COURT OF APPEAL FOR ONTARIO

CITATION: Amyotrophic Lateral Sclerosis Society of Essex v.
    Windsor (City), 2015 ONCA 572

DATE: 20150812

DOCKET: C59525 & C59526

Strathy C.J.O., LaForme and Tulloch JJ.A.

DOCKET: C59525

BETWEEN

Amyotrophic Lateral Sclerosis Society of Essex
    County

Plaintiff (Respondent)

and

The Corporation of the City of Windsor

Defendant (Appellant)

DOCKET: C59526

BETWEEN

Belle River District Minor Hockey Association Inc. and

Essex County Dancers
    Incorporated

Plaintiffs (Respondents)

and

The Corporation of the
    Town of Tecumseh

Defendant (Appellant)

Scott Hutchison, for
    appellant City of Windsor

Brendan van Niejenhuis, for
    the appellant Town of Tecumseh

Peter W. Kryworuk and Yola S.
    Ventresca, for the respondents

Heard: May 13, 2015

On appeal from the orders of the Divisional Court
    (Justices James C. Kent, Clayton Conlan and Michael N. Varpio), dated April 28,
    2014.

Strathy C.J.O.:

[1]

The appellant municipalities appeal the certification of two class
    actions which claim that charitable lottery licensing and administration fees collected
    by the municipalities are direct taxes and therefore
ultra vires
because the revenues far exceed the costs of administration: see
Eurig
    Estate (Re)
, [1998] 2 S.C.R. 565.

[2]

The appellants acknowledge that some of the respondents claims are
    appropriate for resolution by class action. They initially consented to
    certification of claims for fees paid within the limitation periods prescribed
    by the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B.

[3]

The appellants primary objection is to the temporal scope of the class,
    which includes charities that have paid fees since 1990. They say this reaches
    too far back in time. This means, they say, that some of the common issues are
    not common to all class members and a class proceeding is not the preferable
    procedure for the resolution of all claims.

[4]

These actions were commenced in 2008. Unfortunately, they are not yet out
    of the starting gate.

[5]

For the reasons that follow, it is my view that with some adjustment these
    proceedings meet the requirements of s. 5(1) of the
Class Proceedings Act,
    1992,
S.O. 1992, c. 6

(
CPA
). The time has come to ring
    the bell and get them on their way.

JUDICIAL HISTORY

[6]

These actions have had a tortuous judicial history, having been twice
    certified, with ensuing appeals. I will describe that history to the extent
    necessary to understand the issues on appeal.

(1)

Certification: Round One

[7]

The plaintiffs commenced their actions on October 24, 2008. The proposed
    classes consisted of anyone who had paid licensing fees on or after January 1, 1990.

[8]

The certification judge initially certified a class of charities that
    paid licensing fees in two time periods:

·

October 24, 2006 and thereafter; and

·

October 24, 2002 to December 31, 2003.

[9]

The first period covered claims arising within two years of the
    commencement of this action and therefore within the two-year limitation period
    in the
Limitations Act, 2002
.  The second period covered claims
    preserved by the transitional provisions of the
Limitations Act, 2002
.

[10]

In
    limiting the claim to these periods, the certification judge accepted the
    municipalities argument that claims falling outside these periods could not
    succeed because they were time-barred. He explained that in
Kingstreet
    Investments Ltd. v. New Brunswick (Finance)
, 2007 SCC 1, [2007] 1 S.C.R.
    3, which concerned allegedly illegal fees collected by New Brunswick, the
    Supreme Court held that the limitation period began to run at the moment the
    province received payment. He rejected the plaintiffs submission that the
    applicability of the
Limitations Act, 2002
should be determined at a
    later stage, either on a summary judgment motion or at trial.

[11]

The
    plaintiffs appealed, with leave, to the Divisional Court. That court allowed
    the appeal for two reasons.

[12]

First,
    the court held that the certification judge erred by interpreting
Kingstreet
as having established an absolute limitation period for claims of this type.
    The court noted that in
Kingstreet
, there was no discoverability issue
    that could have extended the applicable limitation period. By contrast, in this
    case the plaintiffs pleaded a discoverability/concealment issue.

[13]

Second,
    and related, the discoverability/concealment issue raised questions of fact
    that could only be decided based on evidence. However, the inquiry under s.
    5(1)(a) of the
CPA
is based on the pleadings alone and does not engage
    any discretion or fact finding. While it was not clear to the Divisional Court that
    the certification judge had considered any evidence under s. 5(1)(a), if he
    had, it would constitute an error of law.

[14]

The
    Divisional Court remitted the matter back to the certification judge for reconsideration.
    It explained that it was open to him to truncate the class or the common issues
    or to dismiss the certification motion altogether, if he found the proceeding
    was inappropriate for certification without a temporal limit.

(2)

Certification: Round Two

[15]

The
    certification rehearing was held in November 2012. This time, the certification
    judge certified both class actions using the plaintiffs originally proposed,
    and admittedly arbitrary, commencement date of January 1, 1990.

[16]

The
    certification judge held, first, that the statement of claim disclosed a cause
    of action.

[17]

Second,
    there was an identifiable class, defined as all persons whether natural
    (including unincorporated associations) or corporate who have paid lottery
    licensing fees and/or lottery administration fees to [the municipalities] on or
    after January 1, 1990.

[18]

Third, the proposed claims raised common issues as to
    liability, damages and limitation periods. The common issues certified were as
    follows:

1. In pith and substance are the lottery licensing fees and
    lottery administration fees that have been charged by [the municipalities] to
    members of the class during the claim period or any part thereof, taxes imposed
    in a manner contrary to s. 53 of the
Constitution Act, 1867
?

2. Do the statements and/or the conduct by and on behalf of the
    Hall Charities Association and/or Bingo Sponsor Association give rise to a
    defence in the nature of
laches
, estoppel, waiver or analogous
    equitable defences that bind the class or bind an identifiable subclass subject
    to the defendants right to move under Rule 20 and/or Rule 21 of the
Rules
    of Civil Procedure
?

3. Apart from any arguments relating to discoverability and/or
    concealment, what is the limitation period applicable to such claims arising
    prior to the coming into force of the
Limitations Act, 2002
on January
    1, 2004?

4. What is the effect, if any, of the transitional provisions
    contained in the
Limitations Act, 2002
upon the claims of the class
    members?

5. At what time (or times), if any, should the class members
    ought to have known that they had a claim against [the municipalities], such
    that the applicable limitation period began to run against all class members,
    having regard to the principles of discoverability and concealment?

6 If the said fees are taxes which are
ultra vires
or
    otherwise illegal, are class members entitled to an accounting and/or
    restitution of such taxes paid to [the municipalities] subject to any
    applicable limitation period,
laches
, waiver and/or estoppel arguments?

7. Having regard to all the circumstances, is an award of
    punitive damages appropriate in this case?

[19]

The
    contentious common issues before this court are issues 3, 4 and 5, which relate
    to limitation periods.

[20]

The
    certification judge rejected the municipalities submission that these issues,
    and particularly common issue 5, would be unmanageable. He noted that because the
    plaintiffs limited the discoverability question to what a reasonable person
    ought to have known, there would be no need to inquire into what each class
    member actually knew in order to determine this common issue.

[21]

He
    held that the impact of the limitations issues should be dealt with later,
    rather than at the certification stage. He explained that after pleadings,
    production of documents and discovery, the application of the
Limitations
    Act, 2002
could be appropriate for determination on a summary judgment
    motion.

[22]

Fourth,
    building on this analysis, the certification judge noted that he had previously
    held that a class proceeding would be appropriate to adjudicate the timely
    claims. He added, at para. 26: And now on further analysis I am of the opinion
    that it is appropriate to permit those individuals who are outside the basic
    limitation period to have an opportunity to be heard. In his view, the
    limitations issue did not make the proceeding unmanageable.

[23]

Fifth,
    and finally, the certification judge found that the representative plaintiffs
    were able to advance the claims of all class members, including those with
    claims outside the basic limitation period. He did not address the issue of
    whether it was appropriate to create a subclass pursuant to s. 5(2) of the
CPA.

[24]

Justice
    Nolan granted the municipalities motion for leave to appeal to the Divisional
    Court. In her view, the certification judges preferability analysis did not demonstrate
    that he had considered the advantages and disadvantages of a class action and
    the manageability of a proceeding that included potentially time-barred claims.

[25]

Justice
    Nolan also noted, at para. 25, that the certification judge did not provide an
    analysis of whether the
prima facie
time-barred claims actually formed
    a subclass.

[26]

The
    Divisional Court dismissed the municipalities appeal. The court emphasized
    that the certification judges decision was entitled to substantial deference
    unless he erred in law or principle.

[27]

The
    Divisional Court approved the class definition and was not persuaded that the
    certification judge erred by failing to identify a subclass.

[28]

It
    rejected the municipalities argument that it would be unfair and inefficient
    to litigate the timely claims alongside the presumptively time-barred ones. It
    also rejected the municipalities argument that the certification judge erred
    in finding that the representative plaintiffs could represent all class
    members. The court held that it was open to the certification judge to find
    that the representative plaintiffs were suitable and did not have a conflict of
    interest.

[29]

Finally,
    the Divisional Court held that it was open to the certification judge to find
    that there were common issues, including issues of discoverability,
    notwithstanding that some of the claims were clearly brought in time.

[30]

The
    appellants appeal to this court, with leave.

ANALYSIS

[31]

The
    appellants submissions focused on: (a) the class definition; (b) whether
    subclasses are required; (c) the lack of commonality of some issues; (d) the inability
    of the representative plaintiffs to fairly represent the claims of all class
    members; and (e) whether a class proceeding is the preferable procedure for the
    resolution of the claims.

[32]

I
    will address each of these in turn. In summary, in my view the class definition
    was arbitrary and some common issues lacked commonality. These are not fatal defects,
    however. They can be corrected by modifying the class definition, creating a
    subclass and stating subclass common issues. A subclass representative is not
    required, at this time. Thus modified, a class action remains the preferable
    procedure for the resolution of the claims.

(a)

The Class Definition

[33]

It
    is a basic principle that the plaintiff must define the class with precision
    and in a way that is neither over-inclusive nor under-inclusive:
Hollick v.
    Toronto (City)
, 2001 SCC 68, [2001] 3 S.C.R. 158. In
Hollick
,
    McLachlin C.J. held that the putative plaintiff must show that the class has
    been defined sufficiently narrowly. She explained the nature of the exercise,
    at para. 21:

The requirement is not an onerous one. The
    representative need not show that
everyone
in the class shares the same interest in the resolution of the
    asserted common issue.  There must be some showing, however, that the
    class is not
unnecessarily
broad  that is, that the class could not be defined more narrowly
without
arbitrarily excluding some people who share the same interest in the
    resolution of the common issue.  Where the class could be defined more
    narrowly, the court should either disallow certification or allow certification
    on condition that the definition of the class be amended. [Emphasis in
    original.]

[34]

In
    Warren K. Winker et al,
The Law of Class Actions in Canada
(Toronto:
    Canada Law Book, 2014), the authors set out the general principle that should
    guide the task of defining a class under s. 5(1)(b), at p. 93:

A satisfactory class definition should bind the
    persons who ought to be bound and, therefore, the definition should not be
    under-inclusive. By the same token, a satisfactory definition should not bind
    persons who ought not to be bound, and, therefore, the definition should not be
    over-inclusive. An optimal class definition should not arbitrarily exclude
    those who share the same cause of action, or include persons without a claim.

[35]

The
    certification judge recognized that s. 5(1)(b) of the
CPA
requires the
    plaintiff to define the class in a rational manner. He also correctly stated
    the purposes of the class definition: to identify persons who have a potential
    claim against the defendants; to define the parameters of the lawsuit so as to
    include persons who should be bound by the result; and to describe who is
    entitled to notice of certification. He acknowledged the January 1, 1990 date
    was arbitrary, but approved it nonetheless, suggesting that the scope of the
    class could be refined after a summary judgment motion based on the limitation
    period.

[36]

The
    Divisional Court saw no error in the date being somewhat arbitrary. It
    suggested that having no date could make the proceeding unmanageable and that
    the date could be revisited after discoveries, once the parties had a better
    handle on the historical claims.

[37]

The
    actions were commenced on October 24, 2008. The timely claims, which the appellants
    concede can go forward, are those where payments were made: (a) from and after
    October 24, 2006, based on the standard two-year limitation period in the
Limitations
    Act, 2002
; and (b) between October 24, 2002 and December 31, 2003, based
    on the transition provisions in s. 24(7.1) of the
Limitations Act, 2002
,

which provide for a six-year limitation period for claims relating to
    payments made before January 1, 2004.

[38]

The
    appellants argue that claims outside these periods are presumptively time-barred
    and do not meet the test for certification under s. 5(1)(c), (d) and (e) of the
CPA
 they lack commonality with the timely claims, the proposed
    representative plaintiffs are inappropriate, and a class proceeding is not the
    preferable procedure.

[39]

I
    agree with the appellants that the class should not have been defined using an
    arbitrary cut-off date. Arbitrariness in the class definition defeats some of
    the important purposes of class proceedings: binding all persons who ought to
    be bound by the decision, providing access to justice and achieving judicial
    economy. See
Dumoulin v. Ontario
(2005), 19 C.P.C. (6th) 234 (S.C.), at
    para. 20;
Ragoonanan v. Imperial Tobacco Canada Ltd.
(2005), 78 O.R.
    (3d) 98 (S.C.), at para. 12, affd (2008), 54 C.P.C. (6th) 167 (Div. Ct.). Nor
    was it appropriate to adopt a wait and see approach to the class definition, leaving
    it to the defendants to define its contours by a summary judgment motion. It is
    the plaintiffs responsibility to define the class properly, not the
    defendants.

[40]

How,
    then, should the class be defined in this case?

[41]

As
    I have explained, the appellants propose to limit the claims to the timely
    claims  i.e. those between October 24, 2002 and December 31, 2003, and from
    October 24, 2006 onward. The respondents complain that truncating the class in
    this way presupposes that claims outside these time periods are time-barred  a
    conclusion that depends on a factual inquiry regarding discoverability.
    However, the case law is clear: where the resolution of the limitation issue
    depends on a factual inquiry, such as when the plaintiff discovered or ought to
    have discovered the claim, the issue should not be decided on the motion for
    certification:
Serhan (Trustee of) v. Johnson & Johnson
(2006), 85
    O.R. (3d) 665 (Div. Ct.), at paras. 140-145, leave to appeal to C.A. refused
    (unreported), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 494.  See
    also
McKenna v. Gammon Gold

Inc.
,
2010 ONSC 1591
,
88 C.P.C. (6th) 27,
at paras. 38-39.

[42]

On
    the other hand, if the classes are defined using no temporal limit, the claims
    would reach back to 1969/1970 when Ontario first introduced the licencing
    regime for charitable gaming. All parties appear to agree that a class
    definition stretching back more than four decades may make the proceeding unmanageable.

[43]

In my view, the temporal boundary of the class can be defined in a
    rational way by reference to the ultimate limitation period in s. 15(2) of the
Limitations
    Act, 2002
. That provides, No proceeding shall be commenced
    in respect of any claim after the 15th anniversary of the day on which the act
    or omission on which the claim is based took place. This would result in a
    class definition encompassing persons who paid fees from and after October 24,
    1993.

[44]

Although s. 15(4) of the
Limitations Act, 2002
provides an exception to the ultimate limitation period in the case of
    wilful concealment, drawing the class boundary at the ultimate limitation
    period is not arbitrary because it separates claims that require proof of
    wilful concealment from those that do not.

[45]

As I will explain, concerns with respect to manageability can be
    addressed by the creation of a subclass, by stating common issues for the
    subclasses and by appropriate case management. I will discuss the subclass
    issue next.

(b)

Subclasses

[46]

The court has the authority to certify a subclass of class members who
    have claims or defences not shared by all class members:
CPA
, s. 5(2). Subclasses are appropriate when there are common issues
    applicable to the class as a whole and other issues that are applicable to
    some, but not all class members:
Caputo v. Imperial Tobacco Ltd.
(2004),
44 C.P.C. (5th) 350
(Ont. S.C.), at para. 45.

[47]

Here, issues of liability and damages are common to all class members.
    However,
the claims of class members with presumptively time-barred
    claims raise common issues of fact and law not shared by those with timely
    claims. They should form a subclass.
I
would therefore certify
    a subclass of persons who paid fees between October 24, 1993 and October 23,
    2002 and between January 1, 2004 and October 23, 2006. These are the payments made
    within the ultimate limitation period in s. 15 of the
Limitations Act,
    2002
, but not within the basic limitation period and not preserved by the
    transition rules of the statute.

(c)

Common Issues

[48]

A
    common issue must be a substantial ingredient of every class members claim and
    its resolution must serve to advance the resolution of that claim: see
Hollick
,
    at para. 18;
Vivendi Canada Inc. v. Dell'Aniello
,
2014
    SCC 1, [2014] 1 S.C.R. 3, at
para. 46. The answer to the question must
    be capable of extrapolation to every member of the class: see
McKenna
,
    at para. 125;
Sankar v. Bell Mobility
, 2013 ONSC 5916, 52 C.P.C. (7th)
    75, at paras. 91, 93, leave to appeal to Div. Ct. refused,
2013
    ONSC 7529
.

[49]

The
    certification judge properly certified common issues relating to liability
    (issue 1), defences (issue 2) and remedies (issues 6 and 7) that are common to
    all class members.

[50]

However,
    common issues 3, 4 and 5 are of no interest to class members whose claims are timely.
    Those issues are only applicable to the subclass members, whose claims may be
    subject to a limitations defence. They should be subclass common issues.

(d)

Representative Plaintiffs

[51]

The
    issue now is whether a separate subclass representative is required. The
    appellants say the representative plaintiffs cannot fairly and adequately
    represent the interests of the subclass.

[52]

They
    rely on the principle expressed in
Stone v. Wellington County Board of
    Education
(1999)
,
120 O.A.C. 296 (C.A.), at
    para. 10, leave to appeal to S.C.C. refused, [
1999]
    S.C.C.A. No. 336,
that [w]here a representative plaintiff, for reasons
    personal to that plaintiff, is definitively shown as having no claim because of
    the expiry of a limitation period, he or she cannot be said to be a member of
    the proposed class.

[53]

The
    appellants say the representative plaintiffs have a conflict of interest,
    because they have admitted to knowledge of certain facts that makes it
    impossible to rebut the presumption that they discovered their claims outside
    the limitation period. They say the subclass members with presumptively time-barred
    claims would be prejudiced if they were represented by these plaintiffs.
    Moreover, say the appellants, the representative plaintiffs may be inclined to
    sacrifice their interests in the time-barred claims in order to prosecute their
    timely claims.

[54]

The
    appellants refer to s. 5(2) of the
CPA
,

which provides that
    where, in the opinion of the court, the protection of subclass members requires
    that they be separately represented, the court shall not certify the proceeding
    unless there is a representative plaintiff who would fairly and adequately
    represent the subclass, has produced a workable litigation plan on behalf of
    the subclass and who does not have, on the subclass common issues, a conflict
    of interest with the subclass.

[55]

I
    do not read this statutory requirement as precluding the class representative
    from representing a subclass. It is only when the representative plaintiff
    cannot fairly and adequately represent the subclass that the need for a
    separate subclass representative arises: see
Pearson v. Boliden Ltd.
,
2001 BCSC 1054, 94 B.C.L.R. (3d) 133
, at para. 73, varied on
    other grounds,
2002 BCCA 624, 222 D.L.R. (4th) 453
;
Dominguez
    v. Northland Properties Corporation
, 2012 BCSC 328, at paras. 75-83;
Anderson
    v. Wilson
(1999), 44 O.R. (3d) 673 (C.A.), leave to appeal to S.C.C. refused,
[
1999] S.C.C.A. No. 476
;
Caponi
    v. Canada Life Assurance Co.
(2009),
72 C.P.C. (6th) 331
(Ont. S.C.), at para. 56.

[56]

It
    is not necessary to resolve the appellants concerns at this time. The
    representative plaintiffs, like many class members, may have claims that are
    both timely and presumptively time-barred. They have an interest, at least at
    the present time, in advancing both types of claims. They certainly have an
    interest with all class members in the common issues of liability and damages.

[57]

Moreover,
    I am not convinced that it is quite as obvious as the appellants suggest that
    the admissions made by the representative plaintiffs or their counsel are fatal
    to their claims. It has not been definitively shown that they have no claim.

[58]

On
    the present record, I am not satisfied the representative plaintiffs are unable
    to represent all class members. It may be that at some future date it will be
    necessary to revisit this issue, but that issue, and when it should be
    addressed, are matters best left to the judgment of the case management judge.

(e)

Preferable Procedure

[59]

The
    remaining issue is whether this proceeding, as modified, meets the requirement
    of s. 5(1)(d) of the
CPA
 that is, whether it would be the preferable
    procedure for the resolution of the common issues.

[60]

The
    preferability analysis asks two main questions, as set out in
Hollick
:
    (a) whether or not the class proceeding would be a fair, efficient and
    manageable method of advancing the claim; and (b) whether a class proceeding
    would be preferable to other procedures.

[61]

These
    questions are to be addressed through the lens of the three goals of class
    action proceedings  judicial economy, access to justice and behaviour
    modification:
Hollick
, at para. 27. However, there is no requirement
    to prove that the class action will actually achieve these goals:
AIC
    Limited v. Fischer
,
2013 SCC 69
, [2013] 3
    S.C.R. 949, at para. 22.

[62]

Although
    recent case law, particularly
AIC Limited v. Fischer
, has focused on
    the second question  the comparison to alternative procedures  the proposed
    class proceeding must nevertheless be fair, efficient and manageable in order
    for it to be certified. As stated by Winkler J., as he then was, in
Caputo
,
    at para. 62:

[I]t is not enough for the plaintiffs to establish that there
    is no other procedure which is preferable to a class proceeding. The court must
    also be satisfied that a class proceeding would be
fair,
    efficient and manageable
. Both parts of the test must be considered in
    the context of the three goals of the
CPA
, judicial economy, access to
    justice and behavioural modification of tortfeasors.

[63]

In
    this case, there are two issues of preferability. The first is the complexity
    introduced by the need to resolve potentially time-barred claims along with the
    timely claims. The appellants concede that a class action
could
combine timely claims and the presumptively time-barred claims. They say,
    however, that in this case the court should certify only a focused class of
    timely claims and leave the other claims to be pursued individually by those
    claimants who wish to do so.

[64]

The
    second concern is the existence of different regulatory and fiscal regimes over
    the broad class period, which may necessitate individual inquiries, in
    individual time periods, to determine issues of both liability and damages.

[65]

The
    difficulties faced by defendants simply by virtue of having to respond to
    common and individual issues do not make a class proceeding unfair, inefficient
    or unmanageable if those issues will have to be dealt with by the defendants
    one way or another. In
Cloud v. Canada (Attorney General)

(2004), 73 O.R. (3d) 401
(C.A.), leave to appeal to S.C.C. refused,
    [2005] S.C.C.A. No. 50, the defendants argued that a class action proceeding
    would be unfair to them and would create an unmanageable proceeding. Justice
    Goudge rejected that submission, stating at para. 89-90:

The common issues require resolution one way or the other. It
    is no less fair to the respondents to face them in a single trial than in many
    individual trials.

That conclusion is not altered even if one takes into
    consideration the individual adjudications that would follow. The fact of a number
    of individual adjudications of harm and causation did not render the action in
    Rumley unmanageable and does not do so here. Thus at this stage in the
    proceedings, when one views the common issues trial in the context of the
    action as whole, there is no reason to doubt the conclusion that the class
    action is a manageable method of advancing the claim.

[66]

The
    appellants argue that the certification judge failed to address the preferable
    procedure requirement. They say that combining the presumptively time-barred
    claims with the timely claims is not the preferable procedure for the
    resolution of either.  They submit the large quantum at issue in the presumptively
    time-barred claims makes them amenable to ordinary litigation. Their small
    likelihood of success, given the admissions of the representative plaintiff and
    the challenges of litigating those claims, makes it clear that they should not
    be litigated with the timely claims.

[67]

I
    disagree. In my view, the significant features of class proceedings  the
    ability to case manage groups of claims raising common issues and the ability
    to make binding determinations of those issues  make a class proceeding
    appropriate to resolve these claims. With active and strategic case management,
    and a resolve by the parties to focus on the fair and efficient resolution of
    the issues, both liability and limitation period issues could be resolved
    relatively expeditiously.

[68]

Section
    12 of the
CPA
empowers the case management judge to make appropriate
    orders to ensure the fair and expeditious determination of the proceeding and
    to impose appropriate terms on the parties. This provision is procedural (see
McCracken
    v. Canadian National Railway Co.
, 2012 ONCA 445,
293
    O.A.C. 274,
at para. 142) and does not permit a judge to ignore or
    override provisions of the
CPA
. However, together with Rule 1.04 of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, it does permit
    the judge to impose procedural terms that will promote access to justice and
    judicial economy as well as ensure the just, most expeditious and least
    expensive determination of the proceeding on its merits.

[69]

The
Manual for Complex Litigation
, 4th ed., published by the American
    Federal Judicial Center in 2004, provides a useful catalogue of the features of
    effective case management at 10.13:

Effective judicial
    management generally has the following characteristics:

·

It is active
. The judge anticipates problems before they
    arise rather than waiting passively for counsel to present them. Because the
    attorneys may become immersed in the details of the case, innovation and
    creativity in formulating a litigation plan frequently will depend on the
    judge.

·

It is substantive
. The judge becomes familiar at an
    early stage with the substantive issues in order to make informed rulings on
    issue definition and narrowing, and on related matters, such as scheduling,
    bifurcation and consolidation, and discovery control.

·

It is timely
. The judge decides disputes promptly,
    particularly those that may substantively affect the course or scope of further
    proceedings. Delayed rulings may be costly and burdensome for litigants and
    will often delay other litigation events. The parties may prefer that a ruling
    be timely rather than perfect.

·

It is continuing
. The judge periodically monitors the
    progress of the litigation to see that schedules are being followed and to
    consider necessary modifications of the litigation plan. Interim reports may be
    ordered between scheduled conferences.

·

It is firm, but fair
. Time limits and other controls and
    requirements are not imposed arbitrarily or without considering the views of
    counsel, and they are revised when warranted. Once established, however,
    schedules are met, and, when necessary, appropriate sanctions are imposed  for
    derelictions and dilatory tactics.

·

It is careful
. An early display of careful preparation
    sets the proper tone and enhances the courts credibility and effectiveness
    with counsel.

[70]

Case
    management judges in class proceedings are of course required to be fair to
    both parties, and they should take the representative plaintiffs litigation
    plan as an important starting point in guiding the case management process. At
    the same time, they are entitled to seek and impose creative solutions to the
    efficient determination of the issues. The resolution of issues does not always
    require an adversarial hearing. Some case management judges and counsel find
    case management conferences to be an efficient way of resolving procedural
    issues, through discussion, negotiation and consensus, facilitated by the case
    management judge and without the need for formal rulings.

[71]

The
    case management judge is entitled to give directions as to when certain steps
    should be accomplished and as to what motions may be brought, and when. The
    case management judge may prohibit motions from being brought before certain
    steps have been accomplished and may make orders as to the sequencing of
    motions. The case management judge is also entitled to determine the order in
    which some issues are addressed. He or she is entitled, but not required, to
    determine whether some issues are amenable to summary judgment and to schedule
    the proceedings accordingly.

[72]

In
    this case, individual issues may remain after the common issues have been
    resolved. It may be asserted that particular class members had special knowledge
    that triggered the commencement of the limitation period, notwithstanding that
    the information was not publicly known. Different regulatory regimes, fee
    scales and cost-recovery methods may require analysis of particular segments of
    the class period. I am not persuaded, however, that this would make the
    proceeding unmanageable or incapable of fair and efficient resolution. Indeed,
    it is my view that these issues can most effectively and fairly resolved in the
    context of this proceeding.

[73]

As
    I suggested earlier, case management should be complimented by a resolve by the
    parties to focus on the fair and efficient resolution of the issues. That
    should be true in all litigation, but it is particularly important in complex
    litigation such as class proceedings. All the more so in a case like this, in
    which the ultimate cost will be borne by the public, one way or the other. It
    behooves the parties, assisted by the case management judge, to focus their
    energies accordingly.

DISPOSITION

[74]

For
    these reasons, the appeal is allowed, in part, the judgment below is varied and
    the proceeding shall be certified as a class proceeding pursuant to s. 5(1) of
    the
CPA
on the terms set out herein.

[75]

As
    success is divided, I would make no order as to costs.

Released: HSL AUG 12 2015

G.R.
    Strathy C.J.O.

I
    agree. H.S. LaForme J.A.

I
    agree. M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cash House
    Inc. v. Choy, 2015 ONCA 584

DATE: 20150828

DOCKET: C58484

Feldman, Simmons and Miller JJ.A.

BETWEEN

The Cash House Inc.

Appellant (Plaintiff)

and

Lai Kwan Choy, HSBC Bank Canada,
Andrew Mantella
,
Maple Trust
    Company
, 1682689 Ontario Limited and Bob Chong

Respondent (Defendants)

Mauro Marchioni and Adam Justin Marchioni, for the
    appellant

R. Leigh Youd, for the respondent, Andrew Mantella

Martin Sclisizzi, for the respondent, Maple Trust
    Company

Heard: August 25, 2015

On appeal from the judgment of Justice David G. Stinson of
    the Superior of Justice, dated November 20, 2013.

ENDORSEMENT

[1]

The appellant appeals the decision of the trial judge dismissing its
    claims against both the mortgagee and against its solicitor. The appellant
    cashed a bank draft to the mortgagor drawn by the solicitor on his trust
    account for the mortgage funds. Unfortunately, the mortgagor was a fraudster
    who duped both respondents and the appellant.

[2]

The appellant raises two grounds of appeal against the mortgagee Maple
    Trust Company. The first is that the trial judge erred by dismissing the
    appellants request to amend the claim against Maple Trust following its
    closing argument, to add new allegations of negligence. The appellant argues
    that Rule 26 is mandatory and that the timing of the motion caused only the
    type of prejudice that could be compensated by costs or an adjournment.

[3]

In our view, there is no basis to interfere with the discretionary
    decision of the trial judge not to allow the trial to be re-opened after
    closing argument. In any event, as the new allegations would have constituted a
    completely different cause of action in negligence, they would have been
    statute barred.

[4]

As we are not giving effect to the first ground, there is no need to
    address the applicability of negligence principles had the amendment been
    allowed.

[5]

The appellant also seeks to set aside the decision of the trial judge
    not to recognize a new duty of care owed by the respondent Mantella to the
    appellant as the effective collecting bank in respect of the bank draft. We
    see no error in the trial judges conclusion. This court recently held in
Teva
    v. Bank of Montreal
,
2012 ONCA
486, 294 O.A.C.
    323, that the court should not recognize a new duty of care in the context of
    the obligations that exist in respect of bills of exchange.

[6]

The appeals against the respondents, Maple Trust and Mantella, are
    dismissed with costs fixed in the agreed amount of $17,000 inclusive of
    disbursements and HST to each respondent.

[7]

The balance of the appeal against the respondent Chong is adjourned in
    accordance with the endorsement of the court made following the oral hearing.

K. Feldman J.A.

J. Simmons J.A.

B. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Godard v. Godard, 2015 ONCA 568

DATE: 20150804

DOCKET:
C59999

Hoy A.C.J.O, Epstein and Huscroft JJ.A
.

BETWEEN

Terri-Lynn Godard

Appellant

and

Christopher Godard

Respondent

Guy A. Wainwright, for the appellant

Paul Mongenais, for the respondent

Heard: July 6, 2015

On appeal from the order of Justice Robin Y. Tremblay of the
    Superior Court of Justice, dated February 3, 2015.

By the Court:

[1]

The appellant mother appeals from the order of the motion judge, finding
    her in contempt of the order of MacDonald J. granting the respondent father
    access to their daughter, S.

[2]

The appeal is dismissed for the reasons that follow.

a.      Background

[3]

The appellant and respondent were married in 1999 and separated in 2005.
    They have two children, I. and S., born in 2000 and 2002. A number of temporary
    custody and access orders have been made since separation.

[4]

The appellant was awarded interim custody of the children in 2006 and
    the respondent was granted access every second week. On October 21, 2010, a
    temporary order was made mandating that I.s principal residence would be with
    the respondent. S. remained with the appellant. The appellant has brought various
    unsuccessful motions in an effort to limit or terminate the respondents access
    to S.

[5]

The respondent brought a contempt motion on June 18, 2014, alleging that
    he had been deprived of weekend access since January, 2014. Justice Cornell
    found that the
de facto

access arrangements differed from the
    existing access order and dismissed the contempt motion as a result.
    Nevertheless, Cornell J. noted serious concerns that the applicant is engaged
    in a pattern of behavior designed to alienate [S.] from her father.

[6]

Cornell J. made an order for summer access on the basis of agreed dates.
    However, the respondent did not have access to S. over the course of the
    summer, nor did he have access on every second weekend after the summer ended,
    as the order required. The appellant attempted to justify this situation by
    citing S.s refusal to attend for access with the respondent.

[7]

On October 14, 2014, the respondent brought a motion for an order for
    specified access and an updated exchange protocol. On November 3, 2014,
    MacDonald J. made the following order, on consent:

Access to continue every second weekend shall resume on
    November 14, 2014 with drop off by the mother at the paternal grandparents on
    Fridays at 6:30 p.m. at 137 Gough Street in Kapuskasing. With pick up by mother
    at 6:00 p.m. on Sundays.

[8]

The appellant did not drop S. off at her paternal grandparents home on
    November 14 or any Friday thereafter as required by the order, and the
    respondent brought a second motion to find the appellant in contempt.

b.      Motion Judges Decision

[9]

At the request of the parties, the motion proceeded on a written record
    that included affidavits from both parties, transcripts of previous hearings,
    and reasons rendered in previous proceedings, among other documents.

[10]

The
    appellant argued that she had done her best to facilitate the respondents
    access, but S. had persistently refused to see the respondent. However, the
    motion judge was convinced beyond a reasonable doubt that the appellant was in
    contempt of the November 3, 2014 order. The motion judge began his analysis by outlining
    a number of undisputed facts:

-

The respondent last had access to his daughter,
    S., the weekend of January 10-12, 2014, that is more than a year ago at the
    time of the hearing of this motion;

-

S. did not visit her older sister, I. and her paternal grandparents
    either during this time period;

-

S. was 11 years old at the time of the last period of access, 12
    years old at the time of the alleged contempt of the court order by the
    appellant and recently turned 13 years old;

-

S. is under the impression that she could decide, starting at the
    age of 12, whether she wished to continue with access to the respondent;

-

S. does not want to have access with the respondent for undetermined
    reasons and refuses to attend;

-

The appellant was aware of the order of Justice MacDonald dated
    November 3, 2014 and understood its terms;

-

The appellant did not drop-off S. at the
    paternal grandparents on Friday, November 14, 2014 at 6:30 p.m. contrary to
    the order of Justice MacDonald dated November 3, 2014.

[11]

The
    motion judge employed the three-part test for contempt as outlined by this
    court in
G. (N.) c. Services aux enfants & adultes de Prescott-Russell
(2006), 82 O.R. (3d) 669 (C.A.), at para. 27:

(i)
the order that was breached must state
    clearly and unequivocally what should and should not be done;

(ii)
the party who disobeys the order must do
    so deliberately and wilfully; and

(iii)
the evidence must show contempt beyond a
    reasonable doubt.

[12]

The
    motion judge found that the order of Cornell J. dated July 18, 2014 did not
    state clearly and unequivocally what the appellant was required to do, and that
    this appeared to be the reason why the November 3, 2014 order of MacDonald J.
    was necessary. The motion judge found the order of MacDonald J. to be clear and
    unequivocal in setting out the requirement to drop off S. on November 14, 2014.

[13]

Although
    the motion judge gave the appellant the benefit of the doubt that she is
    trying to encourage the child to visit with her father, the motion judge found
    that the appellant had left it up to S. to decide whether or not she would
    attend the visits with the respondent, and in addition noted that S.s refusal
    to visit the respondent had sometimes resulted in positive consequences for
    her. The motion judge found that the appellant has effectively abdicated her
    parental authority on the issue of access (paras. 36, 38, 49), and concluded
    that he was convinced beyond a reasonable doubt that the appellant was in
    contempt of the access order.

[14]

The
    motion judge noted that there were many avenues available to the appellant,
    short of physical force, to encourage her daughter to comply with the access
    order and stated: Had these measures been utilized and proved unsuccessful,
    the mother would likely not have been found in contempt of the court order
    (para. 42).

C.      Issues on Appeal

[15]

The
    appellant argues that the motion judge erred by

1)

failing to consider
    alternate remedies to contempt;

2)

rejecting her
    uncontradicted evidence; and

3)

finding that the
    appellant had deliberately and wilfully breached the access order.

[16]

We
    deal with each of these arguments in turn.

d.      Analysis

(1)     Availability of Alternate
    Remedies

[17]

The
    motion judge was aware of the exceptional nature of contempt findings in family
    law. He cited this courts decision in
Hefkey v. Hefkey
, 2013 ONCA 44,
    30 R.F.L. (7th) 65, and wrote that, [t]he Courts have repeatedly stressed that
    great caution must be exercised when considering contempt motions in family law
    proceedings. Contempt findings in such cases should be made only sparingly and
    as a last resort where conferences to try to resolve access problems or motions
    for enforcement have failed.

[18]

The
    appellant submits there were various adequate alternate remedies at the motion
    judges disposal including a settlement conference, the involvement of the
    Ontarios Childrens Lawyer, and setting the action down for trial, and that
    the contempt finding was inappropriate as a result.

[19]

We
    disagree.

[20]

In
    our view, the history of this case belies the adequacy of alternate approaches.
    The appellant has a history of trying to limit or terminate the respondents
    access to S. The respondent has brought numerous motions asserting his access
    rights in the face of the appellants persistent non-compliance with access
    orders. Following the first contempt motion brought by the respondent and Cornell
    J.s previously noted expression of concern about the appellants behaviour, several
    settlement conferences were held.

[21]

In
    light of the history of this dispute, it was open to the motion judge to
    conclude that a finding of contempt was the only adequate remedy in the
    circumstances.

(2)     Cross-examination on the Affidavits

[22]

The
    appellant submits the motion judge erred by rejecting the appellants
    uncontradicted evidence in the absence of cross-examination on her affidavit,
    thereby violating the rule in
Browne v. Dunn
(1893), 6 R. 67 (U.K. H.L.).

[23]

There
    is no merit to this argument.

[24]

We
    note, first, that oral evidence is not a precondition to a finding of contempt.
    In any event, the motion in this case proceeded on the written record at the
    request of the parties. No findings of credibility were made, nor were any required.
    The motion judges key findings of fact were, in fact, consistent with the
    appellants affidavit evidence. There was, in other words, no conflict of
    evidence in the affidavits relevant to disposition of the motion.

[25]

As
    noted above, for purposes of the motion, the motion judge gave the appellant
    the benefit of the doubt that she is indeed trying to encourage the child to
    visit with her father". However, the motion judge found that the
    appellants affidavit supported

the conclusions that she has "left
    up to the child the decision as to whether or not she will attend for access
    with her father, and that she has effectively abdicated her parental authority
    on the issue of access" (para. 38). These findings form the basis for the
    finding of contempt and were open to the judge on the affidavit evidence, as
    discussed below.

(3)     Proof of Deliberate and Wilful Disobedience Beyond a Reasonable
    Doubt

[26]

The
    appellant argues there was insufficient proof to satisfy the motion judge
    beyond a reasonable doubt that she
wilfully
disobeyed the access
    order. Specifically, the appellant argues that once the motion judge accepted
    that S. did not want to see the respondent and that the appellant was making
    some efforts to encourage S. to see him, it was inconsistent to then find
    deliberate and wilful disobedience beyond a reasonable doubt.

[27]

We
    reject this argument.

[28]

Although
    a childs wishes, particularly the wishes of a child of S.s age, should
    certainly be considered by a court prior to making an access order, once the
    court has determined that access is in the childs best interests a parent cannot
    leave the decision to comply with the access order up to the child. As stated
    by the motion judge, Ontario courts have held consistently that a parent has
    some positive obligation to ensure a child who allegedly resists contact with
    the access parent complies with the access order:
Quaresma v. Bathurst
,
    (2008), O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also
Campo v. Campo
,
    2015 ONSC 1349;
Stuyt v. Stuyt
, 2009 CanLII 43948 (Ont. S.C.);
Stuyt
    v. Stuyt
, 2009 CanLII 43948 (Ont. S.C.); and
Hatcher v. Hatcher
,
    [2009] O.J. No. 1343 (Ont. Sup.Ct.).

[29]

No
    doubt, it may be difficult to comply with an access order, especially as
    children get older. Parents are not required to do the impossible in order to
    avoid a contempt finding. They are, however, required to do all that they
    reasonably can. In this case, the motion judge inferred deliberate and wilful
    disobedience of the order from the appellants failure to do do all that she
    reasonably could: she failed to "take concrete measures to apply normal
    parental authority to have the child comply with the access order".

[30]

As
    the motion judge noted, the appellant had been put on notice in prior
    proceedings that more than mere encouragement was required. For example, in
    response to the submission of her counsel on November 28, 2014 that any type
    of a forced provision I dont think is going to help at all, MacDonald J.
    asked:

[W]hat does the mother do when this child doesnt want to go to
    school or doesnt want to go to the dentist? What are her mechanisms? Right?
    Does this child have an allowance? Does she have a hockey tournament that maybe
    shes not allowed to go to if she doesnt go to see dad before? Are there
    things she could do to force her to go short of the police attending at her
    house and physically removing her?

[31]

Despite
    this, it is clear from her affidavit that the appellant took no further steps.
    She did not go beyond mere encouragement to attempt any stronger forms of
    persuasion.

[32]

In
    our view, there was ample evidence in the record to support the motion judges
    conclusion that the appellant essentially left the decision concerning
    compliance with the access order up to S. For example, the motion judge cited
    an email sent by the appellant to the respondent on January 27, 2014, in which
    she wrote: I spoke with [S.] and she would prefer to stay here this weekend.
    The motion judge referred to another email sent by the appellant on March 4,
    2014 in which she stated: [S.] is getting older and is more than capable of
    deciding when she would like to go to your house to visit. Finally, the motion
    judge referenced an email sent by the appellant to her lawyer on November 14,
    2014, in which she described how she tried to ask S. why she did not want to
    visit her father and stated: [i]f she wanted to go we had to know.

[33]

It
    is possible that nothing short of physical force could have brought S. to the
    access visits. However, this does not excuse the appellant given the motion judges
    finding that she has not done all that she could to attempt to comply with the
    access order. The motion judge found that despite being on notice that attempts
    at stronger forms of persuasion may be required, the appellant did not go
    beyond mere encouragement. In these circumstances, the motion judge properly
    concluded that deliberate and wilful disobedience was established beyond a
    reasonable doubt.

e.      DISposition

[34]

The
    appeal is dismissed. The appellant shall pay the respondent $8,293.79,
    inclusive of taxes and disbursements, for the costs of the appeal. Costs of the
    motion will be determined by the motion judge when he addresses the sanction
    for contempt.

Released:  August 4, 2015 GE

Alexandra
    Hoy A.C.J.O.

Gloria Epstein J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Korman v. Korman, 2015 ONCA 578

DATE: 20150821

DOCKET: C59141

Feldman, Cronk and Huscroft JJ.A.

BETWEEN

Isaac Michael Korman

Applicant (Appellant)

and

Susan Korman

Respondent (Respondent)

Peter I. Waldmann and Matthew J. Armstrong, for the
    appellant

Evelyn K. Rayson and Diana L. Solomon, for the
    respondent

Heard: May 7, 2015

On appeal from the judgment of Justice Clifford S. Nelson
    of the Superior Court of Justice, Family Court Branch, dated June 23, 2014.

Cronk J.A.:

I.        Introduction

[1]

The appellant, Isaac Michael Korman (the Husband), and the respondent,
    Susan Korman (the Wife), married in 1988 and separated in 2009.  There are
    two children of the marriage: J., now approximately 22 years of age, and Je., soon
    to be 17 years of age.

[2]

In January 2010, the Husband applied for a divorce under the
Divorce
    Act
, R.S.C. 1985, c. 3 (2nd Supp.) and for various relief under the
Family
    Law Act
, R.S.O. 1990, c. F. 3 (the Act).  After an eight-day trial, the
    trial judge granted the parties a divorce.  He also ordered the matrimonial
    home to be sold, the Wife to pay an equalization payment in favour of the Husband,
    and the Husband to pay child and spousal support, as well as part of Je.s
    private secondary school education costs.

[3]

The Husband appeals from three aspects of the trial judgment: i) the trial
    judges finding that the Husband gifted his interest in the matrimonial home to
    the Wife when the parties purchased the property; ii) the trial judges
    imputation of income to the Husband based on money and dividends that one or
    both of his parents had previously gifted or allocated to him; and iii) the
    trial judges treatment of Je.s private secondary school fees as a s. 7
    extraordinary expense under the
Federal Child Support Guidelines
,
    SOR/97-175 (the
Federal Guidelines
).  As these are the only issues
    on appeal, I will address only those facts pertinent to them.

II.       Background Facts

(1)

Matrimonial Home

[4]

At the date of separation, the parties resided with their children at a
    house on Marinucci Court in Richmond Hill, Ontario (the Matrimonial Home).  They
    had acquired this home in July 2002 for approximately $560,000. They paid the
    purchase price in full, using proceeds from the sale of their jointlyowned first
    matrimonial home in Aurora, Ontario, funds gifted to them by their parents
    $150,000 from the Husbands parents and $50,000 from the Wifes parents  and accumulated
    joint savings.  The property was thus mortgage-free from the time of purchase.

[5]

Title to the Matrimonial Home was placed solely in the Wifes name.  The
    legal consequence of this arrangement is a principal issue on this appeal.

[6]

When the parties purchased the Matrimonial Home in 2002, the Husband was
    working as an investment advisor.  In August of that year, he received a letter
    of caution from the Investment Dealers Association of Canada in respect of a
    client complaint.  Some seven years earlier, the Husband had made an error in
    authorizing a client transaction, prompting him to leave the firm at which he
    was then working to obtain new employment.

[7]

At trial, the Wife maintained that the parties had placed title to the
    Matrimonial Home in her name alone to protect it from potential claims by
    creditors arising out of the Husbands employment.  She argued that, since she
    was the sole registered owner of the Matrimonial Home, she alone was entitled
    to any post-separation increase in its value.

[8]

The Husband resisted this claim.  He maintained that he never intended
    to gift his interest in the Matrimonial Home to the Wife; that the Wife
    insisted that title to the Matrimonial Home be put in her name alone to protect
    it from potential creditors; and that he loved and trusted the Wife and wanted
    to make her happy and therefore simply acquiesced to her demand, without
    considering any potential legal consequence of so doing, even though he was not
    concerned about creditors.  Based on principles of constructive and resulting trust,
    as well as unjust enrichment, the Husband argued that he was entitled not only
    to an equal share in the value of the Matrimonial Home on the date of
    separation (V-Day) but also to an equal share in any post-separation increase
    in the propertys value.

[9]

The trial judge found that the Matrimonial Home had a value of $725,000
    on V-Day and $940,000 by April 2013.  By the time of trial, it was likely
    worth more: at para. 49.

[10]

The
    trial judge concluded that, while the Husband was entitled to share in the
    value of the Matrimonial Home at V-Day by reason of the equalization provisions
    of the Act, the Wife through ownership  benefits in any increase in value of
    the [Matrimonial Home] as and from [V-Day]: at para. 67.  He reasoned as
    follows, at paras. 65-67:

When the [Husband] transferred the entire house to the [Wife]
    he did so because he loved her.  There were no strings attached to this gift.
    I also find that the house was put into the [Wifes] name to protect it from
    potential creditors so that the [Husband] could, at some time in the future, if
    necessary, protect family assets from third party creditors.

The equalization provisions of the [Act] give the [Husband] the
    protection afforded by our laws in the sense that these provisions will give
    him his lawful share in the rise in value of the property up to and including
    the date of separation.  While he may have made further contributions to the
    running costs of the property after the date of separation, those
    contributions, which were not categorized, nor proved, would fall into the
    category of support payments belonging to the [Wife].

The concept of constructive trust survives the equalization
    process set out in the [Act], it seems to me that it would be the rare case
    where it should be applied to prevent a clear injustice not cured by the usual
    equalization scheme.

(2)

Income Imputation to the Husband

[11]

Neither
    Je.s entitlement to ongoing child support nor the Wifes entitlement to
    spousal support was seriously contested at trial.  The parties were divided,
    however, on the questions of retroactive child support for both children of the
    marriage and the quantum of retroactive and ongoing spousal support.

[12]

To
    resolve the contested aspects of child and spousal support, the trial judge had
    to determine the parties respective incomes.  He made the following pertinent
    findings:

1)

[w]hile the [Wife] does
    have some employment skills and worked from time-to-time during the marriage, she
    mainly stayed home to raise the children while the [Husband] was the family
    breadwinner: at para. 90;

2)

during the marriage,
    the Husbands parents assisted the parties financially in many ways. This
    assistance included: i) gifts to the Husband from his father in the aggregate
    amount of $590,000 to start two businesses, both of which ultimately failed: at
    paras. 95-97; ii) a gift to the Husband from his mother, Ruth Korman, after the
    date of separation, in the sum of $14,000 to invest in another corporate
    venture: at para. 99; iii) gifts from Ruth Korman to pay for or assist with camp
    and private school expenses for the children of the marriage: at para. 100; and
    iv) funds from Ruth Korman to assist the Husband with his costs of the matrimonial
    litigation: at para. 99;

3)

the financial
    assistance from the Husbands parents also took the form of dividend income
    allocated to the Husband and his three sisters by Gleedah Investments
    (Gleedah), a corporation controlled by Ruth Korman.  This dividend distribution
    scheme was effected to reduce Ruth Kormans annual income tax liability.
    Neither the Husband nor his siblings actually received the allocated dividends:
    at paras. 112-18;

4)

over the years, the Husband
    and his family benefitted greatly from the funds he received from his
    parents.  Historically, the parties incurred significant family expenses based
    on the Husbands anticipated receipt of funds from his parents: at para. 122;

5)

prior to 2008, the Husband
    earned significant employment income.  However, commencing in 2008, his income
    suffered a significant decline due to market reversals and the general downturn
    in the economy.  His reported income from all sources (including allocated
    dividend income) was $145,469.10 in 2010, $138,447.30 in 2011 and $120,659.80
    in 2012: at paras. 106-07;

6)

by consent orders
    dated August 30, 2010 and September 12, 2012, the Husband agreed to pay
    temporary child support for both children in the amount of $1,644 per month and
    spousal support in the amount of $2,120 per month based on a disputed annual
    income of $120,000: at paras. 93, 129 and 193;

7)

over time, the Husband
    fell seriously in arrears of the consent support orders: at para. 93;

8)

based on the
    familys history, gifts to the Husband by way of dividend income will likely
    continue to flow to [him] for the rest of his life and funds will continue to
    be given to the [Husband] by his mother, whether by gift or through some other
    tax-friendly plan: at paras. 123 and 126; and

9)

the Husband has
    always received money from his parents and will likely continue to receive them
    [
sic
] from his mother: at para. 126.

[13]

Based
    on these findings, the trial judge imputed annual income to the Husband in the
    amount of $120,000: at para. 129.  As I will discuss later in these reasons,
    the Husband attacks this income imputation on several grounds.

[14]

The
    trial judge also imputed annual income to the Wife in the amount of $20,000
    until January 1, 2015 and $25,000 thereafter: at para. 146.  The Husband does
    not challenge this income imputation to the Wife.

(3)

Private Secondary School Fees

[15]

Je.
    was almost 16 years old at the time of the trial judgment and continues to be
    dependent on the parties for her support.  She has attended private parochial
    schools for her entire life.  By the date of judgment, about two years remained
    for the completion of her secondary education.

[16]

By
    contrast, at the time of judgment, J. was 21 years of age and independent.  There
    was and is no issue regarding ongoing child support for J.

[17]

On
    the trial judges findings, one of the pressure points in the parties marriage
    was the cost of the childrens private religious schooling.  With the advent of
    the global economic recession in 2008, the parties differences regarding the
    costs of private school tuition and related expenses intensified.  The Husband
    urged public school placements for the children.  The Wife refused.

[18]

At
    trial, the Husband maintained that he was unable to pay for private schooling
    for Je.; that the childrens grandmother (Ruth Korman) had underwritten the
    cost of the childrens private education in the past in the exercise of her
    discretion; and that her future payment of such expenses was uncertain.  The Husband
    argued that, in these circumstances, the costs of Je.s private secondary school
    education were not a proper s. 7 extraordinary expense under the
Federal Guidelines
and that the parties could not afford to continue to pay these costs.

[19]

The
    trial judge disagreed.  He held that, given the annual incomes he had imputed
    to both parties, the parties commitment to Je. regarding her schooling and her
    life-long attendance at private schools, the costs of Je.s continued attendance
    at private school for the completion of her high school education were a proper
    s. 7 expense: at paras. 152-53.  He directed that the Husband pay 66.6% of Je.s
    remaining private secondary school costs, including incidental expenses
    directly related to her education: at para. 205.

III.      Issues

[20]

There
    are three issues:

1)

Did the trial judge
    err in finding that the Husband gifted his interest in the Matrimonial Home to
    the Wife in 2002, when the parties acquired the property?

2)

Did the trial judge
    err in imputing income to the Husband based on gifts that one or both of his
    parents had given to him and on dividend income allocated to him?

3)

Did the trial judge
    err in treating Je.s private secondary school fees as a s. 7 extraordinary expense
    under the
Federal Guidelines
?

IV.     Analysis

(1)

Matrimonial Home

[21]

The
    Wife accepts that the Husband is entitled to an equal share in the value of the
    Matrimonial Home on V-Day.  The dispute between the parties concerns the narrow
    question whether the Husband is also entitled to an equal share in any
    post-separation increase in the value of the Matrimonial Home, the amount of
    which has yet to be determined.

[22]

The
    trial judge rejected the Husbands claim to an equal share in any
    post-separation increase in the value of the Matrimonial Home on three bases:

1)

he
    viewed the Husbands claim as inconsistent with the objective of placing the
    Matrimonial Home beyond the reach of creditors.  He found that, when the
    property was acquired in 2002, the Husband unconditionally gifted his interest
    in it to the Wife to protect it from claims by potential creditors and because
    the Husbands love for the Wife caused him to accede to her demand that title
    to the property be placed solely in her name for this protective purpose: at
    para. 65;

2)

while
    he recognized that the concept of constructive trust survives the equalization
    process set out in the [Act], he concluded that it would be the rare case
    where it should be applied to prevent a clear injustice not cured by the usual
    equalization scheme: at para. 67; and

3)

he
    held that any post-separation contributions by the Husband to the upkeep and
    maintenance of the Matrimonial Home were not proven at trial and, in any event,
    would fall into the category of support payments: at para. 66.

[23]

In
    my opinion, the trial judges ruling on this issue is unsustainable for the
    following reasons.

(a)

Beneficial Ownership of the Matrimonial Home

[24]

The critical issue at trial concerning the Matrimonial Home was whether
    the Husband intended to gift his interest in the property to the Wife when the
    property was acquired in 2002.

[25]

For
    married spouses, the Act provides a comprehensive scheme for resolving
    financial issues following marriage breakdown.  Section 10(1) of the Act
    authorizes a court to determine questions of title between spouses.  This
    includes considering whether legal title actually reflects beneficial
    ownership.  As indicated by this court in
Martin v. Sansome
, 2014 ONCA
    14, 118 O.R. (3d) 522, at para. 47, citing
Rawluk v. Rawluk
, [1990] 1
    S.C.R. 70, [b]efore property can be equalized under the [Act], a court must
    first determine the net family property of each spouse.  This exercise
    requires first that all questions of title be settled.  In other words, property
    entitlements must be determined before they can be equalized.

[26]

Section
    14 of the Act affirms the presumption of a resulting trust in determining
    questions of ownership between spouses in the context of gratuitous property
    transfers.  Where the presumption is invoked, the party resisting the
    imposition of a resulting trust is required to disprove the presumption that
    his or her spouse is the beneficial owner of an interest in the disputed
    property.

[27]

In
Kerr v. Baranow
, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 16-19,
    the Supreme Court confirmed that a traditional resulting trust may arise in the
    domestic context where, as here, there has been financial contribution to the
    initial acquisition of a property and a subsequent gratuitous transfer of title
    to the property.  In these circumstances, the actual intention of the
    transferor is the governing consideration.  See also
Pecore v. Pecore
,
    2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 43-44;
Schwartz v. Schwartz
,
    2012 ONCA 239, 290 O.A.C. 30, at paras. 41-42.   Further, the intention of the
    transferor to make a voluntary and gratuitous transfer is an essential
    ingredient of a legally valid gift: see
McNamee v. McNamee
, 2011 ONCA
    533, 106 O.R. (3d) 401, at para. 24.

[28]

At
    the appeal hearing, although the Husband relied on the s. 14 statutory
    presumption of resulting trust, he focused his claim regarding the Matrimonial
    Home mainly on principles of constructive trust and unjust enrichment.  It
    appears that he proceeded at trial in a similar fashion.  As a result, the
    trial judge made little reference to the s. 14 presumption.

[29]

The
    focus of the Husbands argument on this issue was misconceived.  As I have
    said, under the Act, questions of title must be settled before property can be
    equalized.  By reason of s. 10 of the Act, trust claims  including claims
    based on constructive or resulting trust  may be advanced prior to
    equalization.  And, crucially, s. 14 legislates a presumption of a proprietary
    resulting trust.  Where the presumption applies, it yields a finding of
    beneficial ownership in the context of a gratuitous property transfer.  The Act
    contains no analogous presumption of constructive trust.

[30]

In
    my view, the Husbands claim regarding the Matrimonial Home turns on whether
    the Wife met her burden at trial to disprove the presumption that the Husband
    was the beneficial owner of a one-half interest in the Matrimonial Home.  Her
    argument, in effect, was that the presumption of a resulting trust was rebutted
    by evidence of a voluntary and irrevocable, gratuitous gift by the Husband of
    his interest in the Matrimonial Home to the Wife at the time of its
    acquisition.

[31]

And
    it is here, in my opinion, that the Wifes failure to meet her burden is
    evident.  Neither the Wifes own trial evidence nor that of the Husband
    supported a finding that the presumption of a resulting trust in respect of the
    Matrimonial Home had been displaced.

[32]

Turning
    first to her evidence at trial, the Wife never said that the Husband gifted his
    interest in the Matrimonial Home to her.  To the contrary, she testified that
    while title to the Matrimonial Home was put in her name to protect it from
    potential claims by creditors, the Husband nonetheless had a full interest in
    the Matrimonial Home.

[33]

The
    trial judge viewed the parties evidence on this issue as quite muddled and a
    little surprising: at para. 56.  Nonetheless, he appears to have captured the
    essence of the Wifes testimony at paras. 60-61 of his reasons:

The [Wife] is adamant, both in parts of her testimony and in
    her submissions, that the house was placed in her name to protect it in the
    future.  She states that it was the [Husbands] idea to deal with title this
    way as he was the one in the family with a financial background.

A difficulty with the [Wifes] position, however, is that on
    cross-examination, she clearly stated that it was her view that no matter how
    the family held assets, their value should be shared equally.  She made no
    exception for the matrimonial home.  Her point was that, as far as she was
    concerned, the marriage was one of financial equality.  Had there been
    creditors, the equity in the matrimonial home would have been insulated against
    a potential lawsuit for the benefit of the family.

[34]

The
    trial judge rationalized the Wifes evidence on this issue on the basis that
    she had claimed an interest in the Gleedah family business.  He stated, at
    para. 62:

Given the totality of the evidence with respect to the family
    business,
while not specifically expressed, I can reasonably infer that
    the [Wife] meant that she would willingly divide all assets equally if those
    assets included the value of the Gleedah shares
.  In other words, if all
    assets she thought were owned by the [Husband] could be shared equally, then so
    could the house.  [Emphasis added.]

[35]

With
    respect, this inferential gloss on the Wifes evidence conflicts with the core
    of her trial testimony regarding the Matrimonial Home.  The Wife did not in any
    way qualify her admission at trial that the Husband had a full interest in the
    Matrimonial Home.  She did not assert that his equal interest in the house was
    conditional on her having an equal interest in his shares in Gleedah.  And, as
    I have indicated, she did not say that the Husband gifted his interest in the
    Matrimonial Home to her.  Instead, she testified on cross-examination that the Husband
    had a full interest in the Matrimonial Home and, in effect, that the assets
    held during the marriage were to be shared equally.

[36]

Nor
    did the Husband suggest that he intended to gift his interest in the
    Matrimonial Home to the Wife because he loved her.  When cross-examined by the Wife
     who was self-represented at trial  the Husband testified as follows:

We had our [first] home in joint name[s] in Aurora.  I loved
    you.  I trusted you.  You said its because of creditors.  I said well, look,
    I have  Im not worried about creditors.  Ive never been sued in my life.
    So, I said whatever makes you happy.  And I had, at that point, as I said
    its not a key thing but I had liability insurance, you know, from my business
    and I didnt see the  I didnt know of any future ramification and so I  I
    acceded to your request.

[37]

Thus,
    I do not think it can fairly be said that either the Wifes or the Husbands
    trial testimony supports the trial judges key finding that the Husband unconditionally
    gifted his interest in the Matrimonial Home to the Wife in 2002 when the
    parties purchased the property.  The trial judges impugned finding to the
    contrary ignores the presumption of resulting trust that operates in favour of
    the Husband.  Moreover, in my opinion, even absent the presumption, the
    evidence at trial does not ground a finding of a clear intention to gift.

[38]

Furthermore,
    any motivation to shield the property from the Husbands potential creditors
    does not in itself rebut the presumption of a resulting trust.  In
Nussbaum
    v. Nussbaum
(2004), 9 R.F.L. (6th) 455 (Ont. S.C.), Karakatsanis J., then
    of the Superior Court of Justice, noted that, despite a line of cases  where
    the court has found the specific intention to evade creditors means an implied
    intention to deprive oneself of beneficial ownership, and [w]hile evidence
    that someone intended to fully evade creditors can be evidence that they
    intended to gift their entire interest in the property, the intention of the
    parties is a question of fact to be determined from all the evidence: at paras.
    19-27 and 32.  See also
Schwartz
, at para. 43.

[39]

The
    trial judges finding that the Husband unconditionally gifted his interest in
    the Matrimonial Home to the Wife denied the Husband any proprietary interest in
    the Matrimonial Home.  For the reasons given, I conclude that, in light of the unrebutted
    presumption of a resulting trust, the trial judge committed a palpable and
    overriding error in finding that the Husband did not retain a beneficial
    ownership interest in the Matrimonial Home.

(b)

Effect of Beneficial Ownership of the Matrimonial Home

[40]

The determination that the Husband is a beneficial owner of a one-half
    interest in the Matrimonial Home is dispositive of his entitlement to share in
    any post-separation increase in the value of the property: he is placed in the
    same position as a joint owner on title, thereby becoming entitled to a
    one-half interest in the value of the Matrimonial Home
whenever
that
    value crystalizes.  Consequently, when the property is sold, the Husband will
    be entitled to one-half of the net proceeds of sale, reduced by any unpaid share
    in the expenses of upkeep.  The value of the Matrimonial Home at V-Day is thus
    irrelevant since, for the purpose of equalization, a one-half interest in the
    property is placed on each side of the parties property ledgers, requiring no
    further equalizing exercise.

[41]

The
    Wifes argument to the contrary relies on this courts recent decision in
Martin
.
    The Wife says that
Martin
confines married spouses property claims to
    the equalization provisions contained in the Act, except in rare cases.  In her
    submission, a case in which a matrimonial home has increased in value since the
    date of separation is insufficiently rare to fall within that exception.

[42]

I
    do not read
Martin
in the manner urged by the Wife.
Martin
is
    an unjust enrichment case.  Unlike this case, it concerns the sufficiency of a
    monetary remedy once unjust enrichment in respect of a joint family venture has
    been found.
Martin
does not involve the presumption of a resulting
    trust or an asserted gift of property between spouses.

[43]

Perhaps
    more importantly,
Martin
illustrates, in the context of married
    spouses, that where either a monetary or a proprietary remedy in respect of
    property is claimed and a monetary award is sufficient to address unjust
    enrichment, the court should look to the Acts equalization provisions to
    determine the appropriate amount of the monetary award.  The
Martin
court put it this way, at para. 66: [i]f unjust enrichment as the result of a
    marriage has been found, and it has been determined that monetary damages can suffice,
    the aggrieved partys entitlement under the equalization provisions of the
    [Act] should first be calculated.

[44]

That
    is not this case.  Here, the application of the unrebutted statutory
    presumption of a resulting trust establishes an entitlement to property
    ownership, as opposed to a monetary award.  And the establishment of an
    entitlement to ownership, as opposed to a monetary award, precedes the
    calculation of net family property and the application of the equalization
    provisions of the Act.

[45]

Martin
,
    therefore, does not assist the Wife.  On this evidentiary record, the Wife did
    not rebut the statutory presumption of a resulting trust by establishing an
    unequivocal intention by the Husband to gift his interest in the Matrimonial
    Home to her.  Consequently, the Husband is entitled to full recognition of his
    50% beneficial interest in the Matrimonial Home.  It follows that he is
    entitled to 50% of the net proceeds of the sale of the Matrimonial Home, less
    his share of the maintenance costs of the Matrimonial Home until the date of
    sale.  I will return to the details of this remedy later in these reasons.

(2)      Income Imputation to
    the Husband

[46]

Under
    s. 19(1) of the
Federal Guidelines
, the court is empowered to impute such
    amount of income to a spouse as it considers appropriate in the circumstances.
    The section lists a number of circumstances in which such imputation may be
    appropriate.  None of these specifically includes monetary gifts or other direct
    parental financial assistance received by a payor spouse.

[47]

In
Bak v. Dobell
, 2007 ONCA 304, 86 O.R. (3d) 196, this court considered s.
    19(1) of the
Ontario Child Support Guidelines
, O. Reg. 391/97 (the
Ontario
    Guidelines
)  a provision that is virtually identical to s. 19(1) of the
Federal
    Guidelines
.
Bak
is instructive in several respects.

[48]

First,
Bak
holds that the circumstances listed in s. 19(1) of the
Ontario
    Guidelines
 and, by analogy, those listed in s. 19(1) of the
Federal
    Guidelines
 are simply examples of situations in which the imputation of
    income to a payor spouse may be appropriate.  There are also other
    circumstances in which the court may conclude that income can, and should, be
    imputed:
Bak
, at para. 35;
Riel v. Holland
(2003), 67 O.R.
    (3d) 417, 42 R.F.L. (5th) 120 (C.A.), at para. 36.  The
Bak
court
    observed, at para. 34:

The list of circumstances in s. 19(1) is not exhaustive: the
    legislature only provides that the list include items (a)  (i).  Further,
    there is nothing in the provision that suggests other appropriate circumstances
    must be analogous to those specifically enumerated, although similarity of
    circumstance to one listed in s. 19(1) would support the imputation of income,
    simply because such a circumstance would be consistent with legislative
    intention. The absence of analogy to a listed circumstance is simply a factor
    to be considered in interpreting the provision.

[49]

Second,
Bak
recognizes that the
    imputation of income to a payor spouse is a factspecific exercise that
    depends on the circumstances of the family at issue: at para. 73.  For this
    reason, the court observed, the legislature provided the courts with a
    residual discretion [under the
Ontario Guidelines
] to be exercised by
    a trial judge based on his or her factual findings: at para. 73.

[50]

Third,
Bak
confirms that income for support purposes is presumptively the
    payors income as it appears on line 150 of his or her income tax return: at
    para. 30.  Consequently, under the
Ontario Guidelines
, income is
    presumptively restricted to that which is subject to taxation.  Since gifts are
    not subject to taxation, they are not included in a payors presumptive income:
    at para. 31.

[51]

However,
    whether income should be imputed to a payor spouse does not depend solely on
    the determination of that spouses presumptive income.  The courts retain
    discretion to impute income to a payor spouse in excess of that spouses
    presumptive income where the imputed income is supported by the evidence and is
    consistent with the objective of establishing fair support based on the means
    of the parents in an objective manner that reduces conflict, ensures
    consistency and encourages resolution:
Bak
, at para. 36;
Drygala
    v. Pauli
(2002), 61 O.R. (3d) 711, 29 R.F.L. (5th) 293 (C.A.), at para. 44.

[52]

In
    this case, the Husband does not contest the trial judges authority under s.
    19(1) of the
Federal Guidelines
to impute income to him for the
    purpose of determining his ongoing child and spousal support obligations.  He
    argues, however, that the trial judge erred in imputing annual income in the
    amount of $120,000.

[53]

The
    trial judge based his calculation in part on his finding that the Husband would
    continue to receive funds from his mother, whether by gift or through some
    other tax-friendly plan: at para. 126.  This was an error, the Husband submits,
    since it impermissibly shifts the burden of sustaining the Wifes and Je.s
    lifestyle onto his mother  Ruth Korman  who has no legal obligation to
    support either her granddaughter or the Wife.  The proper approach, the Husband
    says, would have been to impute income to him in the sum of $96,834
per
    annum
 the amount of his average annual employment income from 2010 to
    2012.

[54]

I
    would reject this argument for several reasons.

[55]

In
    his calculation of income to be imputed to the Husband, the trial judge
    considered the Husbands income from three sources: i) his employment income,
    as disclosed in his annual income tax returns; ii) monetary gifts received over
    the years from one or both of his parents; and iii) annual dividend income from
    Gleedah, as reported by the Husband in his income tax returns.

[56]

Earlier
    in these reasons, I set out the amount of the Husbands annual income for the
    years 2010-12, inclusive of dividend income from Gleedah, as reported for tax
    purposes.  Based on those figures, the Husbands average annual income for the
    three years prior to trial was $134,858.73, well above the $120,000 per year
    that the trial judge imputed to him.  This average annual income figure
    establishes the Husbands presumptive income for the purpose of the
Federal
    Guidelines
.

[57]

However,
    the Husbands presumptive income includes dividends allocated to him by Gleedah.
    The Husband contends that, since he never actually received this dividend
    income, the trial judge should have excluded it from his income imputation
    analysis.  On this evidentiary record, I agree.

[58]

The
    evidence at trial established that the Husband is a non-voting shareholder of
    Gleedah.  His mother, through her voting shares, controls the corporation and,
    hence, its dividend declaration policy and allocations.

[59]

Before
    this court, it is undisputed that the historical dividends that Gleedah
    allocated to the Husband and his siblings did not reflect funds they actually
    received.  Nor did they correlate to the amount of monetary gifts they received
    in any given year from their mother.  Rather, Ruth Korman disbursed funds from
    Gleedah in the exercise of her sole discretion.  Gleedah declared dividends and
    allocated them to the Husband and his siblings only on paper for the purpose
    of reducing Ruth Kormans annual taxable income.  While each child declared the
    allocated dividends on his or her own tax return, Ruth Korman used the funds at
    issue for her own living expenses.  She also withdrew money from the
    corporation to pay each childs resulting tax liability.  Thus, on this record,
    the Husbands dividend income was more notional than real.

[60]

In
    these circumstances, I do not think that the trial judges imputation of income
    to the Husband based on assumed dividend income from Gleedah can be said to have
    been grounded in the evidence.  It follows, in my view, that the trial judge
    made a palpable and overriding error in including the Husbands declared
    dividend income from Gleedah in his calculation of the quantum of annual income
    to be imputed to the Husband.

[61]

That,
    however, does not end the matter.  His reported dividend income aside, the Husbands
    gross income from employment in the three years prior to trial was $140,675.33
    (2010), $204,336.77 (2011) and $175,067.00 (2012).  His average annual gross
    income from the same source  during the same three-year period  was therefore
    $173,359.70.  His average annual net income was $96,834.73.

[62]

The
    generous monetary gifts made to the Husband by one or both of his parents are
    also a proper and necessary consideration.  The trial judge found, at para.
    119, that [t]hrough the marriage, very generous gifts were given to the
    parties and, at para. 126, that funds will continue to be given to the [Husband]
    by his mother, whether by gift or through some other tax-friendly plan.  While
    some of these gifts were intended to enhance the Husbands employment prospects
    and his career, others were not.  And, contrary to the Husbands submission, the
    thrust of the trial judges findings is that these gifts were neither irregular
    nor infrequent.

[63]

In
    this context, the trial judge emphasized that: the [Husband] has always
    received money from his parents and will likely continue to receive [monetary
    gifts] from his mother: at para. 126.  He went on to hold, at para. 129, that,
    [w]hile it is impossible to know exactly how much the [Husband] will benefit
    from gifts or dividends, the amount of $120,000.00 strikes a reasonable balance
    between earnings and other cash flow the [Husband] is likely to receive.

[64]

The
    evidentiary record amply supports these findings.  There was evidence before
    the trial judge establishing a settled pattern of monetary gifts to the Husband
    by one or both of his parents, over many years, to assist him in maintaining
    his familys lifestyle, to finance specific family expenditures  such as private
    school tuition or camp expenses for the children  or to underwrite the costs
    of the Husbands various business ventures.

[65]

Moreover,
    these gifts were substantial.  Between 1990 and 2009 (the year of separation),
    one or both of his parents gifted at least $986,000 to the Husband.  These
    funds covered a significant part of the purchase price of the parties Matrimonial
    Home, the costs of the Husbands various business ventures and investments, and
    the childrens private school and camp fees.  In the five years following
    separation, 2009 to 2013, the Husband received additional funds from his mother
    in the approximate amount of $73,500, plus the sum of $100,000 for his costs of
    the matrimonial litigation.  These funds were used to defray personal and
    family-related expenses.

[66]

I
    note that, contrary to the Husbands submission, imputing income on the basis
    of these substantial and consistent gifts does not impose any obligation on the
    Husbands mother to continue such gifts in the future.  It simply reflects the
    trial judges factual determinations about the Husbands actual past revenues
    and his likely financial future.  If the situation changes, it would be open to
    the Husband to request an adjustment accordingly, in the normal manner.

[67]

I
    am therefore not persuaded that the trial judge erred in imputing global annual
    income to the Husband in the sum of $120,000.  This is not a case like
Bak
,
    where a parent provided financial assistance to support a disabled adult child
    who would otherwise have been unable to support himself.  The Husband is able
    to support himself and has also received regular and substantial gifts from his
    parents, for many years.  These gifts helped the Husband establish a lifestyle
    well in excess of a basic standard of living for himself and his family during
    the marriage.  They have also assisted the Husband with his lifestyle and his
    liabilities since separation.  At trial, the Husband did not call any evidence
    to suggest that the intended duration of these gifts was limited or that they
    would cease as a result of the parties separation.  Indeed, as I have
    indicated, the gifts continued post-separation, in material amounts.

[68]

Finally,
    the annual income imputed to the Husband ($120,000) is the same amount to which
    he stipulated in two consent support orders, dated August 30, 2010 and
    September 12, 2012.  Although the Husband did not admit the amount of income
    imputed to him in those orders, he also did not move to vary or appeal the
    child and spousal support orders containing this imputation of income.

[69]

For
    all these reasons, I see no basis on which to disturb the trial judges discretionary
    imputation of income to the Husband.

(3)     Section
    7 Extraordinary Expense: Je.s Private Secondary School Fees

[70]

Under
    s. 7(1)(d) of the
Federal Guidelines
, a childs extraordinary
    expenses for primary or secondary school education or for any other educational
    programs that meet the childs particular needs qualify as special or
    extraordinary expenses for which provision may be made by a court in a child
    support order.  The designation of a particular expense as a s. 7 expense must
    be based on: i) the necessity of the expense in relation to the childs best
    interests; and ii) the reasonableness of the expense in relation to the means
    of the spouses and those of the child and to the familys spending pattern
    prior to the separation.

[71]

The
    only s. 7 expense at issue in this case concerns the tuition fees and associated
    expenses for Je.s private schooling for approximately two years after trial,
    to permit her to complete her secondary education in a parochial private school.
    As I have said, Je. has attended private parochial schools her entire life.  J.
    completed both his primary and secondary education at such schools.

[72]

The
    trial judge appreciated that Ruth Korman  Je.s grandmother  has been very
    generous in assisting with [private school] fee payments: at para. 153.  He
    also recognized that the continuation of this assistance after trial was
    uncertain.

[73]

However,
    given the annual income imputed to the Husband and the fact that, by the time
    of trial, J. no longer required any contributions from the Husband to his expenses,
    the trial judge concluded that Je.s secondary school fees qualified as a s. 7
    expense under the
Federal Guidelines
and that both parents would have
    to make Je.s secondary education a priority: at para. 153.

[74]

I
    see no reversible error in this ruling.  The trial judge expressly applied the
    two-part test of necessity and reasonableness and addressed Je.s needs and
    best interests, the parties historical approach to the childrens schooling,
    and the Husbands financial ability to meet his share of this expense.  Having
    properly considered these factors, the trial judge concluded that Je.s
    remaining private high school fees qualified as a s. 7 expense and that she,
    like her brother, should be allowed to complete high school in a private
    school, consistent with her school placements throughout her life.  This was
    the trial judges call to make.

[75]

I
    would reject the Husbands attack on this time-limited obligation.

V.      Remedy
    and Disposition

[76]

The
    trial judge ordered that the Wife pay the Husband a net equalization payment in
    the sum of $245,597.70; that the Matrimonial Home be listed for sale forthwith;
    and that the equalization payment be paid to the Husband from the net proceeds
    of the sale.

[77]

Several
    comments are appropriate.

[78]

First,
    the trial judges calculation of the net equalization payment was premised in
    part on his finding that, by reason of her sole ownership of the Matrimonial
    Home, the Wife alone is entitled to benefit from any post-separation increase
    in the value of the property.  I have concluded that this finding is
    unsustainable and that the Husband is entitled to an equal share in any post-separation
    appreciation in the value of the Matrimonial Home.  However, on the trial
    judges findings, the Husband failed to demonstrate at trial that he had made
    any contributions to the upkeep of the Matrimonial Home since the date of
    separation.  The Husband, therefore, is liable for his 50% share of those
    expenses.

[79]

Second,
    the trial judges calculation of the equalization payment provided for the
    deduction, from the amount otherwise payable, of the Husbands child and
    spousal support arrears as at the date of the trial judgment ($57,498).  Those arrears
    have continued to mount.  This court was informed that, based on records
    maintained by the Family Responsibility Office, the Husbands child and spousal
    support arrears had increased by $25,296 as of April 1, 2015, yielding total
    arrears in the sum of $82,794 as of that date.

[80]

Consistent
    with the trial judgment, the increase in arrears should be deducted from the
    equalization payment.  Accordingly, I would direct that the net equalization
    payment be further reduced by the sum of $25,296.  I would also continue the
    trial judges order that no interest should be payable on the equalization
    payment or on the Husbands outstanding support arrears.

[81]

Finally,
    for various reasons and notwithstanding the terms of the trial judgment, the
    Matrimonial Home has not yet been sold.  The Wife seeks an order that her
    obligation to make the net equalization payment be stayed and that that payment
    serve as security for the Husbands ongoing support obligations until those
    obligations terminate.

[82]

I
    would not accede to this request.  The trial judge ordered the Husband to pay
    monthly child support for Je. and monthly spousal support for the Wife until
    further court order: at paras. 204 and 207.  Thus, absent further court order,
    the Husbands support obligations are indefinite.  To accept the Wifes stay
    request would be to permit her to continue to reside in the Matrimonial Home
    for an indeterminate period.  This is clearly inconsistent with the trial judges
    division of assets.  Further, the Husbands financial obligations under the
    trial judgment and as contemplated by these reasons are not trivial.  It may
    well be that resort by him to the funds generated by the equalization payment
    will be necessary to enable him to satisfy those obligations and avoid
    continuing arrears in support payments.

[83]

Accordingly,
    for the reasons given, I would allow the appeal in part.  The Husband is
    entitled to 50% of the proceeds of sale of the Matrimonial Home, less his 50%
    share of the maintenance costs of the Matrimonial Home from V-Day to the date
    of sale.  The Wife is entitled to a credit of $25,296 on account of the Husbands
    arrears in child and spousal support as of April 1, 2015, plus a further credit
    in the amount of any additional support arrears from April 1, 2015 to the date
    of these reasons.  In all other respects, I would dismiss the appeal.

[84]

If
    the parties are unable to agree on the quantum of any of the financial
    adjustments described above, I would refer the contested issues regarding
    quantum to the trial judge for determination.  Finally, I would specifically
    affirm paragraph 3 of the trial judgment, directing that the Matrimonial Home
    be listed for sale forthwith and that the net equalization payment, as
    recalculated in accordance with these reasons, be made to the Husband by the Wife
    from the net proceeds of the sale of the Matrimonial Home.

[85]

Success
    on this appeal being divided, I would make no order as to costs.

Released:

GP                                         E.A. Cronk
    J.A.

AUG 21 2015                          I agree K. Feldman
    J.A.

I agree
    Grant Huscroft J.A.