Court File and Parties

COURT FILE NO.: FS-18-3680 DATE: 20220419 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Vito Auciello Applicant – and – Wei Yao Respondent

Counsel: Self-represented (for Applicant) Self-represented (for Respondent)

HEARD: January 10, 11, 12, 13, 14, 26, 27, 28, February 3 and 4, 2022

J. Steele J.

Endorsement

1The trial of this matter was heard following countless court appearances. As noted by Justice Diamond in his endorsement dated October 29, 2020, the history of this matter is regrettable and even shocking.

2The parties have one child, F.A., born on July 7, 2008. Since July 2015, F.A. has resided half the time with Mr. Auciello and half the time with Ms. Yao. Neither party pays child support to the other.

3The application was commenced by the applicant, Mr. Auciello, on or about July 10, 2018. His claim was for custody (now decision making) of F.A., and an order for the sale of the property, municipally known as 21 Yewfield Crescent, Toronto (the “Yewfield Property”).

4The parenting time and child support issues have been resolved. The only outstanding issue related to the child is the sharing of section 7 expenses.

5There have been at least four court orders for the sale of the Yewfield Property, yet it has still not been sold.

6The respondent’s answer claims, among other things, sharing of section 7 expenses 50/50 and a declaration that the respondent holds a 50% equitable trust interest in the properties located at 2396 Dufferin Street and 2398 Dufferin Street (the “Investment Properties”), including a declaration that she holds a 50% interest in Network Cash Mart Ltd., the company that owns the Investment Properties. Mr. Auciello owns 100% of the shares of Network Cash Mart Ltd. (“Network Cash Mart”).

7The respondent, Ms. Yao, claims that she has a constructive trust and joint family venture claim to 50% of the Investment Properties and the company that holds the properties.

8Neither party had counsel at trial. This is despite the court having previously recommended that they retain counsel due to the complexities of the matter. For example:

a. Justice Kristjanson in her endorsement dated October 22, 2018 stated: “[b]oth parties are advised to retain lawyers because of complicate[d] legal issues on the Joint Family Venture Claim and the Limitation Period. Parties should visit the Family Law Information Centre, consult CLEO (Community Legal Education Ontario Online Resources) and cases + Family Law resources on www.canlii.org (Canlii is the case/law website for legal cases)”.

b. Justice Goodman in her endorsement dated February 6, 2020 stated: “[t]his is a very complicated case. The parties do need counsel, if they wish to put their positions forward at a trial in a comprehensible way”.

9For reasons known only to them they both decided to proceed unrepresented. With both parties unrepresented, this resulted in the following:

a. The trial taking three to four days longer than it ought to have;

b. The need for two mid-trial written directions; and

c. Relaxed enforcement of evidentiary rules, leaving a much more complex trial record for the court to decipher.

10In addition, due to restrictions imposed as a result of the pandemic, the trial proceeded over Zoom. This is a family matter with no lawyers. In a Zoom proceeding, the parties, who have a tumultuous history and significant animosity between them, are looking at each other on the screen all day. This is very different from a courtroom, where both parties face the judge. Again, this results in costly inefficiencies. The parties see each other’s faces and expressions and feel it necessary to try to rebut every word spoken by the other party, regardless of the relevance and irrespective of court decorum.

11For the reasons set out below, I have determined:

a. Ms. Yao shall provide vacant possession of the Yewfield Property within 30 days of the date of this judgment so that it may be sold.

b. F.A.’s section 7 expenses shall be shared 50/50.

c. The Investment Properties are owned by Network Cash Mart. Ms. Yao’s claim for unjust enrichment and joint family venture is dismissed.

Background

12The parties met in early 2006 at 33 Sheppard Avenue East. At that time, both parties lived in separate apartments in the complex. Mr. Auciello was renting his place and Ms. Yao owned her condo.

13Ms. Yao sold her condo on or about April 21, 2008. The net proceeds to Ms. Yao from this sale were approximately $86,000.00. Although Ms. Yao claimed that these proceeds were contributed to the Yewfield Property, this was not supported by the evidence.

14The parties began cohabiting in or about 2008 and separated on or about July 5, 2013. There is disagreement between the parties as to the exact date they commenced cohabiting. The parties placed an unnecessary amount of importance on this issue. Their concern was that Ms. Yao is making a claim for the Investment Properties, which were purchased on or about April 30, 2008 by Network Cash Mart. Their dispute was whether the parties cohabited before or after this purchase by Network Cash Mart. As discussed below, this was not relevant.

15The Yewfield Property was purchased by the parties in or about February 2008 for approximately $602,000.00. Title to the Yewfield Property is held by the parties as joint tenants.

16Ms. Yao continues to reside in the Yewfield Property and covers the carrying costs. However, she has not paid occupation rent. Ms. Yao has resided in the Yewfield Property since the parties separated. Mr. Auciello wishes to get his equity out of the house. He is currently renting a two-bedroom apartment.

17At the time of the purchase of the Yewfield Property, Mr. Auciello paid the initial deposit of $35,000.00 and the down payment of $389,000.00. The balance of the $178,000.00 came from a mortgage in favour of CIBC.

18As noted above, there have been numerous court proceedings and court orders regarding the sale of the Yewfield Property, including:

a. The applicant brought a motion for partition and sale on or about December 5, 2018. Justice Monahan ordered that the Yewfield Property be listed for sale by March 1, 2019 and set out a process for the naming of a listing real estate agent. This was a contested motion and no appeal was taken from that order. The Yewfield Property was not sold.

b. On May 2, 2019, the parties consented to an Order before Justice Moore. The parties agreed that they would cooperate in the sale of the Yewfield Property and that the listing agent would be Vito Auciello Real Estate Corporation. The listing agreement was to be signed on May 6, 2019 and the open house was to occur on May 18/19, 2019. The parties also agreed to share costs up to $5000.00 to prepare the Yewfield Property for sale. The Yewfield Property was not sold.

c. Mr. Auciello brought another motion on or about October 3, 2019 before Justice Hood. The Order of Justice Hood provided that the Yewfield Property would be listed for sale. Justice Hood set out a process for selecting an agent to list the Yewfield Property and provided that the parties would thereafter immediately list the Yewfield Property for sale at a price set by the agent if they could not agree otherwise. The parties were to cooperate. At this appearance, Mr. Auciello requested the court amend the consent order. The Yewfield Property was not sold.

d. Mr. Auciello brought another motion on or about February 20, 2020 before Justice Hood. The Order provided, among other things, that Ms. Yao was to fully co-operate with the listing and sale of the Yewfield Property. He stated that “[t]he applicant does not need vacant possession at this time. If the property is sold the parties are to co-operate in providing vacant possession to the purchaser”. Mr. Auciello was to be the listing agent for the Yewfield Property. Ms. Yao refused to sign the listing agreement unless Mr. Auciello agreed to comply with certain terms, which he did not.

e. Mr. Auciello brought another motion on or about April 7, 2020 to compel the respondent to sign the listing agreement with certain terms, and seeking vacant possession of the Yewfield Property. Justice Nakonechny made an order dispensing with the need for Ms. Yao’s signature on the listing agreement of the Yewfield Property. She further ordered, among other things, that the Yewfield Property would be listed by Mr. Auciello at a listing price of $2,388,000.00. The term of the listing was to commence on April 21, 2020 and continue until July 22, 2020. Ms. Yao was required to cooperate with the listing and sale of the Yewfield Property, including making the home available for showings on 24 hours’ notice. The Yewfield Property was not sold.

f. Mr. Auciello brought another motion on or about October 29, 2020, for the sale of the Yewfield Property. Justice Diamond ordered, among other things, that the applicant’s real estate brokerage be granted the listing for the sale of the Yewfield Property as of November 1, 2020 and that the term of the listing would be for 4 months. The order required the parties to cooperate to ensure that showings proceed without delay or obstacles, provided that they are arranged on 48 hours’ notice to the respondent. He declined, however, to grant Mr. Auciello the authority to assume control of the entire sale or order that Ms. Yao deliver up vacant possession of the Yewfield Property. Justice Diamond noted that “in the event the property does not sell by the end of the term of the listing agreement, the parties may bring further motions which would presumably include the above relief”. The Yewfield Property was not sold.

g. Mr. Auciello brought a further motion on or about August 26, 2021. Justice Nakonechny noted that “[t]his case must be brought to a conclusion” given the history of the matter. She adjourned the claims in the notice of motion to trial and set the matter down for trial.

19Network Cash Mart was not initially named in the proceedings. However, Ms. Yao amended her answer to include Network Cash Mart.

Analysis

Sale of the Yewfield Property

20There is no legal issue here. There are already numerous court orders for the sale of the Yewfield Property and setting out various terms. The Yewfield Property has still not been sold. There are different narratives as to why the Yewfield Property has not yet been sold. However, the reality is that the Yewfield Property has still not been sold in the face of several court orders.

21Under the Partition Act, R.S.O. 1990, c. P.4 the court has jurisdiction to order the sale of a jointly owned home. This has already been done. It is also clear from the case law that in general, refusal of partition and sale is limited to circumstances of malice, oppression and vexatious intent. In Kaphalakos v. Daval, 2016 ONSC 3559 (Div. Ct.), at paras. 16-18, the court endorsed the following principles:

a. A joint tenant has a prima facie right to an order for the partition or sale of lands held with another joint tenant.

b. The court must compel partition and sale unless the opposing party demonstrates that such an order should not be made.

c. The party opposing the sale must show malicious, vexatious or oppressive conduct to avoid the order.

d. The malicious, vexatious or oppressive conduct must relate to the partition and sale itself and not to the general conduct of the party bringing the motion.

22The parties are joint tenants. Mr. Auciello wants his equity out of the matrimonial home. He has a prima facie right to this remedy. Mr. Auciello requests that the court order vacant possession of the Yewfield Property so that it can be quickly and efficiently sold.

23It is clear that the parties cannot cooperate. There have been numerous orders for the sale of the Yewfield Property and for various reasons it has still not been sold. Both parties lay the blame at the others’ feet.

24It appears that Ms. Yao may be delaying the sale of the Yewfield Property, where she currently resides. Ms. Yao understandably only wants to move once her new condominium is ready. She states that it would be time consuming, costly and difficult for her to have to move more than once. Ms. Yao opposes providing vacant possession of the Yewfield Property to facilitate staging and selling it for the same reasons. Although I appreciate that moving and/or providing vacant possession to facilitate the sale will be costly, stressful and inconvenient, there is no evidence that this would cause hardship to Ms. Yao such that it would amount to oppression. Further, as evidenced by the numerous orders for the sale of the Yewfield Property that have been thwarted, Ms. Yao will not cooperate as required to facilitate the sale.

25Mr. Auciello has been deprived of his equity in the Yewfield Property for many years now. He has significant borrowings at high interest rates to continue to finance the Investment Properties. He estimates that he pays about $70,000.00 per year in interest alone. He currently rents a 2-bedroom apartment at the cost of about $2,100.00 per month. He is entitled to his equity in the Yewfield Property.

26The court will order vacant possession to enable a property to be sold pursuant to an order under the Partition Act in appropriate circumstances: see, e.g., Duong et a. v. Duong, 2021 ONSC 4627. In Domingo v. Guilarte, 2020 ONSC 5311, Justice Kiteley considered a motion under the Partition Act for sale of the matrimonial home and, in particular, whether the respondent should be ordered to vacate the property before it was listed for sale. The court ordered vacant possession to allow the applicant to assess the repairs that were needed before listing the home. The court stated, at para. 25:

The Respondent insists that if she is required to leave the home, that she will be homeless, as will her son. … The Respondent has occupied the home for 8 years. She has known since before the August 5, 2020 case conference, and indeed, as early as December 2019, that the Applicant wanted to sell the house. She has had many months to organize her affairs to obtain accommodation. The circumstances of her adult son’s accommodation are not a legal factor to be considered in this motion. I do not accept the submission that an order requiring her to vacate by October 15 would be “harsh and cruel”.

27Ms. Yao has similarly occupied the Yewfield Property for many years knowing that Mr. Auciello wanted it sold and in the face of numerous court orders requiring its sale. The only way the sale will proceed in a timely and efficient manner is if vacant possession is ordered and Mr. Auciello is given full carriage of the sale. Accordingly, having taken into account the submissions of the parties and the prior court orders regarding the sale of the Yewfield Property, I have determined that:

a. Ms. Yao shall have 30 days from the date of this judgment to vacate the Yewfield Property.

b. Mr. Auciello shall have full carriage of the sale, including determining the timing of the listing, the choice of real estate agent (other than Mr. Auciello himself), and the closing date.

c. If, on the advice of the real estate agent, there are any major repairs needed to the Yewfield Property to ready it for sale that exceed $500.00, both parties shall be equally responsible to pay for any such necessary major repairs.

d. Mr. Auciello shall accept the first reasonable and/or best offer from an arm’s length third party, to purchase the Yewfield Property, in consultation with the real estate agent.

e. Mr. Auciello shall select a real estate lawyer to complete the sale.

f. Mr. Auciello shall be permitted to sign any and all necessary documentation associated with the listing and sale of the Yewfield Property, including the listing agreement; a response to an offer to purchase the Yewfield Property; and/or the agreement of purchase and sale relating to this property. Mr. Auciello shall ensure that Ms. Yao is sent copies of the listing agreement and a copy of any offer to purchase the Yewfield Property.

Unjust Enrichment and Joint Family Venture

28The parties were not married. They had a relatively short cohabitation period and had a child. Ms. Yao claims that Mr. Auciello has been unjustly enriched and that they entered into a joint family venture with regard to the Investment Properties. She claims that a constructive trust ought to be imposed such that Mr. Auciello holds half the Investment Properties for her benefit.

Limitations Issue

29Mr. Auciello argues that Ms. Yao’s claim for unjust enrichment based on a joint family venture is statute barred. He submits that her claim was made outside the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. The Limitations Act applies to all claims unless they are specifically exempted under statute. This would generally include equitable claims such as Ms. Yao’s claim for unjust enrichment.

30I first considered whether the Real Property Limitations Act, R.S.O. 1990, c. L.15 governs Ms. Yao’s claim. Section 2(1)(a) of the Limitations Act exempts “proceedings to which the Real Property Limitations Act applies”. The Real Property Limitations Act broadly defines “land” and provides in section 4 that:

No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

31Ms. Yao claims a constructive trust in the Investment Properties and/or Network Cash Mart, which holds the Investment Properties, as a result of unjust enrichment and joint family venture. The Investment Properties are “land” within the definition in the Real Property Limitations Act.

32In McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561, the Court of Appeal clarified that a claim for unjust enrichment where the claimant seeks an interest in another’s real property is “an action to recover any land” and therefore the 10-year limitation period set out in the Real Property Limitations Act applies.

33I am satisfied that the applicable limitation period is 10 years under the Real Property Limitations Act and therefore Ms. Yao’s claim is not statute barred.

Date of Cohabitation

34The parties spent significant time on the issue of when co-habitation commenced. It is unclear why the parties focused on this issue given that they were not married spouses. As they were not married, they were not “spouses” for purposes of Part 1 of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”). Accordingly, they were not subject to the property sharing regime set out in the FLA.

35Mr. Auciello’s position is that cohabitation commenced on May 6, 2008 at the earliest, but more likely on May 30, 2008. He points to a receipt from Happy Moving dated May 6, 2008, which provides that $550.00 was received from Mr. Auciello.

36Ms. Yao has not provided a moving invoice. Ms. Yao’s position is that the date of cohabitation is when the parties purchased the Yewfield Property (February 2008) or earlier. She states that when they were both living in the same condominium, much time was spent together at Mr. Auciello’s unit.

37By February 2008, Ms. Yao was pregnant, and the parties had decided to purchase a home together. They may not have moved into the Yewfield Property until May 6, 2008, but I accept Ms. Yao’s evidence that they were effectively cohabiting in the same condominium prior to the date they moved into the Yewfield Property.

Unjust Enrichment

38This issue is about the Investment Properties. As indicated above, the Investment Properties are owned by Network Cash Mart, which is owned 100% by Mr. Auciello.

39Because the parties were not married spouses and not subject to the property sharing regime mandated under the FLA, Ms. Yao sought a finding that Mr. Auciello would be unjustly enriched if he were permitted to retain both the Investment Properties and sought a constructive trust remedy.

40The Investment Properties were purchased for about $500,000.00 and are now worth at least $2.3 million. Mr. Auciello, a real estate agent, states that he purchased these properties through his company, Network Cash Mart, as his own investment. His position is that he has not been unjustly enriched and that these properties are and have always been his properties. Mr. Auciello states that Ms. Yao showed no interest in the Investment Properties until the new Crosstown subway line construction started. Ms. Yao states that the parties were in this together from the outset and there was a joint family venture. Her position is that there would be unjust enrichment if Mr. Auciello, through Network Cash Mart, were permitted to retain both the Investment Properties.

41For a constructive trust remedy to be imposed, Ms. Yao is required to show unjust enrichment. In Peter v. Beblow, 101 D.L.R. (4th) 621 (S.C.C.) the Supreme Court of Canada determined that there are three elements that must be proven on a balance of probabilities in order for a party to succeed in an unjust enrichment claim: (a) an enrichment; (b) a corresponding deprivation; and (c) the absence of juristic reason for the enrichment (at. Page 630).

42The leading case by the Supreme Court dealing with unjust enrichment and joint family venture is Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269. The Supreme Court stated, at para. 88, that “[a] joint family venture can only be identified by the court when its existence, in fact, is well grounded in the evidence.” At paragraph 100, Justice Cromwell sets out the court’s analysis of the remedies for unjust enrichment:

a. The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach.

b. Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions.

c. To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.

d. Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family.

43In order for unjust enrichment to be established, the plaintiff must “demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property” (Kerr, para. 50). The plaintiff must show a “’sufficiently substantial and direct’ link, a ‘causal connection’ or a ‘nexus’ between the plaintiff’s contributions and the property which is the subject matter of the trust” (Kerr, at para. 51). Further, in Kerr, at para. 51, the Supreme Court noted that indirect monetary contributions and direct labour contributions may be sufficient, “provided that a connection is established between the plaintiff’s deprivation and the acquisition, preservation, maintenance, or improvement of the property.”

44As discussed in more detail below, this is where Ms. Yao’s claim that Mr. Auciello would be unjustly enriched if Network Cash Mart retains the Investment Properties fails. Ms. Yao spent significant time at trial trying to establish, among other things, that both parties contributed to the Investment Properties. Ms. Yao claims that Mr. Auciello would be unjustly enriched and she would have a corresponding deprivation if Network Cash Mart retains the Investment Properties. However, the evidence did not bear this out.

45There was evidence of approximately $27,000.00 being paid from Ms. Yao’s company, Little Stella Creations Corporation (“Little Stella”), to Network Cash Mart. However, this was in respect of a lease agreement between Network Cash Mart and Little Stella. (I note that there was disagreement as to who owned Little Stella. Mr. Auciello initially registered Little Stella in or around January 2008. However, at some point around 2010 it was transferred to Ms. Yao. I accept Dennis Murray’s (the accountant) evidence, that Ms. Yao owns Little Stella.)

46Ms. Yao also claims that she made contributions through withdrawing her RRSPs, selling her Bell Canada shares and borrowings from various parties. However, the evidence did not support that these funds were used for the Investment Properties. For example, when the proceeds from Ms. Yao’s Bell shares were deposited to the Simplii account, Ms. Yao made a payment that same day with the funds to her BMO Mosaic Mastercard.

47Ms. Yao claims a financial contribution to the Yewfield Property and the Investment Properties of over $1 million. This is not supported by her income over the time period in question or by the evidence.

48Ms. Yao was unable to establish on a balance of probabilities a causal connection or substantial and direct link between contributions she made to the relationship and the acquisition, preservation, maintenance or improvement of the Investment Properties. Ms. Yao certainly contributed to the relationship and the Yewfield Property, and they both helped each other out as couples do. Further, Mr. Auciello would ask Ms. Yao to assist him with various tasks related to both the Yewfield Property and the Investment Properties, including making certain payments for him and helping him craft rental advertisements. At times he would “borrow” money from Ms. Yao.

49Ms. Yao’s position was that she did the household work, paid the household expenses and some of Mr. Auciello’s expenses to free Mr. Auciello’s time and funds for the renovation, preservation, maintenance and upkeep of the Investment Properties. Ms. Yao may have paid additional expenses toward the household and contributed her time and energy to the relationship and their daughter, but this does not equate to her contributing to the Investment Properties owned by Network Cash Mart.

50The down payment for the Investment Properties was paid as follows: Mr. Auciello paid $50,000 by bank draft from his CIBC account, and the remaining approximately $198,000 came from the parties’ joint line of credit secured on the Yewfield Property. However, Mr. Auciello had made the sizable down-payment on the Yewfield Property in the amount of $444,000.00. Ms. Yao had not contributed to the down-payment on the Yewfield Property. Effectively, Mr. Auciello took out some of the money he had paid to the Yewfield Property and invested it in the Investment Properties.

51Importantly, Network Cash Mart owns the Investment Properties, not Mr. Auciello. As noted above, Mr. Auciello has provided a personal guarantee on Network Cash Mart’s mortgage. Network Cash Mart has been in existence for many years and is the corporate vehicle Mr. Auciello uses for other business ventures.

52There was not a “sufficiently substantial and direct link” between Ms. Yao’s contributions to the relationship and the Investment Properties. Ms. Yao has not established a causal connection or nexus between her contributions to the family and the Investment Properties. I have determined that there has not been unjust enrichment.

Joint Family Venture

53Recent case law suggests that a joint family venture is one of the remedies available where unjust enrichment is found (Kyriacou v. Zikos, 2021 ONSC 7589, at para. 122). As noted, I have not found unjust enrichment. However, I will nonetheless address joint family venture.

54The Supreme Court of Canada in Kerr addressed the factors to be considered when identifying unjust enrichment arising from a joint family venture (at paras. 87-101):

a. Mutual Effort: Did the parties work collaboratively to common goals? Did they have children? How long was the relationship?

b. Economic Integration: Did they have joint assets? Did they share expenses and accumulate common savings?

c. Intention of the parties: What did the parties intend to do? Was it intended that each would keep their own portion?

d. Priority of the Family: How much the parties gave priority to the family. Did one or both spouses sacrifice something for the sake of the family unit?

55As Ms. Yao claims there was a joint family venture, she bears the onus of proof (Peters v. Swayze, 2018 ONCA 189, at para. 9). Whether or not there was a joint family venture or there has been unjust enrichment are questions of fact: see Peters.

56Taking into consideration the factors set out in Kerr and the evidence in this matter and using my “reasoned exercise of judgment in light of all of the evidence”, I am not satisfied that there was a joint family venture. I look at each of the factors set out in Kerr below.

57The Supreme Court in Kerr describes mutual effort as follows, at paras. 90 and 91:

One set of factors concerns whether the parties worked collaboratively towards common goals. Indicators such as the pooling of effort and team work, the decision to have and raise children together, and the length of the relationship may all point towards the extent, if any, to which the parties have formed a true partnership and worked towards important mutual goals.

Joint contributions, or contributions to a common pool, may provide evidence of joint effort.

58Mr. Auciello and Ms. Yao had a short relationship and had a child together. As indicated above, Little Stella paid approximately $27,000.00 to Network Cash Mart in respect of a lease agreement between Network Cash Mart and Little Stella.

59Mr. Auciello acknowledges that he borrowed money from time to time from Ms. Yao. It is clear that when Mr. Auciello had financial difficulties, including after the date of separation, he would borrow money from Ms. Yao. For example:

a. Email from Mr. Auciello to Ms. Yao, dated November 9, 2013: “I need a loan for 10K till end of month, it can be added to the amount to pay you out.”

b. Email from Mr. Auciello to Ms. Yao, dated October 30, 2013: “I am working with buyer right now and am confident to earn some monies, I need to borrow from you and I will pay you back upon arranging of Mortgage…. Lend me as much as possible without any arguments.”

60However, the fact that it was characterized by the parties as “borrowing” again supports that there was no joint family venture. Mr. Auciello repeatedly stated at trial that he would pay back any money he borrowed from Ms. Yao.

61Mr. Auciello purchased the Investment Properties, through his existing company Network Cash Mart. While they had mutual effort as it pertains to raising their daughter, Mr. Auciello always treated the Investment Properties as his. Ms. Yao claims that the parties contemplated this investment together and it was meant to be a joint effort.

62Based on the evidence, I did not find that there was a mutual effort. As an example, the Investment Properties went under power of sale at one point and Ms. Yao did not assist. Mr. Auciello had to find another lender to loan Network Cash Mart the money to discharge the mortgage in order to save the Investment Properties. Mr. Auciello provided the personal guarantee on the loan. Since then, Mr. Auciello alone (through Network Cash Mart) has been carrying the mortgage on the Investment Properties (currently approximately $800,000.00), which bears a high rate of interest (approximately 8% annual interest rate). He states that since 2018 the Investment Properties have cost him over $210,000.00 in interest alone. Ms. Yao clearly saw the Investment Property risk as belonging to Mr. Auciello:

a. In an email Ms. Yao to Mr. Auciello, dated November 7, 2013, discussing various funds needed for work on the garage at the Yewfield Property, Ms. Yao stated: And we currently have roughly 700k loan on the house (including 80k you owe to CIBC), how can you raise the amount to buy me out? I will guess you have to refinance[e] the properties at Dufferin, but this leave you a huge risk if you haven’t been able to rent out the space over there after tried a few months by now. Plus the higher interest rate you will pay.” [emphasis added]

b. Ms. Yao assisted Mr. Auciello in doing an advertisement to rent one of the Investment Properties. When there was a Craigslist response noted, she emailed Mr. Auciello and stated: “Do you want to respon[d] to this email? When you respon[d], pls. remove my information.”

63The next consideration in the test set out in Kerr is economic integration. The Supreme Court described the relevant factors in considering economic integration, at paras. 92 and 93:

Another group of factors, related to those in the first group, concerns the degree of economic interdependence and integration that characterized the parties’ relationship … The more extensive the integration of the couple’s finances, economic interests and economic well-being, the more likely it is that they should be considered as having been engaged in a joint family venture. For example, the existence of a joint bank account that was used as a “common purse”, as well as the fact that the family farm was operated by the family unit, were key factors in Dickson J.’s analysis in Rathwell. The sharing of expenses and the amassing of a common pool of savings may also be relevant considerations…

The parties’ conduct may further indicate a sense of collectivity, mutuality, and prioritization of the overall welfare of the family unit over the individual interests of the individual members … These and other factors may indicate that the economic well-being and lives of the parties are largely integrated…

64The parties each had their own businesses. They had a joint bank account for common expenses for a short while, which was closed by Ms. Yao. Other than that account, they really did not have a “common purse”. The finances were generally kept separate and there were “borrowings” by Mr. Auciello from Ms. Yao from time to time. The parties had joint mortgages on the Yewfield Property, but not the Investment Properties.

65The parties would help each other out financially. For example, the Investment Properties were initially purchased on paper by Ms. Yao so that Mr. Auciello could get the buyer’s real estate commission on the purchase. I am satisfied that this was the only reason. The Investment Properties were then immediately transferred to Network Cash Mart. Further, Ms. Yao did provide Mr. Auciello with a companion credit card for one of her cards from 2012 to 2018 to assist him. However, the understanding again was that these monies would be paid back.

66The next factor set out in Kerr is actual intent. The Supreme Court states, at paras. 94, 96 and 97:

Underpinning the law of unjust enrichment is an appropriate concern for the autonomy of the parties, and this is a particularly important consideration in relation to domestic partnerships. While domestic partners might not marry for a host of reasons, one of them may be the deliberate choice not to have their lives economically intertwined. Thus, in considering whether there is a joint family venture, the actual intentions of the parties must be given considerable weight. Those intentions may have been expressed by the parties or may be inferred from their conduct. The important point, however, is that the quest is for their actual intent as expressed or inferred, not for what in the court’s view “reasonable” parties ought to have intended in the same circumstances…

The title to property may also reflect an intent to share wealth, or some portion of it, equitably. This may be the case where the parties are joint tenants of property. Even where title is registered to one of the parties, acceptance of the view that wealth will be shared may be evident from other aspects of the parties’ conduct. For example, there may have been little concern with the details of title and accounting of monies spent for household expenses, renovations, taxes, insurance, and so on. Plans for property distributions on death, whether in a will or a verbal discussion, may also indicate that the parties saw one another as domestic and economic partners.

The parties’ actual intent may also negate the existence of a joint family venture, or support the conclusion that particular assets were to be held independently. Once again, it is the parties’ actual intent, express or inferred from the evidence, that is the relevant consideration.

67Not surprisingly, Ms. Yao says their intent was to participate in a joint family venture, whereas Mr. Auciello says that was never the intent.

68While the parties lived together, it was for a short period of time. Mr. Auciello’s evidence was consistent that as soon as their daughter was born their relationship collapsed. He stated that Ms. Yao’s parents came to stay with them shortly after their daughter was born and by that time their relationship was effectively over. For a period of time, Mr. Auciello and Ms. Yao lived in different wings of the house before Mr. Auciello moved out of the Yewfield Property.

69Ms. Yao submits that, among other things, the fact that the parties attended some professional and social events together, travelled together and were congratulated by relatives on the birth of their daughter show the intent of the parties to participate in a joint family venture. These factors certainly illustrate that the parties were a couple who had a child they were raising together. However, this does not show intent to participate in a joint family venture. People can choose to live together and have children together, but not marry and not share property.

70The title to the Yewfield Property is held in both names. However, title to the Investment Properties is, and always has been, held by Network Cash Mart (other than the initial purchase so that Mr. Auciello could get the buyer real estate commission, as mentioned above). Ms. Yao’s evidence was that Mr. Auciello had told her that it would be better protection for the family asset if the Investment Properties were held in his company. Mr. Auciello’s evidence was that he had his eye on these properties for some time and bought them through his existing company as his investment.

71Network Cash Mart is Mr. Auciello’s company that he has owned since the 1980s. The company has other assets. It is his business. To me the fact that the Yewfield Property was purchased and is owned by Network Cash Mart speaks volumes as to the parties’ intention.

72There also was accounting of money spent by each. Mr. Auciello borrowed money from Ms. Yao, but with the expectation that it would be paid back.

73The last category of factors set out in Kerr is priority of the family. The Supreme Court describes this, at para. 98, as follows:

A final category of factors to consider in determining whether the parties were in fact engaged in a joint family venture is whether and to what extent they have given priority to the family in their decision making. A relevant question is whether there has been in some sense detrimental reliance on the relationship, by one or both of the parties, for the sake of the family. As Professor McCamus puts it, the question is whether the parties have been “[p]roceeding on the basis of understandings or assumptions about a shared future which may or may not be articulated” (p. 365). The focus is on contributions to the domestic and financial partnership, and particularly financial sacrifices made by the parties for the welfare of the collective or family unit. Whether the roles of the parties fall into the traditional wage earner/homemaker division, or whether both parties are employed and share domestic responsibilities, it is frequently the case that one party relies on the success and stability of the relation ship for future economic security, to his or her own economic detriment (Parkinson, at p. 243). This may occur in a number of ways including: leaving the workforce for a period of time to raise children; relocating for the benefit of the other party’s career (and giving up employment and employment-related networks as a result); foregoing career or educational advancement for the benefit of the family or relationship; and accepting underemployment in order to balance the financial and domestic needs of the family unit.

74This is not a case where the roles of the parties fell into the traditional wage earner/homemaker division. Both parties were working. They both participated in the challenging task of juggling raising a young child, working, and fulfilling the household responsibilities. They did this together, as they had a child together. Ms. Yao states that she was forced to do contract work instead of pursuing full time employment. However, Ms. Yao did not give up her career or put it on hold. Ms. Yao has a successful career. There was no evidence, other than Ms. Yao’s assertions, that her career would have gone on a different trajectory but for the relationship with Mr. Auciello. This is different than Ms. Vanasse in Kerr (the appellant in Vanasse v. Seguin, the case heard together with Kerr), who ceased working when the children were born. Ms. Vanasse gave up a “lucrative and exciting career” to move to another province with her husband.

75The parties did not marry. They had a relatively short relationship, where they lived together and had a child together. I accept Mr. Auciello’s evidence that the parties moved to separate wings of the house shortly after their daughter was born.

76While there are cases where parties who do not marry are economically intertwined and show intention to be treated in all respects as a married family unit, sharing all property interests, this case is not one of them. When people choose to marry, they choose to enter into a regime where the law requires sharing of property accumulated during the marriage. By contrast, if people choose to not marry, they ought to be able to keep property separate if they so choose. The FLA clearly delineates between “spouses” for the purposes of sharing of property and “spouses” for other purposes, such as support. The common law has developed such that in certain circumstances there may be unjust enrichment and a joint family venture, such that a constructive trust is imposed. This is not one of them.

77Based on the above, I have determined that there was no unjust enrichment to Mr. Auciello and Mr. Auciello and Ms. Yao did not have a joint family venture.

Section 7 Expenses

78Ms. Yao takes the position that she pays for all of F.A.’s section 7 expenses. She also submits that Mr. Auciello is restricting F.A.’s extra-curricular activities. Mr. Auciello states that he will support activities in which F.A. is interested, however he does not want her pushed into activities that she does not want to pursue.

79F.A. is almost 14 years old and almost certainly will have input into activities of interest. Extra-curricular activities are important and both parties ought to continue to support them. Ms. Yao asks that F.A. participate in 2-3 extracurricular activities of her interest, regardless of which parent F.A. resides with.

80It is in F.A.’s best interests to participate in extracurricular activities of her interest, which likely will fall on the same day each week. Accordingly, F.A.’s extracurricular activities shall be approached as follows:

a. Each June the parties shall exchange their income information.

b. Prior to August 1 of each year, the parties shall each discuss with F.A. her interests for activities for the upcoming year.

c. Following these discussions, and prior to August 15 each year, Ms. Yao shall provide Mr. Auciello and F.A. with a proposed plan of the types of activities for F.A. for the upcoming year and estimated costs.

d. Mr. Auciello shall provide any feedback on the proposed plan by August 31 each year.

e. Taking into account any reasonable feedback provided by Mr. Auciello and F.A., Ms. Yao shall have final decision-making authority for F.A.’s activities. However, this final decision-making authority relates only to a maximum of two activities per week (“2 Weekly Activities”).

f. The parties shall each pay their proportionate share for F.A.’s 2 Weekly Activities and shall each encourage F.A.’s attendance at her 2 Weekly Activities.

81Neither party shall incur any other special and extraordinary expense without first consulting the other party and obtaining their prior written consent (not to be unreasonably withheld).

Disposition

82The Yewfield Property shall be sold as follows:

a. Ms. Yao shall have 30 days from the date of this judgment to vacate the Yewfield Property.

b. Mr. Auciello shall have full carriage of the sale, including determining the timing of the listing; the choice of real estate agent (other than Mr. Auciello himself), and the closing date.

c. If, on the advice of the real estate agent, there are any major repairs needed to the Yewfield Property to ready it for sale that exceed $500, both parties shall be equally responsible to pay for any such necessary major repairs.

d. Mr. Auciello shall accept the first reasonable and/or best offer from an arm’s length third party, to purchase the Yewfield Property, in consultation with the real estate agent.

e. Mr. Auciello shall select a real estate lawyer to complete the sale.

f. Mr. Auciello shall be permitted to sign any and all necessary documentation associated with the listing and sale of the Yewfield Property, including the listing agreement; a response to an offer to purchase the Yewfield Property; and/or the agreement of purchase and sale relating to this property. Mr. Auciello shall ensure that Ms. Yao is sent copies of the listing agreement and a copy of any offer to purchase the Yewfield Property.

83Ms. Yao’s claim for unjust enrichment and a declaration that she holds a 50% equitable trust interest in the Investment Properties or Network Cash Mart is dismissed.

84F.A.’s extracurricular activities shall be approached as follows:

a. Each June the parties shall exchange their income information.

b. Prior to August 1 of each year, the parties shall each discuss with F.A. her interests for activities for the upcoming year.

c. Following these discussions, and prior to August 15 each year, Ms. Yao shall provide Mr. Auciello and F.A. with a proposed plan of the types of activities for F.A. for the upcoming year and estimated costs.

d. Mr. Auciello shall provide any feedback on the proposed plan by August 31 each year.

e. Taking into account any reasonable feedback provided by Mr. Auciello and F.A., Ms. Yao shall have final decision-making authority for F.A.’s activities. However, this final decision-making authority relates only to F.A.’s 2 Weekly Activities.

f. The parties shall each pay their proportionate share for F.A.’s 2 Weekly Activities and shall encourage F.A.’s attendance at her 2 Weekly Activities.

85Neither party shall incur any other special and extraordinary expense without first consulting the other party and obtaining their prior written consent (not to be unreasonably withheld).

Costs

86Under Rule 24 of the Family Law Rules, O.Reg. 114/99 (the “FLR”) there is a presumption that a successful party is entitled to costs. However, costs are discretionary: see the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131.

87In this case, success was divided. Mr. Auciello was successful on the issues of the Yewfield Property and the unjust enrichment/joint family venture claim. Ms. Yao was successful on the issue of the section 7 expenses.

88I am not inclined to order costs in this case. In my view, significant court resources have been wasted by both parties. As set out above, there have already been numerous court appearances and court orders regarding the sale of the Yewfield Property, yet the property has still not been sold. Further at trial, significant court time was wasted. The following are but a few examples:

a. Mr. Auciello indicated that he wanted to call Hong Zhou as an expert witness. Ms. Zhou is Mr. Auciello’s girlfriend. Court time was spent on this issue before he decided to instead call her as a fact witness. Her testimony was related to her review of bank documentation provided by Ms. Yao to verify where there were bank documents to support any contribution claim. Aside from the fact that she is not an impartial witness, her evidence was based on her review of the documents and math. This was not opinion evidence. Ultimately, as a fact witness her focus was on whether certain of Ms. Yao’s entries or documents would be acceptable from a bank’s perspective. This is not the test in court.

b. Mr. Auciello refused to concede to permit Ms. Yao to amend her answer to correctly name Mr. Auciello’s corporation as “Network Cash Mart Ltd.”, not “Network Cash Mart Limited”. After time was spent on this issue and the court directed Mr. Auciello to the law of misnomer, he ultimately conceded to the change.

c. Ms. Yao had retained an expert to prepare a report on the value of the Investment Properties. However, the expert witness fee that Mr. Dmytryshyn charges for attendance at court was not acceptable to Ms. Yao. She decided to summons him as a witness. Although Mr. Dmytryshyn is clearly knowledgeable, he was unable to provide any assistance to the court beyond affirming that he had authored the report. He testified that, since that report, he had probably done 300 appraisals and was unable to recall specifics related to this appraisal. Due to the circumstances of his attendance, he did not prepare, nor had he reviewed his report in any detail prior to appearing at trial.

d. Numerous emails were sent to the Registrar by both parties, often failing to copy the other party.

e. The parties had put in their evidence in chief by way of affidavit, with exhibits to the affidavit. Yet, significant time was spent by the parties focusing on what was to be made an exhibit at trial despite the fact that most of the items were already in evidence.

89Under Rule 2 of the FLR, the primary objective of the rules is to enable the court to deal with cases justly. Dealing with cases justly includes dealing with the case in ways that are appropriate to its importance and complexity and giving appropriate court resources to the case while taking account of the need to give resources to other cases.

90The parties shall each bear their own costs.

J. Steele J.

Released: April 19, 2022

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Vito Auciello Applicant – and – Wei Yao Respondent

REASONS FOR JUDGMENT

J. Steele J.

Released: April 19, 2022