Court File and Parties

Citation: Normore v. Garcia, 2009 ONCA 592

Date: 2009-07-28

Docket: C48910

Court of Appeal for Ontario

Before: Juriansz, Rouleau and Watt JJ.A.

Between:

Paul Lorne Normore

Respondent (Appellant)

and

Miren Edurne Egana Garcia

Applicant (Respondent)

Counsel:

Leonard Levencrown, for the appellant

Frank B. McNally, for the respondent

Heard and released orally: July 2, 2009

On appeal from the order of Justice Heidi S. Polowin of the Superior Court of Justice dated February 11, 2008.

Endorsement

[1] This is an appeal from the judgment of the Superior Court of Justice, Family Court, in Ottawa, dated February 11, 2008.

[2] The appellant asks that a portion of the judgment be set aside in which the trial judge ordered him to pay:

1. $45,920.28 on account of loans made by the respondent to him; and
2. the sum of $10,500 for unjust enrichment.

[3] The appellant must meet a stringent standard of review. As this court noted in Juvatopolos v. Juvatopolos, 2005 CanLII 35677 (ON CA), [2005] O.J. No. 4181:

The decision of the [judge below] is entitled to deference on appeal and the standard of review is designed to promote finality in family law litigation and to recognize the importance of the appreciation of the facts by the trial judge: see Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518 at paras. 11-12. It is only where the trial judge’s decision exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong that an appellate court is entitled to interfere: see Silver v. Silver (1985), 1985 CanLII 2075 (ON CA), 54 O.R. (2d) 591 (Ont. C.A.).

[4] Here, the appellant strives to avoid this exacting standard of review by characterizing findings of fact as legal issues.

[5] First, he poses the question whether monies advanced and subsequently co-mingled in a joint investment account, which were then lost on the stock market, can, in law, be found to be a loan repayable to the party who originally advanced the funds. It may well be that, as a general proposition, parties must share the investment losses of monies held jointly. Here, however, the trial judge found as facts that respondent loaned the appellant $44,500, that he used this money to day trade, that he was not trading on the respondent’s behalf and that she never give him money to trade on her behalf. These findings were amply supported by the evidence, notably the trial judge’s finding of credibility against the appellant and the testimony of a witness that the appellant told him that he was borrowing money from the respondent to trade in stocks. The trial judge’s conclusion that the monies the respondent gave the appellant were a loan, even though the appellant placed them in a joint account at one point, was based on these findings. We see no reason to interfere.

[6] Second, the appellant also submits that unjust enrichment cannot be established in law when both parties in an unmarried relationship have contributed significantly to the relationship by money and money’s worth.

[7] We do not accept this broad proposition. The trial judge considered all of the contributions, monetary and non-monetary, made by each of the parties to the family enterprise during the period of cohabitation and found that the appellant had been unjustly enriched by the amount of $10,500.00. The trial judge found the respondent had made direct contributions to the improvement and renovation of the appellant’s house, and some mortgage payments as well.

[8] Contrary to the submissions of counsel, the trial judge’s reasons demonstrate that she took into account all the circumstances including that the respondent lived rent free in the appellant’s home during the first 8 months of the relationship, that the parties had shared domestic duties and that the appellant had performed considerable renovation work on the home the respondent owned. The findings of the trial judge are matters of fact, and are amply supported by the evidence. There is no basis to interfere with her conclusion.

[9] The appellant also argues that $10,500 is de minimis. We disagree. The trial judge found that it was a significant amount considering the financial status of the respondent.

[10] The appeal is dismissed. Costs in favour of the respondent are fixed in the amount of $10,000 inclusive of disbursements and G.S.T.

“R.G. Juriansz J.A.”

“Paul Rouleau J.A.”

“David Watt J.A.”