Court of Appeal for Ontario

Date: 2018-07-10 Docket: C64866

Judges: Feldman, Hourigan and Brown JJ.A.

Parties

Between

Kamaljit Kaur Toor Applicant (Respondent)

and

Balwinder Singh Toor, Amrik Toor and Amarjit Toor Respondents (Appellants)

And Between

Amrik Toor and Amarjit Toor Plaintiffs (Appellants)

and

Balwinder Toor and Kamaljit Toor Defendants (Respondents)

Counsel

James S.G. Macdonald, for the appellants

Bhupinder Nagra, for the respondent

Heard: July 6, 2018

On appeal from the order of Justice M.G. Emery of the Superior Court of Justice, dated December 22, 2017.

Reasons for Decision

[1] Kamaljit Kaur Toor and Balwinder Singh Toor were married in 2002.

[2] On August 31, 2012 they purchased a matrimonial home in Brampton (the "Property"). Title was registered in their names as joint owners.

[3] They separated in early 2015.

[4] Following their separation, Kamaljit commenced family law proceedings. As well, Balwinder's parents, Amrik Toor and Amarjit Toor (the "Parents"), commenced a civil suit against their son and daughter-in-law seeking payment of $132,000, which they alleged they had loaned Balwinder and Kamaljit. The Parents also sought a declaration that they are the beneficial owners of a joint interest in the Property because Balwinder and Kamaljit had used some of the loaned funds to purchase the Property. The Parents' action was consolidated with the family law proceedings.

[5] Balwinder did not defend against his Parents' claim. Default judgment was granted against him.

[6] Kamaljit moved for summary judgment dismissing the Parents' action.

[7] The motion judge granted partial summary judgment. He concluded that he could not resolve the Parents' claim for repayment of the $132,000 as there was a genuine issue requiring a trial as to whether those advances constituted a loan or a repayment to Balwinder of the proceeds of sale of a property in his name in India.

[8] However, the motion judge granted summary judgment dismissing the Parents' claim for an interest in the Property. He gave two reasons for his decision. First, there was "no tie that binds the advances and the purchase of the Property together to create a constructive trust." Second, he found there was no evidence that any of the $132,000 was a loan or advance with an expectation of repayment.

[9] The Parents appeal the dismissal of their claim for an interest in the Property. They seek an order dismissing Kamaljit's summary judgment motion, leaving for trial the issues about the nature and use of the $132,000, including their claim for an interest in the Property.

Analysis

[10] Notwithstanding the deference owed to the motion judge's determination to grant summary judgment, we conclude that he made two reversible errors that require setting aside the grant of partial summary judgment: Hryniak v. Mauldin, 2014 SCC 7, at para. 81.

[11] First, the motion judge's finding that there was "no tie that binds the advances and the purchase of the Property together" was based on a misapprehension of the evidence. The record discloses a link between some of the Parents' advances and the purchase of the Property.

[12] Between June 4, 2012 and August 13, 2012, the Parents wrote cheques totalling $47,000 to Balwinder, which he deposited into one of his accounts. The account records show that those deposits, together with some others, accumulated so that by August 29, 2012 the account balance amounted to $101,347.37. On that day, there was a withdrawal from the account of $101,377.11. On her cross-examination, Kamaljit admitted that the withdrawal was used to purchase the Property. A genuine issue requiring a trial therefore exists as to whether that use of the funds originating from the Parents gives rise to any legal entitlement by them to an interest in the Property.

[13] Second, on their face, the motion judge's reasons are internally inconsistent on the issue of the legal characterization of the Parents' advances.

[14] On the one hand, the motion judge stated he could not resolve the issue of whether the $132,000 advanced by the Parents to Balwinder constituted a loan or a repayment of proceeds from the sale of the Indian property. The motion judge left that issue for trial.

[15] Yet, on the other hand, in granting Kamaljit partial summary judgment the motion judge concluded that there was no evidence that any of the $132,000 was a loan or an advance with an expectation of repayment. Those two findings cannot be reconciled. By granting partial summary judgment, the motion judge created the real possibility of inconsistent results with respect to the legal consequences of the $132,000, ignoring the strong caution issued by this court about granting partial summary judgment where such a risk exists: Butera v. Chown, Cairns LLP, 2017 ONCA 783, at para. 26. A genuine issue requiring a trial exists as to the legal characterization of the $132,000.

Decision

[16] Accordingly, we allow the appeal and set aside the order granting partial summary judgment.

[17] We fix the costs of the appeal at $6,000, inclusive of disbursements and applicable taxes. The costs of the appeal shall be payable in the cause of the Parents' civil proceeding.

[18] The motion judge did not order any costs of the motion below. We leave the costs of the preparation for the summary judgment motion to the trial judge as part of the trial cost award.

[19] We would strongly encourage the parties to request the appointment of a case management judge for both the family law and civil proceedings.

"K. Feldman J.A."

"C.W. Hourigan J.A."

"David Brown J.A."