minicounsel

COURT FILE NO.: 2010-94 DATE: 2016-09-09 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Earl Martin Webb Applicant – and – Frances Anne Laforme Respondent

Counsel: Darius Wroblewski, for the Applicant Alison MacDonald, for the Respondent

HEARD: September 6 and 7, 2016

The Honourable Mr. Justice J. W. Sloan

Endorsement

1The applicant brings this action claiming a constructive trust in property owned by the respondent on the Mississaugas of the New Credit First Nations reserve.

2His claim is limited to what I will refer to as the “matrimonial home”.

3The applicant’s application is dated June 17, 2010 and alleges a separation date of April 3, 2004.

4By order of Justice Ramsey dated October 22, 2010, he dismissed the applicant’s claim for an equalization of net family property as being statute barred.

5It is unclear whether or not Justice Ramsey dismissed the equalization claim because it was brought more than 2 years after the parties’ divorce or 6 years after their separation, but that does not appear to be germane to the decision the court is being asked to make.

6On November 29, 2011, the applicant was successful in obtaining an order from Justice Carpenter-Gunn to allow him to amend his application to include the constructive trust claim.

7The parties commenced living together in October 1993, were married June 24, 1995, separated either in 2003, April 3, 2004 or April 3, 2005 and were divorced April 15, 2007.

8After discussion with the court at the opening of trial, the parties agreed, pursuant to the reasoning in the case of McConnell v. Huxtable, 2014 ONCA 86, that the 10 year limitation period set out in the Real Property Limitations Act applies to this claim.

9The parties have 3 children, Desiree Faith Webb or May 3, 1994 - (22), Colette Hope Webb for May 5, 1996 - (20) and Martin Daniel Webb born December 5, 2000 – (15).

Earl Martin Webb

10Mr. Webb testified that when the parties met he was a long distance truck driver, travelling all over North America and was away anywhere from 1 day to 2 weeks at a time.

11Initially he was an employee driving a tractor trailer, but in 1994 he became an owner operator.

12He testified that when they got married he was earning approximately $35-$40,000 net and that the respondent was not employed.

13By 1995 they had moved to their 2nd apartment and later moved in with the respondent’s parents for approximately 6 months so they could save money to build a house.

14It was his recollection that the respondent bought an empty lot from her uncle for $500 plus innumerable haircuts.

15Mr. Webb was aware at all material times that the property had to be placed in the respondent’s name, because it was on a reserve and while she is a status Indian he is not.

16The respondent received a $45,000 partly gift, partly loan from the Band Council, however, Mr. Webb testified that the Band Council looked at his wages of approximately $40,000 net per year and the fact that the parties had each borrowed money from their mothers before agreeing to the financial transaction.

17No documents were ever produced to confirm that the respondent’s earnings were taken into account when the gift/loan was made.

18Because only the respondent had First Nation’s Heritage, all the paperwork is in her name and signed by her.

19Mr. Webb testified that from 1998 to 2000 the respondent was in school, which was paid for by the Band Council and the government, however he provided her with a vehicle for transportation.

20While she may have cut the occasional hair, essentially all of the money to keep the household operating was coming from his employment.

Matrimonial Home

21Mr. Webb testified the construction of the home took approximately 2 years, and that prior to construction he borrowed a friend’s back hoe to construct approximately 600 feet of access road, for which he then hauled stone from a quarry so that construction trucks could drive to the property.

22While third parties drilled water test holes and dug and formed the foundation, Mr. Webb testified that he, and a couple of his friends/relatives, constructed the floor deck and framed the house.

23He testified that he worked every weekend as a long weekend on the house.

24He testified that the major part of the construction, not including the land, cost approximately $87,000.

25In 2004 the respondent applied for and was granted $36,000 loan from the Band so they could finish the basement and complete some other interior work.

26At Tab 7 of the applicant’s document brief, Mr. Webb has sought to add 2 new pages to his brief. The pages are stamped received October 1, 2004 and are headed “Mississaugas of the New Credit First Nation Housing Specification Report”.

27Introduction of this two-page document was objected to by the respondent and I initially allowed it in on the basis that I would rule on its admissibility later.

28Although it should have been produced much earlier, the documents are in the name of the respondent and relate to renovations of the home and finishing of the basement, all of which the respondent would know about. I therefore rule that they are admissible.

29Essentially the two-page document confirms a loan to the respondent in the amount of $36,206 to carry out further renovations to her home. In addition, the document goes into some detail about what renovations were contemplated.

30Mr. Webb testified that there were 2 guys working there every day and he would help to work when he could.

31He testified that he paid for and installed the flooring.

32Once the basement was completed, he testified that the respondent asked him to leave.

33Not surprisingly, Mr. Webb does not have any invoices or receipts for items he paid for in 2004.

The Relationship

34In addition to relationship details set out earlier in this judgment, the respondent commenced an action in the Ontario Court of Justice for matrimonial issues in late 2003, however she withdrew her application on December 31, 2003. (See Tab 1 of the applicant’s document brief)

35Mr. Webb testified that they reconciled off and on until April 2005, when he testified he just finished installing a new carpet and the respondent told him to get out because she had found someone else.

36Mr. Webb produced photocopies of his doctor’s notes which read, on June 18 – “semi-separated – relationship up and down”, on July 28, 2004 – “home situation – living at home, on-again, off-again”, and on April 26, 2005 – “separated for good”. (See Tab 2 of the applicant’s document brief)

37Mr. Webb produced a hotel receipt from a hotel in Niagara Falls for the night of April 24, 2004 and indicated that he took his wife there for a celebration and they had a good time. (See Tab 2 of the applicant’s document brief)

38Mr. Webb also produced a promissory note and chattel mortgage for the financing of the vehicle which is signed by both parties it is dated January 21, 2005. (See Tab 2 of the applicant’s document brief)

39In addition, the respondent in her application to the Ontario Court of Justice dated April 20, 2005, states that the parties separated on April 10, 2005. (See Tab 1 of the applicant’s document brief)

40He further testified that in essence they acted like a married couple, they would go to his mother-in-law’s trailer with the children on weekends, play pool together, go to the casino together, and attend Christmas parties together.

Other Factors

41On January 23, 2008, the applicant was injured at work, and while initially having some problems with WSIB, he is now on WSIB and ODSP.

42He testified that his income went from $35-$40,000 a year down to $800 a month.

43He currently collects $31,000 per year which includes what he gets from WSIB, ODSP and $900 a month which he receives because he has two autistic boys from a new relationship.

44Mr. Webb currently pays $50 a month for the support of the 3 children, which payments commenced on June 1, 2010 pursuant to Justice Edwards order. (See Tab 8 of the respondent’s document brief)

Value of Matrimonial Home

45Paragraph 4 of Justice Turnbull’s order dated November 10, 2010, reads; “The parties shall cooperate to obtain at least one opinion letter of value of the matrimonial home at 3075 Mississauga Road, Hager’s Bill, Ontario. If one party wishes a 2nd opinion letter of value the parties shall cooperate in picking a 2nd valuator. The cost shall be split equally for each valuation.”

46It is Mr. Webb’s evidence that the respondent would not cooperate in any manner whatsoever in getting a valuation of the matrimonial home and she denied his valuator access to the interior of the home.

47It is his evidence that neither she nor the First Nations Band, who have jurisdiction over the land, would give any information to his evaluator or himself.

48Mr. Webb produced a real estate appraisal of the property which is set out at Tab B of volume 2 of the applicant’s document brief.

49The report is dated July 22, 2015 and values the property between $125-$135,000.

50The respondent points out that there is no valuation for any of the possible separation dates of 2003, 2004 or 2005 and that the appraisal values the property as of July 22, 2015.

51The respondent also points out that the comparables used in the appraisal report are on the Six Nations Reservation and not on the Mississaugas of the New Credit First Nations reserve.

52In her testimony Ms. Laforme testified that she called both RE/MAX and Coldwell Banker to ask them if they would do a valuation but after they found out property was on a reserve they both declined to do so.

53She stated the only way she could sell the property would be to put a notice in the local band flyer because only band members can buy the property.

54No correspondence was filed with the court to show that the respondent was being uncooperative, nor was any motion brought seeking to hold her in contempt or ask for further directions from the court.

55One would think that at a minimum there would be written request from the applicant’s lawyer to the respondent’s lawyer asking/demanding cooperation from the respondent with respect to obtaining a valuation on the matrimonial home.

Kevin VanEvery

56Mr. VanEvery testified about the renovations to the matrimonial home in 2004, done by Next Step Contracting for whom he worked at the time.

57He does not recall the applicant doing work on the house when he was there.

58He testified that from his observations the relationship between the parties seemed normal.

Charlie Parfait

59Mr. Parfait has known the applicant for 27 to 30 years and also knows the respondent.

60He seems to have been the main person responsible for the initial building of the matrimonial home. He testified that with the exception of forming the basement, he was there during the construction of everything else which he estimated took 5 to 6 months.

61He testified that when the applicant was home on weekends, he helped with the construction on the matrimonial home.

Frances Laforme

62She testified that she bought a 1 acre lot from her uncle in 1991 for $500 and the 2nd acre in 1993 for a lifetime of haircuts.

63They started building the house in June 1996 and moved in with her parents in October 1996 to save money to put towards the house.

64She testified it took approximately 2 ½ years to finish the house and that Charlie Parfait did most of the work.

65She testified that the applicant, because he was a long distance truck driver, was hardly ever home and that he would get home either Friday evening or Saturday morning and leave again Sunday and that while he was at home he would have to rest up for his next trip.

66With respect to herself, she stated that she worked from 1995 to 1997, was in school studying to become a nurse from 1998 to 1999, and has been fully employed mostly with the Band ever since.

67She testified that the first separation in October 2003 was because of financial problems and stated that the applicant’s pays were sporadic, he kept taking cash advances and in her opinion he had a gambling problem.

68She stated that she withdrew her application to the court in 2003 because she was being mentally abused by the applicant, who among other things would call the CAS and lodge complaints against her.

69She testified that they never reconciled in 2004 and that since the separation in 2003 they never lived together in the same home. She stated that at all times the applicant lived in Waterford.

70In addition, she testified she was essentially the main support financially and emotionally for the 3 children.

71She testified that the first time she moved a new boyfriend into the house was in February 2010.

72She testified that she applied for the $36,000 loan for renovations in 2003 because black mold was discovered in her home which meant that some of the insulation and drywall had to be removed to remediate the mold.

73She stated that the loan was made to her solely on her employment income of $42,000 a year which is nontaxable.

74She further stated that she has now retired both loans from her own earnings and the loans were paid monthly by direct payroll reductions from her employment and earnings.

75Ms. Laforme testified that in 2003 the applicant wrote a letter to her questioning the house and about his interest in it. She responded to him that in her culture the house goes to our son.

76She testified that his child support of $666 per month was sporadic and as such she couldn’t depend on it.

77She acknowledged that the applicant did buy flooring for the basement in December 2004, but stated it was a Christmas gift to his children.

Findings

78In the applicant’s initial application for divorce in file number 5168/06 dated November 23, 2006, there is no claim for any relief other than a divorce. (See tab 3 of the respondent’s document brief)

79In the standard affidavit for divorce, which must be completed before divorce is granted, the applicant would have had to swear/affirm at paragraph 7. “I do not want to make a claim for a division of property in this divorce case, even though I know that it may be legally impossible to make such a claim after the divorce.”

80The onus to prove that the parties cohabited between 2003 and 2005 is on the applicant. While he has produced some evidence that may suggest he lived at the matrimonial home with the respondent, he did not testify to this directly in his evidence, but said that they acted as man and wife.

81The respondent on the other hand testified directly that they did not live together during this period of time in the matrimonial home.

82Perhaps most telling is the evidence from the applicant’s doctor’s notes which talk about being semi-separated and living at home, on-again off-again.

83Based on this evidence it appears far more likely that the parties were attempting reconciliation and while they may have spent some nights together, on the evidence before me I find that they were not residing together for any extended period of time between 2003 and 2005.

84Although it is clear that the applicant did put some “sweat equity” into the matrimonial home it is unclear what that would have amounted to.

85While I find that he made the construction road from the laneway to the house, no evidence was tendered as to what the value of that work would be.

86Based both on the applicant’s and Mr. Parfait’s evidence, it is obvious that in the initial construction phase of the home the applicant did some work and the court got the distinct impression that this work was done under the supervision of Mr. Parfait.

87There was however no evidence which attempted to quantify the value of the work which the applicant did.

88It is extremely difficult to ascertain what the value of the matrimonial home might have been on a date of separation, no matter which date is used.

89Unfortunately the only appraisal we have is one which values the home in 2015. In addition, the appraisal itself uses comparables from a different First Nations reserve and there was no evidence presented to the court to suggest that these are appropriate comparables.

90With respect to the payment of the initial construction loan it is difficult to determine what the applicant may have contributed.

91No financial records such as bank records, cancelled checks or receipts were produced showing money flowing from the applicant to either the Band or the respondent in the monthly amount due under the financing.

92At the end of trial the applicant requested a judgment in the amount of $45,000 based on constructive trust/unjust enrichment.

93The applicant seeks a money judgment because the property in question is on a First Nation’s reserve and in all probability the court has no jurisdiction to transfer any ownership in the land to the applicant. At least no law was proffered by the applicant to suggest otherwise.

94The applicant referred the court to the case of Pettkus v. Becker, [1980] 2 S.C.R. 834 but did not refer the court to any specific passages within that case.

95In the Pettkus case, the parties resided in a common-law relationship for approximately 20 years and worked essentially side-by-side. When they separated, the respondent offered the applicant a pittance to essentially just disappear.

96The case goes on to discuss that to prove a constructive trust, there must be an enrichment to one party, a corresponding deprivation to the other party and an absence of any juristic reason for the enrichment.

97In the case at bar the applicant submits that the respondent has been enriched, that he has been deprived and that there is no juristic reason for the respondent’s enrichment.

98On the facts of this case, it is difficult to see how the respondent has been enriched by the applicant’s efforts.

99The applicant obtained a 2 acre parcel of land for essentially $500 because of her heritage and the benevolence of her uncle.

100Although the applicant may have played a part in the initial financing for the construction of the home, (by showing his earnings) he has not produced any evidence other than his own verbal testimony that he purchased construction material for the home or made significant payments on the financing for the home.

101On the evidence before me I find that the payments on the second wave of financing, being the $36,000 loan, were paid for entirely by the respondent.

102It may therefore be that the applicant contributed up to $20-$30,000 towards the construction of the home both in terms of money and sweat equity.

103However based on the evidence before me, from 2004 onward, I find the applicant maintained the home and the children with minimal assistance from the applicant.

104Certainly from January 2008 onward, including today and into the future almost all of the expenses for all three children over and above that supplied by the Band for education have been provided by the respondent.

105Although it is unfortunate that the children do not seem to have a better relationship with the applicant, this case is not about custody and access and therefore virtually no evidence was heard by the Court with respect to why the relationship between the applicant and his children is strained.

106However, it is obvious to the court that the respondent has done an excellent parenting job with the children, at least as far as education is concerned since the oldest two are pursuing college careers and the youngest is entering grade 11.

107If the applicant had not been injured and had continued to pay child support in the amount of $666 per month, the respondent would have received approximately $43,200 more in child support between January 1, 2010 and January 1, 2017. (6 years x 12 months times $600/month)

108While the court has sympathy for anyone, including the applicant who is significantly injured, the fact still remains that the financial problems which impacted the family as result of his unfortunate accident had to be borne by the respondent.

109Based on the above I do not find that the respondent has been enriched by any corresponding deprivation suffered by the applicant.

110The applicant’s action is therefore dismissed with costs if demanded.

111If the parties are unable to agree on costs, Ms. Macdonald shall forward her brief submissions on costs to me by September 16, 2016. Mr. Wroblewski shall forward his brief response to me by September 21, 2016. Ms. Macdonald shall then forward her reply, if any, to me by September 27, 2016. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca

J. W. Sloan J.

Released: September 9, 2016