COURT FILE NO.: CV-17-1811
DATE: 20191218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ZENAIDA THOMPSON
Plaintiff
– and –
ROMAN SWIETLINSKI, Estate Trustee Without a Will of the Late John Swietlinski, ROMAN SWIETLINSKI and STEFANIA SWIETLINSKI
Defendants
Roger A. Gosbee for the Plaintiff
Taras Hrycyna and Daniel Hrycyna for the Defendants
HEARD: November 25, 27, 28, 29 and December 3 and 4, 2019
REASONS FOR JUDGMENT
BOSWELL J.
INTRODUCTION
[1] John Swietlinski’s heart gave out on June 8, 2017. He was fifty-nine years old. This case involves a fight over what he left behind between those he left behind.
[2] At the time of his death John Swietlinski owned a house and a Toyota Rav4 automobile. He had about $250,000 in his chequing account, $38,000 in a registered retirement savings plan and $31,500 in a tax-free savings account (TFSA). He also owned a policy of life insurance with a face value of $180,000.
[3] Zenaida Thompson was John Swietlinski’s good friend, or she was his common law spouse, or perhaps something in between, depending on whose account one accepts. On his death she received, by designation, the money from his RRSP and TFSA accounts, as well as the $180,000 in life insurance proceeds.
[4] Going forward, and despite my usual practice, I will refer to Mr. Swietlinski by his first name only. I will do so because these reasons refer to four different Mr. Swietlinksis and unless I use first names, things will get pretty confusing. I will apply the same convention to Ms. Thompson for consistency.
[5] Zenaida comes before the court arguing that equity demands that she receive more from John’s estate than what she received through beneficiary designations. She seeks a declaration that she is the owner of John’s house and automobile by way of a constructive trust interest in both. She has been living in the house and driving the vehicle since John’s death.
[6] Roman Swietlinski is John’s brother and the administrator of his estate. By his account, Zenaida was no more than John’s girlfriend. He says her financial circumstances have been substantially improved as a result of her relationship with John and she is entitled to nothing more from the estate. The estate counterclaims for the return of the automobile, vacant possession of the house and occupation rent from June 2017 until the present.
THE LEGAL FRAMEWORK
[7] In her Statement of Claim, Zenaida seeks a declaration that the defendants hold John’s former home – 634 Lakelands Avenue, Innisfil – in trust for her pursuant to the doctrines of constructive and resulting trust.
[8] In final submissions, her counsel pressed only the claim to a constructive trust.
[9] The constructive trust is a settled part of the law of equity. It is a proprietary remedy imposed, at times, to remediate unjust enrichment.
[10] Remedies based on the equitable doctrine of unjust enrichment were first recognized in Canadian jurisprudence in 1954 in a contracts case called Deglman v. Guaranty Trust Company, 1954 2 (SCC), [1954] S.C.R. 725. In the 1970s the doctrine found its footing in the arena of domestic relationships through cases including Murdoch v. Murdoch, 1973 193 (SCC), [1975] 1 S.C.R. 423 (in particular the dissenting judgment of Laskin J., as he then was), Rathwell v. Rathwell, 1978 3 (SCC), [1978] 2 S.C.R. 436 and Pettkus v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834.
[11] In Pettkus, Dickson J., as he then was, cemented the availability of the constructive trust to remedy situations of unjust enrichment arising in common law spousal relationships, stating, at pp. 850-851:
The equitable principle on which the remedy of constructive trust rests is broad and general; its purpose is to prevent unjust enrichment in whatever circumstances it occurs.
[12] Justice Dickson also made clear in Pettkus, the three essential elements upon which an unjust enrichment claim must be grounded:
(a) An enrichment;
(b) A corresponding deprivation; and,
(c) The absence of any juristic reason for the enrichment.
[13] More recently, the doctrine of unjust enrichment and its application to domestic cases were addressed by the Supreme Court in Kerr v. Baranow, 2011 SCC 10. Cromwell J. wrote the decision for a unanimous court. He canvassed the by now well-known elements of a claim of unjust enrichment at paras. 36-41, instructing that:
(a) The enrichment element requires the plaintiff to establish that she gave something of benefit to the defendant which the defendant retained;
(b) The corresponding deprivation element requires the plaintiff to establish that the defendant was not only enriched, but that the enrichment corresponds to a deprivation suffered by the plaintiff; and,
(c) The absence of juristic reason element requires the plaintiff to establish that there is no reason in law or justice for the retention by the defendant of the benefit in issue.
[14] Courts take a straightforward economic approach to the first two essential elements. (Kerr, para. 37).
[15] In terms of the third element – the absence of a juristic reason – trial judges are instructed to apply a two-stage analysis. There are certain established categories of juristic reasons known to the law. They include contracts, dispositions of law, gifts, and any common law, equitable or statutory obligations. At the first stage, if the plaintiff can establish that none of the recognized established categories applies, then she has made out a prima facie case of unjust enrichment.
[16] The prima facie case is rebuttable. Therefore, at the second stage, at the behest of the defendants, the court may consider all of the circumstances of the case to determine whether there is any other reason to deny recovery. The legitimate expectations of the parties and any moral or policy-based arguments as to why the enrichment in issue is not unjust may be considered at this stage. (Kerr, paras. 43-44).
[17] Where an unjust enrichment is established, the court must consider the appropriate remedy from two options: a monetary award or a proprietary one.
[18] The presumption is that a monetary remedy will be awarded. (Kerr, paras. 46-47). But where a monetary award is either inappropriate or insufficient, an interest in property may be ordered, provided the plaintiff can demonstrate a sufficiently substantial and direct link, or causal connection, between the plaintiff’s contributions and the acquisition, maintenance, preservation or improvement of the property in issue. (Kerr, paras. 50-51; Peter v. Beblow, 1993 126 (SCC), [1993], 1 S.C.R. 980 at p. 995).
[19] Where a monetary award is made, questions inevitably arise as to how it should be valued. Historically, monetary awards were valued on either a quantum meruit, or fee-for-service, basis, or on a “value-survived” basis. But as Cromwell J. observed in Kerr, remedies for unjust enrichment are flexible. The goal in domestic cases is to “attach just consequences to the way the parties have lived their lives.” (Kerr, para. 88).
[20] The task of the court in each case is to “properly characterize the nature of the unjust enrichment giving rise to the claim.” (Kerr, para. 80). In some cases, a propriety remedy – manifested in the recognition of a constructive trust – may be appropriate. In others, a monetary remedy valued on a quantum meruit basis may be appropriate. There may, however, be some claims that do not lend themselves well to a proprietary or fee-for-services remedy. This may often be the case in domestic relationships.
[21] Domestic relationships may sometimes be appropriately characterized as joint family ventures, whether parties were legally married or not. A party to a joint family venture may be entitled, in equity, to a proportionate share of the wealth accumulated during the duration of the relationship, commensurate with his or her contributions to the accumulation of such wealth.
[22] In this case, the focus of the evidence and the parties’ submissions was on whether there was a joint family venture and whether John’s estate has retained a disproportionate share of the wealth accumulated during the relationship.
[23] Where a joint family venture is established in the evidence, the court will seek to determine the plaintiff’s proportionate share of the wealth accumulated during the relationship, based on the plaintiff’s proportionate contributions to the accumulation of that wealth. Any monetary remedy awarded will reflect that proportionate share. (Kerr, paras. 80, 81 and 85).
[24] Determining whether a joint family venture existed is a factual matter. The court will look to factors that include mutual effort, economic integration, actual intent and the prioritization of the family. (Kerr, paras. 89-99).
[25] It is axiomatic that long term domestic relationships involve a great deal of give and take. Unjust enrichment analyses must take into account the fact that enrichments are not typically a one-way street. If the court concludes that unjust enrichment has been made out, then it is appropriate, at the remedy stage, to take into account any off-setting benefits received and retained by the plaintiff in the course of the relationship.
[26] If the court finds that a joint family venture has been made out and calculates a monetary remedy on a value-survived basis, then off-setting benefits will be inherently accounted for in the determination of the plaintiff’s proportionate share of any wealth accumulated during the relationship.
[27] On the other hand, if the court uses a fee-for-service calculation to assess a monetary remedy, then it is necessary to account for any mutual exchange of benefits. (Kerr, paras. 102-103).
THE PARTIES’ POSITIONS
The Plaintiff
[28] Stated broadly, Zenaida asserts that John’s estate has been unjustly enriched at her expense. She seeks a proprietary interest in the Lakelands property and the Rav4 by way of remedy.
[29] It is important that I spend a little time trying to clarify Zenaida’s position because what was pleaded and what was presented at trial are different.
[30] In her pleadings, Zenaida sought a declaration that she is the sole beneficial owner of 634 Lakelands Avenue, Innisfil by virtue of a constructive or resulting trust. She did not seek an ownership interest in the Rav4, nor did she seek a monetary award as an alternative remedy to a declaration of trust.
[31] Zenaida alleged, in her Statement of Claim, that she made direct contributions to the maintenance, preservation and improvement of the Lakelands property. She alleged that she painted the residence, furnished it, replaced kitchen tiles, changed light bulbs, repaired a door, mowed the lawn and shoveled the snow. She described the Lakelands property as being “acquired and used as a joint family venture” at paragraph 2 of the Claim.
[32] It is apparent that Zenaida misunderstands the concept of a joint family venture. The phrase “joint family venture” denotes a particular model of domestic relationship. One might reasonably describe the acquisition and use of a residence in the context of a joint family venture, but it is incorrect to describe acquiring and using a piece of realty as a joint family venture.
[33] A narrow reading of Zenaida’s claim would tend to limit it to a claim to a constructive trust interest in the Lakelands property based on her direct contributions to its preservation, maintenance and improvement. The way she presented the claim at trial was much broader.
[34] At trial, Zenaida spent considerable effort establishing that John was unjustly enriched not only by her direct contributions to the maintenance, preservation and improvement of the Lakelands property, but also by caregiving services she provided to John’s brother, Neal, and his father, Jan. Zenaida said she spent the better part of two years transporting John’s brother, Neal, to and from the hospital for cancer treatments. She said she did so five days per week and generally spent weekends at Lakelands. After Neal’s death in December 2014, she assisted John’s father, Jan Swietlinski, who was ill, by regularly taking him to medical appointments and to a local mall, where he liked to walk and scratch lottery cards.
[35] Zenaida essentially asserted at trial that she and John were partners in a joint family venture. She detailed all of the contributions she made to that joint family venture over a decade. She claims that those contributions entitle her to a proportionate share of the assets accumulated during the course of the joint family venture. She claims that John’s estate has retained a disproportionately large share of the wealth accumulated during the joint family venture.
[36] Zenaida did not press the claim to a resulting trust interest in the Lakelands property at trial. While her counsel continued to press the constructive trust claim, I am of the view that this was a mischaracterization of what Zenaida is really pursuing.
[37] I understand Zenaida’s position to be as follows:
• She and John were partners in a joint family venture;
• She made significant contributions to that joint family venture which included direct contributions to the maintenance, preservation and improvement of Lakelands as well as to the care of John’s family members;
• Her contributions to the joint family venture entitle her to a proportionate share of the assets accumulated during the course of that venture;
• She received less than her proportionate share following John’s death; and,
• Her proportionate share, in her view, includes the monies she has received through the beneficiary designations I described above, plus the entire value of the Lakelands home and John’s automobile.
[38] As I indicated, the case presented by Zenaida at trial was different than the case set out in the Statement of Claim.
[39] Defendants are, as a matter of procedural fairness, entitled to insist that cases be disposed of on the basis of issues raised in the pleadings. See 460635 Ontario Ltd. v. 1002953 Ontario Inc., 1999 789 (ON CA), 1999 CarswellOnt 3428 (C.A.). That said, the Statement of Claim is clear that Zenaida seeks a remedy for unjust enrichment. She referenced being entitled to an interest in the Lakelands property based on a joint family venture. The way the claim was set out could have been clearer, but I am satisfied that the defendants are not prejudiced by the broader manner in which the claim was presented at trial.
[40] The defendants engaged on all issues raised by Zenaida at trial. They were not deprived of an opportunity to address any live issues in the evidence adduced at trial. They did not protest that Zenaida presented a case that went beyond the boundaries of her pleadings.
The Defendants
[41] The defendants’ position is the polar opposite of Zenaida’s.
[42] The defendants deny that John and Zenaida were common law spouses or that they were partners in a joint family venture. They assert that they were, at best boyfriend and girlfriend.
[43] The defendants deny that John’s estate has been unjustly enriched. They acknowledge that Zenaida made some improvements to the Lakelands property and that she assisted both Neal and Jan Swietlinski with end-of-life care. They appear to implicitly acknowledge some enrichment of John. But they assert that Zenaida has not suffered any corresponding deprivation. During much of her relationship with John, she was receiving disability benefits. She did not lose income, switch jobs, miss time from work or suffer any other financial deprivation.
[44] Even if the court were to conclude that John, or his estate, has been unjustly enriched, the defendants submit that no remedy is called for. They point to the mutual exchange of benefits between John and Zenaida. During John’s lifetime, Zenaida received the benefit of the use of the Lakelands property free of charge, for herself and her family members. On John’s death, she received financial benefits totaling very close to $250,000.
[45] The defendants contend that Zenaida has been adequately compensated, whether on a quantum meruit basis or on the basis of a proportionate share of the wealth accumulated during the purported joint family venture.
[46] The defendants ask that Zenaida’s claim be dismissed. By way of counterclaim, they seek possession of the Lakelands property and the Rav4, as well as compensation for the use and occupation of the home and vehicle since John’s death. The counterclaim also seeks reimbursement for a CPP death benefit apparently received by Zenaida, but that relief was not pursued at trial.
THE ISSUES
[47] The facts and circumstances of this case, and the positions taken by the parties, raise the following issues for determination:
(i) Was John Swietlinski enriched by the contributions of Zenaida Thompson?
(ii) Did Zenaida Thompson suffer a corresponding deprivation?
(iii) Is there a juristic reason for any enrichment found to exist?
(iv) Is the appropriate remedy in this case monetary or proprietary?
(v) Was there a joint family venture?
(vi) If the answer to (v) is yes, has the estate of John Swietlinski been left with a disproportionate amount of the wealth generated by that joint family venture?
(vii) If the answer to (v) is no, what is the value of Zenaida Thompson’s claim on a quantum meruit basis?
(viii) Is the estate entitled to possession of the house and automobile and to occupation rent?
[48] I intend to review the issues in sequence. Before doing so, I will set out some of the basic factual background that is necessary to put the case into context. I will reference the facts in further detail as and when they become relevant on an issue-by-issue basis.
THE BASIC FACTUAL FRAMEWORK
[49] Zenaida Thompson was born in March 1960 in Portugal. She came to Canada with her family in the late 1960s. They settled in a neighbourhood in the west end of Toronto. The Swietlinski family lived several doors down from them on the same street.
[50] John was born in July 1957. He was the youngest of three boys born to Stefania and Jan Swietlinski. His brother, Neal, was about four years older than him. His oldest brother, Roman, was roughly ten years older.
[51] Zenaida and John began to date when she was fourteen and he was seventeen. Their relationship ended three years later when John suddenly moved away and she lost touch with him. The reason for his sudden departure had to do with his brother, Roman. Roman murdered a young woman in an attack of such arresting violence that it became a case of some notoriety. John moved out of his neighbourhood as a result of embarrassment.
[52] John remained unmarried his whole life.
[53] Zenaida went on to form a relationship with a man named Richard Durant. They had three children together: Althea, Richard and Alpha. The relationship proved not to be permanent.
[54] Zenaida never forgot about John. In the Spring of 2006 she and her cousin tracked him down. He was working at a cemetery in Etobicoke. She went to see him at work. They reconnected immediately and maintained a relationship right up until his death in June 2017.
[55] In 2006 John was living with his parents and his brother Roman in a home at 31 Paulart Drive in Etobicoke. Zenaida was living with her son, Alpha, in an apartment on Melita Avenue in Toronto.
[56] On November 10, 2006 John and Neal purchased 634 Lakelands Avenue in Innisfil for $178,000. They took title as joint tenants. I will address the source of the purchase funds a little later in these reasons.
[57] None of the Swietlinksi family used the Lakelands property save for John. For all intents and purposes, it appears to have been his home.
[58] John worked at the cemetery from May to December each year. He orchestrated his vacation days in such a way as to work typically three or four days per week. In other words, instead of taking blocks of vacations, he used his vacation days so that he had three or four day weekends each week. He generally stayed at the Paulart Drive property when he was working and at the Lakelands property when he was not.
[59] John did not work between December and May each year and spent his winters at Lakelands.
[60] The extent to which Zenaida occupied the Lakelands property is a live issue in these proceedings and I will come to it shortly.
[61] On July 19, 2010 Neal transferred his interest in Lakelands to John. John became the sole registered owner of the property at that point and continued in that capacity until his death.
[62] Neal died on December 29, 2014 after suffering with cancer for about two years.
[63] Jan Swietlinski died on January 10, 2017.
[64] John died on June 8, 2017. Since that time, Zenaida has occupied Lakelands and has covered all of its carrying costs.
[65] With this general background in place, I will turn to an examination of the issues that must be determined in order to resolve this dispute.
DISCUSSION
Issue 1: The Enrichment
[66] There is no doubt that John was enriched by Zenaida’s efforts. The enrichment is reflected in two broad categories:
(a) Maintenance and improvement of the Lakelands property; and,
(b) Caregiving services to Neal and Jan Swietlinski.
[67] I will elaborate on both.
Maintenance and Improvement of Lakelands
[68] Zenaida testified that when Lakelands was first acquired, she made a number of repairs to it, including:
• Painting;
• Replacing the kitchen tiles;
• Resurfacing and painting the kitchen cupboards; and,
• Installing a garden shed.
[69] There is no significant dispute taken with Zenaida’s assertion that she did the work I just described. That said, I have no idea what the value of that work is. Unsurprisingly, Zenaida did not keep receipts for any materials she purchased, nor did she keep track of her time spent. No appraisal was obtained regarding the value of the work, nor any photographic evidence tendered that might provide a better sense of its scope.
[70] Nevertheless, I accept that the work was completed by Zenaida and that it has some value. John was enriched by it.
[71] I also accept that there were times when Zenaida mowed the lawn and other times when she shoveled the snow in the driveway. I further accept that she maintained the gardens.
[72] I am in no position to say how many times Zenaida mowed the lawn or shoveled. She did not give an estimate of the number of times she did either task. I lack a sense of how significant an undertaking cutting the grass was. I was provided with some photographs which reflect the size of the driveway, but do not show the gardens or the rear yard.
[73] Several neighbours testified about whether they saw, or did not see, either Zenaida or John out mowing the lawn or shoveling the driveway. I found their evidence singularly unhelpful. None of them spent the last decade surveilling the Lakelands property. Their observations were spotty at best.
[74] Zenaida testified that John could not do lawn or driveway maintenance because of a heart condition. I take away from her evidence that she primarily completed these tasks. Even if that were true, I have no indication of what her services might be worth. It would have been helpful, for instance, to have evidence of what lawn maintenance and snow removal firms would have charged to do the work she claims to have done.
[75] Again, I accept that Zenaida did work on the gardens, lawn and driveway. John was enriched by her efforts. I cannot say by how much.
[76] Finally, I find that Zenaida paid John the sum of $17,000 in March 2013. She received those funds as part of a settlement with the Workers Safety Insurance Board. She provided them to John to use, as he saw fit, in connection with the house. John was enriched by that $17,000.
[77] I note that Zenaida gave evidence about purchasing furniture for the home. To the extent that she did so, the furniture is hers and she is entitled to its possession and use. It is not an enrichment of John or his estate.
Caregiving Services
Neal
[78] There is no dispute that Zenaida assisted Neal as he became more and more ill with cancer. What is in dispute is the amount of time Zenaida spent assisting Neal and whether she received any compensation for doing so.
[79] Zenaida testified that, at John’s request, she took Neal to Princess Margaret Hospital for blood transfusions every day, save Saturdays and Sundays, for over two and a half years. She said some days it would be as early as six or seven in the morning. Often they would be there all day. They would then grab something to eat and she would take him home. He sometimes offered to pay her, but she said she refused. Occasionally, she said, John would put gas in her car for her.
[80] After Neal died, Zenaida bought him a new suit, shirt and tie to be buried in.
[81] There is conflicting evidence about how long Neal was in treatment for his illness. As I noted, Zenaida testified in direct examination that she took Neal to the hospital five days a week for a period of two and a half years. In cross-examination, however, Zenaida said that Neal was diagnosed with cancer about two years before his death.
[82] Roman testified that Neal was diagnosed with cancer in 2013. The diagnosis, he said, came not long after his mother suffered a stroke, which was in April 2013. According to Roman, Neal drove himself to the hospital for the first year or so. He agreed that Zenaida began to take Roman, but said it was only during the last several months of his life and even then, amounted to just three or four times.
[83] Roman also said that Zenaida got paid for taking Neal to the hospital. He said that he, Neal and John had a meeting at 31 Paulart. It was in Neal’s room. John said he wanted Zenaida paid for taking Neal to the hospital. He had 10 little envelopes with money in them. He said whenever she took Neal to the hospital, he wanted her paid.
[84] Zenaida denied ever being paid for the assistance she gave to Neal.
Jan
[85] Zenaida testified that, following Neal’s death, she was asked by John to help out his father. A difficulty for the Swietlinski family was that Roman did not drive and both parents were incapacitated. Zenaida said that for the two years after Neal died – up to the point of Jan Swietlinski’s death – she assisted Jan at least five days per week by taking him to medical appointments and to the Cloverdale Mall where he liked to walk and to play scratch cards. Again, she said she was not paid for those efforts, though she said John continued to put gas in her car occasionally.
[86] Roman testified that he used to take his mother to the Cloverdale Mall every day. Occasionally, he said, Zenaida would take his father there. He said that after Neal died, they arranged for his father to take taxis to Cloverdale. Later they trained him to take the bus. After about a year, however, he fell getting off the bus and John insisted that Zenaida would take him after that.
[87] Roman did not specify how often Zenaida took Jan to the mall. He said, however, that his father would pay her for doing so. He said he observed her getting paid thirty dollars once. Other times she would get more, he said, though it was not clear what his source of that information was.
[88] There is no way for me to be certain about just exactly how often Zenaida took Neal to the hospital, or how many hours she waited, or how much time she spent ferrying Jan to his appointments and to the mall. Even if I could say with anything approximating precision how much time was involved, I have no evidentiary basis upon which to value that time.
[89] Obviously, each side urges me to find that their account of events is more credible and reliable.
[90] Zenaida’s counsel argued that Roman was not a credible witness because, amongst other things, he has a criminal record for first degree murder. While I am certainly entitled to consider Roman’s criminal record as part of my assessment of his credibility, it is not a particularly strong factor, in my view. The murder, while horrifically violent, occurred almost fifty years ago. Roman spent twenty-five years in prison. He has no other criminal offences on his record. When released from prison in 2001, he immediately obtained full-time employment in a warehouse. He has worked hard, stayed out of trouble and cared for his parents in the almost twenty years since his release. I am not persuaded that this one ancient offence, as egregious as it was, says a whole lot about his credibility in 2019.
[91] That said, I have some concerns about the accuracy of some of Roman’s testimony. In my view, he has understated Zenaida’s contributions to his brother and father. For instance, he described, as I noted, a meeting he had with John and Neal during which John insisted that Zenaida be paid for the times she took Neal to the hospital. If she had assisted Neal just three or four times over as many months, as Roman suggested she did, it seems highly unlikely to me that such a meeting would ever have occurred.
[92] There is clearly no love lost between Roman and Zenaida. Moreover, Roman is the person who stands to gain the most should Zenaida’s claim be unsuccessful. In my view, Zenaida contributed to the care of his father and brother substantially more than he allows.
[93] On the other hand, I am not satisfied that Zenaida assisted as much as she suggested in her testimony.
[94] Clearly she did not assist Neal until after he was diagnosed with cancer. She was not clear in her evidence about when that was. Roman was able to pin it down to a point shortly after his mother had a stroke, which was in April 2013. I accept that evidence. In doing so, it means it is impossible that Zenaida ferried Neal back and forth from the hospital for two and a half years. Recall that Neal died in December 2014.
[95] Zenaida was a little cavalier in her testimony about just how long she had been assisting Neal. At one point she described it only as “a long time”. Later she said that it was about two years. Later still she said it was more than two and a half years. In cross-examination she said that Neal was diagnosed with cancer about two years before his death. That answer was reasonably consistent with Roman’s evidence about the timing of the diagnosis.
[96] I do not know exactly where the truth lies. It is undoubtedly somewhere between the accounts given by each of Zenaida and Roman, though I tend to believe it was closer to Zenaida’s account. By Roman’s account, Zenaida did very little for Neal and little for her father, which she was, in any event, compensated for. I found his evidence on this point unconvincing, self-serving and not in harmony with the probabilities of the case on the whole.
[97] I find that Zenaida made significant contributions to the Swietlinski family through the care she provided to Neal and to Jan. I find that the whole Sweitlinski family was enriched by her efforts, including John.
[98] One might reasonably argue that Zenaida’s caregiving efforts benefited Neal and Jan more than they benefitted John. But John had a close-knit family. The only family member capable of driving Neal and Jan around was John. Having Zenaida perform those tasks freed John up to continue working and earning an income. Moreover, knowing that his family members were being cared for would have been of significant psychological value to John.
Issue 2: The Deprivation
[99] Although I am, again, unable to attribute particular figures to the amounts contributed by Zenaida, save for the $17,000 lump sum payment, I am satisfied that Zenaida suffered deprivations that correspond to the enrichments received by John. There was a cost to her in money and labour in completing improvements to the home. There was a cost to her in labour in mowing the lawns, shoveling the driveway and tending to the gardens.
[100] Roman’s counsel argued that Zenaida did not suffer a deprivation in relation to the time she spent providing care to Neal and Jan. He submitted that because Zenaida was off work for reasons of disability she did not lose time from work, lose income, or have to give up opportunities of advancement. Moreover, according to Roman, she was paid for both taxiing Neal to and from the hospital and for taking his dad to the mall.
[101] I have two comments.
[102] First, I am not satisfied that Zenaida was paid anything for assisting Neal. Even if a meeting did take place between Neal, Roman and John regarding compensating Zenaida, I have no evidence that any money was actually provided to her.
[103] In terms of the assistance she provided to Jan, at best I have Roman’s observation that his father paid Zenaida thirty dollars on one occasion. His suggestion that she received more at other times was vague and, in my view, purely speculative.
[104] Second, I find that Zenaida spent many hours providing care. Those are hours that she could have been doing many other things – things that would have enriched her own life in other ways. There was clearly a deprivation.
Issue 3: The Absence of a Juristic Reason for the Enrichment
[105] The defendants did not assert that any of the established categories of juristic reasons apply and I find that none do. In other words, Zenaida has made out a prima facie case of unjust enrichment.
[106] No argument was made that other circumstances were present here that might support a finding of a juristic reason for the enrichment. The prima facie case has not been rebutted.
Issue 4: A Monetary or Proprietary Remedy?
[107] In terms of remedies, I have essentially three options: (1) a propriety interest the Lakelands property and the Rav4 based on a constructive trust; (2) a monetary award calculated on a quantum meruit basis; or (3) should I be satisfied that a joint family venture has been established, a monetary remedy valued as a proportionate share of the wealth accumulated during the duration of the relationship.
[108] Zenaida’s counsel correctly observed that the presumptive remedy for unjust enrichment is a monetary one. He submitted, however, that this is an appropriate case for a constructive trust interest to be imposed on the Lakelands residence. I am of the view that counsel’s submission is misguided for a number of reasons.
[109] The assertion that this is an appropriate case for the imposition of a constructive trust is inconsistent with the general thrust of the case Zenaida’s counsel presented at trial. As I described earlier, the position advanced by Zenaida at trial was that she and John were partners in a joint family venture. She went to significant pains to detail all of the contributions she made to that joint family venture over the years. Some of those contributions were substantially connected to Lakelands. Others were not.
[110] In assessing the value of the alleged unjust enrichment, Zenaida undoubtedly wants the court to factor in the time she spent caring for Neal and Jan Swietlinski. Those contributions were not linked to Lakelands. They can only, at best, give rise to a monetary remedy.
[111] Moreover, Zenaida failed to produce any evidence of the value of her contributions to Lakelands, save for the one-time, lump sum payment of $17,000. She did not adduce any evidence of the current value of Lakelands. There is no means by which I could calculate her proportionate beneficial ownership interest in Lakelands even if I were inclined to impose a constructive trust, which I am not. If Zenaida’s position is that it is self-evident that her contributions to the maintenance, preservation and improvement of the property entitle to her a 100% ownership interest in it, then she is wrong.
[112] A monetary award is the presumptive remedy. Courts will only award a constructive trust interest where the plaintiff satisfies it that a monetary award would be insufficient in the circumstances and that there is a substantial and direct link between her contributions and the acquisition, preservation, maintenance or improvement of the property. See Martin v. Sansome, 2014 ONCA 14 at para. 48. I note that it was not argued that the defendants are judgment proof or that Zenaida would otherwise have difficulty collecting any monetary judgment in her favour.
[113] Zenaida has not otherwise satisfied me that a monetary award would be insufficient in the circumstances of this case.
[114] If a remedy is to be awarded, it will be monetary in nature. The focus turns therefore to whether any monetary remedy should be calculated on a quantum meruit basis or according to a proportionate share of the wealth accumulated during the duration of a joint family venture.
[115] Zenaida tendered almost no evidence upon which I could value her contributions on a quantum meruit basis. That is to say, if the only means by which a monetary remedy could be calculated was on a fee-for-service basis, Zenaida’s claim would inevitably fail for lack of evidence.
[116] In the circumstances, if a remedy is to be awarded, it must be based on a proportionate share of the wealth generated by an alleged joint family venture, commensurate with Zenaida’s proportionate contributions to the accumulation of that wealth. Such an award depends, of course, on the existence of a joint family venture. I will, therefore, turn to the issue of whether John and Zenaida were partners in a joint family venture.
Issue 5: The Joint Family Venture Argument
[117] The thrust of Zenaida’s case is that she and John were common law spouses for more than a decade. They were life partners and participants in a joint family venture. She claims that she has been left, on John’s death, with a disproportionate share of the wealth accumulated through the joint family venture.
[118] Domestic relationships may take many forms. A joint family venture is just one way in which romantic partners may organize their affairs. It is impossible to precisely define a joint family venture. At its core is a joint recognition of the preeminence of the family unit. Parties in such arrangements typically direct their efforts at the betterment of the family unit. They may integrate their finances. They may have children. They may forego individual opportunities for the sake of the family unit. The may each take on roles and tasks geared towards “creating wealth in a common enterprise that will assist in sustaining their relationship, their well-being and their family life.” (Kerr, para. 81, citing McCamus, John D., Restitution on Dissolution of Marital and Other Interim Relationships: Constructive Trust or Quantum Meruit?, in Jason W. Neyers, Mitchell McInnes and Stephen G.A. Pitel, eds., Understanding Unjust Enrichments, Portland: Hart Publishing, 2004, 359 at p. 366).
[119] Suffice it to say that the assessment of whether a joint family venture existed is necessarily a case-specific and contextual analysis.
[120] This case does not fit easily into the traditional mold. Zenaida and John reconnected in middle-age. They did not have children together, nor did they raise Zenaida’s children together. They did not integrate their finances. They had no joint accounts. They did not share household expenses, save perhaps for groceries. They each kept their own individual residences. John’s was at Paulart with his parents and brother. Zenaida’s was on Melita Drive with her son.
[121] On the other hand, they were a dedicated and apparently monogamous couple. I find that they largely cohabited, though not exclusively.
[122] Their next door neighbour at Lakelands, Mr. Anthony Pascos, thought they were married. He said he typically saw them together at Lakelands. According to him, rarely would one be there without the other. Usually they were there on weekends.
[123] Zenaida’s cousin, Rita Pankhurst, testified that Zenaida and John lived together at Lakelands. She said she visited Zenaida and John at Lakelands on many occasions, both in the summer and in the winter. She said she went tobogganing and ice fishing there.
[124] Ms. Pankhurst also confirmed the improvements that Zenaida made to the home, including painting and resurfacing the kitchen cupboards and redecorating. She said both John and Zenaida shoveled the drive and both cut the lawn, although Zenaida did it more often.
[125] According to Ms. Pankhurst, Zenaida spent less time at Lakelands after her Neal’s illness and Jan’s illness.
[126] Other neighbours, including Antonio Gerbino, Sydney Hardie and Jamie Hardie testified that they saw Zenaida at the Lakelands property much less frequently than John; perhaps several times over the summer and generally not at all during the winter. According to their evidence, Zenaida was rarely at the property.
[127] Zenaida’s son, Alpha Durant, testified that he has lived at 257 Melita Avenue in Toronto for seventeen years. He was living with his mother full-time when she reconnected with John. He testified that his mother and John were living together. He said she would come by Melita once or twice a week to run errands or get her medication, but otherwise stayed up at Lakelands. He said she was at Lakelands the majority of the time.
[128] This is a difficult case to sort out on the evidentiary record placed before me. By some accounts John and Zenaida were essentially living together and by others Zenaida was barely around.
[129] It is nearly impossible to reconcile the accounts of Zenaida, her son Alpha and her cousin, Rita Pankhurst, with those of Roman, Antonio Gerbino and the Hardies. Ultimately, after much consideration, I am satisfied that Zenaida and John were partners in life and formed a joint family venture. I reach that conclusion for the following reasons:
(a) John and Zenaida were clearly in a close and loving relationship. No one suggested otherwise;
(b) When the relationship began, they each had lives in Toronto. Their respective families were in Toronto and they each worked in Toronto. John was living with his parents at Paulart. Zenaida was living with at least one, if not both, of her sons at Melita. It made sense to keep their individual residences even after Lakelands was acquired. Paulart was convenient to John’s work. Zenaida’s son, Alpha Durant, continued to reside at Melita;
(c) I find that John occasionally stayed at Melita and Zenaida occasionally stayed at Paulart;
(d) After Lakelands was acquired, I find that Zenaida and John each spent as much time there as possible. I find that much of that time was together;
(e) Although several neighbours said that they rarely saw Zenaida at Lakelands, I do not put much weight on that evidence. For one thing, as I indicated, I find their observations to have been spotty. For another, I believe the neighbours’ recollections are weighted towards observations they made nearer to the end of the relationship between John and Zenaida. Even on Zenaida’s account, from the time that Neal got sick in mid-2013 to the time of Jan’s death in January 2017, she was at Lakelands much less frequently than in prior years given the care she was providing to Neal and Jan. I expect that the neighbours’ recollections of the years between 2014 and 2017 are much better than they are of 2007 to 2013;
(f) I found Alpha Durant to be a credible and reliable witness. He said his mother spent most of her time at Lakelands after she and John reconnected. I have no reason to disbelieve him. He would be in a much better position than any of the neighbours in Innisfil to know where his mother was on a week-by-week basis;
(g) It only makes sense that two mature adults, who were clearly devoted to one another, would want to spend as much time together as possible. I completely reject any suggestion that they spent just a few weekends per summer together and little, if any time, together in the winter;
(h) Zenaida contributed to Lakelands in ways far more consistent with a common law partner than a girlfriend. She renovated the house at her expense. She decorated and furnished it at her expense. She painted it. She put up a shed in the backyard. She had her personal belongings there. She entertained her family and friends there. And she gave John $17,000 to help with the expenses of the home when she got a lump sum payment from WSIB;
(i) Zenaida also dedicated several years of her life to assisting John’s brother and father with their care towards the ends of their respective lives. As a matter of common sense, the level of family commitment that Zenaida displayed is not consistent with a mere girlfriend and is entirely consistent with a life partner; and,
(j) John named Zenaida as the sole beneficiary of his life insurance, his RRSP and his TFSA. He named her his power of attorney for property several days before he died, apparently not knowing he was so close to death. Zenaida clearly occupied a singularly important place in John’s life.
[130] John and Zenaida did not have an entirely conventional spousal relationship. They each maintained individual residences apart from Lakelands. They did not integrate their finances. They each declared their marital status to be “single” on their tax returns.
[131] Having said that, it is important to recognize that the concept of a joint family venture is not a rigid one. The existence of a joint family venture does not depend on the conventionality of the relationship. A more nuanced assessment is required.
[132] John maintained an address at Paulart Drive. But that was the residence of his parents and brother. He had no power to part with it even if he wanted to. He stayed there when he was working because it was convenient to him. I find that he otherwise spent as much time at Lakelands as possible.
[133] Zenaida maintained a residence at Melita Avenue. Recall, however, that Melita is the home of her son, Alpha. He has lived there for seventeen years. He continues to live there. Sometimes it made sense for Zenaida to stay there. Like John, however, I find that she spent as much time at Lakelands as possible.
[134] Lakelands was the shared home of John and Zenaida and they spent as much time there together as circumstances would allow. They were completely immersed in each other’s lives. They travelled together, to the extent that John’s heart condition would allow. They spent Christmases and most New Years Eves together. John was a pall bearer at the funeral for Zenaida’s son, Richie, in 2009. Her son Alpha was a pall bearer at John’s funeral. And of course I have already outlined the substantial care provided by Zenaida to John’s family members.
[135] While I find as a fact that a joint family venture existed, the trickier issue is whether, or to what extent, that joint family venture generated wealth. If so, what is Zenaida’s proportionate share of that wealth?
Issue 6: The Remedy
[136] I find that the period during which Zenaida and John were partners in a joint family venture was from mid-2006 until mid-2017, a period of almost exactly eleven years.
[137] Determining Zenaida’s proportionate share of any wealth generated by the joint family venture requires that I first determine what that wealth consisted of.
[138] Zenaida testified under cross-examination that when she entered the relationship with John she had no significant assets. She rented an apartment. She had little savings. Her only asset of any real value was an automobile, though I have no particulars of what that value might have been.
[139] John entered the relationship with greater assets, though I have insufficient evidence to reach any conclusion about how much those assets were worth.
[140] In November 2006 John and his brother Neal purchased the Lakelands property for $178,000. They paid cash. According to Zenaida, the purchase funds came from John and Neal. I find, however, that she had little knowledge of the particulars of the purchase. She had a vague understanding that Neal may have been indebted to John because of a prior investment deal that went badly. But she could not say more than that. She offered in evidence that she did not think Roman put any money into the purchase price. I find otherwise.
[141] I find that Roman invested $80,000 into the purchase of Lakelands and that John and Neal each invested $50,000.
[142] Roman testified that in October 2006 he had roughly $81,000 in savings in two bank accounts. He said he met with Neal and John and told them that there was no point having a mortgage on Lakelands and that he would invest $80,000 into it. He said Neal and John invested $50,000 each.
[143] Roman produced a bank book that reflects the growth of his savings account at the Ukranian Credit Union. As at early October 2006, the account had a balance in excess of $50,500. On October 20, 2006 he transferred $50,338.76 to his chequing account at the same institution. Following that transfer, he had $81,591.65 in his chequing account. On October 30, 2006 he wrote a cheque to Neal Swietlinski for $80,000.00 to be used towards the purchase of Lakelands.
[144] Roman has produced his bank statements showing the relevant transactions, as well as a copy of his cheque dated October 30, 2006. That cheque cleared his account on November 3, 2006. The Lakelands purchase went through on November 10, 2006.
[145] Zenaida’s counsel urged the court to reject Roman’s testimony on the basis that he did not produce historical records for his chequing account. He urged the court to draw a negative inference of some sort against Roman. Counsel suggested that it was possible that Neal or John had given Roman money to put into his chequing account and that Roman was trying to suppress that information by not producing more fulsome banking records. Those submissions are meritless. They are entirely stochastic in nature and have no evidential foundation.
[146] Having said all of that, the reality is that it does not much matter. Roman is not seeking an ownership interest in Lakelands. The bottom line is that, as at November 2006, for all intents and purposes, John owned a home worth $178,000. Zenaida had, to that point, made no contribution to its acquisition, maintenance, preservation or improvement. The value of Lakelands, at the time it was acquired, was not wealth generated during or created by any joint family venture.
[147] At the time of his death John had a 100% ownership interest in Lakelands. I have no idea what its value was at that time. He also had the following other assets:
(a) Approximately $250,000 in cash;
(b) Approximately $31,500 in a TFSA;
(c) Approximately $38,000 in an RRSP; and
(d) A 2016 Toyota Rav4 automobile.
[148] John’s bank account statements were produced for the period January 2012 to November 2017. In January 2012 he had roughly $6,000 in savings. At the date of his death he had $245,686.29.
[149] John’s accounts reflect the sum of $17,000 paid to him by Zenaida in March 2013. On June 15, 2015 he deposited $102,000. This was roughly six months after Neal’s death. On January 7, 2016 he deposited another $30,000. On March 23, 2016 he deposited further sums of $33,121.34 and $130,463.85.
[150] It is common ground that the substantial growth in John’s savings between June 2015 and March 2016 reflects funds flowing to John from his brother Neal’s estate. There was a suggestion advanced in argument by defence counsel that John held those funds in trust as Neal’s estate administrator. I reject that assertion because there is no evidence to support it.
[151] Again, having said that, the most significant feature of those funds, for the purposes of this case, is that they came from Neal’s estate. They are not properly characterized as wealth generated by the joint family venture.
[152] Neal died intestate. His mother and father were the legal beneficiaries of his estate pursuant to s. 47(3) of the Succession Law Reform Act, R.S.O. 1990 c. S.26. How any portion of his estate funds came to be deposited into John’s personal bank account was not explained. Nevertheless, there is no evidence of any link between any contributions made by Zenaida to the joint family venture and the receipt by John of funds from Neal’s estate.
[153] No evidence was tendered regarding when the savings in John’s RRSP or TFSA were accumulated. The TFSA program was only commenced in 2009 in Canada, so it is safe to say that account did not exist prior to the time when Zenaida and John began their relationship. It is conceivable, however, that John had existing savings that he chose to transfer into the TFSA when that opportunity arose.
[154] I have evidence of the value of the RRSP and TFSA as at the date of John’s death. I have no evidence that those assets existed at the date when the relationship between John and Zenaida began. I must proceed, therefore, on the basis that those accounts represent wealth accumulated during the course of the relationship.
[155] Based on my review of John’s banking records, I conclude that he purchased the Rav4 in March 2016. He obtained a bank draft from his personal account in the amount of $32,500 to pay for it. While it is not reasonably possible to trace the precise source of the $32,500, it is fair to say that it came largely from funds received from Neal’s estate.
[156] In summary, I find that the wealth accumulated during the course of the joint family venture was:
(a) The increase in value of the Lakelands property from $178,000 to whatever it was worth on the date of John’s death;
(b) $38,000 in RRSPs;
(c) $31,500 in a TSFA account;
(d) Some portion of the value of the Rav4. For the sake of argument, I will attribute half of its value to wealth accumulated during the relationship, namely $16,250. The other half I will attribute to funds received from Neal’s estate; and,
(e) Taken at its highest and best, the sum of $17,000 in John’s savings, reflecting the lump sum payment made by Zenaida to John.
[157] Zenaida has received roughly $250,000 following John’s death. Whether that represents a fair proportion of the wealth accumulated during the joint family venture is not possible to say without a current appraised value of Lakelands.
[158] Recall that this is a claim based on unjust enrichment. There is no linkage between Zenaida’s contributions to the joint family venture and the original acquisition of Lakelands or to the funds received from Neal’s estate. It is not unjust for John’s estate to retain those values. There is a tenuous link between Zenaida’s contributions and the increase in value of Lakelands, the acquisition of the Rav4 and to the funds in the RRSP and TFSA. It may be unjust for John’s estate to retain all of those values without paying sufficient compensation to Zenaida.
[159] It is of significance to note that there is no presumption that wealth accumulated during the term of a joint family venture will be shared equally. See Martin v. Sansome, as above, at para. 50. A strong argument could be advanced that John is entitled to a greater proportion of the accumulated wealth because most of it will be attributed to rising real estate values – something largely unrelated to Zenaida’s contributions to the joint family venture.
[160] My view is that Zenaida would, at the very most, be entitled to an equal sharing of the wealth accumulated during the term of the joint family venture. I am not concluding that she is entitled to an equal sharing, but rather that I will use that proportion for the purpose of the calculations that follow. In any event, for the reasons I set out above, the wealth accumulated during the relationship must exclude the purchase value of Lakelands ($178,000) and the funds received from Neal’s estate.
[161] I remain seriously handcuffed because of the absence of any evidence as to the current value of Lakelands. I have, however, engaged in a theoretical exercise to determine just how much Lakelands would have to have increased in value since it was acquired before $250,000 becomes a disproportionately small share of the wealth accumulated during the joint family venture.
[162] If I assume Lakelands tripled in value to $534,000, which I think highly unlikely, I would attribute $356,000 of that to wealth accumulated during the joint family venture. Again, I would deduct the initial purchase price of $178,000 because there is absolutely no link between any contributions made by Zenaida and that original purchase price.
[163] To the sum of $356,000 I would add the RRSPs ($38,000), the TFSA ($31,500), half the value of the Rav4 ($16,250) and $17,000 of John’s savings, being the lump sum paid to him by Zenaida in 2013. In my view, at its highest and best, the total wealth accumulated during the duration of the joint family venture – and which one might reasonably argue Zenaida contributed to – would be $458,750. Half of that amount is $229,375. Zenaida has received more than that proportionate share.
[164] I have not included the life insurance proceeds of $180,000 in the calculation of wealth accumulated during the course of the joint family venture. Apart from the fact that the life insurance had no cash surrender value during John’s lifetime, there is again no linkage between the insurance proceeds and any contributions made by Zenaida to the joint family venture. No argument was advanced to the effect that the life insurance proceeds were, in effect, a gift and should not be considered in the compensation of Zenaida.
[165] As the foregoing analysis signals, I conclude that Zenaida has failed to satisfy me that she is entitled to any remedy for unjust enrichment. John saw to it that she received $250,000 on his death. In addition, she has been able to occupy Lakelands and use the Rav4 for two and a half years since John’s death. In my view, she has been satisfactorily compensated for any unjust enrichment.
[166] In the result, Zenaida’s claim is dismissed.
[167] I make one final observation about Zenaida’s claim. I picked up a strong theme throughout the trial that the court was being asked to decide if it was more fair and equitable that John’s common law spouse receive his house and automobile on intestacy than his murderous and arguably estranged brother. To be clear, this case was not a contest of character. John could have made a will favouring Zenaida. He chose not to. His assets pass on intestacy to his mother. Zenaida’s unjust enrichment claim stood or fell on the basis of the facts and circumstances of the case, the quality of the evidence adduced and an application of the legal principles applicable to claims of this nature.
Issue Seven: The Counterclaim
[168] For the reasons set out above, I find that John’s estate is entitled to possession of the Lakelands property and to the Rav4 automobile. Zenaida is to surrender them within 120 days. Zenaida is entitled to retain the contents of the home, which I am satisfied she either bought herself or she acquired jointly with John.
[169] I am not prepared to award occupation rent. I have not decided this case on a comparison of benefits conferred and received, or what Cromwell J. referred to as “dueling quantum meruits” at para. 81 of Kerr. Instead, I have determined that in light of all of the circumstances, including Zenaida’s continued occupation and use of the home and car following John’s death, Zenaida has been adequately compensated, or at least has not satisfied me that she has been inadequately compensated. Moreover, Zenaida has been maintaining the home and paying for utilities, insurance and taxes, which has been of benefit to the estate.
[170] In the result, the counterclaim is dismissed, save for the order that Zenaida is to surrender possession of the home and car, as I have set out above.
Costs
[171] The parties may make written submissions on the issue of costs. The defendants’ submissions will be due January 15, 2020. The plaintiff’s by January 29, 2020. They should be delivered to the judicial secretaries’ office in Barrie.
Boswell J.
Released: December 18, 2019