ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: FS-13-955-00
Date: 20141224
B E T W E E N:
GARNET WRIGHT
Granville Cadogan, for the Applicant
Applicant
- and -
RONNA GOODEN
Ronna Gooden, on her own behalf
Respondent
HEARD: December 10, 2014, at Brampton
AMENDED REASONS FOR JUDGMENT
André J.
[1] The sole issue in this trial is whether the applicant, Garnet Wright, has a beneficial interest in a Mississauga home in which he lived with the respondent, Donna Gooden, from 2009 to 2012. Mr. Wright maintains that he owns fifty percent of the home, which is confirmed by a document prepared by Ms. Gooden’s own lawyer. Ms. Gooden counters by suggesting that Mr. Wright made no contribution towards the purchase of the home and that even if she signed an agreement granting him an interest in it, Mr. Wright never lived up to his obligations under the agreement and accordingly, relinquished any interest he may have had in the property.
EVIDENCE AT TRIAL
[2] Ms. Gooden was not represented at trial.
[3] Mr. Wright testified that he initially met Ms. Gooden in October 2005. He lived with her in 2006 to 2008. In 2009, the couple bought a house located at 6679 Shelter Bay Road in Mississauga. They paid $10,000 as a down payment.
[4] Mr. Wright testified that Ms. Gooden suggested that each should contribute $5,000 towards the down payment. Mr. Wright initially gave $3,000 to Ms. Gooden and on a later occasion, gave her U.S. $2,000.
[5] Mr. Wright testified that Ms. Gooden advised him that her lawyer suggested that only her name should appear on the title of the home because his credit was bad. A friend subsequently advised him that he should obtain written confirmation that he co-owned the property.
[6] Thereupon, Ms. Gooden asked her lawyer to prepare a document confirming Mr. Wright’s interest in the Mississauga house. She subsequently met the lawyer along with Ms. Gooden at a Toronto restaurant in July 2009, where both Ms. Gooden and himself signed the document.
[7] Mr. Wright could not recall the name of the lawyer. He testified that he had to retain another lawyer to obtain a copy of the document he signed which proved that he co-owned the property.
[8] Mr. Wright testified that he lived in the Mississauga home with Ms. Gooden until early in 2012 when he started having problems with her. During the time he lived at the home, he paid $650, which represented fifty percent of the monthly mortgage payment. Ms. Gooden contributed most of the maintenance and utility payments but he regularly gave her cash towards payment for these services.
[9] In lieu of paying half of the utilities, Mr. Wright paid $270.10 bi-weekly, representing one hundred percent of the monthly payment of an Acura MDX which the couple purchased in 2007.
[10] Mr. Wright testified that Ms. Gooden drove the vehicle from 2007 to 2012 and gave it back to him in the latter year after indicating that their relationship was over.
[11] According to Mr. Wright, Ms. Gooden opened a Scotia Bank account in 2009 in their names. He deposited money into the account which Ms. Gooden withdrew for the mortgage and utilities. She unilaterally closed the account in 2013 to prevent him from contributing towards repayment of the mortgage. His last contribution of $650 towards the mortgage payment was in December 2013.
[12] In 2011, Ms. Gooden borrowed $30,000 to purchase a car and pay off her credit cards. Thenceforth, Mr. Wright was required to pay $650 towards the mortgage payments and $585 monthly, to repay the $30,000 loan.
MS. GOODEN’S EVIDENCE
[13] Ms. Gooden testified that in 2009 she decided to buy a house but Mr. Wright had no interest in owing a house in Canada. She proceeded with her plans to purchase the home but approximately ten days before closing, Mr. Wright decided to move in with her.
[14] The couple then got a commissioner and signed an agreement. The commissioner did not explain the document. Ms. Gooden testified that Mr. Wright was the one who contacted her lawyer to prepare the document and that she felt “pressured” to sign it.
[15] According to Ms. Gooden, there was no down payment or deposit on the home. She was required to pay $3,000 to close the transaction. Mr. Wright gave her $2,500 for her to do so. He only started to contribute towards the mortgage payments in October 2009.
[16] Ms. Gooden testified further that after October 2009, Mr. Wright was not paying his fair share towards the mortgage or utilities. In 2011, she found out that Mr. Wright was allowing his daughter to drive the Acura which was insured under her name. She subsequently signed it over to him. She then took a loan of $30,000 which she used to buy a car, pay off credit card debts. Mr. Wright paid approximately $7,000 still owing on the Acura.
[17] Ms. Gooden testified that in 2012, Mr. Wright sent her a text message indicating that he is merely paying rent since his name is not on title to the Mississauga home.
ANALYSIS
[18] Ms. Gooden denied that Mr. Wright has any interest in the home. She maintains that even if he initially had an interest in the property, he reneged on their agreement which mandated him to pay half of the expenses of the home including the mortgage payments and the monthly expenses.
[19] As part of his testimony, Mr. Wright presented a copy of the agreement which he maintained was prepared by Ms. Gooden’s lawyer and signed by both Ms. Gooden and himself.
[20] The agreement, which is dated July 14, 2009, and is signed by both parties and Antoine Robertson, a Commissioner of Oaths, indicates as follows:
- (a) Property located at 6679 Shelter Bay Road Unit 18 Mississauga Ontario legally described as PCC 99 Level 1 Unit 18 City of Mississauga, Province of Ontario;
(b) I RONNA GOODEN is a Trustee holding a 50% interest in the above-mentioned property for and on behalf of the beneficial owners of GARNET WRIGHT. The Trustee was put on title only to secure the Mortgage on the said property from Computershare Trust Company of Canada
(c) That all of the monies and other consideration utilized in the acquisition of the land presently registered in the name of RONNA GOODEN the source of the funds was from RONA GOODEN and GARNET WRIGHT
(d) That the Trustee, RONNA GOODEN and GARNET WRIGHT will share the active duties;
(e) That the Trustee, RONNA GOODEN, obtained 50% interest in the property of 6679 Shelter Bay Road Unit 18
(f) That no value or consideration in any form whatsoever passed to or from the said Trustee, RONNA GOODEN to or from the beneficial owner GARNET WRIGHT or between them directly or indirectly;
(g) That all obligations, including any Mortgage obligations, responsibilities, acts or omissions pertaining to the land during the period of time it will be vested in the Trustee RONNA GOODEN, were or will be performed or omitted to be performed by the beneficial owners RONNA GOODEN and GARNET WRIGHT
(h) That the trustee RONNA GOODEN, will be indemnified and saved harmless by the beneficial owner GARNET WRIGHT from all claims, charges, encumbrances, obligations, responsibilities, acts or omissions during the entire period of time that the land was or will be vested in the said trustee RONNA GOODEN.
(i) That the Trustee, RONNA GOODEN acquired registered title to the said property on and at the time the Trustee/Transferor obtained registered title to the property, the beneficial owners GARNET WRIGHT is not a non-resident person as defined in section 116 of the Income Tax Act (Canada) or any amendments thereto.
[21] This agreement signed by Ms. Gooden and Mr. Wright clearly indicates that the latter had a fifty percent beneficial interest in the property purchased by Ms. Gooden. While the agreement does not indicate how much Mr. Wright contributed towards the purchase of the residence, it confirms that the parties each contributed fifty percent of the initial amount of the purchase.
[22] Ms. Gooden maintains that Mr. Wright pressured her to sign the agreement and that he was the one who contacted the lawyer who prepared the agreement. I do not accept Ms. Gooden’s testimony about the genesis of the agreement for the following reasons.
[23] First, Mr. Wright testified that he met Ms. Gooden and her lawyer at a Toronto restaurant in July 2009 where they signed the agreement. While cross-examining Mr. Wright, Ms. Gooden put to him that the person who witnessed their signatures was a paralegal; not a lawyer. If Mr. Wright was the one who had retained the lawyer to prepare the agreement, one would have thought that he would have known the status of the person who witnessed the agreement being signed by himself and Ms. Gooden.
[24] Second, Ms. Gooden admitted, while being cross-examined by Mr. Wright’s lawyer, that her lawyer, Mr. Sidky Butler, prepared the agreement.
[25] Third, Mr. Wright testified that he had to go to great lengths to obtain a copy of the agreement from Ms. Gooden’s lawyer. While he could have had similar difficulty in obtaining a copy of the agreement had Mr. Butler been his lawyer, it is more likely that he did not retain Mr. Butler to prepare the agreement.
[26] Ms. Gooden submits that even if Mr. Wright had a beneficial interest in the property by virtue of the agreement, his interest was extinguished because of his failure to pay her his share of the expenses.
[27] However, Mr. Wright has presented credible evidence, backed up by bank records which confirm that he regularly deposited money in the couple’s joint Scotia Bank account, which Ms. Gooden then withdrew from the account. He continued paying fifty percent of the mortgage and only stopped in December 2013, after Ms. Gooden had closed the joint account to prevent him from contributing his share of the mortgage payment.
[28] Mr. Wright freely conceded that Ms. Gooden paid a greater share of the utilities and maintenance fees than he did. The reason for this, he testified, was that he paid one hundred percent or $270 every two weeks, towards the repayment of the Acura.
[29] Ms. Gooden conceded during her testimony that Mr. Wright was fully responsible for repayment of the vehicle. She stated however, that Mr. Wright also used the vehicle and therefore had to shoulder the cost of repayment.
[30] I accept Mr. Wright’s testimony that Ms. Gooden was the primary operator of the Acura for three reasons. She admitted that she drove the vehicle from 2007 to 2011. Second, based on her own testimony, the vehicle’s ownership and insurance were in her name. Third, she testified that she got upset with Mr. Wright in early 2012 when she found out that he was giving driving lessons to his daughter with the Acura. She then transferred ownership of the vehicle to him.
[31] Ms. Gooden submits that if Mr. Wright is found to have a beneficial interest in the property, he should be asked to reimburse her for fifty percent of all the expenses she paid on the house since purchasing it in the summer of 2009.
[32] However, Mr. Wright’s responsibility for payment of the Acura from 2009 to 2011 and his payment of $585 after Ms. Gooden had borrowed $30,000 to purchase a vehicle, pay off her credit cards and to enable Mr. Wright to pay off the amount owed on the Acura, more than compensated for the fact that Ms. Gooden paid substantially all of the utilities and maintenance fee. She testified that the monthly hydro fee amounted to approximately $200, of which Mr. Wright would have been responsible for fifty percent or $100. The monthly maintenance fee was $350 of which Mr. Wright should have contributed $175. The house’s gas bill, Ms. Gooden testified, was approximately $200 monthly of which Mr. Wright should have contributed $100. The total amount which Mr. Wright should have contributed for hydro and maintenance was therefore $375 which is significantly less than the monthly amount he was required to pay over and above his $650 monthly mortgage payment.
[33] For the above reasons, Ms. Gooden is not entitled to be reimbursed for the costs of the utility and maintenance costs of the property from the date of purchase to December, 2013.
[34] That said, Mr. Wright has not made any mortgage payments or other payments since December, 2013. From January 1, 2014, he should have paid Ms. Gooden a minimum of $825 which represents the monthly mortgage payment of $650 plus $175 as his share of the maintenance fee. Given the fact that Ms. Gooden and her three children have been living in the house, Mr. Wright should not be responsible for contributing to the cost of the utilities from January 2014 to the present.
COSTS
[35] Mr. Wright’s counsel seeks costs in the amount of $7,000 which is comprised of $5,000 for the trial and $2,000 for preparation. Ms. Gooden seeks costs in the amount of $10,000.
[36] Mr. Wright has been successful in this trial. His counsel was called to the Bar in the year 2000 and his hourly rate of $275 is quite reasonable.
[37] On the other hand, this is an uncomplicated matter which did not require a great deal of preparation. Furthermore, the trial was relatively brief given that each party only called one witness.
[38] In my view, costs in the amount of $4,000 inclusive are fair and reasonable in this case.
DISPOSITION
[39] Based on the above I order that:
(1) Mr. Wright has a beneficial interest of 50% in the property located at 6679 Shelter Bay Road, Mississauga, Ontario, L5N 2A2.
(2) Ms. Gooden shall not sell, deplete or encumber the property with a mortgage, line of credit, lien, or other such charge, without the agreement of Mr. Wright or such further order of this court.
(3) Either party is at liberty to purchase each other’s share of the said property, within four months of the date of this decision.
(4) If neither party is prepared to purchase the property it should be listed for sale with a real estate agent, who is mutually acceptable to both. Each party is entitled to 50% of the net proceeds of sale. However, 50% of the monthly mortgage payments and maintenance fees for the property from January 1, 2014, to the date when the property is sold, is to be deducted from Mr. Wright’s share of the net proceeds of sale of the property and paid to Ms. Gooden.
(5) Costs payable by Ms. Gooden to Mr. Wright, are fixed at $4,000 inclusive.
(6) Post judgment interest is fixed at three per cent annually.
André J.
Released: December 24, 2014
CORRECTION NOTICE
Corrected decision: the text of the original judgment was corrected on January 6, 2015, and the description of the correction is appended:
(1) Paragraph 2: The sentence “Neither Mr. Wright nor Ms. Gooden was represented at trial” has been replaced by “Ms. Gooden was not represented at trial”.
(2) Paragraph 22: On third line the word “Ms. Wooden’s” has been replaced with “Ms. Gooden’s”.
COURT FILE NO.: FS-13-955-00
DATE: 20141224
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GARNET WRIGHT
Applicant
- and –
RONNA GOODEN
Respondent
AMENDED REASONS FOR JUDGMENT
André J.
Released: December 24, 2014