Steel v. Romanelli, 2018 ONSC 2353

COURT FILE NO.: FS5/18

DATE: 2018-04-11

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Kathleen Ann Steel, Applicant

AND: Mario Romanelli, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: J. Leigh Daboll for the Applicant; Christopher Dilts for the Respondent

HEARD: April 11, 2018 at Welland

ENDORSEMENT

[1] The Applicant and the Respondent are tenants in common of the house in which the Applicant resides. In this Application under the Family Law Rules, the Applicant seeks a constructive trust over the Respondent’s portion of the house.

[2] The Respondent has filed an Application in St Catharines under Rule 14.05 of the Rules of Civil Procedure. In that proceeding he asks for partition and sale, 90% of the proceeds of sale, an accounting for rent paid by the Applicant’s son, a lodger, and repayment of sums that he spent on the Applicant while they were courting, for things such as food and gasoline. He alleges breach of contract. The Respondent today is moving for an order dismissing the Application on the ground that “the Superior Court of Justice, Family Court has no jurisdiction to rule on the matters raised in this proceeding.”

[3] The Application was not brought in the Superior Court of Justice, Family Court. It was brought in the Superior Court of Justice. This court undoubtedly has jurisdiction to deal with the subject matter of the litigation. The question is whether the Family Law Rules should apply. If not, the St Catharines Application might as well proceed. The question is answered by looking at the pleadings.

[4] The Applicant pleads that she and the Respondent were involved in a romantic relationship and were engaged to be married. They never lived together because she broke off the engagement. The house in question was a former matrimonial home of hers. In settlement of her matrimonial litigation she was given the right to buy her former husband’s interest. She could afford to do so without help. The Respondent, in exchange for paying off part of the debt, was given a 50% legal interest as tenant in common, on his promise that the house would always be hers. She claims a constructive trust in the Respondent’s legal interest in the home.

[5] The Respondent pleads in his St Catharines Application that the parties were previously in a conjugal relationship that lasted less than three years and that they own the property in question as tenants in common. He provided cash to enable the refinancing of the house in exchange for 50% ownership.

[6] He also claims for loans made to support the Applicant for a few months when she was unemployed, and for an accounting for market value rent that should have been paid by the Applicant’s son, a lodger. He also claims for amounts withdrawn from a joint bank account.

[7] The facts alleged by both parties can only reasonably be seen as some sort of agreement made in anticipation of cohabitation.

[8] Rule 1 of the Family Law Rules provides:

(2) These rules apply to all family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice,

(b) for the interpretation, enforcement or variation of a … cohabitation agreement … .

(5) If a case in the court combines a family law case to which these rules apply with another matter to which these rules would not otherwise apply, the parties may agree or the court on motion may order that these rules apply to the combined case or part of it.

[9] The agreement of the parties in anticipation of cohabitation is at the heart of the matter, according to the facts alleged in both sets of pleadings. It should be dealt with under the Family Law Rules. To the extent necessary, any aspect of the case that is not mentioned in s.1 of the Family Law Rules should be joined with it. Both parties agree that proceedings should not be duplicated, so the St Catharines proceeding and the present proceeding should not both go ahead.

[10] The fairest and most expeditious way to deal with this is to stay the St Catharines proceedings (which would have had to be converted to an action in any event given the necessity for findings of credibility on viva voce evidence) and proceed with the present Application.

[11] A further order is necessary for the due management of the file. The Applicant has deposed that she is afraid of the Respondent because he has a key to the house and he has been coming around. The Respondent agrees that he does not want access to the property while the litigation is proceeding. It seems apparent that the likely course of events will see the Applicant keeping or selling the house, with whatever amount may be owing the Respondent to be decided by the court. Accordingly I shall make orders that will give the Applicant some peace of mind and will ultimately benefit the Respondent as well.

[12] I make the following orders:

a. The motion to dismiss the Application is dismissed;

b. St Catharines file 57831/18 is permanently stayed;

c. The Applicant has leave to file an amended Application within 30 days, if so advised;

d. The Respondent has 60 days from today in which to file his Answer.

e. The Respondent is enjoined from entering the property at 225 Taylor Street, Thorold.

f. I declare that the Applicant has the right to change the locks at that property.

[13] I announced the result from the bench, with these reasons to follow. I heard submissions on costs. The Applicant was successful and should have partial indemnity. I order the Respondent to pay her $1,500 costs forthwith.

J.A. Ramsay J.

Date: 2018-04-11