Court File and Parties
COURT FILE NO.: FS-15-0028-00 DATE: 2016 04 25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SHERAZ HUSSAIN Self-Represented, in person Applicant
- and -
RABEEA SHERAZ and AMNA MAKKI Glen A. Cook, Counsel for Rabeea Sheraz Amna Makki, Self-Represented, in Person Respondents
HEARD: April 20 & 21, 2016
RULING
Baltman J
Introduction
[1] Mr. Hussain and Ms. Sheraz married in February 2003, and had two children, now aged eleven and eight. They formally separated in December 2013, although they began living apart before that.
[2] The couple have resolved all their marital issues except one: how to divide the proceeds of $41,840.93 from the sale of a home purchased by Ms. Sheraz’s sister, Amna Makki, on July 2, 2013. Although the home was registered solely in Ms. Makki’s name, Mr. Hussain claims that he contributed over half of the $92,000 down payment of the home and is therefore entitled to one half of the proceeds, i.e. $20,920.46. In other words, he claims a resulting trust in the property.
[3] Ms. Sheraz (along with Ms. Makki, who was added as a party to this action) says he contributed zero, so that’s what he should get.
Evidence and Analysis
[4] A party seeking to establish a resulting trust must show that he in fact contributed to the purchase price of the property. Mr. Hussain claims that the house in question was intended to be the matrimonial home for himself and Ms. Sheraz, but that because of their poor credit rating they could not secure a mortgage. Therefore, he says, it was agreed that Ms. Makki would buy the house in her name but they would all live there together and share the cost.
[5] To demonstrate his contribution to the purchase price Mr. Hussain relies primarily on the printout from his checking account during the relevant period. He points, in particular, to a cheque that he wrote on May 13, 2013, in the sum of $29,000, and to various cash withdrawals that he made on April 23 and June 25, 2013, which total $18,807.
[6] The problem is there is no evidence that these funds were directed to the down payment on the house. Mr. Hussain claims that the cheque was made out to Imran Gondal, a friend who also acted as the real estate agent on the purchase. He says he also gave the cash to Mr. Gondal. But he has no proof whatsoever: no receipt; no bank draft or cancelled cheque; and no evidence from Mr. Gondal.
[7] His claim is also inconsistent with the undisputed facts. In his 2011, 2012 and 2013 income tax returns he reported line 150 income of $10,150, $11,500 and $12,200, respectively - nowhere near enough to have saved the money he claims he invested. Mr. Hussain then explained that he borrowed the money for the down payment; however, he could not account for why he shows no loans on the financial statement he swore on January 26, 2015 (five months after the house was sold), other than $3,000 owed to MasterCard.
[8] Finally, it strikes me as peculiar that Mr. Hussain, who is clearly an intelligent man, would have advanced money to his sister-in-law for this property without a written agreement or at least some written confirmation of his contribution. By the time she purchased the property his marriage was faltering badly, if not completely over. Why then entrust his wife’s family with tens of thousands of dollars, without legal proof of his investment?
[9] I recognize that for the first several months in 2014 Mr. Hussain and Ms. Makki held a joint bank account. Mr. Hussain relies on the fact that mortgage payments were made from that account. The evidence on this issue was murky, but the joint account appears to have been either an attempt to rehabilitate Mr. Hussain’s admittedly poor credit history and/or part of a naïve belief on the part of Ms. Sheraz’s family that embracing him within the family might encourage the couple to reconcile. In any case there is no evidence that Mr. Hussain contributed any money to the account, much less to the actual mortgage payments.
Conclusion
[10] For the above reasons I conclude that Mr. Hussain has failed to establish that he made any contribution whatsoever to the house purchased by Ms. Makki. His claim is dismissed in its entirety.
[11] If either respondent seeks costs they are to serve and file written submissions not exceeding five pages, double spaced, along with a Bill of Costs, by no later than May 5th. Any response by Mr. Hussain shall be served and filed by no later than May 16th. There shall be no reply submissions without leave of the court.
Baltman J