023/07/13 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEE N: ) ) Tracy Lee Brennan ) Peter Eberlie, for the Applicant ) Applicant ) ) - and - ) ) ) Geoffrey Henry Fournie ) ) Kimberly Doucett, for the Respondent ) Respondent ) ) ) ) ) ) HEARD AT LONDON: March 13 to 17, 21 to 24, April 3 to 6 and April 13, 14, 2023 Aston J. [ 1 ] The parties separated seven years ago after cohabiting for more than 20 years. At that time, they had two dependent children who are now independent adults. [ 2 ] Ms.

Brennan advances a property claim, based on a “joint family venture”, and a spousal support claim. Ownership of the family home is in issue. There is also an issue over the ownership of the residual RESP for the children’s education. Both parties claim that income ought to be imputed to the other for the purposes of child and spousal support. Though the children are no longer dependent, both parties claim retroactive variation of the child and spousal support paid pursuant to the temporary orders in the case once a decision is made respecting imputed incomes.

Background and Chronology [ 3 ] In August of 1991, the parties resumed a dating relationship that first began in their university days in the 1980s. They do not agree on when their dating relationship amounted to “cohabitation”. [ 4 ] Because Ms. Brennan worked in London and Mr. Fournie worked in Mississauga, they maintained two separate residences from 1991 to 1995. Both were ambitious and career focused. They were apart during work weeks but were together on weekends and holidays. [ 5 ] In October of 1991, Mr. Fournie bought a townhouse in Mississauga. In January 1992, Ms. Brennan purchased a home in London.

There was no integration of their finances until years later. [ 6 ] The fall of 1994 marked a turning point in their relationship. In November 1994, Ms. Brennan was identified in an internal memo at 3M Canada as one of the company’s “integral members”. She was invited to submit information that would enable the

company to map out a career path for her as a key employee. See Exhibits 23 and 24. Though she did not complete her “Accomplishment Resume” within the requested time, she did submit it on December 19, 1994. [ 7 ] The reason for the delay was because, in the meantime, she had received a call from Mr. Fournie who said that he had a possibility of a new job in Europe with his current employer. He asked if she would be willing to go with him and live in Europe. [ 8 ] According to Ms. Brennan, he asked her if it was “okay to put my name in”. She responded “yes, let’s see what happens”. Mr.

Fournie testified that “I was going regardless of whether she came too”. Even if that is true, the important and uncontradicted fact is that he invited her and she accepted, with all the consequences for each of them that went into that mutual decision. [ 9 ] In December 1994, Mr. Fournie advised Ms. Brennan that he had been successful in securing the position in Europe with Bard International and that they needed to decide where they would live. To that end, they took an exploratory trip to England and France. They met with the CFO of his employer, Bard International, and the CFO’s wife.

They discussed the ins and outs of “ex-pat” relocation. They spent several days checking out the cost of living, including rental properties, and discovered a location that would be halfway between their two respective places of employment if Ms. Brennan was successful in finding employment with 3M in England. [ 10 ] On December 22, 1994, Mr.

Fournie got a compensation package offer (Exhibit 25), the purpose of which was to illustrate how the salary being offered to him on relocation would ensure that he would be able to maintain the same standard of living as in Canada having regard to taxes, the cost of accommodation, the cost of living generally, currency exchange rates, and compensation for relocation expenses. Significantly, Mr. Fournie’s compensation terms included a vehicle for Ms. Brennan and Bard’s help in securing a U.K. work permit for her (paragraph 15 of Exhibit 26). [ 11 ] After Mr.

Fournie had formally accepted the new offer of employment, he met up with Ms. Brennan in Florida where they celebrated for a few days while planning their move. [ 12 ] By January 1995, the parties were committed to relocating to the U.K. and began the process of the necessary paperwork. That paperwork included statutory declarations by each of them (Exhibits 13 and 14) in which they both stated under oath that they had “continually cohabited with [one another] since January 1, 1992”. [ 13 ] Mr.

Fournie testified that these statutory declarations were signed simply for the purpose of “getting past the mail order bride issue” for Ms. Brennan’s work permit in the U.K., though he did concede that the Ontario lawyer who prepared those declarations, John Barnes, asked them questions about their relationship before including the conclusory statement that they were “cohabiting”. [ 14 ] Ultimately, the statutory declarations were not required by the British authorities even though Ms.

Brennan had them with her when she attended at their embassy in Ottawa to present her paperwork. [ 15 ] Exhibit 26 is the evidence upon which to date Mr. Fournie’s acceptance of employment in the U.K. at January 5, 1995 but the commitment to the job had been made some time in the month before that. The package of his remuneration and benefits is set out in a memo dated December 22, 1994 (Exhibit 25) and is more specifically formalized in a memorandum dated January 23, 1995 (Exhibit 29). Although his starting salary was less than $100,000 net of tax, Mr.

Fournie testified that his salary rose shortly after he started and continued to rise dramatically thereafter, as he had anticipated. [ 16 ] Exhibits 25 and 26 spell out the details of the offer of employment Mr. Fournie accepted. Ms. Brennan testified that she participated in the drafting of the details with Mr. Fournie, after they had consulted Mitch Baran, a successful businessman and mentor of sorts, for advice. She describes the decision as a “risky move for us” and emphasized that paragraph 8 of Exhibit 26, spelling out Mr. Fournie’s severance entitlement, was important protection. [ 17 ] Mr.

Fournie started to work in Europe in January 1995, at first working in Ireland. He received his work permit in April or May, after which time he worked out of his office in England. [ 18 ] Ms. Brennan testified that it was only after Mr. Fournie was committed to the new job in the U.K. that she found out that she could not simply transfer to 3M U.K., but instead would have to resign her position in Canada and apply as a new hire in England.

To that end, she obtained a letter of reference from 3M Canada which identifies her as “a high-performance employee… identified as a strong candidate for senior management”. [ 19 ] In approximately February of 1995 the parties learned the detail of what was needed for Ms. Brennan to get a work permit for herself. Mr. Fournie joined her in accomplishing that. He retained the Weir law firm to handle that matter. Part of that process involved the statutory declarations referred to earlier. Mr. Fournie fenced with Ms. Brennan’s lawyer on cross-examination about the truth of his statement, under oath, that he and Ms.

Brennan had cohabited since January 1992. He was unwilling to admit that the statement was false, while at the same time denying that it is evidence of cohabitation for the purpose of these present proceedings. He tried to explain that the definition of “cohabitation” according to U.K. immigration authorities was met, even though his circumstances did not amount to “cohabitation” under Canadian law. In a similar vein, Mr.

Fournie had difficulty explaining how he could swear a statutory declaration in the spring of 1995 saying “I am not a non-resident of Canada” when he had already sold his home in Canada, moved to the United Kingdom, and taken up his new employment there. [ 20 ] Exhibit 28, in reference to the reimbursement for the loss on the sale of Mr. Fournie’s home in Canada, is a letter addressed jointly to both parties. Exhibit 29 also confirms that Ms. Brennan was an integral part of Mr. Fournie’s new employment contract. The contract provides that “a car will be provided to your wife”.

The employment contract also included business class airfare “for you and your spouse” to travel to Canada twice a year. There are other references in the employment contract to “your wife”, who was also referred to by name. [ 21 ] In March 1995, Ms. Brennan travelled to the U.K. for interviews there with 3M. See Exhibit 34, a fax from 3M Canada to 3M U.K. attaching Ms. Brennan’s impressive “Accomplishment Resume”. On April 7, 1995, 3M U.K. offered Ms. Brennan an employment position, later formalized by a letter dated May 16 (Exhibit 41 and 51). It was conditional upon her obtaining a work permit. There was

some risk that she might not. See Exhibit 35. However, she was successful in obtaining that permit in May 1995. [ 22 ] When she moved to the U.K. in May 1995, she and Mr. Fournie resided at the same residence for the first time. Mr. Fournie submits this was the commencement date of their cohabitation. [ 23 ] Ms. Brennan started her job with 3M U.K. on June 1, 1995. Within 10 months, she was promoted. By the spring of 1996, she was no longer just working in the U.K. but throughout Europe and reporting to a new boss in Sweden.

Her promotion came with a salary increase of £4,000 per annum, a 16% bump. [ 24 ] By 1996, both parties were travelling regularly throughout Europe as part of their employment responsibilities. They tried to coordinate their trips and meet up where possible “on the company dime where we could”. They each continued to be ambitious, and career focussed. [ 25 ] In October or November of 1996, a mere 17 months after starting with 3M U.K., Ms.

Brennan was approached by her employer about her willingness to take on a global assignment, with responsibility for global accounts rather than just working throughout the U.K. and Europe. She said she would talk to Mr. Fournie about such a move and the additional travel involved. The parties had that conversation, recognizing that this promotion would be a “big jump” in her career but would probably mean that they would have to postpone starting a family for an extended period. [ 26 ] Ms. Brennan was inclined to put her career on hold in order to start a family. She was 31 years old. Mr.

Fournie, then 35, told Ms. Brennan he too wanted to have a family. As a consequence, Ms. Brennan declined the opportunity to try to move up the corporate ladder at 3M. [ 27 ] She stopped birth control in the fall of 1996. Sydney was born October 17, 1997. [ 28 ] Ms. Brennan had some difficulties during her pregnancy which included hospitalization and more time off work than the standard maternity leave policy would have afforded her.

However, she negotiated a special arrangement with 3M U.K. whereby she could stay “actively on payroll” by working two weeks a year until the baby was old enough to start school on a full-time basis. She intended to resume her career with 3M U.K. at that time. [ 29 ] However, before Ms. Brennan could return from maternity leave at 3M U.K., even for those two qualifying weeks a year, the situation changed. [ 30 ] In 1998, Mr. Fournie learned that his employer had sold its U.K. operations.

He faced three options: (1) move to a position in Europe with the new owner; (2) resume employment with Bard in North America; or (3) accept the severance package described in his hiring letter (Exhibit 29). He chose the latter. [ 31 ] Exhibit 66 confirms that by December 1998, the decision had been made to move back to Canada because of the change in Mr. Fournie’s employment. [ 32 ] In the summer of 1998, the parties had consulted an employment lawyer in London, Ontario because of the rumours that Mr. Fournie’s employer was going to shut down the division in which he worked. When Mr.

Fournie was meeting with his employment lawyer, Mr. Angeletti, in London, Ontario about his severance package, Ms. Brennan was actively engaged in that process and the decision-making on the three options presented to Mr. Fournie. They made the mutual decision, with Mr. Angeletti’s advice, to take the severance package and return to Canada. Mr. Fournie continued his employment in the U.K. until December 1998 when the family moved back to London, Ontario living in the home of Ms. Brennan’s parents until they purchased their own home approximately 11 months later. [ 33 ] Mr.

Fournie testified on cross-examination that he had no choice about accepting the severance package and returning to Canada, rather than taking up employment opportunities with the purchaser company or his then current employer, because Ms. Brennan left him no option. She said she wanted to return to London, Ontario with Sydney. He says he returned to Canada because he wanted to be with his child as his priority. He conceded on cross examination that Ms. Brennan was also a priority in 1998. [ 34 ] Mr.

Fournie sent a letter to a “head-hunter” January 27, 1999 confirming that he was willing to accept employment or consulting work in the USA but only if it was within driving distance of London, Ontario. His career options were curtailed by his family commitment. His immediate income also went down dramatically. [ 35 ] However, Mr. Fournie’s severance package was very generous.

By his calculation, the total severance package amounted to $567,655.70 net of tax, consisting of a lump sum of about $200,000, six months of salary continuation, the use, and then the sale, of his company car, his laptop, reimbursement of professional fees, and airfare home. Those numbers are confirmed by Exhibits 143 to 154 inclusive. [ 36 ] On the return to Canada, at around Christmas 1998, the parties lived with Ms. Brennan’s parents. Together they looked around for a home of their own. On September 7, 1999, Mr.

Fournie signed an agreement of purchase and sale for 4 Selden Court, in his name alone, for a price of $455,000. However, when it came time to close the purchase, he instructed his lawyer to put title in Ms. Brennan’s name alone. He testified that, in advance of the closing, he received advice from Mitch Baran to the effect that his self-employed status, at that time, meant that the equity in the home would be potentially at risk. So, he put it in Ms. Brennan’s name “to protect it”.

He acknowledges that the money for the purchase came from joint accounts but claims that it is all traceable to his severance package and other separate funds, without any financial contribution from Ms. Brennan. [ 37 ] In the U.K. in 1998, Mr. Fournie had been earning the annual after-tax equivalent of about $400,000 taxable. In 1999, he became a self-employed consultant and his income in Canada dropped to $108,492. Money, particularly depletion of savings and investments, became a serious issue for Mr. Fournie.

It was 2004 or 2005 before his income was back up to the $400,000 per year level and it did not stay that high. By 2008 it fell back to $170,615 and in 2009 it was only $71,379. Since 2011 his income has exceeded $200,000 annually.

[ 38 ] Mr. Fournie described the consulting contract work that he had from 1999 to 2018 for various companies. In 2018, he became an employee of Perfuse Medtec Inc., a company he had done consulting work for since about the end of 2010. Perfuse is his current employer. His salary is $250,000 per year. [ 39 ] Patrick was born June 29, 2002. Mr. Fournie testified that, like Sydney, Patrick was “not planned but very welcome”. Ms. Brennan continued her role as a fulltime mother and homemaker. [ 40 ] Sydney, then four years old, has had challenges since birth. [ 41 ] When Patrick was born in 2002, Ms.

Brennan was already dealing with Sydney’s issues, but Patrick had issues of his own, physical health problems and a later-diagnosed learning disability. Patrick started pre-school two days a week in 2004 and was in pre- school regularly until 2006, at which time both children were in school on a full-time basis. [ 42 ] Mr. Fournie confirmed that in 2006 (when Patrick was only 4), Sydney was formally diagnosed with a learning disability. He conceded that in the extra efforts that were needed in parenting Sydney, such as chauffeuring her, arranging tutors, and engagement with Montessori, Ms.

Brennan was more involved than he was, though I accept his evidence that he was also actively involved in attending to Sydney’s needs. The Montessori Schools that Sydney and Patrick attended were very expensive, but Mr. Fournie was glad to take on that expense. [ 43 ] He was a devoted parent when his time was not taken up by work. He continued to press Ms. Brennan on a plan for her return to work. The parties had retained a nanny in the U.K. when Sydney was an infant. In Canada Ms. Brennan paid a “Mother’s Helper” to assist her with light housework and occasional child minding for 38 hours a week.

See Exhibit 112. Mr. Fournie perceived that their roles within the family were not equal, and his frustration and resentment grew. He testified that from 2005 forward, he felt like he was “paying unofficial spousal support” because of Ms. Brennan’s refusal to consider steps to re-enter the paid workforce. [ 44 ] Ms. Brennan dedicated her time and effort to the children, and especially to Sydney, who has had a variety of special needs since before she began school. Ms.

Brennan’s efforts run the gamut from attempts to assist her daughter with social skills and interaction with peers to the encouragement of her natural musical talent and special tutoring, as well as engagement with teachers, principals, and psychologists, the family doctor and management of medication. She was instrumental in having Sydney placed in the most appropriate school setting and even in the modification of class schedules to accommodate her needs. [ 45 ] From Ms.

Brennan’s perspective, engagement with Sydney and those who could help her, medically or at school, became a priority on which she spent considerable time. Mr. Fournie’s position is that she did not need to devote as much time and attention to Sydney’s needs as she did, but I accept that Ms. Brennan made the decision she did for that commitment in good faith. From her perspective it was reasonably necessary until 2010. It foreclosed her ability to look for full time work outside the home until then. [ 46 ] By 2009 Sydney was in grade 7 and Patrick was also in school fulltime.

Sydney did very well in grades 7 and 8. In 2010, there was increasing friction between the parties over the fact that Ms. Brennan was not making any effort to enter the paid workforce. In addition to the fact that Ms. Brennan was not bringing any income into the household, Mr. Fournie resented her as a spendthrift. Mr. Fournie’s willingness to fund Montessori educations for his children and pay for services such as housecleaning, pool maintenance, landscape maintenance, snow removal, tutors, nannies, and the like persuade me that he is not miserly when it comes to the family expenses.

Quite the opposite. [ 47 ] It was not unreasonable in 2009 and 2010 for him to expect Ms. Brennan to explore the possibility of some manner of paid employment or retraining. However, her window of opportunity was not open for very long. [ 48 ] Ms. Brennan ducked direct answers when questioned about whether Mr. Fournie wanted her to go back to paid employment and whether she wrote that in her diary. The diary was subsequently produced and marked as Exhibit 126. Her own words acknowledge that the family’s “money problems” began as early as 1999, and that on Mr.

Fournie’s accusation of “malicious spending” she did spend more than she should. She wrote in her diary in the fall of 2010 “I’ve heard how he feels our financial goals are not in sync…in fact that’s all I hear about…and his job. That’s all we ever talk about.” [ 49 ] In 2010, the parties also began separate sleeping arrangements. In Mr. Fournie’s mind, this was when their relationship finally broke down. He admitted he had an affair with a co-worker at that time and lost his job as a result. He also related a threat from Ms.

Brennan at that time that “if we separate, I’m going to use my family’s money and destroy you”. That was when Mr. Fournie decided to “stick it out” with Ms. Brennan until Sydney finished high school. [ 50 ] Ms. Brennan’s window of opportunity to seek employment, do some retraining or start her own business was only open for about 18 months. In October 2011, in her first year in high school, Sydney was sexually assaulted. It is clear that Sydney had a great need for her mother’s support after that assault.

Sydney refused to reattend Oakridge Secondary School that year, and her mother was responsible for home tutoring that involved going to the school day after day to keep on top of curriculum and assignments, meeting the teachers and discussing Sydney’s responsibilities to complete grade 9, which she did with her mother’s help. The fact that Sydney followed through on a planned trip to New Zealand in December 2011 and continued to participate in the choir do not undermine the clear evidence that she was struggling badly after the assault.

That said, Sydney showed a degree of resilience and in some ways, on some occasions, was coping well. She had many ups and downs. [ 51 ] Andrea Dean also corroborated, to some extent, the focus of Ms. Brennan in assisting Sydney after the sexual assault in 2011 and her dedication to supporting her daughter through the difficult years that followed. [ 52 ] By 2011, Mr. Fournie had concluded that his relationship with Ms.

Brennan was on the rocks, but he testified that his “kids were always the priority” and he decided to “stay around until Syd finished high school”, a decision fortified by Sydney’s needs after she had been assaulted. [ 53 ] Mr. Fournie acknowledges that circumstances changed in October 2011 when Sydney was sexually assaulted. Mr. Fournie’s

testimony mirrors that of Ms. Brennan in describing how Sydney went through a very difficult time following the assault, ultimately resulting in a diagnosis of post-traumatic stress disorder and a need for many supports and professional services. Mr. Fournie acknowledges that Ms.

Brennan did a good job in attending to Sydney’s needs, including the initial period of time following the assault when Sydney had to stay away from school and complete her grade 9 year with work at home. [ 54 ] The following school year went well for Sydney with occasional difficulties triggered by unsuspected events such as seeing a squirrel cross the road or having to attend religious classes at her new high school. [ 55 ] The civil action against the Thames Valley School Board stemming from the assault began in 2012 and Mr. Fournie agreed to be responsible for costs of that litigation.

Between 2012 and the separation in 2016 he paid out almost $150,000, never recovered. The litigation took almost 10 years to resolve and was “very hard on Syd”. Mr. Fournie testified that, in retrospect, it was maybe a mistake to start the litigation because it was “ominipresent” over the 10 years leading up to the settlement last summer. For example, the 2014 examination for discovery of Sydney was very traumatic and a setback to her recovery. [ 56 ] In November 2017 Sydney was involved in a motor vehicle accident. Mr.

Fournie chose not to participate in the ensuing civil action but post separation he did contribute more money to Sydney’s costs in the action against the Thames Valley District School Board. Sydney was able to settle her two lawsuits in mediation last summer. She received $319,327.15 net of costs on the final settlement of all her lawsuit claims. [ 57 ] Though the parties have agreed on April 12, 2016 as the date of separation for the purposes of this litigation, Mr. Fournie was taking steps towards a separation in 2015. He consulted a lawyer. He persuaded Ms.

Brennan to transfer title to 4 Selden Court from her name into their joint names. He later changed Ms. Brennan’s access to money, unilaterally and without notice. [ 58 ] Sydney lived full time with her father from April 1, 2017 to March 27, 2018 during which time she did not have any overnight visits with her mother, though they remained in contact. Since March 2018, Sydney has resided full time with her mother and has not had any overnights at her father’s residence. [ 59 ] Ms.

Brennan agrees that child support for Sydney ought to end as of September 1, 2022 because the settlement of Sydney’s litigation makes her financially independent of her parents as of that time. [ 60 ] As of January 2023, Sydney is enrolled at Fanshawe College on a part-time basis. Her plans are to qualify for a two-year early childhood education training program in 2024, then complete a one-year training program with Montessori. These endeavours would provide a path to a regular teacher’s college placement without a university degree. [ 61 ] Patrick still lives with his parents.

He is 20 years of age and began a program as an apprentice electrician following high school graduation in 2020. He works full-time but also occasionally attends classes. The parties jointly held RESP has paid Patrick’s tuition from the fall of 2020 to the present and is still available for his on-going education which may extend to 2024, or for qualifying costs for Sydney. The RESP funds are more than sufficient to cover future tuition or other qualifying educational expenses for either child. What to do about the surplus is an issue in this case.

Length of Co-Habitation [ 62 ] The earliest possible date for the commencement of co-habitation is January 1, 1992, the date both parties stated in their sworn statutory declarations marked Exhibits 13 and 14. Mr. Fournie’s position is that cohabitation only started in May 1995 when Ms. Brennan moved to the U.K. [ 63 ] They have agreed they separated on April 12, 2016, though they continued to reside under the same roof until November 2016. [ 64 ] On the evidence, the latest date cohabitation began is late in the fall of 1994 when Ms. Brennan agreed to leave her employment with 3M Canada and accepted Mr.

Fournie’s invitation to move to Europe. [ 65 ] Though Mr. Fournie understood that “common-law status” requires parties to be living under the same roof, that is not a necessary prerequisite as a question of law. Common-law spousal status takes into account all aspects of the relationship, not just whether there was a common address. [ 66 ] The parties began a committed, monogamous relationship in the summer of 1991. Their jobs kept them in separate cities, about an hour and a half apart, but they were together weekends and holidays.

By 1993, their commitment to this personal relationship remained strong, notwithstanding that geographic separation. On a business trip to St. Lucia in 1993, they held themselves out as a couple to the other couples on the junket. That year, Mr. Fournie named Ms. Brennan as the beneficiary on his pension and life insurance. He contributed to her RRSP. In September 1993, he designated her as the survivor beneficiary on his own RRSP with RBC. [ 67 ] Their tax returns for 1993 both state “single” for their marital status. In her tax 1994 return Ms. Brennan self-identified as living “common-law”. Mr.

Fournie’s 1994 tax return self reported his marital status as “single”. The tax returns are relevant but not determinative. [ 68 ] Mr. Fournie confirmed that in 1994 he made a contribution of $3,000 to Ms. Brennan’s RRSP to “help her get started” with retirement savings. This is evidence that he contemplated a long-term relationship with Ms. Brennan that included joint financial planning. [ 69 ] Though the evidence might support a finding that cohabitation began before the fall of 1994, it is not necessary to go that far. In the context of Ms.

Brennan’s spousal support claim, it hardly matters whether the relationship was 21 and a half years or 24 years. [ 70 ] However, in the context of a claim based on a joint family venture, it will be necessary to determine if, how, and when that joint venture started and ended. It might only start after the start of cohabitation. It might end before separation. There might be interruptions

and resumptions of a joint family venture. [ 71 ] Decisions in cases like this one are complicated by the overlap between the joint family venture claim and a claim for spousal support. Property issues must be addressed first. Ms. Brennan’s Joint Family Venture Claim What is a “joint family venture”? [ 72 ] On February 19, 2011 the Supreme Court of Canada issued decisions in two companion cases that have become the foundation for subsequent property claims between unmarried spouses. See Kerr v Baranow , and Vanasse v Seguin , reported together as 2011 SCC 10 .

Cases dealing with resulting trusts, constructive trusts, and unjust enrichment must be read in light of these important decisions. [ 73 ] As a starting point, the SCC in the Kerr and Vanass e cases held that the prior theory of “common intention” is doctrinally unsound and should have no continuing role in the resolution of domestic property disputes.

This highlights the fact that such claims are not contractual in nature but are claims for equitable relief, rooted in the law of unjust enrichment and the remedial constructive trust. [ 74 ] The doctrine of unjust enrichment permits recovery where an applicant can establish three elements: (1) an enrichment of the respondent by the applicant; (2) a corresponding deprivation of the applicant; and (3) the absence of a juristic reason for the enrichment. [ 75 ] Ms. Brennan must show that she has given a tangible benefit to Mr. Fournie and that Mr. Fournie received and retained that benefit.

Furthermore, the enrichment must correspond to a deprivation that Ms. Brennan has suffered. The provision of domestic services may support a claim for unjust enrichment under the first two elements of the test. In the absence of a juristic reason for the enrichment (such as, for example, a benefit conferred by way of gift or pursuant to a legal obligation), the analysis then focuses on “reasonable expectations” and public policy considerations to assess whether those enrichments are unjust and call for a remedy.

The remedy can be either a “personal restitutionary award” (a monetary award) or a “restitutionary property award”. The SCC stated that a monetary award will often be sufficient to remedy the unjust enrichment, though the quantification can be difficult. For example, the value of domestic services is not fairly measured on a quantum meruit basis, sometimes called a “value received” or “fee for services” basis. Rather, the domestic services provided ought to be assessed more flexibly on a “value survived” basis by reference to the overall increase in the couples’ wealth during the time those services are rendered.

When an applicant can demonstrate a link or causal connection between his or her contributions and the acquisition of a particular item of property, and when a monetary award would be insufficient as a remedy, then a share of the property proportionate to the claimant’s contribution can be impressed on that property by means of a constructive trust. [ 76 ] The law of unjust enrichment does not mandate a presumption of equal sharing nor does the mere fact of cohabitation entitle one party to share in the other’s property, but the legal consequences of the breakdown of a domestic relationship should reflect fairly and realistically the way people have made decisions about their relationship and the financial consequences of those decisions. [ 77 ] Where an unjust enrichment is best characterized as an unjust retention of a disproportionate share of the assets accumulated during the course of a “joint family venture” to which both partners have contributed, the monetary remedy should be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions during the time of the joint family venture. “Contributions” include sacrifices of financial security and independence for the sake of the other spouse or children. [ 78 ] The Vanasse case is particularly helpful in identifying the nature of a “joint family venture”.

Were the parties working collaboratively towards common goals? Did they make important decisions that kept the overall welfare of the family at the forefront? Has Ms. Brennan established that the parties engaged in a joint family venture? [ 79 ] At the time Ms. Brennan left 3M Canada in 1994, her salary was $47,500 a year. Her starting salary with 3M U.K. was £25,000 per year. There is no evidence of the currency conversion rate at that time, but it was approximately the same rate of pay. [ 80 ] Ms.

Brennan’s annual review at 3M Canada for 1994-1995, (Exhibit 46) is clear evidence of her stellar job performance and evidence that had she stayed in Canada it is likely she would have had a successful career here. The performance review includes comments such as “she has made a major contribution to the success of [her division]” … is “a highly valued member of the Office Market Team” … was “the winner of the 3M Marketing Excellence Award 1995” and … “met and exceeded major job requirements”.

Notwithstanding her obvious credentials for employment with 3M U.K. there was at least some risk she might not obtain a work permit. [ 81 ] Though Ms. Brennan’s decision to move to the U.K. came with a financial risk directly connected to her commitment to her personal relationship with Mr. Fournie, this is but one of the factors to consider.

Another important factor is the manner by which they organized their bank accounts in the U.K. in 1995. [ 82 ] Exhibit 47 is a letter from Barclays Bank dated May 18, 1995 addressed to the parties jointly from the bank’s Offshore Banking Centre respecting the new accounts they opened with their offshore personal banker in Jersey, Channel Islands. The purpose of the offshore banking arrangement was to maximize investments, taking advantage of opportunities available because of Mr.

Fournie’s ex-pat tax status. [ 83 ] Before 1995, the parties each had their own bank accounts and investments and their own separate residences. Ms. Brennan’s assets on moving to the U.K. consisted of the net proceeds of sale of her Elvira home (approximately $30,000), her 3M pension, multiple RRSPs, and a vehicle. Exhibit 53 is a statement of assets as of August 12, 1995, probably similar to the assets that they had upon their move to the U.K. a few months earlier. The statement is prepared by Mr. Fournie and shows a breakdown as between them. Ms.

Brennan’s assets total approximately $39,000 in financial accounts and $30,000 for her proceeds of sale for Elvira, just under $70,000 in all. [ 84 ] When the parties set up their banking arrangements in the U.K. with Barclays Bank, they set up at least four joint accounts, one

in England which is referred to as the “Crawley account” and three in Jersey. The arrangement was that all of their remuneration got paid into one or more of the joint accounts in Jersey with standing orders to send £2,000 to the Crawley account for their living expenses and £4,500 back to Canada for investments. See Exhibit 32, a February 17, 1995 letter to investment manager Bev Hanna, written by Mr. Fournie but “signed” on behalf of both spouses, with references throughout to “we”. [ 85 ] From the outset, Ms. Brennan’s 3M U.K. pay cheque was directly deposited into their offshore Barclays account.

Her entire pay was then redirected back to their local “Crawley account” for the family’s living expenses, topped up by extra money from Mr. Fournie. As Ms. Brennan describes it “my money was used first for our expenses”. Ms. Brennan was content with this arrangement because most of Mr. Fournie’s earnings were being kept in the offshore accounts and reinvested in a combination of investments, many of which were in joint names. [ 86 ] The entirety of Ms. Brennan’s income from 3M U.K. was thus used for their day-to-day expenses. Exhibit 161 is a spreadsheet Mr.

Fournie prepared from Barclays Bank records for 1997 and 1998 in which he estimates that the housing costs alone amounted to £2246 per month (over $4,000 Cdn). That was more than Ms. Brennan’s entire after-tax income. Mr. Fournie’s earnings provided additional funds to the Crawley account to top it up for living expenses and for the purchase of items such as china, crystal, and silverware amongst other things. [ 87 ] Without particulars, or a tracing through the bank accounts, Mr. Fournie claims that Ms.

Brennan’s contribution of 100% of her income only amounted to about 1/3 of what went through the Crawley account. He seems to assume that she should have paid 50% of their expenses in England (including the acquisition of chattels, etc.) rather than a percentage that would reflect their disparate after-tax incomes. Mr. Fournie admitted under cross-examination that his “investment strategy” was built upon this arrangement regarding the Jersey accounts and how money went into and out of those accounts.

Though they are in joint names, he asserts that all of the investments traceable to the Jersey accounts are entirely his because Ms. Brennan’s contributions to the Jersey accounts was entirely used up by her contribution to their mutual living expenses. [ 88 ] There is other evidence to support a finding that the parties were not just in a personal partnership but also an economic partnership. [ 89 ] In 1995 Mr. Fournie made another contribution to Ms. Brennan’s RRSP, this time $12,000. As with the original contribution in 1993 this is evidence that he contemplated a long-term relationship with Ms.

Brennan that included joint financial planning. [ 90 ] Exhibit 53 is a handwritten statement Mr. Fournie prepared, detailing the combined financial assets of the spouses as of August 12, 1995. They had $234,245 between them and they were both intent on accumulating more. [ 91 ] In October 1995, the parties jointly signed a letter to their investment manager, Bev Hanna, in Canada, confirming that they had discussed “our investments” and had made a “mutual decision” to have Bev Hanna manage those investments in Canada.

This is clear evidence that the parties were pooling their resources for investment purposes and making mutual decisions about those investments. See Exhibit 54. The follow up letter dated October 17, 1995 (Exhibit 55) confirms “we will transfer approximately $181,061.79 to you” for investment, which they later did. Bev Hanna’s letter of October 21, 1995, addressed to both spouses, asks them to fill out a “Know Your Client” form and to review her Portfolio Proposal. In reply, Mr.

Fournie confirmed that the two spouses had discussed those documents and “we’re concerned about the CI Sector, Canadian Growth” item in the proposed portfolio. Ms. Brennan was a participant in the investment process. [ 92 ] A year later, on November 6, 1996, Bev Hanna sent an “Account Review” jointly to the parties, confirming again that they were acting in concert, maintaining some accounts in joint names and some in individual names. At that time there was $32,750 in Ms. Brennan’s name, $38,225 in Mr.

Fournie’s name and $234,434 in their joint names. [ 93 ] Exhibit 68 is a statement from Bev Hanna to the parties jointly dated May 29, 1998 showing they had total holdings in their investments amounting to $683,309.50, more than double what they had in November 1996 and more than three times the original transfer to Ms. Hanna in 1995. [ 94 ] Exhibit 71 is a “statement of assets” prepared by Mr. Fournie on their return to Canada in 1998 showing a total of $1,296,380, broken down as between the parties’ individual and joint holdings.

He now claims that virtually all of that came from his earnings and severance package and that he never intended to share “his” accumulated wealth with his spouse. [ 95 ] Even years later the Barclay’s Bank documents reinforce the inference of a joint enterprise when it came to the couple’s roles and their finances. Exhibit 82 is a form completed by Mr. Fournie for Barclays Bank August 8, 2002 in which he describes Ms.

Brennan as “stay at home mother and support husband’s business”. [ 96 ] It is clear from the banking and investment arrangements that the parties had an economic partnership, not just a personal partnership. [ 97 ] In addition to the banking arrangements, Ms. Brennan’s career sacrifice also supports a finding of a joint family venture. As noted above, in October or November 1996, Ms. Brennan was approached by a senior executive at 3M U.K. about her possible interest in a job with global responsibilities. Though not a formal job offer it was an overture that she believed was available to her.

Her first reaction was excitement. She was enthusiastic in her first discussions with Mr. Fournie about the idea, but soon understood that the idea of pursuing the matter needed serious consideration because it would at least postpone any opportunity for them to start a family. She was 31 ½ years old at the time, Mr. Fournie a few years older. They discussed the matter and made the joint decision that she would not follow up on the overture from 3M but would instead start a family. She immediately stopped taking birth control pills and in February 1997 learned she was pregnant.

She intended at that time to return to work once her child was in school full time. She initiated negotiations with 3M to see how that might be accomplished in a manner consistent with their maternity leave policy. She worked out a special arrangement that would have allowed her to continue to actively remain on 3M’s payroll by working a minimum of 2 weeks per year after the birth of her child. She intended to resume her career with 3M. There can be little doubt it would have been a very successful career had she done so.

[ 98 ] Ms. Brennan’s willingness to give up her promising employment with 3M Canada to move to the United Kingdom where there was no guarantee she could work; then to contribute the entirety of her pay cheque in the U.K. to the significantly increased living costs the couple were incurring there compared to Canada; then the decision to not pursue the possibility of further promotion with 3M U.K. in order to start a family were all decisions that left Ms. Brennan extremely vulnerable to a loss of self-sufficiency theretofore enjoyed. [ 99 ] Based on these facts I find that Ms.

Brennan has established a joint family venture, commencing at the time she gave up her employment with 3M Canada and made the commitment to move to the U.K. to be with Mr. Fournie. From that time forward they were working collaboratively towards common goals. They made important decisions about their roles and their finances that placed the overall welfare of their family at the forefront. When did the Joint Family Venture end? [ 100 ] It is clear from Ms. Brennan’s evidence that she planned to return to the paid workforce once Sydney was in school full time. Though Mr.

Fournie testified that he was not consulted on the extended length of that maternity leave, there is no evidence that he took any exception to the five-year plan once it was secured with 3M U.K. The parties had a mutual plan that contemplated Ms. Brennan’s return to the paid workforce in the fall of 2002. That plan was then interrupted by the birth of their second child in June 2002. [ 101 ] Even before Patrick’s birth in 2002, the plan had been altered through circumstances beyond the control of the parties when Mr. Fournie’s employer sold its U.K. business in 1998.

The parties then returned to Canada in December 1998 and, for an extended time thereafter, Mr. Fournie was not earning nearly as much income. However, after the purchase of the family home in 1999, it would seem the parties lived comfortably, albeit without the freedom to continue amassing investment wealth as they had while in the U.K. [ 102 ] By the time Patrick was 5 and in school full time in 2007, the original joint family venture was arguably at an end. It was time, under the original plan, for Ms. Brennan to re-enter the paid workforce after a ten-year hiatus. She was then 42 years of age.

However, that did not happen. In 2007, it may have taken her some time to find suitable employment, but in the context of a joint family venture, the point is that she did not make any effort whatsoever to re-enter the paid workforce, not even part-time. Mr. Fournie had been pressing Ms. Brennan to either retrain, go back to school, or find employment for some time after the parties returned to Canada. His concerns about the family finances are corroborated by the steady erosion of their wealth after the return to Canada and by Ms. Brennan’s own diary marked Exhibit 126. [ 103 ] From Mr.

Fournie’s perspective any collaborative effort towards common goals ended in 2006 or 2007. From Ms. Brennan’s perspective Sydney’s and, to a lesser extent, Patrick’s, needs necessitated a continuation of her role at home and thus the “joint family venture”.

Though I have little doubt that any collaborative effort towards common goals had ended by 2010 at the latest, it is not necessary to make a definitive finding on when the joint family venture ended, as explained below. [ 104 ] Having determined that there was a joint family venture beginning in the late fall of 1994 and ending in 2010, if not 2007, the question is how to equitably redress the financial consequences.

What property is included in the joint family venture and what remedy is appropriate respecting particular assets? [ 105 ] The threshold question is whether any particular item of property falls within the scope of the joint family venture or alternatively is to be treated as the personal property of one of the spouses. [ 106 ] The second question is whether equal sharing or something less than equal sharing is appropriate for property falling within the scope of the joint family venture. The second question is not difficult to answer in this case.

Given the length of the relationship and the compelling evidence of Ms. Brennan’s contributions and sacrifices to and for the family, equity requires that all assets falling within the scope of the joint family venture ought to be equalized [ 107 ] Ms. Brennan’s half interest in any “family property” will take the form of either a declaration of joint ownership or a money judgment.

The former requires evidence connecting her contribution to the particular asset. [ 108 ] I start with the two assets that remain in joint names – the family home at 4 Selden Court and the RESP having a residual value of about $80,000. [ 109 ] Strictly speaking Mr. Fournie has not proved that all the funds to acquire these assets are traceable to him. Ms. Brennan contributed about $70,000 to their mutual savings and investments in Jersey in 1995. The purchase of the home, and perhaps the RESPs, was funded with money from a joint account. I note for example that Ms.

Brennan signed the cheque to pay the legal fees on the purchase of 4 Selden. However, I do accept that almost all the funds to acquire these assets can be traced to Mr. Fournie. [ 110 ] More importantly though, Ms. Brennan made significant contributions to their partnership, both financial and non- financial, direct, and indirect. The risk she took in moving to the U.K. turned out to not significantly impair her then-current income, except perhaps briefly between the 3M jobs for six or seven months.

However, she took a step back in advancing up the corporate ladder in Canada, where she had a head start over her new position in the U.K. More significantly, the mutual decision to start a family and take time out of the paid workforce amounts to a substantial contribution to the joint family venture, and an expectation of an ongoing long term personal and financial partnership. As noted, her contributions are not measured on a quantum meruit basis, but rather on a “value survived” basis. [ 111 ] The funds for the purchase of the family residence probably did come mainly from Mr.

Fournie’s severance package, but tracing the money is not determinative of ownership once Ms. Brennan has established that it was purchased within the context of their joint family venture. Ironically, on his own evidence, Mr. Fournie only received his severance package because Ms. Brennan insisted on returning to Canada.

[ 112 ] In addition to the evidence of Ms. Brennan’s direct and indirect contribution to the acquisition of 4 Selden Court, the collaborative decisions respecting title, the fact that it is a family residence where they raised their children, the implied understanding of the parties themselves, and the exclusive possession of the property by Mr. Fournie the last seven years all support Ms. Brennan’s claim for an equitable interest in the property, rather than a just money judgment, as the appropriate remedy. [ 113 ] Though title was originally placed in Ms.

Brennan’s name, she has never claimed more than a 50% interest in the property. In the summer of 2015, Mr. Fournie persuaded Ms. Brennan to transfer title into their joint names. I do not accept his evidence that he believed the property belonged 100% to him when he made that request. I have no doubt that if had asked her to sign it over to him in its entirety she would have refused. Nor do I accept his evidence that his purpose in leaving a 50% interest in Ms. Brennan’s name was to continue to protect the asset “at least in part” from potential creditors.

I prefer her evidence that after seeking legal advice in 2015, he duped her into adding his name on title with a story about the bank requiring it as a condition of an additional loan to pay Sydney’s legal bills. [ 114 ] The claim that Selden Court belongs entirely to him was only asserted after the parties separated. The home has been the family’s residence since the fall of 1999.

The children grew up in the home and the use and enjoyment of this asset reinforces the notion that ownership ought to be equally shared, consistent with the present title registration. [ 115 ] The value of residential real estate has gone up substantially since 1999. In this case, the value of Selden Court has almost tripled. It is also clear from the evidence of the two experts in this case that the value has gone up since the separation seven years ago.

The most equitable resolution is for the spouses to share the actual market value rather than attempting to fix a value based on the conflicting expert opinion. [ 116 ] There is a surprising disparity between the real estate agents on the current value of Selden Court. Mr. Grantham recommends listing it for $1,425,000 with an expected selling price of $1,395,000. Mr. Crosby values the property in the range of $995,000 - $1,050,000. If I had been inclined to award Ms. Brennan a monetary award rather than a half interest in the home I would have preferred Mr. Grantham’s evidence. Mr.

Crosby relied on information provided by Mr. Fournie about a septic sewer issue, mold and other alleged deficiencies which are not supported by any cogent evidence and which are an obvious attempt by Mr. Fournie to minimize the value. Mr. Crosby has not inspected the property in years. Mr. Fournie could have afforded him access. I would draw an adverse inference when it comes to Mr. Crosby’s evidence. I also find the Mr. Grantham’s analysis of comparable sales is more persuasive and is to be preferred. [ 117 ] Mr. Fournie has resided in the family home for the last seven years without any compensation to Ms.

Brennan for the use and enjoyment of her interest in that property. She had advanced a claim for occupation rent and led credible evidence to establish that the home could have been rented for $4,000 a month or more. At the end of the trial, she abandoned that claim on the understanding Mr. Fournie would be responsible for all costs he has incurred for the property since the separation. Mr. Fournie led evidence of extensive expenses he has incurred maintaining the property and for taxes, insurance, and other costs.

His evidence does not prove any of those expenses have increased the value of the property and I am not satisfied his entitlement to indemnification from Ms. Brennan exceeds the occupation rent she could claim. No allowance or adjustment is to be made for expenses he incurred or for occupation rent. [ 118 ] Equity in this case requires the court to declare that 4 Selden Court is jointly and equally owned by the parties and that it be listed for sale forthwith.

Subject to the other provisions of this Judgment, the net proceeds of sale shall be divided equally, and the respondent shall assume sole responsibility for the line of credit in his name alone, addressed below. [ 119 ] The Registered Education Savings Plan is also in joint names. It contemplated parental decisions being made together as part of a family plan. It would seem both children have now completed their education, though that is not certain.

The prior Order in this case requiring joint agreement on any payout from the RESP should continue in force. [ 120 ] RESP’s set up for the education of the children are clearly part of a joint family plan but there are two options when it comes to any residual amount left when no longer needed for educational funding. The balance can be regarded as being held in trust for the children or it can be regarded as an asset of the parent or parents named as the plan’s subscriber(s). In his Answer and Claim Mr.

Fournie sought a declaration that the RESP is held by the parties “on a resulting trust” for the benefit of the children. Ms. Brennan agreed to that request in her trial testimony. The judgment in this case will include a declaration that the remaining RESP funds are held in equal shares for Sydney and Patrick after any required repayment of government contributions. [ 121 ] With respect to the sharing of other savings and investments in the individual names of the parties, I find that equity requires an equalization of those net assets as well. Even before Ms.

Brennan moved to the U.K. in 1995, the parties were planning their long-term finances as a couple. They accumulated savings and investments together as part of their joint family venture. [ 122 ] The savings and investments of both parties have declined steadily from 2009 to 2016. It would be artificial and probably impossible to attempt any forensic accounting exercise to show that one spouse or the other benefitted more from their lifestyle choices.

The main point with respect to savings and investments is that it does not matter so much whether the joint family venture ended in 2007, 2010, 2015 or any other date, because on the date of separation in 2016: (1) the family home and the RESPs were, and will remain, equally owned; (2) non financial assets such as vehicles, contents of the home, and other chattels have been divided in specie ; and (3) between 2007 and 2016 net savings and investments went down in the aggregate. In this case the remaining savings and investments on the date of separation in April 2016 ought to be equalized.

Expressed another way, the decline in savings and investments after the end of the joint family venture is to be equally shared by equally sharing all that is left April 12, 2016. Exhibits 97 and 179 provide the numbers. [ 123 ] Ms. Brennan’s savings and investments are as follows: BMO LIRA $10,405.70 RRSP 94,758.24

RRSP 38,288.85 Bank accounts 2,741.71 146,194.50 Notional tax on LIRA and RRSPs (25%) $35,863.20 Net savings/investments $110,331.30 [ 124 ] Mr. Fournie’s savings and investments are as follows: BMO LIRA $59,258.15 RRSP 382,359.39 TFSA 845.00 Bank accounts 20,743.72 $463,208.26 Notional taxes on LIRA and RRSP (25%) 110,404.39 Net savings/investments $352,803.87 [ 125 ] To equalize these savings and investments, and subject to the other provisions in this Judgment, Mr. Fournie is to pay Ms.

Brennan $121,236.28. [ 126 ] Within the context of a joint family venture, for assets that do not have any formal ownership, it may be appropriate to enquire into the nature of the asset to determine whether it is individual property or ought to be characterized as “family property”. Prior to our current Family Law Act in Ontario, property law for separated married spouses distinguished between family assets and non- family assets. Family assets were defined as those that are used and enjoyed by more than one family member.

That is a logical and equitable distinction in a case like this. [ 127 ] Rachel Storey was qualified to give opinion evidence as an expert in the appraisal and valuation of household contents and other chattels sold online or at auction. It is not necessary for me to address the conflicting evidence over the value of china, crystal, or silverware that Ms. Brennan removed from the home on separation because those items were acquired as part of the joint family venture. Each party kept some of the china, crystal, and silverware. These items were acquired for the use and enjoyment of more than one family member.

Moreover, the items were not just used by the family, but by the spouses when they entertained others in their home. It is also significant that these items were mainly purchased while the couple resided in the U.K and many items were acquired through the Crawley account, to which they both contributed. Though I accept Mr. Fournie’s evidence that Ms. Brennan retained the more valuable share of these particular items, it is impossible to now open up the division of household contents for an examination of all their shareable chattels.

For example, there is no cogent evidence that the aggregate value of the china, silverware, and crystal and other family property that Ms. Brennan removed exceeds the value of other joint family venture chattels left with Mr. Fournie. [ 128 ] However, there is an exception for items that are not part of the joint family venture. The only chattels the court needs to address are those that are outside the ambit of the joint family venture, i.e., those that can be viewed as the sole personal property of one spouse or another. [ 129 ] The first such item is the antique Moroccan door that Ms.

Brennan purchased for about $100 or $150 US dollars in 1996. Ms. Storey values this item at $200 notwithstanding the fact that it was insured for $3000 when it was shipped to Canada in 1998. Mr. Fournie’s valuation expert, Moira McKee, values it at $4,825 though she has never actually seen it. The value is immaterial. Mr. Fournie had nothing to do with finding this decorative item in the marketplace, choosing to buy it, or paying for it. The fact that it was purchased during the time the parties were engaged in the joint family venture does not necessarily make it joint property. It was always Ms.

Brennan’s keepsake from a shopping venture with some other women in Morocco. Alternatively, if it could be considered family property it would be treated like the china, silverware, and crystal. Like those items, Mr. Fournie would only be entitled to a credit if he had proved that the aggregate value of family property Ms. Brennan took exceeds the aggregate value of the family property she left at 4 Selden. That evidence was not adduced at trial. [ 130 ] However, there are some items that belong exclusively to Mr. Fournie and for which he ought to get credit. [ 131 ] Mr.

Fournie is an oenophile who selected and purchased the extensive collection of fine wine, including many bottles imported from the U.K. Many bottles were consumed over the years, but the parties had differing interests in the wine cellar at Selden Court. Ms. Brennan was an indiscriminate consumer. Mr. Fournie was a discriminate consumer and collector. The difference

came to a head one day when he came home to find Ms. Brennan and her friends had “raided the cellar” and had left open a number of unfinished expensive bottles they had sampled. He then put a lock on the wine cellar to ensure that he would control its contents. The lock on the cellar supports the inference the wine collection falls outside the ambit of the joint family venture. Notwithstanding the lock, Ms. Brennan was able to access the locked wine cellar when she moved things out of the family home in Mr. Fournie’s absence, taking with her about 100 bottles. She says 100 bottles, he says about 150.

He says they were worth about $100 a bottle on average. She has no idea what they were worth. Ms. Storey did not include the wine in her valuation. Ms. McKee’s valuation is not helpful because it reflects all the wine purchased between 1995 and 1998 without regard to what was consumed in the following two decades. It was open to Mr. Fournie to provide better evidence of the average value of the wine. Though he is entitled to a credit, I draw an adverse inference on the value, leading to a conservative estimate of $5,000 for the wine taken by Ms. Brennan.

He is to receive credit for that amount against the amount due on the equalization of savings and investments. [ 132 ] In 2011, Mr. Fournie purchased a Rocket Richard hockey jersey and a Montreal Forum seat as collectibles. He paid $1,500 for the items and still retains the certificate of authenticity. He no longer has the items. Ms. Brennan gave them to her father. When Mr. Fournie protested her doing so, she replied “Don’t worry, you’ll get them back when he’s dead.” Ms.

Brennan apparently has no interest in hockey or collectibles, and there is no reason why those particular items should be included in the joint family venture. She had no right to give them away. The only evidence of value, which I accept, is that of Ms. McKee; $2,499 for the jersey and $1,350 for the seat. Mr. Fournie is to get credit for those amounts against the amount due on the equalization of the savings and investments. [ 133 ] I have not overlooked the debts the parties had at the time of separation.

Unlike the process for equalization of net family property applicable to married spouses there is no presumption that debts be shared equally. [ 134 ] Ms. Brennan had an outstanding Mastercard debt of $7,584.99 on April 12, 2016. There is no evidence of what that debt was for and no evidence that would connect it to any item of property. Mr. Fournie’s credit card debts were even higher, but again there is no evidence of what the debts included. There is no evidence to substantiate any loan from Ms. Brennan’s parents at that time. Her 2015 tax liability was reversed or eliminated by filing a revised tax return.

Mr. Fournie is not responsible for contribution to any of her debts. [ 135 ] Mr. Fournie assumed responsibility for the line of credit debt, having a balance of $57,625 at the time of separation. There is no evidence that this debt is connected to any asset falling within the joint family venture. In 1995 Mr. Fournie chose to apply for the line of credit in his name alone. He deliberately chose not to secure the debt by a mortgage on 4 Selden because he did not want Ms. Brennan to be able to use the line of credit. He chose to insulate her from the line of credit.

He alone controlled where the borrowed money was used or spent. He has not established that Ms. Brennan benefitted from his expenditures. There is no foundation for now converting it into a joint obligation. It will remain his sole responsibility. [ 136 ] The amount owing to Ms. Brennan for the equalization of savings and investments, $121,236.28, is reduced by $8,849 on account of the wine, hockey jersey and Forum seat. The net amount of $112,387.28 is a debt as of the date of separation. It is to be paid with interest at the rate of 2% per annum, compounded annually from May 1, 2016 to the date of payment.

Spousal Support [ 137 ]

Section 30 of the Family Law Act 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 doing so.” [ 138 ]

Section 31 of the Act identifies four specific objectives of a spousal support order. Though the wording under the Divorce Act is different in spelling out factors and objectives for the determination of spousal support, counsel agree that there is no significant difference between the provincial and federal legislation when it comes to entitlement and quantification of spousal support. The language of the provincial legislation is broad enough to take into account both compensatory support and non-compensatory support. For example, s. 31(8)(

a) directs the court to specifically consider each spouse’s contribution to the relationship and the economic consequences of the relationship for the spouses. It is clear in this case, given the length of the relationship, the roles adopted by the parties, and their current circumstances, that Ms. Brennan is entitled to advance claims for both compensatory and non- compensatory support. “Compensation” should not be double counted, but neither is it entirely satisfied by the outcome on the property issue. [ 139 ] Ms.

Brennan’s strong compensatory claim is, in part, addressed by the finding in relation to a joint family venture and the order now made in relation to property. Her entitlement does not flow from any formal status as a married spouse, but from equitable considerations, recognizing her contributions and sacrifices and the corresponding enrichment of Mr. Fournie. The property award to her is a compensatory entitlement, not an entitlement based on formal marital status.

Moreover, she is not the only spouse to have suffered some economic disadvantage in the history of this relationship. [ 140 ] The most difficult issue in this case is that Ms. Brennan’s need for financial assistance is caused, in large part, by her own failure to take reasonable steps to ensure her ability to contribute to her needs going back to 2010, if not 2007, and especially since the separation seven years ago. [ 141 ] She was never offered paid employment during the years that she lived at Selden Court, nor did she ever seek paid employment.

Until 2007 she was at home with children who were not in school full time. Ms. Brennan relies on the need to take care of Sydney as the principal reason for never re-entering the paid work force after 2007. [ 142 ] Ms. Brennan was asked about the various assessments relating to Sydney’s learning disabilities: ADHD and psychological issues. The reports are marked as Exhibits 115, 116 and 117 ranging from June 2006 to May 2011. They confirm that as early as grade 3, Sydney was diagnosed with “mild ADHD – inattentive type” and a “non-verbal learning disability”. In April 2007, the

psychologists recommended specific “treatment” through a form of “Brain Training” that Ms. Brennan was faithfully following. The last of the reports were at the time Sydney was finishing up grade 8 in 2011 and it confirmed that she had made good progress in addressing her difficulties, but that she required ongoing accommodation at school and that she qualified as a “special needs student” with a need for an individual education plan for her start at high school in the fall. [ 143 ] In considering Ms.

Brennan’s joint family venture claim I have explained above why it was reasonable for her not to have taken steps to re-enter the paid work force before 2010, at least not full-time. I have also pointed out that there was a window of opportunity of 18 months or more before Sydney’s assault in October 2011 during which she ought to have been taking some initiative regarding employment, retraining or self employment. The children were doing well in school in 2009-2010. Their ongoing special needs were not a reason for Ms. Brennan to ignore her obligation to contribute financially.

She acknowledged her awareness of that obligation in her diary in the fall of 2010. [ 144 ] Between 2009 and 2011, Ms. Brennan attended three or four meetings of a professional fundraisers’ association with an eye out to “move forward in a future career” when Sydney’s progress would allow her to re-enter the workforce. When asked if there was discussion with Mr. Fournie about going back to work upon their return to Canada in 1999, Ms. Brennan said she could not recall any such discussion. I prefer Mr.

Fournie’s evidence on that point. [ 145 ] The parties began sleeping in separate areas of the house in 2010 and that continued right up until the time she moved out in 2016. Ms. Brennan has been seeing a therapist for personal counselling since October of 2010, when Mr. Fournie lost his employment after having been discovered to be having an affair with someone at his place of employment. She continues to see her therapist up to the present time on a regular basis. However, there is no evidence of any physical or psychological impairment in her ability to work. [ 146 ] In 2009 or 2010, Ms.

Brennan had started volunteer work on the Montessori board. Board meetings were once a month with some additional hours in between those meetings. She also devoted some time to classroom work, field trips, specialty lunches, and fund raising. It is obvious that Ms. Brennan is not a lazy person and she looked for opportunities to use her skills albeit in a volunteer capacity. She also volunteered for a year or two on the board of the choir.

After Sydney was assaulted in the fall of 2011, she did far less volunteer work, and she testified that by February 2012 her entire focus was on Sydney and the rest of the family. [ 147 ] As noted already, Ms. Brennan’s window of opportunity to re-enter the paid work force ended when Sydney was sexually assaulted in October 2011. It is clear Sydney had a great need for her mother’s support after that assault. From Ms. Brennan’s perspective, engagement with Sydney and those who could help her, medically or at school, became a priority that she spent considerable time on. Mr.

Fournie submits that she did not need to devote as much time and attention to Sydney’s needs as she did, but I accept that Ms. Brennan made the decision she did for that commitment in good faith and from her perspective it was reasonably necessary. It foreclosed her ability to look for fulltime work outside the home before the separation. However, it did not prevent her from part-time employment, retraining or other planning for an eventual return to employment consistent with her potential. [ 148 ] The parties agree that the date of separation is April 12, 2016. At that time, Ms.

Brennan had just turned 51 years of age. She had not worked outside the home since Sydney’s birth 18½ years earlier in 1997. [ 149 ] Ms. Brennan recognized that her relationship with Mr. Fournie was on a precipice by the fall of 2015, but it was not until well after she moved out of the family home in November 2016 that she made any attempt to get back into the paid workforce. It took her until May 2017 to actually begin that process, more than a year after the agreed upon separation date of April 12, 2016.

Her first actual application for a job was not until September 2017, eighteen months after the agreed separation date. In her testimony, she describes her difficulties and frustrations with her job search. She describes being interviewed by young people and the difficulty of a “generational issue”, including her lack of familiarity with social media marketing. She applied for several jobs at 3M without any success. Notwithstanding the dozens of applications she submitted for employment consideration, she testified that she could “count on one hand” the number of interviews or call-backs she received.

She points out that she cannot disguise her age or number of years out of the workforce. Employers are apparently just not interested in considering her for most positions. She describes how artificial intelligence sometimes screens out applicants who apply online and she believes that in many instances no actual person even looked at the resume or letter she submitted. [ 150 ] On August 20, 2018, Ms. Brennan secured the fulltime position of Manager for Community Engagement with the western region of the Lung Association. Her hiring letter outlining her various duties is marked Exhibit 3.

This was a six-month probationary contract at an annual salary of $62,500. Ms. Brennan found it difficult to do the work, in part because of her ongoing responsibilities for Sydney but also because of her inability to do the technical aspects of the management of a database. She hired Anja Bieniek just after Christmas 2018, to assist her in doing her job. She paid that person out of her own pocket to take on part of her workload. However, in April 2019 her employment with the Lung Association was terminated, apparently because of government cutbacks. It is significant that Ms.

Brennan wanted to maintain this employment so badly that she paid someone out of her own salary to get her through the probationary period and to secure the position on an ongoing basis. She got through that probationary period but has been unsuccessful in subsequent attempts to find employment. [ 151 ] Ms. Brennan’s job with the Lung Association ended April 2, 2019. There is a gap in her job search efforts from that date to January 2022. She testified her job search was also then interrupted between January 2022 and August of 2022 when she met Kimberlie Ladell. She spent her time on developing a new plan.

She focused on identifying potential jobs she was better suited for through aptitude and skill testing. She was in the process of doing that in the fall of 2022 but says she was interrupted again by the need to prepare for this trial and the continuing need to support her daughter in her home. While taking courses, Ms. Brennan has continued to apply for jobs but has had no interviews except the one just before the start of this trial with the Sunshine Foundation. She has had no contact back from any other potential employers. [ 152 ] Exhibit 74 is a 15-page chart showing job searches and Ms.

Brennan’s attempts to re-enter the paid workforce. The chart is prepared from her applications for employment, emails, her calendar, and other documents. There are hundreds of pages of documents to support the

summary marked as Exhibit 74, identified in the trial record as Exhibit A. The volume of documents greatly

exaggerates the pith and substance of her efforts, but there is at least some serious effort for some of the period from the date of separation to the present. [ 153 ] From April 2016 to November 2016 Ms. Brennan was caught up in the immediate problems of finding suitable alternative accommodation and working out a parenting schedule. Mr. Fournie was paying all the household bills and giving her an allowance of $1,000 monthly for her personal expenses. She was 51 years old and had been out of the paid workforce for 18 years.

The fact that she needed some time to think seriously about how to contribute to her own financial needs is understandable. [ 154 ] By November she had seen a lawyer, had moved into her new home, had worked out a parenting

schedule with Mr. Fournie and had initiated this litigation. It was time for her to plan her return to work. However, she did not do anything in that regard until May or June of 2017, and nothing of real consequence until well into the summer. Her first actual applications for any job were September 6, 2017 with 3M and others. She had an interview with 3M in October but had no reply to her other applications. [ 155 ] Over the following 10 or 11 months Exhibit 74 supports a finding that she was making a diligent effort. However, she rarely heard back from prospective employers.

I accept her testimony about her efforts and frustrations between September 2017 and the summer of 2018. [ 156 ] In August of 2018 she secured the position with the Lung Association noted above. After that position disappeared in April 2019, she took no steps to become employed or employable until January 2022 and made no actual application for employment until that summer. [ 157 ] She attributes this long gap to her need to support Sydney. Exhibit 2 is a chart of many appointments that Sydney had to attend between April 2019 and October 2020.

I have reviewed it carefully, along with the other evidence for the period from April 2019 to August 2022. In April 2019 Sydney was 22 years old. There is no corroboration of Ms. Brennan’s testimony that she had to accompany Sydney to medical and legal appointments, or that her condition otherwise required Ms. Brennan to refrain from taking any steps towards a contribution to her own financial independence. [ 158 ] I am unable to conclude that attending to Sydney’s needs ought to have kept Ms.

Brennan from taking any meaningful steps whatsoever towards her own self sufficiency between April 2019 and August 2022. [ 159 ] The timing of this lengthy gap in her efforts is all the more unfortunate because applications for employment soon after the Lung Association job, without another long gap on her resume, would have been far more likely to have been successful. [ 160 ] In August 2022 Ms. Brennan resumed meeting with her employment counsellor Kim Ladell. This was followed by a flurry of job applications in the fall of 2022. Just before the trial started Ms.

Brennan had an interview, her first in a long time. She was hopeful in her trial testimony that it might pan out, but apparently that did not happen. [ 161 ] Ms. Brennan’s present plan is to continue to focus on part-time contracts to get a start back in the paid labour force. She plans to expand her job searches to remote work online that would not require her to relocate but could be done from home. She testified that she wants to work full time but has been unsuccessful in what she believes to be a diligent effort to re-enter the paid workforce.

There have been times since the separation when it has been a diligent effort, but the effort has been sporadic and inconsistent. [ 162 ] This leads to the issue of whether income ought to be imputed to Ms. Brennan. If so, how much and when. Imputing Income to Ms. Brennan [ 163 ] Each side called expert evidence on the question of Ms. Brennan’s employment potential. [ 164 ] On behalf of Mr. Fournie, Colleen O’Brien was qualified to give opinion evidence as a “vocational specialist”. She delivered three reports regarding Ms. Brennan’s employment potential and earning capacity.

In her first report dated June 9, 2016, shortly after the parties separated, Ms. O’Brien concluded that “had she committed to a diligent and active job search” after her return to Canada in 1998 she “has had, and continues to have,” available employment opportunities that would pay her $132,000 per annum. In her second report, September 21, 2018, Ms. O’Brien stated that Ms. Brennan was “under-employed” at her recently obtained job with the Lung Association, where her salary was “only” $62,500 per annum. She reiterated her opinion that Ms. Brennan ought to be earning $132,00 to $145,000 “had she put forth a bette

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