Court of Appeal for Ontario

Date: 2018-02-26 Docket: C63711 Judges: Sharpe, Rouleau and Benotto JJ.A.

Parties

Between

Deanna Lynn Peters Applicant (Appellant)

and

Howard James Swayze Respondent (Respondent)

Counsel

Lisa DeLong and Elizabeth Abraham, for the appellant

Gerry Smits, for the respondent

Hearing

Heard: February 16, 2018

On appeal from: the order of Justice R. John Harper of the Superior Court of Justice, dated April 7, 2017, with reasons reported at 2017 ONSC 1779.

Reasons for Decision

1Deanna Peters appeals the dismissal of her claim for a constructive trust interest in a home owned by her former common law partner Howard Swayze.

2Peters and Swayze cohabited for 15 years from 2000 to 2015. When they began living together, Swayze took title to a home that he had owned with his former spouse. There was no equity in the home. Peters and Swayze lived for two years in Peters' apartment and then, in 2002, they moved to the home that Swayze had acquired from his former spouse.

3By May 2005, the parties had acquired significant debt. They consolidated their combined debt with a loan with CitiFinancial for $57,290. Swayze was the borrower and Peters co-signed the loan. Swayze testified that the carrying costs of the loan became too much and he refinanced the debt with a mortgage on his home in the amount of $187,568. CitiFinancial was paid $57,000 and, after other legal expenses, Swayze was paid $19,000 from the proceeds of that mortgage. Peters was not liable for the mortgage.

4There was evidence that, in 2016, the home was worth between $260,000 and $320,000. The balance owing on the mortgage at that time was approximately $157,000, although Swayze then made a $17,000 lump sum payment against the principal.

5At no time did the parties have joint bank accounts or joint savings. Peters was on Swayze's benefits from work and she and her daughter were on Swayze's car insurance as secondary drivers.

6Peters submits that the trial judge erred in dismissing her claim to a constructive trust interest in the home. She claims that she is entitled to half the equity in the home on the basis of her contributions during cohabitation. She points to the fact that she paid half the monthly mortgage costs of $1,000, paid the phone, internet and cable, and bought food. She also relies on her work cleaning the home and working in the garden, which she claims benefitted Swayze and increased the value of the home. These facts, Peters submits, establish unjust enrichment entitling her to half the increase in the equity of the home as a joint family venture.

7Peters does not suggest that the trial judge erred in his articulation of the law. The Supreme Court of Canada set out the law on unjust enrichment arising from a common law relationship in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269. The court: (i) determines if there has been an unjust enrichment, by determining whether the defendant has been enriched and the claimant has suffered a corresponding deprivation; if so then (ii) there must be no reason in law or justice for the defendant to keep the benefits conferred by the claimant.

8If an unjust enrichment has been established, the concept of joint family venture comes into play when considering remedy. The Kerr v. Baranow factors to be considered in determining whether a joint family venture exists are:

• Mutual effort – did the parties pool their efforts and work towards a common goal?
• Economic integration – how extensively were the parties' finances integrated?
• Actual intent – did the parties intend to have their lives economically intertwined?
• Priority of the family – to what extent did the parties give priority to the family in their decision making?

9The determination of whether there has been unjust enrichment and a joint family venture are questions of fact, which Peters bears the onus of establishing.

10The trial judge found that unjust enrichment had not been established. Peters was never on title to the home and never financially liable for the mortgage on the home. She did not pay for capital repairs, insurance, or property taxes. The $500 that Peters paid per month was essentially rent for herself and her daughter who lived in the home. Although she paid for the phone, internet and cable, she and her daughter were the primary users of these services. There was no evidence of how much the garden increased the value of the home and the trial judge found that gardening was really just a hobby for her.

11Having not found unjust enrichment, the trial judge was not required to consider whether a joint family venture existed. He nonetheless did so and concluded that wealth of the parties was not created from the fruits of the domestic and financial relationship. The parties earned about the same income and kept their finances separate. They did not pool their resources, integrate their financial lives or demonstrate an intention to join their finances. They in fact lived separately in the home.

12We see no error of fact or law made by the trial judge.

13The appeal is dismissed with costs payable to Swayze fixed at $5,000 inclusive of disbursements and taxes.