Court of Appeal for Ontario

Date: 2019-02-06 Docket: C65390

Judges: Hourigan, Miller and Paciocco JJ.A.

Between

Gerald Meshach Christopher Applicants (Respondent in Appeal)

and

Ana Maria Freitas Respondents (Appellant)

Counsel

Brian Kelly and Harley Bernard, for the appellant

Barry Paquette, for the respondent

Heard: February 4, 2019

On appeal from the order of Justice D.J. Gordon of the Superior Court of Justice, dated May 2, 2018.

Reasons for Decision

[1] The appellant and the respondent were in a common law relationship for a number of years. The sole issue in this litigation involves the family residence, which was acquired in July 2014 and was held by the parties as joint tenants.

[2] There were unequal contributions to the purchase price of the residence, with the appellant contributing $5,000 and the respondent contributing $116,000. Significant renovations were made to the home, paid for from a joint line of credit.

[3] Following the parties' separation, the residence was sold and after the payment of various expenses there remained in trust the sum of $140,909.20. The appellant submitted at trial that the net proceeds from the house sale should be divided equally, while the respondent submitted that the parties should receive the return of their initial contributions and any increase in equity should be divided equally between them.

[4] The trial judge found that the appellant did not meet her onus of rebutting the presumption of resulting trust. Further, as the respondent was not enriched, there was no unjust enrichment.

[5] We see no basis to interfere with the trial judge's finding that the appellant did not meet her onus of rebutting the presumption of a resulting trust. The trial judge carefully considered the parties' evidence and concluded that he was unable to determine the respondent's intent in making his initial contribution. At its highest, the appellant's evidence was not that the respondent said he intended to gift half the house to her but only that buying the house together was a "fresh start". While there was an email in evidence indicating that the respondent understood that joint tenancy meant that the appellant would get the house upon his death, it was not unreasonable to conclude on this evidence that the appellant had failed to meet her onus to establish that the respondent intended to gift her half the house at the time of purchase.

[6] With respect to the claim for unjust enrichment, the trial judge found that for the period prior to July 2014 the appellant was contributing to the household expenses but that the benefits she received outweighed her contributions. That finding was well rooted in the evidence and the trial judge did not err in concluding that in those circumstances there was no unjust enrichment prior to July 2014.

[7] For the period from July 2014 to October 2016, the parties deposited their net income into a joint bank account from which all expenses were paid. The trial judge held that the parties were engaged in a joint family venture during this period. However, he concluded, rightly in our view, that the only enrichment in issue was the increase in the parties' equity in the home. The respondent was content to split that increase in equity equally with the appellant. Accordingly, the trial judge was correct in finding that there was no unjust enrichment.

[8] The appeal is dismissed. The appellant shall pay the respondent his costs of the appeal fixed in the agreed upon all-inclusive amount of $12,500.

"C.W. Hourigan J.A."

"B.W. Miller J.A."

"David M. Paciocco J.A."