Court File and Parties

CITATION: Ricciuto v. Lecuyer, 2011 ONSC 6070

DIVISIONAL COURT FILE NO.: DV-852-10

DATE: November 25, 2011

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Donna Ricciuto, Plaintiff (Appellant)

AND:

Gerard Lecuyer, Defendant (Respondent)

BEFORE: Matlow, Pardu, Harvison Young JJ.

COUNSEL: Réjean Parisé, for the Appellant

Richard Guy, for the Respondent

HEARD: October 11, 2011 at Sudbury

ENDORSEMENT

Pardu J.

[1] The Appellant appeals from the judgment of the trial judge apportioning the proceeds of sale of a home formerly occupied by the parties. The Appellant submits that the trial judge should have not made any allowance in favour of the Respondent to reflect the fact that the Appellant had the benefit of occupying the home in the absence of the Respondent, because the parties were not the joint owners of the real property, and were not spouses to whom a right of possession of the matrimonial home would accrue under the Family Law Act. The Appellant says there was no right to occupation rent in these circumstances.

[2] The parties lived together from 1992 until 1998. In 1992 they purchased a home. They signed a written agreement in May, 1992 that in the event of sale of the property, the Appellant would be reimbursed for the $10,000 down payment she paid, and that the balance of the proceeds would be divided equally between them. By a Statement of Claim issued on July 26, 2007 the Appellant sued the Respondent for a declaration that she alone was entitled to all the proceeds remaining from the sale of the home because of the Respondent’s failure to pay any of the expenses relating to the property, including the mortgage payments.

[3] The Respondent initially responded that the contract reflected the entirety of the entitlement of each of the parties to the proceeds from the sale of the home, and that he was entitled to one-half remaining after the Plaintiff was reimbursed for the down payment. The trial of the issues was bifurcated. The trial judge rejected this argument by the Respondent, and concluded that “the parties had agreed to share expenses prior to purchasing the house which neither one of them could afford to carry on their own. This agreement may impact on the ultimate distribution of the sale proceeds. Again, if I am wrong in this, I am satisfied that the equitable principle of unjust enrichment is applicable in this case.”

[4] An appeal to the Divisional Court of this partial determination of the case was unsuccessful, and the trial resumed.

[5] The parties agreed at trial that one half of the balance of the sale proceeds amounted to $32,727.00 before deduction of expenses for which the Respondent was responsible to reimburse the Appellant, and before adding credits to which he was entitled.

[6] The parties agreed further that the Respondent should have contributed one-half of the expenses associated with ownership of the home, including mortgage interest, utilities, insurance and repairs, and that he should be responsible for one-half of those expenses, as well as one-half of the reduction in the principal balance owning on the mortgage.

[7] On the other hand, both parties agreed that the Respondent was entitled to a credit of $8,500.00 for one-half the rental income generated by the property.

[8] The parties did not agree that any allowance should be made to account for the fact that the Appellant had sole possession of the property after separation.

[9] The Appellant argues that this was a case of an accounting pursuant to a contractual entitlement. A contractual agreement to share expenses does not confer an interest in land which is required to sustain a claim for occupation rent; nor does it grant a right to possession of the property held in the name of the Appellant. Thus, it is argued that the trial judge was in error in concluding that “at the time the house was purchased, the defendant was a one-half equitable owner of the house.”

[10] Our reading of the reasons as a whole persuades us that the trial judge concluded that the parties had agreed to share equally the benefits and the burdens associated with ownership of the home, subject to reimbursement to the Appellant of the down payment she made. In calculating how the proceeds of sale should be divided, in our view the trial judge did not err in factoring in an element relating to the benefit to the Appellant of her sole occupation of the home, while the Respondent had to make arrangements to live elsewhere. The Appellant asked for an accounting of the expenses and income generated by the property. She pleaded in her Statement of Claim that she had an equitable interest in the full amount of the Respondent’s share in the proceeds, and claimed that he had been unjustly enriched to the extent of one-half of the net proceeds of sale, and that the Respondent held in trust for her his one-half share of the proceeds, based on doctrines of implied trust and constructive trust.

[11] Under these circumstances, it was appropriate for the trial judge to consider all of the circumstances surrounding the use of the property, the income it generated, and the expenses associated with it in arriving at an equitable division of the proceeds.

[12] The Appellant challenges the adequacy of his reasons, but the reasons as a whole make it clear that this was his intention.

[13] There was no dispute as to the amount of the allowance akin to occupation rent. At trial, counsel for the Appellant submitted to the trial judge,

“...so in the end result, the mathematics would put that if Your Honour accepts the argument of occupancy rent on the part of Mr. Lecuyer, that he would be entitled to $18,548.”

[14] The Appellant has not demonstrated that the trial judge erred in factoring into the decision on the division of the proceeds of sale, an element related to use and occupation of the property after separation of the parties.

[15] Accordingly, the appeal is dismissed. The Respondent may deliver written costs submissions, within 30 days of the release of this judgment, and the Appellant may reply within 15 days of receipt of the submissions from the Respondent.

Pardu J.

Matlow J.

Harvison Young J.

Date: November 25, 2011