Court File and Parties

COURT FILE NO.: 321/16 (Stratford) DATE: 20190705 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Trevor Joseph Harold Brunsdon Applicant – and – Lisa Ulch Respondent

Counsel: Martha Cook, for the Applicant Stella Hines, for the Respondent

HEARD: October 9, 10, 11, 12 and December 10, 2018

Reasons for Judgment

HEBNER J.:

[1] The applicant commenced this proceeding in April 2016. He and the respondent jointly owned property located at 5976 Perth Line 8 in Kirkton, Ontario (“the subject property”). The applicant seeks partition and sale of the subject property and an equal division of the net proceeds of sale. The applicant does not seek occupation rent but does not want to pay carrying costs of the property from the time of his ouster and suggests the two be offset.

[2] The respondent brought her counterclaim contained in her Answer dated June 13, 2016. The respondent seeks an order transferring the subject property into her name alone for $0 consideration based on unjust enrichment and constructive/resulting trust. In addition, the respondent seeks an order transferring a Honda Pilot vehicle from joint names to her name alone, and the return of a Harley Davidson and a remote-control car.

[3] Both parties seek the return of personal property.

Overview

[4] This case is primarily about an unjust enrichment claim brought by the respondent against the applicant. It involves the subject property. The subject property is a residential property within the village of Kirkton. It consists of a home, a garage and a shed.

[5] In December 2004, Mr. Brunsdon purchased the subject property with his then girlfriend, Emily Traut. In November 2006, Mr. Brunsdon purchased Ms. Traut’s interest in the subject property.

[6] In late 2006, Mr. Brunsdon and Ms. Ulch started their relationship. Mr. Brunsdon was living in the subject property at the time. Ms. Ulch has four children from a previous marriage with her ex-spouse, Jeffrey Den Otter. The four children are: Joshua born September 12, 1994; Jake born May 7, 1996; Jared born January 20, 1998; and Joel born October 21, 2001. In the spring/summer of 2007, Ms. Ulch and her children moved into the subject property and the parties began a cohabitation relationship.

[7] At the time Ms. Ulch moved into the subject property, it was a modest home. In the next few years, the home was transformed as a result of three major projects. The first project took place in 2008. The parties built a large, two level detached garage. The second project took place in 2010 – 2011 when an addition was added to the home and the home was completely remodelled. The third project took place in 2013 when a shed/outdoor lounge was built in the backyard.

[8] In March 2011, title to the subject property was transferred from Mr. Brunsdon to Mr. Brunsdon and Ms. Ulch as joint tenants. The outstanding mortgage was paid and a new first mortgage was placed on the property.

[9] The parties’ relationship began to break down in the middle of 2014. In August 2014, Ms. Ulch severed the joint tenancy. In December 2014, Ms. Ulch contacted the police and Mr. Brunsdon was ousted from the property.

[10] Ms. Ulch invested monies that she received from the breakdown of her marriage to Mr. Den Otter into the subject property. She initially placed those monies into her bank account. All of the renovation expenses were then paid through Ms. Ulch’s bank account. The parties used Ms. Ulch’s Visa card for expenses, apparently to gain travel points.

[11] Mr. Brunsdon is a heavy equipment operator at McLean Taylor Construction. Ms. Ulch is a registered nurse at Huron Perth Health Centre. She also earns income through contract engagements. The parties lived a lifestyle beyond their means, primarily funded from Ms. Ulch’s bank account and Visa.

[12] By the time of trial, all of the children had moved out of the subject property. Ms. Ulch continued to live there with her current boyfriend.

The Applicant’s Purchase of The Subject Property

[13] Mr. Brunsdon does not have a post-secondary education. He graduated from high school and, at some point afterwards, became a heavy equipment operator. He has spent 18 years with the same employer, McLean Taylor Construction. McLean Taylor Construction builds bridges, water treatment plants and subdivisions in St. Marys, Ontario.

[14] Mr. Brunsdon purchased the subject property on December 31, 2004, with his then partner, Emily Traut. The purchase price was $180,000. The purchase was financed through a mortgage with First National Financial Corporation. The mortgage statement closest to the date of the purchase is the statement dated December 31, 2007, indicating that on January 1, 2007, the outstanding principal balance was $167,852.07.

[15] At the time Mr. Brunsdon purchased the property, it was a three-bedroom bungalow with two bathrooms and a finished basement. He and Ms. Traut renovated the basement such that it had an open concept. They installed a concrete pad at the garden shed for patio furniture. They bought furniture and appliances. They removed trees and completed some gardening. The cost to maintain the property was shared equally.

[16] Approximately one year after Mr. Brunsdon and Ms. Traut purchased the property, they separated. Mr. Brunsdon purchased Ms. Traut’s interest in the property. Ms. Traut wanted the sum of $13,000. Mr. Brunsdon obtained a loan with BMO for $15,000 in order to finance the payment. He then became the sole owner of the property, against which he had the outstanding mortgage ($167,000) plus the BMO loan of $15,000.

[17] Later in 2007, Mr. Brunsdon and Ms. Ulch began to talk about moving in together. She looked for a home that would be suitable within the Kirkton area and, unable to find anything, the two agreed that Ms. Ulch would move into Mr. Brunsdon’s home.

[18] When Ms. Ulch moved into Mr. Brunsdon’s home, all four of her children were still in school. They spent half of their time with Ms. Ulch and half of their time with their father. Accordingly, they lived half of the time in the subject property. There is no allegation that Mr. Brunsdon stood in the place of a parent towards the children. Mr. Brunsdon acted as more of a friend to them and assisted in driving them to their sporting events.

Divorce Settlement

[19] Ms. Ulch received a total of $739,387.20 from her ex-husband on their divorce. The timing of the payments was as follows:

• February 20, 2007 – $60,059.59
• September 5, 2008 – $176,764.45
• February 2, 2009 – $8,566.33
• May 28, 2009 – $236,500.00
• July 9, 2010 – $125,927.31
• December 22, 2011 – $131,569.52

[20] Ms. Ulch put her money into a Manulife One account. According to Ms. Ulch, Mr. Brunsdon knew about the settlement monies, told Ms. Ulch he was not interested in her money and said that he would be willing to recognize any contribution she made. According to Mr. Brunsdon, he had no idea of the status of Ms. Ulch’s divorce and was not aware of the monies that she received.

The Parties’ Finances

[21] The parties never had a joint account. Ms. Ulch had the TD Canada Trust account and the Manulife One account. Mr. Brunsdon had a bank account at Bank of Montréal. Initially, the parties arranged their finances such that Mr. Brunsdon paid the mortgage ($634.66 biweekly), taxes, insurance and utilities and Ms. Ulch purchased groceries. Ms. Ulch did not pay rent. That practice continued until the subject property was transferred into the parties joint names in March 2011, discussed below. After the transfer, the mortgage and all household expenses were paid for by Ms. Ulch with Mr. Brunsdon transferring monies monthly into her account to cover the cost of the mortgage payment.

[22] Sometime in 2008, Ms. Ulch told Mr. Brunsdon that the two of them should pay for purchases and other expenses using her TD Visa in order to accumulate travel points. They started this practice and began to pay for all of their expenses using Ms. Ulch’s TD Visa card. According to Mr. Brunsdon, he would then withdraw cash from his bank account and give it to Ms. Ulch.

[23] According to Mr. Brunsdon, Ms. Ulch handled all of the finances. If he asked, he was told the finances were in order and “everything was okay”. He had no idea the extent of the costs of the renovations or how much money Ms. Ulch spent.

The Garage Project

[24] The first improvement made by the parties was the building of a two-story, freestanding garage. According to Mr. Brunsdon, he designed the garage. According to Ms. Ulch, the garage was designed together. A building permit was issued for the project on September 6, 2007. The building permit identified the size of the garage to be 960 square feet. The projected value was $10,000.

[25] The size of the garage was such that two cars could park beside each other with a workspace behind the parked cars. There was a second floor for storage.

[26] According to Mr. Brunsdon, he built the garage himself. He contracted the work that he could not do himself, such as the siding and the roof, but the balance of the work was done by him. Mr. Brunsdon said he did the work on weekends or at the end of his ordinary work day. Ms. Ulch’s evidence was that she assisted with the labour following Mr. Brunsdon’s directions.

[27] The financing for the materials came from Ms. Ulch’s TD Visa card. The parties estimated that the garage would cost $10,000 to build, but the cost was well beyond that estimate. According to Ms. Ulch, the total cost of the garage was approximately $25,000. The cost was paid for entirely by her.

The House Project

[28] The biggest project undertaken by the parties was that of the addition and renovations to the house on the subject property. The building permit was obtained on August 30, 2010. The project value was estimated to be $200,000. The size of the addition was 1600 square feet. Ms. Ulch hired JSB Construction as the main contractor.

[29] The parties made the decision to undertake the home renovation because they needed more space. The home was to be upgraded to accommodate the addition of Ms. Ulch and her four children. The home went from a three-bedroom home to a five-bedroom home. The main living space was increased and a mud room, a furnace room and master bedroom with en suite bathroom was added.

[30] The renovations took almost a year to complete. In the meantime, the family lived in the newly built garage and the four children slept in the basement.

[31] There was an existing sunroom at the back of the original home. It was sold for $1,500 in order to accommodate the addition. Mr. Brunsdon traded his garden shed for the use of a garbage trailer. He sold his furniture, appliances and cupboards. All of the funds from the sales were provided to Ms. Ulch to be used towards the cost of the renovation itself.

[32] Mr. Brunsdon provided physical labour to assist in the renovations. He said he cleaned up after the contractors, knocked out walls and took steps to ensure the home was ready to be worked on. He built the fireplace mantle. According to Mr. Brunsdon, he was not involved in any of the contract negotiations with tradespeople. Ms. Ulch undertook those negotiations, handled all of the finances and paid all of the costs out of her own account. The project was partially financed by the mortgage on the property, discussed below.

[33] Mr. Brunsdon and Ms. Ulch did small projects themselves, including tiling the basement floor, tiling the bathroom floor and pantry, and staining the steps. They installed lockers in the basement mud room for the boys’ sporting equipment and outdoor items.

[34] The home renovation project was completed by the fall of 2011. According to Ms. Ulch, the total cost paid to JSB Construction was $322,871.54. Ms. Ulch provided additional proof of expenses paid directly to subcontractors of approximately $110,000, for a total cost of the home renovation project of approximately $430,000. Ms. Ulch also claims to have paid approximately $12,000 towards the renovations the parties completed themselves in the basement.

The Outdoor Work and Shed Project

[35] In the yard, Mr. Brunsdon and Ms. Ulch completed landscaping including: gardening; the installation of a cement driveway; installation of a gazebo over a hot tub; a stone and rock waterfall and pond; a golf green; and extended backyard patio. The old hot tub was traded in for a new one. According to Mr. Brunsdon, the outdoor landscaping work carried on throughout the years the parties were together. Again, according to Mr. Brunsdon, he did the majority of the labour with Ms. Ulch providing direction on placement of stone and plants, etc.

[36] In June 2013, the parties applied for a building permit to construct what is referred to in the permit as a “garden shed”. The projected value on the building permit is $2,500 and the permit was issued June 26, 2013. The footprint for the garden shed was 324 square feet. According to Ms. Ulch, the cost of the landscaping and garden shed was approximately $20,000.

All Projects

[37] Mr. Brunsdon used his employer, McLean Taylor Construction, for various components of all three construction projects including a patio, laneway and general landscaping. McLean Taylor provided equipment, materials and purchasing power. By way of letter from Mr. Taylor, an estimate of the cost of the services was $20,000.

[38] Mr. Brunsdon’s evidence is that he contributed his manual labour to all three of the projects and that he provided monies to Ms. Ulch, in cash or by cheque, regularly. He is unable to calculate the amount provided. According to Mr. Brunsdon, there was no discussion between the two on any percentage ownership of the property other than 50/50.

[39] According to Ms. Ulch, Mr. Brunsdon did not have monies to contribute to the projects. She said that he “couldn’t afford anything”. She said that early in their relationship, she had to help him purchase his Christmas gifts. She said that Mr. Brunsdon knew about the settlement monies she was receiving, said he was not interested in the settlement monies and said he would be willing to recognize any contributions she made to the home.

[40] Under cross-examination, Ms. Ulch was asked about monies provided by Mr. Brunsdon towards the renovations and the expenses in general throughout their relationship. She acknowledged that Mr. Brunsdon paid the monthly mortgage, but said the amount was short $50.00 each month. She said that Mr. Brunsdon did provide additional monies to her but it was “not a regular occurrence” and perhaps occurred only “once or twice and maybe”. The applicant’s counsel reviewed Mr. Brunsdon’s bank statements with Ms. Ulch. She acknowledged that in December 2012 he contributed $3,000. In March 2013, he contributed $3,000. In July 2013, he contributed $2,500. In October 2012, he contributed $5,000.

The Transfer to Joint Names

[41] During the time that the large project, the home renovation, was being undertaken, the parties had discussions about transferring one half of the subject property to Ms. Ulch. Ms. Ulch suggested that the parties use her cousin, Mr. Benjamin Waghorn, a solicitor in St. Marys, to handle the transfer.

[42] Mr. Brunsdon’s evidence is that he agreed to transfer one half of the property to Ms. Ulch given that Ms. Ulch was spending significant sums of money on the renovations. He and Ms. Ulch met with Mr. Waghorn at his office in St. Marys on March 24, 2011, to sign the transfer documentation transferring the property to he and Ms. Ulch as joint tenants. The transfer indicates the consideration was $140,000. Mr. Brunsdon said that was the amount of the mortgage at the time. According to Mr. Brunsdon, there was no discussion about the terms of the transfer. There was no suggestion that he obtain independent legal advice. He was not aware of any prior discussions between Ms. Ulch and Mr. Waghorn.

[43] At the same time as the transfer, a new mortgage was put on the property in the amount of $317,750. The first mortgage, in the amount of $145,492.31, was paid. After legal fees, the proceeds of the mortgage were $170,881.31. All of the monies were deposited into Ms. Ulch’s TD Canada Trust account to fund the home renovations.

[44] Mr. Waghorn was a witness at the trial. He was called to the bar in February 2000 and has a solicitor’s practice in St. Marys. He said that he met Mr. Brunsdon once or twice – the first time when the parties consulted him about wills (he could not recall if Mr. Brunsdon was present) and the second time when they signed the transfer and mortgage. Mr. Brunsdon does not recall the meeting regarding wills.

[45] In respect of the property transfer, Mr. Waghorn’s understanding was that Mr. Brunsdon owned the home, Ms. Ulch had invested monies in the home and, accordingly, Ms. Ulch was to be added to the title. He knew that the bank approved a mortgage to fund renovations and that the property had to be transferred to both parties’ names in order to satisfy the mortgagee.

[46] When he met with Mr. Brunsdon and Ms. Ulch on March 24, 2011, to sign the transfer documentation, Mr. Waghorn said he explained the difference between ownership as joint tenants and ownership as tenants in common. He said he had no independent recollection of the conversation and no notes, but he would have explained the difference between the two types of ownership. He would have told them that each party will own 50 percent of the property and if the intention is to own the property in shares other than 50 percent each, that intention would have to be spelled out in the transfer documentation.

Other Meetings/Involvement with Solicitor

[47] In October 2007, the parties had a dispute with a neighbour over a hedge. Mr. Waghorn recalled sending a letter to the neighbour, and that was the end of his involvement. Mr. Brunsdon recalls the incident. He said that Ms. Ulch had informed him that the neighbour threatened legal proceedings as a result of the hedge the parties had installed, and she said she would take care of it. Mr. Brunsdon does not recall a meeting with Mr. Waghorn in 2007.

[48] Mr. Waghorn has notes of a meeting dated October 22, 2008, respecting wills. He could not recall if he met with both Mr. Brunsdon and Ms. Ulch or just Ms. Ulch. He said he would obtain will instructions from one spouse but then review those instructions and the will itself very carefully with the other spouse when signing. Draft wills, powers of attorney for personal care and powers of attorney for property were drafted but never signed. An account was never sent out.

[49] Mr. Waghorn had met with Ms. Ulch alone in August 2010 to discuss a cohabitation agreement between the parties. Mr. Waghorn was able to produce notes of this meeting. It is apparent from the notes that the issues Mr. Waghorn discussed with Ms. Ulch included child support, spousal support, a motorcycle and the parties proposed respective ownership interests in the subject property. The notes included the following:

“Lisa to get letter of opinion for house and have Trevor agree to % ownership”.

[50] According to Mr. Waghorn, he told Ms. Ulch that she needed to obtain an appraisal, or opinion of value, for the subject property to reflect the value of the property prior to the investment of her monies and a second appraisal or opinion of value to reflect the value of the property after the work was done. She should then speak with Mr. Brunsdon and come to an agreement on percentage ownership. Ms. Ulch and Mr. Brunsdon needed to agree on the terms of a cohabitation agreement before Mr. Waghorn would proceed to draft it.

[51] Ms. Ulch did not contact Mr. Waghorn afterward to prepare a cohabitation agreement and none was ever signed.

[52] Mr. Waghorn had a meeting with Ms. Ulch in December 2012. There were no notes from the meeting, however, Mr. Waghorn obtained proof of identification in compliance with Law Society regulations. According to Mr. Waghorn, the relationship between Ms. Ulch and Mr. Brunsdon was rocky and Ms. Ulch came in to talk, presumably about her options.

[53] Mr. Waghorn had a further meeting with Ms. Ulch on October 29, 2013, to update her will and remove Mr. Brunsdon as a beneficiary and/or executor. Ms. Ulch signed a new will and a power of attorney on November 7, 2013. Mr. Waghorn did not recall any discussion at the time regarding plans for Ms. Ulch to exit the relationship.

Value of the Subject Property

[54] Various documentary evidence was filed on consent concerning the valuation of the subject property at different points in time. I summarize the values disclosed here:

• an MPAC assessment dated January 1, 2005, indicated a value of $156,000;
• an MPAC assessment dated January 1, 2008, indicated a value of $215,000;
• Ms. Ulch obtained an opinion of value in September 2010, indicating an estimated market value of approximately $220,000 – $230,000;
• A property assessment notice dated January 1, 2012, indicated a value of $452,750;
• the amended property assessment notice dated January 1, 2012, indicated a value of $361,000;
• an MPAC assessment dated January 1, 2016, indicated a value of $423,000.

[55] Evidence was given by a real estate appraiser hired by Ms. Ulch, Jason Wharram. Mr. Wharram was contacted by Ms. Ulch’s counsel in November of 2016 and asked to appraise the property as of July 2014 and as of the date he was contacted. Mr. Wharram said he had difficulty finding comparables to use in a valuation. There were no real comparables available given the size of the house and the uniqueness of the property. He appraised the property at $355,000 as of July 2014 and $380,000 as of November 2016 based on the closest comparables he could find.

[56] Under cross-examination, Mr. Wharram noted that his appraisal based on replacement cost would be $766,860. He then indicated that he would reduce that amount by 55 percent to account for accrued depreciation, which he indicated was a judgment call based on a number of factors, including physical depreciation, economic obsolescence and functional obsolescence.

[57] According to Mr. Wharram, the main reason the property is valued at a figure much lower than the parties’ investment is location. He said Kirkton is limited in its amenities. The subject property is at the highest end of the market in that community. He indicated it was a difficult property to appraise.

[58] According to the parties’ financial statements, the outstanding mortgage on the subject property in the summer of 2018 was approximately $280,000.

The Harley-Davidson

[59] In June 2008, the parties purchased a Harley-Davidson motorcycle. The total cost of the motorcycle was $28,466.22, with HST and other charges. Mr. Brunsdon had a motorcycle that he traded in for which the parties received a credit of $4,000. The balance of $24,966.22 was paid up by Ms. Ulch by way of a loan. The motorcycle was registered in Mr. Brunsdon’s name. After he was ousted from the subject property, Mr. Brunsdon attended at the home when Ms. Ulch was absent and took the Harley-Davidson motorcycle. It remains in his possession.

The 2012 Honda Pilot

[60] During the course of the parties’ relationship, in August 2012, they purchased a 2012 Honda pilot that was registered in their joint names. It was paid for by Ms. Ulch. The parties are agreed that the motor vehicle is to be transferred to Ms. Ulch alone.

Personal Property

[61] The parties purchased a remote-control car for Joel. Mr. Brunsdon claims to have purchased the remote-control car from Joel in exchange for hockey equipment and a trick scooter. The parties have agreed that the car, and all of its accessories, will be given to Joel.

[62] When Mr. Brunsdon was ousted from the property, the bulk of his chattels and personal possessions remained. He seeks the return of his chattels, including his tools, his clothing and his fitness equipment. Mr. Brunsdon provided a list of the personal possessions he seeks be returned to him. One of the items that Mr. Brunsdon seeks be returned to him is a gun and a gun case. Ms. Ulch purchased the gun using the Visa card. According to Ms. Ulch, the gun and gun case is in storage with a friend. Another item on the list is $1,000 in cash. Ms. Ulch recalls the amount being approximately $700. She said Mr. Brunsdon told her to take the cash and purchase a jacket for herself.

Lifestyle

[63] According to Mr. Brunsdon’s financial statement, in 2011 he earned $62,272. In 2012, he earned $64,914. In 2013, he earned $68,601. In 2014, he earned $70,138.

[64] According to Ms. Ulch’s financial statement, as a registered nurse, she earned $59,881 in 2012. In 2013 she earned $62,678. In 2014, she earned $53,907.

[65] When the parties were together, they lived well beyond their means. They went to Mexico in 2007; Dominican Republic in 2008; Cuba in 2009; a family trip to Disney World in 2009; Jamaica in 2010; Cuba in 2010; California in 2010; and St. Lucia in March 2014. They spent monies on entertainment and meals in restaurants. They spent significant funds at retail establishments on purchases such as clothing and sporting equipment. Ms. Ulch claims to have paid for many of these discretionary expenses from her accounts.

[66] After all home renovations were completed, and by the time the relationship had fallen apart, the bulk of Ms. Ulch’s settlement funds from her first marriage were spent. As of July 1, 2014, Ms. Ulch had a debt in the way of a line of credit in the amount of $7,837.14. In addition, she had a Visa debt as at February 2014 in the amount of approximately $5,000.

Termination of the Relationship

[67] According to Mr. Brunsdon, the relationship began to break down in 2014. Sometime shortly after June 1, 2014, the parties told the children that they intended to separate. According to Mr. Brunsdon, he and Ms. Ulch had discussions about the financial details of the separation, but “everything ended up in an argument”. In December 2014, Mr. Brunsdon said he received a telephone call from the Ontario Provincial Police, who told him that Ms. Ulch had put Mr. Brunsdon’s belongings outside of the home and he should attend to collect them. Mr. Brunsdon drove to his home and found bags of clothing on the porch with two police officers waiting for him. He took his clothing and went to stay at the home of his parents.

[68] Discussions about a reconciliation took place in early 2015. They were unsuccessful. In approximately May – June 2015, Mr. Brunsdon stopped paying the mortgage and the hydro. He made no further financial contribution to household expenses. The parties signed an agreement dated November 5, 2015, providing that they would not associate or communicate with each other except through legal counsel.

[69] On August 25, 2014, Ms. Ulch severed the joint tenancy on the subject property by registering a transfer of her interest in the property to herself.

Positions of the Parties

[70] The applicant requests an order that the subject property be sold and the net proceeds, after discharging the existing first mortgage and sale costs, be divided equally between the parties. The applicant further requests that he be entitled to attend at the subject property for the purpose of retrieving his personal property.

[71] The position of the respondent is somewhat more complicated. Her position is that:

1. The parties’ respective shares in the subject property be calculated based on their contributions to the various construction projects described above. The respondent calculates her total contribution to be $497,000 and the applicant’s respective contribution to be $69,300. Thus, the respondent should be entitled to an 86 percent share in the subject property and the applicant entitled to a 14 percent share.
2. The respondent then suggests that the value of the subject property be set at $367,005. From that amount, the respondent suggests the amount of the outstanding mortgage and the amount of her TD Visa ought to be detected leaving the amount she calculates as $70,500. Mr. Brunsdon would be entitled to 14 percent of that amount, or $9,870.
3. The respondent requests an order that the subject property be transferred to her on payment to the applicant of the sum of $9,870. The respondent further requests that the applicant be required to pay to her the sum of $7,000 being one half of the estimated date of separation value of the Harley-Davidson; that the respondent be required to pay the applicant the sum of $3,000 for his personal items; and that the respondent be required to pay the applicant $600 representing 50 percent of the value of the firearm. With these adjustments, the respondent calculates that she ought to pay to the applicant the sum of $5,970.

The Issue

[72] Equitable issues are at stake in this litigation. Although this case started as an application for partition and sale under the Partition Act, R.S.O. 1990, c. P.4, the primary issue for resolution is the respondent’s claim in her Answer for an order that the subject property be transferred into her name alone on the basis of unjust enrichment and constructive/resulting trust. The respondent relies on the Supreme Court of Canada decision in Kerr v. Baranow, 2011 SCC 10, and claims that the parties formed a joint family venture.

Legal Principles

[73] The Supreme Court of Canada in Kerr v. Baranow outlined the nature of, and the elements of, an unjust enrichment claim. At paras. 31 and 32 the court said:

At the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain: Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762 (S.C.C.), at p. 788. For recovery, something must have been given by the plaintiff and received and retained by the defendant without juristic reason. A series of categories developed in which retention of a conferred benefit was considered unjust. These included, for example: benefits conferred under mistakes of fact or law; under compulsion; out of necessity; as a result of ineffective transactions; or at the defendant's request: see Peel, at p. 789; see generally, G. H. L. Fridman, Restitution (second ed. 1992), c. 3-5, 7, 8 and 10; and Lord Goff of Chieveley and G. Jones, The Law of Restitution (7th ed., 2007), c. 4-11, 17 and 19-26).

Canadian law, however, does not limit unjust enrichment claims to these categories. It permits recovery whenever the plaintiff can establish three elements: an enrichment of or benefit to the defendant, a corresponding deprivation of the plaintiff, and the absence of a juristic reason for the enrichment: Pettkus; Peel, at p. 784. By retaining the existing categories, while recognizing other claims that fall within the principles underlying unjust enrichment, the law is able "to develop in a flexible way as required to meet changing perceptions of justice": Peel, at p. 788.

[74] The three elements, then, of an unjust enrichment claim are an enrichment, a corresponding deprivation and absence of a juristic reason for the enrichment.

[75] As to the first element, the Supreme Court said at para. 30:

For the first requirement — enrichment — the plaintiff must show that he or she gave something to the defendant which the defendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant, and which can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible. It may be positive or negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake (Peel, at pp. 788 and 790; Garland, at paras. 31 and 37).

[76] As to the second element to, the Supreme Court said at para. 39:

Turning to the second element — a corresponding deprivation — the plaintiff's loss is material only if the defendant has gained a benefit or been enriched (Peel, at pp. 789-90). That is why the second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered (Pettkus, at p. 852; Rathwell, at p. 455).

[77] The third element, that the benefit and corresponding detriment must have occurred without a juristic reason, require more extensive explanation. At paras. 40 to 45, on the third element, the Supreme Court pointed out the following:

a) for a benefit and corresponding detriment to have occurred without a juristic reason, this means there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff such that the retention of the benefit would be “unjust” in the circumstances of the case; b) juristic reasons to deny recovery may be the intention to make a gift, the existence of a contract or a disposition of law; c) the court may consider the “autonomy of the parties” including the legitimate expectation of the parties and the right of the parties to order their affairs by contract; d) a two-step analysis for the absence of juristic reason is to be undertaken. The first step of the juristic reason analysis applies the established categories of juristic reasons including a contract, a disposition of law, a donative intent and other valid common law, equitable or statutory obligations. If there is no juristic reason from an established category, the applicant has made out a prima facie case under the juristic reason component of the analysis. The prima facie case is rebuttable if the respondent can show that there is another reason why the enrichment should be retained. The court can look to all of the circumstances of the case at this stage of the analysis, including the reasonable expectations of the parties and public policy considerations.

[78] Once an unjust enrichment is established, the next step is to consider whether there was a joint family venture. The Ontario Court of Appeal, in Reiter v. Hollub, 2017 ONCA 186, at para. 26 set out the following approach:

That said, in my view, it would have been preferable to first establish whether there was any unjust enrichment before considering the possibility of a joint family venture. The joint family venture inquiry concerns remedy. In Martin v. Sansome, 2014 ONCA 14 (Ont. C.A.), at para. 52, this court set out the appropriate analysis for determining an unjust enrichment-based claim for an interest in property within the context of a domestic relationship and following the Supreme Court's decision in Kerr v. Baranow:

1. Have the elements of unjust enrichment — enrichment and a corresponding deprivation in the absence of a juristic reason — been made out?;
2. If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money?;
3. If the answer to question 2 is yes, should the monetary damages be quantified on a fee-for service basis or a joint family venture basis?; and,
4. If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest?

Analysis

[79] The first step, then, is to determine whether the elements of unjust enrichment have been made out. In my view, there are two possible areas of enrichment. The first is the subject property and the second is the Harley-Davidson. I will deal with each in turn.

The Subject Property

Was there an enrichment and corresponding deprivation?

[80] The first line of inquiry, then, is whether there was an enrichment. Was Mr. Brunsdon enriched or did he receive a benefit?

[81] Ms. Ulch and her children moved into the subject property in the summer of 2007. The first project undertaken by the parties was that of the garage in 2008. The best evidence I have on the value of the subject property at the time Ms. Ulch and her children moved into the subject property, and before any projects were undertaken, is a property assessment notice reflecting a value of $215,000 as of January 1, 2008. The outstanding mortgage as of January 1, 2008 was $162,954.20. Accordingly, Mr. Brunsdon had equity in the property equal to approximately $52,000 at the time Ms. Ulch and her children moved into the residence.

[82] What, then, was the equity in the property after all the projects were finished? The best evidence I have is the appraisal completed by Mr. Wharram as of July 2014. He appraised the property at $355,000 at the time the parties separated. The best evidence setting out the mortgage balance is a mortgage statement of December 31, 2015. It indicates that the balance of the mortgage as at December 31, 2014, was $281,762.88. Accordingly, the equity in the property after all of the work was completed, and at the time the parties separated, based on the best evidence before me is a total of $73,237.00. By that time, the property had been transferred into the parties’ joint names. Mr. Brunsdon’s one-half share of that equity would be $36,618.00.

[83] Mr. Brunsdon contributed the equity of the subject property at the beginning of the parties’ relationship. He contributed monies in the form of payment of the mortgage throughout the parties’ relationship and continuing until a few months after his ouster from the property. He contributed his labour to all of the projects undertaken by the parties on the subject property. There was no evidence as to the value of that labour and neither party kept track of the time and effort that Mr. Brunsdon contributed to the projects. Based on Mr. Brunsdon’s evidence, I accept that the labour he contributed was substantial. He contributed monies towards the cost of the projects directly to Ms. Ulch. Ms. Ulch acknowledges that Mr. Brunsdon contributed $27,300 by way of cheques. Mr. Brunsdon’s evidence is that he contributed more money in the form of cash. I accept that evidence. There was no evidence on how much cash was contributed.

[84] Ms. Ulch contributed the bulk of the funds towards all of the projects. She calculates the total contribution she made to be $497,000. I accept that evidence.

[85] Ms. Ulch and Mr. Brunsdon embarked on their various home renovation projects together. Clearly, Ms. Ulch contributed far more monies to the projects than did Mr. Brunsdon. Mr. Brunsdon contributed more in the form of labour. On balance, I find that Ms. Ulch’s very significant financial contributions were greater than the contributions of Mr. Brunsdon. But, does that translate into an enrichment?

[86] In my view, given that Mr. Brunsdon’s share of the equity after all of the projects were completed was less than his equity in the subject property at the time Ms. Ulch and her children moved in, I cannot find that Mr. Brunsdon was the recipient of an enrichment.

[87] The sad reality is that these parties, and particularly Ms. Ulch, invested significant monies into a property that, in the end, proved to be an unwise investment. Mr. Wharram’s evidence was that the location of the subject property was the driving force behind his appraisal. I accept that evidence. It is extremely unfortunate that Ms. Ulch contributed her divorce settlement monies to the projects on the subject property, but given the market forces described by Mr. Wharram, her contribution did not result in an enrichment to Mr. Brunsdon.

[88] Given my finding that there was no enrichment, the analysis would be completed. However, I will also address the third line of inquiry, namely the question of juristic reason.

Juristic Reason

[89] I accept the evidence of Mr. Waghorn in its entirety. He was direct and professional in giving his evidence and in some cases had notes to rely on. There was no reason to disbelieve Mr. Waghorn’s version of events.

[90] Mr. Waghorn was aware that Mr. Brunsdon owned the home. He met with Ms. Ulch in 2010. He kept notes of that meeting. I accept his evidence that he told Ms. Ulch that there ought to be a cohabitation agreement between she and Mr. Brunsdon in order to protect her investment in the property. He told Ms. Ulch to obtain a valuation of the subject property prior to the renovations and again following completion of the renovations. He told Ms. Ulch to then speak with Mr. Brunsdon in order to come to an agreement on percentage ownership. Ms. Ulch, unfortunately, did not heed this advice. She did not obtain the valuations suggested by Mr. Waghorn and she did not speak with Mr. Brunsdon about an appropriate percentage of their respective ownership interests.

[91] When Mr. Waghorn handled the transfer of the property into the parties’ joint names, I find that he explained the difference between ownership as joint tenants and ownership as tenants in common. I also find that he told the parties that each would own 50 percent of the property unless a different ownership percentage is identified in the transfer documentation. There was no such different ownership percentage identified.

[92] Given the foregoing, I conclude that the parties’ expectation was that they would each own one half of the property. That conclusion is borne out in a consideration of the manner in which the two parties conducted themselves throughout their relationship and throughout the projects described above. There was contribution by both parties to their relationship, their expenses and the cost of the projects. Although Ms. Ulch contributed far more financially than did Mr. Brunsdon, Mr. Brunsdon contributed his labour, his initial equity in the property and the monies that he had. The only discussion that the two parties had was as described by Ms. Ulch, namely that her investment would be protected. The transfer to the parties’ joint names occurred in 2011, when the bulk of the renovation project was completed. In my view, the transfer of the property into the parties’ joint names with each to own a one-half share was, in the parties’ expectation at the time, the way in which Ms. Ulch’s interest was to be protected.

[93] I also consider that Ms. Ulch took control of the financing of the various projects. She made the arrangements and signed agreements with contractors. She arranged for all the payments. When the property was transferred into joint names and the mortgage refinanced, the proceeds of the refinancing were deposited into Ms. Ulch’s bank account. When the parties had a dispute with a neighbour, Ms. Ulch took control and resolved the matter. In my view, the evidence is clear that Ms. Ulch made the bulk of the decisions during the various renovation projects. Mr. Brunsdon followed her lead.

[94] In all of the circumstances, particularly given the finding that the reasonable expectation of the parties was that they would each own one half of the property, in the event there was an enrichment in respect of the subject property the third requirement, absence of juristic reason is not satisfied.

Harley-Davidson

[95] I come to the opposite conclusion in respect of the Harley-Davidson motorcycle.

[96] The Harley-Davidson motorcycle was purchased in June 2008. Ms. Ulch contributed the sum of $24,900 to the motorcycle, approximately 85 percent of the total cost of $28,466.22. It was registered in Mr. Brunsdon’s name. He took it upon himself to take the motorcycle after the parties separated. In the case of the motorcycle, clearly there was an enrichment by Mr. Brunsdon and a corresponding deprivation by Ms. Ulch. Ms. Ulch did not use the motorcycle – only Mr. Brunsdon did. I can think of no juristic reason for the enrichment and corresponding deprivation.

[97] Mr. Brunsdon claims that the value of the Harley-Davidson at the time the parties separated was $14,000. Ms. Ulch does not dispute the value. In my view, the appropriate remedy for the enrichment would be for Mr. Brunsdon to pay to Ms. Ulch 85 percent of the value of the vehicle at the time of separation, namely $11,900.

The Vehicles and Chattels

[98] The parties are agreed that the Honda Pilot motor vehicle ought to be transferred from their joint names to Ms. Ulch. The parties are agreed that the remote-control car and accessories ought to be provided to Joel.

[99] Mr. Brunsdon seeks the return of a number of chattels that he was unable to remove given the circumstances of his ouster from the home. Some of those chattels, namely the gun and gun case, TV, sound system, DVD and accessories and outside speaker system were purchased by Ms. Ulch. In my view, Mr. Brunsdon ought to be entitled to retrieve those articles that belong to him, including his sporting equipment and tools, that were not purchased by Ms. Ulch. Ms. Ulch ought to be entitled to retain the items she paid for. Moreover, Mr. Brunsdon ought to be entitled to retrieve those items that he purchased before Ms. Ulch and her children moved into the subject property. Lastly, Ms. Ulch ought to repay to Mr. Brunsdon the sum of $700 being the cash that she acknowledges he left in the home at the time of his ouster.

Debt

[100] The evidence of the parties was that they used Ms. Ulch’s Visa card together. Mr. Brunsdon had a second card on the Visa account. In addition, the parties used Ms. Ulch’s line of credit to cover expenses incurred both to finance their lifestyle and to complete renovations at the property. Mr. Brunsdon should pay one half of both of these debts outstanding as at July 1, 2014, the date by which the parties were in the process of separating. The line of credit statements indicate the amount outstanding on July 1 was $7,837.14. Mr. Brunsdon’s one-half share is $3,918.57. I do not have a Visa statement as at July 1, 2014. The closest statement shows a balance of $5,533.82 as at March 4, 2014. In her financial statement, Ms. Ulch claimed the Visa debt as at the date of separation to be $18,000, however she also claimed the line of credit balance at the date of separation to be $21,000. Accordingly, I am unable to conclude that the Visa debt as of July 1, 2014 was $18,000 as claimed. I am satisfied that it would have been at least the amount set out in the March 2014 statement. Accordingly, Mr. Brunsdon’s one half share is $2,766.91.

[101] Mr. Brunsdon did not claim occupation rent, nor did he claim reimbursement for the mortgage payments he made after he was ousted from the property. Ms. Ulch did not claim reimbursement for carrying costs, including the mortgage, from the time that Mr. Brunsdon stopped paying it. It seems to me that any occupation rent could be offset by carrying costs and, in any event, in the absence of any claim, I make no orders in that regard.

Disposition

[102] I calculate the amount owing from Mr. Brunsdon to Ms. Ulch to be $17,885.48. This is the total of $11,900 owing for the Harley-Davidson motorcycle, plus $3,918.57 being Mr. Brunsdon’s one-half share of the line of credit debt, plus $2,766.91 being Mr. Brunsdon’s one-half share of the Visa debt less $700 being the monies he left in the home.

[103] I order as follows:

1. The subject property shall be listed for sale and sold with the net proceeds, after payment of the mortgage and costs of sale, divided equally between the parties subject to payment by Mr. Brunsdon to Ms. Ulch of the sum $17,885.48 from his one-half share of the proceeds.
2. The Honda Pilot shall be transferred to Ms. Ulch.
3. The remote-control car and all accessories shall be given to the respondent’s son Joel.
4. Mr. Brunsdon shall be entitled to collect those of his personal possessions that were not paid for by Ms. Ulch, including his sporting equipment and tools, along with the chattels he owned prior to the date that Ms. Ulch and her children moved into the subject property.
5. In the event counsel are unable to agree on the particulars of the sale, or those items that Mr. Brunsdon is entitled to collect, they may contact trial coordination in order to arrange for a conference call with me.
6. In the event the parties are unable to agree on costs, they may make written submissions, to include a cost outline and any applicable offers to settle, according to the following timelines: a) the applicant shall provide his submissions within 20 days; b) the respondent shall provide her submissions within 20 days thereafter; c) the applicant may provide any reply submissions within 10 days thereafter.

Original signed by “ Justice Pamela L. Hebner ” Pamela L. Hebner Justice

Released: July 5, 2019