Court File and Parties

CITATION: Sampath v. Deopersad, 2017 ONSC 7055

COURT FILE NO.: CV-17-2220

DATE: 20171124

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: INDIRA SAMPATH, Applicant

AND:

SIRJU DEOPERSAD and SANDRA MARIA DO REGO DEOPERSAD, Respondents

BEFORE: Shaw J.

COUNSEL: Dalkeith Palmer, counsel for the Applicant Antal Bakaity, counsel for the Respondent Sirju Deopersad Rahul Kesarwani, counsel for the Respondent Sandra Marie Do Rego Deopersad

HEARD: July 18, 2017

ENDORSEMENT

[1] The applicant has made an application for the following:

(a) an order that Sirju Deopersad (“Sirju”) holds title to the property municipally known as 39 Saturn Drive, Brampton Ontario (“the property”) in trust for the applicant Indira Sampath (“Indira”);

(b) an order declaring that Indira is full legal and beneficial owner of the property;

(c) an order directing the transfer of title to the property to Indira;

(d) a permanent injunction directing the respondent Sandra Do Rego Deopersad (“Sandra”) to immediately seize all enforcement proceedings against the property;

(e) an order prohibiting all enforcement agents including the Ontario Ministry of the Attorney General (“Court Services Diversion”) central west region and its sheriff from selling or otherwise disposing of the property; and

(f) an order declaring that the respondents have no legal, beneficial or equitable interest in the property.

Overview

[2] For ease of reference, I have used the first names of the parties in this decision.

[3] On May 27, 2011, Sirju became the registered legal owner of the property. The purchase price was $349,000.00. Sirju secured mortgage financing with the Scotia Mortgage Corporation for the principal amount of $329,647.95. Indira and her adult son, Bryan Neebar, have lived at the property since the date of purchase. Sirju has lived there since January, 2014.

[4] Indira’s evidence is that when her marriage ended in January, 2011, as a result of financial difficulties, she filed a consumer proposal with Cooper and Company, a trustee. According to Indira, she knew that because of this, she would be unable to purchase a property in her name and obtain mortgage financing to do so. She therefore approached her friend, Sirju, to help her. According to Indira, she entered into an oral agreement with Sirju whereby he would take title to the property in his name and secure mortgage financing. The oral agreement was that Sirju would hold title in trust for Indira’s sole benefit and would transfer it into her name when her name was cleared and she was able to put her name on title.

[5] Indira’s evidence is that she paid a down payment for the property. She acknowledges that Sirju also made a financial contribution to assist in purchasing the property but that it was a loan that has since been repaid. There is no dispute that Sirju contributed to the down payment but there is a dispute regarding the nature of the payment.

[6] Sirju, who has lived with Indira since January, 2014 and with whom he now has a romantic relationship, agrees with Indira’s evidence. His evidence is that he is a bare trustee with no interest in the property and that title should vest in Indira. His evidence is that he loaned Indira money to help purchase the property and the loan has since been repaid. He denies any financial interest in the property.

[7] Both Indira and Sirju assert that Sirju has been holding title to the property in trust for Indira. Both Indira and Sirju agree that there is a resulting trust in favour of Indira and that title to the property should vest in her.

[8] This application was commenced by Indira after steps were taken by Sandra, Sirju’s former spouse, to collect a judgment of approximately $196,000 that Sirju was ordered to pay to Sandra in April, 2016 following a matrimonial trial heard in February, 2016. Following the issuance of a Writ of Seizure and Sale in October, 2016, the Sheriff was directed to sell the property, of which Sirju is the legal registered owner. The notice of the pending sale in June, 2017 triggered this application. If I find that Indira is the beneficial owner of the property, Sandra will have to seek other measures to enforce the judgment against Sirju.

[9] It is Sandra’s position that it was only after this notice was received that Sirju claimed that he was holding the property in trust for Indira. There is no written trust agreement between Indira and Sirju. It is Sandra’s position that, in essence, Sirju and Indira are acting in concert to defeat Sandra’s attempts to collect on the judgment for the money owed to her by Sirju.

Background

[10] Sandra and Sirju separated on January 1, 2012. Sandra’s evidence is that by that time, Sirju and Indira were involved in a romantic relationship and it was a factor in her marriage to Sirju ending.

[11] Sandra commenced an application for divorce in May, 2014. There was a five-day trial from February 22 to 26, 2016 to litigate outstanding issues including child and spousal support, post separation expenses and equalization of net family property.

[12] Pursuant to the judgment of Justice Wein dated April 29, 2016, Sirju was ordered to pay an equalization payment to Sandra in the sum of $12,388.23. He was also ordered to pay her $69,945.08 representing her 50 per cent interest in the former matrimonial home known as 68 Garthdale Court. He was ordered to pay child support arrears fixed at $4,550.64 and ongoing child support of $1,315 per month. He was ordered to pay spousal support arrears fixed in the sum of $23,412 and ongoing spousal support of $862 per month. He was also ordered to pay $4,051.61 representing one-half the balance withdrawn from an RESP account.

[13] Justice Wein ordered Sirju to pay costs to Sandra in the amount of $42,500 payable within 30 days. At the time of this hearing, the outstanding amount owing by Sirju is approximately $196,000. Sirju has not made any payment to satisfy the judgment.

[14] Sandra’s evidence is that Sirju has never made a single spousal support payment and stopped paying child support in December, 2016.

[15] As a result of non-compliance with the order, a Writ of Seizure and Sale was issued in October, 2016. Although a copy was not filed as evidence, it was referenced in correspondence from Kesarwani Law Office to Prouse Dash & Crouch LLP dated May 1, 2017. That letter refers to prior correspondence dated November 10, 2016 that was sent to Sirju’s former lawyer, who had acted for him in the matrimonial dispute. That letter attached the Writ of Seizure and Sale. There is no evidence if Sirju received, or did not receive, a copy of the Writ.

[16] By way of registered mail, the Ministry of the Attorney General wrote to Sirju on April 3, 2017 and informed him that sale proceedings of the property was going to commence. That letter attached a copy of the Writ of Seizure and Sale.

[17] By way of registered mail, The Ministry of the Attorney General wrote to Sirju on May 8, 2017 informing him that the sale of the property would proceed on June 15, 2017. A copy of the Notice of Sheriff’s Sale of Lands dated May 8, 2017 was also attached.

[18] On May 15, 2017 Indira registered a caution on title to the property. On May 18, 2017, Sirju executed a Statutory Declaration declaring that Indira had purchased the property and that title was put in his name as she could not obtain mortgage financing.

[19] Sirju is not coming to court with clean hands. There is an outstanding judgment that he has not paid. He is not complying with the order that he pay ongoing child and spousal support. In addition, Sirju’s evidence is that he sold the former matrimonial home in June, 2016 for $900,000 but the judgment of $196,000 from the matrimonial trial nonetheless remains outstanding.

[20] While Sirju was required to file a response to this Application as he is a named respondent, I place little weight on his evidence given his ongoing failure to comply with an outstanding judgment and ongoing support obligations. If I find that there is a valid resulting trust in favour of Indira that will defeat Sandra’s ability to enforce the outstanding judgement. Given Sirju’s demonstrated non-compliance with the existing judgment, I find that any evidence he proffers in this matter will be self-serving to avoid Sandra’s attempts to enforce the judgment. In addition, his evidence that at all times he was holding title to the property in trust for Indira is not supported by documentation filed as evidence for this hearing. These inconsistencies will be reviewed.

Issue

[21] The issue before the court is whether or not when the property was purchased in 2011 by Sirju, he purchased it and held title in trust for Indira, the beneficial owner. As there is no written trust agreement to consider at the relevant time, it is necessary to review the evidence regarding the circumstances of the purchase of the property.

[22] Sandra’s position is that there is no trust agreement between Indira and Sirju and that at all times the property was owned and continues to be owned by Sirju. Her position is that the only basis for the claim of resulting trust being advanced at this time, five years after the property was purchased, is to defeat enforcement proceedings to satisfy the outstanding judgment.

The Law

[23] In Water’s Law of Trusts in Canada, at p. 362, a resulting trust is described as follows:

Broadly speaking, a resulting trust arises whenever legal or equitable title to property is in one party’s name, but that party, because he is a fiduciary or gave no value for the property, is under an obligation to return it to the original owner, or to the person who did give value for it.

[24] In the recent decision of Drakoulakos v. Stirpe [2017] O.J. No. 2506, Perell, J. defined a resulting trust as follows at para. 46:

On the assumption that there is no substantive merit to the Defendants’ defence, the material facts in the immediate case constitute a claim for a resulting trust. A resulting trust arises when title to the 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: Pecore v. Pecore, 2007 SCC 17; Andrade v. Andrade, 2016 ONCA 368. In Kerr v. Baranow, 2011 SCC 10[2011] 1 S.C.R. 269, at para. 12, Justice Cromwell stated that it has been settled since at least 1788 in England that the trust of a legal estate results to the person who advances the purchase money.

[25] The concept of a purchase money resulting trust is described at para. 1 in the Supreme Court of Canada’s decision of Nishi v. Rascal Ltd, 2013 SCC 33, [2013] 2 S.C.R. 438 as follows:

A purchase money resulting trust arises when a person advances funds to contribute to the purchase price of a property, but does not take legal title to that property. Where the person advancing the funds is unrelated to the person taking title, the law presumes that the parties intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution. This is called the presumption of resulting trust.

[26] In many cases that are before the court, the presumption of resulting trust is being challenged by the transferee to retain title on the basis that the transferor intended to make a gift to the transferee. In this matter, the transferee, Sirju, is not contesting the presumption of resulting trust and asserts that a gift of the property was not intended by the transferor, Indira.

[27] Both Sirju and Indira assert that Sirju gave no value for the property as the money he contributed to purchase the property was a loan that has since been repaid. For the reasons set out below, I do not accept that evidence.

[28] There are basic criteria that must be met for the transfer of this property to be a valid trust. The onus is on Indira to show that the requirements of a trust have been met at the time the property was purchased, and not five years later. The three certainties that must be met are the certainty of intention, the certainty of subject matter and the certainty of objects.

[29] The certainty of intention refers to the intention of the settlor transferring the property to create a trust. This intention can be oral or written. When property is transferred, it must be done with the intention that it be held in trust.

[30] The certainty of subject matter deals with the certainty of the property that is subject of the trust and how much each beneficiary is to receive.

[31] The certainty of objects means that you must be certain of the beneficiaries of the trust.

[32] These issues were canvassed in Canpar Developments Inc. v. The Queen, 2011 TCC 353. Commencing at para 8, Paris J. found:

[8] The first matter that I am required to address is whether Mr. Parmar and Mr. Canning held the property in trust for the Appellant subsequent to the transfer of title which occurred on September 9th, 2005. Three criteria must be met in order to establish a valid trust. These are certainty of intention, certainty of subject matter and certainty of objects. It must be clear that the settlor of a trust intended that the property transferred to the trustee be held in trust as a binding obligation. The property that is the subject of the trust and the beneficiaries of the trust must be identifiable, and the interest the beneficiaries in the trust property must be defined.

[9] The Appellant has the onus to show that the requirements for the creation of a trust have been met. In this case, the requisite certainty of intention has not been established. Firstly, the existence of the trust was not recorded on the transfer documents. Secondly, the evidence shows that TD Canada Trust required that the property be held by the two shareholders as a condition of obtaining the necessary financing. It is illogical, in my view, that TD would have accepted that the property still be beneficially owned by the Appellant after the transfer when it, Toronto Dominion, was advancing funds on the basis that the property was registered in the names of the shareholders. I can see no other reason why TD Canada Trust would have required the property to be put into the names of the shareholders except that it required them to have beneficial ownership of it.

[10 Thirdly, as pointed out by counsel for the Respondent, there was no evidence that either Mr. Parmar and Mr. Canning ever advised TD Canada Trust of the existence of a trust with respect to the property, and I infer from this that no such representation was made. This is inconsistent, in my view, with an intention to create a trust. The comments of Justice Bowman in Erb v. The Queen, 2000 D.T.C. 1401in this regard, I think, are appropriate. Justice Bowman said at paragraph 26:

It strikes me that where a person transfers property to someone else by a deed or conveyance that on its face is absolute and does so to achieve a purpose that is premised upon a transfer on beneficial ownership that would require very cogent evidence to establish that the transferor had no intention of doing what the documentation unequivocally shows that it did do and that intended to withhold from the grantee beneficial title to the property.

[33] In this matter, the certainty of subject matter is not in dispute. It is the property. The certainty of objects is not in dispute as the only beneficiary is Indira. What is in dispute, however, is the certainty of intention.

[34] While there is no dispute that Sirju contributed money to purchase the property, both he and Indira claim it was a loan he made to Indira that has since been repaid. In Barber v. Magee, 2017 ONCA 558, the court had to consider if certain monies advanced were a gift or a loan. At paras. 4 and 5 the court stated:

[4] Generally, there are objective indicators that can assist in determining whether an advancement is a gift or a loan: Locke v. Locke, 2000 BCSC 1300, [2000] B.C.T.C. 681, at para. 21; Klimm v. Klimm, 2010 ONSC 1479, [2010] O.J. No. 968, at para. 28-32; Mora v. Mora, 2011 ONSC 2965, [2011] O.J. No. 2188, at paras. 38-40. A gift is a transfer in which the absence of an expectation of repayment tends to be reflected in the absence of security, recording, payments or efforts to collect payments. A loan often involves a formal, recorded transfer in which terms are set out and in which repayment is made or sought. In evaluating whether the presumption of resulting trust has been rebutted, a trial judge will naturally look at such indicia.

[5] When the trial judge was commenting on what was not present by way of indicia of loans, he was not reversing the onus of proof. He was looking at the presence or absence of objective criteria that could help him characterize the payments. Even though the burden is on the party claiming a gift to prove it, it is quite appropriate for a trial judge to notice the failure of the party who would be in control of documents and records of a loan to produce such documents. The relevant inference is not that the party is hiding the truth by not producing anything; it is that the absence of indicia of a loan that one would reasonably expect to find suggests that the advancement was not a loan but a gift. There was no error in the trial judge reasoning in this way.

Analysis

[35] I have reviewed the evidence as set out in the Affidavits filed by the parties, the transcripts from their cross-examinations on their Affidavits and the documentation which has been filed by both parties in order to determine if a resulting trust was created when the property was purchased in May 2011.

The Oral Agreement

[36] At her cross-examination conducted on July 4, 2017, Indira gave the following evidence regarding the nature of the agreement she entered into with Sirju commencing at question 98:

Q. What are the full terms of the agreement which you allege existed between Sirju and yourself?

A. we just had a mutual understanding, and it was just – we didn’t make any paper or anything, legal paper. It’s just, I trusted him and I knew that he’s going to keep up to his word.

Q. And what was his word?

A. That he will hold the house in trust for me until my name is cleared and I will be able to put the house on tile – my name on title.

Q. if the agreement that you are alleging is correct, what was the benefit to Sirju of this arrangement?

A. he was just helping me out. Like I said, we have known each other for a long time.

Q. And he was helping you out because he is a kind man or was there any other reason?

A. Because I cannot get a mortgage in my name – that’s why he agreed, he and Sandra agreed.

Circumstances of the Purchase

[37] On March 31, 2011, Indira and her son, Bryan Neebar, signed an Agreement of Purchase and Sale for the property (“APS”). The purchase price was $349,000. The initial deposit was $5,000. In Schedule A attached to the said APS, it was agreed that a further $5,000 deposit would be paid by April 14, 2011. The transaction was to close on May 27, 2011. This first offer is evidence that Indira had an intention to purchase this property but for reasons, perhaps an inability to secure mortgage financing, the transaction was not completed.

[38] That transaction did not close and on April 12, 2011, Sirju signed a second APS for the property. The purchase price was $349.000. The initial deposit was for $5,000. In Schedule A to the Agreement, it stated that the seller agreed to apply the $5,000 deposit from the March 31, 2011 offer and that the buyer, Sirju, would deliver a further deposit of $5,000 prior to April 14, 2011.

[39] That transaction was completed and Sirju became the registered legal owner of the property.

[40] Copies of both APS were filed as evidence for this hearing. Also filed was a copy of a receipt dated April 4, 2011 from Royal Lepage indicating that $5,000 was received as a deposit from Indira and her son Bryan Neebar. This would be the deposit referenced in the first APS.

[41] A bank draft dated April 14, 2011 for $5,000 payable to Royal Lepage with a notation of “Second deposit for 39 Saturn Drive Bramp” was filed as evidence. Another receipt from Royal Lepage also dated April 14, 2011 for $5,000 was filed. That receipt says the funds were received from Halia Argier and the client name was Sirju Deopersad. No evidence was provided regarding the identity of Halia Argier.

[42] Indira’s evidence is that she paid the $10,000 deposit but the only documentation verifying what she paid is the first receipt for $5,000 dated April 4, 2011 confirming that Royal Lepage had received $5,000 from her. The evidence is that that deposit was applied to the offer made by Sirju. There is no other evidence from Indira that she paid the second $5,000 deposit. She could have filed bank statements or other records regarding the second $5,000 deposit. Based on the documentation produced, the second deposit was received from an unknown person, Halia Arjier on behalf of Sirju.

[43] A bank draft in the sum of $22,000 payable to Sirju Deopersad dated April 14, 2011 was filed. Indira’s evidence is that this bank draft is for the money she transferred to Sirju to purchase the property. I accept that this bank draft supports Indira’s evidence that she paid $22,000 towards the down payment for the property.

[44] Another document filed was a bank draft made payable to Malik Law Office dated May 25, 2017 in the sum of $32,392.30. Malik Law Office was the firm that acted for Sirju to complete the purchase. The bank draft from the CIBC notes it is from Sirju Deopersad.

Mortgage

[45] Documentation from Scotia Bank was produced indicating that the sum of $329,647.95 was obtained for mortgage financing. The borrower is listed as Sirju Deopersad. Indira’s evidence is that the bank was not told about the trust agreement between herself and Sirju. This does not assist to establish certainty of intention.

Real Estate Reporting Letter

[46] A reporting letter from Malik Law Office dated May 27, 2011 was filed as evidence with the court. That reporting letter was addressed to Sirju regarding the purchase of the property. In the reference line of the letter, it states “Your purchase from Emory”. The letter indicates that it is a report in relation to “your purchase” of the property. The report also stated that title to the property was taken in the name of Sirju Deopersad. The reporting letter also set out the details with respect to the mortgage financing arranged through Scotia Mortgage Corporation.

[47] The reporting letter did not make any reference to Indira or the trust agreement which Indira said was entered orally between herself and Sirju.

[48] There is no evidence that Sirju or Indira spoke to the lawyer about their oral agreement to create a trust. Based on this reporting letter, Sirju’s intention was to take ownership of the property. This reporting letter does not assist in establishing certainty of intention. Had it been Indira’s intention that she was to be the beneficial owner of the property, one would expect that this would have been discussed with the lawyer retained to prepare the transfer documents and that this agreement would have been reduced to writing or discussed in the real estate reporting letter.

Affidavit from Real Estate Agent

[49] An affidavit sworn April 26, 2017 by Itala Maria Furfaro-Argier was filed. Ms. Furfaro-Argier deposed that she is a real estate agent who assisted Sirju and Indira with the purchase of the property. In her affidavit she deposes that at the time of the purchase she was aware that Sirju was taking the title to the property in trust for Indira.

[50] Mr. Furfaro-Argier was not cross-examined on her Affidavit.

[51] The Affidavit is only two paragraphs and provides no details regarding how she was aware that Sirju was taking title to the property in trust for Indira. There are no specifics of what was discussed. Furthermore, the affidavit is sworn six years after the transaction and I question how the agent could reliably recall one real estate transaction from six years ago. Having said this, this Affidavit could be of assistance in establishing certainty of intention at the time the property was purchased.

Sirju’s July 2011 Will

[52] The last Will and Testament of Sirju dated July 14, 2011 was filed with the court. This Will is dated two months after the purchase of the property was completed. At the time the Will was signed, Sirju was married to Sandra. In his Will he appointed Sandra as trustee. In paragraph 5b of the will, Sirju states the following:

My house municipally known as 39 Saturn Drive, Brampton Ontario is to go to Indira Sampath and Brian Neebar for their own use absolutely.

[53] In paragraph C of that Will, Sirju stated:

To pay or transfer the residue of my estate to my said wife Sandra Deopersad, for her own use absolutely.

[54] Sandra’s evidence is that she saw this Will shortly after it was executed and it was at that time she learned that Sirju had purchased the property. Her evidence is that she asked Sirju about the Will and he told her he had purchased the property as an investment property. She also learned that Indira was going to live at the property.

[55] Sirju and Indira submit that this Will is evidence of Sirju’s belief that he was holding the property in trust for Indira as it expressed his intention that the property would be transferred to Indira when he passed away.

[56] If Sirju was the bare trustee of this property, he had no interest to bequeath to Indira in his Will. If, as he alleges, he held legal title but had no beneficial interest, then it was not an asset that he owned of which he could direct disposition upon his death.

[57] I find that this Will reflects Sirju’s belief that he had an ownership interest in the property that he wished to transfer to Indira upon his death. This document does not assist in establishing certainty of intention.

Net Family Property Statements and Financial Statements

[58] A copy of Sirju’s Net Family Property Statement dated December 28, 2015 completed for the matrimonial proceeding with Sandra was filed. In the section of that document listing land that he owned on the date of separation, Sirju listed the matrimonial home at 68 Garthdale Court and the property at 39 Saturn Drive. In that section, after listing 39 Saturn Drive, Sirju stated:

Already agreed upon the applicant has no interest in this property as liability was equal to equity.

[59] There is no reference that this property was owned other than by Sirju. There is no reference to this property being held in trust for Indira. The Net Family Property Statement does not state that Sandra does not have an interest in the property as Sirju is not the owner. It states that Sandra had agreed that she had no interest in the property as there was no equity in it.

[60] Sirju had two lawyers who represented him at different times during the matrimonial proceedings. Sirju’s evidence is that he told them that this was not an investment property. I do not accept his evidence in that regard. The divorce application was commenced in 2014 and the trial was heard over a period of five days in February, 2016. Sirju had ample opportunity to correct his lawyers if they had described the property incorrectly, as he alleges. This document does not establish certainty of intention regarding the trust arrangement. According to this statement, Sirju was stating to the court that he owned the property as an investment property.

[61] A Financial Statement sworn on May 15, 2014 by Sandra in connection with the matrimonial proceedings was filed with the court. In the section of the statement to list “Other Property”, Sandra listed the property at 39 Saturn Drive as an investment property. In the matrimonial proceedings, Sandra waived any claim to the property. It is her evidence, however, that she did not waive her right to seek enforcement against the property.

[62] There were a number of references to the property made by Justice Wein in her judgment. At para. 66 Justice Wein commented as follows: “however, I note that he was able to purchase another property during the marriage, a property where he now resides.” At para. 73 she stated as follows: “Sirju also suggested that he pays rent at Saturn Drive even though he is the owner and says he has a mortgage.”

[63] At para. 67 of her decision, Justice Wein stated the following when discussing a waiver Sandra had signed regarding spousal support:

It also included a waiver by Sandra to the business and to the investment property…purchased during the parties’ marriage”.

[64] Based on the documents filed in the matrimonial proceedings and Justice Wein’s findings regarding the property, it is evident that it was being treated as an investment that Sirju owned in January 2012, when the he and Sandra separated. If Sirju believed he was a bare trustee with no interest in the property, it would not be listed in any of the documents filed with the court in the matrimonial proceedings. I also note the reference made by Justice Wein that this was an investment property owned by Sirju. Sirju has not appealed the decision.

[65] The divorce application was commenced in 2014 and the trial was heard for a period of five days in February 2016. Sirju had ample opportunity to correct the documents or lead evidence about the nature of the property but he failed to do so. Sirju’s evidence was that he only recently realized the mistake in the documents filed in the matrimonial proceedings after being informed that the judgment had been registered and the property was going to be sold. This evidence rings hollow. I am certain he read Justice Wein’s judgment and the documents submitted on his behalf to the court.

Money Advanced to Indira

[66] There is no dispute that Sirju contributed money to purchase the property. Sirju and Indira assert that the contribution was a loan that has since been repaid.

[67] Indira’s evidence is that she received a loan from Sirju in the sum of $15,000, some of which she used to assist in purchasing the property. At her cross-examination conducted on July 4, 2017 she gave the following answer to question 291:

Q. He made payment for purchase of the house; is that right? I’m answering the question for you because –

A: Okay. I gave him $22,000 and he had additional $15,000 I borrowed from him so we can complete the transaction of the house, purchasing the house.

[68] According to Indira, she repaid that loan by a cash payment of $5,000. Her evidence is that the remaining balance of $10,000 was repaid when she agreed that Sirju could live at the property commencing in January, 2014 and not pay rent which she determined to be $1,000 per month for ten months.

[69] There is no documentation either supporting the loan or the repayment thereof. As noted in Barber, a loan often involves a formal, recorded transfer in which terms are set out. In this matter, there were no documents prepared contemporaneously that evidence a loan and its repayment terms.

[70] Sandra does not dispute that Sirju used money to purchase the property. During her cross-examination conducted July 7, 2017, Sandra acknowledged that in 2011 she became aware that Sirju withdrew $10,400.00 from their joint line of credit. Her evidence is that Sirju told her that he used it for an investment property.

[71] At para 23 of Justice Wein’s judgment, when dealing with this joint line of credit, she found as follows:

It was eventually acknowledged that Sirju took $10,000 out for the investment property at 39 Saturn Drive, which he still owns, and so that amount, $10,000, should be deducted from the joint debt. That amount should also be placed on Sirju’s side of the NFP Statement, as an asset he retains after the marriage even though Sandra is not claiming a share of the full value of the property.

[72] Indira’s evidence is that she and Sirju were friends and that because of that friendship, he agreed to put title to the property in his name, secure a mortgage, loan her money and then agree to transfer the property to her when “her name was clear”. When considering the totality of the evidence, including the absence of documentation regarding the alleged loan and its repayment, I find that the money advanced by Sirju was not a loan but his contribution towards the purchase of the property which he considered to be an investment. It is only since Sandra took steps to enforce the judgement that Sirju now claims he holds the property in trust and that his financial contribution was a loan that has since been repaid.

[73] Indira’s evidence is that she spoke to both Sirju and Sandra about helping her buy the home in 2011. Sandra’s evidence is that she first found out about the property when she found Sirju’s Will dated July, 2011. I accept Sandra’s evidence in that regard as it is supported by the documentation filed in connection with the matrimonial proceedings and the various references made by Justice Wein that the property was an investment property owned by Sirju. There is no evidence that Sandra was aware that Sirju was holding title to the property in trust for the benefit of Indira.

Mortgage Payments

[74] Bank statements from the Royal Bank of Canada for account number 03032-5053319 in the name of Indira Sampath were produced for a period of March 2014 to May 2016. Also produced were records from Scotia Bank in the name of Sirju Deopersad for account number 082760230820. Those records show withdrawals from Indira’s bank account and then deposits, the same day, into Sirju’s account, from which the mortgage was paid. I am satisfied that these documents support Indira’s evidence that she has been making the mortgage payments for the property. Those payments, however, are not evidence of a resulting trust. As Indira and her son have been living in the property since it was purchased, it would be expected that they be paying the expenses for the property.

[75] Indira became a co-mortgagor with Sirju in or about January 2017. This was done after issuance of the Writ of Seizure and Sale. Becoming a co-mortgagor after enforcement proceedings have been commenced, is not persuasive evidence that there was an agreement in 2011 that Sirju held title to the property in trust for Indira.

Conclusion

[76] Based on a review of all of the evidence, I find that Indira contributed $22,000 towards the purchase price of the property and Sirju contributed $15,000. Based on these respective contributions and based on the principles as set out in Nishi I find that there is purchase money resulting trust. According to their respective contributions to the purchase price, Indira has a 60 per cent interest in the property and Sirju has a 40 per cent interest.

[77] In Kavanagh v. Shiels, 2015 ONSC 5815, Fitzpatrick, J. found that there was a purchase money resulting trust in a situation where the non-titled owner contributed the bulk of the purchase price but due to credit difficulties, she was not on title to the property. In that case, the beneficial owner was seeking a 50 per cent interest in the property. Fitzpatrick J. commented that she might be entitled to an even greater share given her contribution to the property but found she had limited her claim to a 50 per cent interest.

[78] At para.137 of his decision, Fitzpatrick J. dealt with the payments made by the party living in the home for things such as mortgage and taxes. He held as follows:

These payments were made to a property that I have now found Ms. Kavanagh has a 50 per cent interest in. As such, she has been contributing to her own asset.

[79] As indicated above, Indira and her son have been paying the carrying costs for the property. As I have found that she has a 60 per cent interest in the property as a result of a purchase money resulting trust, she has been contributing to her own asset.

[80] I therefore decline to grant the relief requested in the Notice of Application other than a declaration that Indira has a 60 per cent interest in the property.

[81] If the parties cannot agree on costs, a date can be scheduled to hear submissions.

ORIGINAL SIGNED BY

Shaw J.

Date: November 24, 2017

CITATION: Sampath v. Deopersad, 2017 ONSC 7055

COURT FILE NO.: CV-17-2220

DATE: 20171124

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

INDIRA SAMPATH, Applicant

AND:

SIRJU DEOPERSAD and SANDRA MARIA DO REGO DEOPERSAD, Respondents

ENDORSEMENT

Shaw J.

Released: November 24, 2017