Court File and Parties
BARRIE COURT FILE NO.: FC-15-1367-00 DATE: 2017-05-03
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Boodnarine Nauth Applicant – and – Sheila Bijai Respondent
Counsel: J. W. Craig, Counsel for the Applicant N. Canizares, Counsel for the Respondent
HEARD: November 29, 30, and December 1, 2, 2017
Reasons for Decision
JARVIS J.
[1] The applicant and respondent are former spouses. The applicant has claimed exclusive possession of a residential property which he describes is a matrimonial home located in Florida, including its contents. Title to the property is registered in the parties’ names. In her Answer, the respondent has requested that the property be listed for sale, sold and that its net sale proceeds be equally divided. Also requested are the return of chattels and a restraining Order against the applicant.
[2] The Trial Scheduling Endorsement identified the only issue for trial as being ownership of the Florida property, this involving “trust issues” [1]. The applicant's pleadings were never amended, or requested to be amended, before, during or after trial. He seeks an Order that the respondent holds her interest in the property in trust for him.
[3] The applicant and his current partner testified. In addition to her own testimony, the respondent called a former neighbour of the parties in Florida, her daughter and a nephew.
Evidence
[4] As the evidence unfolded at trial, two irreconcilable stories emerged about the ownership of the Florida property and the end of the parties’ relationship.
Boodnarine Nauth
[5] The applicant was born in Guyana and immigrated to Canada when he was about 30 years old. His education was indifferent. While he could not remember how many years he went to school, they were few in number. He was functionally illiterate. He testified that he had difficulty reading and writing: he could read some things - to spell words he used a mobile phone application.
[6] He met the respondent at a party in 1995. He was working at Canadian Tire and Walmart and also earned income from car detailing. He lived in a basement apartment. The respondent owned her own home (“Woodcroft”) which she had acquired as a result of a settlement with her former spouse. Two children of that relationship lived with her, a 10 year old son and an 8 year old daughter. The parties dated for about three months before they agreed that the applicant could move to live at Woodcroft. He brought only his clothes, no furniture. The parties married on May 3, 1997.
[7] The respondent handled the parties’ finances. The applicant gave her his paycheque. This money, together with the respondent's earnings, was deposited into an account from which the household bills and the parties living expenses were paid. In July 1998, the respondent transferred the Woodcroft title from her name alone to the joint names of the parties. No evidence such as a copy of the registered conveyance or a solicitor's reporting letter was tendered which might have informed the court about the consideration associated with the transfer. Neither party was very helpful in this regard. Based on their evidence, the most likely explanation is that as the Woodcroft property was subject to a mortgage from whose covenant the respondent’s former spouse had not been released: the applicant’s covenant was substituted. It is also unclear whether the mortgage was refinanced at that time. Suffice it that the applicant became registered on title as joint owner with the respondent and liable for the mortgage.
[8] In or about 2001 the respondent was working at a packaging company in the Greater Toronto Area. She managed to get the applicant a job there, where they both worked for about five years together. The respondent was a shipping supervisor earning between $45,000 and $50,000 a year. There was no evidence as to what the applicant earned. There was no evidence either as to when the respondent left that employment but the applicant testified that he worked for the company for about 10 years before a carpal tunnel syndrome diagnosis (“CTS”) affecting both of his hands was made. He discontinued that work and began receiving WSIB payments which were later reduced to about $600 monthly. Since then, he has worked infrequently. He attends garage sales and fixes up old cars for resale.
[9] Beginning in August 2003 there were a series of Woodcroft mortgage refinancings which increased the (then) $200,000 principal owed to about $255,000 by December 2004. There was also a $20,000 line of credit secured against title. The applicant testified that the respondent was gambling and running up her credit cards. The refinancings were needed to fund those debts. There were frequent arguments between the parties about money.
[10] According to the applicant, he was unaware of the extent of the respondent’s gambling and how she managed the parties’ financial affairs. Bank and credit card records filed at trial showed that substantial casino or gaming charges were incurred on the respondent’s credit card between August 2009 and December 2012. These were periodically paid from winnings or the parties’ joint bank account.
[11] In 2009 Woodcroft was sold and another residence, the Gaspe property in Brampton, was purchased. Title was registered in the parties’ names as joint owners.
[12] The parties lived at the Gaspe property until it was sold on March 30, 2012. The applicant's position is that the parties separated before the sale was completed. He went to live with other members of his family but wanted to buy a property in, and move to, Florida. The parties travelled to Florida together before and after the Gaspe property was sold. On March 3, 2012 they opened a joint bank account in Florida with a branch of the Royal Bank of Canada (“Royal Bank”). Later in June, another bank account in the parties’ names was opened in Florida, this time with a Toronto Dominion Bank branch (“TD”).
[13] The net proceeds of the Gaspe property sale of $100,972.95 were deposited to the parties’ joint bank account in Canada. From those proceeds a $50,000 Guaranteed Investment Certificate was purchased and $25,272.90 was transferred to the parties’ Royal Bank account in Florida. Adjusted for the exchange rate, this was $25,000 USD.
[14] The applicant contends that when the Gaspe property was sold the parties agreed to divide the net sale proceeds equally and that they also agreed that the respondent would loan to the applicant her share of the sale proceeds to enable him to buy a property in Florida.
[15] The respondent looked for a Florida property to purchase. She wrote deposit cheques drawn on the parties’ US Royal Bank account for two properties, the second of which cheques formed part of the consideration for a binding agreement to purchase a residence for $130,000 USD. According to the applicant, she looked after “everything” associated with the purchase. He testified that the property was intended to be his alone but that since he didn’t qualify for a mortgage the respondent agreed to put her name on title and the mortgage.
[16] A purchase agreement was dated and signed by both parties on May 22, 2012 and accepted by the vendor on May 25, 2012 with a completion date of June 30, 2012, later extended to July 16, 2012. All documents relating to the purchase named both parties. The applicant never told the realtor who assisted in the purchase that the property was intended to be his alone or that the respondent was only helping him.
[17] In addition to the purchase agreement, the other documents signed by the parties included a disclosure and transaction brokerage agreement required by Florida law, a disclosure statement from the vendor, the receipt for which the parties signed, and a Settlement Statement (which appears to be similar to a statement of adjustments in Ontario real property law) initialed by the parties. This identified them as husband and wife mortgagors. A local lawyer acted for the parties. The applicant never told the lawyer that the parties had agreed that the property was to be his alone or that the only reason why she was participating in the transaction was to help him to obtain a mortgage.
[18] The transaction was completed. To fund the purchase, the parties used the proceeds of the GIC and savings from their two US bank accounts. Title was registered in the parties’ names. Insurance for the property was initially paid from the parties’ joint US TD bank account as were the lawyer’s fees.
[19] The applicant testified that after the purchase closed, he lived at the property for about three to four months. During that time he painted the residence and paid third parties in cash to perform interior and exterior repairs and improvements. The respondent did not contribute to these expenses. She was rarely there, staying with friends. In fact, according to the applicant, the parties never lived at the property as a couple. She did have a key to the premises.
[20] In late September 2012 the respondent paid to ship to Florida chattels from the Gaspe property sale which were described as “used household items.” She purchased furniture in September and then appliances for the residence in October.
[21] Starting in October 2012 the monthly mortgage payments of approximately $803 were withdrawn from a US TD bank account in the applicant's name. The evidence suggests that this account may have been opened in October 2012 when the parties’ joint TD account was closed. Excepting three mortgage payments made in early 2015 by the respondent all other payments were made by the applicant.
[22] Between December 2012 and August 2013, the applicant withdrew $16,000 in cash from his Florida TD bank account. These withdrawals were recorded in a bank account transaction summary. The applicant testified that he gave these funds to the respondent to repay her loan. Only one of the transactions corresponds to a contemporaneous deposit to a bank account owned by the respondent (March 27, 2013): a recorded $1,000 withdrawal about two weeks earlier (March 15, 2013) may correspond to a March 20, 2013 deposit.
[23] On or about January 25, 2013 the respondent made a Consumer Proposal. It identified that she was married and that a reason for her financial difficulties was that her “husband [was] also unable to work due to injury at work”. She stated that she owned a home in Florida which was encumbered and that it was rented to a family member who paid below market rent. The identity of that family member was not disclosed.
[24] The respondent’s proposal was accepted. It was agreed that the respondent would pay the estate administrator the sum of $25,000 in 60 equal monthly payments of $420 starting in February 2013 and ending in January 2018. She began making these payments.
[25] In February 2013 the parties signed a joint Application for Divorce. This was prepared by the respondent. The date noted for the parties’ separation was June 2009. A divorce Order was made on March 28, 2013.
[26] Starting in September 2013 and continuing to January 2015 the applicant made the respondent’s consumer proposal payments. He also paid for her car insurance until November 2014.
[27] It was in late September 2014 that the applicant discovered that the respondent had accessed a $15,000 line of credit in his name alone and which he said he had never used. The respondent admitted taking the funds. To avoid the applicant reporting her to the police, which he acknowledged at trial that he was going to do, she handwrote the following note:
To Who (sic) it May Concern
I Sheila Bijai is (sic) taking my name off the house address 11243 SW 245 St Homested Fl 33032 because I contribute nothing into the morge (sic) and the reason to take my name off is because I take Boodnarine Nauth credit card and withdra (sic) all the credit and a few other time I had to refinance to pay credit debt and the credit I [illegible] Sheila Bijai credit card.
Sheila Bijai
[28] Several months later, the parties drove to Florida together and spent the night at the property. The respondent left the next day. The applicant retained a lawyer to prepare documents needed to transfer title. These documents contained an acknowledgement by the respondent that she had taken $15,000 from the applicant’s line of credit without his consent and that she was agreeing to quitclaim her interest in the Florida property to the applicant. The applicant signed these on or about April 3, 2015. On the following day the Miami-Dade police responded to a domestic dispute incident at the property. The respondent needed assistance in obtaining her belongings. The Offense-Incident Report noted that the parties were former spouses and that they didn’t reside together.
[29] On April 22, 2015 the applicant was denied an ex parte restraining Order against the respondent by a Florida court.
[30] The respondent never signed the documents about the property which the applicant had prepared and signed on April 3rd. After what the applicant described as the respondent’s repeated excuses about why she was unable to see the lawyer, she finally refused to sign anything and told him to take her to court. She claimed that the property belonged to her too. These proceedings ensued.
Veronica Williams
[31] Veronica Williams is the applicant's girlfriend. She is married, but separated, with two children of that relationship. She was born in Guyana and completed high school there before immigrating to the United States. She worked as an executive assistant at Goldman Sachs, a global banking, securities and investment management firm. She resides in New York State where there were ongoing family law proceedings between her and her spouse at the time of trial.
[32] Ms. Williams met the applicant in Guyana in 1990. They dated for about two years before she emigrated. She and her husband had separated twice, the first time in 2005, reconciling in 2007 then separating for the last time in 2012.
[33] According to Ms. Williams, she and the applicant had lost track of each other after she emigrated. They reconnected in 1994 when the applicant telephoned her. By then she was already married. Afterwards Ms. Williams became acquainted with the respondent although they did not meet. They became quite friendly over the telephone, the respondent often complaining about arguments with the applicant, a couple of times escalating to physical abuse.
[34] In 2012 the applicant told Ms. Williams that he and the respondent had separated. He was living with his family. The respondent confirmed this the next year when she telephoned Ms. Williams to inquire about how long the process would take to immigrate to the United States. The respondent had met someone in Florida (whom she later married).
[35] In the course of their telephone contacts, the applicant told Ms. Williams that he planned to move to Florida because of his disability. After the parties separated the applicant said that he and the respondent maintained a good relationship - she had helped him find and purchase a home in Florida, and had loaned him money.
[36] It was not until 2014 that the applicant and Ms. Williams physically met again. She attended Toronto's annual Caribana celebrations that summer at the applicant's invitation. In 2015 Ms. Williams visited the applicant in Miami.
[37] While it is unclear when she became aware of the parties’ dispute about the Florida property, what is clear is that it was Ms. Williams who undertook an investigation of the parties’ financial dealings leading up to, and associated with, the purchase of that property. She reviewed the banking statements, credit card, line of credit and mortgage documents in the applicant's possession, even attending with him at the institutions involved. The applicant had “no clue” about banking matters: he “knew nothing” about how any of the accounts in which he was involved with the respondent co-related to the parties’ finances. He did not know how to bank on-line; and could not read bank statements. In her review of the financial documentation provided by the applicant and disclosed by the respondent, Ms. Williams saw a lot of money moving through the various accounts, most of which was paying the respondent’s credit cards.
[38] Ms. Williams’ evidence was of little assistance to the court. While she helped the applicant in gathering together his banking documents and trying to track the flow of funds over a period of years between a number of bank, credit card and line of credit accounts she was not involved in the realty transactions which led to the purchase of the Florida property.
Sheila Bijai
[39] The respondent was born at and educated in Guyana. She immigrated to Canada in 1982, began working as a shipping clerk and was promoted several times, ultimately to a supervisory position. She married in 1983. Two children were born of that relationship, a son (1983) and a daughter (1988). In or about 1994 the respondent’s employer was sold and her employment later ended. She returned to school to upgrade her qualifications and secured a supervisory position at a local packaging company. It was around this time too that she and her spouse separated.
[40] As part of the settlement of the issues arising from the marriage breakdown, the respondent retained custody of the children of the marriage and sole ownership of the matrimonial home (Woodcroft). In her description of the parties’ meeting, their courtship and the circumstances surrounding the management of their household expenses and how the applicant became registered as a joint owner of Woodcroft, the parties’ evidence differed little. Nor was there any dispute surrounding the sale of Woodcroft and purchase of the Gaspe property.
[41] The respondent managed the parties’ financial affairs because she was more sophisticated in that respect than the applicant. She denied that she had a gambling habit or addiction. Both parties enjoyed casinos and gambling. Exhibit 6 at trial comprised a series of photographs, one of which was undated but showed the parties together and focussed on gaming machines in front of them. Withdrawals from the parties’ joint bank account or credit card transactions were often accompanied by deposits from gambling or casino winnings.
[42] There was little evidence about the parties’ circumstances between the date of their marriage and the 2009 sale of the Woodcroft property except as already described by the applicant about the increase in the parties’ debt. The respondent’s credit cards and bank records evidenced significant activities and repayments, although no effort was made by either of the parties to prepare a summary which would compare the winnings and losses. The respondent said that these activities involved both parties.
[43] In late 2011/early 2012 the respondent’s employment ended. She began receiving employment insurance benefits and worked cash jobs. This carried over into 2012. Early that year, or possibly before then, the parties had discussed selling the Gaspe property and moving to Florida. They flew there in January 2012 and opened a joint Royal Bank account.
[44] The Gaspe property sale was completed at the end of March 2012. From the net proceeds of sale, the sum of $25,000 USD was transferred to the Florida Royal Bank account and $50,000 invested in a joint GIC. There was no agreement to divide the net sale proceeds equally as claimed by the applicant. Nor was there any agreement about any $25,000 loan to the applicant as he claimed either. In fact, there was never any such discussion.
[45] The parties began to look for a home to buy. The applicant had to return to Canada for a WSIB assessment and, during that time, the respondent looked at many homes, eventually making deposits on two properties, the last of which resulted in a binding purchase agreement.
[46] The parties saw their real estate lawyer together and were present when each signed the closing documents. The applicant never said that the house was his alone or that the respondent had loaned him money for the purchase. The house was empty. The respondent arranged, and paid, for the transportation of the Gaspe chattels and storage to Florida and also bought and paid for furniture and appliances for the property. Between the completion of the purchase in mid-July 2012 and December 2012, the parties spent about a month scrubbing and cleaning the property after which they lived there until December when they returned to Canada for Christmas. They drove home together and stayed at the home of the respondent's nephew in a basement apartment. The rent was $500 a month. The parties could not stay longer in the United States than six months a year because they were not US citizens. This pattern of the parties’ spending as much time in Florida during the Canadian winter not exceeding six months was repeated in the following years, as was their residency with the nephew.
[47] The parties did not separate in 2012 as the applicant claimed. They drove back and forth together between Canada and Florida several times in 2012, 2013 and 2014. In March 2015 the parties flew together on one occasion between Toronto and Miami. When not in Florida, the parties occupied a basement apartment in a house owned by her nephew and paid him rent.
[48] The parties’ financial circumstances did not improve in 2012. The applicant continued to receive WSIB payments: the respondent was unemployed for most of the year. Her 2012 Notice of Assessment showed a $4,332 total income.
[49] On December 25, 2012, the respondent reported a burglary at the Florida property which was investigated by the Miami-Dade Police. A report was made. An insurance claim paid over $7,000 USD to the parties jointly on April 30, 2013.
[50] On or about January 25, 2013 the respondent made a Consumer Proposal. She identified that she was married and that a contributing reason for her financial difficulties was that her “husband [was] also unable to work due to injury at work”. A significant component of her declared liabilities was consumer debt, mostly credit cards. She stated that she had used proceeds from a recent sale of property to pay debt and for the purchase of a property in Florida. This property was rented to a family member who paid below-market rent. The identity of the family member was not disclosed.
[51] The respondent's Consumer Proposal was accepted. It was agreed that she would pay the estate administrator the sum of $25,200 in 60 equal monthly payments of $420 from February 2013 to January 2018. The respondent began making those payments on February 7, 2013.
[52] Shortly after the Consumer Proposal was accepted the respondent prepared, and the parties signed, a joint Application for Divorce. A June 2009 separation date was declared, which the respondent admitted at trial was untrue. She testified that the parties schemed to move to Florida, obtain a divorce, marry and then divorce a US citizen and then get back together. Either that or somehow manage to acquire a US work permit. The Divorce was granted on March 28, 2013.
[53] Apart from a $2,000 payment which the applicant said he’d paid her in December 2012 and which the respondent couldn’t recall having received, she denied being paid what the applicant alleged between December 2012 and August 2013.
[54] Exhibit 6 comprises a series of photographs of the parties and others spanning a period from April 2013 to November 2014. They picture the parties embracing, smiling and socializing with others. Several pictures show the parties attending a Florida area aviation show on April 12, 2013. A year later, an April 10, 2014 photograph shows portrait-style photographs of the parties in the front hall area of the Florida home. Pictures identified as being taken in late November 2014 show the respondent outside and inside the residence. Another (undated) picture shows the respondent and friends inside the home in festive circumstances.
[55] When in Florida the respondent earned a modest cash income house cleaning.
[56] On September 26, 2014 the parties argued about money all day. The respondent acknowledged that she had taken money for herself from the respondent’s line of credit. There was a physical altercation. The respondent handwrote a note acknowledging that she had taken money from the line of credit and stated that she was giving up her interest in the Florida property to the applicant (see paragraph [27] above) because that “was what [the applicant] wanted”.
[57] The respondent elaborated in cross-examination that the applicant had punched her and pulled her hair just before this note was written. She was “not thinking” when she wrote it.
[58] The respondent testified that the applicant was often physically abusive. When the parties fought, money was always involved. On one occasion the respondent was admitted to a local Ontario hospital after being beaten by the applicant. She overdosed on sleeping pills. On another, when the respondent’s daughter still resided with the parties, the applicant was arrested for assaulting the respondent, and spent the night in jail. No criminal charges were pursued. No exact dates were given for these incidents but it is likely that they happened before the Gaspe property was sold.
[59] The parties finally separated in January 2015 after the applicant attacked her with a machete. There was no evidence that she was injured or complained about this at the time. The police were not called because the parties did not have US “papers”. Afterwards she asked a mutual friend to approach the applicant to see whether the applicant would agree to pay for her interest in the property. There was no resolution.
[60] There was never any discussion about the respondent signing documents to transfer her interest in the property to the applicant. The first time that the respondent saw the quitclaim document, which the applicant had a lawyer prepare, was after he had started these proceedings.
[61] In cross-examination the respondent acknowledged that her income tax returns from 1988 to 2012 inconsistently described her marital status. Those returns showed that she was divorced (1996), married (1997), separated (1988), married (2000 to 2007), single (2008), common law (2009-2011) and separated (2012). She said that these were errors made by her accountant. Despite repeated requests by the applicant for the respondent’s 2013 to 2015 income tax returns, none of these was ever disclosed. The respondent said that she had provided them to her former lawyer and could not explain their non-disclosure. She acknowledged that the tax returns’ information about her marital status was inconsistent with her evidence about that status at trial.
[62] The respondent remarried on July 6, 2015 to a US citizen of Guyanese descent. The parties had met earlier in March 2015. Three days after the marriage, when the parties were disputing the applicant’s refusal to share with her rental proceeds from the property, the respondent emailed the applicant that she was informing the WSIB about his whereabouts for the past three years, where he was working and to explain “his house” in Miami.
[63] On August 1, 2015 the respondent’s spouse petitioned for a Visa granting the respondent US residency. This was supported by unsworn documents attesting to the marriage being genuine. The petition was granted. The respondent lives with her spouse in Florida.
Sabrina Bijai
[64] Sabrina Bijai is the respondent's daughter from her prior marriage. Recently married and employed as a child and youth worker with a local Board of Education, Ms. Bijai was living with her mother when the applicant first came to live at the Woodcroft residence. She was eight years old.
[65] Ms. Bijai left the home when she was 18 years old because, as she testified, she “could not take it anymore”. There were always arguments between her mother and the applicant. While she did not know who started the arguments they often involved the applicant pushing the respondent and swearing at her, describing her in unflattering language. The respondent reciprocated. This verbal abuse was also directed toward Ms. Bijai. She described her experience with him as horrible; she hated him. On the eve of one of her mother's birthdays, Ms. Bijai overheard the parties arguing about money. Hearing a loud bang, Ms. Bijai located her mother and saw that her nose was bleeding. She called the police, and the applicant was arrested.
[66] This witness’ testimony contributed nothing to the issues surrounding the acquisition of the Florida property. Ms. Bijai left the matrimonial home several years before it was sold and the Florida property was purchased. No evidence was elicited about the parties’ financial relationship. The court was left with the impression that the principal reason for Ms. Bijai being called as a witness was to discredit the applicant's character.
Naresh Hiralall
[67] Mr. Hiralall was born in Guyana and immigrated to Canada in 1992. He is married and resides with his wife and two children in the Barrie area. The respondent is his maternal aunt.
[68] Between 2012 and 2014 the parties rented a basement apartment in Mr. Hiralall’s home for the summer, normally from the end of May to July. The respondent paid the $500 monthly rent. The applicant would buy used vehicles, clean and detail, then sell them. He kept his tools at Mr. Hiralall’s home until he retrieved them in 2014.
[69] Mr. Hiralall overheard the parties’ frequent arguments, mostly about money. Everything that the parties did, they did together. This witness acknowledged in cross-examination that, contrary to the respondent’s pleading in paragraph 4 of her Answer that the “parties continued to live separated and apart in 2012 and leading up to the granting of the Divorce” (granted on March 28, 2013), the parties were not in fact separated because they came to his home and lived there together. He was also surprised the respondent had claimed in her Application for Divorce that the parties separated in June 2009.
[70] Several months before this trial, the respondent had telephoned Mr. Hiralall from Miami and asked him to testify. It was unclear from the evidence whether it was on that occasion, or some earlier time, when the respondent told him that the applicant had hit her with a machete and that she had moved out of the Florida property.
[71] Viewed overall, Mr. Hiralall’s evidence points to the parties having a volatile relationship, mostly involving arguments about money. This is consistent with both parties’ evidence and that of the respondent’s daughter. His evidence about the parties’ continuing relationship and residency between 2012 and 2014 was unshaken in cross-examination.
Jose Ramirez
[72] Columbian born Jose Ramirez came to the United States in 2009 and resides with his wife several homes away from the Florida property. He was 55 years old and worked as an aviation mechanic. His comprehension of the English language is poor as soon became apparent after he was sworn: the respondent had not arranged for an interpreter. While this presented some obvious challenges, the following captures the essence of his testimony:
a) he knew both parties, meeting them after the Florida property was purchased; b) the respondent hired Mr. Ramirez to clean the property’s roof and paint its interior; c) when the property was vacant, Mr. Ramirez would cut the grass, collect any mail and put it in the house. The applicant had given him a set of keys; d) Mr. Ramirez observed the parties occupying the property for anywhere from three to five months in each of 2012, 2013 and 2014; e) the parties and Mr. Ramirez discussed in early 2014 the possibility of the parties starting a bakery or catering business which would service aviation students attending where he worked; f) in late 2014 the respondent told him that the parties were having personal problems; g) the parties attended a Christmas party at his home in 2014 and were invited to his son’s wedding in January 2015. After Christmas 2014, he did not observe the respondent at the property; h) Mr. Ramirez had a role in arranging for some aviation students to rent a bedroom at the property in 2015. The students stayed only a short while; i) he did not know that the parties had divorced in 2013. It was his wife who told him that the respondent had remarried and that she resided in Fort Lauderdale. He did not know the husband's name; and j) he spoke to the respondent about once monthly.
[73] The problems with interpretation made comprehending Mr. Ramirez's evidence more challenging than desirable, particularly in a case like this where the parties’ narratives are so adverse in critical areas. In demeanour and interaction with counsel and the court, Mr. Ramirez appeared sincere, trying to answer the questions put to him honestly, although there were several inconsistencies in that evidence, mostly dealing with the exact times when he observed the parties at the property. Suffice it that Mr. Ramirez’s evidence supports the conclusion that both parties occupied the property after its purchase, undertook or discharged responsibilities associated with its ownership, although not necessarily equally, and that this situation changed in late 2014/early 2015.
Credibility
[74] In Baker-Warren v. Denault, 2009 NSSC 59 Forgeron J. noted that credibility assessment was not a science:
“It is not always possible to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” R. v. Gagnon, 2006 SCC 17, para. 20. I further note that “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.” R v. R.E.M., 2008 SCC 51, para. 49.”
[75] Forgeron J. provided a useful checklist of assessment factors. These included internal and external consistency of witness testimony with the testimony of other witnesses and the documentary evidence, motive, self-interest, clarity and logic of narrative, witness presentation (distinguishing candor from evasive or strategic testimony) and, to a lesser degree, witness demeanor. The list is not exhaustive. Assessing credibility is, in every respect, an holistic undertaking incapable of precise formulation.
[76] Each party in this case vigorously challenged the other’s credibility. Counsel for the applicant opened his cross-examination of the respondent by observing that each party had told completely different stories and that one party was not telling the truth. The reality is more nuanced. Several parts of each party’s evidence were consistent with the other’s evidence, and with the documentary evidence: in many other respects, each party’s evidence made no sense and defied credulity. In Re: Novak Estate, 2008 NSSC 283, Warner J. succinctly observed:
“There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence. (See R. v. D.R., [1996] 2 S.C.R. 291 at 93 and R. v. J.H., [2005] O.J. No. 39, supra)”
[77] Neither party in this case was a credible witness, but for very different reasons. The applicant knew little, recalled less (except where that assisted his case) and was thoroughly unreliable about dates and explaining events which would have provided useful context to his claim. The respondent’s narrative was more comprehensible and cohered with many of the important events reflected in the documentary evidence. But she was frequently dishonest in her third party dealings where that suited her purpose.
[78] Examples abound:
a) the applicant disclaimed any understanding about the serial mortgage and realty transactions in which he participated with the respondent over a 14 year period. Often these involved third parties such as banks, realtors and lawyers. Given the history of the parties’ financial dealings and the evidence of their frequent disputes about money, it is unlikely that the applicant was as ignorant or ill-informed as he represented; b) all of the non-mortgage funds used to purchase the Florida property came from the sale of the parties’ jointly-owned Gaspe property and were deposited to, and disbursed from, the parties’ joint bank accounts; c) in circumstances where, according to the applicant, the parties had just agreed to separate, he left to the respondent the entire responsibility to locate for him alone a property in Florida to which she shipped household contents from the parties’ former matrimonial home and for which she bought furniture; d) the applicant could point to no contemporaneous document which in any way corroborated any agreement with the respondent to equally divide the net sale proceeds of the matrimonial home; e) the applicant could nowhere point to any contemporaneous document which evidenced any agreement between the parties that the Florida property was agreed to be his alone and that the respondent’s name on the title and on the mortgage were simply intended to help him qualify for a mortgage; f) the applicant never informed the realtor who assisted in the Florida purchase that the property was intended to be his alone, or owned by him. He was even unable to identify his signature on the purchase agreement and could not remember signing any purchase contract; g) the applicant never told the lawyer who acted on the Florida purchase that the only reason why the respondent’s name appeared on title was to help him to obtain a mortgage; h) the applicant failed or neglected to accept any responsibility for the financial circumstances which surrounded the sale of the Gaspe matrimonial home and the respondent’s 2013 Consumer Proposal. His 2012 WSIB income was modest and the respondent’s income was well below the poverty line too. That he expressed surprise about the amount of the respondent’s consumer debt is startling. It is not an unreasonable observation that it was the incurring of that debt which helped fund the parties’ living expenses and lifestyle; i) the applicant had no satisfactory explanation why, if the parties separated in 2012 as he testified and they had never resided as a couple together at the Florida property after it was purchased, there remained in the front hall of the home portrait-style mounted photographs of the parties in November 2014. Or why there were pictures after separation showing them in each other’s close company and socializing; j) both parties lied when they declared in their 2013 Application for Divorce that they had separated in June 2009. The applicant said he could not read and write very well and that he relied on the respondent. She acknowledged that she prepared the Application but that both parties were untruthful. She testified that she had no idea that the Application would be presented to a Judge. A divorce Order was granted on March 28, 2013; k) the respondent made a Consumer Proposal on about January 25, 2013. She identified that she was married and that a reason for her financial difficulties was that her “husband [was] also unable to work due to injury at work.” She also stated that the Florida property was rented to a family member who paid below market rent. There was no evidence at trial that anyone other than the parties occupied the property in 2012 or early 2013. Or that any below-market rent was being paid. This was a false statement; l) the parties continued to share financial responsibilities for each other and for the property. The applicant made the respondent’s consumer proposal payments for over a year from September 2013 until early 2015 (although in irregular amounts after September 2014) and he paid for her automobile insurance. She paid the property’s water and sewage service account after the purchase until March 2015 and its electric bills from January 2014 to May 2015. These transactions are inconsistent with the applicant’s claim that the parties separated in January 2012 and that the respondent held her interest in the property in trust for him; m) the parties were married in 1997 and were divorced in 2013. Both parties made Marital Status declarations in their income tax returns which were inconsistent with their trial evidence. The applicant declared that, as of December 31 in each year, he was living common law (2011), separated (2012 to 2014) and divorced (2015). The respondent, as already noted, declared that she was married (1997), separated (1998), married (2000 to 2007), single (2008), living common law (2009-2011), and separated (2012). She failed to produce more up-to-date tax information despite repeated requests and knowing, or reasonably suspecting, that the issue of the parties’ marital status was material to the trial; and n) the respondent’s casual dismissal of knowledge about the reasonable consequences of making false statements to the Court as reflected in the Application for Divorce, her pleadings, and her deflecting of responsibility for her false Marital Status declarations in her income tax returns and their non-disclosure for more recent years, demonstrate a propensity for deception. She faulted her accountant and former lawyer.
[79] This agglomeration of truths, half-truths and dishonesty is not exhaustive. Consequently, neither party’s evidence will be preferred to the other’s evidence.
Analysis and Law
[80] Based on those parts of the parties’ evidence which are internally and externally consistent, and other parts independently documented, the court finds the following facts:
a) the applicant never contributed to the purchase of the Woodcroft residence. There is no evidence as to what, if anything, he paid to the respondent, or about the property’s equity, when its title was transferred by the respondent into the parties’ joint names. The Gaspe sale proceeds derived from the Woodcroft equity and the parties’ savings from their earned income; b) the parties gambled. This formed part of their social/recreational activities. It is not possible to determine which of the parties gambled more than the other. The respondent was more knowledgeable about financial matters than the applicant. Increases in the mortgage indebtedness affecting Woodcroft may have been associated with gambling but the applicant participated in all of the refinancings. There is no evidence independent of his trial testimony that the applicant ever complained about, or challenged, the respondent's management of the parties’ financial affairs until late 2014, although the parties often argued about money; c) the parties experienced financial challenges in 2011 which contributed to their decision to sell the Gaspe property early in the following year. The applicant was unable to work because of his CTS diagnosis and was in receipt of about $600 in monthly WSIB payments. Most of the respondent’s modest income comprised employment insurance (“EI”) benefits. Both parties earned modest income which was not reported to Canada Revenue Agency; d) the parties did not separate in early 2012 as alleged by the applicant. Mr. Ramirez and Mr. Hiralall confirmed that the parties cohabited in Florida and Ontario after the property was purchased until late 2014. The applicant acknowledged that the parties travelled to and from Florida together. The photographic evidence of the respondent confirms the parties’ personal and social relationship well into 2014. The applicant's evidence that he retained framed photographs of the parties in the front hall of the Florida property as late as April 2014 for decorative purposes only is unconvincing; e) there was no agreement between the parties to equally divide the net sale proceeds of the Gaspe property as alleged by the applicant. Not only was there no documentary evidence corroborating any such agreement but all of the financial records and transactions relating to the purchase and mortgage were made, or conducted, in the joint names of the parties; f) subject to the court's view of the respondent’s September 26, 2014 handwritten note and a later July 9, 2015 e-mail, about which comment will be made below, there was no agreement between the parties as alleged by the applicant that they intended that the Florida property would be his alone when it was purchased. There was no documentary evidence corroborating any such understanding or agreement: the applicant never told anyone associated with the financing or the purchase about such an intention; g) the parties’ financial challenges persisted in 2012. There was no change to the applicant's modest income: the respondent’s 2012 income was assessed at $4,338 mostly comprising EI benefits. In her January 25, 2013 Statement of Affairs which accompanied her Consumer Proposal the respondent’s unsecured credit card and line of credit liabilities totalled $63,200; h) the combined effect of the sale of the Gaspe property and the later acceptance of the respondent’s Consumer Proposal was the preservation of the parties’ equity in the property’s net equity, most of which was transferred to the United States and used for the purchase of the Florida property, including some contents; i) the parties maintained a financial relationship into 2015. The applicant made the respondent’s monthly consumer proposal payments for over a year from September 2013 until early 2015 and paid the insurance on the automobile she owned and which they used. The respondent paid the quarterly water and sewage service account for the Florida property from October 2012 to March 2015. She also made three mortgage payments in early 2015. This evidence is inconsistent with any notion that the respondent did not have, and never had, any legal or beneficial interest in the property; j) the parties’ relationship deteriorated in late 2014 and led to their final separation in early 2015 although precisely when that occurred cannot be determined. The parties flew together between Miami and Toronto in mid-March 2015. The applicant had an agreement prepared which stated that the respondent had withdrawn $15,000 from a line of credit which he owned without his consent, and that the respondent was to quitclaim to him her interest in the Florida property. He signed it on April 3, 2015 before a Notary. The next day, on April 4, 2015, a Domestic Dispute incident report was made by the Miami-Dade Police Department. Whether or not the dispute related to the quitclaim agreement was unclear from the evidence; the fact is that the respondent never signed it. The police report indicated that the parties were not residing together; and k) the respondent remarried on July 6, 2015 to an American citizen of Guyanese descent and resides in Florida with her spouse.
[82] The applicant relied on the September 26, 2014 note as proof that the respondent held her interest in the property in trust for him, if not when it was purchased, then afterwards as a result of the respondent’s conduct. Her counsel argued that the note was “devastating” to the respondent’s case, that she did nothing afterwards to disclaim it. It is important, however, to view this note in the context of the parties’ financial history and the circumstances which led up to, during and after its making. The following observations and evidence are relevant:
a) the parties had a history of arguing and fighting about money; b) the line of credit had been opened in September 2012 and was periodically used afterwards until the last withdrawal on September 3, 2014. It is conceivable that the applicant was unaware of the account’s use. Until then he had demonstrated little interest in managing, or understanding, his personal finances; c) neither party’s testimony about the circumstances surrounding the actual making of the note is wholly credible. The applicant testified that when he was unable to use the line of credit because its maximum limit had been reached, he spoke to the respondent. She admitted using the funds. When the applicant said that he was going to report the respondent to the police, she begged him not to do that and said that she would transfer her interest in the property to him. The respondent testified that the note was written after a lengthy argument between the parties about money and that the applicant had punched her and pulled her hair. She was afraid. The police were not called. The parties’ evidence is consistent that there was a dispute about money which escalated into what was clearly a threat by the applicant to report the respondent to the police and that this led to the respondent writing the note; d) the applicant’s submission that the respondent did nothing to disclaim the note after she made it is somewhat disingenuous. She asked a friend to negotiate with the applicant in early 2015 the purchase of her interest in the property, she refused to sign the quitclaim documents in April 2015 and she complained about the applicant retaining the rental proceeds from the property in June/July 2015. She continued to pay the water and sewage account for the property and paid the mortgage for the first three months of 2015; and e) the applicant never paid the line of credit debt. The bank never pursued him for payment.
[83] Viewed in light of the foregoing, the most reasonable inference is that the applicant was surprised when he discovered that the parties had no more financial resources upon which to draw and pay their expenses, which included the Florida property. When confronted by the applicant with his threat to report her to the police the respondent prepared the note to placate him. As with the parties’ 2013 Divorce Application the note held little meaning for the respondent. She knew that the applicant wanted the property for himself and wrote what she did to extricate herself from a threatening situation which may have involved physical harm - it certainly avoided the applicant reporting her to the police for, possibly, a complaint of fraud.
[84] It is a reasonable inference too that by early 2015 the respondent was prepared to have the applicant acquire her interest in the property but he was uninterested in paying her anything for it, even if that was less than one-half of its’ equity value. It is in this context that the July 9, 2015 e-mail reference to the property being the applicant’s house must be interpreted.
[85] The September 26, 2014 note and the respondent’s July 9, 2015 e-mail, while relevant considerations, do not satisfactorily supplement the evidentiary deficiencies in the applicant’s case.
[86] In reviewing the parties’ claims as framed by their pleadings and as otherwise developed in the proceedings leading up to, and during, trial the court has considered the following:
a) despite the fact that the Florida property was acquired when the parties were married, none of the provisions of the Family Law Act [4] applies. The parties were not spouses, and had been divorced for over two years when these proceedings were started. Moreover, Part II of the Act dealing with exclusive possession of a matrimonial home applies only to spouses and to a matrimonial home located in Ontario; b) the substance of the applicant's claim is that the respondent would be unjustly enriched if she were allowed to retain her interest in the Florida property. A finding of resulting trust is the remedy sought; and c) the applicant had the burden of proving his unjust enrichment claim on a balance of probabilities.
[87] The respondent referred the court to several authorities dealing with unjust enrichment claims and the presumption of resulting trust. Apart from their treatment of general principles, none of those cases assists the applicant.
[88] In Pecore v. Pecore, 2007 SCC 17 [5], the central issue involved whether the presumptions of resulting trust and advancement continued to apply in modern times. The applicant in this case relied on Pecore in support of the principle that a gratuitous transfer of property gives rise to a rebuttable presumption of law which allocates to the transferee/respondent the burden of proving that a gift was intended. There was no gratuitous transfer of property in this case. The evidence is clear that the Florida property was purchased in the joint names of the parties from the net proceeds of sale of their former matrimonial home. That property, as was its predecessor, had been jointly owned by the parties. The applicant’s post-transaction description about a “loan” by the respondent which he repaid over time is self-serving, fanciful and meritless.
[89] In Hamilton v. Hamilton [6], the Ontario Court of Appeal held that the extent of a non-owner's beneficial interest in a property owned by another was proportionate to the financial contribution made to acquire the property. None of the funds used to acquire the Florida property in this case was allocated to either party or distinguished as belonging solely to one or the other of them when the property was purchased, or even afterwards. The applicant's description of a $25,000 USD deposit into a joint bank account as a “loan” from the respondent is, as just noted, self-serving and is nowhere independently supported by any documentary evidence. The applicant’s mathematics associated with the repayment of the alleged loan is incomprehensible. The fact is that both parties contributed equally to the purchase of the Florida property from their joint funds.
[90] In Kerr v. Baranow, 2011 SCC 10 [7], another case upon which the applicant relies, the Supreme Court of Canada reviewed (among other issues) the law relating to trust and unjust enrichment claims by domestic partners. The position of the applicant in this case is that the respondent would be unjustly enriched by allowing her to retain her interest in the Florida property. This assumes that the applicant benefited the respondent when title to the Florida property was registered in their joint names and that the applicant was, or would be, materially deprived. As noted with respect to Pecore, the collective weight of the evidence does not support such findings. The applicant did not provide to the court any calculation which quantified the extent to which the respondent benefited, or would be benefited, financially by any expense which he paid after the purchase of the property. Of the $16,000 which he says that he paid to the respondent between December 2012 and August 2013, the receipt of most of which is denied by her and not otherwise corroborated, the applicant failed to provide a schedule or summary showing how these funds cohered with his testimony about repayment of the alleged “loan” or how the later intermixing of expenses paid by each party for the other or the property impacted the parties’ equities in it. The applicant's trial position about title was an all or nothing proposition.
[91] The respondent referred the court to Jurevicius v. Jurevicius, 2011 ONSC 696 [8], a case which involved the severance of a joint tenancy of a residence in domestic proceedings where one of the spouses died after trial but before a decision was made. The court reviewed the circumstances in which a joint tenancy could be severed and focussed on how the parties conducted themselves dealing with the property when it was bought and afterwards. The evidence in that case demonstrated a course of dealing with the subject property which involved exclusive possession, use of the property and payment by the late Mr. Jurevicius of all of the mortgage, tax utility and repair expenses. In the case before this court, the evidence is that both parties continued to use and pay for the Florida property’s expenses after it was purchased, although not necessarily equally. Pertinent too is the fact that between early 2012, when the applicant said that the parties had separated, to late 2014 nothing was done by the applicant which could be viewed as corroborating his claim that the parties always intended that the property was his alone.
Disposition
[92] The applicant's claim that the respondent holds her interest in the Florida property in trust for him is dismissed. The evidence does not support a finding of unjust enrichment to which the remedy of resulting trust (or constructive) applies.
[93] The only issue for trial was the applicant’s trust claim. Even if this court was to consider the claims made by the respondent and even though there was evidence about expenses incurred and paid for the property and chattels, neither party directed their attention to quantifying their respective post-purchase contributions and detailing what inter-personal credits should be factored into, or affect, those calculations [9]. Not considered either was the issue whether an Ontario court has the jurisdiction to make an Order affecting title to foreign realty. As noted by the Ontario Court of Appeal in Catania v. Giannattasio [10], “the general rule is that Canadian courts have no jurisdiction to determine title to or an interest in foreign land”. A limited in personam jurisdiction over foreign property may apply provided that four prerequisites are satisfied:
a) the court must have in personam jurisdiction over the defendant. The plaintiff must accordingly be able to serve the defendant with originating process, or the defendant must submit to the jurisdiction of the court. b) there must be some personal obligation running between the parties. The jurisdiction cannot be exercised against strangers to the obligation unless they have become personally affected by it… An equity between the parties may arise in various contexts. In all cases, however, the relationship between the parties must be such that the defendant’s conscience would be affected if he insisted on his strict legal rights… c) the jurisdiction cannot be exercised if the local court cannot supervise the execution of the judgment… d) finally, the court will not exercise jurisdiction if the order would be of no effect in the situs … The mere fact, however, that the lex situs would not recognize the personal obligation upon which jurisdiction is based will not be a bar to the granting of the order.”
[94] The respondent is married to a US citizen and resides with her spouse in Florida. Regardless whether the respondent has attorned to the jurisdiction of this Court, that jurisdiction should not be exercised if the Ontario Court cannot supervise the execution of the judgment: see also Potter v. Boston, 2014 ONSC 2361 [11].
[95] In addition, apart from identifying receipts for the purchase of various household contents from an Ontario retailer whom the respondent identified as an unsecured creditor in her Consumer Proposal, and which chattels she paid to transport to Florida, and some appliances for the property bought there, the respondent failed to identify the chattels whose return she sought. There was no evidence either whether any of the chattels remained at the Florida property in their original, or substituted, state.
[96] This is not a case for costs. Neither party’s conduct warrants any favourable consideration of the expenses which they have incurred in a proceeding which was ill-conceived from its inception and littered with self-serving evidence often defying credulity and involving patent deceit. Not only was this court mislead in granting the parties’ 2013 divorce but the evidence raises serious questions about the how the parties conducted their financial affairs where those involved lending institutions, retailers (affected by the respondent’s Consumer Proposal), Canada Revenue Agency, and the WSIB.
Date: May 3, 2017 Justice D.A. Jarvis