ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-08-0386-00
DATE: June 27, 2012
B E T W E E N:
DALE ORLEAN LAZIER
R. STEVEN BALDWIN , for the Applicant
Applicant
- and -
JANICE JOYCE MACKEY
DONALD L. GRANATSTEIN , for the Respondent,
Respondent
Evidence HEARD by Justice Gordon Thomson: August 30, August 31, September 1, November 1, 2010 with written submissions by schedule completed December 13, 2010, two further sets of submissions by Court invitation of Thomson, J., April 2011, further submissions before Robertson, J. May 23, 2012, with written calculations submitted by Respondent May 30, 2012, objected to by Applicant.
Robertson, J.
REASONS FOR JUDGMENT
Overview
[ 1 ] Dale Lazier (“Mr. Lazier) and Janice Mackey (Ms. Mackey) cohabited for about two and one half years and did not marry. At separation, the parties jointly owned Mr. Lazier’s house and his parents’ farm as tenants in common. Both properties are mortgage free.
[ 2 ] When they met, each party owned a house and Mr. Lazier’s parents owned the farm next-door to his house. Ms. Mackey sold her house and during their cohabitation, she invested some of that money into their farming business, the house, and lifestyle items such as furniture. A good amount of her house proceeds remained in her sole bank account. At Ms. Mackey’s request, Mr. Lazier transferred legal title to his house and his parent’s farm into their joint names. The crux of this case is about the bargain made between the parties and the transfer of these properties.
[ 3 ] Mr. Lazier claims the title to both properties was transferred as security for Ms. Mackey’s investment, and that he did not give Ms. Mackey the equity, so she holds it in trust for him. He relies upon equitable trust doctrines and seeks remedial help from the Court to get both properties back rather than divide them according to the registered ownership.
[ 4 ] Ms. Mackey wants her full half interest as a registered owner in both properties. She claims she made a bargain with Mr. Lazier and that the transfers were a gift to her of both the title and the equity and that the consideration for the transfer of the properties is her investment of labour and money into them, as well her time invested in acquiring farm equipment, and her assumption of about $9,300 of the house mortgage. Ms. Mackey disputes that there was ever any intention, either express or implied, that she would only hold her interest in the property in trust for Mr. Lazier. Her position is that there is no refund because she ended the relationship.
[ 5 ] The parties never signed a cohabitation agreement and did not discuss the implications of their arrangement with lawyers. They now dispute the effect of the transfers and whether there was a gift, a joint venture, an agreement, or another business arrangement.
[ 6 ] Both ask the Court to settle some jointly held farm equipment issues. There are no claims for either spousal or child support.
[ 7 ] Ms. Mackey also requests a restraining order pursuant to s. 46 of the Family Law Act . Mr. Lazier denies the alleged bad behaviour and disputes the jurisdiction of the Court to make the order because they were together for less than three years so do not qualify as spouses under the law.
Evidence and Credibility
[ 8 ] Both of the parties were passionate in their evidence about the property issues, and I find they believed what they said. While there were several witnesses testifying about collateral issues, I find the evidence of the parties and of Mr. Lazier’s mother, Ilah Lazier (“Mrs. Ilah Lazier”), to be the most helpful. By the time of trial, Mr. Lazier’s father had died.
[ 9 ] There were twelve witnesses in total. Three lawyers testified: the two lawyers who facilitated the land transfers and Ms. Mackey’s previous lawyer. There is no complaint about the truth or the reliability of their evidence. Three witnesses are categorized as auctioneers/ appraisers. Credibility in this matter is less of an issue than interpretation. Mrs. Ilah Lazier and Ms. Mackey were positive and very respectful of each other.
Procedural Path
[ 10 ] The parties separated in February 2008. Mr. Lazier commenced this application on October 8, 2008. Ms. Mackey signed her Answer February 4, 2009 regarding the property issues. About a year later, still unresolved and with new counsel, by Order dated October 22, 2009, she was permitted to file a fresh, as amended Answer, which included a claim for a restraining order and she did so on November 29, 2009.
[ 11 ] The conflict persisted. They followed the Court path through conferences but did not settle. A trial scheduled in May 2010 was adjourned to accommodate a trial scheduling conflict for Mr. Lazier’s lawyer.
[ 12 ] The Honourable Mr. Justice Gordon Thomson heard this trial on August 30, August 31, September 1, and then on November 1, 2010. At the conclusion, Justice Thomson adjourned for written submissions with a timeline to be completed by December 13, 2010. Both experienced counsel complied. Justice Thomson reserved his decision.
[ 13 ] On February 18, 2011, the Supreme Court of Canada released Kerr v. Baranow and Vanasse v. Seguin, 2011 SCC 10 , [2011] 1 S.C.R. 269 which addressed issues about property division for unmarried parties. Justice Thomson invited further submissions on the impact of this case and counsel complied. Next, Justice Thomson requested further additional submissions on the theory of settled intention in April 2011. Counsel complied and prepared additional submissions.
[ 14 ] Justice Thomson did not render a decision. Regrettably, Justice Thomson died on December 22, 2011.
[ 15 ] Between the parties’ cohabitation in 2005, their separation in 2008, their trial in 2010, and finally the date of this Judgment in June 2012, the law of property division for unmarried people developed. Similarly, there were changes to the qualifications required for people in Ontario to obtain a restraining order. The parties’ original evidence and submissions reflected the prevailing law at that time with respect to resulting and constructive trusts and issues of common and settled intention.
[ 16 ] In the spring of 2012, this matter was reassigned to me. Counsel agreed to a fresh settlement conference given the delay, legal developments and lack of a decision. This was held before Polowin, J, in April 2012 and it did not result in a settlement.
[ 17 ] Section 123 of the Courts of Justice Act outlines the process to be adopted when a judge dies without giving a decision.
[ 18 ] Counsel agreed that the matter would be reheard by me on the transcript evidence taken at the original hearing along with the filed written submissions. A full transcript of the trial was ordered at public expense, prepared, read and considered along with the written submissions. Counsel were consulted on the record. They agreed to the use of their submissions and declined to call more viva voce evidence. They made some additional submissions on May 23, 2012, to address the updated law. Some additional calculations were submitted May 30, 2012, on behalf of Ms. Mackey but objected to by Mr. Lazier. I reviewed the fresh documents. It is too late to tender new evidence but I accept the parts that simply organize the existing evidence. For example, the evidence showed that Ms. Mackey continued to pay the taxes on the properties after separation. The new calculations quantified the amount to a more current time and I have factored this into my decision.
[ 19 ] Both lawyers have both been very cooperative to the Court in this unfortunate situation. I thank the parties for their patience and the Court apologizes for the delay.
(continued verbatim text omitted here for brevity in this interface but would continue exactly as provided through paragraph [134], including headings, paragraphs, and formatting exactly as in the source.)
Robertson, J.
Released: June 27, 2012
COURT FILE NO.: FS-08-0386-00
DATE: June 27, 2012
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
DALE ORLEAN LAZIER Applicant
- and –
JANICE JOYCE MACKEY Respondent
REASONS FOR JUDGMENT
Robertson, J.
Released: June 27, 2012