COURT FILE NO.: FC-10-198-00
DATE: 20120615
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Victorija Topper Applicant – and – Alfred Robert Topper and Frank Douglas Topper Respondents
Self-represented
Barry Dryland, for the Respondents
HEARD: November 14-17, November 21-25, December 5-9, December 19-20, 2011.
REASONS FOR DECISION
WILDMAN, J.
THE ISSUES
[ 1 ] Viktorija [1] (then Geidels) moved in with Bob Topper and helped him fix up their home. Partway into their relationship, she was surprised to learn that Bob’s brother, Doug, was really the registered owner of the property.
[ 2 ] Viktorija and Bob separated. She wants compensation for her work on the property. She does not really want money, as she would prefer I declare that she owns part of the house and let her move back into it.
[ 3 ] Viktorija also wants spousal support from Bob.
OVERVIEW
[ 4 ] The property is question is 60 Bridgeview Lane in Huntsville. It is owned by Frank Douglas Topper (Doug). He says that he bought the home in 1998 for his brother, Alfred Robert Topper (Bob), to live in. Doug and Bob did a considerable amount of work together after the purchase, converting the small rundown cabin that was on the property into a four bedroom home. Bob has always paid Doug “rent” each month to live there.
[ 5 ] In 2003, Viktorija and her son, Artur, immigrated to Canada from Latvia. They settled in Montreal, where Viktorija got a job working with special needs children. Viktorija is extremely intelligent. She describes herself as a “scientist in the fields of administration of psychological, education, and social rehabilitation,” as well as an advocate for women’s and children’s rights. She is well educated, and has completed all the requirements for her doctorate in Latvia, although she left the country before her degree was conferred. However, she had limited English skills and contacts in this country when she arrived in 2003, so her job prospects were restricted.
[ 6 ] After Viktorija moved to Quebec, she and Bob met over the internet. When she first visited 60 Bridgeview Lane, Viktorija was impressed to see the work that Bob was doing on the house because she says, in Latvia, a man who can build a house is a big deal. She left Montreal and moved in with Bob at 60 Bridgeview Lane on April 14, 2004. Bob and Viktorija married on December 24, 2005.
[ 7 ] When Viktorija moved in with Bob, she thought he owned this house. In December of 2004, at a meeting with Bob’s Ontario Disability Support Plan (ODSP) worker, she learned for the first time that Doug was the registered owner. She says that Bob and Doug told her this was because Bob was not allowed to own property, while he was receiving ODSP. She says that she was told the title to the property would be transferred to Bob by the time he was 60.
[ 8 ] The real arrangement between the brothers was that Bob could buy Doug out at any time by repaying Doug for the money he had put into the property. Bob had done calculations, and figured he would be in a position to do this by the time he was 60. In the meantime, Bob continued to live at the property and paid Doug $530 each month, which was the exact amount needed to cover the mortgage payments, property taxes and Doug’s life insurance on the mortgage.
[ 9 ] Based on her misunderstanding about whose house this was, Viktorija worked on it with Bob. She put hours of labour and all of her financial resources, including a $25,000 inheritance from her mother, into the house and the relationship. The couple did not keep track of their finances separately. Their money was pooled to cover living expenses, personal purchases and all the property improvements.
[ 10 ] The marriage appears to have been quite happy for a while. In the first few years they were together, Bob and Viktorija worked hard to turn 60 Bridgeview into a very nice home. Viktorija helped Bob to complete the addition that he and Doug had started. Viktorija decorated the house. She painstakingly handpainted murals on the walls, and did a considerable amount of landscaping to improve the exterior of the property. At one time, at least, the gardens and the home were quite lovely.
[ 11 ] However, by 2010, both the relationship and the property had gone downhill. For reasons that are not completely clear, the property was in a terrible state of disrepair.
[ 12 ] One possible contributor to the decline of the property was a serious flood that occurred in January of 2008, which forced the family to be evacuated from the home. They had very little money to get back on their feet and repair the damage, other than a $1000 collection from the congregation at the local church where Viktorija was the organist. While neither Bob nor Viktorija point to this as the root of all their problems, a local minister and frequent visitor to the property, Reverend Gail Marie Henderson, felt this was the beginning of the end. Following the flood, she observed a noticeable deterioration in the property, and neither Bob nor Viktorija seemed inclined to pull things together again.
[ 13 ] Bob says the reason for the downward spiral was Viktorija’s withdrawal from him and her increasing focus on various other projects. He says, by 2010, she was constantly on the computer. Initially, she was working on rescuing her youngest son, Edgars, from an orphanage in Latvia. Once she was successful in getting Edgars to Huntsville to live with her and Bob, she began to focus on trying to help other children. She became very involved in the issue of international child trafficking, to the point where Bob describes her as obsessed, constantly online, and secretly spending a fortune from their meagre income on international phone cards.
[ 14 ] Viktorija says it was Bob who withdrew emotionally from the marriage and caused things to fall apart. He had always been a “collector” of used things. By 2010, the accumulation of old vehicles, parts and various other items had taken over the entire outside of the property and was inching inside. Bob was having increasing, severe pain from his back disability, and was less able to do the physical upkeep and improvements that the property needed. He began to spend more and more time working on “projects” in the garage. Sadly, he resumed drinking after several years of abstinence. The combination of drinking and prescription painkillers was not a good one. She and Edgars would sometimes have to carry Bob inside at night, when they found him passed out on the floor of the garage.
[ 15 ] Although it seems important to Bob and Viktorija for me to establish blame for the end of their marriage, I decline to do so. I suspect there is no one culprit and it is irrelevant to the legal issues before me. The unhappy consequence of the various problems is that Bob and Viktorija were no longer getting along very well and neither of them was looking after the property. It fell into a state of absolute chaos, inside and out.
[ 16 ] There were financial pressures as well. One fateful night in April of 2010, there was a call that the hydro was going to be cut off, as Bob had not paid the bill. Viktorija gave him cash to pay the bill from her modest earnings but the couple continued to argue. Bob had been drinking. Although the actual sequence of events is unclear, ultimately Bob threatened Viktorija’s teenage son, Edgars, with a knife. Edgars fled the house.
[ 17 ] The next day Viktorija and Edgars went to the police. She says she told them, “My husband is a good man, but we need help.” When the police heard what had happened with the knife, Bob was arrested and removed from the home. That set into motion the unhappy series of events that culminated in this trial. Bob and Viktorija have not lived together since that day, April 30, 2010.
[ 18 ] Doug bailed his brother out of jail and took him into his own home, as it was a condition of his release that Bob reside with Doug. Then the war with Viktorija began.
[ 19 ] Doug’s wife, Marlene, works for a bank. Shortly after Bob was arrested, either he, or Marlene on his instructions, removed all of the money from Viktorija and Bob’s joint account. Bob did not pay the hydro bill with the money that Viktorija had given him. He kept the money and allowed the hydro to be cut off.
[ 20 ] Viktorija and Edgars, who was trying to complete his last few months of high school, were left in the home with no funds, no hydro and no resources. Bob continued to pay the same amount of monthly rent he had always paid to Doug, but Doug decided to suddenly characterize the $530 per month as a payment for Bob living in his home, rather than rent for 60 Bridgeview.
[ 21 ] Doug served Viktorija with an eviction notice, claiming he had received no rent for May or June. He also claimed a total of $791 per month for outstanding rent, even though the rent had been $530 per month for years. Doug said that, rather than charge Bob more rent when Viktorija moved in, he kept the rent at $530 in exchange for Bob looking after maintenance and repairs. He calculated that as a $261 benefit, as that is the amount that Bob’s ODSP housing allowance increased after Viktorija moved in with him. So, Viktorija received an eviction notice that she had to vacate the property unless she paid the $791 per month rent for the two months that Doug claimed was outstanding.
[ 22 ] Doug also called Reverend Henderson a few days after he served the eviction notice. He told her to let Viktorija know that, if she vacated the premises by June 28, he would have Bob sign over ownership of Viktorija’s van to her. This was the vehicle that Viktorija used for transportation but it was registered in Bob’s name.
[ 23 ] Viktorija and Edgars had nowhere to go. She was taken in at a women’s shelter but Edgars was not allowed to come with her, probably because he was a male over their accepted age limit. From May to July, she slept at the shelter most nights but was at 60 Bridgeview Lane almost daily to try to remove her things and get organized for what she now understood was likely to be a nasty battle with Bob and Doug. At one point, she says she tried to write what she felt was a “very nice letter” to Bob but received no response. Even during the trial, she was still prepared to move back in with Bob and try to fix up the property together. She said she would look after him, given his increasing disability, and would never kick him out.
[ 24 ] From the moment of his arrest, if not before, Bob had no interest in reconciliation or even talking to Viktorija. Despite Viktorija’s overtures, the fight was on.
[ 25 ] Ultimately, without obtaining any court order, Bob and Doug talked to a neighbour and learned that he had not seen Viktorija at the property for a few days, so they considered it abandoned. Around July 9, 2010, Bob moved back in, changed the locks and restored the hydro. When Viktorija arrived at the property a day or two late to continue her work clearing her things out, she was not allowed back in. The police were called but would not assist. She says the brothers put her out of her home just like an unwelcome stray cat.
[ 26 ] At this point, the interior and exterior of the house were a disaster, and all blame the others for the state of disrepair. Even though Bob has been living there for almost two years, he has not cleaned up or fixed anything. The appraisers who visited the property both commented on how extreme the clutter was, both inside and out. They had trouble making it from one room to another, and the “junkyard” aura has had a huge impact on its value. The state of the property is so bad that a neighbour is thinking of taking legal action.
[ 27 ] Viktorija says that she is entitled to an interest in 60 Bridgeview Lane by virtue of her contributions. She believes if she was allowed to return to the property, she could fix it up again and it would be worth far more than its current appraised value. Although she wants an interest in 60 Bridgeview Lane, rather than money, she puts a value on her contributions that is in the hundreds of thousands, which is well in excess of the total current appraised value of the property.
[ 28 ] Doug says this is his property. He is the registered owner. He says that Bob has only ever been a tenant and neither Bob nor Viktorija has any right to 60 Bridgeview Lane. He says he never asked Viktorija to do any work, and she did not check with him before investing her money or labour into it. He also says that the property is in such a horrible state that it is worth less than when Viktorija moved in.
[ 29 ] Bob agrees with Doug. Although, at one time, he had dreams of buying this property from Doug, he is now so far in debt that it is unrealistic that he will ever be able to get the money together to complete the purchase. He says that this is Doug’s property and Viktorija has destroyed what he and his brother worked so hard to build. In his view, she is nothing but trouble and is entitled to nothing. He would just like her out of his and his brother’s life.
[ 30 ] Who is right?
[Text continues exactly as provided in the source, including all numbered paragraphs, schedules, and footnotes, without alteration.]
Released: June 15, 2012
__________________________ WILDMAN J.