ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIFFANY CARROLL
Plaintiff
– and –
YVETTE GARNETT
Defendant
G. Acosta, Counsel for the Plaintiff
J. Owen N. Bury, Counsel for the Defendant
HEARD: February 9-12, 2016
RASAIAH J.
REASONS FOR DECISION
OVERVIEW
1The parties are mother and daughter.
2The Plaintiff, Tiffany Carroll (“Plaintiff”) is 32 years of age, employed full-time as an administrative assistant for Mersen Canada Toronto Inc., and part-time as an educational resource facilitator for the Peel District School Board.
3The Defendant, Yvette Garnett (“Defendant”) is 54 years of age and is employed full-time as a forklift operator at Dicom Express and part-time as an inventory clerk at Data Direct.
4The Plaintiff and the Defendant are the registered joint owners of the property municipally known as 834 Golden Famer Way, Mississauga, Ontario, legally described as Part Block 260, Plan 43M-1246, Des Pt. 3 on Plan 43R-23135, Mississauga, bearing PIN 13213-1482 LT (“the property”). The property is a semi-detached two-story residence located in a residential subdivision.
5The parties resided together at the property from 2004 to 2008 and 2010 to 2014 (details are set out further in the body of this decision). Unfortunately, their relationship broke down in 2014. The Plaintiff moved out of the property on or about the end of July 2014. The Defendant still currently resides at the property.
6A Notice of Application dated September 24, 2014 was issued by the Plaintiff, wherein she made application against the Defendant for:
(a) an order directing the sale of the property;
(b) a declaration that she is entitled to claim from the Defendant one-half of all expenses on a retroactive basis as well as any future expenses of the mortgage payments, repairs, improvements, property taxes and all other encumbrances in relation to the property and that this amount be deducted from the Defendant’s share of the net proceeds of the sale of the property;
(c) an order that the property be sold and the net proceeds be divided between the Plaintiff and the Defendant in equal portions, subject to paragraph (b) above;
(d) an order directing a reference, if necessary, to make all necessary enquiries, to take accounts, to determine the respective interests of the parties and to give directions for the conduct of the sale of the property if a sale is ordered;
(e) an order directing the Defendant to cooperate with the Plaintiff and the Plaintiff’s real estate broker in listing the property for sale and selling the property at a price to be stipulated, and in arranging for and conducting showings and open houses in order to effect a sale of the property;
(f) pre-judgment and post-judgment interest in accordance with the Courts of Justice Act; and
(g) costs.
7Issue arose during the course of the Application regarding payment of the property expenses pending determination of the Application. On an interim basis, on December 5, 2014, the Honourable Mr. Justice P.A. Daley (“Justice Daley”) ordered that on a without prejudice basis the Defendant make all mortgage and other payments with respect to the property on the date they are due, pending the return of the Application and provide proof of such payments to the Plaintiff immediately thereafter. He further ordered that the Defendant on a without prejudice basis provide copies of the utility bills, or other documents, demonstrating that the utility bills for the property had been paid in full to that date, and if such bills had not been paid up to date, that the Defendant shall pay such bills immediately and forward proof of payment to the Plaintiff immediately thereafter.
8On March 12, 2015, the Honourable Mr. Justice I. Bloom (“Justice Bloom”) ordered that the property be sold. He further ordered that there be a trial of the issues regarding the respective entitlement of the parties to the proceeds of sale, and the appropriate terms for the conduct of the sale. He ordered that the affidavit materials filed at that date would constitute the pleadings and discoveries subject to any directions of the judge trying the issues. Finally, he ordered costs payable by the Defendant to the Plaintiff from the Defendant’s share of the proceeds of the sale in the amount of $3,000.00.
9The Plaintiff claims she is a true joint owner of the property, both legally and beneficially. The Plaintiff states that it was intended from the date the parties agreed to look for a home and live together that they would be joint owners. She would not otherwise have agreed to purchase a property; commit herself to a mortgage; contribute what she did; and tie herself to property for the time she did. The Plaintiff’s position is that with the exception of July 2008 to June 2010, she significantly contributed to the acquisition, preservation and maintenance of the home close or equal to one half of the expenses. From July 2008 to 2010 different arrangements were made between her and the Defendant as a result of the Plaintiff moving out of the home. This arrangement resulted in the Defendant being able to continue to live there and avoid a sale. As to the proceeds, the Plaintiff claims that the proceeds from the sale should be divided equally in accordance with their joint ownership, subject to an accounting for debts paid for the benefit of each respective party that were included in past mortgage refinancing transactions.
10The Defendant claims that while the Plaintiff’s name is on title as a joint owner, the Plaintiff is not a beneficial owner of the property. The Defendant claims that she is the sole beneficial owner of the property. In particular, the Defendant claims that the Plaintiff was only ever to be a co-signor to permit her to obtain a mortgage to purchase a home. The Defendant claims no consideration was given by the Plaintiff for the purchase of the property. She relies on resulting trust.
11If the court does not find a resulting trust, the Defendant asserts an alternative claim, namely unjust enrichment and seeks the remedy constructive trust or monetary award. The Defendant claims that the Plaintiff had very little to do with payments towards the property. The Defendant claims she paid significantly more than the Plaintiff and that the Plaintiff would be unjustly enriched with the equal division proposed by the Plaintiff. In respect of the division of the proceeds, the Defendant seeks to be compensated for all of the contributions she made to the property, and an accounting of the debts paid for the benefit of each respective party that were included in past mortgage refinancing transactions. She also seeks to have the payment of a joint visa and joint line of credit that were paid and included in the last mortgage refinancing transaction attributed to the Plaintiff in the accounting on the basis that, she did not incur these debts or receive any benefit of funds drawn on them.
12Accordingly with respect to the property, the main issues are: (a) a determination of the legal and beneficial owner(s) of the property; (b) the conduct of and terms for the sale of the property; and (c) the division of the net proceeds of the sale of the property.
13The Plaintiff brought a motion at the start of trial to amend her claim to include a claim for punitive damages in the amount of $30,000.00 alleging that the Defendant engaged in high-handed, egregious and oppressive conduct. That conduct she claimed included the following:
(a) In January of 2016, the Defendant listed the property for sale without her consent or authority;
(b) The Defendant did not advise the Plaintiff that the property was being listed for sale;
(c) The Defendant, despite numerous requests made by the Plaintiff to have her real estate agent access the property to inspect and evaluate the property before the listing, refused or neglected to allow access;
(d) The Defendant refused to cancel the property listing despite numerous requests made by the Plaintiff; and
(e) The Defendant has stalled and delayed the sale of the property since Justice Bloom’s March 12, 2015 order.
14The Defendant consented to the amendment. The Defendant’s position is that she did not act in a malicious or high-handed manner with respect to the January 2016 listing and punitive damages should not be awarded against her.
15The parties at the start of the trial filed a two volume joint exhibit brief, Exhibit 1, and agreed that the documents be accepted as authentic, and further that the documents be accepted for the truth of their contents. This included affidavits of the parties, which during the course of the trial the parties adopted as true and as evidence on the trial, subject to corrections they made during their oral testimony. Three documents were removed from Exhibit 1 on consent; namely, one email and two affidavits, as they ought not to have been filed and/or were unrelated or included by error.
THE LAW
Resulting Trust, Unjust Enrichment and Constructive Trust
16The Supreme Court of Canada in Pecore v. Pecore, [2007] 1 SCR 795, 2007 SCC 17 at paragraph 20 stated:
A resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner: see D.W.M. Waters, M.R. Gillen and L.D. Smith, eds., Waters’ Law of Trusts in Canada (3rd ed. 2005), at p. 362. While the trustee almost always has the legal title, in exceptional circumstances it is also possible that the trustee has equitable title: see Waters’ Law of Trusts, at p. 365, noting the case of Carter v. Carter (1969), 1969 CanLII 756 (BC SC), 70 W.W.R. 237 (B.C. S.C.).
17The Supreme Court of Canada in Pecore v. Pecore, supra, at paragraph 24 stated:
The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts.
18Unjust enrichment and the remedies including constructive trust and monetary award were analyzed in the case of Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 (S.C.C.). The Supreme Court of Canada per Cromwell J. (McLachlin C.J.C., Binnie, LeBel, Abella, Charron, Rothstein JJ. Concurring) in paragraphs 31 to 34, 36 to 41, 44 to 45, 47, 50 to 53 and 85 wrote:
[31] At the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain: Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762 (S.C.C.), at p. 788. For recovery, something must have been given by the plaintiff and received and retained by the defendant without juristic reason. A series of categories developed in which retention of a conferred benefit was considered unjust. These included, for example: benefits conferred under mistakes of fact or law; under compulsion; out of necessity; as a result of ineffective transactions; or at the defendant’s request: see Peel, at p. 789; see generally, G. H. L. Fridman, Restitution (2nd ed. 1992), c. 3-5, 7, 8 and 10; and Lord Goff of Chieveley and G. Jones, The Law of Restitution (7th ed., 2007), c. 4-11, 17 and 19-26).
[32] Canadian law, however, does not limit unjust enrichment claims to these categories. It permits recovery whenever the plaintiff can establish three elements: an enrichment of or benefit to the defendant, a corresponding deprivation of the plaintiff, and the absence of a juristic reason for the enrichment: Pettkus; Peel, at p. 784. By retaining the existing categories, while recognizing other claims that fall within the principles underlying unjust enrichment, the law is able “to develop in a flexible way as required to meet changing perceptions of justice”: Peel, at p. 788.
[33] The application of unjust enrichment principles to claims by domestic partners was resisted until the Court’s 1980 decision in Pettkus. In applying unjust enrichment principles to domestic claims, however, the Court has been clear that there is and should be no separate line of authority for “family” cases developed within the law of unjust enrichment. Rather, concern for clarity and doctrinal integrity mandate that “the basic principles governing the rights and remedies for unjust enrichment remain the same for all cases” (Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980 (S.C.C.), at p. 997).
[34] Although the legal principles remain constant across subject areas, they must be applied in the particular factual and social context out of which the claim arises. The Court in Peter was unanimously of the view that the courts “should exercise flexibility and common sense when applying equitable principles to family law issues with due sensitivity to the special circumstances that can arise in such cases” (p. 997, per McLachlin J. (as she then was); see also p. 1023, per Cory J.). Thus, while the underlying legal principles of the law of unjust enrichment are the same for all cases, the courts must apply those common principles in ways that respond to the particular context in which they are to operate.
[36] The first and second steps in the unjust enrichment analysis concern first, whether the defendant has been enriched by the plaintiff and second, whether the plaintiff has suffered a corresponding deprivation.
[37] The Court has taken a straightforward economic approach to the first two elements — enrichment and corresponding deprivation. Accordingly, other considerations, such as moral and policy questions, are appropriately dealt with at the juristic reason stage of the analysis: see Peter, at p. 990, referring to Pettkus, Sorochan v. Sorochan, 1986 CanLII 23 (SCC), [1986] 2 S.C.R. 38 (S.C.C.), and Peel, affirmed in Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629 (S.C.C.), at para. 31.
[38] For the first requirement — enrichment — the plaintiff must show that he or she gave something to the defendant which the defendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant and which can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible. It may be positive or negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake (Peel, at pp. 788 and 790; Garland, at paras. 31 and 37).
[39] Turning to the second element — a corresponding deprivation — the plaintiff’s loss is material only if the defendant has gained a benefit or been enriched (Peel, at pp. 789-90). That is why the second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered (Pettkus, at p. 852; Rathwell, at p. 455).
[40] The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason. To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case: see Pettkus, at p. 848; Rathwell, at p. 456; Sorochan, at p. 44; Peter, at p. 987; Peel, at pp. 784 and 788; Garland, at para. 30.
[41] Juristic reasons to deny recovery may be the intention to make a gift (referred to as a “donative intent”), a contract, or a disposition of law (Peter, at pp.990-91; Garland, at para. 44; Rathwell, at p. 455). The latter category generally includes circumstances where the enrichment of the defendant at the plaintiff’s expense is required by law, such as where a valid statute denies recovery (P.D. Maddaugh, and J. D. McCamus, The Law of Restitution (1990), at p. 46; Reference re Excise Tax Act (Canada), 1992 CanLII 69 (SCC), [1992] 2 S.C.R. 445 (S.C.C.); Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737 (Ont. C.A.)). However, just as the Court has resisted a purely categorical approach to unjust enrichment claims, it has also refused to limit juristic reasons to a closed list. This third stage of the unjust enrichment analysis provides for due consideration of the autonomy of the parties, including factors such as “the legitimate expectation of the parties, the right of parties to order their affairs by contract (Peel, at p. 803).
[44] Thus, at the juristic reason stage of the analysis, if the case falls outside the existing categories, the court may take into account the legitimate expectations of the parties (Pettkus, at p. 849) and moral and policy-based arguments about whether particular enrichments are unjust (Peter, at p. 990). For example, in Peter, it was at this stage that the Court considered and rejected the argument that the provision of domestic and childcare services should not give rise to equitable claims against the other spouse in a marital or quasi-marital relationship (pp. 993-95). Overall, the test for juristic reason is flexible, and the relevant factors to consider will depend on the situation before the court (Peter, at p. 990).
[45] Policy arguments concerning individual autonomy may arise under the second branch of the juristic reason analysis. In the context of claims for unjust enrichment, this has led to questions regarding how (and when) factors relating to the manner in which the parties organized their relationship should be taken into account. It has been argued, for example, that the legislative decision to exclude unmarried couples from property division legislation indicates the court should not use the equitable doctrine of unjust enrichment to address their property and asset disputes. However, the court in Peter rejected this argument, noting that it misapprehended the role of equity. As McLachlin J. put it at p. 994, “It is precisely where an injustice arises without a legal remedy that equity finds a role.” (See also Walsh v. Bona, 2002 SCC 83, [2002] 4 S.C.R. 325 (S.C.C.), at para. 61.)
[47] The first remedy to consider is always a monetary award (Peter, at pp. 987 and 999). In most cases, it will be sufficient to remedy the unjust enrichment.
[50] The Court has recognized that, in some cases, when a monetary award is inappropriate or insufficient, a proprietary remedy may be required. Pettkus is responsible for an important remedial feature of the Canadian law of unjust enrichment: the development of the remedial constructive trust. Imposed without reference to intention to create a trust, the constructive trust is a broad and flexible equitable tool used to determine beneficial entitlement to property (Pettkus, at pp. 843-44 and 847-48). Where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour (Pettkus, at pp. 852-53; Sorochan, at p. 50). Pettkus made clear that these principles apply equally to unmarried cohabitants, since “[t]he equitable principle on which the remedy of constructive trust rests is broad and general; its purpose is to prevent unjust enrichment in whatever circumstances it occurs” (pp. 850-51).
[51] As to the nature of the link required between the contribution and the property, the Court has consistently held that the plaintiff must demonstrate a “sufficiently substantial and direct” link, a “causal connection” or a “nexus” between the plaintiff’s contributions and the property which is the subject matter of the trust (Peter, at pp. 988, 997 and 999; Pettkus at p. 852; Sorochan, at pp. 47-50; Rathwell, at p. 454). A minor or indirect contribution will not suffice (Peter, at p. 997). As Dickson C.J. put it in Sorochan, the primary focus is on whether the contributions have a “clear proprietary relationship” (p. 50, citing Professor McLeod’s annotation of Herman v. Smith (1984), 1984 CanLII 1238 (AB QB), 42 R.F.L. (2d) 154, at p. 156). Indirect contributions of money and direct contributions of labour may suffice, provided that a connection is established between the plaintiff’s deprivation and the acquisition, preservation, maintenance, or improvement of the property (Sorochan, at p. 50; Pettkus, at p. 852).
[52] The plaintiff must also establish that a monetary award would be insufficient in the circumstances (Peter, at p. 999). In this regard, the court may take into account the probability of recovery, as well as whether there is a reason to grant the plaintiff the additional rights that flow from recognition of property rights (Lac Minerals, at p. 678, per La Forest J.).
[53] The extent of the constructive trust interest should be proportionate to the claimant’s contributions. Where the contributions are unequal, the shares will be unequal (Pettkus, at pp. 852-53; Rathwell, at p. 448; Peter, at pp. 998-99). As Dickson J. put it in Rathwell, “The court will assess the contributions made by each spouse and make a fair, equitable distribution having regard to the respective contributions” (p. 454).
19With respect to division and contributions to maintenance and preservation of the property, there is a general liability to account between joint tenants in equity. However, parties are free to make their own arrangements and decide on how they would pool their resources: Robertson v. Robertson, 1972 CanLII 1879 (ON CA), [1972] O.J. No. 63 (Ont. C.A.) at para. 2 (1972), 6 R.F.L. 35 (Ont. C.A.) at p. 36.
SUMMARY OF FINDINGS
20I do not find a resulting trust. I do not find that the transfer was without consideration.
21The down payment for the property came from the proceeds of the sale of a property that had been jointly owned by the parties, a condo unit, namely Unit 42, 246 John Garland Blvd, Etobicoke, Ontario (“John Garland”). I find that the Plaintiff was a joint legal and beneficial owner of John Garland, and as such, would have been entitled to a share of the proceeds of the sale of John Garland.
22My finding of joint legal and beneficial ownership of John Garland is based on the discussions leading to the purchase of John Garland; the evidence of the Plaintiff’s decision to leave her independent life to bring the family together with the Defendant; the actions of the Plaintiff in locating John Garland; the participation of the Plaintiff in the offer to purchase for John Garland; the Plaintiff’s contribution of funds towards the transaction; the Plaintiff pledging her credit and taking on financial risk with the mortgage liability; the parties’ then counsel’s letters pertaining to the purchase of John Garland; the availability of legal advice, ownership options and agreements; the living arrangements at John Garland; the taking on and management of expenses by the parties; and the actual contributions made by the parties to John Garland and the family venture. The parties worked collaboratively; they pooled their resources; they shared expenses; the title was placed as joint tenants with right of survivorship without a co-ownership agreement with the benefit of legal representation; they decided to do this together for the benefit of the family and getting the family together. All of the hallmarks of a joint family venture were there.
23I also find that the parties are joint legal and beneficial owners of the subject property.
24My finding is based on, the actions of the Plaintiff in searching for and locating the property; the participation of the Plaintiff in the offer to purchase the property; the down-payment; the Plaintiff pledging her credit and taking on of financial risk with the mortgage liability; the taking of title as joint tenants; the availability of legal advice, ownership options and agreements; the living arrangements; the financial integration of the parties beyond the property; the taking and management of expenses by the parties; the actual contributions made by the parties; the Plaintiff paying for a washer and dryer for the property; the Plaintiff paying fifty percent of the costs of a new roof for the property; the ample opportunity for the Defendant to address title over the years of ownership of the property when mortgages were taken out or refinanced; and the evidence or lack thereof that the reasons of the Defendant for placing the Plaintiff on title to John Garland were not established as applicable at the time the subject property was purchased.
25I do not find in favour of the Defendant on unjust enrichment. Accordingly, I find no constructive trust in favour of the Defendant in the Plaintiff’s interest in the property and/or no monetary award for unjust enrichment.
26The parties had an economic family partnership that spanned fourteen years. Beyond the property, they had a joint line of credit, a joint credit card, and the Plaintiff co-signed on the Defendant’s car loan. The Plaintiff contributed to the family needs and expenses when she could.
27For the periods from 2004 to 2008 and June 2010 to December of 2014, I do find that there may have been unequal contributions to the property expenses; that the Defendant paid more directly for the property. At first glance it may be that as such, one would think the Plaintiff was unjustly enriched because she has the benefit of that. However in the factual and social context of this case, in which I am to apply the principles, I don’t find this to be so. I find the Plaintiff had a legitimate expectation that she was a joint fifty percent owner of the property. I find that the evidence establishes that the decision to be joint tenants and the unequal division of expenses reflected how the parties freely chose to arrange their affairs and relationship; and that it was without any communicated qualifications or expectation that division of the home would be based on equal contributions. The Plaintiff’s contributions were not insignificant. Further, looking at the living arrangements, the Defendant had the benefit of and occupation of the main and second levels of the home, and the Plaintiff essentially lived in the basement for the majority of these periods. This was a parent-child co-ownership of specific allocated shared space, shared space that was not equal. All of the foregoing, in my view establishes juristic reason for the Plaintiff to retain any benefit of greater contributions during this time frame by the Defendant and that this finding responds fairly to the factual context of this case.
28For the period July 2008 to June 2010, I find no unjust enrichment arising. I find that the evidence supports that the parties freely entered into an arrangement at this time. This arrangement resulted in keeping the home from being listed for sale; resulted in the Defendant not having to pay out the Plaintiff’s full equity in the home; and resulted in the Defendant and her husband being able to stay in the home, with full use and occupation of the property. This arrangement I find was initiated by the Defendant and was acceptable to her at that time with the full knowledge that the Plaintiff would not be able to significantly contribute to expenses during this time frame. The expenses the Defendant paid during this time frame in my view reflected the consideration for this arrangement that she freely took on, and the benefit she was after, namely, staying in the home. Finally, the Plaintiff at trial agreed to account for the funds paid out to her during this time frame by the second mortgage in the division of the proceeds of the sale. All of the foregoing, in my view establishes juristic reason for the Plaintiff to retain any benefit of greater contributions during this time frame by the Defendant and that this finding responds fairly to the factual context.
29For the period commencing from the date of Justice Daley’s order, I acknowledge by that order that the Defendant paid all of the property expenses on a without prejudice basis. The Plaintiff wished for the property to be sold, and it was the Defendant who was not agreeable because she wanted to stay in the home and believed it to be her home. The Plaintiff wanted the home sold in August of 2014. I did not receive evidence from the Defendant disputing that the Defendant knew in August of 2014 that she would not be able on her own to get a mortgage in her own name for the home. The Plaintiff stated that the Defendant was advised at that time that she was better off to sell the property and for the Defendant to purchase her own home. The Defendant did not take this advice. An order for sale had been made March of 2015 which was not appealed. The property could have been listed and sold on consent. The order did not bar that. I accept that the Plaintiff could not have gone on living at the property with the Defendant due to the breakdown of the relationship. Accordingly, the Plaintiff had to move out, was deprived of her right to use and enjoyment of the property, and had to incur rental expenses elsewhere. The Plaintiff was in a position of not being able to move on, remaining tied to this property and not being able to access her equity in the property to buy a property of her own. The Plaintiff pleaded with the Defendant to sell the home due to the financial hardship on both parties. It was not until January of 2016, the Defendant accepted that the house had to be sold. She and her husband, who works, have had the full use and occupation of the property since the Plaintiff moved from the property. Lastly, the Plaintiff paid the mortgage expenses when the Defendant unilateral stopped payment in June of 2014 to December 2014. All of the foregoing, in my view establishes juristic reason for the Plaintiff to retain any benefit of greater contributions during this time frame by the Defendant and that this finding responds fairly to the factual context.
30In all of these circumstances and these contexts, I do not find that the Plaintiff was unjustly enriched in respect of the payments made by the Defendant and/or that there ought to be an accounting in respect of these contributions claimed by either.
31The Defendant relied on the case of Badii v. Badie, 2013 ONSC 4634. This case is distinguishable in my respectful view factually. In this case, the Defendant made no contributions to the property of any kind and there was no agreement or arrangement as to who would contribute what, inviting the general liability to account.
32The Defendant also relied on Barker v. Barker, 2010 ONSC 408. This case too is factually distinguishable. In that case, the Applicant made very little contribution to the property and stopped making any contributions for a significant period of time from 1995 to the date of the judgment (2010), fifteen years. Further, the parties in that case had an agreement for support and the Respondent agreed to pay the expenses. However the Applicant did not make the monthly payments of support the parties had agreed to. He broke the agreement unilaterally, which breach was not accepted by the Respondent to which she responded with a position of expectation of equal accounting for the home expenses.
33On the issue of credibility, I found the Plaintiff was straight-forward. She did not exaggerate or fail to admit evidentiary shortcomings or fail to acknowledge reasonable statements. Most of the Plaintiff’s evidence was supported by or could be reasonably inferred from the evidence and documentation filed. The Defendant’s recollection of events, on the other hand, did not always accord with the documents filed and she had difficulty remembering events or documents. In addition, the Defendant’s evidence at times did not make sense and/or could not reasonably be found to support her claim or actions. There were times when her evidence contradicted her positions.
34The Defendant’s presentation at trial suggesting that the ownerships, mortgages and debts the parties entered into along the 14 years were all part of the Plaintiff’s [iniquitous] agenda was not established by the evidence.
ISSUES ONE AND TWO: Ownership of the Property and Division of the Proceeds of the Sale
Details for the Findings
Familial Relationship
35The Plaintiff was born in 1981. She states that she lived with both of her parents until she was approximately age one. Her mother became ill at this time. She lived with her father until age two until he turned her over to her grandparents. In 1984 her father moved to the U.S.A. Her sister, the Defendant’s second child was born in 1986, and her brother, the Defendant’s son, was born in 1990. After 1985, the Plaintiff lived with her Aunt she believes until the winter of 1988. In 1993, the Plaintiff states she went to live with the Defendant and moved out in 1996 when she was 15. She states she lived independently until at her Aunt’s residence until John Garland. In 1999, while the Plaintiff was living independently at her Aunt’s residence, the parties reconnected. At this time, the Defendant and the other two siblings were living with the Defendant’s parents.
36There was some minor discrepancy between the Plaintiff’s and Defendant’s recount of the family history. The Defendant claimed that the Plaintiff came back to live with her when the Plaintiff started kindergarten. During the course of describing the familial relationship, the Defendant expressed that the Plaintiff never listened to her, was a rebellious child, and lots of trouble.
37The Defendant is of Guyanese decent and the Plaintiff’s father, Jamaican.
38The Plaintiff during cross-examination agreed that prior to reconnecting in 1999 it would be fair to say that her relationship with the Defendant was distant.
Decision to Purchase a Home Together
39While there is discrepancy as to who started the discussions, it was generally agreed that the parties began to have discussions on or about 1999 or 2000 about bringing the family together (the Plaintiff, Defendant and the Plaintiff’s two other siblings), to move into a home together.
40The Plaintiff was 18 years old at the time, and working for a salary that was a little over minimum wage in payroll administration at a temporary employment agency. The Plaintiff described herself as a mature 18 year old, due to the circumstances of her upbringing. She graduated from high school in 1999.
41The Plaintiff stated that the Defendant could not afford to purchase a home without the Plaintiff. She said they specifically talked about pooling so the family could be together. The Plaintiff indicated that the parties had conversations that they would own it together. She was adamant that the property was to be “theirs”. The Plaintiff stated during the trial that she would not have committed herself to a mortgage or made contributions to a property if she wasn’t going to own it, and she would not do that for anyone.
42The issue of the Defendant’s poor credit at this time was not disputed.
43The Defendant stated that after living in government housing for seven to eight years, she realized it would be better to put her money towards her own home and so she moved into her mother’s home to save money to purchase a home. She stated that she simply needed the Plaintiff as a co-signor at this time. Due to poor credit, she was unable to obtain a mortgage without a co-signor. The Defendant said she told the Plaintiff that she needed her to boost her credit rating and that the Plaintiff agreed. The Defendant said that she did not say to the Plaintiff that the house would be their house; she was just asking to use her name.
44The Defendant also said that in her culture, one family member would help another with a purchase and then that family member would help the next family member with a purchase. I had trouble with this assertion. “Help” with a purchase, by ordinary meaning would seem to acknowledge that the Plaintiff would be involved beyond providing “her name”. However, if “help” meant simply co-signing, I fail see how this statement if it was true explains taking John Garland title as joint tenants with right of survivorship with no co-ownership agreement. It does not in my view. Further, and most important, in respect of the subject property at hand, the subject property was a second purchase. By this time, applying this statement, the Plaintiff had already helped the Defendant with a purchase. Lastly, if this explanation was intended to extend to or explain why the Plaintiff contributed to the John Garland expenses, it would contradict her explanation as to why the Plaintiff paid expenses, namely that it was because the Plaintiff was living there and working.
Looking for and the Offer for the First Home
45The Plaintiff was the one who searched for and located John Garland. She was instrumentally involved; much more so than the Defendant. The Defendant’s evidence did not contradict this evidence or explain it. It was the Plaintiff who found John Garland. I find that the Plaintiff’s actions and investment of time in looking for the home are two facts that rebut a claim that she was to be a mere co-signor, simply lending her name.
46The offer to purchase was made September 28, 2000. It was in both parties’ names. The listing of both names in the offer, I find is inconsistent with the Plaintiff being a mere co-signor for this property. There was no evidence that the Plaintiff’s name would have been required to be on the offer to purchase for her to be a co-signor. The Defendant did not explain in evidence why the Plaintiff participated in making the offer, if in fact, the Defendant was only to lend her name.
Down Payment for John Garland
47John Garland’s purchase price was $129,500.00. The Plaintiff in her affidavit material stated that she provided $850.00 to the Defendant to put towards the down payment but did not have records. At trial she stated that $1,000.00 to $2,000.00 was the attainable amount for her at that time to contribute to the transaction. She was strong in her evidence that she gave money to the Defendant for the transaction; that it was for the purchase, and she was not repaid that money.
48On cross-examination the Plaintiff acknowledged that the Defendant could have put the money she gave her towards payment of the legal fees for the transaction. She did not know or check.
49The Plaintiff also acknowledged that although she could not recall the actual amount of the deposit, it could have been up to $7,500.00. She could not remember but she thought it was less because they were first-time buyers.
50The Defendant claims to have paid towards the purchase, the sum of up to $5,000.00. The Defendant says that she had a $5,000.00 savings bond of which she cashed $2,000.00 or $3,000.00 and she took $2,000.00 she says from her share of a work savings group fund. She did not file any records to establish her contributions.
51The Defendant acknowledged receiving money from the Plaintiff but stated that the Plaintiff only provided money towards the legal fees. The Defendant claims that she was short funds to pay the legal fees. She agreed she never paid the Plaintiff back.
Documents for the Purchase of John Garland
52The documents were not helpful to settle the issue of who provided what and how that money was applied. The offer to purchase shows a deposit of $1,500.00 for the $129,500.00 purchase. The statement of adjustments indicates there was a deposit of $1,500.00. Adjustments brought the total purchase to $129,614.95. Due on closing by the statement of adjustments was the sum of $128,114.95. The legal account for the sale was attached but it did not include a trust statement to determine what additional amounts if any were paid by the parties in respect of the transaction. The account for legal fees which claimed to include all disbursements was in the amount of $1,070.00. The total of the purchase and legal fees was therefore $130,684.95 based on the documents. The Charge for John Garland indicates that the principal mortgage amount of $127,638.44 was advanced. The difference is $3,036.51.
53Neither the Plaintiff nor the Defendant filed documents to explain what, if any, Land Transfer Tax was paid or payable on the transaction.
54The Plaintiff argued in respect of land transfer tax and the deposit, that the parties were first time buyers, which would have lowered the deposit and affected Land Transfer Tax.
55In general, both parties acknowledged monetary inputs by the other but could not recall or agree on exact amounts or what the inputs were put towards and/or the purpose. Based on the evidence, whether the funds advanced by the Plaintiff at the time John Garland was purchased, were used for legal fees or the down payment and if the amount was $850.00 or less than that, in my view, it remains that the Plaintiff advanced some funds used to complete the transaction. I accept that she did so under the understanding that she was contributing to the purchase. I accept as reasonable that the Plaintiff would not have necessarily followed up on how the money was dispersed that she gave to the Defendant. She was not repaid those funds. The fact that the Defendant may have contributed more to the transaction costs is not the test. “No consideration” is the test.
56The Plaintiff also left her independent life to help bring the family together. She committed herself to the mortgage liability by becoming a joint mortgagor for $127,638.44. She pledged her credit and took on full financial risk of the purchase. This is consideration.
57It is also clear that the issue of title was addressed prior to the taking of title.
58A letter from the parties’ then real estate counsel, Mr. Cutler, dated October 19, 2000 was filed in Exhibit 1, addressed to both parties, wherein Mr. Cutler explains the taking of title and considerations. He also enclosed a booklet from the Law Society explaining the firm’s function in the transaction. The letter specifically seeks instructions on how title was to be taken. The letter further provided that if the parties had any questions that they should not hesitate to contact Mr. Cutler or one or both of his two named secretaries.
59The transaction was completed November 30, 2000.
60The final reporting letter, dated April 9, 2001, addressed to both parties, indicates: “Title to the property on your instructions was taken by both of you, as joint tenants and not as tenants in common, and we confirm that in the event of the death of either of you, the other will become the sole owner of the property automatically. We wish to confirm that we advised you that an agreement should be entered into governing your co-ownership of property and you instructed us not to prepare one.” I find the decision to take title as joint owners; and declining a co-ownership agreement constitutes strong evidence, in my view, of an intention that each joint owner would be a full legal and equitable owner of the property.
61The Defendant said she could not recall the paperwork for the transaction, that all paperwork was in the Plaintiff’s hands, and she trusted her then 18 year old daughter, the Plaintiff, to do all her business. The Defendant stated that she understood she was the owner. The Defendant did not tell Mr. Cutler that she needed the Plaintiff to build her credit and says that there was no discussion of 50/50 ownership, despite what the letter indicated. During cross-examination, at first she said she did not understand joint ownership, but after being shown the letter (the final reporting letter) she said that she did understand and said she trusted her daughter at the time. She said that she didn’t think of her other options. At the time, she wanted to get the house and her daughter was the only one who could help her at the time. She had two other children at the time and said she would not have left the house to the Plaintiff by right of survivorship.
62I do not accept the Defendant’s evidence. Her evidence suggests that Mr. Cutler prepared a false report. It was agreed that the documents in Exhibit 1 were authentic and accepted for the truth of their contents. In addition, the Defendant did not call Mr. Cutler as a witness to challenge her knowledge (or lack thereof), or what was or was not explained to her and/or his observations as to what she understood. This in my view would have been her burden to establish.
63There was no evidence that established that the Defendant could not have in fact taken steps to inform herself and/or assert title to be in her name at the time of purchase of John Garland if she was to be the owner of the property and the Plaintiff, a simple co-signor. She chose not to.
64I heard no evidence of the Plaintiff taking any steps to prevent the Defendant from speaking to Mr. Cutler in any way.
65Finally, I had difficulty with the Defendant’s explanation that she trusted the Plaintiff to do all her business (which she stated more than once at trial). It was suspect. I say this because at this stage of the relationship, the evidence was clear that prior to them deciding to make this purchase, their relationship had been distant. They had only just reconnected. The Plaintiff was 18. The Defendant when she was providing information describing the familial relationship stated unequivocally that the Plaintiff never listened to her, was a rebellious child and was lots of trouble.
Living Together at John Garland
66When the parties moved in to John Garland, the Defendant stated that the Plaintiff initially had a bedroom upstairs, but then moved to the basement for privacy reasons because the Plaintiff had a boyfriend. The Plaintiff agreed with these facts.
67The Plaintiff claims the parties had an arrangement whereby the parties would apportion responsibilities in a way that the Plaintiff essentially would pay 50% of the expenses. The Plaintiff paid the condo fee and the utilities each month (gas, hydro, cable, internet, and landline). The condo fees with the special assessment were $350.52 monthly and the other expenses that the Plaintiff was paying were in the range of $300.00 monthly for a total of $650.52. On top of this, the Plaintiff claims she provided $300.00 cash each month to the Defendant. The Plaintiff did not have records. She did not keep a ledger and all her transactions were through her bank account. Her bank account records were no longer available due to the passage of time.
68The Defendant only denied the cash payments.
69The Defendant paid the mortgage at $933.75 monthly. The taxes for the property were included in the mortgage payment.
70They paid their own food and personal expenses.
71The Defendant stated that the Plaintiff paid the aforementioned expenses because she was living there and working; she would pay rent in an apartment. There was no evidence however of any conversation between the parties of payment of expenses as rent, or because the Plaintiff was living there and working. There were no documents filed such as tax returns to demonstrate receipt and/or payment of rental income in respect of this property. Further, the Plaintiff was living independently prior to John Garland with her Aunt. She did not have the burden of liability for a mortgage and nor would she if she was renting an apartment. Lastly, the Plaintiff physically took control of and managed the payment of specific bills in the home.
72The contributions by the Plaintiff were not insignificant. At the very least the Plaintiff established they were $650.52, approximately 41%. She had a salary of slightly over minimum wage at the time. She could have had sufficient funds to contribute the extra $300.00 cash. There was no evidence that suggested that the Plaintiff would have had to pay the equivalent of these amounts or more if she was sharing an apartment with someone else in 2000.
73I accept that the Plaintiff made the contributions with the understanding that she was a true joint owner of the property and even if the contributions were unequal, it was not by much and does not affect my finding of joint ownership. As such, the presumption is that she as such is entitled to one half of the proceeds from the sale of John Garland. Against that, any argument based on unequal contributions, given that the Plaintiff’s contribution without cash being included was 41%, would have failed. I find that this is how the parties arranged their financial contributions. In addition, at the very least, with a 41% contribution, such a claim, had it succeeded, would not have resulted in the Plaintiff having zero interest in the proceeds, which were ultimately used as the down payment for the property. The maximum underpayment, namely 9% over the 44 months that they owned this property, would at best have amounted to approximately $6,000.00. The proceeds from the sale were $19,518.26, one half of which would have been $9,759.13, leaving $3,759.13.
Moving from John Garland
74The John Garland residential area was causing both the Plaintiff and Defendant concern, namely safety issues and keeping the Defendant’s son (the Plaintiff’s brother) out of a trouble. There had been a shooting in the area; the Defendant’s son was 13 and getting in bad company. The Plaintiff also had concerns about what was happening at the condo corporation.
75The parties, although their evidence did not agree on whose idea it was to find a new home, agreed John Garland should be sold and they should move. By the evidence it was the Plaintiff again who was the primary party involved with the property search. The Defendant stated that the reason for this was that she trusted her daughter and that her daughter knew the areas where there was less or more violence. However, once the Plaintiff located potential properties, the Defendant only attended a few of the viewings that had been set up by the Plaintiff.
Locating the Subject Property
76The Plaintiff claims that she located the subject property with her boyfriend. She attended with the agent. She informed and asked the Defendant to come to view the property. An offer was prepared and finalized after the Defendant viewed the property.
The Purchase of the Property
77The property was purchased on August 1, 2004 for the sum of $273,500.00 with a new first mortgage of $258,675.70 from Scotia Mortgage Corporation. The property was placed in both parties names as joint tenants. The parties agree that the proceeds from the sale of John Garland, namely $19,518.26, were used as the down payment for the purchase of the property.
78Tab 2 of Exhibit 1, Volume one, contained some of the documents the parties had regarding the purchase of the property. The trust ledger confirms receipt of $19,518.26 from the sale of John Garland.
79As to why the title was not put solely in the name of the Defendant, the Defendant stated that the parties’ relations were good at the time so there was no need “to put her daughter anywhere”.
80The Defendant did not check her credit rating at this time and there was no evidence that the Defendant’s credit rating was not good at this time.
81The Defendant, when pressed about the title again, suggested that the title remained the same because the Plaintiff had an agenda. Her demeanour and the manner in which she expressed this implied that it was an iniquitous agenda.
82First, I accept that the Plaintiff would not have invested the amount of time and effort she did in locating the property if she was not to be an owner of the property.
83I do not accept the Defendant’s explanation as to why the Plaintiff was made a joint tenant if the Defendant was in fact the sole beneficial owner of John Garland. The comment about their relations being good and not putting her daughter out did not make sense to me. There was no evidence to support that the Defendant even raised the issue with the Plaintiff or that she would be “put out”.
84It was not established that the Defendant required the Plaintiff to be on the mortgage and/or title as a reason to explain the continuation of joint ownership. By the time of this purchase, almost four years had passed for the Defendant to build her credit rating.
85The comment about the Plaintiff having an “agenda” made no sense either. I heard no evidence establishing any nefarious agenda on the part of the Plaintiff. There was no evidence of the Plaintiff standing in the way of the Defendant seeking advice on the purchase and/or any other options at the time of the purchase, including a co-ownership agreement. The parties had a lawyer for the transaction.
86The real estate lawyer involved with this transaction was not called to give evidence.
Moving in to the Property and Payment of Expenses of the Property
87The parties moved into the property after closing.
88This was a two storey semi-detached home. The main floor of the residence comprised of a combined living/dining room, kitchen with breakfast area and a two piece bathroom. The second floor had three bedrooms and a four piece bathroom. The basement was finished with one bedroom, a cold room, a recreation room and a three piece bathroom.
89The Plaintiff stated that she lived in the basement at the property and the Defendant occupied the main and second floor. The parties essentially lived separate lives in the areas they lived in the home. They did not have meals together or share groceries.
90The Plaintiff stated that the parties agreed to keep the same arrangement they had with John Garland; she paid for utilities, and made cash payments of approximately $300.00 per month to the Defendant, save and except during the timeframe that the Plaintiff moved out of the home, set out below under the subtitles 2008 and 2010.
91Tab 9 of Exhibit 1, volume one, contained a sampling of invoices for expenses the Plaintiff paid for the property over various years. They included Enbridge (monthly gas) coupled with New Direct Energy (monthly hot water tank rental) in the range of $59.60 to $304.12; Enersource (electricity) in the range $115.73 to 180.15; Region of Peel (monthly water and wastewater service) in the range $23.74 to $81.43); and Rogers (monthly cable) in the range of $72.14 to $121.56. The Defendant acknowledges in her affidavit that these expenses averaged approximately $350.00 to $450.00 per month. By the sampling of these aforementioned documents, the Plaintiff’s contribution could have been in some months, approximately as low as $271.00 per month to as high as $688.00 per month depending on the season. I find the average amount of $450.00 reasonable.
92Tab 17 of Exhibit 1, volume one, contained the Plaintiff’s bank records, showing various payments to two telephone companies, Telus and Bell. The monthly amounts ranged from approximately $50.00 to $132.00. If the Telus was the home phone which she said she paid, this adds an additional $50.00 monthly contribution. If the Bell mobility was the home phone, then this adds an additional $132.00 contribution approximately. This was not clarified. The Defendant indicated that they did not have this phone and each had and paid their own cell phone. At the very least, I am satisfied that two phones were being paid. I am electing to attribute $50.00 as being more in line with a home phone cost.
93The SMC mortgage, including taxes, was approximately $1,600.00 to $1,800.00 per month. With utilities, cable and telephone expenses of $500.00 per month, the property expenses were approximately $2,100.00to $2,320.00 per month.
94The payment of utilities, cable and telephone would result in a contribution by the Plaintiff of approximately 21 to 24% towards the expenses.
95The Plaintiff claims to have made cash contributions in various amounts as low as $60.00 to as high as $600.00 per month that she left for the Defendant under a statue in the house (referencing the bank records, on which she identified ATM and cash withdrawals as representing cash payments to the Defendant). She said the idea would be that she would provide cash in the amount of the condo fee that she had been previously responsible for at John Garland, which was $328.78.
96For the period of September 5, 2007 to September 5, 2014, the Plaintiff isolated on her bank records various ATM withdrawal cash payments that total approximately $25,467.00; and which identified withdrawals of up to $600.00 and as low as $0.00 per month. The total placed over the months translates to approximately $303.00 per month.
97The Plaintiff has no documentation other than these bank records, and she acknowledged on cross-examination, she could not say with one hundred percent certainty that all of the items she highlighted actually represented cash payments to the Defendant because she kept no ledger. However, the Plaintiff reiterated that generally for her personal expenses, she would not take out cash and would use her debit. On occasion, she would take out cash to go out for an evening. That being said, she asserted that the majority of cash withdrawals from her account because of history of her use of the account represent the cash payments to the Defendant other than for her personal expenses.
98The Plaintiff acknowledged that whatever her mother used the cash for she does not know, she provided the money as agreed and it was her understanding it was used for expenses/needs that the family had at the time. How the Defendant chose to use it was left to the Defendant.
99Attention was drawn to the blacked out entries on the bank records by the Defendant. Items on the bank statements were blacked out as the Plaintiff did not believe the other information to be relevant. I accept her explanation as to why this was done, and note that prior to trial and during the trial, the Defendant did not seek unedited copies.
100The Defendant denies receiving any cash payments ever. The Defendant acknowledged a porcelain lady in her house but said she did not know anything about a statue.
101Until June of 2014, save and except June 2008 to July 2010, the Defendant claims she paid all of the mortgage payments and the Plaintiff solely paid for utilities and no cash was provided to her. The Defendant claims that when she moved to the property she worked extended long hours and weekends and that she did this for two years, from 2004 to 2006. From 2007 to 2014, she continued to work 12 hours a day at Data Direct and worked some longer hours. In 2014 she took a job as a forklift operator with Dicom Express and continued on part-time in shipping and receiving as an inventory clerk with Data Direct.
102I accept the Plaintiff made cash payments to the Defendant. While it would have been preferable for the Plaintiff to have kept a ledger, I find her to be credible. She did not exaggerate her payments and acknowledged when they were less. At John Garland, without cash payments considered, the Plaintiff paid approximately $650.00 per month. It was not explained by the Defendant why the Plaintiff would pay less than what she paid at John Garland. It does not make sense that she would in my view. The Plaintiff was working, at the same place as she was when they were at John Garland. Nothing had changed in that regard. I also accept that the contributions were made as her contribution to the property, no matter what the Defendant chose to or actually used them for. At the very least, indirect contributions, similar to these such as the payment of groceries or provision of domestic services are not excluded in the analysis of contribution.
103Accordingly, with monthly contributions of cash on average in the amount of $303.00 per month, the Plaintiff’s contribution is approximately 35 to 39% of the expenses while essentially living in the basement of the property while the Defendant essentially had the main and second floor. This was not a husband-wife situation. This was a parent-child relationship, family who was sharing specific allocated space in the home, an allocation, based on the description of the home, was not equal in size or function.
2006
104Sometime before or in 2006, the Defendant’s son and other daughter went to live with the Defendant’s mother and father. The Defendant’s mother passed away in 2006. The Defendant’s son continued to live there with the Defendant’s father, who was blind. The Defendant’s son stayed, the Defendant said, to take care of her father, along with her other daughter.
105The Defendant started dating Mr. Noah Roberts on or about November 2006. The Defendant married him in April of 2007. The Plaintiff stated that she was not “OK” with Mr. Roberts living in the home, which she says essentially commenced shortly after the Defendant met him. The Plaintiff expressed that she had no choice in having Mr. Roberts in the home. Mr. Roberts, who testified, stated he moved in after the marriage.
106There was no evidence that the financial arrangements changed when Mr. Roberts moved in, other than the Defendant stated he contributed to the mortgage and did some maintenance. However, the documents filed by the Defendant indicate she paid for the mortgage and the Defendant’s husband did not give evidence as to what he paid if anything. Mr. Roberts did not know anything about the parties financial arrangements.
2007
107In November 2007, the Plaintiff became pregnant. The Plaintiff stated that the parties started to have discussions about the Plaintiff leaving the home. The Plaintiff felt that the parties needed their own spaces because each party now had partners and the Plaintiff was expecting a child. The Plaintiff also had a dog. The Plaintiff denies that there was any discussion during this time during which the Defendant told the Plaintiff that the Defendant was the sole beneficial owner of the house. She said that there were discussions to sell the house. I accept the Plaintiff’s evidence given what occurred in 2008.
2008
108The Plaintiff moved out on or about July of 2008. She wanted a proper place to raise her child. She said it was a challenge to get the Defendant to agree to compromise any of the other living space at the property. The Defendant would not agree to change the living arrangements. The Defendant denied this.
109After she moved out, the Plaintiff says she continued to provide the Defendant with some limited cash during this time when asked to do so by the Defendant because her name was on the mortgage and she did not want her credit rating to be affected. From the statements provided, from July 2008 to June 2010 there was $5,610.50, in ATM cash withdrawals including fees, which the Plaintiff identified as cash she gave to the Defendant. Again, the Plaintiff kept no ledger. The Defendant’s bank records show that the Defendant was paying the mortgage and the utilities. The Defendant denied receiving any cash payments. I accept that the Plaintiff made some cash contributions to the Defendant for the need that was required at the time. She did not exaggerate her contributions and in fact acknowledged that they were less during this time frame.
110The Plaintiff stated she had discussed with the Defendant that she was not going to be able to continue to pay what she paid prior to moving out. Further they had discussions about selling the house. She specifically told the Defendant she could not carry her share of the expenses and pay rent for an apartment and the house needed to be sold because she was financially strapped. She stated the Defendant agreed and the property was listed for sale. The Plaintiff stated that the Defendant failed to cooperate with showings and refused to de-clutter and keep the home in show condition. The home stayed on the market for three months. They received one offer but it fell through because the buyer was not able to meet conditions. They allowed the listing to expire.
111The listing of the property during this time frame, in my view, strongly contradicts the Defendant’s position that she was the beneficial owner of the property and undermined her credibility. She did not explain why she would agree to list the home for sale if this was her home and not their home. It is clear on the facts of this case that the Defendant has never wanted to leave this property willingly. The only other logical reason would have been that she could not have afforded to stay in the home with the Plaintiff moving out, but that was not the case as set out below. She and the Plaintiff entered into an arrangement that would ultimately result in the Defendant staying in the home and having increased expenses to do so.
Second Mortgage: 923944 Ontario Ltd.
112In 2008 a second mortgage was taken out on the property. This transaction was completed November 18, 2008. The principal advanced was $38,500.00 at the rate of 14% per annum, calculated monthly, not in advance. The Defendant on her own initiative located an agent to find this second mortgage. The Plaintiff received $33,401.53 from this mortgage. The Defendant took on the payments and paid approximately $450.00 per month for this second mortgage (until August of 2009 approximately $3,600.00). I find that this was a bargain she initiated and willingly made to avoid the sale of the home, to be able to continue living in the home
113In explaining how this transaction came to be, the Defendant says that the Plaintiff wanted the property sold on or around this timeframe. She said she told the Plaintiff that she was not selling the property because it was her house. The Defendant claims that the Plaintiff said to her “if you want me off title you have to pay me $50,000.00”.
114The Plaintiff denies that this occurred and had a different explanation as to why this second mortgage was taken out. The Plaintiff stated that she needed money to pay debts. They had not been able to sell the property as set out above. The Defendant came up with this idea and approached her. She did not ask the Defendant to do this. She agreed to go this route and take the money because she needed it and because they had not been able to sell the property previously. She was not agreeing to or ever suggested that she be paid $50,000.00 to have her name taken off title. The Plaintiff also said that part of the money and prompting of this second mortgage was to ensure that the Plaintiff had funds on hand in the event that she was called upon a deposit she had pledged as a surety for the Defendant’s husband, who had been charged with assaulting the Defendant on or about this timeframe.
115During this timeframe, the Defendant’s husband had in fact been charged with assaulting the Defendant. The Plaintiff was asked by the Defendant to be her husband’s surety. The Plaintiff agreed. The Plaintiff pledged for the Defendant’s husband, $3,500.00 without deposit. This issue arose because the Defendant’s husband after he was released from custody was dropped off by the Plaintiff at the Defendant’s home, contrary to the recognizance.
116In particular, on the issue of the bail recognizance, the Defendant’s stated that the Plaintiff dropped her husband off at the property after he was released, before she got there. She said she thought he was going to go to the Plaintiff’s place and when she saw him there she just opened the door and let him in. In evidence she stated, “where else was he going to go?” She indicated that she and her husband loved each other; he made a mistake; and they patched things up notwithstanding the recognizance term prohibiting him from residing there. She agreed that she knew her husband was breaching his bail recognizance but was quick to add that it was with the Plaintiff’s help.
117The Defendant argued that if this was true, the Plaintiff committed a crime. The illegality is not for me to decide. In respect of credibility, I found that the Plaintiff was forthcoming and honest in addressing this particular evidence.
118The Plaintiff filed her bank records which showed entries that support the Plaintiff’s position that she was in need of money to pay debts.
119I do not accept that the second mortgage was taken out for the reason suggested by the Defendant. I found the Defendant’s evidence on this matter troubling. The Defendant did not explain why she thought she would have to pay $50,000.00 to take the Plaintiff off title, if the Plaintiff did not beneficially own the property. Further, according to the Defendant, in this case, the Plaintiff made insignificant contributions to the property, and made contributions because she was living there and working (tantamount to rent). The Defendant did not explain why the Plaintiff would agree to pledge her credit and take on financial risk of a second mortgage if this transaction was supposed to be a buy-off. No transfer of title was done or sought out during this transaction which one would reasonably expect, if it was a buy-off of title.
120When asked why the Plaintiff’s name was not taken off title as part of this transaction, the Defendant stated that because the Plaintiff told her she would not sign off because it was not the full $50,000.00. This conversation however took place two months after the Plaintiff received the money. The Defendant did nothing about this. She did not explain why. The Defendant did not present as incapable or provide any evidence that she was. The evidence supported that if she wanted information, she was capable of getting it.
121After the Plaintiff moved out, the Defendant and/or her husband, the Plaintiff stated, did not visit her regularly but she acknowledged that the Defendant and her husband had a decent relationship with her child. The Defendant had the exclusive use of the entire home and set up the basement for herself to her liking. The Plaintiff continued to hold a key to the property, have the alarm code and she was there from time to time as she worked five minutes from the property, but otherwise the Defendant and her husband had full use of the home.
122From 2008 to 2010, the Defendant claims she did not have many interactions with the Plaintiff; Thanksgiving and Christmas, and to see her grandchild, due to her work schedule. The Defendant says the relationship of sharing expenses ended when the Plaintiff moved out and in particular, that the Plaintiff moved out and went about her life.
August 2009 Bank of Nova Scotia Mortgage (“BNS”)
123In 2009, the term of the SMC mortgage had expired and was up for renewal.
124A new mortgage with BNS was taken out. The SMC mortgage was discharged in the amount of $220,651.02 and the 923944 Ontario Ltd., second mortgage was also discharged in the amount of $41,781.22. The principal of the BNS mortgage advanced was $264,384.50 at a variable interest rate of Prime plus 2%. This transaction was completed August 4, 2009. The mortgage transaction was completed by Anderson Sinclair LLP and reported out to both parties on August 31, 2009.
125The Plaintiff was not living at the property at the time. The Defendant and her husband were.
126The Defendant claims that she and her husband were not able to renew the mortgage, so she asked the Plaintiff to renew and that the Plaintiff agreed. The Plaintiff and Defendant attended to sign the documents. Mr. Roberts attended as well to sign as a consenting spouse. No documents were filed establishing that the Defendant and her husband were not able to renew the mortgage in 2009. The Defendant’s husband did not give evidence confirming this. There was some evidence that alluded to the Defendant’s husband perhaps not having legal status in Canada although he was working and had an income.
127The Plaintiff stated the mortgage was up for renewal. It was renewed and the second mortgage rolled in. The Defendant’s husband had to sign because he was a spouse.
128In addition to taking out this new mortgage, a line of credit was opened jointly between the parties at this time. After the signing appointment, the advisor suggested a line of credit for maintenance or repairs for the property. The opening of the account was done at the bank, the Cloverdale Branch, at the end of July or beginning of August of 2009. The line of credit was in the amount of $20,000.00. It was not secured against the property. The line of credit was a variable interest rate line of credit. Both parties signed the paperwork for this.
129I did not receive evidence from Anderson Sinclair LLP, on this transaction beyond the documents filed.
June 2010
130The Plaintiff lost her job in June of 2010. She was laid off. She moved back into the property, into the basement. She needed to due to her finances. She had separated from her child’s father in June of 2009 and had been living in a different apartment that she had moved to. She resumed making payments of the utilities that she had carriage of prior to moving out in June of 2008. The Plaintiff’s bank account records establish some of these payments. In addition, the Plaintiff stated that the Defendant asked the Plaintiff for extra money from time to time during this time. The Plaintiff stated when she had funds to give her, she gave her funds. She acknowledged the cash may have been used by the Defendant for any need the Defendant had at the moment and not necessarily for payment of the mortgage. The Defendant denied receipt of any cash but did not deny the payment of utilities by the Plaintiff after she moved back in.
131The Defendant says she allowed the Plaintiff to move back in because she did not want to see her grandson suffer. The Defendant states that when the Plaintiff moved back in, the Plaintiff moved into the basement and her son to one of the rooms upstairs.
132During this time, the Defendant found the Plaintiff a part-time job at Data Direct and the Plaintiff also went back to school. The Plaintiff did piece work at Data Direct and the amount she earned was not consistent. She was not paid by the hour. She worked a few hours a few evenings per week. She asked her mother to babysit her son. She agreed that the Defendant’s husband and Defendant babysat her child from time to time during this time.
133By 2011, the Plaintiff had two part-time jobs. She denied the suggestion that she did not have funds to give the Defendant towards the property expenses during this timeframe She had funds from student loans at this time in addition to her income from Data Direct. She also had some child support. The documents filed established the Plaintiff received student loans.
134There was no written agreement made when the Plaintiff moved back in.
December 2012
135The Plaintiff purchased a washer and dryer for the property for the benefit of the family. The Defendant did not contribute to that purchase.
May 2013
136An invoice dated May 24, 2013 from Wing Hing Professional Roofing Company for $2,900.00 for a new roof was filed. The invoice was in the name of the Plaintiff, showing “paid in full”. The Plaintiff said that she and the Defendant each paid half. The Defendant however said that she could not confirm if this invoice was the invoice for the roof when it was shown to her. The Defendant did not deny that a new roof was put on and said that she paid $1,500.00 toward the repair. The Defendant gave no explanation as to why the Plaintiff would pay for one half of the roof expense. I find the action of the Plaintiff paying for one half of the roof is consistent with believing she had an ownership interest.
November 2013
137The Plaintiff states that sometime in November of 2013, the Defendant was having difficulty making the mortgage payments and confided in the Plaintiff that she was having financial issues. The Defendant had some debts in arrears and was close to being put in collections and/or having her credit cards suspended.
138The Plaintiff states that she assisted as she could but was finding it difficult, so she took steps to find a mortgage broker to assess the situation. The broker suggested a consolidation to help wrap up together as many debts as both of them could fit into a qualifying mortgage, to have one payment as opposed to multiple. The Plaintiff states she was genuinely acting in the best interests of both of them.
139The Defendant did not seem to want to acknowledge that she was having financial difficulties at the time. However, this was supported by the documents filed.
Italian Canadian Savings and Credit Union Limited Mortgage
140The Plaintiff found a mortgage broker who found a potential mortgagee, Italian Canadian Savings and Credit Union Limited (“ICSCUL” mortgage). The broker was referred to the Plaintiff. The Defendant did not meet with the broker.
141By this time, the Plaintiff had an understanding of mortgages due to her previous employment. She accepted and agreed that it was fair to say that the Defendant relied on her knowledge for this transaction. The Plaintiff however stated that a mortgage signor came to the property to meet with her and the Defendant regarding the application. The signor went over all of the details of the proposed mortgage, including what would be paid. The Plaintiff did not recall the Defendant being tired or having worked a 13-hour day that day. To her understanding, the Plaintiff states that the Defendant was very clear about what they were doing with this proposed mortgage financing. She states they both had a copy of the paperwork provided to them thereafter. After this meeting, the Plaintiff stated the next step was to sign the paperwork at the lawyer’s office. The Plaintiff states there were no challenges at either meeting regarding the mortgage and both agreed to sign. There were no issues. Each party received a package from the lawyer’s office with cheques enclosed to be used to pay off their respective debts.
142The Defendant was adamant that she never went to a lawyer’s office to sign the paperwork in respect of the ICSCUL mortgage. She stated that both meetings were at the property and that payment of the Plaintiff’s debts as part of this transaction was never explained to her. The Defendant claimed she was just told about her two credit cards being paid off and nothing else. She also claims that her daughter kept all the paperwork. She said she trusted her daughter.
143The Plaintiff denied that this mortgage was solely her idea and reiterated that it was due to financial difficulties at the time. The Plaintiff said the Defendant claimed she was not a spouse on the mortgage transaction. The Defendant did not want her husband to know about the mortgage transaction.
144The Defendant, when attempting to explain why she signed that she was not a spouse on the mortgage transaction, said that the Plaintiff did not have time to run around to get her husband for signature. She added to her answer in cross-examination that the Plaintiff said to her that the Plaintiff could not be bothered to chase after the husband because he did not have status in the country. She denied that it was because she did not want her husband to know her finances. She said she spoke to her husband about this transaction and that her husband told her “whatever was ok with you”.
145The Defendant’s husband attended and signed the 923944 Ontario Ltd., second mortgage without issue. Second, if the signing happened at the property where the Defendant suggested it did, I don’t see what running around, if any, would have had to be done for the husband who lived there. Contrary to the Defendant’s evidence, the Defendant’s husband testified that he knew nothing about the Plaintiff and the Defendant’s finance arrangements.
146While not impossible, the Defendant did not explain why the lawyer came to the property. The lawyer for this transaction was not called as a witness. The Defendant had no difficulty getting information from that law office in July of 2014 when she claimed she started investigating the matter of this mortgage transaction. The mortgage agent was not called either to give evidence.
147Other than the Defendant stating that she trusted her daughter, I heard no evidence as to why the Defendant could not have or ought not to have satisfied herself as to this mortgage, what was being borrowed and for what. On the issue of trusting her daughter, I was reminded of the Defendant’s evidence about the second mortgage in 2008, which if true, she would have had reason not to trust her daughter or to be cautious.
148When the ICSCUL mortgage was taken out, this was an opportunity for the Defendant to address title.
149The ICSCUL mortgage transaction was completed December 13, 2013. $230,166.90 was paid out to discharge the BNS mortgage, $83,197.03 to pay out debts; and $1,061.07 to pay out legal fees and disbursements related to the transaction. Of the $83,197.03 of debts paid out, the parties agree:
(a) the following debts were paid out on the Plaintiff’s debts:
(i) Royal Bank Visa in the amount of $9,882.67;
(ii) National Student Loans Service Centre in the amount of $15,011.70;
(iii) Scotiabank Visa in the amount of $3,017.53;
(iv) Royal Bank Line of Credit of $8,871.59; and
for a total of $36,782.49; and
(b) the following debts were paid out on the Defendant’s debts:
(i) Options Master Card in the amount of $13,526.94; and
(ii) Gas Advantage MasterCard in the amount of $8,768.68,
for a total of $22,295.62.
150Previously, the second mortgage in favour of 923944 Ontario Ltd., in the amount of $41,781.22, was paid out by the BNS mortgage and was part of the BNS mortgage. The Plaintiff did not dispute attribution of this to her in the accounting at trial.
151One half of the funds received by the Plaintiff for the benefit of paying her personal debts, based on the above, is $39,281.86.
152One half of the funds received by the Defendant for the benefit of paying her personal debts, based on the above, is $11,147.81.
153$20,777.05 was paid out on account of a joint Scotiabank Line of Credit and $3,340.87 for a joint Scotiabank Visa. The Defendant does not agree that the pay out of the joint Scotiabank Line of Credit in the amount of $20,777.05 and the joint Scotiabank Visa in the amount of $3,340.87 were pay outs of joint debt. She claims that all of the funds representing these debts were drawn by the Plaintiff, not her, and not for her benefit. The Plaintiff’s position, the parties are and should be both equally responsible for the debts in law as joint debtors.
154In respect of the joint line of credit, I disagree with the Plaintiff’s submission. The Plaintiff acknowledged that she was the only one who drew on the Scotiabank Line of Credit. She stated it was for both personal use and for the benefit of the family. The unknown personal use would open a claim by the Defendant to challenge equal sharing of this debt. There was no evidence that the Defendant agreed this line of credit could be used by the Plaintiff for her personal use and that she would be jointly responsible for same. A breakdown of the $20,777.05 was not established in evidence, meaning that I did not receive evidence to determine what portion related to personal use and what portion was related to expenses for the family and/or property. In my view the burden shifts to the Plaintiff to explain this since she was the only one who drew on it and she used it in part for personal expenses. Additionally, while not calculating a specific allocation, I considered the payments of this line of credit in the context of unjust enrichment claim of the Defendant as an expense the Plaintiff paid. The fact that the Defendant could have viewed this account and/or monitored it by looking at the statements does not change my view, or amount to agreement to be responsible for fifty percent. The Defendant said she did not look at the statements or bother with this account as she was not using it. This was not contradicted. In these all of these circumstances, I am attributing this debt to the Plaintiff and one half of this debt in the accounting will be payable to the Defendant from the proceeds payable to the Plaintiff, in the amount of $10,388.53.
155As to the joint credit card, it was not accurate that the Defendant did not use or have the benefit of the joint visa. When she was shown the documents she acknowledged that she used it but argued that the remaining balance was not attributable to her. I was not provided with a breakdown explaining the $3,340.87 balance. The burden in my view to explain this, given these facts, and it being her claim, is the Defendant’s. She has not met that burden. Accordingly, I am attributing this debt to both parties equally.
Payment of the ICSCUL Mortgage
156When the parties were contemplating this mortgage, the Defendant said she told the Plaintiff that if the mortgage payment was going to be higher she would not pay the difference (meaning higher than the biweekly amount she was paying, which was approximately $840.00 at that time). The amount of the new proposed mortgage would be approximately $200.00 to $300.00 higher. Also, the taxes would not be included in this mortgage. The Plaintiff said she agreed to pay the difference and the taxes and did.
157It was set up that payment would come out of the Plaintiff’s account and that the Defendant would make payments to the Plaintiff in the amount equal to what the Defendant had paid for the previous mortgage. The Plaintiff stated that this was because of the difficulty the Defendant was having managing her finances. The Defendant denied this, and said she trusted her daughter to arrange the transaction.
158The Defendant disputed that the Plaintiff paid the property taxes and money towards the mortgage. She said this was only after June of 2014 when their relationship broke down and she stopped paying. She said this more than once. The records however confirm the Plaintiff’s evidence.
159Looking at the records, the utilities, telephone, taxes, and mortgage expenses appeared to be approximately $2,600.00 to $2,700.00 per month at this time. Payment of the ICSCUL mortgage was paid out of the Plaintiff’s bank account commencing January 16, 2014, being the first payment. The payments sometimes were $906.19 biweekly ($1,963.41 monthly) or $1,812.38 monthly. Tab 23 of Exhibit 1, volume 2, shows varying deposits/transfers to the Plaintiff’s account prior to the payment of each mortgage payment, ranging from $700.00 to $900.00 biweekly. These payments from the Defendant did not cover the mortgage payments in their entirety. Extra transfers were made by the Plaintiff to the mortgage account (“paying the difference”) in the amount of approximately $165.00 to $204.00 per month depending on what the Defendant paid. Tab 24 of Exhibit 1, volume 2, showed that the Plaintiff for the period March 5, 2014 to September 5, 2014, paid property taxes: $516.40; $509.99; $509.99; $278.85; and $275.00, for a total of $2,090.23 which if applied monthly translates to approximately $174.00 per month. The Plaintiff continued to pay the household expenses, which I set at $450.00, telephone of $50.00. She also paid the Scotiabank line of credit of $90.00 to $200.00 per month during this time.
160Without any acknowledgement of an amount for payment of the line of credit and/or cash that the Plaintiff provided to the Defendant during this time for family/property expenses, the contribution following the ICSCUL mortgage is approximately 31% (utilities, telephone, taxes, and direct mortgage payments). Adding an amount for the cash payments, which I have accepted the Plaintiff has provided, would bring the Plaintiff to about 42%. Payments on the line of credit related to other family/property expenses could only increase the percentage more.
April 2014
161Changes occurred on or about April of 2014. The Plaintiff gave evidence that the Defendant’s husband left the home in April 2014. She said she would be surprised to hear that this was solely for work purposes, and that he and the Defendant never broke up in April of 2014. The Plaintiff said this because she was present when the Defendant’s husband was evicted. The Plaintiff did not leave the home until July of 2014.
162The Defendant and the Defendant’s husband testified that they did not break up and that the Defendant’s husband took an apartment in Toronto for ease of commuting to work given the time it took to commute and the available transportation at the time he needed to commute. He stated he spent weekends at the property. He did not give specific evidence that he lived at the home from April 2014 to August of 2014.
June 2014
163Further changes occurred in June of 2014. In June of 2014 the Defendant stopped making all payments towards the mortgage. The Plaintiff had to use a line of credit and credit cards to make these payments. This caused a financial burden on the Plaintiff that she could not afford.
164The Defendant says she stopped paying because she discovered that the Plaintiff received $50,000.00 from the ICSCUL refinancing and she did not think that was fair. The Defendant stated that she became suspicious because the Plaintiff was acting strange. The explanation of what she meant by acting strange was that she saw that the Plaintiff bought a new SUV. The Defendant said this prompted her to ask the Plaintiff for a copy of the documents. The very next day the Plaintiff provided her with a copy of the payout statement.
165After reviewing the statement the Defendant stated she said to the Plaintiff “do I look stupid to you” and that the Plaintiff replied “maybe you are stupid. You should have read it before you signed”. She stated she replied “what” and that after that all went haywire. The Defendant said two weeks later the Plaintiff told her she was selling the house and the Defendant said she replied “over my dead body and you have to take me to court”. She said the Plaintiff said “watch me”. Two weeks after that, the Plaintiff moved out and she received a letter from the Plaintiff’s counsel’s office.
166While not told or asked to leave from the property, I accept that the Plaintiff was in a situation where she had to leave the home, which she said was July 27, 2014. The environment was a difficult one to live in. Money arguments were consistent. The Plaintiff had a young child to think about, and his exposure to constant arguing between his mother and grandmother. It was reasonable for the Plaintiff to infer that the Defendant would not leave the home. She as much told her so, when during the discussion about selling that home the Defendant stated that it would be “over her dead body” and that the Plaintiff would have to take her to court.
167The Plaintiff continued to make mortgage payments in order to maintain her credit rating until Justice Daley’s Order in December, at the rate of approximately $1,800.00 per month, approximately $9,000.00. Thereafter, the Defendant has been paying all of the expenses of the property. The Defendant and her husband have had full use and enjoyment of the home and the Plaintiff has had none. The Plaintiff had to incur rental expenses and more debt. The Plaintiff has not been able to move on to another property being tied to this property. The home could not be sold without the consent of the Defendant which she chose not to give despite knowing in August of 2014 that she would not get a mortgage to take over the property and further, that an order had been made at the time that the home be sold, which order was not appealed. The Plaintiff was not repaid any of the $9,000.00 she paid during the time the Defendant was not paying the mortgage.
ISSUE THREE: Conduct of the Sale of the Property
168By Justice Bloom’s order, I am directed to determine the reasonable terms of the conduct of the sale of the property.
169The parties agreed prior to the close of trial that the property be listed with Mr. Borg.
170The Defendant’s former agent, Mr. Robert Stephenson in an opinion of value filed at Tab 38 of Exhibit 1, volume 2, opined that the property in its current state to be worth $550,000.00.
171Mr. Borg, a real estate agent for 27 years, the Plaintiff’s chosen agent, testified. He is currently with Royal Lepage. He has 18 years of experience and is an expert in selling properties in the vicinity of the parties’ property. He said that properties sell reasonably well in the area of the property and he has a good rapport with other agents servicing that area. He would like to work with the parties and is willing to do so.
172Mr. Borg indicated that with renovations, the property could sell for $560,000.00 to $570,000.00. In particular, Mr. Borg testified that the parties could achieve a higher price for the property if the parties undertook to do some painting, change a few lights, and do some de-cluttering. The evidence of the Plaintiff was that the estimated cost of same would be $3,000.00 to $5,000.00. Mr. Borg indicated in his opinion filed that the cost would be $3,000.00 and could be done within 4 to 7 days.
173The Defendant’s former agent, Mr. Robert Stephenson, in his email, filed as Exhibit 3 at trial, indicated that he had recommended that some renovations be done to the home. Given this, and Mr. Borg’s evidence that the renovated value could amount to up to $20,000.00 more in additional proceeds than the value given to it by Mr. Stephenson, in my view, it is reasonable and in the parties’ best interests that I order that the renovations be completed.
174At trial, if these steps to ready the property for sale were ordered, the parties indicated that they would agree to a budget of $3,000.00 to $5,000.00 for these costs.
175The parties did not object to permitting Mr. Borg per his offer to pay for these costs to a maximum of $5,000.00 if Mr. Borg was still willing to do so, and that he would receive reimbursement from the proceeds of the sale. Accordingly, I am prepared to make this order. Further given Mr. Borg has not seen the home recently, to be prudent, I believe it reasonable to order some flexibility to the parties, should they wish to input more into the property and I will be ordering this flexibility.
176If Mr. Borg is no longer willing to pay for these costs, the Defendant made it known that she could only put $1,500.00 towards these costs due to her limited financial resources. I accept that the Defendant’s financial resources are limited and take into consideration Justice Daley’s order requiring her to pay the property expenses. To keep the contributions equal however, I will set this alternative option of payment of these costs to be equal between the parties. The Plaintiff did not state whether or not she would or could input more, so to allow for flexibility should the Plaintiff wish to input more money and to be reimbursed for same, I will order that the parties may agree to same however they shall reduce any agreement to writing.
177I find that it is in the best interests of the parties to consult with Mr. Borg together on the renovations, and to receive his opinion as to the list price of the property, given he will be the listing agent. In order to have this consultation, Mr. Borg will need access to the property immediately to get the process underway and as such, it is not unreasonable in my view to make this a term.
178If the parties cannot agree on the list price, it was suggested by Plaintiff’s counsel, and no comment objecting to same was heard by me from the Defendant’s counsel, that the parties each get a second opinion as to value and the average of the opinions be used to set the list price. Given there was no objection to this suggestion, I find this acceptable to avoid the parties having to come back to the court for further direction on this issue.
179It was requested that there be a term that the property be kept in show ready and clean condition. I received no comment objecting to same from the Defendant. It is a reasonable request as a term in my view to obtain the best sale price.
180It was requested by the Defendant that the showings be restricted to the hours that she works given her work schedule; and in particular, given that her work schedule requires her to get to bed early. She also wanted one day, namely Sunday, to do her cleaning, shopping and other usual house maintenance without having to worry about showings. I received no comment objecting to same from the Plaintiff. It is a reasonable request as a term in my view. Given the reasonableness of the request and hearing no objection, I find this acceptable.
181As to date for listing, the Plaintiff is anxious to list the property for sale and asks that it be listed as soon as possible. The Defendant chose to leave the timing of the listing in the Court’s hands.
182Lastly given the unfortunate, obvious acrimony and history between the parties, it is reasonable and necessary in my view to make a term to address any non-compliance with any term of the conduct of the sale and to set timelines for the various steps for the sale of the property.
ISSUE FOUR: Punitive Damages
183From the date of the court application, the Plaintiff stated that she has pleaded with the Defendant to sell the property but the Defendant continuously refused despite the financial hardship on the Plaintiff.
184The Defendant admitted:
(a) that on January 18, 2016, she listed the property for sale without the consent, knowledge or authority of the Plaintiff;
(b) that she did not advise the Plaintiff the property was being listed for sale (she knew the Plaintiff had not signed the listing agreement);
(c) that despite the Plaintiff’s requests, of which the she was aware, she did not permit the Plaintiff or the Plaintiff’s real estate agent to access the property to inspect and evaluate the property;
(d) that she refused to cancel the listing despite requests to do so; and
(e) that she was aware of the email correspondence between the parties’ respective counsel on the issue of terminating the listing and the potential for irreparable harm, located at Tab 44 of Exhibit 1 and in particular page 735.
185On the allegation of delaying and stalling sale, the Defendant explained that until January 2016, she understood by Justice Daley’s and Bloom’s orders that she would be permitted to stay in the property until the trial. She understood that she had to pay all of the expenses and that the property would be sold after the trial, that the trial would determine the sale.
186The Defendant stated she changed her mind about wanting to sell the property in January of 2016, when she received an offer to settle from the Plaintiff. The Defendant indicated that her legal fees were mounting and the only way to pay them was to put the house up for sale. She received the offer by email and after reading it, she believed that she had to act in listing the property and that she had to do so the date in the offer. She also thought about selling and the parties moving on with their lives. This was also on her mind.
187The Defendant said that she got the offer to settle on the Friday before January 18, 2016 at 11:30 p.m. She claimed she phoned a friend and that friend told her that she knew an agent, Mr. Robert Stephenson. The Defendant said she called that agent. The agent came over that Saturday. She showed the agent the offer and the agent drew up the listing and came back with it Sunday. The listing agreement was completed on January 17, 2016 to list the property January 18, 2016 for $525,000.00.
188The Defendant stated that the agent sent a copy of the listing to the Plaintiff’s. The Plaintiff did not sign. The Defendant said she was made aware of this by her agent the afternoon of January 17, 2016. She told her agent to go ahead and list it anyway so that it would be known that the Defendant met the offer to settle timeline, which had a listing deadline of January 16, 2016. She said this all happened over this said weekend and that it happened quickly.
189The documents filed do not support the Defendant’s recollection of the facts. She met the listing agent January 9, 2016. When she was shown Mr. Stephenson’s opinion at Tab 38 of Exhibit 1, the Defendant did not remember it and said she never saw it before. This letter refers to the Mr. Stephenson meeting her January 9, 2016. Accordingly there was time to address the issue with her counsel and get advice prior to listing the property. Further, the email suggests Mr. Stephenson requested that the Defendant make the necessary arrangements for the Plaintiff to sign the listing.
190After being asked to cancel the listing, the Defendant refused. Agents and showings occurred and an email was received that there was an interested buyer. The Defendant seemed to think she received three offers. This was also not the case. What was correct was that there was an interested buyer willing to pay $515,000.00.
191In explaining why she did not cancel the listing she indicated she thought if she did she would have to pay double commission. She did not understand that this may not have been the case and took no steps to inform herself otherwise.
192The Defendant further said there was no need to have the Plaintiff’s agent come through the home. Nothing had changed since Mr. Borg saw it last, and her agent, Mr. Stephenson, went through the home. She felt she had the right to control the listing, and that it was best that she choose the agent, because it was her house.
193Eventually the listing was suspended after correspondence was exchanged between counsel, including counsel for the listing agent.
194As noted in Whiten v. Pilot Insurance (2002 SCC 18), [2002] 1 S.C.R. 595 at paragraph 36, these damages are awarded in exceptional cases for “malicious, high handed” conduct that offends the court’s sense of decency. In order to trigger an award of punitive damages, the conduct must represent a marked departure from ordinary standards of decent behaviour.
195Given Justice Daley’s and Bloom’s orders, the allegation that the Defendant stalled and delayed the sale of the property is not supportable in the context of this claim for punitive damages. That being said, the Defendant was clearly aware of the orders.
196As to the other actions of the Defendant, I find that the Plaintiff had a right to be involved with the listing of the subject property, if the property was going to be listed for sale. The Defendant was not unclear that the Plaintiff was seeking that the listing be terminated.
197While it may be that the Defendant misunderstood the offer to settle document, and/or that double commission could have been payable if she cancelled the listing, the Defendant chose not to correct the situation when she had the opportunity to do so. She did not seek advice to address these concerns and obtain guidance when she could have.
198The ill-advised listing was not long standing. The Defendant listed the property for an amount in the range of what Mr. Borg suggested it be listed for if not renovated. Mr. Borg seemed confident that he could sell the property. The fact that the parties are going to complete renovations and the passage of time, in my view, may arm Mr. Borg with justification for an increased sale price once it re-enters the market without much question.
199Given all of the above, I find that the initial conduct of listing the property was not malicious or high handed. Continuing the listing after being asked to take it off, however, I find amounts to unreasonable conduct. At the point that the Plaintiff was seeking termination and/or participation in the listing, I find the Defendant’s decisions were partly motivated by the Defendant’s belief that she was not required to have any regard whatsoever for the Plaintiff or her rights. Her conduct certainly caused more costs for the Plaintiff in this proceeding and contravened Justice Bloom’s order. Having said that, while cost and potentially contemptuous worthy, I am not of the view that the facts of this case, balanced with the Defendant’s misunderstandings that I do accept, reach the level of an exceptional case or should result in a finding of punitive damages. A cost order, in my view, in this case could appropriately address the blameworthiness of the party and her conduct which I am prepared to review in the context of costs submissions if requested.
ORDER
200Accordingly, it is ordered that:
Based on Mr. Borg’s expressed interest in being retained as the real estate agent for the listing; the Plaintiff’s request that the property be listed with Mr. Borg; and the Defendant advising at trial that she no longer objects to same, the parties shall, on or before May 9, 2016 retain Mr. Borg as the real estate agent to list the property municipally known as 834 Golden Farmer Way, legally described as Part Block 260, Plan 43M-1246, Des Pt. 3 on Plan 43R-23135, Mississauga, bearing PIN 13213-1482 LT (“the property”) for sale.
The parties shall further retain Mr. Borg to provide an up-to-date opinion of value of the property, and the Plaintiff and Defendant shall provide Mr. Borg access to the property on or before May 9, 2016, 2016 for this purpose.
The parties shall, on or before May 9, 2016, set, in consultation with Mr. Borg, an initial listing price. In the event of disagreement as to the listing price, each party will seek a second opinion of value no later than May 16, 2016, so that there will be three opinions of value in total, and the average of all of the opinions of values will be the listing price unless the parties can agree in writing otherwise. Access to the property will be provided to the party providing the second opinion on or before this said date if required.
The property shall be listed for sale by no later than May 31, 2016 unless the parties otherwise agree in writing.
The showings of the property, due to the Defendant’s work schedule may be limited, if the Defendant so requests, to showings Mondays through to Saturdays from 9:00 a.m. to 4:30 p.m. and a lock box attached to the property for purposes of showings.
In consultation with Mr. Borg, which consultation shall also occur on or before May 9, 2016, the parties shall take reasonable steps to ready the house for sale, including but not limited to the recommended painting and de-cluttering of the property. These steps shall be completed on or before May 31, 2016. If Mr. Borg is still content to pay the costs of these steps and wait for payment, Mr. Borg may pay these costs and shall be reimbursed for them from the proceeds of the sale of the property, up to the maximum amount of $5,000.00, unless the parties agree in advance and in writing to a greater amount. If Mr. Borg is not so content, the cost of these shall be paid by both parties equally; by the Plaintiff up to the amount of $1,500.00 and by the Defendant, up to the amount of $1,500.00, who shall be reimbursed for them from the proceeds of the sale of the house, unless the parties agree in advance and in writing to a greater amount.
The parties shall take all reasonable steps to facilitate, co-operate and complete the process of selling the property. The Defendant shall at all times for the duration of the listing of the property maintain the property in clean and show ready condition as requested and recommended by Mr. Borg.
From the proceeds of the sale of the property the following shall be paid:
(a) any outstanding taxes for the property;
(b) real estate commission payable on the sale;
(c) reasonable legal fees of the sale and standard adjustments;
(d) payment of the ICSCUL mortgage;
(e) amounts owing to Mr. Borg, or the parties as may be applicable in respect of reimbursement of the costs referred to in paragraph 6.
- After payment of the items listed in paragraph 8, the balance of the proceeds shall be divided equally between the parties subject to the following:
(a) from the Plaintiff’s fifty percent share, the sum of $49,670.39 shall be paid to the Defendant representing the benefit of mortgage funds received to pay off her debts and the joint Scotia Line of credit;
(b) from the Defendant’s fifty percent share, the sum of $3,000.00 shall be paid to the Plaintiff on account of costs payable by the Defendant to the Plaintiff pursuant to Justice Bloom’s March 12, 2015 order;
(c) from the Defendant’s fifty percent share, the sum of $11,147.81 shall be paid to the Plaintiff, representing the benefit of funds received to pay off her debts.
If a party fails to comply with this Order, the compliant party may apply to this court in the within action by way of motion to address the non-compliant party’s actions, for relief as may be required, and which motion may include a claim for costs, if appropriate.
Submissions as to costs shall be made in writing to me within 15 days of the date of this Order, limited to 5 pages in length for submissions, and should also include copies of any offers and bills of costs.
Rasaiah J.
Released: April 28, 2016
CITATION: Carroll v. Garnett, 2016 ONSC 2863
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIFFANY CARROLL
- and -
YVETTE GARNETT
REASONS FOR DECISION
Rasaiah J.
Released: April 28, 2016