Ontario Superior Court of Justice
COURT FILE NO.: 07-CV-338587 PD2
DATE: 20120314
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LOUISA OWUSU Plaintiff – and – KWAKU BOACHIE and GIDA GYAA FRIMPONG Defendant
Dominic Saverino , for the Plaintiff
G. Peter Abraham , for the Defendant
HEARD: February 21, 22 & 23, 2012
lederer j. :
[ 1 ] At the outset of this trial, a request was made that the action against the defendant, Vida Gyaa Frimpong, be dismissed, on consent, without costs. The order was made.
Background
[ 2 ] The plaintiff and the defendant met in Ghana. The plaintiff was seventeen-years-old. The defendant was twenty-two. They lost contact. Some years later, she learned he was in England. She arranged to bring him to Canada using a passport she borrowed from a friend. He went to live with her and her two daughters in a subsidized apartment. They married. The defendant went to work delivering newspapers and cleaning airplanes. The plaintiff completed the nursing program at George Brown College. She began to work as a nurse.
[ 3 ] The plaintiff had a bank account. It was in her name, but the defendant knew the P.I.N. and had complete access to it. It functioned as a joint account. The money they made went into the account and all their costs and expenses were paid from it. The defendant said that he relied on the plaintiff to keep track of their finances.
Purchase of the Home
[ 4 ] Once the plaintiff began to work, they no longer qualified for subsidized housing and began to look for a home to purchase. They found one that they wished to buy. The difficulty was they were unable, on their own, to obtain the necessary financing. The plaintiff had a very poor credit rating. The defendant was not legally in the country and, in any event, had not been here long enough to establish a credit rating of his own. They approached a woman they had met at church. This was Vida Gyaa Frimpong. She agreed to have the house purchased in her name and to take out a mortgage. It was understood, on the one hand, that the plaintiff and the defendant were responsible to make the mortgage payments and, on the other, that Vida Gyaa Frimpong would hold the house in trust for them. There was no suggestion that Vida Gyaa Frimpong requested or expected to be compensated in any way.
[ 5 ] The plaintiff and the defendant disagreed on the amount of the down payment that was required. The plaintiff said it was $40,000, the defendant said $60,000. Nothing turns on this difference. According to the plaintiff, the money for this payment came from their “joint” bank account, the one that was in her name. At the time the payment was made, there was no understanding that some part of the payment came from her and another part from him. This was a payment they made together from their common resources. In evidence at the trial, the defendant suggested that, because he had been working, more, if not most, of the money came from him. On the other hand, he acknowledged that, in order to gather the total amount needed, it was necessary to sell a car that he had arranged to purchase for the use of the plaintiff.
[ 6 ] The plaintiff testified that they purchased the house in 2003.The defendant said they moved into the house during late November, 2002. It is not likely that they are both right, but this is not a disagreement that has any bearing on the outcome of the case.
[ 7 ] At first, the mortgage payments were made from the “joint account”. The money was placed in the account of Vida Gyaa Frimpong who, as the registered owner and mortgagor, delivered the money to the mortgagee. At some point, problems appeared in the marriage. There were accusations as to the cause and substance of these difficulties that pointed in both directions. For the purposes of this action, it does not matter what the parties said, and who, if either, was right. What is important is that it caused a change in the way the payments were made. By this time, the defendant had a bank account of his own. The plaintiff and the defendant agreed that they would each contribute independently to the mortgage.
Work on the Basement
[ 8 ] At the time the home was purchased, the basement was not finished. Workers were hired to construct two bedrooms, a kitchen and a bathroom. The defendant said this was done to allow this part of the house to be rented and the income used to alleviate the cost of the mortgage. The plaintiff agreed that, while there were tenants in the basement, the money they paid as rent ($800 per month) was used to assist in making the mortgage payment. At that time, the payments were $2,000 per month and the plaintiff and the defendant agreed that they would each contribute $600 per month to complete the required payment.
[ 9 ] One of the men involved in doing work was called to give evidence at the trial. He made it clear that, while he was initially contacted by the defendant, he did the work for both the defendant and the plaintiff. The witness testified that he “framed” the two bedrooms and did work on the kitchen and the bathroom. He said he was to be paid $5,000 but that, in the end, he received only $4,000. The defendant said he paid the full amount of $5,000. Others were involved. There was a painter, a person who laid ceramic tile and a plumber. They were paid separately. The witness did not know how much they each received. Nor, it would seem, does anybody else. The plaintiff said that the defendant paid for the renovations and that she contributed by paying the defendant half, about $2,500 in cash. This suggests that she did not contribute to whatever was paid to the painter, plumber or ceramic tile person. The evidence of the defendant was unclear. At one point, he said that this work cost $20,000. This included payments for the work of the witness and the painter as well as for material. At other times, he referred to a company, DMTT Contracting Services Inc. (“DMTT”), as having installed the tiles and done work on the kitchen, for which it was paid, and to the material having been purchased by using the credit card of a friend. It was not paid off until the house was sold.
Work on the House in Preparation for its Sale
[10] The relationship of the plaintiff and the defendant continued to deteriorate. The defendant concluded that the house should be sold. The plaintiff was reluctant. The defendant promised that they would purchase a new home. The plaintiff agreed to the sale. She moved to an apartment. In preparation for the house being sold, more work was required. The principal of DMTT appeared as a witness. He identified an invoice that he said reflected some of the work the he did at the house. It was for $16,165.00. This invoice refers to work related to preparing the house for sale. The witness was referred to an estimate dated the same day as the invoice proposing work valued at $18,400 plus $1,104 (representing a tax of 6%) totalling $19,504.00. At first, the witness testified that the estimate was in respect of what was done to prepare the house to be sold. During cross-examination, it became apparent that the estimate and the invoice did not refer to the same work. In fact, the work outlined on the estimate bears the title “Finish Basement” and describes aspects of that improvement to the home.
[11] Once the work was completed, the house was sold. The parties agreed that the cheque representing the funds delivered on closing was $124, 524.09. The money was delivered to Vida Gyaa Frimpong, as the registered owner of the property. She refused to deliver any part of it to the plaintiff or the defendant until any outstanding debts associated with their ownership of the home had been paid.
[12] The defendant subtracted the $18,400, the $13,000 and the $4,000 from the $124,524.09 delivered on closing to arrive at the $87,000 to $90,000 he says he received from Vida Gyaa Frimpong.
[13] I find, on a balance of probabilities, that the work outlined on the invoice was completed by DMTT and that it was paid for by the defendant, the amount shown being $16,165.
[14] Accordingly, for the purposes of this decision, I find that the defendant should have received ($124,524.09 minus $16,165.00) $108,359.09.
The plaintiff’s interest in the home
[15] The plaintiff has received nothing in respect of her interest in the home. What was that interest? What, if anything, should she have received?
[16] If this were the end of the matter, judgment would be ordered in favour of the plaintiff in the amount of ($108,359.09 divided by 2) $54,179.54.
The property in Ghana
[17] Counsel for the defendant submitted that this should not be the end. After the sale of the house, the parties reconciled. They own property in Ghana. The defendant said that they agreed that work should be done to construct a home on that property using $60,000 of the sale proceeds.
[18] There was no documentation describing the property or confirming the ownership, and no invoices or receipts confirming the work.
[19] The evidence relied on to prove the agreement and the expenditure in Ghana is entirely unsatisfactory. I am not satisfied that it is more probable than not that this occurred as testified to by the defendant.
[20] I award the plaintiff judgment against the defendant in the amount of $54,179.54, plus pre-judgment and post-judgment interest, both in accordance with the Courts of Justice Act , R.S.O. 1990, c. C.43.
[21] I wish to make one further observation. This matter should never have gone to trial. Given the evidence they proposed to call, this would almost certainly devolve to an issue of credibility.
COSTS
[22] No submissions were made as to costs. If the parties are unable to agree, I will consider written submissions on the following terms:
On behalf of the plaintiff, no later than fifteen days after the release of these reasons. Such submissions are to be no longer than four pages, double- spaced, exclusive of any Bill of Costs or Costs Outline and case law that may be provided.
On behalf of the defendant, no later than ten days thereafter. Such submissions are to be no longer than four pages, double-spaced, exclusive of any Bill of Costs or Costs Outline and case law that may be provided.
On behalf of the plaintiff, in reply, no later than five days thereafter. Such submissions are to be no longer than two pages, double-spaced.
LEDERER J.
Released: 20120314
COURT FILE NO.: 07-CV-338587 PD2
DATE: 20120314
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
LOUISA OWUSU Plaintiff – and – KWAKU BOACHIE and GIDA GYAA FRIMPONG Defendant
JUDGMENT
LEDERER J.
Released: 20120314