Court File and Parties
Court File No.: 38076/15 Date: 2018 10 05 Ontario Superior Court of Justice
Between: BIMPE ADELEKE Applicant – and – ADEDOYIN AJANAKU Respondent
Counsel: Simeon Oyelade, for the Applicant A. Ajanaku, Self-Represented
Heard: October 1 & 2, 2018
Reasons for Judgment
Conlan J.
I. Introduction
[1] The Applicant wife, Bimpe Adeleke (“Adeleke”), and the Respondent husband, Adedoyin Ajanaku (“Ajanaku”), are divorced spouses who have resolved all of their marital issues except those related to property. Adeleke is 40 years of age and Ajanaku is 35 years of age.
[2] They share a son together, currently 11 years old. That child lives with Adeleke.
[3] The parties are from Nigeria. They met in Canada in 2005. They were married in Toronto in May 2006. Their son was born in February 2007.
[4] A short trial was held in Milton over less than two full days. The subject matter had already been identified by the Justice who conducted the Trial Management Conference on March 23, 2018: (i) an alleged Nigerian property that Ajanaku wants factored into the equalization of net family property calculation, and (ii) an alleged property in Clarington (Newcastle), Ontario that Adeleke says was owned beneficially by Ajanaku.
[5] There is an important factual dispute that must be resolved, that is, when did the parties separate? Adeleke says that they separated in January 2014. Ajanaku says that they separated much earlier than that, in or around March 2009.
II. The Evidence
[6] Adeleke’s father, Julius, testified. His evidence is relevant on the date of separation and on what happened with the Clarington property.
[7] On the former, Julius testified that the parties lived together until early 2014. He gave some examples of the parties behaving like an intact couple well after 2009, as observed by him.
[8] Julius testified that, in 2011, Adeleke was in a car accident. Ajanaku was with her at the hospital.
[9] According to Julius, in late 2012, Ajanaku’s sister and her family came from Nigeria to Canada and lived with the parties for several months. In fact, Ajanaku’s sister’s husband worked for Julius.
[10] Julius testified that, in January 2013, his house burned down, and his son was injured. The parties, as a couple, visited Julius’ son at the hospital.
[11] According to Julius, Ajanaku’s mother came to Canada in February 2013 and stayed with the parties for a while.
[12] Regarding the Clarington property, Julius testified that, in 2005, the parties asked for his help to buy a house, then under construction. They did not have the credit required to obtain financing. Julius declined to assist. Eventually, at the behest of the parties, someone else obtained the financing for the purchase to go forward.
[13] Rsaq Ayanlola (“Ayanlola”), a lawyer and family friend of Adeleke, testified. His evidence is relevant on when the parties separated.
[14] According to Ayanlola, the parties were still together in January 2013, when Adeleke’s brother was injured in the house fire. He saw the parties acting as a couple while at the hospital. Further, the parties were still together in June 2013 when a meeting among family and friends was arranged to help the couple get through some difficulties that they were having in their relationship. Ayanlola was a part of that meeting.
[15] Ayanlola testified that he first learned of the parties’ separation sometime in 2014.
[16] I pause here to note that neither Julius nor Ayanlola was cross-examined much by Ajanaku. The vast majority of their evidence was unchallenged.
[17] Tayo Ilelaboye (“Ilelaboye”) testified. He was called as a witness, under subpoena, by Adeleke, although he certainly was aligned more with Ajanaku.
[18] In my view, Ilelaboye was an incredible witness. He stated that he did not bother to read the subpoena that he was personally served with and did not bring with him to Court any of the documents that he was asked to bring.
[19] He downplayed his allegiance to Ajanaku, stating that he has always known both parties through the church that they all attended. That may be true, however, it is clear from the evidence of both parties that it was Ajanaku who dealt with Ilelaboye.
[20] He was inconsistent in his evidence about what happened with the Clarington property. He first stated that he bought the place from Ajanaku in 2007 or 2008; he later stated that he bought it from the builder.
[21] He demonstrated a terrible memory of the most basic facts surrounding his purchase and later sale of the Clarington property. Further particulars are offered below in these Reasons.
[22] According to Ilelaboye, Ajanaku told him that he had put some money down on the Clarington property (50 Dougwalton Lane, Newcastle) but could not close the deal because he had no credit. Eventually, Ilelaboye agreed to buy the place himself. For how much money, he has no idea. The purchase was leveraged through National Bank.
[23] After the purchase, the house was rented out to pay the mortgage. Ajanaku helped find the tenant. The mortgage account was first in Ilelaboye’s name alone but later changed to his name and Ajanaku, jointly.
[24] Throughout his ownership of the property, Ilelaboye never lived there.
[25] In 2013 or 2014, Ilelaboye sold the property to Ajanaku. For how much money, he has no idea. Whether he made any profit, he has no idea.
[26] Thankfully, the Parcel Register, Exhibit 3, fills in some of the blanks in Ilelaboye’s memory. He bought the place on March 6, 2008 and sold it to Ajanaku for $355,000.00 on February 25, 2013. He made a profit of more than $50,000.00 on the sale (see Exhibit 4). On the sale, he used a realtor and a lawyer.
[27] Ilelaboye testified that he did not buy or hold the property in trust for or on behalf of Ajanaku.
[28] During his evidence at trial, Ilelaboye was asked by counsel for Adeleke why it was that Ajanaku had copies of private letters addressed to Ilelaboye, such as Exhibit 4 (the lawyer’s reporting letter to Ilelaboye on his 2013 sale of the property). Ilelaboye had no answer other than to say that Ajanaku was involved with the property.
[29] In re-examination, Ilelaboye was questioned as to why, in direct examination, he did not seem to recall making more than $50,000.00 on the sale of the property. Ilelaboye testified that some of the net proceeds went to Ajanaku. Of course, that makes no sense.
[30] Adeleke testified at trial. She traced the history of the parties’ relationship from its inception up until January 2014, when she says that Ajanaku returned from a trip to Nigeria and went out west to Lethbridge, Alberta to continue his schooling to become a registered nurse. That program of education had commenced in September 2013. By January 2014, Ajanaku’s contact with the family home in Ontario had decreased. According to Adeleke, the parties separated in January 2014.
[31] Essentially, Adeleke testified that the parties always lived together until Ajanaku went away to Alberta for school in the Fall of 2013. He came back to the family home that Christmas, and the couple resumed their intimate and regular affairs. After his post-Christmas trip to Nigeria, however, other than a brief stopover at home in Ontario before going back to Alberta, Ajanaku never lived again with Adeleke and their son.
[32] When asked to explain why she signed a domestic contract in July 2009 (Exhibit 9) saying that the parties had already separated, Adeleke testified that both parties took that position then for purely financial reasons. It was not true, but they needed to pretend that they were separated so that she could get financial assistance for her schooling at George Brown College, and so that the family could stay in not-for-profit housing, and so the parties’ son could receive government subsidies.
[33] In cross-examination, Adeleke stated that she knows nothing about any property or land in Nigeria that she and/or Ajanaku has/have any interest in.
[34] Ajanaku testified at trial. He was the only witness called for his side of the case. He is obviously very angry about how he perceives his treatment to have been at the hands of his former wife. At times during his testimony, he yelled, pointed his finger, waved around his hand, interrupted counsel for Adeleke, asked counsel questions, and pounded on the witness box.
[35] I place little weight on those things, however. Demeanour can be misleading. It could be that Ajanaku is simply an emotional man who genuinely believes that he has been wronged by Adeleke and by the justice system generally.
[36] On the substance of his evidence, Ajanaku was steadfast that the parties separated in or around March 2009, although they continued to reside together for a while afterwards primarily because Adeleke wanted to avoid the shame that would come with her family knowing about her failed marriage.
[37] On the issue about the land in Nigeria, Ajanaku was blunt in admitting that he has no documentation of any kind that relates in any way to the said property, however, he testified that Adeleke’s mother acquired the land in Nigeria for Ajanaku, Adeleke, and their son. According to Ajanaku, the land is currently worth about $30,000.00 Canadian. He testified that the land was acquired by his mother-in-law and paid for by Ajanaku in instalments made to her in 2007 and 2008.
[38] With regard to the Clarington property, perhaps unknowingly, Ajanaku’s own evidence strongly supports the notion that it was bought, pre-separation, on behalf of and held in trust for Ajanaku.
[39] In his direct evidence, Ajanaku stated that he went to Ilelaboye and said words to the effect of “buy the house for me”, as Ajanaku did not want to lose the $3500.00 deposit already made by him and could not close the deal without assistance because of his own credit problems. In cross-examination, Ajanaku used very similar words – “I said to [Ilelaboye] you can purchase the house for me”.
[40] We know from the Parcel Register that Ilelaboye acquired the property well before the parties separated (whether in 2009 or in 2014).
[41] Further, Ajanaku did not dispute that, while Ilelaboye was the property’s title owner, Ajanaku was responsible for some maintenance of the house and for depositing some tenant monies into the National Bank mortgage account, which account was eventually in the names of both Ilelaboye and Ajanaku, jointly.
III. Findings and Conclusions
[42] I may, of course, accept some, all or none of what a witness has said. I must also keep in mind the civil standard of proof - on a balance of probabilities.
[43] No authorities were filed by either side, likely because the Court’s conclusions are driven entirely by the findings of fact.
[44] It is the responsibility of counsel and the parties to frame the questions to be answered by the Court. Thus, I will use the closing submissions on both sides as a guide to this Court’s findings.
[45] First, what is the separation date? This Court declares that the parties separated on January 1, 2014.
[46] On this question, I accept the evidence of Adeleke that she signed Exhibit 9 (the domestic contract) not because the parties actually separated in 2009 but rather for financial reasons. The same applies to why Ajanaku signed the said document. I further accept her evidence that she filed her initial Court papers without any legal advice or representation and, thus, simply stated therein that the parties separated on the date shown on Exhibit 9.
[47] In my view, assuming for the moment that the evidence of the parties themselves is relatively equal in strength on the question of when they separated, Adeleke saying that it was in January 2014 and Ajanaku stating that it was in March 2009, the other evidence adduced at trial from Julius and Ayanlola tips the balance in favour of the wife’s position.
[48] Second, what should happen with regard to the Clarington property? On this issue, for the reasons stated above, I reject the evidence of Ilelaboye that he did not buy the property on behalf of or hold it in trust for Ajanaku. Ilelaboye’s evidence cannot be trusted.
[49] Based on the rest of the evidence adduced at trial, including the express statements of Ajanaku himself, in both his direct evidence and in answering questions from counsel for the other side, which statements are referred to above, and given the circumstantial evidence that Ilelaboye had virtually nothing to do with the property after he bought it while Ajanaku had nearly everything to do with it, I accept the position advanced by Adeleke.
[50] This Court declares that, effective March 6, 2008, Ajanaku was the beneficial owner of the Clarington property. He became the title owner on February 25, 2013.
[51] Hence, it is ordered that Adeleke is entitled to equalization of the Clarington property.
[52] As requested by Adeleke’s counsel in closing submissions, this Court orders that Ajanaku shall not deplete the value of, transfer, charge, or otherwise deal in any way with the Clarington property.
[53] This Court further orders that, within 60 calendar days of October 5, 2018, Ajanaku shall provide to counsel for Adeleke a written accounting, with supporting documentation, of (i) all of the rental income attributable to the Clarington property since March 6, 2008, plus (ii) his costs incurred on the property since the same date, plus (iii) the details of his purchase of the property on February 25, 2013, plus (iv) the details of his refinancing of the property in 2017.
[54] Adeleke’s counsel requested an order that the property be sold and the net proceeds of sale be paid into Court. In my view, it is premature to order that. The accounting needs to be provided. Then the equalization payment owing to Adeleke needs to be determined. Then an opportunity needs to be provided to the parties to negotiate how that will be paid - Ajanaku may prefer to pay Adeleke with other available funds and keep the property for himself. He should have that choice.
[55] If the equalization payment is not satisfied within a reasonable period of time, then Adeleke or her counsel may bring the matter back to Court for further direction.
[56] Third, what should happen with regard to the land in Nigeria? Without any supporting documentation of any kind, and without any corroborative testimony of any kind, and without hearing from Adeleke’s mother, I am not satisfied that there is any land in Nigeria that is owned by the parties jointly or either of them individually. Even if there is, I cannot reliably ascertain the value of that land as of January 2014. Thus, this Court makes no order regarding any such land in Nigeria.
[57] Finally, on costs, Adeleke has been successful and is presumed to be entitled to costs. She asks for $7745.69 on a full indemnity scale, or alternatively substantial indemnity recovery.
[58] This is not a case for anything but partial indemnity costs. Quantum is discretionary and should reflect something that is fair, just, reasonable and proportionate.
[59] This Court orders that Ajanaku shall pay costs to Adeleke in the total, all-inclusive amount of $4500.00.
[60] A final word to Ajanaku. Although he has not been successful on the contentious issues at trial, I do not want him to think that this Court fails to appreciate his good qualities. He obviously works very hard, having come to Canada from Nigeria as a student and now working as a registered nurse. He obviously loves his son, as evidenced by his emotional testimony. For those things, he ought to be commended.
Conlan J.
Released: October 5, 2018