ONTARIO SUPERIOR COURT OF JUSTICE
CITATION: Granger v. Granger, 2015 ONSC 6238
COURT FILE NO.: CV-14-512872; CV-14-516232
DATE: 20151020
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
COUNSEL:
Bruce Baron, for the Applicants
Saba Ahmad, for the Respondents
Saba Ahmad, for the Applicant
Bruce Baron, for the Respondents
HEARD: September, 22, 24, 25, 28, 29 and 30, October 1 and 2, 2015
REASONS FOR DECISION
DIAMOND J.:
Overview
[1] These two matters were originally commenced as applications. Katarina Granger (“Katarina”) is currently 82 years of age and has two children: Helena Granger (“Helena”), currently 52 years of age and John Granger (“John”), currently 47 years of age.
[2] These applications were primarily concerned with claims to legal and beneficial ownership interests in a residential property known as 75 Parkway Avenue, Toronto, Ontario (the “property”).
[3] In March 2015, both applications proceeded before me over a two day hearing. I was asked to dispose of eight separate issues jointly raised by the parties in both applications.
[4] In Reasons for Decision released on March 23, 2015, I was able to determine six of the eight issues, but ordered a trial of the remaining two issues. The outstanding two issues were framed as follows:
Issue #1: Are Katarina and Helena holding their interests in the property for John by way of a constructive trust?
Issue #2: 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?
[5] At that time, I described these proceedings as a “most unfortunate and regrettable family dispute…culminating in an immediate family being effectively torn apart”.
[6] The trial of the two outstanding issues lasted nine days, during which time I heard evidence from eleven separate witnesses. Significant credibility issues transcended the testimony of virtually every witness, especially the parties themselves.
[7] Regrettably, even I underestimated the extent to which the Granger family has been dismantled. By the conclusion of this trial, the thin fabric which barely held the Granger family together had been completely shredded.
[8] In the end, for the reasons which follow, I have answered both issues in the negative, thereby dismissing the remaining relief sought by John in his application.
Assessment of Credibility - Generally
[9] In every trial, the trier of fact is charged with determining the truth. In some cases (such as this one), that task can be rendered unenviably difficult when both sides of a dispute are motivated to offer evidence designed to “fit” within a specific theory of the case. I am reminded of the words of Justice Cameron in Prodigy Graphics Group Inc. v. Fitz-Andrews 2000 CarswellOnt 1178 (S.C.J.) when he described this approach “selective hindsight through rose-coloured glasses”. In these proceedings, such a description is quite apposite.
[10] Justice Cameron offered a non-exhaustive list of traditional criteria by which the evidence of each witness, and, where appropriate, the exhibits presented at trial, ought to be assessed:
Lack of testimonial qualification
Demeanour of Witness: apparent honesty, forthrightness, openness, spontaneity, firm memory, accuracy, evasiveness
Bias/Interest in the Outcome (if a party, motive)
Relationship/Hostility to a party
Inherent probability in the circumstances i.e. in the context of the other evidence does it have an "air of reality"
Internal consistency i.e. with other parts of this witness' evidence at trial and on prior occasions
External consistency i.e. with other credible witnesses and documents
Factors applicable to written evidence:
(a) Presence or absence of details supporting conclusory assertions
(b) Artful drafting which shields equivocation
(c) Use of language in an affidavit which is inappropriate to the particular witness
(d) Indications that the deponent has not read the affidavit
(e) Affidavits which lack the best evidence available
(f) Lack of precision and factual errors
(g) Omission of significant facts which should be addressed, and
(h) Disguised hearsay
[11] The assessment of the credibility of witnesses is especially important when bearing in mind the onus of proof. In these proceedings, I must decide whether a specific proposition of fact has or has not been established on a balance of probabilities by the party having the onus of proof.
[12] For a party to seek to discharge its legal onus of proof, the court must first be satisfied with the credibility and reliability of the evidence in order to be in a position to make the relevant findings of fact.
[13] Put another way, a moving party has the onus of factual proof of the evidence necessary to satisfy its legal burden. As stated by Justice Stinson in Zesta Engineering Ltd. v. Cloutier 2010 ONSC 5810 (S.C.J.):
“In certain instances it is simply not possible to reconcile some aspects of the evidence that was presented by the witnesses at this trial. In part, I liken the situation to attempting to assemble several old jig-saw puzzles whose various parts have sat, co-mingled, in the bottom of an actively-used desk drawer for a decade: some pieces are missing, some are undecipherable, some have changed over time and no longer fit together, and some are not what they seem to be, all due to the passage of time and intervening events. In this case my task is to use the pieces of evidence to re-create as clear a picture of past events as I can give the foregoing limitations, applying the "real test of…truth" as described above, drawing inferences where appropriate, and applying the rules of burden and standard of proof, as required.”
[14] In my original Reasons, I summarized the material facts relied upon by the parties at that time. While I continue to rely upon that summary, having now heard nine days of viva voce testimony, and reviewed additional documents produced by the parties, I find it necessary to set out a more detailed chronological history of the events which gave rise to this dispute.
The property is purchased
[15] In or around 1976, the Granger family immigrated to Canada. At that time, Katarina was married to Simun Borovak (“Simun”). Helena was 14 years old and John was 8 years old.
[16] Both Helena and John described their father Simun as violent and abusive. Helena in particular gave evidence of being verbally abused and physically assaulted at the hands of her father.
[17] The Granger family lived in a rented house in Toronto for several years before finding and purchasing the property on February 17, 1981. Title to the property was taken in Katarina’s name only.
[18] All of Katarina, Helena and John testified that in or around 1984, Simun left the Granger family “for good”. However the respective recollections of John and Katarina/Helena are different in terms of the fallout from Simun’s departure. According to John, Katarina told him that without Simun around, John needed to be the “man of the house”. John testified that school became too difficult as his mother needed him. As a result, he quit school and became initially employed on a full time basis at the YMCA as a cleaner. At that time, Katarina was on disability leave due to a work-related accident. Katarina in fact never returned to work again.
[19] John testified that while he missed his friends from school, he “did it all for his mother” as Katarina’s health was “not great” and she needed him for support.
[20] Helena testified that her younger brother was “pampered” from an early age, and that Simun had previously left the family in 1981 only to come back in 1983 because “John said he needed his father”. Helena described John as a lazy, poor high school student who was more interested in having fun with his friends. Helena denied that John was forced to quit school to take care of their mother, and that John began his early “sponge-like” tendencies (my choice of phrase) in high school.
[21] Katarina’s evidence was that John was never reliable as a son, and hung out with “very bad company” at school, occasionally using drugs. John never helped out around the house, and it was Katarina who took care of John from the outset.
John moves into the basement
[22] Sometime in or around 1985–1986, John moved from a small, closet-like room on the second floor of the property into the basement. John testified that in order to relocate, he performed some renovations to the basement including cleaning it out, framing walls and installing drywall. He essentially created a new room in which to live.
[23] John performed these renovations with the help of his friend Jeffrey Dellio (“Dellio”) who also testified at this trial and confirmed (a) John leaving high school in Grade 11 to commence working at the YMCA, and (b) assisting John with the basement renovations.
[24] As John produced photographs showing himself and his friends performing some of these renovations, I did not believe these background facts to be in dispute. However, when Katarina testified, she was so entrenched in her position that she claimed that Helena was responsible for the basement renovations, even though Helena had already moved out of the property for several years and never testified as to her involvement at all with any basement renovations.
John meets Margaret
[25] In or around 1985, John met Margaret Jurasits (“Margaret”). Save for a separation which lasted approximately two years, John and Margaret have been together ever since. John testified that Margaret moved into the basement to live with him in or around 1987.
[26] Margaret testified that she and Katarina “hit it off well” as they both spoke Hungarian. Apart from a few minor gaps, Margaret has been working on a full-time basis from around the time she finished high school.
[27] I note that while Margaret was a respondent to the original application brought by Katarina and Helena for exclusive possession of the property, Margaret is not a co-applicant with John in his application.
[28] Margaret has not advanced any request for relief in these proceedings, including seeking any beneficial interest in the property.
Helena Granger
[29] While I will have much more to say about Helena’s credibility hereinafter, I pause now to summarize Helena’s testimony with respect to these early years.
[30] In an effort to, presumably, portray herself as superior to the rest of the Granger family members, Helena testified that after completing a two year, pre-medicine Bachelor of Science from McMaster University, she spent three years at M.I.T. and graduated with a “degree” (of some sort) in both psychology and criminology.
[31] Leaving aside the fact that there was absolutely no evidence as to how Helena or Katarina could have paid for any of this education at that time, when asked how the timing of those degrees were possible given her age, Helena went back in her testimony and stated that she “fast tracked through high school” and obtained her high school diploma within three years. In the 1980s, high school lasted five years in Ontario as Grade 13 was still in existence.
[32] This evidence strained the limits of both common sense, and reality. It was the first insight into a witness who essentially said or assumed anything to avoid the mere contemplation of being incorrect.
The tenants
[33] Until 1991, the second and third floors of the property were leased to various third party tenants. In or around 1991, the property was renovated and John and Margaret moved into the third floor unit. Various tenants continued to occupy the second floor unit, off and on, into the mid-2000s.
[34] The parties gave varying evidence as to the amounts paid by the tenants for both the second and third floor units, and the timing of the increase(s) of those amounts. Helena testified that the third floor tenants paid approximately $550.00 per month, and that the second floor tenants paid $650.00 per month which increased to $700.00 per month sometime in the early to mid-1990s. The rent for the second floor unit presumably increased over the years, and I understood from Katarina/Helena that it may have increased to approximately $900.00 per month at one point.
[35] John testified that he recalled the third floor tenants paying approximately $550.00-$650.00 per month prior to he and Margaret moving in.
[36] Unfortunately, no leases to third party tenants were produced at the trial of these proceedings. I note that in the family law proceedings between Katarina and Simun, Katarina swore a financial statement in November 1987 which listed annual income of approximately $23,000.00. As Katarina had ceased working by that date, this figure is likely attributable to the rental income earned from both the second and third floor units at the time.
[37] In preparation for trial, Katarina/Helena obtained an opinion letter from Jim Parthenis, a member of the Appraisal Institute of Canada since 1987. Mr. Parthenis opined that between1996-2015, the market rent for the third floor unit would have ranged from $745.00-$1,153.00 per month.
[38] John retained the services of Andrew Cassels to counter the opinion of Mr. Parthenis. Mr. Cassels, who is not an appraiser but a real estate broker, did not enter the property. Mr. Cassels agreed with Mr. Parthenis’ rental figures chosen from 2002-2013, but believed that the amounts chosen from 1992-2001 were overvalued.
[39] In my original Reasons, one of the stated reasons for ordering the trial of the two outstanding issues was the fact that experts retained by the parties had yet to be cross-examined on their opinions. None of the experts, including Messrs. Parthenis and Cassels, were called as witnesses at trial. This was done on agreement of the parties, and with a view to ensuring the trial was completed within 10 days. The parties agreed that I could accept or not accept the opinion evidence depending upon my finding the presence of the foundational facts to substantiate any assumptions made in arriving at such an opinion.
[40] Based upon the testimony of John, Helena and Katarina I find that market rent for the third floor unit ranged from $700.00 per month to $1,050.00 per month until John and Margaret vacated the property in 2015.
The contributions of John (and Margaret)
[41] Both John and Margaret testified that from the time John lived in the basement, he paid his mother a varying sum of cash each month. These amounts represented his contributions to the property’s monthly expenses. Explained later in these Reasons, the mortgages on the property seemed to be paid by Helena during most of the relevant years. John and Margaret testified that they contributed towards payment of the property taxes, utility bills, food and regular maintenance.
[42] John’s claim for a beneficial interest in the property is based, in part, upon unjust enrichment. As I must determine whether John conferred a net benefit to Katarina as the legal owner of the property, it is important to review both the history of John and Margaret’s alleged payments, and their employment and financial history to assess whether they possessed the means to make any such payments.
[43] Both John and Margaret have produced income tax returns and various documents from their respective employers.
[44] John testified that he worked at the YMCA until approximately 1992 when his employment ceased. John stated that as a result, he went into a depression. Margaret continued to work during the years that John collected unemployment insurance. Of note, John stated that he gave most of his monthly employment insurance payments to his mother to continue the contributions towards the property.
[45] John remained on unemployment insurance until 1996. He then began employment at Hurley Corporation where he remained from 1997-2004. After he ceased working at Hurley Corporation, he was employed for a short time at Ashbury Cleaning and then Unico. However, a review of John’s income tax returns discloses that he did not earn any income between 2007-2013 and remained unemployed during those years once again collecting unemployment insurance.
[46] In summary, until 1991 John earned income of approximately $20,000.00-$25,000.00 per year. From 1992-1997, John collected unemployment insurance totaling approximately $10,000.00-$12,000.00 per year. While employed at Hurley Corporation from 1997-2004, John earned income ranging from $37,000.00-$56,000.00 per year. Since then, John’s income tax returns show a maximum of $3,000.00 in unemployment insurance collected per year.
[47] John was unemployed for approximately 11 of the past 22 years. During this time, Margaret was essentially employed on a consistent basis. While her employer changed a few times, Margaret typically earned between $35,000.00-$45,000.00 per year.
[48] In 2011 (during his second stretch of lengthy unemployment), John made a consumer proposal under the Bankruptcy and Insolvency Act listing $3,000.00 in assets and $39,000.00 in liabilities.
[49] In or around the fall of 2006, Margaret made a voluntary assignment into bankruptcy, listing approximately $3,000.00 in assets and over $40,000.00 in liabilities.
[50] Of note, neither John nor Margaret claimed any interest (legal or beneficial) in the property in their listed assets.
The 1991 renovations
[51] As previously stated, in or around 1991 John and Margaret moved into the third floor unit. Prior to this move, the third floor (and to my understanding, part of the first floor) were renovated. The renovations were overseen and carried out by Helena’s husband, Bob Sandov (“Sandov”).
[52] Sandov testified that he completed a four year electrician’s degree in his native Yugoslavia in or around 1972, and worked with his brothers in the construction business after his arrival to Canada. He describes himself as a “machinist and programmer”.
[53] John claims to have contributed significant efforts in assisting Sandov with the 1991 renovations. Katarina and Helena deny John’s contention. Sandov testified that he did carry out the 1991 renovations to the property, and to the extent that John may have assisted, John merely “held a board in place” while others did the hammering, nailing and whatever else was required.
[54] There is no dispute that John did not pay for any of the materials and/or labour (if any labour was charged by Sandov or his associates) for the 1991 renovations. At that time, John was near the end of his employment with the YMCA where he held the position of a cleaning and maintenance supervisor. I find that whatever assistance John may have provided during the 1991 renovations, those efforts were minimal given John’s age and lack of experience in the construction industry.
The purchase of the studio
[55] On July 31, 1991, Helena purchased a property municipally known as 2140 Dundas Street West, Toronto, Ontario (“the studio”). In addition to residing there, Helena and Sandov sought to renovate the property to create a dance studio for Helena to teach students. Sandov testified that he oversaw the renovations to the studio. These renovations lasted up to three years. John testified that he participated in the renovation work. As with the 1991 renovations, I find that whatever assistance John may have provided (which is denied by Sandov and Helena) was likely minimal.
[56] Helena testified that while she came up with the $5,000.00 down payment for the studio (a fact Katarina denied in her evidence), the balance of the purchase price was funded through a mortgage granted by Katarina against the property in favour of Royal Trust Corporation of Canada (“Royal Trust”). The Royal Trust mortgage was registered against title to the property on July 31, 1991. The mortgage was for $150,000.00 with monthly payments set at $1,329.00.
[57] According to Helena, there was approximately $30,000.00 owing on a prior mortgage registered against the property. I note that on Katarina’s November 1987 sworn financial statement in the family law proceedings with Simun, a $30,000.00 mortgage debt was listed as a liability.
[58] In exchange for her mother agreeing to allow Helena the use of the equity in the property to fund the purchase of the studio, Helena agreed to assume the balance owing on the prior mortgage and “roll that amount into” the Royal Trust mortgage. In other words, Helena claims to have received approximately $120,000.00 from the Royal Trust mortgage proceeds, and agreed to make payments towards the entire $150,000.00.
[59] Helena testified that as she agreed to be responsible for the Royal Trust payments, her mother was now essentially “debt free” with respect to any prior secured debts.
[60] Helena was a guarantor on the Royal Trust mortgage. There are no records showing John contributing any funds towards the payments made under the Royal Trust mortgage. There are exhibits evidencing withdrawals from a joint bank account held by Katarina and Helena which were used to make the monthly Royal Trust mortgage payments.
Leases and “rent”
[61] In my original Reasons, I noted that some of the income tax returns produced by John disclosed annual sums described as “rental payments” and claimed as expenses. At that time, the parties had produced copies of various “rent receipts”, although curiously none of those receipts were signed by Katarina as owner of the property. Those receipts were in fact signed by Helena and issued to either John or Margaret. Although Helena has been her mother’s power of attorney for many years, Helena did not testify that she signed these rent receipts in her capacity as Katarina’s power of attorney.
[62] To complicate matters further, at trial the parties produced a series of written Lease Agreements dating as far back as 1992 and continuing until 2000-2001. These leases all list Helena as the landlord, and vary year to year in listing John or Margaret as the tenant.
[63] There is no doubt that some of these leases were executed, and that in several years John claimed rental payments as expenses for income tax purposes. Accordingly, John made formal representations to Canada Revenue Agency that he paid rent for the third floor unit, and enjoyed a financial benefit by claiming those rental expenses against his income.
[64] At trial, all parties testified that these leases were in fact “shams”. However, both John and Helena gave completely different explanations as to why the leases were prepared and signed. Unfortunately, neither explanation makes any sense.
[65] John testified that the leases were prepared because Katarina or Helena required assistance in securing financing, and they needed to “make it look like” they were earning additional rental income. To begin, the leases relate to the property, and not the studio. At no time during the terms of the various leases was Helena ever an owner of the property. How would signing a lease in favour as Helena as landlord increase Katarina’s chances of obtaining financing from a lending institution? Further, there was significant equity in the property. Katarina’s credit rating could not be influenced one way or the other by leases to which she was not a party.
[66] Helena testified that the leases were executed for John and Margaret’s benefit, and in particular for John’s benefit in his applications for social assistance and unemployment insurance over the years. In order to qualify for those benefits, John needed to prove that he was incurring rent obligations. Once again, this makes little sense. The amounts claimed by John on his income tax returns do not match the amounts set out in the leases. John did not even claim any rental payments as expenses during some of the years when he and/or Margaret signed these leases. Further, John and/or Margaret signed leases during years when John was not collecting unemployment insurance.
[67] I do not accept any of the explanations offered by the parties for the existence of these leases. There must have been a reason why the parties signed so many leases over a number of years. However, they have attempted to alter the truth to suit their respective needs in these proceedings.
The refinancing of the Royal Trust mortgage
[68] The property was refinanced in September 1999, and then again in March 2013. What began as a $150,000.00 debt increased to a $250,000.00 mortgage in favour of Maple Trust Company registered against title to the property on March 28, 2003. Helena once again guaranteed this mortgage.
[69] Katarina could not offer any evidence as to the purpose of this mortgage and/or the use of the proceeds. There are no documents produced by the parties which could shed light on the allocation of the Maple Trust mortgage proceeds. It was strongly suggested to Helena in cross-examination that the Maple Trust mortgage proceeds found their way into her pocket. After initially describing herself as “Mrs. Moneybags” when referring to how often she provided financial assistance to John, Helena could not account for the Maple Trust mortgage proceeds, and essentially clammed up with answers such as “I cannot be precise about that”.
[70] In any event, it appears that the Maple Trust mortgage was being paid through Helena’s joint account with Katarina. Why would Helena agree to assume payment towards the additional debt if she had not received those proceeds?
The studio is transferred
[71] On February 28, 2003, Helena transferred title to the studio into Katarina’s name. According to Helena, this transfer was “temporary” as it was carried out for the purpose of avoiding potential claims made against Sandov by his first wife (from whom he had divorced several years ago).
[72] Leaving aside that Helena’s evidence confirms the necessary intent required for a fraudulent conveyance, if title to the studio was in Helena’s name from the outset, how could Sandov’s ex-wife have enforced any judgment against Sandov by looking to the studio, which was Sandov’s and Helena’s matrimonial home in any event? It was strongly suggested to Helena in cross-examination that the transfer of the studio to Katarina was carried out to avoid her and Sandov’s creditors. This is consistent with the Maple Trust mortgage proceeds being used by Helena and/or Sandov to fund and/or maintain their lifestyle.
[73] At one point during her cross-examination, Helena stated the transfer of the studio to her mother was done “as a trust agreement”, and that Katarina was merely holding title to the studio in trust for Helena (presumably, this would amount to some form of resulting trust). The parties did not file a copy registered Transfer between Helena and Katarina, although the consideration for that transaction was “$2.00 and natural love and affection”. Presumably, the land transfer tax affidavit would disclose whether the nature of the consideration was pursuant to a trust agreement, as that is one of the stated declaratory options for the affiant.
The 2002 Will
[74] The parties produced a copy of a draft Last Will and Testament for Katarina. The Will was prepared in early July 2002 by the law firm of Anderson Bourdon Burgess, whom the Granger family apparently used for various legal needs over the years. The draft 2002 Will was in fact faxed to John, who testified that he drove his mother to the law firm for the purpose of translating the contents of the Will to her prior to her executing it. It is John’s evidence that Katarina did indeed execute this 2002 Will.
[75] Katarina seemed to deny ever signing, or for that matter seeing the 2002 Will. Helena could not confirm one way or the other whether Katarina signed the 2002 Will.
[76] What is most interesting about the 2002 Will is its contents: Katarina’s estate is to be divided equally between John and Helena.
The $50,000.00 mortgage
[77] One of the most hotly contested factual issues at trial was the registration of a $50,000.00 mortgage against title to the studio on October 27, 2003. This was during the time that Katarina was the legal owner of the studio. A review of the registered charge discloses that Katarina granted a mortgage in favour of TD Bank in the amount of $50,000.00, and the mortgage was guaranteed by John. I note that John guaranteed this mortgage at a time when he was employed and earning approximately $56,000.00 per year.
[78] Helena testified that she knew absolutely nothing about this $50,000.00 mortgage, which proceeds she says were used by John to purchase a vehicle. She testified that in early 2006, she and Sandov planned to use the equity in the studio to fund Sandov’s business, and their intention was to obtain a mortgage for approximately $200,000.00 from the Slovenia Parishes (Toronto) Credit Union Ltd., which was Sandov’s bank for many years. Helena testified that when they arrived at their lawyer’s office to close the transaction in June 2006, she learned of the existence of the $50,000.00 mortgage which required them to increase the amount of the mortgage and “roll in” the $50,000.00 debt.
[79] There are several obvious problems with Helena’s evidence. For one, if the studio belonged to her (legally or beneficially), upon discovering that John had availed himself of $50,000.00 from the equity in her property, why would Helena simply agree to assume that debt by increasing the Slovenia Parishes mortgage? Further, on June 27, 2003 both the transfer of title in the studio back from Katarina to Helena and the registration of a $265,000.00 Slovenia Parishes mortgage were registered. It is thus impossible for Helena to have “discovered” the existence of the $50,000.00 mortgage on the very day she attended the lawyer’s office as the steps had already been taken to borrow the entire $265,000.00 to cover the $50,000.00 debt.
[80] Helena was nevertheless adamant that she never “saw one penny” of the $50,000.00, and that John duped his mother into signing a document which his mother believed was registered against title to the property, and not the studio.
[81] Katarina’s testimony was of little assistance. She could not provide any specific information about this $50,000.00 mortgage other than to repeatedly sing the praises of Helena.
[82] John testified that Helena was already in the process of arranging a mortgage against title to the studio for approximately $30,000.00, and it was agreed by all parties that that mortgage would be increased to $50,000.00 to allow John access to approximately $20,000.00 for the purpose of funding the expenses associated with significant dental work which he was consistently undergoing. There seems to be no dispute among the parties that John did undergo dental work over the years. John gave evidence that after using funds from an unsecured line of credit, he needed approximately $17,500.00 to fund those continuing dental expenses, and that he received the $17,500.00 from the mortgage proceeds which he then used to pay his dentist. John stated that the balance of the mortgage proceeds went to Helena.
[83] Like Helena, there are obvious problems with John’s evidence. For one, the bank account statements produced by John are limited and do not provide any evidence of significant withdrawals paying a dentist. In cross-examination, John responded that he withdrew cash amounts on several occasions and paid his dentist in cash. The bank account statements do not seem to reflect such transactions, especially given that John previously testified that cash withdrawals from his account were paid to his mother for his contributions towards the property.
[84] In addition, the limited bank statements produced by John confirmed that for at least several months he was making the entire mortgage payment towards the $50,000.00 mortgage. If he only viewed himself responsible for $17,500.00, why would he assume the full monthly payments? John testified that he intended to make those payments “until they totaled $17,500.00 and his debt would then be extinguished”. This makes little to no sense. The monthly payment consisted almost entirely of interest charged under the mortgage. Indeed, by the time Helena refinanced the property through the Slovenia Parishes mortgage, less than $2,000.00 in principal had been retired by John under the $50,000 mortgage.
[85] As well, once the Slovenia Parishes mortgage was registered against title to the studio, the $50,000.00 mortgage was discharged and John ceased making any further payments to retire that debt, regardless of whether he received $17,500.00 or $50,000.00.
[86] Once again, neither party provided a satisfactory, let alone realistic explanation for this factual issue.
John’s contributions to the property
[87] In addition to his and Margaret’s purported monthly payments to Katarina, John also gave evidence that he contributed physically to the property (over and above the construction of his basement room and the 1991 renovations). A summary of the physical work which John says he performed over the years is as follows:
(a) John produced a series of photographs which he claimed to support work he did to the garage located at the rear of the property. Some of the work was performed by John himself, but after encountering difficulty with shingling the roof of the garage, he hired third party workers to complete the job. It is unclear what value John is claiming for his work associated with the garage, and it is also unclear whether he or Katarina paid for some or all of the materials.
Katarina and Helena denied the extent of John’s work to the garage, and called Johan Hernandez (“Hernandez”) as a witness to counter John’s evidence. Hernandez has worked as a general contractor for 15 years, and carried out renovation work for Helena and/or Sandov over the years. He testified that he was responsible for cleaning out the garage and painting the garage door, as well as some small garage floor repairs.
(b) A patio outside the third floor unit was constructed, and although this was overseen by Sandov and funded by Katarina, John testified that he assisted with the patio’s construction much like he did for the 1991 renovations described above. Helena and Sandov denied John’s involvement.
(c) John testified that he repaired both the front and rear porches, and produced various Home Depot invoices evidencing some of the materials used for those jobs. Most if not all of those Home Depot invoices show payments made by cash, but it is not clear who funded the purchase of those materials (although John claims to be the source of those funds). Not surprisingly, Helena, Sandov and Hernandez take the opposite view.
(d) John testified that for several years the backyard was replete with garbage and refuse left there by Sandov and/or Helena, the majority of which resulted from construction and/or renovation work carried out by Sandov at other properties. John testified that he disposed of all the refuse, and hired a company known as City Seed Farms to landscape and grow fresh vegetables in the backyard.
(e) John also testified that he was responsible for the general upkeep and maintenance at the property on a monthly if not weekly basis.
[88] In addition, John described himself as fulfilling a role akin to a “property manager”. He testified as to his efforts in overseeing and resolving two property line disputes with each of the adjoining neighbours. John claims to have participated in negotiations with the neighbours, and instructed legal counsel when the matter had escalated. While it does appear that John took a lead role in terms of efforts to address these ongoing neighbour disputes, as set out in paragraphs 21-23 of my original Reasons, John was also responsible for drafting correspondence on behalf of his mother which describe the property as “my mother’s”.
Helena and Sandov divorce
[89] In or around 2010, Helena and Sandov separated. No documentation from any family law proceedings relating to Helena and Sandov was produced by the parties.
[90] From the time of her separation from Sandov, Helena has taken various steps which appear to be designed to take complete control over her mother and the property.
[91] Once she and Sandov were separated, they needed to sell the studio. At the time of their separation, the Slovenia Parishes mortgage was still outstanding against title to the studio, as was the Maple Trust mortgage against title to the property.
[92] In April 2011, Katarina executed a new Last Will and Testament. The provisions of this 2011 Will appointed Helena as the executrix and trustee of Katarina’s estate (a lawyer was to hold this position under the 2002 Will). In addition, the distribution of Katarina’s estate was now changed to provide for 40% to John, 40% to Helena and 20% to Helena’s son Christopher John Granger (“Chris”, whose name was later apparently changed to Chris Julian Granger to slight John).
[93] For her part, Katarina was unable to identify either the 2002 Will or 2011 Will, going so far as to question whether the 2011 Will contained her signature. I note that the 2011 Will was admitted as authentic and admissible by all parties.
[94] John was apparently unaware of the existence and terms of the 2011 Will. However, further evidence was tendered at trial that disclosed the existence of a more recent Will, apparently cutting John out completely from Katarina’s estate. This more recent Will was not produced by Katarina or Helena at trial.
[95] In any event, as the studio was going to be sold, Helena and Chris needed to find a new home. Despite proclaiming to be “Mrs. Moneybags” and completely financially self-sufficient for decades, Helena and Chris decided to move back to the property with Katarina, John and Margaret, and live in the second floor unit which had not been leased for approximately 5 years.
The Zigelstein Mortgage
[96] Helena and Chris moved into the second floor unit sometime in mid to late 2012. Helena testified that prior to moving in, she oversaw significant renovation work to the second floor unit to make it “livable”, presumably to her standards. Helena retained Hernandez for some if not all of that renovation work.
[97] On November 21, 2012, a $99,500.00 mortgage in favour of David Zigelstein was registered against title to the property. Katarina is the listed mortgagor, but Helena is not a guarantor of this mortgage.
[98] The timing and the amount of this mortgage are both suspect. Why would Katarina require these funds in 2012, when Helena testified that she was paying the Maple Trust mortgage? Helena gave no specific responses to assist the Court with determining why this mortgage was registered (and how Katarina even located Mr. Zigelstein).
[99] In my view, the natural inference to be drawn from the evidence (and lack thereof) is that the Zigelstein mortgage proceeds were used to fund the renovation of the second floor unit so that the second floor unit would suit the needs of Helena and Chris. This is further confirmed by the fact that once the studio was sold (described below), Helena’s proceeds of sale were used to retire and discharge the Zigelstein mortgage.
The studio is sold
[100] The studio ultimately sold on November 8, 2013 for the sum of $675,000.00. From those proceeds, Helena testified that she paid off what was outstanding under the Slovenia Parishes. mortgage, the Maple Trust mortgage and the Zigelstein mortgage. Helena stated that she received approximately $169,000.00 in net sale proceeds, although there are no documents produced by Helena to verify this amount. This transaction closed less than two years ago, yet Helena refused to produce copies of any of the contents of her solicitor’s files (a Statement of Adjustments, Trust Reconciliation Statement or even a reporting letter), which could have easily confirmed how the net sale proceeds were allocated and paid.
[101] To my review, Helena received more than $169,000.00 in net sale proceeds as various RSP and RESP accounts were opened post-closing and injected with a minimum of $140,000.00. At that time, the limited income tax information produced by Helena discloses that she earned a total of $23,000.00 income between 2011-2013.
[102] In any event, title to the property was clear after the net sale proceeds from the studio were used to discharge the Maple Trust and Zigelstein mortgages.
Katarina transfers title to herself and Helena
[103] After Helena and Chris moved into the second floor unit, title to the property was suddenly transferred from Katarina to Katarina and Helena as joint tenants. When asked about this transfer, Helena testified that the purpose of the transfer was similar to when she transferred title to the studio to her mother in 2003, and that Katarina would be able to “explain it all” when she testified. Helena stated that even though legal title was in her name, the property is “not her house” and is (somehow) being held “in trust”.
[104] When Katarina testified, she didn’t even appear aware of the existence of this transfer. Katarina certainly did not shed any light as to the purpose, timing or reason behind this transfer.
[105] To compound Helena’s tenuous explanations, on this occasion a Land Transfer Tax affidavit was executed. That affidavit confirms “$2.00 and natural love and affection” as consideration for the transfer, and does not check off either of the boxes relating to the existence of a trust agreement or trust relationship supporting the transfer. For completeness of the record, those unchecked boxes provide as follows:
“I am
□ (a) a person in trust for whom the land conveyed in the above described conveyance is being conveyed;
□ (b) a trustee named in the above described conveyance to whom the land is being conveyed.”
[106] I have no difficulty in concluding that this transfer was not the subject of any alleged trust relationship, and was carried out for the purpose of Helena acquiring the right of survivorship by reason of ownership of the property in joint tenancy.
John and Margaret are “evicted” and the property is sold
[107] The efforts on the part of Katarina and Helena to have John and Margaret move out of the property in August/September 2014 are summarized in paragraphs 27-29 of my original Reasons. In the end, I granted Katarina and Helena’s application, John and Margaret did move out, and the property was sold with the net sale proceeds being held in trust pending the trial of the two outstanding issues.
Disposition of the outstanding issues
[108] John claims a beneficial interest in the property through two avenues: proprietary estoppel and/or or unjust enrichment. His claims require me to make necessary findings of fact to support the elements of either legal theory of the case.
[109] In order to make those necessary findings of fact, John must discharge his legal onus and satisfy me that those facts “more likely occurred than not” . This is why the credibility of the witnesses, and in particular the parties, is so crucial to the disposition of the outstanding issues.
[110] In assessing the merits of almost every important factual issue, I found a chasm between the evidence of John and the evidence of Katarina/Helena. Try as I did throughout this trial to bridge that enormous gap, the credibility issues described herein caused the truth to fall into that chasm, and there is no onus upon me to send out a search party.
[111] In my view, the evidentiary record does not permit me to make the necessary findings of fact to support John’s claims. None of the parties’ evidence was credible. To use Justice Stinson’s analysis, more often than not I felt that the pieces to multiple, different jigsaw puzzles were all contained in the same box.
[112] In addition to the findings set out above, I offer these comments with respect to the credibility of each of the parties.
(a) John Granger
[113] While I can appreciate that individuals may not maintain years of records when they are not aware that those records will be required to be used in a legal proceeding, the lack of specific records on John’s part was troubling. He was unable to produce one document that clearly showed a transfer of funds from himself to his mother. John relied on limited bank statements to state that any cash withdrawal(s) contained therein was in turn remitted to his mother. This does not satisfy me on a balance of probabilities that such transfers occurred, especially in light of John’s financial situation over the years.
[114] John made specific representations to Canada Revenue Agency, and presumably on his unemployment insurance applications, from which he seeks to resile in this trial. To repeatedly state that “Helena looked after these things” is insufficient.
[115] John’s characterization of the property as “his mother’s” in more recent years is also difficult to reconcile with his trial testimony. In cross-examination, John gave several rambling answers that did not specifically respond to the questions posed of him, and when confronted with inconsistent statements from prior cross-examination upon his original affidavits, John was evasive and on one occasion even answered that his previous evidence (given only months earlier) was “wrong”.
(b) Katarina Granger
[116] While there is medical evidence to support that Katarina is competent to give instructions to her lawyer, during her testimony I questioned whether Katarina has any recollection at all of the various incidents giving rise to this dispute.
[117] Katarina consistently and repeatedly offered stock answers such as “Helena handled everything”, “Helena always helped me and John did nothing” and “Helena always looks out for me”. These responses sounded rehearsed, and likely served as “go to answers” when Katarina either didn’t understand the question, or didn’t want to give the actual answer. The fact that Katarina denied signing the 2011 Will showed me the extent to which her testimony could venture in the event she felt she was giving the “wrong evidence”.
[118] During Katarina’s testimony, Helena was seated in the back of the courtroom. On several occasions after Katarina answered the questions posed by counsel, Helena would exclaim phrases such as “no, that’s not right” or “she is not understanding the question”. It appeared that Helena was either expressing disappointment with her mother’s evidence, or even worse, trying to remind or influence her mother to “stick to the script”.
(c) Helena Granger
[119] In their testimony, John and Margaret described Helena as an aggressive, domineering, stubborn bully. Helena came as advertised, and then some.
[120] During her examination in-chief, Helena testified about receiving various e-mails from John and either responding to them or subsequently speaking to him on the phone. When presented with her prior sworn testimony disavowing her use of that e-mail address at the relevant times, Helena was asked to explain these apparently irreconcilable positions. Shockingly, her response was that at trial, she was offering “the truth for the judge, and not for you counsel”. Helena effectively admitted that she viewed it permissible to tell a different story to John’s counsel than the one she spun to the Court at trial, purportedly taking the same oath.
[121] Helena was rude, attacking John’s counsel with booming, loud answers which ranged from condescending to disrespectful. She consistently cut off John’s counsel during her questioning with statements such as “come on Ms. Ahmad, you know better than that”.
[122] I have little to no doubt that Helena has orchestrated all of the events giving rise to the transfer of the property to herself and Katarina in joint tenancy and the execution of new Wills.
[123] Despite my disbelieving Helena and Katarina, the claims adavanced by John turn in large measure upon whether he has provided evidence to support the facts needed for the remedies sought. As John bears the onus of proof, and I do not find his evidence to be credible either, John’s claims must be dismissed and the outstanding issues are answered in the negative for that reason alone.
[124] For completeness of the exercise, I will nevertheless address the two outstanding issues.
Issue #1: Are Katarina and Helena holding their interests in the property for John by way of a constructive trust?
(a) Proprietary Estoppel
[125] As set out by the Court of Appeal for Ontario in Clarke v. Johnson (2014), 2014 ONCA 237, 371 D.L.R. (4th) 618 (C.A.), proprietary estoppel may form the basis of a cause of action. A moving party must establish three elements:
(a) the owner of the property induces, encourages or allows the claimant to believe that he/she has or will enjoy some right or benefit over the property;
(b) in reliance upon his/her belief, the claimant acts to his detriment to the knowledge of the owner; and
(c) the owner then seeks to take unconscionable advantage of the claimant by denying him/her the right or benefit which he/she expected to receive.
[126] While a claimant’s detriment excludes expenditures and payments, countervailing benefits may also be considered by the Court. If the situation cries out for an equitable approach, the Court does have a broad discretion to fashion an appropriate remedy.
[127] As I will explain when addressing John’s claim for unjust enrichment, I am not sure to what extent John acted to his detriment given the fact that he and Margaret would have to account for the rental expenses associated with living in the third floor unit for over 25 years. In other words, I am not sure how John has suffered a “net detriment”. However, John’s claim for proprietary estoppel can be dismissed for other reasons.
[128] To begin, John must convince this Court of his expectation, and the existence of a belief that he has or will enjoy some right or benefit over the property. Like a rambunctious toddler, John’s evidence on this issue is all over the place, and internally irreconcilable.
[129] These proceedings were initiated by an application by Katarina and Helena for exclusive possession of the property. That application was issued and served in late September 2014. In response, John (and not Margaret) issued his own application seeking declaratory relief that he is a “beneficial owner of his family’s home”, or alternatively, that Katarina and Helena are holding “a portion of their interest in the property on a constructive trust”. In support of his application, John listed the following grounds:
● Initially, Katarina promised John could reside at the property indefinitely and that one day, John and his older sister Helena Granger would equally inherit the property.
● Later, Katarina told John the property was his and that he would inherit the whole of the property upon his mother’s death.
[130] Accordingly, the theory of John’s case from the outset was that in exchange for his mother’s promise that he would inherit half or all of the property (and not the estate) upon Katarina’s death, he allegedly acted to his detriment and remained at the property with Margaret and his mother.
[131] In his initial affidavit sworn on November 17, 2014, John gave the following evidence:
“At that time, my mother told me the house was ours. She said that when she died, she wanted it to be half mine and half my sister’s”.
[132] Later in the same affidavit, John updated his evidence:
“I objected to helping Helena. But my mother said it was my responsibility to help her. She appeased me by saying that the studio would be Helena’s and the house would be all mine upon my mother’s death.”
[133] This evidence was as pure as John’s evidence could be as it was given by way of initial affidavit prepared by his lawyer with an opportunity to ensure John’s story was properly “captured on paper”. John presumably reviewed the affidavit before signing it.
[134] His affidavit evidence was consistent with some of John’s evidence at trial, when he testified that he understood that he would inherit the property and Helena would keep the studio, as equity from the property had already been used to fund the purchase of Helena’s studio. However, his affidavit evidence is clear that whether he would own half or all of the property, his interest would not vest until Katarina’s death.
[135] In John’s supplementary affidavit sworn January 30, 2015, he gave the following additional evidence:
“My mother said she needed me and was unable to get by without me. She asked me to take care of her and so I did. She told me that in appreciation of my sacrifices, the home was half mine. She repeated these promises to me and to other people.
My stake in the house is why I stayed and put up with Helena’s antics over the years, as I will further describe in this affidavit.”
[136] Additional witnesses were called at trial with a view to supporting John’s theory that the property was his during Katarina’s lifetime. Dellio testified that he recalled seeing John put cash in an envelope to be given to Katarina sometime in the late 1980s, and that John’s payments to his mother “may have been rent”. Dellio confirmed that John never discussed his interest in the house with him.
[137] Devon Thompson, a friend of John since 1991, testified that Katarina told him that John took care of the house because “it belonged to him”. However, on cross-examination Mr. Thompson was less certain and at one point stated that he assumed that John lived at the property as some form of “renter” as Katarina owned the house.
[138] Margaret’s mother Marta Jurasits (“Marta”) was also called as a witness at trial. Marta was very emotional about the Granger family ordeal. She testified that Katarina told her on at least three occasions that “Helena has the studio and John has the house” and that Katarina wanted to live in the house until she died. Unfortunately, Marta’s evidence was not clear as to whether the property was John’s during or after Katarina’s lifetime.
[139] Margaret’s brother Dennis Lajos gave testimony that he understood the property was Katarina’s home, and he did not know what would happen upon her death. He then testified that he believed the property was owned by Katarina, John and Margaret because of all the time and money spent at the property by all of them.
[140] To confuse matters further, in closing submissions John asked for a declaratory order that he holds a 50% beneficial interest in the proceeds of sale of the property. Presumably, if John owned the house during Katarina’s lifetime then his beneficial interest would have vested before the 2012 transfer from Katarina to Katarina and Helena. Why would John not seek and be entitled to a 100% beneficial ownership interest in the property if it was his? Is John now saying that he owned the property jointly with his mother by way of 50% beneficial interest?
[141] During these proceedings, John’s evidence on these key issues has changed, and his positions have morphed. At different times, John has stated that his expectation was: (a) he would inherit 50% of his mother’s estate with Helena, (b) he would inherit the property and Helena would keep the studio, (c) he owns 100% of the property “now” (although “when” his ownership of the property commenced is not clear) and (d) he shares ownership with his mother “now”.
[142] Presumably, the latter two positions were advanced to try and create an interest in the property which pre-date the transfer from Katarina to Katarina and Helena, as John did not advance any request to have that transfer set aside.
[143] These varying positions highlight the credibility issues with John’s evidence. Of the various responses, John’s most consistent one was that he expected to inherit the property upon his mother’s death, and in reliance upon that representation he acted to his detriment. Given his participation in Katarina’s signing of the 2002 Will, even that response is doubtful. Even if I accepted this position, any beneficial interest in the property which John claims to own has yet to vest, and since Katarina is still alive there is nothing which this Court can convey to John.
[144] In Cowderoy v. Sorkos Estate 2014 ONCA 618 (C.A.), the Court of Appeal for Ontario was asked to consider a decision in which the trial judge granted a beneficial interest in properties based upon the doctrine of proprietary estoppel, and ordered the defendant’s estate to convey title to the properties to the plaintiffs. Unlike in the case before me, the trial judge in Cowderoy found the presence of sufficient evidence of an agreement, and part performance, to justify specific performance of a promise by the deceased to bequeath the properties to the plaintiffs.
[145] In allowing the appeal, Lauwers J.A. stated (emphasis in bold):
“The Estate Trustee argues that the trial judge was wrong to rely on the doctrine of proprietary estoppel to reach that result. That may be, but it is of no assistance to the Estate. His finding of part performance of the Breakfast Agreement was enough to warrant imposition of the remedy of specific performance.
However, in my view, the trial judge erred in requiring the Estate to convey the properties to the Cowderoys as a remedy for Gus’s failure to bequeath them as he had promised. He found a promise to bequeath, but turned it into an obligation to convey. The promise that the trial judge found to be enforceable was that Gus would bequeath the farm and cottage properties to the Cowderoys. The trial judge ought to have ordered that the promise was to be enforced, and the bequest deemed to have been in Gus’s will. Consequently, the properties are in the Estate, albeit now subject to the term that they are to go to the Cowderoys.
[146] None of the three elements of proprietary estoppel exist as yet. John has not proven that (a) he was promised a present interest in the property by Katarina (or Helena), (b) he relied upon such a promise to his detriment, or (c) he has been treated unconscionably by Katarina. John’s execution of the various leases with Helena, and his representations to Canada Revenue Agency that he leased the property, completely belie John’s claim that he owned all of even half of the property.
[147] Perhaps John’s complaints will resurface in potential estate litigation at some point in the future. However, at this point, John’s claim for a beneficial interest in the property based upon proprietary estoppel fails.
(b) Unjust enrichment
[148] I reiterate that it is only John who is advancing a claim to a beneficial interest in the property. Despite Margret being a respondent to the initial application commenced by Katarina and Helena, Margaret has not claimed any beneficial interest in the property.
[149] Counsel for John submitted in closing argument that any payments made by Margaret to Katarina over the years were either on John’s behalf, or “collectively” on behalf of the “unit” of John and Margaret, and as such ought to be credited to John. Counsel for John went so far as to characterize the relationship between John/Margaret and Katarina was akin to a spousal one.
[150] I disagree. Some of the acts undertaken by John and Margaret would be those of a dutiful son and daughter-in-law. Margaret’s money is hers. John and Margaret filed separate tax returns in each and every year. The rental expenses were only claimed on one of their tax returns.
[151] To the extent Margaret made any payments (which I do not find to be that often), those payments are credited to Margaret. Margaret was quite clear in her evidence that she would make payments to Katarina when John was not able to do so. If John and Margaret viewed any payments they made to be joint, then they ought to have advanced a joint claim for a beneficial interest in the property. They did not, and I am thus left to assess John’s claims that he provided a net benefit to Katarina over the years that he and Margaret resided at the property.
[152] Given my conclusions with respect to the market rent for the third floor unit, I do not find that John conferred a net benefit to Katarina. While there may be value in John overseeing some of the work which he described in his testimony, he and Margaret resided in the property for nearly 30 years (25 of which in the third floor unit), and the total amount of rent due to Katarina during that period totals somewhere between $250,000.00-$350,000.00.
[153] As stated previously, any evidence of alleged payments made by John (and Margaret) to Katarina over the years is significantly lacking. John was unemployed for significant stretches of time during that period, and I do not accept that he simply handed over his employment insurance cheque to his mother. While I am prepared to accept that John and Margaret did make some financial contributions over the years, even accepting Margaret’s money as being tendered to Katarina on John’s behalf (which I do not), the total of those payments do not come close to surpassing the $250,000.00-$350,000.00 John and Margaret would have incurred for rental payments only.
[154] In Brownlee v. Kashin 2015 ONSC 1035 (S.C.J.), Justice Corbett dismissed a claim for unjust enrichment and held as follows:
“Where this case parts from Deglman is on the issue of detrimental reliance and unjustified benefit to the promisor. I am not persuaded that Mr Brownlee changed his position to his detriment on the strength of Mr Kashin’s confirmations of a “lease to own” agreement. Mr Brownlee made the monthly payments of $1200, but that enabled him to collect rent from his tenants and, until 2009, occupy space with his own retail business. I am satisfied that Mr Brownlee earned a net profit from his occupancy of the properties, which is why he continued to occupy them for more than seven years. Mr Brownlee did not provide evidence of his gross rental income, his total expenses, and his resulting net position from his business operating these properties. I infer from this absence of evidence that Mr Brownlee did not suffer a detriment from the overall arrangements. Rather I am satisfied that Mr Brownlee earned a net profit from his occupancy of the properties, which is why he continued to occupy them for more than seven years.”
[155] I find that John did not confer any net benefit upon Katarina, which is the first requirement of the well-known test for unjust enrichment. Even though domestic services are capable of supporting a claim for unjust enrichment, on a net analysis John cannot satisfy the first element of the test and his claim for a beneficial interest in the property on the basis for unjust enrichment fails.
Issue #2: 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?
[156] In John’s closing submissions, both oral and written, he made no formal request for damages for financial and/or other contributions allegedly made. No sum was proposed, and no breakdown of any sum was provided.
[157] As I have dismissed John’s claims to a beneficial interest in the property, I cannot grant any monetary award on the basis of unjust enrichment (as an alternative to a proprietary award).
[158] I note that John did not plead, rely upon or argue section 37 of the Conveyancing and Law of Property Act R.S.O. 1990 C.34, and thus I am unable to make any assessment as to the availability and appropriateness of such an award.
[159] As such, Issue #2 is also answered in the negative, and as a result John’s claim for monetary damages fails.
[160] John’s application is thus dismissed and the net sale proceeds may be released upon the joint instructions of Katarina and Helena.
Costs
[161] After a trial, the Court will normally request the parties to discuss the issues of costs of the proceedings, and absent agreement serve and file written submissions.
[162] Even though John’s application has been dismissed, and I reserved the costs of both applications to myself pursuant to my original Reasons, I find that all parties were not credible and have displayed unreasonable conduct throughout this trial and these proceedings.
[163] Awarding no costs may not be a typical result, but ought to be the result when parties deserve admonishment for their misconduct and revisionist approach to history.
[164] As such, there shall be no costs of either proceeding.
Diamond J.
Released: October 20, 2015
CITATION: Granger v. Granger, 2015 ONSC 6238
COURT FILE NO.: CV-14-512872; CV-14-516232
DATE: 20151020
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: October 20, 2015