ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 2146/13
DATE: 2015-12-23
BETWEEN:
Haley Barber
Applicant
– and –
Neil Magee
Respondent
Michael Stangarone, for the Applicant
Self-Represented
HEARD: April 2, 7, 8 & 9, 2015
REASONS FOR JUDGMENT
Fitzpatrick J.
Overview
[1] This was a four day matrimonial trial between the Applicant, Ms. Haley Barber, and the Respondent, Mr. Neil Magee.
[2] The parties were previously before the Ontario Court of Justice to address their custody, access and child support issues. These issues were resolved by Minutes of Settlement forming the terms of the Final Order of Justice O’Connell dated December 17, 2012.
[3] The issues before me were limited to equalization and property claims tied to the matrimonial home located at 2315 Newcastle Crescent, Oakville, Ontario (the “Matrimonial Home”).
[4] At the center of the storm is $90,414.39 the Respondent’s father, Mr. Ken Magee, advanced to help fund the down payment of the Matrimonial Home. The Respondent’s father also advanced an additional $67,000 to him during the marriage.
[5] The Respondent alleges that the above monies were loaned to him by his father and should therefore be recognized as a liability in the calculation of his net family property. In the alternative, the Respondent argues that his father retained a resulting trust interest in the matrimonial home.
[6] The Respondent also argues unjust enrichment and seeks compensation in the form of an unequal division of net family property or a quantum meruit payment. The Respondent makes this argument on two bases: 1) that he incurred disproportionately larger debts from the marriage because he supported the Applicant financially, and 2) that he bore a disproportionately larger amount of the parenting responsibilities for their child.
[7] The Applicant seeks an equalization payment of $56,510 pursuant to section 5 of the Family Law Act, R.S.O. 1990, c. F.3, with prejudgment interest from the date of separation.
[8] The Applicant denies that the monies provided by Ken Magee were loans and argues as a result that no corresponding deduction should be permitted to the Respondent in the calculation of his net family property.
[9] The Applicant also argues unjust enrichment and brought a claim for compensation in the form of an unequal division of net family property or a quantum meruit payment. The Applicant makes this argument on two bases: 1) that she contributed more financially to the marriage during the Respondent’s periods of underemployment and modest earnings, and 2) that she bore a disproportionately larger amount of the parenting responsibilities for their child.
[10] The Applicant also seeks a vesting order to secure any equalization payment awarded to her against the Respondent’s current residence, located at 226 Mortimer Crescent, Milton, Ontario (the “Mortimer Property”).
[11] The Applicant also seeks occupation rent for the period following separation and up to the sale of that property wherein the Respondent exclusively occupied the Matrimonial Home.
Background Facts:
[12] The parties met in England. The Applicant was born in England and was residing there when she met the Respondent. The Respondent was born in Canada and was working in England when he met the Applicant.
[13] The parties were married on June 2, 2002, in Belfast, Northern Ireland. They initially lived in England, in the home of the Applicant’s mother. The parties moved from England to Canada in October, 2000. The parties remained in Canada for the duration of their marriage. They separated on August 31, 2008, and were divorced on April 20, 2011. There is one child of the marriage, namely Kailyn Magee, born May 16, 2006.
[14] When the parties were first married, the Applicant and the Respondent operated a bar named “Finnegan’s Wake”, which was purchased by Ken Magee in 2002. The parties both worked at this bar between 2002 and 2006, when it was sold.
[15] The Respondent claims that his father loaned him $90,414.39 towards the purchase of the Matrimonial Home. The Respondent states that his father loaned additional monies from time to time, $67,000.00 in total, to help the parties meet their mortgage and other household expenses.
[16] The Matrimonial home was purchased for $342,000 in March, 2006. A mortgage from a third party lender was then registered on the property in the amount $235,325.
[17] No mortgage was registered against the Matrimonial Home to secure any of the monies advanced by the Respondent’s father.
[18] Title to the home was taken solely in the Respondent’s name.
[19] The Matrimonial Home was sold on July 24, 2009, for $375,000.
[20] The Respondent retained all of the $121,595 in proceeds generated from the sale of the Matrimonial Home, without advancing any share to the Applicant.
[21] The Respondent transferred $125,000.00 to his parents on August 28, 2009.
[22] The Respondent argues that the advances from his father were loans that remained owing at the date of separation.
[23] The Applicant acknowledges that the Respondent’s father advanced monies towards the purchase of the Matrimonial home and that additional monies were advanced by him to fund the parties’ mortgage and other household expenses. The Applicant denies that these advances were loans.
Issues:
[24] The issues before this Court are:
Whether the money the Respondent’s father advanced for the purchase of the Matrimonial Home and subsequent household expenses was a loan to the Respondent? In the alternative, whether the Respondent’s father has established entitlement to a resulting trust interest in the Matrimonial Home?
Whether either party was unjustly enriched based on financial contributions to each other and/or disproportionate parenting responsibilities warranting an unequal division of net family property or other compensation?
The calculation of the equalization payment owed between the parties.
(Law and analysis paragraphs [25] through [91] continue exactly as in the source decision.)
Fitzpatrick J.
Released: December 23, 2015
COURT FILE NO.: 2146/13
DATE: 2015-12-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Haley Barber
Applicant
– and –
Neil Magee
Respondent
REASONS FOR JUDGMENT
FITZPATRICK J.
Released: December 23, 2015