Court of Appeal for Ontario

Date: 2019-12-13 Docket: C66780 Judges: Lauwers, Paciocco and Fairburn JJ.A.

Parties

Between

Owen Cornelius Mullings Appellant

and

Jacqueline Alice Dian Robertson Respondent

Counsel

Owen Cornelius Mullings, appearing in person

Lauri Daitchman, for the respondent

Hearing and Appeal

Heard: November 29, 2019

On appeal from: The judgment of Justice Ronald P. Kaufman of the Superior Court of Justice, dated February 28, 2019.

Reasons for Decision

Overview

[1] Mr. Owen Mullings, the appellant, and Ms. Jacqueline Robertson, the respondent, were common law partners. On February 28, 2019, the trial judge released a Family Court decision resolving numerous issues raised by the appellant and respondent arising out of their separation. The appellant appeals several of the rulings that we will identify below. He also seeks leave to offer fresh evidence in support of his appeals.

[2] An issue was raised as to our jurisdiction to hear this appeal. Many appeals from the Family Branch of the Superior Court of Justice lie to the Divisional Court. Normally this appeal would have been properly heard by that court, except for the fact that the appellant also advanced a breach of contract claim for more than $50,000 in damages. Our court has jurisdiction over the breach of contract claim, the dismissal of which is also appealed from. This provides us with jurisdiction to hear all the matters arising in the proceedings under the Courts of Justice Act, R.S.O. 1990, c. C-43, s. 6(2).

[3] The grounds of appeal raised by the appellant can conveniently be organized according to three general themes: (1) appeals of financial rulings; (2) appeals of property related claims; and (3) the "funds withdrawn" claim.

(1) Appeals of Financial Rulings

[4] The appellant challenges factual decisions made by the trial judge relating to the financial contributions that he and Ms. Robertson made to the relationship. For example, he contends that in addition to other factual errors, the trial judge erred in: establishing the separation date, calculating joint family expenditures, and evaluating his contribution to his dependant, adult daughter's education expenses. The impugned factual findings bear upon the trial judge's rulings, including: (1) the trial judge's denial of the appellant's claim to spousal support; (2) the trial judge's finding that there was no joint family venture; (3) the trial judge's decision to order the appellant to pay retroactive child support and make payments under the Child Support Guidelines, O-Reg. 391/97, s. 7, relating to his daughter's education expenses; and (4) the trial judge's failure to allow the appellant's unjust enrichment claim.

[5] We would deny these grounds of appeal. The appellant is effectively attempting to reargue the underlying factual determinations. The appellant has not demonstrated that the trial judge committed any legal errors, or palpable and overriding errors of fact. The trial judge was entitled to come to the findings he did on the evidence before him.

[6] Those factual findings also explain why the trial judge did not address or grant the unjust enrichment claim. This did not prejudice the appellant because that claim could not succeed on the facts the trial judge found.

[7] Moreover, we see nothing in the proposed fresh evidence, or in the documents from the evidentiary record included in Mr. Mullings' email of December 2, 2019, that could have affected the result on any of these determinations. We therefore deny leave to admit the fresh evidence in these proceedings.

(2) Appeals of Property-Related Claims

[8] A number of the grounds of appeal raised by the appellant relate to land held during the relationship, in particular the "Shirrick property" and the "Magdalan property". We would not give effect to these grounds of appeal, either.

The Shirrick Property

[9] When the Shirrick property was acquired, it was placed into the respondent's name alone. The appellant contends that this property was meant to be put in both of their names, but the respondent abused her power of attorney and her fiduciary obligations by placing the property in her own name.

[10] The parties agree that prior to their separation, the Shirrick property was placed in both of their names, as joint tenants, and that it was jointly owned at the time of separation. The trial judge relied upon joint ownership at the time of separation to determine that the appellant and the respondent are each entitled to 50% of the net value of the Shirrick property, subject to further orders. He then ordered a reduction in the appellant's share to account for the expenses incurred by the respondent in maintaining the property since the separation.

[11] The appellant claims that the trial judge erred with respect to the Shirrick property by:

• not remedying the respondent's breaches in wrongly placing the property in her own name when it was initially acquired;
• finding that the property was held in joint tenancy at the time of the trial;
• acting on the joint ownership of the property despite the appellant's one-sided financial contributions to the acquisition of the property; and
• reducing the appellant's share based on the respondent's maintenance expenses, when the trial judge should have set off the respondent's share, given that she occupied the premises without rent payment to him.

[12] We disagree with each of these grounds of appeal.

[13] It is not contested that the Shirrick property was jointly owned at the time of separation. Given this fact, the more remote history of how the respondent came, for a time, to be the sole owner of the Shirrick property is immaterial.

[14] It is conceded by the respondent that the trial judge misapprehended the evidence by failing to note that the joint tenancy was severed after separation but before the trial, and that thereafter the property was held as tenants-in-common. However, whether title was held as joint tenants or as tenants-in-common is also immaterial. What matters is that at the time of separation, the Shirrick property was jointly owned.

[15] The trial judge was entitled to base his determination of the relative interests of the parties in the Shirrick home on this joint ownership at the time of separation. The trial judge was also entitled to reject the appellant's contention that he contributed more and is therefore entitled to an increased share.

[16] Similarly, the trial judge was entitled to reduce the appellant's share for maintenance expenses and to decline to set-off occupation rent expenses. These were discretionary determinations for the trial judge to make, based on factual findings he was entitled to make.

The Magdalan Property

[17] The appellant's claim relating to the "Magdalan property" is based on his contention that he sustained damages as a result of the respondent's refusal to close the transaction in which the Magdalan property was acquired. He argues that the respondent had agreed to participate in the purchase, but later refused to do so, forcing him to purchase it on his own in order to mitigate the damage that would be incurred if the transaction did not close. The appellant claims that he ultimately lost $41,000 on the sale of the property, and incurred additional expenses, which he attributes to the respondent's refusal to participate in the purchase.

[18] The trial judge denied the Magdalan property claim because he did not accept, on the evidence, that the loss was caused by the respondent's failure to participate in the purchase. He also appears to have held that the limitation period under the Limitations Act, 2002, S.O. 2002, c. 24, Sch B expired and barred this claim.

[19] The appellant contends that the trial judge erred in his factual findings relating to causation. He also urges that the trial judge erred in law in considering the two-year limitation period provided for in the Limitations Act, 2002, because in the appellant's view, the correct limitation period is ten years pursuant to the Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 23(1).

[20] We disagree. We are far from persuaded that s. 23(1) of the Real Property Limitations Act applies. The appellant's claim is not to recover the land or an interest in the land. Instead, his claim is for damages arising from a breach of an alleged contract relating to land. However, we need not decide this issue because there is no basis for interfering with the trial judge's conclusion that the failure by the respondent to close the transaction did not cause the loss on the resale of the Magdalan property. Once again, the facts supporting this determination were for the trial judge to make, as was this conclusion.

(3) The Funds Withdrawn

[21] Finally, the appellant argues that the trial judge erred in not awarding damages for funds he claims were wrongfully withdrawn by the respondent from his bank accounts. On the consent of the parties, the trial judge resolved this claim by setting-off the amount of the allegedly wrongfully withdrawn funds against a claim by the respondent for an accounting of funds from the sale of her Jamaican property. We see no basis upon which the appellant can now retract his consent to that disposition, or to find that the trial judge's acceptance of the parties' agreement was in error. This ground of appeal is denied.

Conclusion

[22] The appeal is dismissed. We award costs to the respondent in the amount of $29,800.00, inclusive of disbursements and HST.

"P. Lauwers J.A."

"David M. Paciocco J.A."

"Fairburn J.A."