CITATION: Miller v. Debartolo-Taylor, 2015 ONSC 2654

NEWMARKET COURT FILE NO.: CV-12-111399-00

DATE: 20150424

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SUZANNE MILLER

Plaintiff

– and –

ROSETTA DEBARTOLO-TAYLOR, 2070935 ONTARIO INC. and (JAMES) KEVIN TAYLOR

Defendants

Ms. Miller, acting in person

M.L. Biggar, for the Defendants

HEARD: October 23 and December 19, 2014

VALLEE, J.

RULING ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

[1] Ms. Miller and Kevin Taylor were business partners. They operated an ATM business. Prior to July 27, 2007, Mr. Taylor began misappropriating some of the money from the business for himself, to the detriment of Ms. Miller. Earlier, on March 9, 2005, Mr. Taylor transferred his 50% interest in the family residence to his wife, the defendant Rose DeBartolo-Taylor. Ms. Miller brought an action against Mr. Taylor on March 12, 2008 to recover the funds that Mr. Taylor had misappropriated. In May, 2008, after the action was issued, Mr. Taylor transferred his interest in the ATM business to his wife’s corporation. Ms. Miller obtained judgment against Mr. Taylor on November 28, 2008.

[2] Ms. Miller commenced this action on October 3, 2012, claiming that the two transfers were fraudulent conveyances, carried out to defeat creditors and others including Ms. Miller. Ms. Miller brings this motion for summary judgment.

The Issues

a) Did Mr. Taylor transfer his interest in the family residence to his wife and his interest in the ATM business to his wife’s company with an intent to defeat creditors and others?

b) Is the fact that Ms. Miller became a creditor after the transfers occurred fatal to her claim?

c) Is this an appropriate case for summary judgment?

Applicable Legal Principles

Fraudulent Conveyance

[3] The Fraudulent Conveyances Act, s. 2 states:

Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such other persons and their assigns.

[4] In Incondo v. Sloan, 2014 ONSC 4018, the court recently carried out a comprehensive review of the relevant jurisprudence and legal principles applicable to fraudulent conveyances. The principles set out in Incondo are paraphrased below.

(a) The purpose of the Act is to prevent fraud. It is remedial legislation and must be given as broad an interpretation as its language will reasonably bear. (see Incondo para 49)

(b) In order to void a transaction, there must be a conveyance, an intent to defeat and a creditor or other towards whom that intent was directed (Bank of Nova Scotia v. Holland, [1979] O.J. 1190 at para 12). (see Incondo para 44)

(c) The courts have interpreted the words “or others” to include…subsequent creditors. Courts have concluded that in some circumstances, transactions were made with the intent to defeat creditors when there were no creditors at all when the transaction occurred. (see Incondo para 45)

(d) The words “creditors and others” are wide enough to include any person who has a legal or equitable right or claim against the debtor/transferor by virtue of which he is or may become entitled to rank as a creditor of the debtor/transferor. (see Incondo para 46)

(e) In other words, the term “creditors and others” is broad enough to contemplate a person who, while not a creditor at the time of the conveyance, may become one in the future (Benyon v. Benyon, 2001 CanLII 28147 (ON SC), [2001] O.J. 3653). (see Incondo par 47)

(f) If there was an intention to defeat creditors, then it does not matter whether it was to defeat present or future creditors (CIBC v. Boukalis 1987 CanLII 2694 (BC CA), 1987 CarswellBC 513 (B.C.C.A.). (see Incondo par 48)

(g) If the transferor had an intention to defraud when the conveyance was made, it does not matter that the person attacking the conveyance was not a creditor at the time (Iamgold v. Rosenfeld, [1998] O.J. 4690 (S.C.J.). (see Incondo par 48)

(h) Establishing fraud by determining the state of mind of the debtor is difficult. In the absence of direct evidence of intent, courts have relied on the surrounding circumstances as establishing prima facie the intent to defraud or delay. (see Incondo para 50)

(i) A conveyance may exhibit certain badges of fraud. Some of them include the following:

(1) the debtor/transferor continued to possess and use the property as his own;

(2) the transfer was made in the face of threatened legal proceedings;

(3) the consideration was grossly inadequate;

(4) some benefit was retained by the debtor/transferor; and

(5) there was a close relationship between the debtor/transferor and the recipient of the property. (see Twyne’s Case (1601) 76 E.R. 809), (see Incondo para 52)

(j) Proof of one or more badges of fraud may raise a prima facie evidentiary case. (see Incondo par 53)

(k) A fraudulent transaction depends more on a view of all of the facts and not so much on the tally of badges of fraud (Benyon para 52). (see Incondo para 55)

(l) Mere suspicion of fraud is not sufficient. There must be a preponderance of evidence that leads to the conclusion that the conveyance was carried out fraudulently (Clarke v. The King (1921), 6 S.C.R. 608 at 616). (see Incondo para 57)

Summary Judgment

[5] In Hyrniak v. Mauldin, 2014 SCC 7, the court provided guidance on the interpretation of Rule 20.04(2)(a) of the Rules of Civil Procedure. It stated that a court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial. If a motion a) allows a judge to make the necessary findings of fact and apply the law to the facts, b) is a proportionate, more expeditious and less expensive means to achieve a just result, and c) if the judge is able to reach a fair and just determination on the merits of the motion, there will be no genuine issue requiring a trial. (See Hyrniak par 49)

The Chronology

[6] This matter has a long, 13 year history.

(a) 2002: Kevin Taylor and Ms. Miller’s late husband, Mr. J. Hinton, started a business venture, Transact ATM Services. They owned and operated automatic teller machines in various locations.

(b) August 30, 2002: Kevin Taylor and his wife Rosetta DeBartolo-Taylor purchased a family residence located at 310 Chambers Crescent, Newmarket. They held title to the residence jointly. It was and still is their residence. Ms. DeBartolo-Taylor also owned another house that she had purchased prior to her marriage to Mr. Taylor.

(c) April 29, 2005: Ms. DeBartolo-Taylor sold her other house.

(d) May 9, 2005: Mr. Taylor transferred his 50% interest in the family residence to his wife. His reason for doing this was to protect the family home from any potential future threats – for business reasons.

(e) July 22, 2006: Mr. Hinton passed away. Ms. Miller assumed ownership of his interest in Transact ATM Services. She provided most of the vault cash (the money in the ATM machines) until Oct 1, 2007 (See Miller v. Taylor, Court File 07-CL-7252, 2008-11-28 par 6, subsequently referred to as “Reasons”). Mr. Taylor refused to provide the combinations for the ATM machines to Ms. Miller (See Reasons, par 7).

(f) December 19, 2006: Ms. Miller and Mr. Taylor entered into an agreement on the amount of vault cash that she would lend to the business and the interest that would be paid on it (See Reasons par 10).

(g) Prior to the end of December, 2006: Ms. Miller added more vault cash for the business. The total rose to approximately $97,000. Subsequently, she became nervous about the vault cash because she thought it was disappearing. (See Reasons, par 10).

(h) After December 25, 2006: Ms. Miller decided that she wanted to get out of the business.

(i) March 7, 2007: Ms. Miller and Mr. Taylor signed an agreement regarding the use of the vault cash pending the sale of her interest in the company. It stated, among other things:

I [Ms. Miller] will continue to supply the vault cash provided we agree on the following terms:

All cash supplied will be used to supply funds for ATM usage only.

No portion of the vault cash will be utilized to pay any expenses or other charges. (See Reasons par 12)

(j) The agreement had originally included a term stating “Supply to Suzanne, combinations for all ATM machines currently being supplied with vault cash.” Mr. Taylor deleted this term even though the vault cash belonged to Ms. Miller. (See Reasons par 12)

(k) 2007: Sometime prior to July 27, 2007, Mr. Taylor began misappropriating some of the money from the business for himself, to Ms. Miller’s detriment. He took money from the vault cash. He did not advise Ms. Miller of this. Mr. Taylor pretended to not know when it disappeared. (The total that he was eventually found to owe Ms. Miller was $27,347.82 plus interest and costs.) (See Reasons par 21 and 22)

(l) July 27, 2007: Mr. Taylor told Ms. Miller that had taken the money because he had to pay for a motorcycle. This was not true. He had already paid for it.

(m) August, 2007: Mr. Taylor unilaterally altered a split between the parties of certain business revenue from 50/50 to 75/25 in his favour. (See Reasons, par 22)

(n) October, 2007: Ms. Miller saw that the amount of the vault cash had decreased from $100,000 to $71,000. She removed the vault cash that remained in the business account. (See Reasons par 14)

(o) February 27, 2008: Prior to this date, Ms. Miller brought an application under the Partnership Act for an order that the partnership be bought by one of the parties. On February 27, 2008, Spence J. ordered that Mr. Taylor buy out Ms. Miller’s interest in the business for $120,000 and that all other accounting issues be determined by way of a trial of an issue before Pepall J. as she then was. He set out a timetable for delivery of pleadings and conducting examinations.

(p) Mr. Taylor purchased Ms. Miller’s 50% interest in the assets of the business. Mr. Taylor obtained the purchase funds from two individuals, Mario Stallone and Zlatko Kireta. Immediately after the purchase, Mr. Taylor transferred a 25% interest in the business to each of them.

(q) March 12, 2008: In accordance with Spence J’s order, Ms. Miller issued a claim (action 07-CV-7252) against Mr. Taylor claiming a shortfall of funds that she alleged were owed to her while Mr. Taylor and she were in business together.

(r) May 4, 2008: Mr. Miller transferred his interest in the ATM business to his wife’s company, the defendant 2070953 Ontario Inc.

(s) May 5, 2008: The Official Receiver noted (in his report dated November 12, 2013) that Mr. Taylor transferred his 50% interest in the ATM business to his wife’s company (the defendant 2070935 Ontario Inc. in this action). The stated consideration for the transfer was forgiveness of certain debts (evidenced by loans) owed by Mr. Taylor to his wife. This transfer took place 6 months prior to trial.

(t) Also, in his report dated November 12, 2013, the Official Receiver noted that he had requested from Mr. Taylor’s solicitor proof of the debts. The solicitor provided the Receiver with a schedule and bank statements. The Receiver stated in his report that “the schedules provided are not conclusive enough to support the loan.”

(u) The trial in action 07-CV-7252 was held on July 7 – 10, 2008. Oral argument was presented on September 2, 2008.

(v) November 28, 2008: Ms. Miller obtained judgment against Mr. Taylor in action 07-CV-7252 for approximately $71,000 on the claim together with approximately $70,000 in total for costs plus disbursements and tax. Among other things, Pepall J., found that Mr. Taylor had improperly appropriated approximately $27,000 from the vault cash. He had also unilaterally altered the share of certain business revenue from 50/50 to 75/25 in his favour. Justice Pepall stated that Mr. Taylor had “feigned ignorance as to the whereabouts of the missing vault cash” and had misrepresented to Ms. Miller the business’ state of affairs. His conduct in doing so was “highhanded and unwarranted.” (See Reasons par 21 and 32). Mr. Taylor appealed the trial decision.

(w) October 6, 2009: Ms. Miller brought a motion before Cronk J.A. for an order that Mr. Taylor post security for costs of the appeal. Ms. Miller was successful.

(x) January 13, 2010: Mr. Taylor successfully appealed the order of Cronk J.A. on the grounds that Ms. Miller had not proved that he had insufficient assets in Ontario to satisfy outstanding and future costs awards. The Court of Appeal stated that neither party filed any evidence respecting the appellant’s financial situation. By this time, Mr. Taylor had already transferred his interest in the family residence to his wife and his interest in the ATM business to his wife’s company. He essentially had no assets.

(y) January to June 2010: Mr. Taylor was still using the business bank account to buy supplies.

(z) April 1, 2010: Mr. Taylor’s appeal of Pepall J.’s trial decision was dismissed.

(aa) April 2010 to June 2011: For approximately one year, Ms. Miller unsuccessfully attempted to use various methods to collect the amount of the judgment.

(bb) June 3, 2011: Counsel for Ms. Miller carried out an examination of Mr. Taylor in aid of execution. Ms. Miller learned for the first time, at that examination, that Mr. Taylor had transferred his interest in the family residence to his wife on May 9, 2005 and his interest in the ATM business to his wife’s company on May 4, 2008. Mr. Taylor gave certain undertakings at this examination.

(cc) August 16, 2011: Mr. Taylor had not answered his undertakings. Ms. Miller obtained an order to compel him to do so by September 21, 2011.

(dd) September 14, 2011: Mr. Taylor made an assignment in bankruptcy one week before he was required to provide answers to his undertakings.

(ee) December 7, 2011: A mortgage in the amount of $337,000 was registered against the property, title to which had been held solely by Ms. DeBartolo-Taylor since 2005.

(ff) February 28, 2012: Mr. Taylor was examined by an Official Receiver pursuant to s. 161 of the Bankruptcy and Insolvency Act. He asked Mr. Taylor why he transferred his interest in the family residence to his wife. Mr. Taylor replied that the reason for it was to “protect the family home from any future potential threats – for business reasons.”

(gg) May 24, 2012: The bankruptcy trustee opposed Mr. Taylor’s subsequent bankruptcy discharge application. He was not discharged and remained so on December 19, 2014.

(hh) September 4, 2012: Upon her application and on the consent of the trustee, the bankruptcy court assigned to Ms. Miller the rights of the trustee under s. 38 of the Bankruptcy and Insolvency Act, to pursue the unaccounted for assets of Mr. Taylor as identified by the examiner for the Office of the Superintendent of Bankruptcy. She was permitted to bring this fraudulent conveyance action. The Trustee lifted the stay so that she could issue the claim.

(ii) October 3, 2012: Ms. Miller commenced this action in which she alleges that Mr. Taylor’s transfers of his interest in the family residence to his wife (on May 9, 2005) and his interest in the ATM business to his wife’s company (on May 4, 2008) were carried out fraudulently with intent to defeat creditors and others.

(jj) October 9, 2012: Ms. Miller obtained an order for a certificate of pending litigation which was registered against title to the property. The statement of claim was served.

(kk) November 15, 2012: The defendants filed their statement of defence.

(ll) 2013: The parties brought various procedural motions which were heard. The related decisions were released.

(mm) November 12, 2013: Mr. Taylor made an application for discharge from bankruptcy. It was denied.

(nn) March 21, 2014: Mr. Taylor brought a motion for summary judgment to dismiss this action alleging that it was commenced outside of the applicable limitation period. The motion was denied.

(oo) Ms. Miller brought this motion for summary judgment. It was heard on October 23 and December 19, 2014.

The Defendants’ Position

The Corporation, 2070935 Ontario Inc.

[7] The transfer occurred shortly before the trial in action 07-CL-7252. While not admitting in this motion that he transferred his interest in the ATM business to his wife’s company to defeat creditors and others, the defendants were prepared to consent to a judgment against the corporation.

[8] The Taylors recognized that they were unable to produce further documents to show Mr. Taylor’s alleged debts that his wife forgave as part of the alleged consideration for the transfer of the ATM business. In their Factum at para 8, they state:

In recognition of their inability to produce further documentation, the defendants are prepared to consent to a judgment against the defendant 207 in the amount of $60,000 conditional upon the discharge of the Certificate of Pending Litigation against the matrimonial home in order that Ms. DeBartolo-Taylor, who wholly owns the matrimonial home and is the sole shareholder of 207, may obtain financing for the payment of same.

The Family Residence

[9] Mr. Taylor denies that he transferred his interest in the family residence to his wife with the intention to defeat creditors and others. Ms. Miller was not a creditor at the time. In 2005, he could not reasonably have foreseen that Ms. Miller would become a creditor in 2008. Ms. Miller did not assume ownership of her late husband’s interest in the business until 2006, a year after the transfer occurred.

[10] In an answer to an undertaking, Ms. DeBartolo-Taylor stated that the family residence was transferred to her upon Ms. Miller’s advice, while she was acting as a real estate agent. The advice was that Ms. DeBartolo-Taylor should protect money which she received outside of her marriage to Mr. Taylor, being the proceeds from the sale of her own house. Those funds ought to be protected from risks associated with the ATM business that Mr. Taylor and Mr. Hinton were operating at the time.

The Relief Requested by Ms. Miller

[11] Mr. Taylor states that Pepall J. made no express finding that Mr. Taylor’s conduct constituted “fraud, embezzlement, misappropriation or defalcation” while acting as a fiduciary. Furthermore, Pepall J. did not find that Mr. Taylor “obtained property by false pretences or fraudulent misrepresentation.” Pepall J. described the action between Ms. Miller and Mr. Taylor as one that involved “accounting issues” between partners. (see defendants’ Factum paras 14 - 16)

[12] The appropriate time for Ms. Miller to seek a declaration under s. 178(1)(d) or (c) is either at the time of Mr. Taylor’s discharge application or from the ordinary civil court after the discharge. If the language in the context of the action described by Madam Justice Pepall as dealing with “accounting issues” is sufficient to meet the test in either s. 178(1)(d) or (e), the “debt” which would survive his bankruptcy would be limited to $27,348. (see defendants’ Factum, paras 17 and 18)

Analysis

Did Mr. Taylor transfer his interest in the family residence to his wife and his interest in the ATM business to his wife’s company with an intent to defeat, hinder delay or defraud creditors and others? Is the fact that Ms. Miller became a creditor after the transfers occurred fatal to her claim?

[13] A spouse could have various legitimate reasons for transferring his interest in a family residence to his wife. Estate planning is one of the more common reasons. If spouses foresee that one will outlive the other due to illness or age, title to property may be transferred in advance to the spouse who is predicted to survive so that this spouse does not need to take any steps related to the property after the other’s death. A less common scenario could involve a spouse who becomes an undercover police officer. He may transfer his interest in the family residence to his wife, with a different surname, to protect his address and address safety concerns.

[14] Unlike these examples, Mr. Taylor’s transfer of his interest in the family residence to his wife exhibits certain badges of fraud. The transfer was not an arm’s length transaction. After the transfer, Mr. Taylor continued to possess and use the property as his own. The stated consideration for the transfer was $82,000; however, this was the amount of an assumed mortgage set out on the land transfer tax statement. The Taylors bought the family residence on August 30, 2002. A mortgage in the amount of $225,000 was registered on that same date. A bank would not lend these funds unless the property was worth at least that amount. The Taylors held title as joint tenants. Using the most conservative figures, Mr. Taylor’s interest in the family residence was worth at least $112,000 in 2005. This assumes no increase in value between 2002 and 2005 and that the Taylors did not make a down payment when they purchased the property. The consideration for the transfer of the family residence appears to be inadequate.

[15] Mr. Taylor stated that the consideration for the transfer of his interest in the ATM business to his wife’s company was $55,000 as evidenced by a promissory note and the forgiveness of certain debts that he owed to his wife; however, the Official Receiver noted in his report dated November 12, 2013 that he had requested proof of the debts and that the documents provided were “not conclusive enough to support the loan.” Mr. Taylor retained a benefit because he operated the company for his wife and was paid to do so.

[16] Ms. Miller has proved that the transfers exhibit several badges of fraud. Accordingly, I find that she has raised a prima facie evidentiary case.

[17] In Incondo, the court relied on IAMGOLD. In this case, the plaintiff alleged that a husband, Mr. Rosenfeld, had conveyed to his wife certain property, with the intention to defeat creditors, which the wife then used to purchase the family residence in April, 1994. IAMGOLD obtained an award at arbitration against Mr. Rosenfeld in 1997. The Rosenfelds argued that the plaintiff had to establish that there were foreseeable creditors at the time that when the alleged fraudulent conveyance was made. Since Mr. Rosenfeld’s debt did not arise until 1997, there was no intent to defraud in 1994.

[18] On this point, which is similar to Mr. Taylor’s position, the court considered Gauthier v. Wollatt, 1940 CanLII 351 (ON SC), [1940] 1 D.L.R. 275 (Ont. S.C.). It stated,

[This case] is ordinarily cited as expressing the general rule respecting subsequent creditors. Roach J. held that a subsequent creditor may successfully impeach a fraudulent conveyance in two circumstances: …(2) if the debtor’s purpose was to defraud creditors generally, whether present or future. (see para 11)

[19] As noted above, the court stated that a conveyance may be set aside even if there were no creditors at the time it was made. It quoted from Newlands Sawmills Ltd. v. Bateman (1922), 1922 CanLII 742 (BC CA), 70 D.L.R. 165 (B.C.C.A.), paras 165 – 166 as follows:

The submission of counsel for the defendants was that as Bateman had no creditors at the time he entered into the contract he was entitled to make a voluntary conveyance to his wife of the property in question. The authorities to which we were referred do not sustain this contention. It is a question to be decided upon the proper inferences to be drawn from the facts and circumstances as to whether there was an intention to defeat creditors or not, and if there was the intention to defeat creditors, then it does not matter whether it was to defeat present or future creditors.

[20] Based on the legal principles noted above, I conclude that although Ms. Miller was not Mr. Taylor’s creditor until after the transfers were made, this is not fatal to her claim.

[21] Generally, when the court considers whether a transfer was a fraudulent conveyance, intention must be inferred from the surrounding circumstances. This matter is unusual because there is direct evidence of Mr. Taylor’s intention in 2005. On February 28, 2012, Mr. Taylor was examined by an Official Receiver pursuant to s. 161 of the Bankruptcy and Insolvency Act. As noted above, the Receiver asked Mr. Taylor why he transferred his interest in the family residence to his wife. Mr. Taylor replied that the reason for it was “to protect the family home from any future potential threats – for business reasons.”

[22] Mr. Taylor’s counsel argued that this court should not rely on the Official Receiver’s examination for several reasons. Mr. Taylor’s statements were not made voluntarily. He had no choice but to answer the questions. There is no transcript of the examination, only the Receiver’s hand written notes. Mr. Taylor was not represented at the examination. The answers he gave are vague and vernacular. Counsel also argued that the court should not rely on transcripts of the trial before Pepall J. because Ms. De-Bartolo Taylor was not a party in that action. She was only a witness.

[23] I disagree with the defendants’ position. The Official Receiver was attempting to determine if Mr. Taylor had assets to satisfy the claims of his creditors. Ms. Miller’s position is that half of the family residence and half of the company’s assets are available to satisfy creditors, even though they are owned by Mr. Taylor’s wife and her company, because they were fraudulently conveyed to her with an intention to defeat creditors and others.

[24] I am mindful of the court’s comments in Baywood Homes Partnership v. Haditaghi, 2014, ONCA 450 at para 44 with respect to using certain evidence in an action where credibility is important. The court stated:

Evidence by affidavit, prepared by a party’s legal counsel, which may include voluminous exhibits, can obscure the affiant’s authentic voice. This makes the motion judge’s task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context. Great care must be taken by the motion judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way, that would not likely occur in a full trial where the trial judge sees and hears it all.

[25] In the Official Receiver’s s. 161 examination, he was attempting to obtain Mr. Taylor’s evidence as to his intention when he made the transfer to his wife. He was looking for assets which could be used to satisfy Mr. Taylor’s creditors. Mr. Taylor’s response to the question, which is precisely the issue here, is entirely relevant to the proceedings before this court and is reliable. Accordingly, the answer provided by Mr. Taylor to the Official Receiver is not taken out of context when used in this analysis. No substantial unfairness results to Mr. Taylor.

[26] In addition to Mr. Taylor’s statement about his intention, there are several other factors that are relevant in determining whether Mr. Taylor transferred his interest in the family residence to his wife to defeat creditors or others. One is timing. Here, Mr. Taylor made the transfer after he had already been in business for approximately three years with Ms. Miller’s former husband. Mr. Hinton and subsequently Ms. Miller had no reason to distrust Mr. Taylor. He was their business partner. Mr. Hinton and Ms. Miller were friends with Mr. Taylor and his wife and were one of their children’s godparents.

[27] Furthermore, Ms. Miller obtained judgment against Mr. Taylor not because the economy dealt a serious blow to the ATM business and the financial impact was beyond Mr. Taylor’s control. Ms. Miller was not a supplier who knowingly assumed a risk of providing supplies on account. She was Mr. Taylor’s business partner. The facts in this matter are unusual because Mr. Taylor’s own actions in misappropriating money from the business to Ms. Miller’s detriment gave rise to the cause of action. In her Reasons, Pepall J. stated that Mr. Taylor improperly appropriated money from the business and that his actions were “high handed and unwarranted.” If Mr. Taylor had not been dishonest, Ms. Miller would not be a creditor and seven years of litigation would not have been required.

Has Ms. Miller met the test for Summary Judgment?

[28] This case is primarily based on documents. If a trial were held, no doubt Mr. Taylor would testify that his intentions regarding the transfers were beyond reproach. On a first impression, one might conclude that credibility is in issue here and therefore a trial is required. The reality is that Mr. Taylor would have a step hill to climb to persuade a trier of fact that his testimony is more reliable than Ms. Miller’s. He was dishonest and misappropriated money from their business. When she discovered this, he lied to Ms. Miller as to why he took the money. He unilaterally altered the profit split without Ms. Miller’s knowledge or consent. When he was faced with a looming trial date, he transferred his interest in the ATM business to his wife’s company. When the date in an order compelling him to answer undertakings from an examination in aid of execution drew near, he made an assignment into bankruptcy.

Conclusion

[29] There is sufficient documentary evidence here to allow the court to carry out a fair and just adjudication of the dispute. The interests of justice do not require that the evidence be presented and assessed at trial. The cost savings to the parties by proceeding with a motion for summary judgment are considerable when compared to the cost of a trial.

[30] There is a preponderance of evidence in this action that supports a finding that the transfers were made with the intent to defeat, hinder, delay and defraud creditors or others, including future creditors such as Ms. Miller. After considering Mr. Taylor’s statement to the Official Receiver regarding his intention in transferring the family residence to his wife, the fact that he transferred his interest in the ATM business to his wife’s company shortly before trial, the documentary evidence, the chronology of the matter and the fact that Mr. Taylor’s own dishonest actions gave rise to the cause of action, I conclude that Mr. Taylor made the transfers in issue with the intent to defeat creditors and others such as Ms. Miller. There is no genuine issue in this action that requires a trial. Accordingly, I conclude that the transfers in issue must be set aside.

[31] An order shall issue including the following terms:

(a) James Kevin Taylor’s transfer of his interest in 310 Chambers Crescent, Newmarket, Ontario, described as PIN 03624-0092 (LT) to Rosetta DeBartolo-Taylor on May 9, 2005 is void as against James Kevin Taylor’s creditors including Ms. Miller.

(b) James Kevin Taylor’s transfer of his interest in Transact ATM Services to 2070935 Ontario Inc. on May 4, 2008 by way of an asset sale is void as against James Kevin Taylor’s creditors including Ms. Miller.

Costs

[32] If the parties are unable to agree upon the costs of this motion, the plaintiff may serve and file written submissions limited to three pages in length, exclusive of a costs outline, using 1.5 line spacing within 3 weeks of the release date of this decision. The defendants may respond using the same format within 2 weeks of service of the plaintiff’s submissions. Both submissions shall be submitted to the court through the trial co-ordinator’s office. Copies shall be emailed to my judicial assistant at Nicole.Anderson@ontario.ca.

[33] The parties are reminded of my earlier rulings that a self-represented party is entitled to a reasonable allowance for the loss of her time to prepare materials and attend on the motion. (See my endorsements in this action dated October 11, 2013 and April 13, 2015.) Even though a self-represented party may spend many hours preparing motion materials, a reasonable allowance must be less than an amount of costs that would be awarded if a party had been represented by counsel.

VALLEE J.

Released: April 24, 2015