Court File and Parties

COURT FILE NO.: FS-18-76 DATE: 2019 02 12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ROBERT WILLIS Michael A. McKee, for the Applicant (Respondent on Motion) Applicant

- and -

FEI HUNG Marcy Segal, for the Respondent (Moving Party on Motion) Respondent

HEARD: November 28, 2018

REASONS FOR JUDGMENT

Fowler Byrne J.

[1] The Respondent Fei Hung seeks partial summary judgment on the issues of the alleged theft of monies by the Applicant Robert Willis and the ownership of her home, business and the contents of a safety deposit box. She also seeks summary judgment dismissing Willis’ entire claim. This application arises from their cohabitation of approximately five to six years.

Background

[2] This matter was initially commenced by Willis by way of Statement of Claim in Oshawa, Ontario. The main issues were the ownership of property registered in the name of Hung, located at 1500 Glenwatson Drive, Mississauga (“the Property”), and ownership of a business known as either E Spa or E Holding Company (“the Business”). Eventually, the action was converted to a family law application and then transferred to Brampton, at which time Hung delivered her Answer. In her Answer, Hung sought spousal support; equalization of net family property; a restraining order; return of monies alleged to have been stolen by Willis; damages for sexual assault, fraud, adultery, and mental cruelty; and an order that Hung be added to Willis’ insurance plan.

[3] At the case conference before Bloom J., disclosure was ordered, questioning was permitted and Hung was granted leave to bring a motion for summary judgment on the issues of the alleged theft of money by Willis, the ownership of the Property and her claim for spousal support.

[4] In this motion for summary judgment, Hung has requested the dismissal of Willis’ claim in its entirety. She has also indicated to the court that she is withdrawing her claim for spousal support. If her motion is successful, the only questions left to be tried will be Hung’s claim for damages for sexual assault, adultery, cruelty, and a restraining order. There is no claim for equalization in a common law relationship.

Facts

[5] The Applicant Robert Willis and the Respondent Fei Hung were in a common law relationship commencing sometime in 2011 or 2012. Willis claims they started cohabiting in Hung’s home in Richmond Hill in January 2011. Hung claims they started cohabitating in her home in May 2012. It is agreed that they separated on July 8, 2017. There are no children of this relationship.

i. The Business

[6] Hung has worked in the spa business since 2009. It is agreed that over the course of the parties’ relationship, two spa businesses were purchased. They disagree over the dates of the purchases and the degree of ownership.

A. Eglinton Location

[7] The first spa business purchased was located at 1719 Eglinton Ave. West in Toronto (“Eglinton location”). Willis claimed it was purchased in the spring of 2011 for $18,000. He claims that he paid $5,000 towards the price and Hung paid the other $13,000. He claims everyone paid cash. He produced no documentation to support this. He submits that it was sold in December 2011, and they made a profit of $20,000.

[8] Hung has produced documentation showing that in May 2012 she incorporated 2328025 Ontario Inc., for which she is the only listed director. The corporate head office is her address in Richmond Hill. She also produced a lease agreement for the Eglinton location showing 2328025 Ontario Inc. as the tenant, which was signed by her on May 15, 2012. She claims she purchased the Business at the Eglinton location for $31,500 and that she paid for it herself. The purchase agreement she produced is not in English, but it does show two sums of $5,000 and $26,500, her name and a vendor listed as Shan Yang, and is dated May 15, 2012.

[9] Hung also produced an Acknowledgement that the landlord provided to the City of Toronto that the premises at the Eglinton location were being used by the tenant 2328025 Ontario Inc. as a holistic centre. She also produced an invoice from her property insurer issued to “E Spa operated by 2328025 Ontario Inc.”

[10] Hung states that she sold the Eglinton location of E Spa in December 2012 for $35,000. This is supported by a copy of the sale agreement dated December 20, 2012, showing a sale price of $35,000, which stipulated that Hung had already received $5,000 in cash in December 2012. She has also produced evidence that pursuant to the sale agreement, she received a further $15,000 on December 31, 2012, which was deposited into her bank account. She claims the rest was received in cash. Hung has also produced a letter she wrote to her insurer asking that coverage for the Eglinton location only of 2328025 Ontario Inc. be terminated as of January 2013.

[11] The evidence provided, albeit incomplete, does lead to the inference that the Eglinton location of E Spa was purchased and sold by 2328025 Ontario Inc. in 2012 for a small profit of approximately $3,000 to $4,000. 2328025 Ontario Inc. was owned exclusively by Hung.

B. Jutland Location

[12] A second location for a spa was purchased in October 2012 at 12 Jutland Road, Toronto (“Jutland location”). The ownership of this spa is not so straightforward.

[13] Hung claims she purchased it for $45,000. She claims she paid for the business by two drafts of $16,000 and $13,373, and the rest was in cash. She has produced copies of the two drafts. Hung admits Willis helped negotiate the agreement due to her lack of English language skills and has even admitted that he signed the agreement on her behalf. That being said, she claims that the business was hers and that Willis was to have no ownership interest. The documents she produced in support of her claim are as follows:

a) A letter from JRJ Frontier Holdings, dated October 16, 2012, setting out an agreement between JRJ Frontier Holdings/Miki Spa, who are the former tenants at 12 Jutland, and “E Spa, p/b 2328025 Ontario Inc.”, wherein E Spa agrees to reimburse the previous tenant’s deposit for last month’s rent. This is the document that appears to be signed by Willis, on behalf of E Spa;

b) A Master Business License, issued May 6, 2013, by the province of Ontario, identifying Fei Hung as a sole proprietor operating the business E Holdings Company, identified as a massage spa, and with the address of E Holdings Company being Hung’s Richmond Hill home;

c) A business banking agreement with the Bank of Montreal, for Hung and Willis, operating as E Holding Company, dated May 4, 2013. It identifies the business as a partnership, naming Hung as the president and Willis as the vice-president; it also gives either party signing authority on the account; and on page 3, the document is signed by the banking official who claims to have been presented with proper identification of both Hung and Willis. Hung claims she agreed to let Willis assist her with banking as she worked outside of banking hours, but claims this did not mean he had an ownership interest in the business;

d) A Certificate and Authorization form dated May 3, 2013, from the Bank of Montreal, also entitled “Partnership”, which states that Hung and Willis declare they are in a partnership under the name “Robert R. Willis Fei Hung”; that they are carrying on business under the name of “E Holding Company”; and that either partner was to sign on the bank documents. Hung claims Willis forged her name on this document, but on the document their signatures were apparently witnessed by a bank employee Mahtab Djahengirseni. No evidence was presented by the bank employee;

e) A Certificate of Insurance dated February 12, 2014, identifying “E Holdings Company” as the insured and the address as 12 Jutland Road. Handwritten on this certificate is “Fei Hung o/a E Spa Toronto”; there is no evidence as to whose handwriting this is.

[14] In essence, Hung claims that the business carried on at the Jutland location was always her business, and that Willis only helped her out by doing the banking and going to Costco once a month to get bottles of water for the spa.

[15] Willis claims they purchased the Jutland location in the summer of 2011 and that he put down $5,000 towards the purchase. As seen by the documents produced by Hung, the date is wrong, and he has provided no evidence that he paid any amount towards the purchase.

[16] Willis states that he negotiated the lease and his name was on the first lease (which was not produced, unless he was referring to the October 16, 2012, document). He claims that the remaining money needed to purchase this spa was from their joint savings. He has provided no evidence of this. He stated Hung was on site every day and was in charge of day-to-day operations. He claims he did the bookkeeping and banking, assisted with and approved the design and website, wrote copy for the website and cleaned and renovated the spa. He regularly bought bottled water, paper towels, baby wipes, toilet paper, condoms and other supplies, sometimes with Hung and sometime alone. He claims they ran the spa together until he left in July 2017.

[17] In support of his claim, Willis produced the following documents:

a) Master Business License, issued April 19, 2013, to E Holdings Company, located at Hung’s home address in Richmond Hill, naming Willis and Hung as partners in the massage spa business;

b) Master Business License, issued June 14, 2013, to E Spa Toronto, at 12 Jutland Road, naming Hung as the sole proprietor of the massage spa; and

c) A notarized letter signed by Willis and Hung dated August 18, 2014, indicating that they agree that they own and operate E Holding Company, and that their home office is at the Property.

[18] Willis states that the only reason he was removed as a partner from E Holdings Company on the Master Business License was because he did not have a license to operate a business and Hung told him to not bother paying the $500 needed to obtain it. He claims this is the reason she signed the notarized letter: to clarify the joint ownership of the Business.

ii. The Property (1500 Glenwatson Drive, Mississauga)

[19] When the parties first cohabitated, they lived in Hung’s property in Richmond Hill. In or about 2013, Hung and Willis decided to move to Mississauga.

[20] On August 10, 2013, Hung entered into an agreement of purchase and sale, which was set to close on October 30, 2013, whereby she agreed to purchase the Property. It is undisputed that she provided the initial $25,000 deposit.

[21] Hung has provided a Notice of Fulfilment of Condition, which she signed in the course of purchasing the property. It did have both her name and Willis’s name typed on it, but Willis’s name was crossed off. Before the closing date, Hung states that she discovered that Willis was unfaithful. They decided to remain together, but Hung claims she insisted that the new home would be owned by her alone and that he would not seek any ownership interest in it.

[22] The purchase of the Property closed on October 30, 2013, and was registered in Hung’s name only. In order to finance the purchase, Hung obtained a secured line of credit, which was in her name alone. It was eventually converted to a mortgage, in her name alone again.

iii. The Agreement

[23] On September 24, 2013, after Hung purchased the Property and over a month before the closing, the parties signed a document entitled “Common-Law Partner Agreement” (“the Agreement”). The pertinent parts of the Agreement are as follows:

BACKGROUND

B. The parties wish to enter into this agreement to provide for the status, ownership and division of property as between them, including property owned or to be acquired by either or both of them;

E. Each party has retained their own lawyer and has received independent legal advice regarding the terms of this Agreement.

F. The parties have exchanged financial statements providing full and complete disclosure of substantially all of the assets and liabilities, property now owned or owing by each of them and voluntarily and expressly waive any other rights to disclosure of the property or financial obligations of each other beyond the disclosure provided;

G. The parties acknowledge that they have been provided with a reasonable period of time to review this Agreement and obtain legal advice before signing;

H. Each party agrees and affirms the following:

a. THAT the parties did execute the Agreement voluntarily;

b. THAT this agreement was not unconscionable when it was executed;

c. THAT both parties were provided prior to execution of the Agreement a fair and reasonable disclosure of the property of financial obligations of the other party; and

d. THAT he or she did have, or reasonable could have had, an adequate knowledge of the property or financial obligations of the other party.

PROPERTY

1. Except as otherwise provided in this Agreement, such property as is itemized in the LIST attached hereto will be and remains the property of the owner described in the said schedule and the other party will have no right to or interest in such present property.

2. Unless a particular piece of property is explicitly documented as being owned by both parties, the following types of property will not be deemed as shared property:

a. Any property owned by a party at the date of execution of this agreement;

b. any income or proceeds derived from property owned by a party before or after execution of this Agreement;

c. any property acquired by either party with income received during their marriage from property owned by a party before or after the execution of this Agreement; and

d. any earnings, salary or wage acquired before or after the execution of this Agreement.

3. The shared property owned by both parties at the execution of this Agreement, however and whenever acquired, will be owned and managed by both parties at all times and will remain the property of both parties after the execution of this Agreement.

4. Nothing in this Agreement will prevent or invalidate any gift, or transfer for value, from one party to the other of present or future property provide such gift or transfer is evidenced in writing signed by both parties.

5. WITNESSES:

[Note: The undersigned witnesses hereby confirm that neither of them is the attorney, nor the attorney’s spouse or partner, nor the spouse, partner or child of the donor; not someone that the donor treats as his or her child, nor a person whose property is under guardianship or who has a guardian of the donor; not a person under the age of 18.]

The Property List under the name of the wife Fei Hung

Real Estate Property (located at 1500 Glenwatson Drive, Mississauga, Ontario

Vehicle)

Bank deposit (any savings or chequing account)

insurance policies

jewelry

Any other valuable assets before the common-law relationship

The Property List under the name of the husband Rob Wills:

Vehicle

Bank deposit (any saving or checking account)

Insurance policies

jewelry

Any other valuable assets before marriage

[24] It should be noted that the parties’ signatures were witnessed by Larry M. Marshall, who is in fact a lawyer. The occupation of the other witness, Xiaofeng Zhu, is unknown, but her address appears to be next door to that of Marshall. Only Zhu signed an affidavit of execution, but she indicated that the document was signed by Hung and Willis in the presence of Marshall and herself.

[25] At his questioning, Willis claims that he was pressured into signing the agreement. He could not explain the type of pressure he was under and claimed that Hung simply assured him everything would be fine. Willis admits that at no time has he ever sought to change the terms of the Agreement.

iv. Renovations to Property

[26] Despite signing the Agreement, Willis claims that his and Hung’s conduct in the ensuing years has varied its terms. He states that this conduct consisted of him spending considerable amounts of money, time and effort on the Property, all with Hung’s agreement. In the alternative, he is asserting a claim for quantum meruit for the time and effort put into the Property.

[27] With respect to the renovations, Willis claims he totally gutted the basement and removed everything to the bare walls, including old electrical wires. He claims to have spent hundreds of hours on the house. He took all the junk from the basement and dumped it in a garbage bin. He claims to have restructured the floors on the main floor living room, added new stairs, put in new floor joists and installed stud walls in the basement by himself with the help of his son Troy. He claims to have taken days off his job in order to work on the renovations. He provided no evidence from his son or anyone else that may have helped him, or witnessed him doing the work.

[28] Willis claims that all supplies are paid for by their joint credit card and payments on that credit card are made from the spa money and his employment. He denies ever being asked to pay rent. He submits that he was unable to retrieve banking records to support his claims.

[29] Hung agrees that the Property was renovated between November 2013 and April 2014. Hung claims he gave Willis cash to pay the tradespeople hired to do the work. She claims that the extent of his contributions to the home consisted of mowing the lawn, shovelling snow and once he fixed the stairs. Willis generally worked at his own job during the hours the tradespeople were working on the Property. She has indicated that she paid for the renovations with the cash in her safety deposit box, and she has provided evidence of withdraws from her lines of credit in March and April 2014, which she claims were for the renovations.

v. Safety Deposit Box and Banking

[30] Hung states that she trusted Willis and allowed him to be a signatory on her business accounts and her safety deposit box in order to assist with banking. I will infer from the evidence that the cash put in the safety deposit box was from the Business. The parties also had a joint chequing account into which Willis’ pay cheque was deposited every two weeks. She claims he withdrew more than he deposited to pay his own debts, but he states that money was used to pay household bills as well. It is not contested that Willis paid no rent to Hung.

[31] Hung states that for reasons unknown to her, Willis stopped depositing his pay cheque into their joint account in June and July 2017 and started withdrawing money without Hung’s knowledge or consent.

[32] Hung also claims that she kept the sum of $160,000 in cash in her safety deposit box. There is no evidence to substantiate this sum. She claims that Willis stole the entirety of this money. Hung has provided one page of the safety deposit box entrance record. It clearly states that it is co-owned by Hung and Willis as joint tenants and access by either one was permitted. It also shows that Willis entered the safety deposit box three times in 2017 and that the only entry by Hung was on July 8, 2017, when she discovered the alleged theft. Accordingly, one can infer from the evidence that Willis was the individual who deposited the money into the safety deposit box at least for that year. It is unclear when Willis was permitted to be a signatory on the safety deposit box and who originally owned it.

[33] Willis has acknowledged that they kept cash in the safety deposit box, but disputes the amount. He claims the amount he withdrew in 2017 was only $43,000, which he said he withdrew for safekeeping. He has since been ordered to pay this amount into court until this dispute has been adjudicated.

Issues

[34] The following issues must be determined on this motion:

a) Is this matter appropriate for partial summary judgment?

b) If so,

1. Is the Agreement binding on Hung and Willis?

2. If it is, does it dispose of Willis’ claim to the Property, the Business and the cash from the safety deposit box?

Analysis

A. Partial Summary Judgment

[35] The appropriateness of a motion for partial summary judgment has been addressed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, as well as by the Ontario Court of Appeal.

[36] In Hryniak, at para. 60, the Supreme Court of Canada directs this court to consider the consequences of this type of motion in the litigation as a whole. A partial summary judgment risks duplicative proceedings or inconsistent findings of fact, which is not in the interest of justice. However, if the resolution of an important claim against a key party could significantly advance access to justice and be the most proportionate, timely and cost-effective approach, partial summary judgment should be considered.

[37] In the recent case of Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, Pepall J.A. stated that in the past, the Court of Appeal analysed a motion for partial summary judgment from the perspective of whether there is a risk of duplicative or inconsistent findings at trial and whether granting partial summary judgment was advisable in the context of the litigation as a whole: at para. 28.

[38] In addressing the advisability of such a motion in the context of the litigation as a whole, Pepall J.A. directs this court to consider the following factors, at paras. 30-33:

a. Whether a motion for partial summary judgment will cause the trial to be delayed;

b. Whether a partial summary judgment motion will be very expensive for the parties;

c. Whether it is advisable to ask a judge to spend the time required to hear, decide and write a comprehensive decision on an issue that does not dispose of the action; and

d. As the record available at the hearing of a partial summary judgment motion will not be as extensive as the record at trial, whether it would increase the danger of inconsistent findings.

[39] Pepall J.A. then noted, at para. 34, that a moving party should consider these factors in assessing whether it is advisable to proceed with the motion in the context of the litigation as a whole. A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and may be dealt with expeditiously and in a cost-effective manner.

[40] In the case at hand, the enforceability of the cohabitation agreement is one of those issues that could be easily bifurcated from the other issues in this case. In making this determination, it is recognized that the determination of this issue could shorten the trial and save the parties considerable expense. There is also little chance that inconsistent findings of fact will be made.

[41] If it is determined that the Agreement is not enforceable, the witnesses and documentary evidence required to determine this issue will not be required. The parties will proceed to trial on the understanding that the Agreement does not come into play. The trial will be shortened as a result.

[42] On the other hand, if the cohabitation agreement is found to be enforceable, it may allow this court to finally determine the issues of the ownership of the house, the business and the safety deposit box. It may also adjudicate the issue of the alleged fraud. As Hung has withdrawn her claim for support, her request to be added to Willis’ insurance plan is also withdrawn. This motion could also finally dispose of all issues raised by Willis. The sole remaining issue to be tried would be those final claims raised by Hung: damages for sexual assault, adultery, mental cruelty and a restraining order. Leaving aside the issue of whether one can even claim damages for adultery, the findings of fact required to determine if Willis perpetrated a sexual assault on Hung and whether he inflicted mental cruelty upon her are readily bifurcated from the facts to be determined when assessing the validity of a domestic contract. While Willis has alleged duress, this is raised as being a reason for which he entered into the Agreement and can be determined on partial summary judgment in relation to the validity of the contract. If the Agreement is found to be valid, Hung’s claim for mental cruelty would still be outstanding, but the duress claim will no longer be relevant and need not be explored at trial.

[43] The courts have already determined that the enforceability or validity of a domestic contract can be determined by way of a motion for partial summary judgment. In Milne v. Milne, 2019 ONSC 459, McDermot J. indicated at paras. 91-92 that the findings necessary under s. 56(4) (regarding setting aside domestic contracts) of the Family Law Act, R.S.O. 1990, c. F.3, can be easily bifurcated from the other issues remaining. By determining the issue of whether the domestic contract should be set aside, he recognized that the parties would not have to spend time at trial dealing with evidence related to negotiation of the agreement and would avoid the calling of additional witnesses who were involved in the formation of the agreement.

[44] Accordingly, given the nature of the claims in this action, this is one of those instances where it would be in the interests of justice that a motion for partial summary judgment be permitted to proceed.

[45] Given that the motion will be considered, I am mindful of the well‑established principle of summary judgment that the parties must put “their best foot forward” in either advancing their motion or in defending it: Rozin v. Ilitchev (2003), 66 O.R. (3d) 410 (C.A.), at para. 8, citing Rogers Cable TV Ltd. v. 373041 Ontario Ltd. (1994), 22 O.R. (3d) 25 (Gen. Div.), at p. 28.

[46] This principle has been included in the Family Law Rules, O. Reg. 114/99, regarding summary judgment. In r. 16(4.1) it states:

In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or the evidence, specific facts showing that there is a genuine issue for trial.

[47] I am also mindful of the expanded powers granted to a motions judge under r. 16(6.1) of the Family Law Rules, allowing me to weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence.

B. Is the Agreement Binding on the Parties?

[48] The validity and enforceability of a domestic contract is addressed in the Family Law Act. The relevant provisions state:

51 In this part,

“domestic contract” means a marriage contract, separation agreement, cohabitation agreement, paternity agreement or family arbitration agreement.

53(1) Two persons who are cohabitating or intend to cohabitate and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabitate or on death, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and

(d) any other matter in the settlement of their

affairs.

55(1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.

56(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

[49] It is important to note that in Willis’ pleadings and in his responding materials for this motion, he does not dispute the existence of the Agreement or its initial validity. Instead, he claims it was amended by the parties’ conduct. To be clear, nowhere does he claim that he did not receive adequate financial disclosure. He states that he did not consult a lawyer, but does not plead that the Agreement is not enforceable as a result. He does not claim he did not understand the Agreement; in fact, he indicated that he never read the document in depth until these proceedings. When questioned on why he signed the agreement, he claimed he signed it under duress, but could not explain to any degree of clarity what type of duress he was subjected to.

[50] In LeVan v. LeVan, 2008 ONCA 388, 90 O.R. (3d) 1, at para. 51, the court provided the two-part analysis to be undertaken when a party seeks to set aside a domestic contract under s. 56(4) of the Family Law Act. First, the court must consider whether the party seeking to set aside the agreement can demonstrate that one or more of the circumstances set out within the provision have been engaged. Once that hurdle has been overcome, the court must then consider whether it is appropriate to exercise its discretion in favour of setting aside the agreement.

[51] As indicated, Willis has not claimed that there was inadequate financial disclosure. The parties listed their assets in the agreement. Hung clearly listed the Property, any bank deposits and any valuable assets before the common law relationship. Willis had a similar list. He has not claimed that she withheld information from him or that he requested more information, but she refused.

[52] Willis has not claimed that he did not understand the nature of the contract and its consequences, as required by s. 56(4)(b). He did indicate that he did not read it very carefully, but that is not the same. He had every opportunity to do so. In the record, it was clear that his command of the English language was better than that of Hung. He cannot sign a contract without any degree of scrutiny and then later ask to not be bound by it because he did not give it the scrutiny required to understand its consequences.

[53] As indicated, Willis has made a claim of duress, although not specifically pleaded, which could be considered an allegation that the Agreement was not in accordance with contract law, as set forth in s. 56(4)(c).

[54] In the case of P. (M.L.) v. P. (G.W.) (2000), 12 R.F.L. (5th) 434 (Ont. S.C.), at paras. 11-12, Linhares de Sousa J. stated that the existence of duress eliminates a party's ability to freely and voluntarily consent to an agreement, which is an essential element to a binding contract. In the case of Toscano v. Toscano, 2015 ONSC 487, 57 R.F.L. (7th) 234, at para. 72, the court stated:

Duress involves a coercion of the will of one party or directing pressure to one party so they have no realistic alternative but to submit to the party (see Berdette v. Berdette (1991), 81 D.L.R. (4th) 194 at para. 22 (Ont. C.A.)). Equity recognizes a wider concept of duress including coercion, intimidation or the application of illegitimate pressure.

[55] In this case, Willis has provided no evidence to support that he was subjected to coercion, intimidation or illegitimate pressure. He was able to freely and voluntarily enter into the Agreement. He had a full-time job; he was capable of supporting himself. Hung claims that Willis advised her that he had support obligations to his former spouse and child, but nowhere does Willis indicate that this put him in such financial constraints that he had to sign the contract in order to have a place to live. There is no evidence that he was fearful of Hung; in fact, it is Hung who has alleged sexual assault and cruelty. Willis has not provided any specifics about what his duress entailed.

[56] Accordingly, Willis has failed to show any reason under s. 56(4) that the Agreement must be set aside.

[57] Willis claims the Agreement was altered by conduct. Unfortunately, that argument is of no assistance to him in light of s. 55(1) of the Family Law Act, which states that any amendments must be in writing, signed and witnessed. That did not occur here.

[58] Accordingly, I find that the Agreement is binding on the parties.

C. Effect of the Agreement on the Issue of Ownership of the Property

[59] The Property purchased by Hung is very clearly listed in the schedule to the Agreement. The Agreement specifically states that the property itemized in the schedule remains the property of the owner and that the other party “will have no right or interest in such present property”. The conduct of either Hung or Willis does not alter the Agreement. The Agreement was signed in anticipation of Hung purchasing the Property. She remained the only party liable under the secured line of credit and the mortgage.

[60] Accordingly, any claim by Willis to the Property is dismissed. If he obtained a Certificate on Pending Litigation, it is to be immediately discharged.

D. Effect of Agreement on the Ownership of the Business

[61] With respect to the Business at the Eglinton location, it is clear that this was purchased and sold by 2328025 Ontario Inc., in which Willis had no ownership interest. He was unable to provide any evidence of his financial contribution to this venture. He neither identified the correct dates of purchase and sale, nor did he provide the true purchase and sale prices.

[62] The Eglinton location of the Business was purchased and sold prior to the Agreement being signed. The Agreement states in paragraph 2(a) that unless property is being documented as being owned by both parties, any property owned by a party at the date of execution will not be considered shared property. The Business at the Eglinton location and, in particular, the property owned by 2328025 Ontario Inc., which is only owned by Hung, fall squarely within this provision. Accordingly, Willis has no claim to any ownership in 2328025 Ontario Inc. or any of its assets, or to any proceeds from the Eglinton location.

[63] The Business and income emanating from the Jutland location is not so clear. This location was also acquired prior to the Agreement being signed. Accordingly, the ownership of this part of the Business and the profits or income that derive from it may be determined in accordance with paragraph 2 of the Agreement.

[64] The evidence on the ownership of the Jutland location and the documents relied on by both parties is contradictory and involves issues of credibility. Accordingly, this would be an appropriate circumstance in which to order that oral evidence be presented on these issues, as contemplated by r. 16(6.2) of the Family Law Rules. This “mini-trial” should be limited in its duration and the issues canvassed and should be heard by me.

E. Effect of Agreement on the Contents of Safety Deposit Box

[65] Paragraph 2 of the Agreement states:

Unless a particular piece of property is explicitly documented as being owned by both parties, the following types of property will not be deemed as shared property…

[66] Hung produced the entry card of the safety deposit box. Hung admitted she added his name to the safety deposit box in order to facilitate banking. The signature card for the safety deposit box clearly indicates that Hung and Willis are joint tenants of the box and either can sign to gain entry. Accordingly, the contents of that box are jointly held in accordance with the Agreement. It is not evident if the safety deposit box was jointly owned on the day the Agreement was executed. If it was, then paragraph 3 of the Agreement would be further support for a finding of joint ownership.

[67] The sole remaining issue with respect to the safety deposit box is the sum of money that was contained therein when it was removed by Willis. That is not something that can be decided on the written record. Issues of credibility will have to be resolved to determine this issue. Accordingly, this issue will also be decided after the hearing of oral evidence.

F. Willis’ Claim for Unjust Enrichment

[68] Willis has made a claim for unjust enrichment. With respect to the Property, Willis has also made a claim for damages on the basis of quantum meruit to compensate him for his contributions to the Property. With respect to the Property and the Business together, he has claimed that he and Hung were in a joint family venture and that he should be compensated accordingly, no matter who is the owner of the Property or the Business.

[69] In the Supreme Court of Canada case of Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 32, the court confirmed the three basic requirements of a claim for unjust enrichment: one party received an enrichment, the other party received a corresponding deprivation, and there must be no juristic reason for the enrichment. The court also makes clear that a contract between the parties is one example of a juristic reason: at para. 41. Accordingly, if there is a binding contract between the parties that allows one party to have an enrichment and the other a deprivation, then a juristic reason exists, and there is no unjust enrichment.

[70] In the case at hand, I have found that any enrichment or corresponding deprivation with respect to the Property is covered by the Agreement. Accordingly, Willis’ claim for damages for unjust enrichment with respect to the Property must fail.

[71] With respect to the Business, it has not yet been determined if it is addressed by the Agreement. The evidence at the oral hearing may result in a finding that the Business at the Jutland location is jointly owned, and, if so, the Agreement would be irrelevant. If the evidence at the hearing is that the Business remains the sole property of Hung but is not covered by the Agreement, then Willis may have a claim for unjust enrichment and could seek a finding that they had a joint family venture when requesting damages.

Conclusion

[72] Accordingly, I make the following orders:

a) The Agreement dated September 24, 2013, is a valid domestic contract that is binding on both parties;

b) Willis’ claim for an ownership interest in the Property is dismissed;

c) If a certificate of pending litigation was registered against title of the Property, it is to be discharged forthwith, at the expense of Willis;

d) The safety deposit box is jointly owned and the contents (to be ascertained by mini-trial, as detailed below) shall be divided evenly;

e) If the parties proceed with the mini-trial, the sum currently be held in court shall remain until the decision is rendered after oral evidence is given; if the parties do not proceed with the mini-trial, the monies paid into court shall be paid out to each party equally;

f) A hearing to obtain oral evidence is to be scheduled before me to determine the following issues:

1. Ownership of the Business at the Jutland location;

2. Ownership of E Holding Company and E Spa after October 2013;

3. Relationship between E Holding Company, E Spa and 2328025 Ontario Inc., if any, after October 2013;

4. Current status of E Holding Company, E Spa and 2328025 Ontario Inc.;

5. Was the Business at the Jutland location a joint family venture?

6. If Willis is awarded damages for unjust enrichment, how are they to be quantified?

7. How much money was in the safety deposit box and how much was taken by Willis?

g) The hearing will be limited to one day;

h) The parties will serve and file within 30 days an affidavit containing the evidence they seek to rely on, with all supporting documentation, which will serve as their evidence in chief;

i) If any party seeks to introduce the evidence of a non-party, the non‑party’s evidence shall also be in affidavit form and be served and filed on the other party within 30 days of this order and shall be considered their evidence in chief;

j) No other affidavits shall be served or filed after this date without leave from me, to be sought by written motion (Form 14B);

k) Each party will be entitled to cross-examine the other party or any non-party on their affidavits at the oral hearing; cross-examinations shall be limited to 60 minutes per witness;

l) Each party or non-party will have the right to give oral reply evidence, which will be limited to 30 minutes per witness;

m) If either party requires a translator, they shall produce a court-certified translator at their own expense;

n) Written closing submissions and briefs of authority will be served on the other party and filed two days prior to the scheduled hearing;

o) Closing arguments shall be limited to one hour per party on the day of the hearing;

p) The parties shall bring their costs submissions, costs outline and any offers to settle to the hearing, and shall provide them to the court in a sealed envelope to be opened after the decision has been released; and

q) With respect to costs:

1. If the parties are able to resolve the outstanding issues without a mini-trial, they may serve and file their costs submissions by 4:30 p.m. on March 15, 2019, limited to two pages, double spaced and single sided, exclusive of a costs outline and case law; responding submissions are to be served and filed by 4:30 p.m. on March 29, 2019, with the same size and content restrictions; otherwise, there will be no costs order;

2. If the parties proceed to a mini trial, the costs of this motion for summary judgment shall be reserved until after the oral hearing.

Fowler Byrne J. Released: February 12, 2019