COURT OF APPEAL FOR ONTARIO

CITATION: Walters v. Nusseiri, 2020 ONCA 615

DATE: 20201002

DOCKET: C66495

Pepall, Benotto and Coroza JJ.A.

BETWEEN

Errol M. Walters

Plaintiff/Defendant by Counterclaim

(Appellant)

and

Lubna (a.k.a. Susan) Nusseiri

Defendant/Plaintiff by Counterclaim

(Respondent)

Harvey A. Swartz, for the appellant

Sukh Jagpal, for the respondent

Heard: in writing

On appeal from the judgment of Justice Cynthia Petersen of the Superior Court of Justice, dated January 2, 2019, with reasons reported at 2019 ONSC 22.

REASONS FOR DECISION

Introduction

[1] The appellant, Errol Walters, appeals from the trial judge’s decision dismissing his action claiming entitlement to a share of the proceeds of sale of a residential property in Brampton, Ontario (the “Property”), and granting the respondent, Lubna Nusseiri’s, counterclaim to the proceeds based on a resulting trust.

Background Facts

[2] The appellant and the respondent were involved in a relationship. They met in 2001 and never married. The nature of the relationship was in dispute. The respondent claimed he was a committed common law spouse who contributed financially to the initial purchase of the Property and to the carrying costs of the mortgage, property tax and utilities during the time that he lived there. The appellant claimed that she was an exploited sex worker and that the respondent was a controlling pimp who took her earnings and lived off of them.

[3] The respondent purchased the Property in her name alone on July 29, 2005. Title was then transferred to both parties as joint tenants two months later on September 28, 2005. The trial judge found that the Property was the appellant’s principal residence from 2005 until 2009, when the parties ended their relationship and the appellant moved out. The Property was then sold in 2016.

[4] When the Property was sold, the respondent received half of the proceeds of the sale. A dispute arose over the entitlement to the other half of the proceeds, an amount of $169,774.01. The appellant claimed that he was entitled to this share of the proceeds because he was a registered 50 percent owner of the Property. For her part, the respondent counterclaimed that the transfer of title in the Property to the appellant was invalid because of duress or undue influence. In the alternative, she argued that since the transfer to the appellant was gratuitous, he held his interest in the Property for her benefit, based on the doctrine of resulting trust.

Trial Judge’s Decision

[5] After a three-day trial, the trial judge dismissed the appellant’s claim and concluded that his half interest in the Property was held in trust for the respondent’s benefit. She granted the respondent’s counterclaim and ordered that the other half of the proceeds of sale be released to her immediately. The trial judge found it unnecessary to deal with the respondent’s argument that the transfer was invalid because of undue influence or duress.

[6] In very detailed and comprehensive reasons, the trial judge found that the appellant controlled the activities of the respondent and exploited her financially, living in the Property without contributing anything to expenses. She described the appellant as a domineering and parasitic partner and specifically found that the appellant confiscated the respondent’s income from sex work until he moved out in 2009.

[7] The trial judge went on to find that the appellant made no contribution to the initial purchase of the Property in July 2005 and that the respondent’s transfer of 50 percent of her ownership interest to the appellant gave rise to a presumptive resulting trust. The trial judge held that the presumption had not been rebutted since the appellant led no evidence that the respondent intended to transfer the half interest to him as a gift.

[8] Although the appellant did not advance a constructive trust claim, the trial judge also considered whether he was entitled to half or some other share of the proceeds because of his contributions to renovations to the Property. She concluded that there was no basis to impose a constructive trust in the appellant’s favour, because his work on the Property did not unjustly enrich the respondent.

Issues on Appeal

[9] On appeal, the appellant argues that the trial judge erred by:

(i) misapprehending the principles of resulting trust and the presumption of advancement;

(ii) accepting the respondent’s evidence, even though she found that the respondent had exaggerated during her testimony;

(iii) ignoring evidence that the appellant had contributed financially to the down payment for the Property;

(iv) ignoring evidence from a real estate lawyer who testified that one of the parties told him that the appellant and respondent had been cohabiting for more than three years before the purchase of the Property;

(v) ignoring the appellant’s financial contributions to the mortgage on the Property until he moved out in 2009; and

(vi) ignoring the evidence of the appellant and his father that they made numerous improvements to the Property.

Analysis

[10] We do not accept any of the appellant’s arguments. In our view, the appellant is inviting this court to retry the case by asking this court to revisit many of the careful factual findings made by the trial judge. Those findings of fact are owed deference, and we see no basis to interfere with them. Each of the appellant’s arguments can be dealt with briefly.

[11] First, the trial judge did not misapprehend the principles of resulting trust and the presumption of advancement. Her reasons carefully track the jurisprudence on the presumptions of resulting trust and advancement from the Supreme Court of Canada: Kerr v. Baranow, 2011 SCC 10, [2011] S.C.R. 269, at para. 20; Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 24. She concluded that the presumption of resulting trust applied to these unmarried parties because there was a gratuitous property conveyance between them. The trial judge also examined s. 14 of the Family Law Act, R.S.O. 1990, c.F.3, and held that the presumption of joint tenancy did not apply. The parties were never married nor were they spouses within the meaning of the Act. We have not been directed to any error in the trial judge’s review of the principles that would justify this court’s intervention.

[12] Second, although the trial judge found that the respondent had a tendency for hyperbole, she was perfectly entitled to prefer the respondent’s evidence over the evidence of the appellant. Nor did the trial judge’s finding mean that she was required to wholly reject the evidence of the respondent. A trial judge can believe some, none or all of a witness’s evidence. We see no error in her credibility assessment.

[13] Third, the trial judge did not ignore the appellant’s evidence that he had contributed to the down payment of the Property. She considered the appellant’s claim and expressly rejected it. In rejecting his evidence, the trial judge considered the testimony of both parties and the documentary evidence. She rejected the appellant’s contention that he used insurance benefits in connection with two separate motor vehicle accidents to contribute to the purchase. Indeed, the trial judge made very strong findings of credibility against the appellant and concluded that his evidence was riddled with internal contradictions, multiple inconsistencies, frequent implausibility and apparent fabrication. These findings were clearly open to her.

[14] Fourth, the trial judge did not ignore the evidence from the solicitor who handled the real estate transactions of the Property in 2005. The appellant led evidence from the solicitor to establish that he was in a common law relationship and cohabitating with the respondent since 2002. According to the solicitor, he was told that the parties had been living in a common law relationship for over three years before the purchase of the Property in 2005. The trial judge noted that the fact that the solicitor was told by one of the parties that they were common law spouses was an out-of-court hearsay statement, and not proof that they were indeed spouses. Instead, the trial judge rejected the appellant’s position that he was in a common law marriage with the respondent since 2002. She accepted the respondent’s testimony that the appellant misrepresented their status to the solicitor in order to avoid paying land transfer taxes. The solicitor confirmed in his evidence that taxes would have been imposed had the parties not been common law spouses.

[15] Fifth, the trial judge did not ignore the appellant’s evidence that he made financial contributions to the mortgage on the Property until he moved out in 2009. Again, the trial judge expressly rejected this evidence because she found the appellant had no employment income throughout the entire relationship and that the appellant lived solely from the earnings of the respondent.

[16] Finally, the trial judge did not ignore the evidence of the appellant and his father that they made numerous improvements to the Property. The trial judge considered this evidence in dealing with a possible constructive trust claim. The trial judge assessed the appellant’s claim that he did some exterior stone work, refinished a deck, replaced a closet door, put up walls in the basement and built a fireplace in the living room. The trial judge found that there was insufficient evidence to establish that this work enhanced the value of the Property and noted that all the work had to be redone after the appellant moved out in 2009. Her conclusion that there was no basis to find that the respondent was enriched by the appellant’s work on the Property was fully supported by the evidence.

Disposition

[17] The appeal is dismissed. The parties may make brief submissions of two to three pages on costs within ten days of the release of this decision.

“S.E. Pepall J.A.”

“M.L. Benotto J.A.”

“S. Coroza J.A.”