DATE: 20030925

DOCKET: C37951

COURT OF APPEAL FOR ONTARIO

RE: KARL RUSTER (Petitioner (Respondent)) v. RACHEL RUSTER (Respondent (Appellant))

BEFORE: LASKIN, FELDMAN and ARMSTRONG JJ.A.

COUNSEL: Dani Frodis for the petitioner/respondent Gary Joseph for the respondent/appellant

HEARD: September 11, 2003

E N D O R S E M E N T

[1] In this matrimonial case, the appellant (wife) appeals from the order of Justice Croll of the Superior Court of Justice. The appellant asserts that the trial judge erred in:

(i) dismissing her claim for unjust enrichment; and

(ii) the calculation of the husband’s net family property by permitting him to include in his assets at the date of marriage real estate commissions on the sale of properties which had not yet closed.

[2] The claim for unjust enrichment was asserted on the basis that the appellant had loaned the respondent $60,000 for the renovation of his house at 79 Johnston Avenue in the City of Toronto from which she earned no interest. The appellant also gave the respondent $20,000 to construct an apartment in the basement of the house which was rented by her son. She claimed that she received no share of the rent from the apartment and no other benefit from the $20,000. Finally, she asserted that she paid $13,300 for cupboards and window coverings in the house.

[3] Because the appellant and respondent lived in the house during the course of their marriage it was treated as the matrimonial home by the trial judge. The $60,000 was repaid to the appellant without interest. The trial judge accepted the respondent’s evidence that he did much of the physical work and served as general contractor in regard to the renovation. She also accepted his evidence that the interest, which could be attributed to the $60,000, was used for household expenses. She found this to be “a reasonable pooling of resources” by both the appellant and respondent.

[4] The respondent testified that he built the basement apartment at the request of the appellant for her son, otherwise, he would not have done so. As to the $20,000, the trial judge found that approximately $17,000 was expended for materials and appliances. The trial judge also found that the value of the labour contributed by the respondent in the building of the apartment exceeded the balance of $3,000. In regard to the rent from the apartment, the trial judge similarly found that the respondent used it for household expenses.

[5] It would appear that the trial judge treated the $13,300 for kitchen cupboards and window coverings in the same manner as the funds advanced for the apartment.

[6] We are satisfied that the trial judge correctly applied the law in regard to unjust enrichment to the facts found by her.

[7] In respect to the trial judge’s calculation of the respondent’s net family property, the appellant argued that the real estate commissions should have been valued on the basis of hindsight. This would have resulted in the exclusion from the calculation of $21,121.15 in respect of a real estate deal which ultimately failed to close. The appellant relied on a judgment of Kiteley J. in Shaw v. Shaw, [2002] O.J. No. 2782 (Sup. Ct.) and Herold J. in Ganson v. Ganson, [1996] O. J. No. 3870 (Gen. Div.). We are satisfied that the Shaw case is distinguishable from the case at bar. The Ganson case was decided before the decision of the Supreme Court of Canada in Best v. Best (1999), 174 D.L.R. (4th) 235 which eschewed the use of hindsight in the valuation of a pension.

[8] In our view, it was clearly appropriate for the trial judge in this case to value the real estate commission as she did. It may be that the appellant could have led evidence to show that the real estate commission, as a contingent interest, had a lesser value on the date of marriage. However, no such evidence was led. The trial judge committed no error and her finding is entitled to the deference of this court.

[9] In the result, the appeal is dismissed. The respondent shall have his costs of the appeal on a partial indemnity basis, fixed at $5,000 including disbursements and Goods and Services Tax..

“John Laskin J.A.”

“K. Feldman J.A.”

“Robert P. Armstrong J.A.”