CITATION: Granger v. Granger, 2015 ONSC 1711

COURT FILE NOS.:CV-14-512872;

CV-14-516232

DATE: 20150323

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Court File No. CV-14-512872

KATARINA GRANGER and

HELENA GRANGER

Applicants

– and –

JOHN GRANGER and

MARGARET JURASITS

Respondents

AND BETWEEN:

Court File No. CV-14-516232

JOHN GRANGER

Applicant

– and –

KATARINA GRANGER and

HELENA GRANGER

Respondents

Shael Eisen for the Applicant Katarina Granger

Bruce Baron for the Applicant Helena Granger

Saba Ahmad for the Respondents

Saba Ahmad for the Applicant

Shael Eisen for the Respondent Katarina Granger

Bruce Baron for the Respondent Helena Granger

HEARD: March 5 and 6, 2015

REASONS FOR DECISION

DIAMOND J.:

[1] This is a most unfortunate and regrettable family dispute which has culminated in the issuance and argument of two applications before this Court. An immediate family has been effectively torn apart over alleged issues of powers of attorney, undue influence and property ownership.

[2] The parties filed multiple application records and a two volume Transcript Brief comprising eight separate cross-examinations of the parties and additional affiants. As can be expected with such proceedings, despite the parties’ efforts to provide this Court with a detailed history of the family relationships and property, a large chasm between those respective versions of events has developed, thus hindering this Court`s ability to dispose of all matters at issue.

[3] The following is this Court`s attempt at providing a concise summary of the evidence and positions taken by the parties.

Summary of Material Facts

[4] Katarina Granger (“Katarina”) is currently 81 years of age. Katarina has two children: Helena Granger (“Helena”), currently 52 years of age and John Granger (“John”), currently 46 years of age.

[5] In or around February 1981, Katarina and her former husband purchased a residential property known as 75 Parkway Avenue, Toronto, Ontario (the “property”). Title to the property was registered in Katarina’s name only.

[6] In or around 1984, Katarina’s husband left the family. John was 16 years old at the time, and according to his affidavit evidence, Katarina encouraged him to quit high school so he could “earn money needed to keep their home”.

[7] At that time, Katarina rented out the second and third floor units to third party tenants to provide her with rental income. John facilitated these tenancies by moving into the basement of the property while Katarina and Helena lived on the main floor.

[8] According to John, he provided his mother $650.00 a month commencing at some point in the 1980s. He claims to have assumed the role of “property manager” with a view to renting out the second and third floor units for his mother to earn additional income.

[9] For her part, Katarina acknowledges that John did “help around the house” by cleaning and replacing light bulbs, furnace filters, etc. However, the extent of John’s services - helping out as a dutiful son on one hand to acting as property manager on the other - is in dispute between the parties.

[10] John remained in the property, and as described below has never left, currently residing there with his wife, Margaret Jurasits (“Margaret”). John states that his mother begged him to “never leave her” and she promised him half of the property in exchange for his “years of sacrifice”

[11] Katarina denies this, although there is evidence in the record that Katarina recently changed her Will to exclude John as a beneficiary. Presumably, this means that, at least during one previous time period, Katarina’s Will did provide for John to inherit part of her estate as a beneficiary although no previous Will(s) were provided to this Court.

[12] Prior to marrying John, in or around 1988 Margaret had moved into the basement unit with him. Margaret also claims to have helped out around the house with cooking, cleaning and contributing financially to the mortgage and property tax bills.

[13] Katarina denies that John or Margaret made any significant or other payments towards the mortgage and/or property tax bills. There is evidence in the record of payments made by John/Margaret to Katarina, but some of those payments were classified at the time as rental payments. The income tax returns produced by John for the years 1988-1999 evidence a similar annual sum described as “rental payments” and claimed as an expense. There are also various receipts in the record which are consistent with the income tax filings. Katarina and Helena thus argue that John cannot maintain that he was/is a tenant and a property owner at the same time.

[14] There appears to be no dispute that for many years Helena has been appointed Katarina’s power of attorney for both property and personal care. What remains in dispute is the commencement date for both powers of attorney, as there were no documents filed with this Court other than continuing powers of attorney executed in late 2014 by Katarina in favour of Helena.

[15] In any event, the property underwent renovations and improvements between 1990-1993. By that time, Helena had moved out after beginning a relationship with Bob Sandov (“Sandov”). There is a great divergence in the evidence as to who was responsible for carrying out the renovations and improvements to the property. Katarina and Helena state that Sandov was in charge of the following, inter alia improvements:

• installing a privacy wall and door on the first floor;

• rebuilding the staircase running through all three floors;

• renovating the third floor to install wiring, new kitchen, countertops and plumbing;

• constructing a third floor patio;

• constructing of a back porch;

• repair to the front porch;

• installing privacy walls; and

• renovating the kitchen for the second floor unit.

[16] For his part, John states that both he and Sandov carried out all of the labour for the renovations and improvements, and he and Margaret moved into the third floor unit once those renovations and improvements were completed. While Katarina does state that John may have assisted Sandov on the odd occasion, she adamantly refuses to acknowledge that John was truly involved in carrying out that work.

[17] John insists that his services, including labour, management and payment of supplies, were integral to the completion of the renovations and improvements.

[18] Despite the above representations to Canada Revenue Agency that John’s payments to his mother were “rent”, John and Margaret deny that any such payments were a function of a purported tenancy. Interestingly, Katarina and Helena also state that John and Margaret never paid rent (or any other financial contribution) towards the property other than nominal, sporadic payments to assist with utilities or minor expenses. There was evidence that during the relevant years, the payments were classified as “rent” on John’s tax returns to assist with his applications for social assistance, and that Katarina obliged by providing the necessary receipts. I note that John’s employment income history is sporadic, with evidence of the receipt of employment insurance, disability and social assistance during various years.

[19] Both Helena and John claim to have contributed to the paying down of Katarina’s mortgage.

[20] As previously stated, John states that he was the de facto property manager, and claims to have resolved two boundary conflicts with neighbours on each side of the property in recent years. Katarina claims that John was no more than a “go between” between herself and her neighbours. I do note certain documents in the record which seem to question John’s stated role as manager property, and arguably confirm Katarina’s ownership of the property.

[21] In mid-September 2010, John assisted Katarina with the preparation of correspondence to her neighbour with respect to a dispute arising out of the location of the property line dividing the two properties. In that correspondence, it states as follows (emphasis underlined):

“My son, John Granger, will be acting on my behalf to oversee the appropriate completion of the aforementioned work. It would be very much appreciated if you had someone assist from your side to move your personal items and to prevent damage thereof.”

[22] In mid-July 2010, John had already delivered an e-mail to those same neighbours stating inter alia:

“You all seem to think that this was not corrected in the previous years, that you have the right to use my mother’s property and for her to pay the property tax like she has been doing all this time.”

[23] While it certainly appears that John assisted his mother with these disputes, the positions taken in documents filed with this Court seem to confirm that John viewed his mother as the owner of the property. However, that in and of itself does not preclude John from advancing claims (which he has in his application) to partial ownership of the property based upon various legal theories.

[24] In or around June 2012, Helena had separated from Sandov and moved back into the property. John believes that this was the start of a series of acts on Helena’s part designed to further her own interests at John’s expense.

[25] On December 17, 2012, Katarina transferred ownership of the property to herself and Helena, for $2.00 consideration, as joint tenants. The transfer was made by Katarina in her personal capacity and not carried out by Helena as Katarina’s power of attorney. John states that he had no knowledge of the transfer until around the time these proceedings commenced.

[26] Even though the Transfer and Katarina’s sworn Land Transfer Tax affidavit disclose “$2.00 - natural love and affection” as the consideration, in argument counsel for Helena submitted that the Transfer was in fact an acknowledgement of the financial contributions made by Helena over the years. Certainly the nature and timing of the Transfer is curious given the timing of Helena’s move back into the property.

[27] Since Helena’s return to the property, the relationship between the parties has deteriorated significantly. John and Margaret have placed locks on their unit, and the parties appear to be in a state of continuous disagreement and feuding. Each side characterizes the other as abusive and threatening.

[28] In early August 2014, Helena delivered a copy of Katarina’s letter to John asking that he and Margaret move out of the property so that the house can be listed and sold with the proceeds used to purchase a more accommodating residence, as Katarina has been confined to a wheelchair for some time. In response to that letter, John delivered an e-mail dated August 5, 2014 to Helena which stated as follows:

“Helena,

I have lived there all my life, in Canada, at 75 Parkway.

I will follow the Attorney General’s Office guidance, and remain at 75 Parkway, until the Attorney General informs me otherwise.

I have forwarded your letter, and have been advised to exercise my rights and remain at 75 Parkway Avenue, 3rd Floor.

I do not wish to upset Mother anyway. I have 30+ years of things in the home. Most of which I had to spread out since you moved in and unfortunately this scattered my belongings.

I can relocate my bike, so not to infer with Mom when I leave in the morning.

There is a pattern, consistently showing here, by you Helena. Any communication by me with Mom, that has an effect on your deception on all of us, you seem to follow up with either trying to legally remove (calling police) or respond with letters such as this.

The Attorney General will use this letter from you, as evidence, consistent with your pattern of misleading authority.

I have be (sic) told, until the investigations against you are completed, I am to remain.

I have been following the Attorney General’s guidance, since the day you called the police and I’ll continue to do so until THEY ask me to do otherwise.

Any attempt by you or Mom to damage, move or relocate Margaret’s or my personal items, I have to contact the Office of the Attorney General.”

[29] While John was obviously not represented by counsel on that date, I note that in his response to what was effectively an “eviction notice”, John did not assert any ownership claims to the property.

The Applications and the Relief Sought

[30] On September 25, 2014, Katarina and Helena commenced an application seeking a declaration that they are entitled to sole and exclusive possession of the property, leave to issue a writ of possession and an order requiring John and Margaret to vacate the property. That application was originally returnable on November 19, 2014.

[31] On the day prior to the return date of Katarina and Helena’s, John issued his own application which sought the following relief:

(a) a declaration that John is a beneficial owner of the property, or in the alternative that Katarina and Helena are holding a portion of their ownership interest in the property on a constructive or resulting trust for John;

(b) if no constructive or resulting trust in the property for John is awarded, damages for financial and other contributions made by John to the repair, maintenance and purchase of the property;

(c) an order that Katarina be assessed by a capacity assessor pursuant to the Substitute Decisions Act to determine whether she is capable of managing her own property and personal care and providing instructions to counsel in these proceedings;

(d) an order that Helena as continuing power of attorney for property account for her management of Katarina’s property; and

(e) an order revoking Helena’s power of attorney for property and personal care and an order appointing a neutral litigation guardian and guardian for property and personal care for Katarina.

[32] Prior to the hearing of these applications, John never sought leave to obtain and register a Certificate of Pending Litigation against the property. In addition, John did not seek any injunctive relief in his application.

[33] There is no consent of a proposed new power of attorney for Katarina in the record before this Court. Counsel for John and Margaret advised during argument that she has been in contact with the Ontario Public Guardian and Trustee (“PGT”) but there is no response from the PGT filed in these applications.

[34] In addition to their evidence as summarized above, in their own application John and Margaret have also submitted the following in support of the relief itemized as (c) through (e) above:

(a) Helena has persuaded Katarina that John “is against her”, thinks his mother is crazy and intends to put her in a facility;

(b) Katarina has been persuaded to do whatever Helena requires of her;

(c) Katarina is not properly informed, and in particular with respect to the within litigation;

(d) Helena told Katarina to “do as she said” or else Katarina would never see her grandson again;

(e) Helena has lied to Katarina about Helena’s purported professional credentials;

(f) there are reasonable grounds to believe that Katarina is incapable and lacking capacity. Of note, John’s evidence is that he first started to notice Katarina’s diminished capacity in 2001.

(g) Helena is motivated by her own financial needs as she requires both the equity in and the property itself for her own support after personal loses and the breakdown of her marriage.

[35] It is John’s position that since 2012, Katarina’s decisions which have adversely affected the interest of John and Margaret were the product of Helena’s undue influence over her mother coupled with Katarina’s lack of capacity. Based upon the record filed with this Court, apart from the contents of John’s affidavit there is no further documentary support for such a position pre-dating the issuance of John’s application.

[36] In response to John and Margaret’s allegations, on December 9, 2014 Katarina underwent a capacity assessment conducted by Elizabeth Milojevic, a capacity assessor within the meaning of the Substitute Decisions Act. According to Ms. Milojevic’s report, Katarina passed the test for testamentary capacity, including capacity to instruct counsel and to grant powers of attorney.

[37] Ms. Milojevic’s report was the only opinion evidence on this subject filed by the parties.

[38] Finally, the parties did file additional opinion evidence relating to (a) the current value of the property, (b) the value of occupancy rent for the third floor of the property, and (c) the value of the services John claims to have provided over the years at the property and/or for his mother.

[39] Unfortunately, none of the individuals who provided these various reports were cross-examined upon their evidence. I do note however, that in the evidence of Gordon Krofchick (an accounting and business valuator proffered by John), one of the assumptions provided to Mr. Krofchick was that John paid rent to Katarina in varying amounts between 1984-1992; 1993-2001 and 2002-2013.

Issues to be decided

[40] Both applications were argued over 1.5 days. At the conclusion of argument, the parties submitted that the following issues remain to be decided:

(a) Should Helena’s continuing power of attorney for property and personal care over Katarina be revoked?

(b) If Helena’s continuing power of attorney for property and personal care is revoked, should the Court appoint a neutral litigation guardian and a guardian for property and personal care for Katarina?

(c) Should the Court order Helena as continuing power of attorney for property to account for her management of Katarina’s property?

(d) Are Katarina and Helena entitled to exclusive possession to the property, and if necessary a Writ of Possession?

(e) Is John a beneficial owner of the property?

(f) Are Katarina and Helena holding their interests in the property for John by way of resulting trust?

(g) Are Katarina and Helena holding their interests in the property for John by way of constructive trust?

(h) If John is not a beneficial owner, and no constructing or resulting trust for John is found, is John entitled to any damages for financial and other contributions he made to the repair, maintenance and purchase of the home from 1992 to the present?

Analysis and the Law

[41] Before embarking upon a determination of the above issues, I begin by noting that this Court is being asked to dispose of matters advanced by way of applications. While the jurisprudence since the release of the Supreme Court of Canada’s decision in Hryniak v. Mauldin 2014 SCC 7 has expanded the Court’s fact-finding powers on a motion for summary judgment, those cases deal with motions for summary judgment brought within actions. The disposition of an application is governed by Rule 38.10 of the Rules of Civil Procedure which empowers the presiding judge to:

(a) grant the relief sought or dismiss or adjourn the application, in whole or in part and with or without terms; or

(b) order that the whole application or any issue proceed to trial and give such directions as are just.

[42] When faced with a dispute in the record about a fact(s) material to an issue essential to the resolution of a subject matter of an application, the Court must either direct a trial of an issue in respect of the fact(s) in dispute, or convert the application into an action. See: Moyle v. Palmerston Police Services Board (1995), 1995 10659 (ON SC), 25 O.R. (3d) 127 (Div.Ct.).

[43] A judge presiding on an application is entitled to finally decide the rights of the parties on the merits so long as the principles which inform and define the parameters of a properly constituted application have otherwise been met. In determining whether it is possible to finally decide the rights of parties to an application on the merits, the Court must consider the following factors:

(a) whether there are material facts in dispute;

(b) whether there are complex issues requiring expert evidence or a weighing of that evidence;

(c) whether there is a need for the exchange of pleadings and for discoveries; and

(d) the importance and impact of the application and the relief sought.

See: Pereira v. Quatsch, [2013] O.J. No. 95 (S.C.J.) at paragraph 20.

[44] There is no doubt that the dispute between the parties to this application is in dire need of resolution or finality. The rift between Katarina and Helena on one hand, and John and Margaret on the other, shows no sign of being repaired, and the parties appear entrenched in their respective positions.

[45] Unfortunately, while most of the issues can be determined at this time, the gap between the parties’ accounts of the history of these matters is simply too wide to allow this Court to decide all of the above outstanding issues on a paper record.

[46] I therefore address each respective issue as follows:

Issue #1: Should Helena’s continuing power of attorney for property and personal care over Katarina be revoked?

[47] In his sur-reply submissions, John clarified that he is requesting the revocation of Helena’s power of attorney over Katarina pursuant to the Court’s inherent and parens patriae jurisdiction. Further, John submits that while he has made no application to appoint another attorney for his mother, the Court may do so of its own initiative.

[48] In Dryden v. Dryden, 2011 ONSC 7060, [2011] O.J. No. 5519 (S.C.J.) Justice Allen held that the Court lacks authority to consider a request to terminate a power of attorney in the absence of an application brought pursuant to section 22 of the Substitute Decisions Act R.S.O. 1990 c. S-30 as amended (“SDA”). In fact, the Court may only terminate a continuing power of attorney if an application is brought before the Court to appoint a guardian for property under the SDA.

[49] In support of his request, John relies upon the decision of Justice Whitten in McMaster v. McMaster, [2013] O.J. No. 877 (S.C.J.). In that case, Justice Whitten was faced with, inter alia, a request to remove a party as attorney for an elderly parent. In dealing with the Court’s potential exercise of its parens patriae jurisdiction, at para. 28 of the decision Justice Whitten referenced the decision of E (Mrs.) v. Eve, 1986 36 (SCC), [1986] 2 S.C.R. 388 and stated as follows:

“This jurisdiction of the Superior Courts has been for the most part exercised on behalf of children. However, as the references to the judgment of Justice LaForest demonstrate, it originated with a concern for the interests of vulnerable persons who lack the capacity to make decisions for themselves. That aspect of parens patriae exists today (see: Gray v. Ontario, [2006] O.J. No. 266 (Ont. Div.Ct.). That is especially so when there are legislative gaps.”

[50] In further addressing the request, Justice Whitten went on to cite all of the relevant sections under the SDA which provide for an attorney’s responsibilities, the removal of an attorney and the obligation to pass accounts. From my review of the McMaster decision, it does not appear that Justice Whitten relied upon the Court’s parens patriae jurisdiction in coming to his conclusions on the facts of that case.

[51] Further, I do not find the presence of legislative gaps on the record before this Court. The relevant sections of the SDA and the jurisprudence developed thereunder are a full answer to John’s request for an order removing Helena as her mother’s power of attorney.

[52] In my view, the facts of this case do not invoke this Court’s parens patriae jurisdiction and I will thus determine John’s request for an order removing Helena as her mother’s power of attorney pursuant to the provisions of the SDA.

[53] As previously stated, John has not formally identified the PGT or any other private individual as the proposed guardian for his mother. Sections 70(1) and 70(2) of the SDA mandate certain documents to form part and parcel of an application to appoint a guardian over property and/or the person. These documents include the proposed guardian’s consent, a management plan for the property and a statement signed by the applicant indicating that the person alleged to be incapable has been informed of the nature of the application and the right to oppose it. None of those documents are present in this case.

[54] In any event, before potentially appointing a litigation guardian or guardian for property and personal care over Katarina, this Court must first be satisfied that Katarina is incapable of managing property or having a working knowledge of her personal care status.

[55] I note that in response to his mother’s letter in early August 2014 (translated into English by Helena and which I earlier described as an eviction notice), John’s email of August 5, 2014 failed to raise his alleged concerns about his mother’s capacity

[56] John’s evidence is that his mother’s capacity has been deteriorating since 2001 and that she is now incapable. If John, residing with Katarina his entire life, was a witness to his mother’s alleged slow decent into a lack of capacity, it was not until after he was served with Katarina and Helena’s application that he first raised any of these alleged concerns.

[57] John points to certain excerpts from Katarina’s cross-examination to support his contention that she is currently incapable. As an example, John relies on the following exchange between his counsel and Katarina for this Court’s consideration.

Q. Do you believe – who started this proceeding?

A. Which one?

Q. Right now you are involved in litigation; do you understand that?

A. Which litigation?

Q. Right now you are going to be before a Court; do you understand that?

KATARINA GRANGER: Thank God. I help you, everybody for that. I go with his father the Supreme Court.

BY MS. AMAD: Q. My question is who started this litigation?

A. I don’t know. I did not.

[58] John also points to another excerpt in his mother’s cross-examination where Katarina does not understand what a “legal mediation” is. In my view, these exchanges amount to no more than an admittedly elderly woman not being familiar with legal concepts or the status of this litigation. They do not support a finding that Katarina is incapable for the purpose of the SDA.

[59] The only independent evidence of Katarina’s capacity is set out in Ms. Milojevic’s report. John did not obtain a responding report or ask that Katarina undergo another capacity assessment prior to the hearing of the applications.

[60] I therefore find that John has failed to satisfy me that Katarina is incapable, which is a pre-condition for the relief they seek.

[61] Accordingly, the request to revoke Helena’s continuing power of attorney for property and personal care over Katarina is dismissed.

Issue #2: If Helena’s continuing power of attorney for property and personal care is revoked, should the Court appoint a neutral litigation guardian and a guardian for property and personal care for Katarina?

[62] As I have dismissed John’s request for a revocation of Helena’s continuing power of attorney over Katarina, his request for an appointment of a neutral litigation guardian over Katarina is also dismissed.

Issue #3: Should the Court order Helena as continuing power of attorney for property to account for her management of Katarina’s property?

[63] The Court’s ability to order the passing of accounts of an attorney or guardian of property is set out in section 42 of the SDA. It is a discretionary power available to an attorney or guardian, or the following persons:

(a) the grantor’s or incapable person’s guardian of the person or attorney for personal care;

(b) the dependent of the grantor or incapable person;

(c) the Public Guardian and Trustee;

(d) the Children’s Lawyer;

(e) a judgment creditor of the grantor or incapable person;

(f) any other person with leave of the Court.

[64] John does not fit any of the first five definitions of “person”, and thus would only be entitled to ask for an order mandating Helena’s passing of accounts if he sought and was granted leave of this Court. No such leave was requested in John’s notice of application. That omission in and of itself is fatal to this request.

[65] Even if leave had been sought and granted, as stated above, Katarina is capable and the evidence falls short of the requirement of clear and compelling evidence of mismanagement or financial abuse committed by Helena. See: Nguyen-Crawford v. Nguyen 2010 ONSC 6836 (S.C.J.) at para. 118.

[66] The necessary evidence in support of such an order must go beyond mere suspicion and amount to cogent evidence of actual wrongdoing. In my view, John has failed to satisfy that onus on the record before this Court.

[67] Accordingly, John’s request for an order that Helena pass her accounts for the management of the property is dismissed.

Issue #4: Are Katarina and Helena entitled to exclusive possession to the property, and if necessary a Writ of Possession?

[68] As held by Justice Gorman in Wilkinson v. Wilkinson 2012 CarswellOnt 9491 (S.C.J.), affirmed 2012 ONCA 518, the test for exclusive possession is akin to the traditional three part test for an injunction.

[69] Subject to the disposition of John’s claims to the property as set out below, Katarina and Helena are the current owners of the property.

[70] Neither John nor Margaret claim to be tenants of the property.

[71] As Katarina and Helena are the titled owners of the property, there is no serious issue to be tried concerning their right to possession.

[72] Given her advanced age and deteriorating physical condition, there is little doubt that Katarina would suffer irreparable harm if she was forced to co-exist with John and Margaret in the property if the request for possession was not granted.

[73] In my view, the balance of convenience favours Katarina and Helena and, subject to the terms I order hereinafter, they are entitled to exclusive possession of the property, and leave to issue a Writ of Possession if necessary. There are measures which can be imposed to protect John’s position in these proceedings in the face of an order granting possession.

[74] Accordingly, Katarina and Helena’s request for exclusive possession to the property and if necessary a Writ of Possession, is granted.

Issue #5 Is John a beneficial owner of the property?

[75] Although not specifically pursued in his factum or during argument, John’s application nevertheless requests a declaration that he is a beneficial owner of the property. There is no express or documented trust for the property.

[76] To the extent it is being pursued, I agree with counsel for Katarina and Helena that John’s claim for beneficial ownership in the property pursuant to an express or documented trust would therefore be unenforceable by reason of section 4 of the Statute of Frauds.

[77] John’s request for a declaratory order that he is a beneficial owner of the property is therefore dismissed.

Issue #6: Are Katarina and Helena holding their interests in the property for John by way of resulting trust?

[78] A resulting trust can arise where a true beneficial owner transfers the asset away from him/herself without consideration. As the Supreme Court of Canada stated in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, “the point of the resulting trust is that the claimant is asking for his or her own property back, or for the recognition of his or her proportion interest in the asset which the other has acquired with that property.”

[79] John never owned the property, and he did not pay for it in the first place. Simply put, John is not attempting to recover something that he once had. The remedy of a resulting trust is based upon returning a property back to an original owner. No such supporting facts are present in the record before this Court.

[80] I therefore find that Katarina and Helena are not holding their interest in the property for John by way of resulting trust.

Issue #7: Are Katarina and Helena holding their interests in the property for John by way of constructive trust?

Issue #8: If John is not a beneficial owner, and no constructing or resulting trust for John is found, is John entitled to damages for financial and other contributions he made to the repair, maintenance and purchase of the home from 1992 to the present?

[81] The majority of argument of both applications focused upon John’s claims of unjust enrichment, and the remedy of a constructive trust in the property.

[82] To begin, I raised concerns with counsel during argument whether the provisions of the Real Property Limitations Act R.S.O. 1990 c. C.15 (the “RPLA”) applied to John’s claims for a constructive trust. In McConnell v. Huxtable (2014), 2014 ONCA 86, 118 O.R. (3d) 561 (C.A.), the Court of Appeal for Ontario found that the 10-year limitation period under the RPLA applies to claims for a constructive trust regardless of whether the equitable claim for an interest in land arises out of a domestic relationship or a business transaction.

[83] However, it was John’s evidence that he believed he was the beneficial owner of the property (regardless of the absence of an express or documented trust). While Katarina denies ever making such promises to her son, it was only after Helena returned to the property and John subsequently discovered (a) the existence of the Transfer of title to the property from Katarina to Katarina and Helena and (b) the revisions to Katarina’s will that his claims to ownership of an interest in the property were called into question.

[84] On the record before this Court, I find that John did not know (or ought to have known) that his claim for constructive trust arose until, at the earliest, the summer of 2012. I therefore do not find any limitation period issues precluding John from advancing his claim to a constructive trust.

[85] In order to obtain the equitable remedy of a constructive trust, John must prove his claim for unjust enrichment against Katarina and Helena. As set out in Aksman v. Shenderey, [2010] O.J. No. 3511 (S.C.J.), the well-known test for unjust enrichment is as follows:

(a) the moving party must show he/she conferred a benefit or enrichment on the responding party;

(b) the moving party must show there is a corresponding deprivation to them, and

(c) there must be no juristic reason for the responding party to retain that enrichment.

[86] There is no dispute that domestic services are capable of supporting a claim for unjust enrichment and the constructive trust remedy. See: Djekic v. Zai, [2015] O.J. No. 239 (C.A.).

[87] Even where a claim for unjust enrichment is proven, the remedy of constructive trust is only available where a monetary award would be inappropriate or insufficient (see: McConnell supra at paras. 36-37). Accordingly, John must demonstrate a link or causal connection between his contributions and the acquisition, preservation, maintenance or improvement of the property so that a share of the property proportionate to the claim for unjust enrichment can be impressed with a constructive trust.

[88] Regrettably, I am simply unable to decide these last two issues in the absence of viva voce evidence and cross-examination of the experts (should the parties choose to do so). There are far too many material facts in dispute for this Court to dispose of these applications in a summary fashion. In addition to my earlier summary of the facts, I note the following:

(a) the full scope (both temporally and financially) of John’s alleged services carried out at the property and/or for his mother is hotly contested between the parties. In fact, the parties seem diametrically opposed on this issue, with John relying upon the evidence of third parties to verify the extent of his services, and Katarina flatly denying those services took place.

(b) The opinion evidence of the value of John’s services, while not explicitly challenged, is based upon what appears to be simple projections of the value of John having worked 350 days per year – from 1982 to the present - for his mother and/or the property, and either three hours or six hours per day depending on the given year.

(c) The opinion evidence as to the value of the rental amounts which Katarina would have earned from John and Margaret’s unit over the years is both contested between the valuators, and, to date, yet to be tested in cross-examination.

(d) While John claims not to be obligated by any contract or other agreement to provide payment or services to his mother, he nevertheless represented to Canada Revenue Agency that he was a tenant, and received the corresponding tax benefits for at least a period of time.

(e) John’s email of August 5, 2014 (responding to the eviction notice) failed to raise his ownership claims to the property, whether by direct, beneficial ownership or resulting/constructive trust.

[89] While the bond between parent and child can constitute a juristic reason in support of an enrichment to a parent at the hands of a child, the extent of the benefit and corresponding detriment must typically be fully assessed before the Court can dispose of that issue.

[90] As well, it is unclear whether a monetary award or proprietary award would be appropriate in the circumstances of this case until such time as viva voce evidence and cross-examinations proceed.

[91] I therefore order that there shall be a trial of Issue #7 and Issue #8. The trial of those issues shall proceed before me and I remain seized of these proceedings.

[92] As I have granted Katarina and Helena exclusive possession (and if necessary a Writ of Possession) of the property, they are at liberty to list and sell the property once it is vacated.

[93] While John sought no injunctive relief, his claims of unjust enrichment and constructive trust have yet to be determined. In the interests of justice and in balancing the interests of the parties, I am prepared to protect John’s ability to seek his remedies including the right to trace his claims into the proceeds of the sale of the property if necessary. I thus make the following additional orders which shall remain in place until the trial of Issues #7 and #8 is heard and determined, or further agreement between the parties.

a) As title to the property is currently free and clear, Katarina and Helena shall not pledge or encumber the equity in the property.

b) In the event that Katarina and Helena successfully sell the property, the net sale proceeds (i.e. net of any prior existing mortgages, property taxes and real estate commission) shall be held in trust by the real estate solicitor.

c) In the event that Katarina and Helena wish to purchase a new property (which was the main reason they commenced their application), Katarina and Helena are at liberty to use the net sale proceeds for that specific purpose and John is hereby granted leave to issue and register a certificate of pending litigation against title to the new property. John’s certificate of pending litigation must be in a first position on the new property, i.e. registered before any subsequent mortgage or other encumbrance.

[94] Counsel are to schedule a telephone case conference with me, to be arranged through my assistant, to discuss a timetable for the interim steps leading up to the trial of Issues #7 and #8. These interim steps shall include further examinations for discovery (if requested by the parties) and a pre-trial before a different judge to be held at least 30 days before the trial date.

[95] Costs of these applications are reserved to me as the judge hearing the trial of Issues #7 and #8.

Diamond J.

Released:March 23, 2015

CITATION: Granger v. Granger, 2015 ONSC 1711

COURT FILE NOS.: CV-14-512872;

CV-14-516232

DATE: 20150323

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Court File No. CV-14-512872

KATARINA GRANGER and

HELENA GRANGER

Applicants

– and –

JOHN GRANGER and

MARGARET JURASITS

Respondents

AND BETWEEN:

Court File No. CV-14-516232

JOHN GRANGER

Applicant

– and –

KATARINA GRANGER and

HELENA GRANGER

Respondents

REASONS FOR DECISION

Diamond J.

Released: March 23, 2015