



COURT OF APPEAL FOR ONTARIO

CITATION: Lesko v. Lesko, 2021 ONCA 369

DATE: 20210602

DOCKET: C68396

Strathy C.J.O., Brown and Miller JJ.A.

BETWEEN

Kelly Sue Lesko

Applicant (Respondent)

and

David Joseph Lesko

Respondent (Appellant)

Gary S. Joseph and Stephen P. Kirby, for the appellant

Peter M. Callahan, for the respondent

Heard: February 12, 2021 by video conference

On appeal from the
    orders of Justice Michael R. Gibson of the Superior Court of Justice, dated May
    19, 2020, June 25, 2020, and August 7, 2020.

BROWN J.A.:

I.

overview

[1]

The appellant, David Joseph Lesko (David), and the respondent, Kelly
    Sue Lesko (Kelly), started to live together in September 1998 and married on
    August 23, 2003. They have two children. They legally separated on
    December 31, 2014 but continued to live together thereafter as a family
    until the matrimonial home at Valleyview Court in Oakville was sold in November
    2015.

[2]

By the time of the trial, the parties had settled many issues. The remaining
    issues were adjudicated by the trial judge, which resulted in his Divorce Order
    dated May 19, 2020 (the Order).

[3]

David appeals three parts of that Order:
[1]
(i) awarding an equalization payment to Kelly. That award resulted from the
    trial judges finding that based on her unjust enrichment claim Kelly had a 50%
    interest in a property on Taplow Crescent, Oakville that David had acquired
    prior to the date of marriage. That finding permitted Kelly to deduct 50% of
    the marriage date value of that property in her net family property calculation;
    (ii) fixing Davids income at $208,000.00 for purposes of support calculations;
    and (iii) disallowing Davids claim of a credit against retroactive support
    obligations of approximately $48,000 in expenses that David contends he
    incurred between the date of legal separation and the sale of the matrimonial
    home.

[4]

For the reasons set out below, I am not persuaded that the trial judge erred
    in his conclusions and I would dismiss Davids appeal. For ease of reference, I
    propose to deal with the relevant facts under each of the issues on appeal.

II.

STANDARD OF REVIEW

[5]

Orders resolving financial disputes in family
    law cases are entitled to significant deference. An appeal court should only
    intervene where there is a material error, a serious misapprehension of the
    evidence, or an error in law. It is not entitled to overturn a support order
    simply because it would have made a different decision or balanced the factors
    differently:
Hickey v. Hickey
, [1999] 2 S.C.R.
    518, at para. 12.

III.

FIRST ISSUE: the TREATMENT OF THE TAPLOW PROPERTY

Background facts

[6]

In June 1998, David purchased Taplow  a fixer upper property  through
    power of sale proceedings for $164,000. David financed the purchase through a
    $41,000 down payment and a $123,000 mortgage. By the time of purchase, Kelly
    and David had been dating for over a year. They decided to move in together
    once Taplow had been made habitable, which was accomplished by September 1998.

[7]

Kelly did not contribute financially to the purchase of Taplow nor was
    her name put on title. However, starting in August 1998 she contributed $500 a
    month to cover the couples expenses, which included a monthly mortgage payment
    of $831.35. Those contributions continued until a few months before their first
    child was born in 2004.

[8]

Taplow was gutted from top to bottom, and extensive renovations were
    made to the property between 1998 and the propertys sale in 2007, about four
    years after Kelly and David married. Since David and Kelly both worked full
    time, the renovations were done during evenings and on weekends. David
    completed most of the physical renovations, while Kelly took charge of
    housekeeping and home maintenance.

[9]

When Taplow was sold in 2007, David and Kelly put the full sale proceeds
    into their new Valleyview Court house, another fixer upper in need of
    renovation. As with Taplow, they renovated their new house with a view to reselling
    it for a profit and investing the sale proceeds into yet another new property.
    Their separation occurred before they could fulfill this plan.

[10]

In her Application, Kelly requested a declaration that she had a 50%
    beneficial interest in Taplow at the date of marriage on the basis of
    constructive trust as she had contributed to the acquisition, preservation,
    maintenance, and improvement of the property in both money and moneys worth.
The
    trial judge awarded Kelly a half-interest in Taplow on the date of marriage.

Davids position on appeal

[11]

David
    submits the trial judge erred in awarding Kelly an interest in Taplow as there
    was no unjust enrichment in this case. The trial judge never considered or applied
    the elements of unjust enrichment in his reasons and, without this clear
    finding, it was inappropriate to consider whether there was a joint family venture.
    Moreover, if the trial judge had properly considered the test for unjust
    enrichment, he should have concluded that Kellys claim failed because she was simply
    in a tenant-landlord type of relationship with David prior to their marriage.
    During that time, she provided her labour without any expectation of
    compensation
.

[12]

Further, there was no joint family venture in respect of Taplow. The
    factors outlined in
Kerr v. Baranow
, 2011 SCC
    10, [2011] 1 S.C.R. 269, do not support the trial judges finding. Even if
    there was a joint family venture, Kellys contributions did not entitle her to
    a half interest in Taplow.

[13]

Finally,
the trial judge erred when he failed to consider whether the
Family
    Law Act
,
R.S.O. 1990, c. F.3 (
FLA
)

equalization
    scheme remedied any unjust enrichment arising from the relationship.

Governing
    legal principles

[14]

If a party establishes the three elements of a claim
    for unjust enrichment  enrichment, corresponding deprivation, and lack of
    juristic reason  the remedy can take one of two forms: a personal (or monetary)
    award or a proprietary award:
Kerr
, at paras.
    46, 55;
Moore v. Sweet
, 2018 SCC 52, [2018] 3
    S.C.R. 303, at para. 89. The framework in which a court should assess the
    appropriate remedy was summarized by this court in
Martin v. Sansome
, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 52:

In this way, the framework established in
Kerr
requires
    the court to ask the following questions:

1) Have the elements of unjust enrichment  enrichment and a
    corresponding deprivation in the absence of a juristic reason  been made out?;

2) If so, will monetary damages suffice to address the unjust
    enrichment, keeping in mind bars to recovery and special ties to the property
    that cannot be remedied by money?;

3) If the answer to question 2 is yes, should the monetary
    damages be quantified on a fee-for service basis or a joint family venture
    basis?; and,

4) If, and only if monetary damages are insufficient, is there
    a sufficient nexus to a property that warrants impressing it with a
    constructive trust interest?

[15]

A monetary award is the default remedy and
    should suffice in most cases to remedy the unjust enrichment:
Kerr
, at para. 47;
Moore
, at para. 89.
    In
Kerr
, the Supreme Court of Canada clarified
    that monetary awards for unjust enrichment could be quantified in two ways.
    First, a monetary award may be calculated on a
quantum meruit

or fee-for-service basis 

the value of the claimants uncompensated services. Second, a
    monetary award may be calculated on a value survived basis, by reference to
    the overall increase in the couples wealth during the relationship:
Kerr
,
at paras. 49 and 55.

[16]

The concept of joint family venture helps courts
    to quantify the monetary remedy where a claim of unjust enrichment has been
    made out. Where the evidence shows that the domestic arrangements under which
    the unmarried parties have lived amounted to a joint family venture, monetary
    damages should be calculated on the value survived basis, namely on the basis
    of a share of the wealth generated in the joint family venture proportionate to
    the claimants contributions:
Kerr
, at para.
    102. If there was no joint family venture, monetary damages calculated on a
quantum
    meruit

basis are likely appropriate.

[17]

The proprietary remedy of constructive trust in
    a property requires a claimant to show two things: that monetary damages are
    inappropriate or insufficient to remedy the unjust enrichment; and the
    claimants contribution was linked to the acquisition, preservation,
    maintenance, or improvement of the disputed property. The required link has
    been variously described as demonstrating a sufficiently substantial and
    direct link, a causal connection, a nexus or a clear proprietary
    relationship:
Kerr
, at paras. 50-51, 78;
Moore
, at para. 91. The extent of the constructive trust interest should
    be proportionate to the claimants contributions:
Kerr
, at para. 53;
Moore
, at para. 91.

Analysis

[18]

I
    find no reversible error in the trial judges conclusion that Kelly established
    a claim for unjust enrichment which entitled her to deduct 50% of the
    marriage-date value of Taplow for purposes of the net family property
    calculation under the
FLA
.

[19]

Although
    the trial judges reasons on this issue are terse and would have benefited from
    further elaboration and explanation, they disclose that he made the following
    findings:

(i)      The evidence clearly demonstrated that the parties
    jointly planned to purchase the Taplow property, renovate it, and sell it for
    profit: at para. 53;

(ii)      Kelly contributed extensively to the acquisition,
    preservation, maintenance and improvement of the property in both money and
    other contributions: at para. 55;

(iii)     David would be unjustly enriched if he were to
    receive the benefit of Kellys efforts without recognition of them: at para. 56;

(iv)     A clear connection existed between Kellys
    contributions and the property sufficient to impose a constructive trust in her
    favour: at para. 56; and

(v)     The parties owned the property equally on the date of
    their marriage, with the result that each could deduct 50% of the net value of
    the property on that date for the purposes of calculating their net family
    property: at para. 57.

[20]

Ample
    evidence supported findings (i) and (ii): in the months leading up to their
    co-habitation, Kelly helped David select a property that was a fixer-upper; following
    its purchase, Taplow was gutted; they moved in several months after the initial
    renovations made it habitable; the full renovation of the property consumed the
    next five years; while David completed the physical renovations, Kelly managed
    their household so that he could devote his free time to the renovations; she
    cooked, cleaned, did the laundry, gardened, landscaped, and generally
    maintained the house; she also assisted with the selection of fixtures, tiles,
    flooring, and backsplashes, among other furnishings; and Kelly contributed $500
    a month to their household expenses, an amount that covered more than half the
    monthly mortgage payment of $831.35.

[21]

That
    evidence also supported the trial judges finding (iv) that a clear connection
    existed between Kellys contributions and the property.

[22]

However,
    the trial judge did not expressly address arguments David made about why Kelly
    had not made out a claim for unjust enrichment, including the presence of a
    juristic reason for retaining the benefit. The trial judge should have.
    However, on the simple factual record before us I see no prejudice from the
    trial judges failure to do so. The answers to the question why the trial
    judge was satisfied that Kelly had established her claim to unjust enrichment are
    clear in the record:
R. v. G.F.
, 2021 SCC 20, at para. 70.

[23]

David
    first argued that a contractual reason existed which entitled him to retain the
    benefits conferred by Kelly. He contended that from the time they moved into
    Taplow in September 1998 until their marriage five years later in August 2003,
    their relationship was that of landlord and tenant. David contended that the
    $500 Kelly contributed each month from the time they started to co-habit was
    rent or, as he put it in cross-examination: Um, she paid $500 a month I guess
    rent. At trial, a receipt dated August 10, 1998 for $500 that David had given
    to Kelly was filed as an exhibit. On the receipt David had noted: August 98 Rent.
    David also made much of the fact that Kelly agreed on cross-examination that it
    was reasonable to suggest that she had given David post-dated cheques for her rent.

[24]

When
    the evidence is viewed as a whole, there was good reason why the trial judge
    did not accept this argument by David. Admissions made by David during his
    cross-examination belied his characterization of their relationship as one that
    was landlord and tenant-like. David acknowledged that he and Kelly moved into a
    property that was barely livable and required extensive renovations, hardly a
    scenario in which one party would pay rent:

Q. So she was all in, and you were all in too. Buying this
    crappy house, fixing it up, fixing it up over, and living in it while you were
    fixing it up  she was in on all of that. And so were you.

A. Yeah. I suppose.

Q. Yeah, young people do crazy things like that. And you did
    it together. Right?

A. I guess, yeah
.

Q. Yeah. And she lived in that Taplow house with you while it
    was basically under construction?

A. Yeah. I mean the main floor was done, but the  except other
    than the kitchen but that was you know another issue, but the basement was....
    (Emphasis added.)

[25]

David
    also acknowledged that Kelly contributed to their ability to proceed with and
    complete the renovations at Taplow:

Q. You said to this court sir, that you did the next phase of
    the renovation when you could afford it?

A. Yes.

Q. And Kelly contributed to the savings that led to you being
    able to afford it?

A. She contributed to the monthly you know maintenance and
    operational household expenses. Absolutely.

Q. And she reduced your monthly expenses because she had an
    income and she was contributing to the household?

A. Yeah.

Q. Yeah. She was keeping things together to allow you to do the
    physical work?

A. Um, yeah, I don't know because she also worked at nights
    too, so.

Q. Yeah, thats right

A. Yeah.

Q. ...because thats what it took to keep this whole project
    afloat?

A. Sure.

Q. To keep money coming in so that you would have food on the
    table while you were still building this home? She had to do that. You needed
    extra money.

A. Yeah, sure. Absolutely. All money helps.

[26]

Davids
    second argument was that even if there was unjust enrichment, the trial judge
    should have considered whether the
FLA
s equalization scheme remedied
    the unjust enrichment. David emphasizes that the sale proceeds from Taplow were
    placed into the couples next home, in which they held title as joint tenants,
    thereby enabling Kelly to participate in any future appreciation of value.

[27]

I
    see no merit to this argument. The
FLA

s equalization scheme governs asset accumulation during
    marriage:
McNamee v. McNamee
, 2011 ONCA 533, 106 O.R. (3d) 401, at
    para. 66;
Martin
, at para. 66. While the equalization scheme will
    likely resolve most unjust enrichment claims resulting from a marriage, a claim
    that one party was entitled to an interest in a property existing at the date
    of marriage based on unjust enrichment arising prior to marriage requires
    analysis under the common law framework outlined in
Kerr
. Consequently,
    the trial judge was not required to consider Kellys entitlements that would
    arise post-marriage date under the
FLA
when considering her unjust
    enrichment claim based on events occurring before and in respect of an asset
    existing at the date of marriage.

[28]

On
    appeal, David also argues that the mutual conferral of benefits that occurred
    during the pre-marriage stage of the relationship amounted to a juristic reason
    for his enrichment and Kellys deprivation. While mutual benefit conferral can
    be taken into account at the juristic reason stage of the analysis, its use at
    that stage is limited to providing relevant evidence of the parties reasonable
    expectations that could support the existence of a juristic reason outside the
    settled categories, such as a contractual relationship:
Kerr
, at
    paras. 109 and 115. As the trial judge pointed out at para. 53, the evidence in
    the present case pointed in a different direction. After their marriage in
    2003, David and Kelly sold the Taplow property and used the proceeds to buy
    another fixer-upper, this time with the title registered in both their names.
    Accordingly, the evidence as a whole showed that David and Kelly arranged their
    affairs to acquire fixer-uppers, renovate them, and then sell them at a
    profit, with both parties expecting to benefit from their mutual efforts.

[29]

To
    summarize the analysis to this point, I see no reversible error in the trial
    judges findings (i) to (iv) described in para. 19 above that supported his
    conclusion Kelly was entitled to a remedy in respect of her contributions to
    the renovation of the Taplow property on the basis of unjust enrichment.

[30]

That
    leaves for consideration the trial judges finding (v) that David and Kelly
    owned the Taplow property equally on the date of their marriage, with the
    result that each could deduct 50% of the net value of the property on that date
    for the purposes of calculating their net family property. Having found that
    Kelly had made out her claim for unjust enrichment, the
trial
    judge did not then consider whether monetary damages would suffice to address
    the unjust enrichment, which
Martin
indicates
    is the next step in the analysis. Given the way the parties framed the issues
    for the trial judges determination, it is understandable that he did not
    consider the sufficiency of a monetary award.

[31]

The remedy Kelly sought for the unjust
    enrichment was not a monetary award in the trial judgment or a proprietary
    interest in an existing asset. Instead, Kelly sought a remedy that would enable
    her to include part of the value of Taplow at the date of marriage in her net
    family property statement thereby recognizing the unjust enrichment David had
    received.

[32]

On his part, David did not argue that monetary
    damages would provide Kelly with an adequate remedy; he sought to prevent Kelly
    from obtaining any remedy that would permit her to claim part of the marriage
    date value of Taplow in her net family property statement. On appeal, David has
    not argued that the trial judge erred by failing to consider a monetary award;
    instead, he argues that the trial judge erred by allowing Kelly to include 50%
    of the marriage date value in her NFP statement.

[33]

Unfortunately,
    the trial judge gave no reasons for his conclusion that fairness required Kelly
    to receive a 50% interest in Taplow for her contributions. As stated in
Kerr
at para. 53:

The extent of the constructive trust interest should be proportionate
    to the claimants contributions. Where the contributions are unequal, the
    shares will be unequal As Dickson J. put it in
Rathwell
, The court
    will assess the contributions made by each spouse and make a fair, equitable
    distribution having regard to the respective contributions. (Citations
    omitted.)

[34]

Unlike the
FLA
,
    which presumes that couples are entitled to an equal share of net family
    property accumulated during marriage, there is no presumption that a finding of
    unjust enrichment entitles a claimant to a half interest in the property. The
    extent of the claimants interest must be proportionate to their contributions:
Kerr
,
at para. 102. When the
    contributions are unequal, the shares should be unequal:
Kerr
, at paras. 84-85.

[35]

I
    have concluded that on the record before us, the trial judges finding that
    Kelly was entitled to deduct 50% of the net value of the Taplow property on the
    date of marriage for purposes of calculating her net family property is a
    reasonably fair and equitable remedy.
It is clear from the
    evidence that prior to their marriage Kelly and David were engaged in the joint
    project of renovating the Taplow fixer-upper for their mutual benefit. As
    well, the trial judges finding is supported by the evidence that David
applied
    the full proceeds from the sale of Taplow to acquire the Valleyview Court
    fixer upper and put Kelly on title as co-owner, without any separate
    financial contribution by Kelly. Although that purchase took place four years
    after the date of marriage, it stands as a powerful recognition by David of
    Kellys equal contribution to the success of the Taplow renovation, which
    enabled them to move up the economic ladder to a higher-end house. Accordingly,
    I would not interfere with the trial judges finding on this issue.

IV.

SECOND ISSUE: DAVIDS INCOME FOR SUPPORT
    PURPOSES

Factual background

[36]

Davids
    income for support purposes was contested at trial. David earned his living
    through his successful painting business, Mr. Paint. David and Kelly each hired
    experts to review Davids personal and corporate financial information and opine
    on Davids annual income. Their opinions were relatively similar, with Kellys
    expert finding a slightly higher income than Davids expert:



Year

2013

2014

2015

2016

2017



Kellys Expert

$
147,605

$
178,637

$
105,550

$
111,464

$
207,904



Davids Expert

$92,626

$140,103

$
87,379

$
115,706

$
193,816



[37]

David
    argued that his income for support purposes should be set at $132,300, based on
    the average of his income in 2015, 2016, and 2017. He contended that his income
    in 2017 was an outlier and that the loss of a client in 2018 had resulted in a
    significant reduction in his earnings.

Analysis

[38]

I
    would not interfere with the trial judges decision to use Davids 2017 income
    for support purposes, rather than a three-year average.

[39]

The
    starting point for determining income for both child and spousal support is ss.
    16 to 20 of the
Federal Child Support Guidelines
, S.O.R./97-175.
[2]
Section 16 sets a presumption that a spouses most recent
[3]
annual income shall be determined from the sources of income set out in Revenue
    Canadas general tax return Line 150 income:
Punzo v. Punzo
, 2016 ONCA
    957, 90 R.F.L. (7th) 304, at para. 19. Section 17(1) permits a court to look
    over the last three years in the following circumstances:

17(1) If the court is of the opinion that the
    determination of a spouses annual income under section 16 would not be the
    fairest determination of that income, the court may have regard to the spouses
    income over the last three years and determine an amount that is fair and reasonable
    in light of any pattern of income, fluctuation in income or receipt of a
    non-recurring amount during those years.

[40]

Accordingly,
    the Guidelines rely on the more recent past to predict the near future and do
    not adopt averaging as a default methodology:
Mason v. Mason
, 2016
    ONCA 725, 132 O.R. (3d) 641, at para. 138. The language in s. 17 is permissive,
    not mandatory. The trial judge was under no obligation to average Davids
    income:
Decaen v. Decaen
, 2013 ONCA 218, 303 O.A.C. 261, at para. 50.

[41]

Furthermore,
    the evidence at trial indicated that Davids suggested three-year averaging of
    his annual income at $132,300 would significantly understate his actual income.
    On cross-examination, David conceded that based on his current mortgage, tax,
    and insurance costs alone, he would have to be earning at least $160,000 a
    year to support those expenses. As well, as the trial judge noted David did not
    call at trial a representative of the client which Mr. Paint lost in 2018.

[42]

Finally,
    I see no basis for interfering with the trial judges decision to exclude
    Davids 2018 T4 Statement of Remuneration Paid and Mr. Paints unaudited 2018
    Financial Statements. In his reasons on the
voir dire
, the trial judge
    noted that Davids counsel conceded that the two documents were not essential
    to the case and their only value was that the corporate revenue report indicated
    that 2017 was an exceptional year and revenues fell in 2018. The trial judge stated
    that he was not satisfied that David took all reasonable steps to expedite the
    production of the T4 and company financial statements knowing that the matter
    was scheduled for trial at the April 2019 sittings. He further held that the documents
    late disclosure prejudiced Kelly as her expert did not have sufficient time to
    consider them. The trial judge concluded that the prejudice accruing from the
    admission of these documents would outweigh their probative value and, as a
    result, he would not admit them into evidence:
Family Law Rules
, O.
    Reg. 114/99, ss. 1(8)(d) and (8.1). It was within the trial judges discretion
    to exclude that evidence on the ground that its prejudicial effect outweighed
    its probative value:
Gray v. ICBC
, 2010 BCCA 459, 326 D.L.R. (4th)
    564, at para. 1.

[43]

For
    these reasons I would not interfere with the trial judges decision to use
    Davids 2017 income for support purposes. Of course, if Davids income materially
    declines in the future, he may bring the appropriate motion to change.

V.

THIRD ISSUE: DAVIDS CLAIM FOR POST-SEPARATION
    EXPENSES

Factual background

[44]

At
    trial, Kelly and David both sought reimbursement for family-related expenses,
    most of which were incurred between the date of their legal separation on
    December 31, 2014 and the sale of the matrimonial home in November 2015. As
    mentioned, the family continued to reside in the house until its sale.

[45]

Kelly sought reimbursement from David for his
    share of expenses charged to the family Visa card after separation relating to
    home maintenance, Mr. Paint expenses, medical, family vacation, childrens
    activities, and interest charges. The trial judge granted this claim writing
    simply: The amount owing by [David] in this regard would be $12,285.59.

[46]

David sought reimbursement for half of the
$48,160.68
    in expenses he testified he had incurred in respect of the family home from
    January 1, 2015 until the house was sold in November 2015. In disposing of this
    claim, the trial judge wrote, in full: 
This was not advanced
    in his Answer. [David] should not be entitled to an adjustment of the household
    expenses that he claimed.

[47]

David submits that two errors infect that conclusion by the trial
    judge:

(i)      The trial judge applied a double standard in
    considering the parties reimbursement requests, disallowing Davids because he
    did not plead it in his Answer but allowing Kellys although she had not
    included them in her Application;

(ii)      The trial judge erred in law by failing to give David
    credit against his retroactive support obligations for payments he made to
    third parties on a support recipients behalf, namely Kelly and their children.

Analysis

[48]

I do not accept Davids first submission that
    Kelly failed to advance a reimbursement claim in her Application. In para. 16
    of her Application, Kelly pleaded: The Applicant is in need of funds to
    support herself and the children and to pay the credit card debt that the
    parties accumulated after separation. The Applicant has requested that [David]
    consent to the release of a portion of the sale proceeds, however, [David] has
    refused this request with no reasonable explanation. Kelly squarely put the
    issue on the table from the start of the litigation.

[49]

As to Davids second submission, given the thinness
    of the trial judges reasons on this issue a consideration of the record is
    required to ascertain whether it provides a clear answer:
G.F.
, at para. 70.

[50]

David and Kelly agreed on a legal separation
    date of December 31, 2014. However, they and their children continued to live
    together in the family home until it was sold in November 2015. Kelly testified
    that during 2015 she and David carried on with the status quo, playing like [they]
    were together as they did not want their children to know about the separation
    until the house was sold.  As to their understanding about the responsibility
    for family expenses following the legal date of separation but before the sale
    of the house, Kelly testified on cross-examination as follows:

Q. Okay. And so the same principle, just so I
    understand  Im not belabouring the point, so the same principle would apply to
    the family vacation in Florida, the Sabres game; in other words, you were
    living in the same house, you hadnt told the kids yet, and there was no
    expectation that there was going to be some formal accounting of how money was
    spent.

A. All we were doing as we always had done  I
    was still buying the groceries, I was still  my role was still - hadn't
    changed...

Q. Right.

A. since we separated, so.

[51]

Prior to the date of separation, David had made
    all the payments on the family Visa card. After the date of separation, David
    only made occasional payments on the card even though family expenses,
    including expenses related to the family home, continued to be charged to the
    card. David explained that notwithstanding his pre-separation payment of all
    charges to the card, he stopped paying because technically the Visa card was in
    Kellys name and he just had a secondary users card.

[52]

As to his own claim against Kelly for 2015
    expenses in respect of the family home, David only advised Kelly a few weeks
    before the April 2019 trial that he would be seeking reimbursement for them.
[4]
He explained that he only
    decided to claim reimbursement when he realized that Kelly was seeking
    retroactive child and spousal support. However, cross-examination revealed that
    position to be completely unfounded. David admitted that Kellys September 2016
    Application clearly stated she was seeking retroactive support.

[53]

At trial, Kelly did not dispute that David had
    paid most of the $48,160.68 in expenses he was claiming but pointed out that
    his claim for reimbursement was a departure from the
status quo

regarding the management of the familys affairs that had prevailed
    during 2015 until the house was sold.

[54]

By the time of the trial, over three years had
    elapsed between the time David had incurred the expenses and his 11th hour reimbursement
    claim just prior to trial. He clearly knew from Kellys September 2016 Application
    that she was asserting claims for retroactive child and spousal support, yet he
    included no claim for any reimbursement of expenses in his November 2016
    Answer. Prior to trial, David only paid monthly child support of $250,
    notwithstanding his position at trial that his income during that period of
    time averaged at least $132,300. Further, his claim for reimbursement of
    post-separation expenses marked a departure from the parties 
status
    quo

approach between the date of legal separation and the
    sale of the house, an approach adopted in the interests of their two young
    children. The expenses for which David was seeking reimbursement benefitted all
    members of the family, including himself, as he continued to live in the family
    home until it was sold. Given those circumstances, I see no error in principle,
    or unreasonableness in the result, of the trial judge exercising his discretion
    to deny David his 11th hour, three-year old claim for expenses incurred during
    2015. Accordingly, I do not give effect to this ground of appeal.

VI.

disposition

[55]

For
    the reasons outlined above, I would dismiss the appeal. Based on the agreement
    of the parties at the hearing, I would award Kelly her costs of the appeal
    fixed at $15,000, inclusive of disbursements and applicable taxes.

[56]

At
    the end of oral submissions, Kellys counsel requested an order that the
    parties real estate solicitor release the remaining sale proceeds held in
    trust in accordance with these reasons. Davids counsel did not object to that
    request. Accordingly, an order shall go that the remaining funds held in trust
    be distributed to the parties in satisfaction of the amounts awarded in the trial
    judges Order and the costs of this appeal.

Released: June 2, 2021 G. R. S.

David Brown J.A.

I agree. G.R. Strathy
    C.J.O.

I agree. B.W. Miller
    J.A.





[1]

Davids factum also argued that the trial judge erred by
    making the August 7, 2020 order. However, during oral argument, Davids counsel
    advised the court that this issue is now moot and effectively settled. Kellys
    counsel agreed. Accordingly, there is no need to comment on the merits of this
    argument. As well, David requested that this court re-visit the costs awarded
    below only in the event he succeeded on the appeal, which he has not.



[2]

Section 6.1 of the
Spousal Support Advisory Guidelines

(Ottawa: Department of Justice, 2008) states that the starting
    point for the determination of income under the
Spousal Support Advisory Guidelines
is the definition of income under the
Federal Child Support Guidelines
.



[3]

Section 2(3) of the
Federal Child Support Guidelines

states that: Where, for the purposes of these Guidelines, any
    amount is determined on the basis of specified information, the most current
    information must be used.



[4]

March 18, 2019 Trial Scheduling Endorsement Form.


