Court File and Parties
COURT FILE NO.: FS-15-0268-00 DATE: 2017 06 06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Noshakhare Ajayi R. Fernandes, Counsel for the Applicant Applicant
- and -
Beauty O. Oziegbe a.k. Beauty Oz A. Pascuzzi, Counsel for the Respondent Respondent
HEARD: March 7, 8 and 10, April 11, 12 and 20, 2017
REASONS FOR JUDGMENT
LEMAY J
[1] The parties, Noshakahre Ajayi and Beauty Oziegbe, were in a relationship for some period of time during 2014 and 2015. The precise length and nature of that relationship is a matter of significant dispute between the parties.
[2] The parties purchased a house, 57 Brisdale Drive, Brampton, Ontario with the closing date in February of 2015. The title indicates that Ms. Oziegbe owns 99% of the house, while Mr. Ajayi only owns 1% of the house. However, Mr. Ajayi claims that the parties agreed that he would have a 50% beneficial interest in the house. Ms. Oziegbe disputes this assertion and says that the parties always intended her to have 99% of the house.
[3] The parties’ relationship ended on or about May 6th, 2015, when Mr. Ajayi was arrested for assault. He has been convicted of assault, criminal harassment and failure to comply with bail conditions. In addition to claiming that the house should be entirely hers, Ms. Oziegbe seeks damages for Mr. Ajayi’s criminal conduct, as well as a permanent restraining order against Mr. Ajayi.
The Issues
[4] The issues that present themselves in this case are as follows:
a) Did the parties have an agreement over the ownership of the 57 Brisdale Avenue home, and was the house to be owned equally? b) If the parties had an agreement over the ownership of the 57 Brisdale Avenue home, then what remedy is Mr. Ajayi entitled to, if any? c) What should be done with the 57 Brisdale Avenue home as a result of my findings on the first two issues? d) Did Ms. Oziegbe improperly convert any of Mr. Ajayi’s property or any jointly owned property and, if so, what compensation should be paid for this? e) Is Ms. Oziegbe entitled to damages as a result of the criminal and tortious conduct she suffered at the hands of Mr. Ajayi? f) Should the Court issue a permanent restraining order against Mr. Ajayi?
[5] I heard evidence from both Mr. Ajayi and from Ms. Oziegbe. I also heard evidence from the following people:
a) Mr. Nicholas Omere, the lawyer who acted for both parties on the real estate transaction. b) Mr. Yemi Famutimi, who was Ms. Oziegbe’s supervisor at her real estate business until sometime in 2014. c) Ms. Laurie Hepburn, the manager of programs with Halton Women’s Place. d) Ms. Franca Alabi, one of Ms. Oziegbe’s neighbours on Rimmington Drive. Ms. Alabi was called in reply by Mr. Ajayi.
[6] In addition to this oral evidence, I received a series of documents that were, with three exceptions, all entered into evidence for the truth of their contents. In the course of these reasons, I will address the exceptions, which were the mortgage file, a video that Mr. Ajayi filed, and a set of banking records filed by Ms. Oziegbe. In terms of the banking records, Ms. Oziegbe provided testimony about them, so they are admissible.
[7] The parties have two diametrically opposed versions of events. Mr. Ajayi testified that the parties agreed that the house at 57 Brisdale Road would be owned equally. He testified that the only reason that title was 99% in Ms. Oziegbe’s name was because of the fact that Mr. Ajayi was involved in matrimonial litigation with his now ex-wife, and Mr. Ajayi and Ms. Oziegbe wanted to protect the house from being claimed by Mr. Ajayi’s ex-wife during that litigation.
[8] Ms. Oziegbe flatly denies Mr. Ajayi’s version of events, and testified that there were two reasons that even one percent of the house was in Mr. Ajayi’s name. First, he was doing her a favour as she could not qualify for the mortgage on her own and she needed a guarantor. Therefore, on Ms. Oziegbe’s theory of the case, Mr. Ajayi wanted her to own the whole house.
[9] As a result, I am required to make credibility findings as between these two witnesses. Generally speaking, where the evidence of Mr. Ajayi and Ms. Oziegbe differs, I prefer the evidence of Mr. Ajayi. I will address specific pieces of evidence in the course of my reasons. However, I will provide a couple of examples of the problems with Ms. Oziegbe’s evidence at the outset.
[10] First, as will be seen, in order to accept Ms. Oziegbe’s evidence, I must reject the evidence of not only Mr. Ajayi, but also of three other independent witnesses. Mr. Omere, Mr. Famutimi and Ms. Alabi all provided testimony that was inconsistent, in material respects, with that of Ms. Oziegbe, and consistent with the evidence of Mr. Ajayi. Given the nature and scope of the inconsistencies, and the relationships that all three of these individuals had with Ms. Oziegbe, it is improbable that all three of them were mistaken in their evidence. Instead, it is more likely that Ms. Oziegbe’s evidence was incorrect.
[11] Second, Ms. Oziegbe’s testified about joint bank accounts the parties held. I found this portion of her testimony to be illogical and unrealistic. The parties had two joint accounts at RBC and both Mr. Ajayi and Ms. Oziegbe had signing authority over both accounts. Both accounts were opened on the same day, May 12, 2014. All of the bank statements show that both parties were listed on the account from the time the accounts were opened.
[12] Ms. Oziegbe, however, testified that one account was hers and one account belonged to Mr. Ajayi. She went on to say that the reason both names were on both accounts was that Mr. Ajayi had illegally merged the accounts and taken the money out of both of them, in May of 2015, when he was angry with her after he had been charged criminally for assaulting her.
[13] I reject this evidence for the following reasons:
a) The explanation is inconsistent with the documents that were tendered as exhibits. In particular, the bank statements from when the accounts were opened in 2014 until they were closed in 2015 show that both parties were named on the accounts throughout. b) There was no explanation as to how Mr. Ajayi had managed this alleged illegal change to the accounts. c) Accepting Ms. Oziegbe’s explanation would require me to accept that RBC had either actively participated in the alleged illegal changes to the accounts, or had been duped by Mr. Ajayi into making such changes. In the absence of any explanation as to how this change happened, I am not prepared to give either of these possibilities any credence. d) If Ms. Oziegbe had wanted to advance support for her evidence, it was open to her to obtain additional information about the accounts from RBC. She did not do so, and I draw an adverse inference as a result.
[14] Third, Ms. Oziegbe was asked whether she would agree that she knew more about buying a home than Mr. Ajayi knew, given that she was a real estate agent and he was a truck driver and personal trainer. Her response was “absolutely not”. This demonstrates that Ms. Oziegbe was an argumentative witness would not concede even obvious points in cross-examination. It also demonstrates that she was trying to minimize her knowledge relating to the central issue in this case, which is the purchase of 57 Brisdale Avenue. Ultimately, much of Ms. Oziegbe’s evidence was tailored to support her position.
Background Facts
a) The Start of the Relationship
[15] Mr. Ajayi is, and has been, employed as a truck driver as well as a personal trainer at L.A. Fitness. He was originally from Nigeria, and moved to Canada in 2009. He had a previous marriage, which ended in 2013 and was the subject of litigation that did not resolve until 2016.
[16] Ms. Oziegbe has two children from a previous relationship, and at the start of her relationship with Mr. Ajayi lived in subsidized housing in Mississauga. She had qualified to be a real estate agent in 2013, and has been working in that capacity ever since.
[17] Mr. Ajayi testified that the relationship first began in December of 2013, when he encountered Ms. Oziegbe in a gas station. Ms. Oziegbe could not pay for her gas, and Mr. Ajayi paid the bill for her. They exchanged phone numbers, began a relationship and then moved in together in February of 2014.
[18] Ms. Oziegbe testified that they met in December of 2013 at either a social event or a pharmaceutical trial. Ms. Oziegbe spoke to Mr. Ajayi and realized that their families were from the same area of Nigeria, and that they spoke the same dialect.
[19] However, in an Affidavit that she filed with the Court, Ms. Oziegbe stated that she met Mr. Ajayi when they were both giving blood. When cross-examined about this evidence, Ms. Oziegbe testified that, from her perspective, giving blood was a “social event” and that she and Mr. Ajayi had met at a social event.
[20] Ms. Oziegbe’s evidence is internally inconsistent, and I reject it on this point. Instead, I accept Mr. Ajayi’s description of how these two parties met and began dating.
[21] It is clear that the parties lived together for some period of time in Ms. Oziegbe’s house at 342 Rimmington Drive in Mississauga. They dispute how long they lived together. Ms. Oziegbe testifies that it was only for a few months in 2014, and that Mr. Ajayi never lived in the house on Brisdale Drive. However, Mr. Ajayi testified that the parties lived together both at Rimmington Drive and at 57 Brisdale Drive. I will address the evidence on this issue more fully below.
b) The Purchase of the House
[22] In December of 2014, Ms. Oziegbe testified that she left her residence at 342 Rimmington Drive and went to a women’s shelter for a period of two weeks. Ms. Oziegbe also testified that she was required to move to the women’s shelter because of abuse from Mr. Ajayi, although on her evidence he was no longer living with her. The specific incident allegedly took place when he came to her home and threatened her, and she called the police. She felt that she would be safer in the shelter.
[23] I heard testimony from a worker from the shelter, and notes from a number of shelter workers were entered as an exhibit. Those notes disclose that Ms. Oziegbe spent approximately two weeks in the shelter between the end of December 2014 and the middle of January of 2015.
[24] Ms. Oziegbe did not spend every day of this two week period in the shelter. The notes and testimony disclose that Ms. Oziegbe was absent from the shelter for three days. The shelter notes state that Ms. Oziegbe was visiting a friend in Toronto during this time period. However, the evidence that I heard from Ms. Oziegbe confirmed that she did not have a friend in Toronto, and that she was spending some time in the Rimmington Drive home.
[25] In any event, the agreement of purchase and sale relating to 57 Brisdale Drive was signed on January 11, 2015. The purchase of the property closed on February 5, 2015. As at closing, Ms. Oziegbe was listed on title as a 99% owner of the property, while Mr. Ajayi was listed as a 1% owner.
[26] The legal work required to close the house for both Ms. Oziegbe and Mr. Ajayi was done by Mr. Nicholas Omere, a solicitor. It was Ms. Oziegbe who arranged for Mr. Omere to be retained, and she had the majority of the contact with Mr. Omere.
[27] Financing was arranged through the MCAP Corporation, a mortgage company. The financing was arranged by a mortgage broker, and the entire MCAP file was included in the materials before me. Ms. Oziegbe’s counsel originally submitted that I could not accept the MCAP file for the truth of its contents because no representative of MCAP was called as a witness. At some point in the trial, it appeared that the Ms. Oziegbe was prepared to concede the authenticity of the MCAP file, although Ms. Oziegbe’s position was somewhat unclear.
[28] Regardless of Ms. Oziegbe’s position with respect to admissibility, I am accepting that the MCAP file is complete, and admitting it for the truth of its contents for three reasons:
a) A Consent Order was issued by Price J. on April 27th, 2016 to obtain this file. Ms. Oziegbe’s counsel could have obtained a copy of the file from MCAP at any time in order to verify the contents. b) Mr. Paul Edwards, who was the mortgage broker for the purchase of 57 Brisdale, was originally on Ms. Oziegbe’s list of witnesses. If the file was incomplete or inaccurate, Mr. Edwards could have been called by Ms. Oziegbe to establish that fact at any time during her case. c) The mortgage file is a business record and can be admitted as such.
[29] Once the transaction was closed, the mortgage was paid out of one of the parties’ joint bank accounts until the end of May, 2015. These payments included some extra payments to pay down the principal on the mortgage more quickly. There is a dispute about who provided the money to make both the mortgage payments and the extra payments. However, it is clear that Ms. Oziegbe made the mortgage payments starting in June of 2015.
c) The Length of the Relationship
[30] As noted above, the parties have a significant disagreement over how long they lived together. I must resolve this dispute because it affects the conclusions that I reach on whether there was an agreement between the parties that 57 Brisdale would be owned on an equal basis.
[31] I am of the view that the parties lived together continuously between February of 2014 and May of 2015. I reject Ms. Oziegbe’s evidence that the parties had ended their relationship by the summer of 2014. I reach this conclusion for a number of reasons.
[32] First, there is the video that was entered into evidence. It shows Mr. Ajayi walking around the 57 Brisdale house discussing what he sees. Although this video was not time-stamped, it was clear from all the evidence that it was made after the closing date for the purchase of 57 Brisdale. On first review, the words uttered by both Ms. Oziegbe and Mr. Ajay in the video certainly supports the view that Mr. Ajayi lived in the home. While Ms. Oziegbe’s counsel challenged the authenticity of this video at the outset of trial, it is clear that Mr. Ajayi is in the video while it is being taken. It was also clear that the video was taken by Ms. Oziegbe. I accept that it was a video taken by Ms. Oziegbe in the Brisdale home.
[33] However, Ms. Oziegbe disputes that the video actually shows that Mr. Ajayi was living in the house for two reasons. First, she claims that this video was prepared so that Mr. Ajayi could show his mother that he lived in this house, even though he didn’t. Mr. Ajayi denies this version of events. I was given no reasonable explanation as to why Mr. Ajayi would want to send his mother a video of a home that he was not living with, and claim that it was his.
[34] Ms. Oziegbe also states that the video does not show any of Mr. Ajayi’s possessions in the house, which supports her position that Mr. Ajayi did not live there. Having reviewed the video, both when it was presented in Court and afterwards, I disagree with this conclusion. In particular, during the course of the video, Mr. Ajayi points to his shoes and there appear to be several pairs of his shoes around.
[35] Then, there is the evidence of the other witnesses. Both Mr. Famutimi and Ms. Alabi testified that they had seen evidence of Ms. Oziegbe and Mr. Ajayi living together. Mr. Famutimi testified that he visited the 57 Brisdale Road home on one occasion after closing, and was given a tour of the whole house by both of them. Ms. Oziegbe’s response to this evidence was to claim that Mr. Famutimi was lying.
[36] Similarly, Ms. Alabi testified that Ms. Oziegbe and Mr. Ajayi had come over for Christmas dinner in 2014, and had spent some time with her. Ms. Alabi also gave evidence that Ms. Oziegbe had told her about the house purchase, and that Ms. Oziegbe and Mr. Ajayi had bought the 57 Brisdale home together.
[37] In addition, Mr. Omere testified that he had been told by both Ms. Oziegbe and Mr. Ajayi in January of 2015 that they were living in a common-law relationship. This evidence is consistent with Mr. Omere’s contemporaneous notes. When confronted with this testimony on cross-examination, Ms. Oziegbe stated that Mr. Omere had either lied about this, or had been mistaken.
[38] I reject Ms. Oziegbe’s evidence that Mr. Omere lied or was mistaken for two reasons. First, Mr. Omere had prepared contemporaneous notes, which make it less likely that he was mistaken. Second, I was given no reason why Mr. Omere would have lied about this fact. He has only a professional relationship with either party, and his professional relationship with Ms. Oziegbe was more significant as she had more interaction with Mr. Omere over this transaction. Indeed, lying under oath would put his professional credentials at risk. I prefer Mr. Omere’s evidence that in January 2015, Ms. Oziegbe advised him that she was in a common-law relationship with Mr. Ajayi.
[39] Then, there was the evidence about Mr. Ajayi’s address on his identification documents. Mr. Ajayi filed a number of documents that showed his address as either 342 Rimmington or 57 Brisdale. These included correspondence from the government and his driver’s license. When asked about these documents, Ms. Oziegbe had two responses. First, with respect to the driver’s license, she stated that Mr. Ajayi used her address because she was insuring Mr. Ajayi’s car under her policy as it was a cheaper rate and because he could no longer get insurance. As a result, Mr. Ajayi changed his address so that it reflected his automoblie insurance. With the remaining documents, Ms. Oziegbe testified that Mr. Ajayi had changed his address without her permission.
[40] I reject this evidence. Accepting Ms. Oziegbe’s evidence would require me to accept that Mr. Ajayi decided to inconvenience himself by having his mail sent somewhere that he did not live, with a risk that he would never receive it. It is far more likely that the parties were living together in a common-law relationship throughout this time.
[41] Finally, in March of 2015, Ms. Oziegbe attended at family court with Mr. Ajayi for an appearance on Mr. Ajayi’s matrimonial dispute with his ex-wife. As part of that appearance, an order was entered setting out, inter alia, a protocol for communications between Mr. Ajayi and his ex-wife Ms. Linda Augustine. This protocol required the use of Ms. Oziegbe’s e-mail. Ms. Oziegbe testified that she had allowed this e-mail to be included on the temporary order as a favour for Mr. Ajayi. I reject this evidence. In my view, the more likely explanation is that Mr. Ajayi and Ms. Oziegbe were in a common-law relationship at the time.
[42] I reject Ms. Oziegbe’s evidence about the length of the parties’ relationship. I find that this evidence is not true, and was tailored both to fit Ms. Oziegbe’s position about who paid for the Brisdale home, and to minimize the involvement of Mr. Ajayi in the financing of the home. I also find that the parties were living in a common-law relationship during this time period.
[43] I should briefly address the issue of Mr. Ajayi’s mother. Ms. Oziegbe testified that, although she and Mr. Ajayi did not live together, Ms. Ajayi’s mother came from Italy for a period of some weeks. During this visit, Mr. Ajayi allegedly asked Ms. Oziegbe to let his mother stay with her. Mr. Ajayi testified that his mother has never visited Canada and doesn’t live in Italy.
[44] Ms. Alabi testified that she had met someone that Ms. Oziegbe identified as Mr. Ajayi’s mother. However, in cross-examination, Ms. Alabi clarified that she did not know whether this person was Mr. Ajayi’s mother, or simply an older relative.
[45] In the circumstances, I find that Mr. Ajayi’s mother did not visit Canada, and did not stay with Ms. Oziegbe. I reach this conclusion as a result of my general findings of credibility in this case.
[46] Finally, there is the end of the relationship, which came on May 6, 2015. The parties disagree about the events of May 6, 2015. Mr. Ajayi testified that the parties had gotten into an argument in the late evening. As a result, he decided to go out for a bit to calm down. When he came back, he discovered that Ms. Oziegbe had locked the door and would not let him in. He became angry because he was working as a truck driver the next day and needed his rest. Mr. Ajayi damaged the front door. Ms. Oziegbe called the police. Mr. Ajayi was charged with assault and taken to jail.
[47] Ms. Oziegbe testified that Mr. Ajayi was not living in the house as of May 6, 2015. On that day, he had attempted to visit her, and she had barred the door. As a result, he had broken the door and she had called the police who came and arrested him.
[48] I accept Mr. Ajayi’s explanation as to what happened on this day for two reasons. First, it is consistent with my findings that the parties were living together until this time. I have already rejected Ms. Oziegbe’s testimony that they were not living together. Second, Mr. Ajayi acknowledges that he misconducted himself on May 6, 2015, which enhances his credibility.
[49] It is also clear that Mr. Ajayi spent the bulk of the day on May 7, 2015 in jail, and was only released at the end of the day. He did not return to the Brisdale home after being charged. This time in jail is relevant because, as will be seen, there were a number of bank transactions from joint accounts on this day.
Issue #1- Did the Parties Have an Agreement to Share the House Equally?
[50] Yes.
[51] I reach this conclusion for two key reasons:
a) the discussions with Mr. Omere and b) the manner in which financing was obtained. c) I will deal with each in turn.
a) The Discussions With Mr. Omere
[52] I have already discussed some of Mr. Omere’s evidence with respect to cohabitation, above. However, Mr. Omere also discussed the arrangements that the parties had made about the ownership of the house. In a memorandum in his file, Mr. Omere stated:
January 27, 2015 Re: File No. 15006P
I confirm that I met with Beauty Oziedge and Nosakhare Ajayi today at about 4:30 pm at my office after a scheduled appointment to sign their property purchase and mortgage papers.
I explained to them the nature of the purchase and mortgage documents
Ms. Oziedge and Mr. Ajayi came in together. They confirm to me that they are not married but in a common law relationship. They confirm their intention to take title to the property thus:
Beauty Oziedge 99% Nosakahre Ajai 1%
They informed me that they did not want Nosakhare Ajaiy’s ex-partner to come after them for a share in the property they are about to purchase together. Beauty Oziegbe added that the title of the property would be amended and a new transfer would be registered to balance their interest after Nosakhare Ajayi would have resolved outstanding issues with his ex-partner.
I explained to them that the legal implication would be that Beauty Oziedge would hold 99% share of the property and Nosakhare Ajayi’s share would be 1% share of the property. They confirm that they understood that.
I further explained to them that they were both bound to make the regular mortgage payments irrespective of their ownership structure because they morgagee would require the mortgage payments from the two of them or anyone of them irrespective of their share.
They signed the purchase and mortgage papers
Nicholas Omere
[53] It is clear from this memorandum that the parties told Mr. Omere that they had an agreement to share the property on an equal basis. Ms. Oziegbe stated that this conversation never happened, and that Mr. Omere must have either lied or been mistaken. I reject Ms. Oziegbe’s evidence on this point for three reasons, as follows:
a) Mr. Omere prepared a contemporaneous memorandum of his discussion with the parties. As a result, his memory is more likely to be correct. b) Mr. Omere has no reason to lie about his recollections, as he has no interest in the outcome of this case. Indeed, as counsel for Mr. Ajayi rightly points out, Mr. Omere is a lawyer and there could be significant negative consequences for him if he lied under oath. c) Mr. Omere’s testimony is entirely consistent with Mr. Ajayi’s testimony.
[54] Ms. Oziegbe’s counsel argued that Mr. Omere’s testimony could not be believed because he had not put the issue about the equal sharing of the house into his reporting letter of February 5, 2015. While it is clear that this information is not in the reporting letter, I do not view this as a significant omission. Mr. Omere was reporting on the details of the transaction as the parties had structured it, rather than reporting on what their future plans were, or the reasons for structuring the transaction in this manner.
[55] I have also found that the parties were living in a common-law relationship at the time of their meeting with Mr. Omere. As a result, it is more likely that they intended to share the property on a 50/50 basis than it was for them to assign virtually the entire ownership interest to Ms. Oziegbe.
b) The Sources of Funds
[56] One of the key issues in this case is where the money to purchase the house came from. Between the deposit and the funds that were due to Mr. Omere on closing, the parties were required to come up with $39,192.54. This amount was made up of a $20,000.00 deposit, and $19,192.54 due to Mr. Omere on closing.
[57] Ms. Oziegbe testified that she provided $25,000.00 of the deposit for the house and that Mr. Ajayi only provided $5,000.00. Ms. Oziegbe further testified that this $5,000.00 was provided as a refund on the car insurance that she had paid for Mr. Ajayi and as a refund on legal fees that she had paid on behalf of Mr. Ajayi for his ongoing matrimonial litigation. I reject both of these assertions. In particular, according to an Affidavit sworn by Ms. Oziegbe on February 25, 2016, the legal fees for the ongoing matrimonial litigation were not paid until March of 2015, the month after the parties’ closing date on 57 Brisbane. This is another example of internal inconsistencies in Ms. Oziegbe’s evidence.
[58] Ms. Oziegbe testified that she provided the bulk of the funds for the house. In support of that assertion, her counsel points to the fact that she received two large cheques from her real estate brokerage, one in December of 2014 for $22,606.25, and one on January 5th, 2015 for $23,984.25.
[59] Mr. Pascuzzi argued that these cheques were all the evidence that was needed to show that Ms. Oziegbe not only had the funds to purchase the 57 Brisdale property on her own, but that she had done so. Taken on their own, these cheques suggest that Ms. Oziegbe would have the funds to have made the entirety of the down payments. However, these cheques cannot be taken on their own. They must be reviewed in the context of Ms. Oziegbe’s financial circumstances.
[60] Ms. Oziegbe’s income tax returns for 2013, 2014 and 2015 are of considerable assistance in this regard. The 2013 tax return shows that Ms. Oziegbe’s total income was $15,531. This is the total income that Ms. Oziegbe had before paying any of her rent and the expenses associated with two children. It is unlikely that she was able to save a significant amount of money to purchase a house in 2013.
[61] Ms. Oziegbe’s 2014 income tax return shows that her total taxable income was $2,589.00. This income was after her business expenses were deducted. Ms. Oziegbe was cross-examined on this tax return and acknowledged that some of the expenses claimed as business expenses, such as clothes, could be for personal reasons as well as business reasons. In addition, a review of the tax return shows that a significant portion of Ms. Oziegbe’s automobile costs were deducted as a business expense. However, it was clear that the bulk of these expenses were for work-related purposes. As a result, Ms. Oziegbe had very little disposable income at the end of 2014 even to meet day-to-day expenses.
[62] Then, there is the 2015 tax return. This covers the year in which the relationship ended, and Ms. Oziegbe was solely responsible for the carrying costs on the Brisdale home for the second half of the year. This shows a net income on line 150 of $12,564.80. Again, this suggests that Ms. Oziegbe would not have had enough money to fund the down payment, and would have difficulties in making the mortgage payments.
[63] Counsel for Ms. Oziegbe suggested that the 2015 tax return in particular might have been improperly completed and might not have been true. I reject that argument for two reasons. First, all of the documents (including the 2015 tax return) were filed for the truth of their contents. Second, there was no evidence led to establish that Ms. Oziegbe had not properly completed her 2015 tax return.
[64] I should also address one other fact that is clear from the tax returns. Ms. Oziegbe’s gross business income was significantly higher than her net income in both 2014 and 2015. For example, the gross business income in 2015 was just over $100,000.00. However, when the tax return for 2015 is reviewed, it is clear that $32,000.00 of the business expenses went to fees, licenses and administration fees, and an additional $18,000.00 went to automobile expenses. There was also nearly $10,000.00 in advertising expenses in 2015. Most, if not all, of these expenses were genuinely related to Ms. Oziegbe’s real estate business.
[65] As a result, I find that Ms. Oziegbe did not have the disposable income in any year to fund the purchase of a house on her own. It is also clear that in the years prior to the house purchase, she did not have the income to fund $25,000.00 of a down payment.
[66] This brings me to Ms. Oziegbe’s principal contention about the funding of the down payment. When asked about the tax return issue during the course of argument, her counsel kept pointing to the two cheques that Ms. Oziegbe had received from her brokerage in December of 2014 and January of 2015. Mr. Pascuzzi argued that these funds could be directly traced as the funds that were used to pay for the 57 Brisdale Avenue home.
[67] These monies were deposited into the parties’ joint bank accounts around the time that similar amounts were used to fund the purchase of the Brisdale Avenue home. This is Ms. Oziegbe’s strongest argument that the money used to purchase the home was hers. However, I reject that argument for three reasons.
[68] First and most importantly, as I have discussed above Ms. Oziegbe did not have any significant disposable income for either 2014 or 2015 once she paid her business expenses. In fact, Ms. Oziegbe advised the shelter at the end of 2014 that she had no income. When cross-examined about this statement, Ms. Oziegbe meant that she had no stable income. Either way this evidence supports my conclusion that Ms. Oziegbe had no significant income in 2014.
[69] To accept that Ms. Oziegbe paid for the house out of these deposits would lead inescapably to the conclusion that the money to fund virtually all of her valid business expenses had to come from someone else who was not identified during the course of the trial.
[70] A more logical conclusion is that Mr. Ajayi and Ms. Oziegbe had pooled their resources and that they had intended to use their funds to jointly purchase a house. Although the cheques from the brokerage came at a convenient time, there were other sources of income and funds, primarily Mr. Ajayi’s income. In particular, Mr. Ajayi had an RBC savings account in his personal name alone, and just over $9,000.00 was transferred from this account to one of the parties’ joint accounts in November of 2014. Similarly, Mr. Ajayi had a Scotiabank savings account which was established in November of 2014, and $10,000.00 went in and out of that account on November 25, 2014. These large amounts suggest that Mr. Ajayi had some savings that were used by the parties, either to fund the house purchase or to pay living expenses.
[71] Second, the parties had bank accounts that were in their joint names. Ms. Oziegbe testified that they each had separate bank accounts, and that the money went into the accounts separately. As I noted in my general findings of credibility, I reject Ms. Oziegbe’s evidence about the bank accounts. Instead, I find that the parties had a series of joint accounts and that money was moved back and forth from those accounts on a regular basis.
[72] Finally, there is the evidence of Ms. Alabi. She testified that, at the time the 57 Brisdale house was purchased in early 2015, Ms. Oziegbe told Ms. Alabi that she and Mr. Ajayi had purchased a house together, and that for Ms. Oziegbe to go directly from subsidized housing to her own house is a big improvement in her life.
[73] I also had some concerns about Ms. Oziegbe’s testimony about the contents of the MCAP mortgage file. In particular, I was troubled by two documents:
a) An income letter from IFS Group Inc., allegedly signed by President Maureen Calder, confirming that Ms. Oziegbe’s income is $66,000.00 annually. b) A gift letter purportedly from Mr. Ajayi’s mother, Ms. Mercy Ajayi, for a gift of $15,000.00 to help with the purchase of the home.
[74] Ms. Oziegbe’s testimony on the IFS Group letter was that this had been prepared by the mortgage broker Mr. Paul Edwards, who was taking the necessary steps to ensure that the mortgage would be approved. Ms. Oziegbe testified that she was not aware of and not involved in the creation of the IFS letter. As I have noted elsewhere in these reasons, Mr. Edwards was on Ms. Oziegbe’s witness list. If he were going to corroborate this evidence, he could have been called as a witness by Ms. Oziegbe. I reject Ms. Oziegbe’s testimony on this point, and find that she was aware in 2015 when she applied for the mortgage that this false income letter was being used to support her application.
[75] Then, there is the gift letter from Mr. Ajayi’s mother. There are two problems with this letter. First, Mr. Ajayi testified that his mother’s name is not Mercy, it is Roseline. Second, Ms. Oziegbe testified that all but $5,000.00 of the money for the down payment came from her. If the gift letter was true, then this testimony would not be true. As a result, I find that the gift letter is not true. I also find, for the reasons set out in the previous paragraph, that Ms. Oziegbe knew about this false letter when she applied for the mortgage in 2015.
[76] The false documents, Ms. Alabi’s testimony, and Ms. Oziegbe’s inconsistent evidence all support she and Mr. Ajayi bought the property together the conclusion that Ms. Oziegbe was not in a position to buy 57 Brisdale on her own.
c) Conclusions
[77] On my review of the evidence, the following facts are clear:
a) The parties cohabited from February of 2014 to May of 2015. b) The parties had agreed that the 57 Brisdale home would be owned on an equal basis. c) The parties structured their affairs so that they jointly shared the expenses of living together. For the time period that they cohabited, this meant that Mr. Ajayi shouldered the bulk of the responsibility for the household expenses, as Ms. Oziegbe had no income left over once she had paid her business-related expenses.
[78] Based on all of the foregoing, I find that the parties had an agreement that they would share ownership of the house on an equal basis. The question then becomes what should flow from that agreement.
Issue #2- If the Parties Had an Agreement, What Remedy is the Applicant Entitled to?
[79] In addressing this question, there are three different possibilities. First, counsel for Ms. Oziegbe argued that the Statute of Frauds precludes Mr. Ajayi from claiming any interest in the home. Second, Mr. Ajayi could be entitled to a restitutionary monetary remedy. Finally, Mr. Ajay could be entitled to a 50 percent beneficial interest in the home. I will deal with the first issue, and then the second and third together.
a) The Statute of Frauds
[80] Counsel for Ms. Oziegbe points to section 1(1) of the Statute of Frauds, which states:
1.(1) Every estate or interest of freehold and every uncertain interest of, in, to or out of any messuages, lands, tenements or hereditaments shall be made or created by a writing signed by the parties making or creating the same, or their agents thereunto lawfully authorized in writing, and, if not so made or created, has the force and effect of an estate at will only, and shall not be deemed or taken to have any other or greater force or effect.
[81] The problem with Ms. Oziegbe’s reliance on this section is that the claim that Mr. Ajayi is making is a trust claim, and section 10 of the Statute of Frauds states:
- Where a conveyance is made of lands or tenements by which a trust or confidence arises or results by implication or construction of law, or is transferred or extinguished by act or operation of law, then and in every such case the trust or confidence is of the like force and effect as it would have been if this Act had not been passed. R.S.O 1990, c. S.19, s. 10.
[82] Counsel for Ms. Oziegbe points to the decisions in Abdollahpour v. Banifatemi, 2014 ONSC 7273, aff’d 2015 ONCA 834, and Kavanagh v. Lajoie, 2013 ONSC 7, aff’d 2014 ONCA 187, as examples of cases where claims for the return of property did not succeed because the claims would contravene the Statute of Frauds. In both cases, the court relied on the statute of fraud to find that a party could not claim an interest in land.
[83] However, both of these cases (and the others that counsel for Ms. Oziegbe pointed me to) are distinguishable. In neither of these cases was a trust claim made out.
[84] For example, in the Abdollahpour case, the issue was whether a portion of a house given to the bride by the parents of the groom at the time of the wedding was a conditional gift or an unconditional gift. The groom and his parents argued that it was a conditional gift, and was to be returned in the event that the marriage ended. The bride asserted that the gift was unconditional. The groom and his parents sought to rely on oral discussions between the parties at the time of the marriage. The Courts found that the Statute of Frauds precluded the use of oral discussions about whether the land was a returnable gift or a non-returnable gift. There was no mention of a trust claim and section 10 of the Statute of Frauds was not engaged.
[85] In this case, however, a trust claim has been specifically advanced. In my view, Mr. Ajayi’s trust claim is meritorious. A traditional resulting trust claim may be made in a family law case where there has been a financial contribution to the initial purchase of a property, and then a gratuitous transfer of title to the property (see Korman v. Korman 2015 ONCA 578 at para. 27) or where the parties jointly purchase a property, but register the title in only one person’s name.
[86] Further, it is presumed that when there is a gratuitous transfer, that the grantor intended the property to be held in trust. With that presumption in mind, a trial judge then considers all of the facts to determine the grantors actual intention (see Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 at paras. 17 to 19, and the cases cited therein).
[87] As I have set out above, Mr. Ajayi advanced a significant portion of the money for the purchase of the house, and then permitted 99% of the interest to be registered to Ms. Oziegbe. For reasons set out above, I have found as a fact that the parties had an expectation that Ms. Oziegbe was holding this interest on behalf of Mr. Ajayi.
[88] One other argument that counsel for Ms. Oziegbe advanced was that Mr. Ajayi intended to shield the property from his ex-wife. As a result, any presumption of a resulting trust should be rebutted. I reject this assertion. As the Court of Appeal stated in Korman, supra, at para. 38:
Furthermore, any motivation to shield the property from the Husband’s 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 caes… 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.
[89] In this case, the intentions of the parties are clear from their discussions with Mr. Omere. They intended Ms. Oziegbe to hold Mr. Ajayi’s half of the house in trust for him. There was also no evidence of any prejudice to any creditor, or potential creditor of this transaction and there was no evidence tendered at trial which suggested that Mr. Ajayi’s ex-wife Ms. Augustine could have a claim to 57 Brisbane, which was acquired after separation.
[90] I also find that a significant part of the reason that the home was placed 99% in Ms. Oziegbe’s name was that Ms. Oziegbe raised the issue of Mr. Ajayi’s ex-wife to him. It would be inequitable for Ms. Oziegbe to be able to raise concerns about Mr. Ajayi’s ex-wife, have Mr. Ajayi structure the transaction in this manner to allegedly protect both of them, and then claim the entire property based on her views on how the transaction should be structured.
b) What Remedy is Mr. Ajayi Entitled To?
[91] Mr. Ajayi argues that he is entitled to a 50% interest in the home. Ms. Oziegbe argues that the remedy, if any, should be limited to the repayment of the monies that Mr. Ajayi invested in the home.
[92] The issue of the appropriate remedy when a resulting trust is found to exist in a family law context is discussed in Korman, supra at paras. 40-43. It is clear from reading those passages that the appropriate remedy when a resulting trust is found to exist is a beneficial ownership in the property. Therefore, Mr. Ajayi is entitled to a 50% interest in the home, and to share in the increases in its value, subject to any payments for occupation rent and carrying costs.
[93] The parties spent some considerable time on the issue of the appropriate remedy. This is in part because Mr. Ajayi advanced the alternative claim of an unjust enrichment. As a result, I will briefly deal with both the question of whether an unjust enrichment exists in this case, and what the remedy, if any, should be.
[94] Having found the existence of a resulting trust, it is clear that an unjust enrichment would also have been found to exist in this case. Ms. Oziegbe was enriched by the contributions that Mr. Ajayi made to the home. Most of the money for the purchase of the home was his. Mr. Ajay has suffered a corresponding deprivation, as he has lost that money. Finally, there is no juristic reason for this enrichment. Indeed, as I have found above, Mr. Ajayi and Ms. Oziegbe were in a common-law relationship, and were intending to profit together from this house purchase.
[95] Kerr v. Baranow, supra, sets out the principles to be adopted in cases of unjust enrichment. In essence, having found an unjust enrichment, the Court must consider whether a monetary remedy would be sufficient. Only if a monetary remedy is not sufficient will an interest in the property be granted.
[96] In this case, even if I had only found an unjust enrichment, I would have awarded Mr. Ajayi a beneficial interest in the home as a monetary remedy would not be sufficient.
[97] As part of their evidence on this issue, both parties led expert testimony from real estate appraisers. This evidence showed that the value of properties similar to the Brisdale home had increased by in excess of 25 percent. The experts, however, had a significant disagreement on the current value of the home. Mr. Ajayi’s expert placed the value of the home as of February 2017 at $575,000.00. Ms. Oziegbe’s expert placed the value of the home as of October 31, 2016 at $475,000.00. Both experts agreed that the price of the home rose between October of 2016 and March of 2017, when they provided their testimony. Both experts agreed that the value of homes generally has been rising very quickly in the Brampton area.
[98] This evidence shows two reasons why only a beneficial interest would be sufficient to provide Mr. Ajayi with a remedy. First, the value of the home is difficult to ascertain. Any monetary remedy that I would order would be, at best, a guess. Second, the value of the home will likely have changed in the three months between the time the experts provided their testimony and the release of these reasons. There is no way, in monetary terms, for me to accurately measure that change in value. Instead, if I had founded my conclusions on the basis of an unjust enrichment, then the most appropriate way to compensate Mr. Ajayi would be to provide him with a beneficial interest in the home.
c) Occupation Rent and Carrying Costs
[99] Given that I have found that Mr. Ajayi has an equal interest in the house, the carrying costs associated with the house are his responsibility. I have calculated those costs in a table set out as Appendix “1” to these reasons. The parties will have twenty-one (21) days from the release of these reasons to outline any calculation errors with those expenses.
[100] For clarity, calculation errors include any mistakes in the numbers. They do not include any mistakes in the types of expenses that I have included. For clarity, I have included taxes, the mortgage, the house insurance and the hydro and heating expenses. The only one that was disputed by Mr. Ajayi was the hydro and heating expense. I have included it in the calculation because some hydro and heat would have been necessary to ensure that the house was habitable and kept in a state of good repair. I do not have the information to extract a proportion of these expenses and have determined that their inclusion is reasonable.
[101] This brings me to Mr. Ajayi’s claim for occupation rent. The principles relating to occupation rent are set out in Erb v. Erb, where the Court stated at paras. 73 and 74:
In evaluating the claim for occupation rent, the jurisprudence establishes that a court has jurisdiction to grant occupation rent where it would be equitable and reasonable to do so. The court should look to a number of factors, including when the claim was first raised, the duration of the occupancy, as well as other circumstances existing between the parties: McColl v. McColl (1995), 13 R.F.L. (4th) 449; McKinlay v. McKinlay (1996), 22 R.F.L. (4th) 211. I subscribe to the observations of J.W. Quinn J. as set forth in paragraph 57 of Higgins v. Higgins, [2001] O.J. No. 3011. I think the case of Adams v. Adams (2001), 15 R.F.L. (5th) 1, relied upon by the defendant, to have little application to this case in that there the amounts paid by the husband were “prepayments” on the mortgage and were agreed by him to have been paid voluntarily for the family’s benefit. The expenses paid by the plaintiff in this case were not of that type or for that purpose.
I accept the defendant’s submission, supported as it is by remarks in Higgins, supra that as a basic proposition there should be an allowance for occupation rent if there is a claim for expenses during occupancy and prior to sale. The evaluation of those competing interests has to be decided based on all the circumstances in the case.
[102] In resisting a claim for occupation rent, Ms. Oziegbe points to the decision of Horkins J. in B(J) v. M.(D.), 2014 ONSC 7410, where she states at para. 152:
The facts of this case do not support the respondent’s claim for occupancy rent. The respondent’s inability to use the matrimonial home arose from his criminal conduct when he assaulted the applicant. The applicant has been solely responsible for all of the household expenses since separation. It is not reasonable or equitable to award occupation rent given these facts. The request is denied.
[103] When these decisions are reviewed, it is clear that the Court has the ability to consider the equities of the case in deciding whether to order occupation rent. The conduct of Mr. Ajayi in assaulting Ms. Oziegbe is a factor that supports denying Mr. Ajayi’s claim for occupation rent. However, I am of the view that this factor is outweighed by the factors in favour of granting occupation rent. These factors are:
a) The title to half the property should have been with Mr. Ajayi, and his equity has been tied up in the home, preventing him from investing it elsewhere. b) Mr. Ajayi is responsible for the carrying costs for the home. As noted by Glithero J. in Erb, supra, where there is a claim for expenses there should be an allowance for occupation rent. c) The delay in Mr. Ajayi obtaining his equity between September of 2015 and now is as a result of Ms. Oziegbe defending this case, and claiming that there was no resulting trust.
[104] The parties have agreed on the amount that should be charged for occupation rent, and I have included that in my calculations in Appendix “1”. When the carrying costs are set off against the occupation rent, then Mr. Ajayi owes Ms. Oziegbe an adjustment of $5,773.44, which will be paid out of the proceeds from the house. This brings me to the next issue.
[105] Before I address that issue, however, I note that the carrying costs are not completely up to date. The parties are to either agree on the updated carrying costs or advise re within 21 days and I will set out a process to determine those costs.
Issue #3- What Should be Done with the House?
[106] The 57 Brisdale home is a commonly owned asset. The Partition Act, R.S.O. 1990, c P.4, is quite clear that the property can be sold and the proceeds divided.
[107] Therefore, unless the parties agree otherwise, the property is to be listed for sale within sixty (60) days. Mr. Ajayi asked that terms be imposed on the choosing of a real estate agent. One of the terms is that Ms. Oziegbe was to choose from a list of five agents that Mr. Ajayi provides. Given Ms. Oziegbe’s involvement in the real estate industry, I am of the view that this is a reasonable provision, and I so order.
[108] Mr. Ajayi is to provide his list of five proposed realtors within seven (7) days of the date of these reasons. Ms. Oziegbe is to select one from the list within seven (7) days of receiving the list from Mr. Ajayi.
[109] Then, there is the condition of the property. It was clear from the expert reports that it required some repairs. However, as noted in Mr. Ajayi’s materials, these parties cannot communicate in any meaningful way. As a result, I am ordering that only the cosmetic work recommended by the realtor retained by the parties be performed.
[110] In terms of the listing price of the property, it is to either be agreed upon by the parties through counsel, or it is to be set by the realtor.
[111] Finally, Ms. Oziegbe will continue to have sole possession of the house until it is sold. As a result, she is directed to maintain it in good condition, as well as to ensure that the house is available for viewings.
[112] I retain jurisdiction to address any other issues relating to the sale of the property that may arise.
Issue #4- Was There Improper Conversion of Mr. Ajayi’s Property?
[113] There are two issues to address on the question of improper conversion. First, there is the issue of the furniture and other chattels that were purchased during the relationship. Second, there is the issue of money removed from the bank accounts at the end of the relationship. I will deal with each issue in turn.
a) The Furniture and Other Items
[114] Receipts were filed showing that furnishings had been purchased for the 57 Brisdale house in the amount of $2,650.00. Mr. Ajayi testified that he had paid for all of these furnishings. Ms. Oziegbe testified that she had paid for all of them and that Mr. Ajayi had not been involved in their purchase.
[115] On this issue, I accept Mr. Ajayi’s testimony and reject Ms. Oziegbe’s testimony for the following reasons:
a) As outlined above, Ms. Oziegbe did not have very much disposable income at the end of either 2013 or 2014. It is, therefore, more likely that the funds for purchasing these chattels came from Mr. Ajayi’s income. b) Mr. Ajayi’s contact information is on some of the receipts, suggesting that he was involved in the purchase of these items.
[116] As a result, these chattels are jointly owned, as they were purchased for the 57 Brisdale property. This brings me to the question of their value and disposition.
[117] An advertisement from Kijiji was filed in evidence. It showed that Ms. Oziegbe was selling a number of pieces of furniture, and 4 snow tires from a BMW. Mr. Ajayi testified that he was driving a BMW at the time that the parties were cohabiting, he had stored his winter tires and that he had not been able to get them back.
[118] Ms. Oziegbe testified that she was selling the items listed in the Kijiji advertisement for a real estate client, and that she never had Mr. Ajayi’s snow tires. I reject Ms. Oziegbe’s testimony. It would be quite a coincidence for Ms. Oziegbe to have been selling 4 of the same type of tires as Mr. Ajayi had lost for a client. The more probable explanation is that Ms. Oziegbe was selling Mr. Ajayi’s tires.
[119] This brings me to the question of what adjustments should be made for these chattels. I did not hear any evidence on the value of the tires, or any evidence on what money was actually obtained for the furniture that Ms. Oziegbe sold.
[120] However, I do have the purchase price for the furniture. I also note that the furniture had been purchased in January and the parties had separated in May of 2015. As a result, using the purchase price as the value of the furniture is reasonable. Mr. Ajay is entitled to be paid for one-half of the value of the furniture, which was jointly owned, out of the proceeds from the sale of the home. That amount is $1,325.00.
[121] There is also the question of the tires. I heard no evidence on the value of the tires. However, they were obviously worth something. Based on the Kijiji ad, I assign a value of $200.00 for the tires. Mr. Ajayi is entitled to a credit of that amount out of the proceeds from the sale of the home.
b) The Bank Accounts
[122] The parties had two joint bank accounts with RBC, one ending in 262 and the other in 270. It is clear that the relationship ended on May 6th, 2015. There were a number of withdrawals from the bank accounts in the few days following. Those withdrawals were as follows:
a) On May 7th, 2015, $3,980.95 was withdrawn from the 270 account in four different transactions. $1,000.00 was a transfer and the remainder were withdrawals. b) On May 7th, 2015, $7,200.00 was removed from the 262 account, which essentially emptied that account.
[123] Mr. Ajayi testified that Ms. Oziegbe removed all of this money from the joint bank accounts. Ms. Oziegbe testified that Mr. Ajayi sent her $1,000.00 to pay for damage that he had done to her house on the night of May 6th, 2017, but that he had removed the bulk of the money from the bank account.
[124] I reject the testimony of Ms. Oziegbe on this point. She provided the Court with no evidence that the cost to fix the door was remotely close to that amount. In addition, her testimony has been unreliable on most issues in this trial. Instead, I accept Mr. Ajayi’s testimony that Ms. Oziegbe removed the entirety of the money from the 270 account, and Mr. Ajayi is entitled to a credit of $1,990.47 to be paid out of the proceeds from the sale of the home. I did not hear any significant testimony from Mr. Ajayi about the 262 account, and I make no order with respect to those withdrawals.
Issue #5- Should the Respondent be Entitled to Damages for the Abuse?
[125] There are three questions that arise under this issue. First, what conduct did Mr. Ajayi engage in? Second, whether there is an entitlement to damages on the facts of this case. Finally, what the quantum of those damages should be.
a) Nature of the Conduct
[126] My analysis of this issue starts with the fact that the accused pled guilty to criminal harassment, assault and failure to comply with bail conditions. As a result, there can be no dispute that he assaulted the Respondent on at least one occasion, and stalked her in a manner that was criminally harassing on more than one occasion, including while he was on bail for the assault charge, and directed to stay away from Ms. Oziegbe.
[127] This is very serious misconduct on the part of Mr. Ajayi. It is also clear that this conduct continued, on and off, between May of 2015 and October of 2015.
[128] Ms. Oziegbe also alleged that calls that were made by Mr. Ajayi to the Real Estate Council of Ontario (“RECO”) about issues related to her performance as a real estate agent, and to the City of Brampton about her allegedly illegal basement apartment. Ms. Oziegbe asserts that these calls amounted to criminal harassment.
[129] In terms of the call to the City of Brampton, it is clear from the notices filed that the basement apartment was an illegal apartment. Reporting a violation of the law to the proper authorities cannot, in my view, amount to harassment that would attract an award of damages. As a result, I place no reliance on this conduct.
[130] In terms of the call to RECO, I was not provided with any records to support that such a call was made, or that it caused any inconvenience to Ms. Oziegbe. This type of information should have been readily available. Given the problems that I have outlined with Ms. Oziegbe’s evidence generally, and given the fact that other evidence that would have supported her testimony on this point was not entered into evidence, I am not prepared to accept her testimony on this issue.
[131] Finally, Ms. Oziegbe testified about a number of other assaults that she stated occurred, particularly in the spring and summer of 2014. I am not prepared to accept Ms. Oziegbe’s testimony about these assaults for a number of reasons:
a) Ms. Oziegbe’s narrative about the assaults in 2014 are part of her larger narrative that the parties’ relationship ended in the summer of 2014. I have rejected that larger narrative for reasons set out above. I also reject the evidence about the assaults in 2014, as I find that this evidence was offered as support for a version of events that was not credible. b) Ms. Oziegbe provided no details about any of these events. Taken on its own, this lack of detail would not normally be an issue. Being assaulted is a traumatic event, and memories of it might very well be suppressed or otherwise incomplete. However, Ms. Oziegbe had a tendency to make broad, sweeping statements about this abuse, such as “he regularly beat me”, and “he beat me in front of his own mother”. Those broad, sweeping statements were not credible, especially when viewed against Ms. Oziegbe’s other testimony. c) Ms. Oziegbe’s credibility, more generally, was seriously compromised for reasons I have set out elsewhere in this decision. I see no reason to accept her evidence on the issue of these assaults over the evidence of Mr. Ajayi that they did not happen.
[132] In the result, I find that the only assault that was proven in this case was the one in May of 2015 that is encompassed in Mr. Ajayi’s conviction. I also find that the issues of criminal harassment between May and October of 2015 are proven, as they were also covered by Mr. Ajayi’s conviction.
b) The Entitlement to Damages
[133] Counsel for Mr. Ajayi suggests that the Court should not award general damages in this case for three reasons, as follows:
a) It was not pled by Ms. Oziegbe in this case. b) Rule 1(2) of the Family Law Rules do not list an action for damages as something caught by the Rules. c) In assessing a claim for damages, Mr. Ajayi is entitled to a jury trial.
[134] I reject all of these arguments. Starting with the pleadings issue, it would be a rare event for parties to be denied the opportunity to pursue their case on the basis of a lack of full pleadings: see Baijnauth v. Baijnauth, 2016 ONSC 4998 at para. 170. In addition, it was clear that this issue was being pursued at the outset of the trial, and Mr. Ajayi is not prejudiced by the fact that it was not in the pleadings. I also note that the pleadings contain a great deal of detail about the harassment that Ms. Oziegbe claimed that Mr. Ajayi put her through. As a result, the evidentiary basis of the claim was set out for Mr. Ajayi to respond to.
[135] Second, there is the list of types of actions set out in Rule 1(2) of the Family Law Rules. Mr. Fernandes says that this list is exhaustive and that I have no jurisdiction to consider a claim for damages in a family law case. I reject this argument for two reasons:
a) The Courts have been clear that, during a family law proceeding, spouses may claim for tortious behavior that took place during the relationship. On this point, see Booth v. Booth, (1995) 80 O.A.C. 399, and Costantini v. Costantini, 2013 ONSC 1626 at para. 23. b) A key principle of the Family Law Rules is to ensure that cases are dealt with justly (see Rule 2(2) and (3)). In particular, in ensuring that cases are dealt with justly, the Court should ensure that the process is fair, while saving expense and time. Mr. Fernandes’ approach would be less efficient and more costly, contrary to the intent of the Family Law Rules.
[136] This brings me to the final issue, which is the right to a jury trial. In the civil context, this is not an absolute right. For example, if an individual makes a claim for damages that is less than $25,000.00, that claim can be heard in the Small Claims Court, where juries are not permitted. There are also certain types of cases where juries are not permitted. On this point, see the Courts of Justice Act, s. 108. Given these other limitations, there is nothing preventing a family law case proceeding without a jury even if there is a question of damages to be determined.
[137] In considering all of these arguments, I pressed Mr. Fernandes in oral argument for a case to support his argument on these issues. He conceded that he did not have one. It appears to me that the Ontario case-law favours permitting the claim for damages to be addressed in the family law proceeding.
[138] In any event, however, were I to adopt Mr. Fernandes’ position, it would require that Ms. Oziegbe pursue two separate actions for relief arising out of the same series of events. Such an approach is not justifiable or supportable, particularly given the limited resources of the Superior Court.
[139] As a result, Ms. Oziegbe is entitled to claim damages in this case. Given the serious criminal misconduct that Mr. Ajayi engaged in (both an assault in the criminal sense of the word and stalking), I am of the view that some amount of damages should be awarded in this case.
c) The Quantum of Damages
[140] The question then arises as to the quantum of damages. I was provided with a number of decisions that set out the range of damages in these types of cases. Those decisions included Costantini v. Costantini, supra, Dekany v. Parenteau, 2014 ONSC 49 (Div.Ct.), and Rezel v. Rezel.
[141] The facts in this case most closely fit the description provided by Harvison Young J. in Rezel, where she states, at para. 32:
I would set the quantum of general damages payable to Ms. Rezel by Mr. Rezel for the assaults at $7,500.00. The marriage was a turbulent one, but I do not find that there was a lengthy history of physical violence. Rather, the level of unhappiness and discord between the couple escalated and, towards the end of the relationship, erupted into physical expressions of anger on Mr. Rezel’s part on two occasions. While unacceptable, and constituting clear instances of assault, these incidents did not result in lasting injury to Ms. Rezel. Moreover, while he did not accept all the details of the incidents as related by Ms. Rezel, he was clearly contrite. Having heard the submissions of the parties and reviewed the caselaw on the question of quantum I am satisfied that the appropriate amount of damanges is $7,500.00: see White v. White [2003] B.C.J No. 752 (B.C. S.C.); Smigelski v. Kowalsky, [1999] A.J. No. 723 (Alta. Q.B.), 1999 ABQB 478; Dhaliwal v. Dhaliwal, [1997] O.J No. 5964 (Ont. Gen. Div.)
[142] I view this analysis as describing, fairly closely, the facts in this case, except for the fact that in the case before me there was only one assault, the one on May 6th, 2015, that was made out. There was also the criminal harassment in the case before me. However, I note that there was no evidence beyond Ms. Oziegbe’s own testimony to demonstrate that she had suffered any injuries (either physical or psychological) as a result of Mr. Ajayi’s misconduct. Had there been any significant injuries, I would have expected to have heard independent evidence about them. In the absence of such corroborating evidence, and given the frailties in Ms. Oziegbe’s evidence, I find that there were no significant injuries as a result of Mr. Ajayi’s misconduct.
[143] Taking into account this difference, as well as the passage of time, I find that Mr. Ajayi should pay Ms. Oziegbe the sum of $7,500.00 in damages on account of the tortious conduct that Mr. Ajayi engaged in. This amount is to be paid out of Mr. Ajayi’s portion of the proceeds of the sale of 57 Brisdale.
Issue #6- Should a Permanent Restraining Order be Granted?
[144] As a result of his conviction for assault, breach of his bail conditions and criminal harassment, Mr. Ajayi has been ordered to not communicate directly or indirectly with Ms. Oziegbe, as well as to not attend any place where Ms. Oziegbe is known to be. These Orders are in force until December 12th, 2017.
[145] However, Ms. Oziegbe is requesting an Order in the following terms:
- The Applicant, Nosakhare Ajayi, shall NOT, harass, annoy or molest the Respondent, Beauty O. Oziegbe, and her children, namely Emmanuel Elijah, born November 25, 2007 and Joshua Elijah, born January 7, 2010. The Applicant, Nosakhare Ajayi, shall not attend with three hundred (300) metres of: (a) the Respondent (b) the residence of the Respondent (c) the place of work or education of the Respondent (d) school or day-care/babysitter of the said children. The Applicant, Nosakhare Ajayi shall not communicate, directly or indirectly, with the Respondent, except through a lawyer, or in written communication.
[146] This Order would be a permanent order, and a permanent restriction on Mr. Ajayi’s liberty. Counsel for Ms. Oziegbe argues that this Order is necessary so that she feels safe. Counsel also argues that the Court in this case should go further than the criminal order did because what happened in the criminal matter was “beyond Ms. Oziegbe’s authority”. In other words, she did not have the opportunity to have a say in how long the terms of the prohibition should be.
[147] When pressed during argument about why the Court would make a permanent Order that had stronger conditions and lasted for a period longer than the Order made in the criminal proceedings, counsel for Ms. Oziegbe asked that the Court at least consider an order for a few more years, as indication that the Court had heard Ms. Oziegbe’s concerns.
[148] This Court must make a separate determination of whether a restraining order should be granted. The Court’s authority to do so comes from sections 46(1) of the Family Law Act and section 35(1) of the Children’s Law Reform Act. Both provisions state that a restraining order will be granted if the moving party “has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.”
[149] In applying this test, the Courts have stated that an Order will issue where the applicant has a legitimate fear of harm, even if that fear is subjective, as long as there are compelling facts supporting that fear (see Fuda v. Fuda, 2011 ONSC 154 at para. 32).
[150] There is no evidence before the Court that Mr. Ajayi has had any interactions whatsoever with Ms. Oziegbe, except through counsel for this proceeding, since October of 2015. In his evidence, he has clearly expressed a desire to move on.
[151] Mr. Ajayi also states that, as a truck driver, his ability to perform his work may be limited because there will be places in Brampton where he is not able to work. He also might inadvertently breach this Order, as he does not know where Ms. Oziegbe’s children go to school. In addition, Ms. Oziegbe is a real estate agent, and travels around a great deal. It is therefore quite possible that Mr. Ajayi may accidentally breach this Order merely by being in a particular place in Brampton. As a result, he submits that the terms of the criminal probation are sufficient.
[152] Ms. Oziegbe wants a permanent Order or, in the alternative, something longer than the Order provided by the criminal Courts. As I have noted above, the reasons that counsel for Ms. Oziegbe gave for a longer order were essentially that the Court needed to grant this Order to show that it had heard Ms. Oziegbe’s concerns.
[153] Counsel did not point to any evidence of any ongoing concerns or ongoing risks. Since October of 2015, Mr. Ajayi has kept away from Ms. Oziegbe and has addressed all of the issues through the Court process. In reviewing the testimony given by Ms. Oziegbe, I did not hear any evidence of a credible concern for Ms. Oziegbe’s safety or the safety of her children.
[154] As a result, I am dismissing Ms. Oziegbe’s request for a longer-term or permanent restraining Order.
Conclusion- Orders and Costs
[155] Based on the foregoing, I am making the following Orders:
a) Mr. Ajayi is entitled to a 50% beneficial interest in the property municipally known as 57 Brisdale Avenue, Brampton, and the title on that property is to be amended accordingly. b) The property municipally known as 57 Brisdale Avenue, Brampton, is to be listed and sold within sixty (60) days of the release of these reasons. c) The terms on which the property municipally known as 57 Brisdale Avenue, Brampton is to be listed and sold are as follows: i. Mr. Ajayi is to provide a list of five (5) proposed realtors to list and sell the home within seven (7) days of the release of these reasons. ii. Ms. Oziegbe is to select one of these realtors within seven (7) days of receipt of Mr. Ajayi’s list. iii. Only cosmetic work to prepare the home for sale, as recommended by the realtor is to be completed. iv. The listing price for the property is to be agreed upon by counsel or set by the realtor. v. Ms. Oziegbe is to have sole possession of the property. She is to maintain it in good condition pending the sale, and is to cooperate with efforts to sell it. d) The proceeds from the sale of the property municipally known as 57 Brisdale Avenue, Brampton are to be shared equally between the parties, subject to the following adjustments: i. An adjustment payable to Ms. Oziegbe in the amount of $5,773.44 for carrying costs less occupation rent. ii. An adjustment payable to Mr. Ajayi in the amount of $1,525.00 on account of the improperly converted property, including his tires. iii. An adjustment payable to Mr. Ajayi in the amount of $1,990.47 for the ½ of the amount reserved for the joint bank account. iv. An adjustment payable to Ms. Oziegbe in the sum of $7,500.00 to damage to tortious conduct. e) The parties are to advise me within twenty one (21) days if they cannot agree on the updated carrying costs. I retain jurisdiction to address any issues. f) More generally, I retain jurisdiction to address any other issues relating to the sale of the property.
[156] The parties are each directed to serve and file their costs submissions within fourteen (14) days of the release of these reasons. Those submissions are not to exceed four (4) single spaced pages, exclusive of bills of costs, offers to settle and case law.
[157] The parties will have an additional seven (7) days to file responding costs submissions of no more than two (2) double spaced pages.
[158] If I do not receive costs submissions in accordance with this timeline, I will presume that the parties have resolved the issue of costs.
LEMAY J
Released: June 6, 2017
Appendix 1
Carrying Costs and Occupation Rent
| Item | Credit Mr. Ajayi | Credit Ms. Oziegbe |
|---|---|---|
| Mortgage 2015 (1)(5) | 7/12 of annual payments 7/12 $20,397.84 = $11,898.74 1/2 = $5,949.37 | |
| Mortgage 2016 | 1/2 of annual payments = 50% of $24,993.19 $12,496.59 | |
| Enbridge 2015 | 1/2 of $718.36 = $359.18 | |
| Enbridge 2016 | 1/2 of $1,198.75 =$599.37 | |
| Hydro to Feb 27/17 | 1/2 of $2,608.97 = $1,304.48 | |
| Property Insurance 2015 | $353.52 ($85.38 + 2 months x 50%) | |
| Property Insurance 2016 | $530.23 ($88.38 x12 months x 50%) | |
| Occupation Rent to Dec 31/16 (2) | $800.00 19 and 24/31 months = $15,819.35 | |
| Totals: Credit | $15,819.35 | $21,592.79 |
| Mr. Ajayi pays Ms. Oziegbe | $5,773.44 |
Notes:
(1) The mortgage was paid by Ms. Oziegbe starting June 1, 2015. (2) Mr. Ajayi is entitled to occupation rent for 24/31 days in May so- $619.35 (3) For utilities I have considered hydro and electricity. I have not given Ms. Oziegbe any credit for late charges. These were here responsibility. (4) Receipts after 2016 were not filed. No amounts have been credited for these, as there is no evidence of them before me. This is to be addressed in the reconciliation discussed in my reasons. (5) Ms. Oziegbe is not entitled to a credit for the lump sum payments in 2015 because these were made when the parties were together.