PART I – introduction

Parties and Issues

1The Applicant Michelle Grasso and the Respondent Rishi Bhatt began cohabiting in 2003 and married on June 3, 2012. They are the parents of a four year old son. They separated on March 3, 2015. Ms. Grasso remained in the family residence with their son and has resided there continuously since the date of separation.

2Ms. Grasso commenced this Application on June 29, 2015. She is seeking a restraining order against Mr. Bhatt and orders for sole custody of her son, limited supervised access for Mr. Bhatt at her discretion, retroactive and prospective child support, sale of the family residence and equalization of the parties’ net family properties. She is not a registered owner of the family residence but asserts a 50% beneficial interest in the property by way of resulting trust or constructive trust. She asks for an order that Mr. Bhatt’s share of the proceeds of sale of the home be disbursed to her as a lump sum payment of child support.

3In his Answer to the Application, Mr. Bhatt seeks orders for divorce, joint custody, regularly scheduled unsupervised access to his son and equalization of net family properties.

4The Third Party Respondent Gunvantrai Bhatt (hereafter “Dr. Bhatt”) is Rishi Bhatt’s father and Ms. Grasso’s father-in-law. He is a co-Respondent in this proceeding because he is the registered owner of the parties’ family residence. He denies that Ms. Grasso (or Mr. Bhatt) has any beneficial ownership interest in the property. He seeks orders for removal of Ms. Grasso from the property and for immediate possession of the property. He also seeks an order requiring Ms. Grasso to pay him occupation rent in the amount of $1,825 per month for the use of the property retroactive to April 2015.

Procedural History

5Mr. Bhatt and Dr. Bhatt each commenced their own Applications dealing with substantially the same issues. Those Applications were stayed by order of this Court dated November 22, 2016. Affidavits filed by Mr. Bhatt and Dr. Bhatt in connection with the related proceedings were introduced by Dr. Bhatt as evidence at trial without objection by Ms. Grasso.

Trial

6Mr. Bhatt did not appear in Court on the first day of trial on June 5, 2018. I did not strike his pleadings but I ordered that the trial would proceed in his absence. The issues raised by the Application required resolution without further delay. I was satisfied that Mr. Bhatt was aware of the trial date. He made no effort to provide the court with an explanation for his absence and I could find no basis to adjourn the trial.

7Mr. Bhatt had previously shown disregard for Court proceedings. He caused significant delays in this matter. For example, he did not file an Answer to Ms. Grasso’s June 29, 2015 Application until March 14, 2017 (for which he required leave of the Court). He did not make full financial disclosure as required by the Family Law Rules, O.Reg.114/99, as amended. He arrived 30 minutes late for a Trial Management Conference on August 29, 2017. He was present at that conference when the trial was scheduled for four to six days during the May 2018 Court sittings. He failed to appear in Court for the commencement of the trial on May 10, 2018 and failed to appear again on May 28, 2018. He did not communicate with the Court or with the Applicant regarding the reasons for his absence.

8On the first day of trial on June 5, 2018, Dr. Bhatt and Ms. Grasso both indicated that they did not know Mr. Bhatt’s whereabouts. I was advised that neither of them had communicated with him for some time. Ms. Grasso’s counsel confirmed that Mr. Bhatt had been sent notice of the trial date. Dr. Bhatt’s counsel informed the Court that he had personally called Mr. Bhatt and emailed Mr. Bhatt the day before to remind him of the commencement of the trial.

9Based on information that subsequently became available during the trial, it appears that Mr. Bhatt may have been in jail. His incarceration may be the reason why he did not appear in Court on the two dates in May 2018 and on June 5-8, 2018. On the fifth day of trial, June 18, 2018, Mr. Bhatt’s sister, Kalpna Pathak, testified that Mr. Bhatt had just been released from custody. She stated that their father, Dr. Bhatt, had picked him up in Chatham, Ontario.

10There is no evidence before me regarding the duration of Mr. Bhatt’s incarceration. I do not know whether or not he was in jail when the trial started on June 5, 2018. If he was incarcerated, he did not notify Ms. Grasso’s counsel or the Court of his inability to attend and did not request an adjournment. Moreover, upon his release from custody, he would have been aware of the June 18, 2018 continuation date for the trial because of his father’s involvement as a co-Respondent in the proceeding. Despite the fact that he was no longer in custody, he did not appear in Court on June 18, 2018 or make any effort to participate in the trial. The trial therefore continued in his absence.

PART II

issues between ms. Grasso and mr. Bhatt

Restraining Order

11I am satisfied by the totality of the evidence that Ms. Grasso has reasonable grounds to fear for her safety. I therefore grant her request for a restraining order against Mr. Bhatt.

12The evidence in the record establishes that Mr. Bhatt has a lengthy criminal record, including two convictions for weapons offences. He was convicted of uttering a threat to Ms. Grasso during an incident that is described below.

13I accept Ms. Grasso’s uncontested testimony that Mr. Bhatt has poor anger management skills and lashes out when he is upset. Her mother, Donna Grasso, corroborated her claim that Mr. Bhatt has an uncontrolled temper.

14Ms. Grasso testified about two incidents in particular, when she called her sisters-in-law for assistance. Mr. Bhatt had become very angry and would not let her leave the house. His sisters came to the house to calm him down and she spent the night at one of their houses until he “cooled off”. None of this evidence was challenged on cross-examination or contradicted by any of the witnesses at trial.

15Ms. Grasso also testified about events that occurred on March 3, 2015, which precipitated the parties’ separation. She stated that Mr. Bhatt became upset with her and would not calm down. She tried to leave the house but he threw a Jolly Jumper at her while she was holding their son. She went upstairs for a while then tried to leave again while Mr. Bhatt was not looking. He noticed and threatened her with a baseball bat. She was eventually able to escape, run to her car and drive away. She called the police, who removed Mr. Bhatt from the home. None of this evidence was challenged on cross-examination or contradicted by any witness at trial.

16In his Answer to the Application, Mr. Bhatt pleaded that, “during the time the parties were together, he treated [Ms. Grasso] as a loving and dutiful husband should treat a wife”. He denied that Ms. Grasso had ever been fearful of him or of anything he said. He stated that he “does not accept for a moment that [Ms. Grasso] ever considered any statement by [him] to cause her any real fear or concern.” The evidence in the record does not support his pleadings.

17I note that Mr. Bhatt was charged after the incident on March 3, 2015 with failure to comply with a recognizance, uttering threats and possession of a weapon for a dangerous purpose. He ultimately pleaded guilty to and was convicted of uttering a threat to Ms. Grasso. Ms. Grasso’s Victim Impact Statement from the criminal proceeding details the reasons for her fear of Mr. Bhatt.

18The record includes a Certificate dated March 8, 2015, which confirms that Mr. Bhatt completed anger management sessions at A1 Counselling Centre. However, text messages in the record demonstrate that Mr. Bhatt remained unable to moderate his temper thereafter. The messages include threats to Ms. Grasso (e.g., “mark my words for as long as I live you will never know peace”, “believe me when I catch you you’re going to learn what misery is really like”).

19Based on all of the evidence, I conclude that a restraining order is justified. The specific provisions of the order are set out at the end of this judgement.

Custody

20A joint custody order is not appropriate in the circumstances of this case. Co-parenting is not feasible because of the heightened conflict between the parents and the need for a restraining order against Mr. Bhatt. A sole custody arrangement minimizes the likelihood that the parties’ son will be exposed to their conflict, which is in the child’s best interest.

21Based on the totality of the evidence, I am persuaded that Ms. Grasso should have sole custody of the parties’ son. She has been the primary caregiver since they separated almost four years ago. She has proven to be the more responsible parent. Mr. Bhatt has demonstrated by his conduct, both prior to and after the separation, that he does not exercise sound judgment and does not always act in the child’s best interest.

22Specific provisions relating to each parties’ parental rights are set out at the end of this judgement.

Access and Parenting Time

23If Mr. Bhatt wishes to see his son, then that should be accommodated because it is in the child’s best interest to have a meaningful relationship with both of his parents. However, the access schedule proposed in Mr. Bhatt’s pleadings (which includes alternating weekends) is not appropriate in the circumstances of this case.

24I am persuaded by the evidence that Mr. Bhatt’s access should be at the discretion of Ms. Grasso and must be supervised. Mr. Bhatt cannot be trusted to care responsibly for the child on his own. He denies (in his pleadings) that he has an addiction. There is insufficient evidence upon which I could conclude otherwise, but there is credible evidence that he engages in unhealthy substance abuse involving both alcohol and illicit drugs. He does not have a stable residence or stable employment. He has unresolved anger-management issues. His driver’s licence has been suspended. He has recently been incarcerated for post-separation criminal charges. His four year old son needs to be insulated from the chaos and instability that permeate his life.

25Supervision of Mr. Bhatt’s access by Ms. Grasso is not appropriate given her reasonable fear for her own safety. Moreover, requiring Ms. Grasso to be present during Mr. Bhatt’s visits with their son would risk exposing the child to conflict between his parents, which is not in the child’s best interest.

26I am not confident that supervision by one of Mr. Bhatt’s family members would afford adequate protection for the child. Mr. Bhatt’s father and siblings have acted as sureties on several occasions when he was released from custody on a recognizance of bail. His multiple convictions for breaches of recognizance show that his family members are not able to inhibit his misconduct or control his behaviour. They do not have sufficient influence over Mr. Bhatt to act as supervisors of his parenting time with his son.

27Access visits must therefore occur at a supervised access centre, to be arranged by Mr. Bhatt at Mr. Bhatt’s expense.

Child Support and Section 7 Expenses

28Mr. Bhatt has an obligation to pay child support to Ms. Grasso from the date of separation to the present and on an ongoing basis. He has made no child support payments to date.

29In her Application, Ms. Grasso asks the Court to order retroactive and prospective support in the amount of $508 per month based on an imputed annual income of $35,000. I note that the monthly Table amount under the Federal Child Support Guidelines, SOR/97-175 (“CSG”) based on an annual income of $35,000 is $304 for one child.

30In his pleadings, Mr. Bhatt proposed that child support be calculated based on an annual imputed income of $23,000, which represented minimum wage at the time that he filed his Answer (in March 2017). An income of $23,000 would generate monthly child support payments of $184 under the CSG Tables.

31In calculating child support payments, the starting point for determining the payor’s annual income is usually the sources of income set out under the heading “Total Income” on line 150 of their T1 General income tax return form: CSG, s.16. In cases like this, where the payor has not disclosed his income tax returns despite his legal obligation to do so, the Court may impute such amount of income to him as it considers appropriate in the circumstances: CSG, s.19(f). There must, however, be a rational basis, grounded in evidence, underlying the selection of the amount: Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 38.

32I have no evidence of the sources of income set out in Mr. Bhatt’s line 150 “Total Income”. I do not know whether he is currently employed or whether he has been employed since the parties separated. I do, however, have some evidence regarding his education, skills and employment history. Ms. Grasso testified that he worked for Molson’s when they first moved from Windsor to Mississauga in 2005 or 2006. She said he was earning approximately $4,000/month. I understood this to refer to his gross income, not his take-home pay. She testified that he did not work for Molson’s for very long and that he later worked as a bartender for a period of time. She stated that he had difficulty maintaining stable employment during their relationship.

33Although the evidence is limited, it establishes that Mr. Bhatt is capable of working full-time and earning substantially more than minimum wage. He is relatively young (41 years old). Apart from a possible addiction, the existence of which Mr. Bhatt denies, there is no evidence of a disability that would preclude him from gainful employment. He had the qualifications, skill and ability to earn a gross annual income of $48,000 thirteen years ago. His criminal record may create barriers to future employment, but those barriers are of his own making. He cannot avoid child support obligations due to self-induced unemployment or under-employment: Rogers v. Rogers, [2013] O.J. No.1616 and CSG, s.19(a). I conclude, based on the totality of the evidence, that it is appropriate to impute to Mr. Bhatt an annual income of $48,000 for child support purposes.

34Based on this imputed income, the amount of monthly child support payable for a single child was $433 under the 2011 CSG Tables that were in effect on the date of the parties’ separation. The amount increased to $445 per month when the CSG Tables were updated on November 21, 2017. Based on the Table amounts, Mr. Bhatt owes Ms. Grasso the following payments for retroactive child support:

April 1 to December 31, 2015: $3,897

January 1 to December 31, 2016: $5,196

January 1 to December 31, 2017: $5,208

January 1 to December 31, 2018: $5,340

January 1, 2019 to January 31, 2019: $445

35The total amount of retroactive child support owing is therefore $20,086.

36Effective February 1, 2019 and on the first day of each and every month thereafter, Mr. Bhatt is obligated to pay Ms. Grasso child support in the amount of $445, based on an imputed annual income of $48,000.

37Ms. Grasso also seeks an order for reimbursement of daycare expenses that she has incurred and continues to incur. The documentary evidence establishes that she paid $1,851.48 for daycare services in 2016. She testified that her daycare expenses were approximately the same in 2017 and would be the same in 2018.

38Ms. Grasso’s annual income is approximately equal to the income amount imputed to Mr. Bhatt. The daycare expenses will therefore be shared equally, pursuant to ss.7(1)(a) and 7(2) of the CSG. Mr. Bhatt is required to reimburse Ms. Grasso for 50% of the daycare expenses to date and for 50% of any future daycare expenses incurred for their son.

Equalization of Net Family Property

39Ms. Grasso abandoned her equalization claim at trial. There is no evidence to support Mr. Bhatt’s claim for an equalization payment from Ms. Grasso. His equalization claim is therefore dismissed.

Divorce

40Ms. Grasso indicated at trial that she had no objection to Mr. Bhatt’s request for a divorce order. Either party may therefore proceed with an uncontested Application for Divorce in writing.

PART III

OWNERSHIP, OCCUPANCY AND SALE OF FAMILY RESIDENCE

Family Residence

41 Section 18 of the Family Law Act, R.S.O. 1990, c.F.3 defines “matrimonial home” as “every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence” (emphasis added). The parties’ family residence at the time of their separation is a townhouse unit that is part of a condominium complex on Erin Centre Boulevard in Mississauga. The unit is owned by Dr. Bhatt but Ms. Grasso asserts that he holds title in trust for her and Mr. Bhatt’s benefit. She claims that she has a 50% beneficial interest in the property by virtue of a constructive trust or resulting trust. Both Dr. Bhatt and Mr. Bhatt deny that she (or Mr. Bhatt) has any ownership interest in the property. The status of the townhouse unit as a “matrimonial home” is therefore in dispute.

42At trial, Ms. Grasso’s counsel argued that Justice Snowie already determined that the townhouse unit constitutes the parties’ matrimonial home in her Order dated November 22, 2016. Justice Snowie made that finding in the context of an interim Order that Ms. Grasso and her child could remain in the home pending further Order of the Court. She explicitly noted, however, that “it will be necessary for the Court to determine if the wife does have a trust interest in the home”. Justice Snowie’s finding that the property constitutes a matrimonial home is therefore not dispositive of the issue before me, namely whether Ms. Grasso has a beneficial interest in the property.

43The following facts regarding the family residence are either uncontested or so well documented that they are not seriously in dispute:

(a) The townhouse unit was acquired by Dr. Bhatt and his late wife Shushila Bhatt in 2006. They entered into an Agreement of Purchase and Sale for the newly constructed unit on July 29, 2006. The price was $299,900. They paid $100,000 down and secured a mortgage loan in the amount of $200,000 to finance the purchase. The transaction closed on October 30, 2006 and title was registered in their names as joint tenants. Dr. Bhatt and his wife paid all of the transactional fees.

(b) Neither Dr. Bhatt nor his late wife ever occupied the unit. Ms. Grasso and Mr. Bhatt lived there from early November 2006 until their separation on March 3, 2015.

(c) The mortgage payments in the amount of $296.69/week were made by Dr. Bhatt through automatic withdrawal from his personal bank account. Bank statements show that the weekly payment amount increased to $312.07 in 2010.

(d) Dr. Bhatt’s used a line of credit secured against his own residence in Windsor to repay the balance of the mortgage loan in full in January 2015. He made a lump sum payment of $132,000 to discharge the mortgage. He still owes $77,000 on the line of credit.

(e) Bank statements in the record establish that condo fees (increasing from $155 to $210/month over time) and property taxes (approximately $3,000 annually) for the unit were paid by automatic withdrawal from Dr. Bhatt’s account. Dr. Bhatt’s uncontested testimony was that property insurance was obtained by the condominium corporation. The monthly condo fees encompassed insurance premiums.

(f) Dr. Bhatt acquired his wife’s interest in the property by right of survivorship when she died in 2014. Since then, title to the property has been registered in his name alone.

(g) The townhouse unit was appraised at a value of $630,000 on September 30, 2017.

(h) Bank statements show that utility bills were paid from Ms. Grasso’s bank account or from Ms. Grasso and Mr. Bhatt’s joint bank account (including hydro, water, gas, telephone, home internet and insurance) during the time that she and Mr. Bhatt resided together in the townhouse.

(i) Ms. Grasso and her son have resided in the townhouse continuously from the date of separation (March 3, 2015) until the present. She has not contributed to the mortgage, property taxes or condo fees during this time. Dr. Bhatt has made all of these payments. Dr. Bhatt also paid utilities for the townhouse after the parties separated until October 2017, when his lawyer wrote to Ms. Grasso’s lawyer, demanding that Ms. Grasso assume responsibility for the bills.

(j) Dr. Bhatt demanded that Ms. Grasso vacate the property by letter from his lawyer dated April 21, 2015. She refused to move out. On November 22, 2016, Justice Snowie issued a temporary Order that Ms. Grasso and her child would remain in occupation of the townhouse until further Order of this Court.

44All other facts regarding the family residence are in dispute. The following is a brief overview of each party’s position.

Ms. Grasso’s Position Regarding the Family Residence

45In her Application, Ms. Grasso seeks an “order for a constructive or resulting trust over the property.” Her pleadings include the following:

[The property] was purchased cooperatively between the parties and the father of the Respondent, Dr. Gunvantrai Jayantilal Bhatt. Dr. Bhatt arranged the purchase of the property for the parties after receiving $20,000 from the parties. Dr. Bhatt obtained a mortgage on the property and went on title to the property. Michelle Grasso paid Dr. Bhatt $500.00 a month for her contribution to the mortgage. The Respondent made arrangements for the payment of his contribution to the mortgage on the property with his father, Dr. Bhatt. Dr. Bhatt may have waived the Respondent’s contribution to the mortgage.

The expectation was the property would be transfer (sic) to the parties. The Applicant made improvements to the property and contributed to work and materials for the betterment of the property. The improvements were made by the true owners of the property, the Applicant and the Respondent. Dr. Bhatt is a bare trustee on the property holding title to the property for the Applicant and the Respondent.

46Ms. Grasso insists that all parties understood the townhouse was bought for her and Mr. Bhatt to live in and raise a family. She claims that title to the property was registered in the names of Dr. Bhatt and his wife because she and Mr. Bhatt could not obtain mortgage financing at the time. She was a student and Mr. Bhatt had poor credit. She testified that Dr. Bhatt expressly promised to transfer title to the property into her name and Mr. Bhatt’s name after they married.

47Ms. Grasso submits that she and Mr. Bhatt are the “true” (beneficial) owners of the townhouse unit. She argues that they conducted themselves as owners by becoming involved in the Board of the condominium corporation (with Dr. Bhatt’s knowledge), by reimbursing Dr. Bhatt for a substantial portion of the mortgage payments and by investing money in maintenance work and renovations to improve the unit. She acknowledges that Dr. Bhatt paid the overwhelming majority of the initial down-payment, a portion of the monthly mortgage loan payments, and a significant lump sum payment to discharge the mortgage in January 2015. She claims that these were monetary gifts to her and Mr. Bhatt.

48Ms. Grasso also acknowledges that Mr. Bhatt received $1,000/month from Dr. Bhatt while they were living in the townhouse. She characterizes this money as an “allowance”. She says it was to help Mr. Bhatt pay for school, books, fuel, auto expenses, cigarettes and other daily living expenses because he was unemployed and was supposed to be attending college. She asserts that the money was not used to pay utilities.

Dr. Bhatt’s Position Regarding the Family Residence

49Dr. Bhatt denies that Ms. Grasso or his son made any financial contribution to the purchase of the property. He disputes that the townhouse unit was purchased for their benefit or that there was ever a promise, understanding, agreement or reasonable expectation that he would transfer title to their names. He and his wife were living in Windsor when they acquired the unit but were making frequent trips to Mississauga to visit their children and grandchildren. He testified that they purchased the townhouse as a future retirement home and as a place for them to stay when they visited family in Mississauga.

50Dr. Bhatt denies that he ever received any payments from Ms. Grasso or his son to contribute toward the mortgage, property taxes or condominium fees. He says he gave his son $1,000/month to pay for the utilities.

Rishi Bhatt’s Position Regarding the Family Residence

51Mr. Bhatt’s position is set out in his Answer and in an affidavit that forms part of the record. He deposed that his father is the sole owner of the property. It purchased by his parents as an investment to help with their retirement plans. His father permitted him and Ms. Grasso to live in the unit temporarily until they were able to save enough money to purchase a condominium. Neither he nor Ms. Grasso contributed any money towards the down-payment on the property, mortgage payments, property taxes or any utility bills. His father gave him $1,000/month to pay the utilities.

“Purchase” Resulting Trust

52In her Application, Ms. Grasso claimed a 50% beneficial ownership interest in the townhouse by virtue of a resulting trust. By the end of the trial, her counsel was no longer arguing this claim with any vigour. Indeed, she effectively conceded that the claim had no merit. I will nevertheless address it in order to provide reasons for my finding that there are significant deficiencies in Mr. Grasso’s credibility.

53Our common law has recognized, since at least the 18th century, “that the trust of a legal estate … whether taken in the names of the purchasers and others jointly… whether in one name or several, whether jointly or successive, results to the [person] who advances the purchase money”: Dyer v. Dyer (1788), 2 Cox 92. When a person contributes financially to the acquisition of property but is not registered on title to the property, a presumption of resulting trust in favour of that person generally¹ arises: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 17 and 25; Lequelenec v. Lequelenec, [1991] O.J. No.731, at para.47. The presumption allocates the burden of proof. The onus is placed on the grantee (i.e., the person who gratuitously receives title to the property) to rebut the presumption by demonstrating that a gift of the property was intended by the grantor (i.e., the person who contributed to the purchase): Pecore v. Pecore, [2008] 1 S.C.R. 795, at para.24 and Kerr v. Baranow, at para.19.

54In this case, Ms. Grasso claims that she and Mr. Bhatt contributed $20,000 toward the purchase of the townhouse unit that was registered in the names of Dr. Bhatt and Shushila Bhatt. She submits that the payment was not intended as a gift. Both Mr. Bhatt and Dr. Bhatt deny that any financial contribution was made by her (or Mr. Bhatt) toward the purchase of the property.

55I note that, if she contributed financially to the acquisition of the property, a presumptive trust would arise in her favour, but it would be equivalent to the proportionate share of her contribution. She claims that she and Mr. Bhatt each contributed $10,000. The evidence establishes that Dr. Bhatt and his wife made a $100,000 down-payment on a property purchased for a price of $299,900. Thus even if Ms. Grasso succeeded in establishing a presumptive resulting trust, it would only be for a small percentage ownership interest (i.e., 3.3% representing her proportionate contribution to the purchase price or at most 10% representing her share of the total $100,000 down-payment).

56In any event, Ms. Grasso has not persuaded me that she (or Mr. Bhatt) contributed in any way to the acquisition of the property. It is not that I prefer the evidence of Mr. Bhatt and Dr. Bhatt. As explained below, I have serious concerns about Dr. Bhatt’s credibility. Ms. Grasso did not have an opportunity to cross-examine Mr. Bhatt, so I give his affidavit evidence little weight. The reason why I reject Ms. Grasso’s testimony on this point is because her own evidence is implausible, inconsistent and internally contradictory.

57During her examination-in-chief, Ms. Grasso initially stated that she and Mr. Bhatt saved $20,000 and gave it to Dr. Bhatt to contribute toward the purchase of the property. That statement is consistent with her pleading in her Application that “Dr. Bhatt arranged the purchase of the property … after receiving $20,000 from the parties” (emphasis added). When she was challenged about the plausibility of her claim to have personally accumulated $10,000 in savings by the age of 22 years, her testimony changed. She then stated that she and Mr. Bhatt paid the $20,000 “in stages over time” and not all of it prior to the purchase of the property. At first she said that she and Mr. Bhatt each gave Dr. Bhatt a total of $10,000 in multiple payments in 2006, but then she changed her testimony again and said the money was paid “over the year and then some”. She stated that some payments were made in 2007 and 2008.

58She attempted to explain the inconsistencies in her testimony by clarifying that she and Mr. Bhatt agreed to pay Dr. Bhatt $20,000 toward the acquisition of the townhouse before the purchase was made, but they did not actually pay that full amount prior to the date of purchase. She stated that they gave Dr. Bhatt “around $7,000 or $8,000 initially” and then gave him more money in lump sums of $3,000 and $5,000 in the two years after the purchase. This evidence, given during her cross-examination, differed significantly from initial statements she made during her examination-in-chief. I do not find her revised evidence to be any more credible than her original version of the events.

59Neither Ms. Grasso nor Mr. Bhatt was employed full time when the townhouse was acquired in 2006. Mr. Bhatt had lost his job at Molson’s and was doing some bartending work in Mississauga. Ms. Grasso was a full-time college student who qualified for maximum financial assistance from the Ontario Student Assistance Program. She testified that she was also working part-time as a waitress and bartender at two different restaurants. Prior to moving to Mississauga, she had been working as a bartender in Windsor for a few years. She and Mr. Bhatt had been living together in a rental apartment in Windsor. There is no evidence about the amount of their rent in Windsor, but Ms. Grasso testified that they were paying $1,300 in rent for their apartment in Mississauga in 2006. Given their limited income, it is simply not believable that they would have been able to save $20,000 to give to Dr. Bhatt, even if payments were made over a two and a half year period from July 2006 to December 2008.

60Ms. Grasso testified that she had personally saved $3,000 or $5,000 from her previous bartending jobs, but there is no documentary evidence to corroborate the existence of these savings. If she had such savings, I would not expect that she would have qualified for OSAP funding. She testified that she did not disclose the savings when she applied for financial assistance from OSAP. She claimed that she gave Dr. Bhatt lump sum payments whenever her OSAP funding was received. There is, however, no documentary record of these purported payments.

61Ms. Grasso explained that the reason there are no cancelled cheques to document payments to Dr. Bhatt is because they were always made in cash. She provided no explanation as to why she would not have simply transferred the OSAP funds from her bank account to Dr. Bhatt’s account or written a cheque to him for these substantial lump sum payments. If such large cash payments were made from OSAP funds, bank statements would show deposits when the OSAP funding was received and lump sum cash withdrawals thereafter. However, Ms. Grasso did not produce bank statements for most of the period of time in question (i.e., July 2006 to December 2008). The record includes only partial bank statements from September, October and November 2008 and no statements prior to September 2008. The partial 2008 statements do not show any large cash withdrawals. They establish that her bank balance was around $1,000 each month. I draw an adverse inference from the absence of documentary evidence that no large cash withdrawals were made to pay Dr. Bhatt during that time period.

62A later bank statement shows a withdrawal in the amount of $4,171.50 on January 15, 2009. Ms. Grasso testified, during her re-examination, that this “would have been a lump sum we gave” to Dr. Bhatt. She added, “I would have got OSAP money and would have been able to take it out.” The fractional amount of the withdrawal ($4,171.50) suggests that it was for a different purpose than to make a lump sum payment to Dr. Bhatt. There is no record of a deposit of OSAP funds into the account. The December 2008 bank statement is missing from the record, so the source of the funds cannot be verified. I note, however, that Ms. Grasso said she graduated from college program in 2008, so she would not have been receiving OSAP funds in December 2008. For these reasons, I am not persuaded that the $4,171.50 withdrawal represented OSAP funds paid to Dr. Bhatt.

63Furthermore, I note that the $4,171.50 withdrawal occurred more than two and half years after the agreement of purchase and sale was executed and more than two years after the real estate transaction closed. Ms. Grasso initially testified that she and Mr. Bhatt paid Dr. Bhatt $20,000 prior to the purchase in 2006, then she testified that the payment was completed in installments in 2006, 2007 and 2008. Toward the end of her testimony, she suddenly claimed that a payment in excess of $4,000 was made as late as January 15, 2009. Her story kept changing, which leaves me doubtful of its veracity.

64When Ms. Grasso was asked what she did with the $4,171.50 that she withdrew from her bank account, she answered, “I gave it to Rishi”. She testified that she expected him to deliver the money to his father. She did not claim to have given the money directly to Dr. Bhatt. Based on the evidence in the record, I find it probable that any money Ms. Grasso may have given to Mr. Bhatt to deliver to his father would likely have been retained by Mr. Bhatt without Ms. Grasso’s knowledge. I base this finding on the testimony from multiple witnesses at trial about Mr. Bhatt’s dishonesty, lack of trustworthiness and fiscal irresponsibility.

65Ms. Grasso has not established, on a balance of probabilities, that she and Mr. Bhatt made any financial contribution to the purchase of the townhouse unit. There is therefore no presumption of resulting trust that arises in the circumstances of this case.

“Common Intention” Resulting Trust

66The old English doctrine of resulting trust evolved in Canadian family law jurisprudence to include a “common intention” resulting trust. In cases involving common law spouses, a resulting trust was found to have arisen, even in the absence of a financial contribution to the acquisition of the contested property, if the parties shared a common intention that the beneficial interest in the property would not belong exclusively to the spouse in whose name the legal title was vested: Murdoch v. Murdoch, 1973 CanLII 193 (SCC), [1975] 1 S.C.R. 423 (S.C.C.) at p.438; Kerr v. Baranow, at paras.21-29. In the absence of an express written trust agreement, the spouse asserting a common intention resulting trust had the onus of proving its existence by inference from circumstantial evidence.

67In 2011, the Supreme Court of Canada ruled that the common intention resulting trust has no further role to play “in the resolution of property disputes in domestic cases”: Kerr v. Baranow, at paras.24 and 29. I find that it is therefore not a basis upon which Ms. Grasso can establish a beneficial ownership interest in the townhouse unit in this case.

68Even if I were to find that the Supreme Court’s ruling on the demise of the common intention resulting trust in “domestic cases” does not apply to property disputes involving third parties, I would still deny Ms. Grasso’s claim because she has not established the existence of a common intention. She claims that she and Mr. Bhatt made regular contributions to the mortgage payments for the townhouse by giving Dr. Bhatt $1,000 monthly, throughout the eight and a half years that they lived together in the unit (i.e., from November 2006 to March 2015). She argues that these mortgage payments constitute circumstantial evidence of the parties’ shared understanding that Dr. Bhatt was holding title to the property in trust for her and Mr. Bhatt’s sole benefit as the “true owners” of the townhouse. In pre-2011 cases, courts treated a spouse’s contributions to the maintenance and improvement of property owned by the other spouse as evidence of the parties’ common intention to share the beneficial ownership of the property: Lequelenec v. Lequelenec, at para.49.

69Mr. Bhatt and Dr. Bhatt both deny that any payments were made by Ms. Grasso and Mr. Bhatt toward the mortgage. Ms. Grasso bears the onus of proving, on a balance of probabilities, that the payments were made.

70Ms. Grasso initially testified that she gave Mr. Bhatt $500 each month to give to his father and that Mr. Bhatt contributed the other $500/month. I find this to be implausible for several reasons. First, it is not disputed that Dr. Bhatt was depositing $1,000/month into Mr. Bhatt’s bank account. In these circumstances, it makes no sense that Mr. Bhatt would be delivering $1,000 cash to his father each month for the mortgage. If that were the arrangement, as Ms. Grasso claims, they would have simply offset the two $1,000 payments.

71Second, Mr. Bhatt was mostly unemployed at the time. There is no evidence that he had any source of income other than from occasional bartending and the $1,000/month that his father was giving to him. Ms. Grasso was a full-time student for the first two years after the townhouse was purchased, working only part-time jobs. After she graduated in 2008, she commenced full-time employment, but she was repaying her OSAP loans. She was also paying for the utilities associated with the townhouse unit. She testified that the OSAP loan repayments were $260/month. Bank statements for various months² from 2009 to 2014 show withdrawals to pay utility bills in the following amounts: Enersource hydro ranging from $117 to $308 per month, Enbridge gas ranging from $42 to $373, Telus mobility ranging from $50 to $270, StateFarm insurance³ in the amount of $279, StateFarm auto insurance in the amount of $187, Bell OneBill in the amount of $426 and Rogers wireless internet ranging from $105 to $200.

72Ms. Grasso and Mr. Bhatt had a joint bank account. The record also contains a few statements relating to that joint account from 2012 and 2013. Those statements show bill payments made to Enersource (in amounts of $336, $338 and $692), Enbridge ($814) and Bell OneBill ($200).

73The bank statements for both accounts show frequent retail purchases and regular credit card payments in substantial amounts. Ms. Grasso and her mother Donna Grasso both testified that Mr. Bhatt had excessive spending habits.

74Given all of the above, I find it improbable that Ms. Grasso and Mr. Bhatt would have had sufficient funds to make monthly $1,000 mortgage payments to Dr. Bhatt based on Ms. Grasso’s income alone (which was approximately $45,000 annually after she graduated in 2008). It is even less likely that they would have made $1,000 monthly payments during the two years when Ms. Grasso was a student.

75Moreover, the bank statements do not show regular cash withdrawals corresponding to Ms. Grasso’s supposed monthly $500 payments or the $1,000 joint payments she claims to have made with Mr. Bhatt. There are very few withdrawals in these amounts from either bank account. When asked about the absence of evidence of $500 or $1,000 withdrawals, Ms. Grasso stated, “it should be there, I don’t know why it isn’t”. She then changed her testimony and stated that she and Mr. Bhatt did not always give Dr. Bhatt precisely $1,000 per month. She said they sometimes paid him more and sometimes less.

76During her re-examination, she was asked about a couple of withdrawals shown on her 2012 bank statements in the amounts of $800 and $1,200. She stated that these were examples of how she and Mr. Bhatt sometimes paid Dr. Bhatt more than $1,000 to make up for a shortfall the previous month. This was new evidence that she had not given during her examination-in-chief.

77Ms. Grasso gave two additional examples of make-up payments. She pointed to a $2,300 withdrawal from her personal account on June 13, 2014 and a $2,700 withdrawal on August 5, 2014. The June 2014 bank statement shows that the $2,300 withdrawal was an in-branch bank transfer, not a cash withdrawal. Ms. Grasso testified that payments to Dr. Bhatt were always made using cash. Based on her own evidence, this payment therefore could not have been to Dr. Bhatt.

78With respect to the August 5, 2014 cash withdrawal of $2,700, Ms. Grasso testified that “I might have taken that out to give [Dr. Bhatt] a lump sum for X amount of months”. Her evidence on this point was understandably equivocal, since the withdrawal was made four years prior to her testimony and she could not reasonably be expected to remember precisely what it was for. Ms. Grasso also pointed to a $200 withdrawal on November 2, 2012. She said that, on that occasion, she and Mr. Bhatt would have had $800 on hand to give to Dr. Bhatt so she withdrew $200 to make up the difference. It strains credulity for Ms. Grasso to suggest that she remembers the specific purpose for which she withdrew $200 from her bank account almost six years earlier.

79I was left with the distinct impression that Ms. Grasso was tailoring her testimony to try to make it fit with the documentary evidence because the bank statements do not corroborate her version of the events. There is no credible evidence upon which I can conclude that she and Mr. Bhatt paid Dr. Bhatt $1,000 per month toward the mortgage over a period of nine years (or for any portion of that period of time). The money is not traceable in the manner suggested by Ms. Grasso.

80Ms. Grasso testified that she and Mr. Bhatt not only contributed $1,000 per month to the mortgage but also “paid a lot towards everything over the years”, including condominium fees and property taxes. Her testimony in that regard is not credible. The mortgage payments alone exceeded $1,000 per month. The evidence does not support her contention that she and Mr. Bhatt paid even that amount to Dr. Bhatt monthly, let alone additional amounts toward property taxes and condominium fees.

81I note that Ms. Grasso did not claim to have paid any money directly to Dr. Bhatt. She testified that she always gave cash to Mr. Bhatt with the understanding that he was delivering the money to his father. Her bank statements confirm occasional (albeit infrequent) electronic transfers of money to Mr. Bhatt in approximate amounts of $1,000. If in fact she was giving Mr. Bhatt money for Dr. Bhatt, I find it probable that Mr. Bhatt simply kept the money and spent it for his own purposes.

82Six witnesses testified at trial: Ms. Grasso, her mother Donna Grasso, her neighbour Mildred Figliano, Dr. Bhatt and Dr. Bhatt’s two daughters Naina Joshi and Kalpna Pathak. Every witness expressed the view that Mr. Bhatt could not be trusted, especially with money. For example, Dr. Bhatt gave Mr. Bhatt money to pay tuition for a speech therapy program at George Brown College, but Mr. Bhatt withdrew from the program without telling anyone. The documentary evidence shows that his tuition was refunded to him, but he did not repay the money to his father. Instead he lied to both Ms. Grasso and his father for two years, all the while pretending to be attending college full time. He took the charade so far as to pay for a counterfeit diploma as ostensible proof that he had graduated. He not only lied to Ms. Grasso and Dr. Bhatt about his speech therapy studies, he also fabricated self-aggrandizing university studies. Ms. Figliano testified that he once told her was in medical school and then, on a different occasion, told her he was in law school.

83Based on the totality of the evidence, I find that Dr. Bhatt did not receive any financial contributions from Ms. Grasso and Mr. Bhatt for the mortgage, property taxes or condominium fees. The evidence therefore does not support a finding of a common intention resulting trust.

84Ms. Grasso’s claim to a beneficial ownership interest in the property based on the doctrine of resulting trust is therefore dismissed.

Constructive Trust

85A constructive trust is a vehicle of equity through which one person is required by operation of law — regardless of any intention — to hold certain property for the benefit of another: Moore v. Sweet, 2018 SCC 52 at para.32. Courts must be cautious in applying constructive trust principles in family law cases like this one, which involves third party property rights: Lai v. Lai, 1995 CarswellBC 1397 at paras.21-23. The rights of third parties cannot be interfered with lightly: Lequelenec v. Lequelenec, at paras.57-58.

86A constructive trust is not a cause of action. Rather, it is an equitable remedy. It may be imposed at the Court’s discretion if the Court is satisfied that good conscience requires it. However, as the Supreme Court of Canada recently stated in Moore v. Sweet, at para.33, “it is crucial to recognize that … a proper equitable basis must exist before the courts will impress certain property with a remedial constructive trust” (emphasis in original).

87Ms. Grasso relies on two different causes of action to assert an equitable basis for a remedial constructive trust: unjust enrichment and proprietary estoppel.

Unjust Enrichment

88Proof of unjust enrichment may provide an equitable basis for a remedial constructive trust, but only if the claimant establishes that a monetary award is insufficient and that there is a link between his or her contributions and the disputed property: Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980 (S.C.C.), at p.997; Kerr v. Baranow, at paras. 50-51; Moore v. Sweet, at para.33; Clarke v. Johnson, 2014 ONCA 237, at paras.78-79.

89The jurisprudence with respect to unjust enrichment is well established. An applicant will only succeed on a cause of action in unjust enrichment if she or he can show: (a) that the respondent was enriched by the applicant’s contributions; (b) that the applicant suffered a corresponding deprivation; and (c) that the respondent’s enrichment and the applicant’s corresponding deprivation occurred in the absence of a juristic reason: Becker v. Pettkus, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834 (S.C.C.), at p. 848; Kerr v. Baranow, at paras. 30-45; Moore v. Sweet, at para.37.

90In this case, Ms. Grasso submits that Dr. Bhatt was enriched and that she and Mr. Bhatt were correspondingly deprived. She relies, in part, on the financial contributions that she claims they made to Dr. Bhatt’s down-payment on the townhouse and to his mortgage payments, property taxes, and condominium fees. I have already ruled above that there is no credible evidence upon which to conclude that these contributions were made.

91Ms. Grasso also relies on evidence of property maintenance, repairs and renovations that she and Mr. Bhatt undertook at their own expense. She argues that the value of the townhouse was enhanced by their efforts. She submits that Dr. Bhatt was therefore unjustly enriched.

92Ms. Grasso gave uncontested evidence that was partially corroborated by both her mother’s testimony and Mr. Bhatt’s affidavit evidence. Specifically, Ms. Grasso testified as follows:

(a) She and Mr. Bhatt replaced the basement flooring in the townhouse with hardwood. She was working at a hardwood company at the time, so they were able to secure a good price for the installation. The record shows that it cost them $1,573.

(b) They replaced the existing carpet throughout the townhouse before their son was born. The older carpet was neither soft nor sanitary for him to crawl on. Replacing the carpet cost them $3,164.

(c) They replaced the vanities in the main floor powder room and in the en suite bathroom. There is no evidence regarding the cost of these repairs.

(d) They had the ducts cleaned every few years and conducted other standard maintenance. There is no evidence regarding the cost of this work.

(e) They painted the interior of the townhouse three times. No evidence was led regarding the costs associated with painting.

93I accept this evidence as credible. Overall, I find that the contributions made by Ms. Grasso and Mr. Bhatt were modest. The property was new when they moved into it. Ms. Grasso acknowledged during her testimony that they did not need to do much to maintain it. There is insufficient evidence to conclude that their contributions constituted “improvements” that enhanced the value of the townhouse: Battye v. Battye, [1989] O.J. No.1578 at para.24. Ms. Grasso has not established, on a balance of probabilities, that Dr. Bhatt was enriched by them.

94Furthermore, Ms. Grasso has not established that she and Mr. Bhatt suffered any deprivation. They benefitted from living in the townhouse rent-free for eight and a half years. Even if I accepted that they were paying Dr. Bhatt $1,000 per month, that amount is less than fair market rent for the unit. In these circumstances, it cannot be said that they suffered a deprivation as a result of their modest contributions to the maintenance of the property: Lai v. Lai, at para.21.

95Finally, although some of the expenses are not the type of costs that a tenant would normally incur, there were reasons why they were borne by Ms. Grasso and Mr. Bhatt rather than by Dr. Bhatt. Mr. Bhatt deposed that the vanity in the en suite bathroom was replaced because he broke the sink. Donna Grasso similarly testified that Mr. Bhatt broke the master bedroom vanity “in a fit of rage”. Mr. Bhatt also deposed that the reason the basement carpet was replaced was because their pets had ruined the existing carpet. Even if I were to conclude that Dr. Bhatt had been enriched by these repairs, it cannot be said that there was no juristic reason for the expenses incurred by Ms. Grasso and Mr. Bhatt. They damaged Dr. Bhatt’s property and were obligated to repair the damage.

96Ms. Grasso’s claim for a remedial constructive trust based on unjust enrichment is therefore dismissed.

Proprietary Estoppel

97Ms. Grasso also seeks a remedial constructive trust based on the equitable doctrine of proprietary estoppel. The Supreme Court of Canada has ruled that, “where protecting the equity of the case may demand the recognition of new rights and interests in land … proprietary estoppel can do what other estoppels cannot – it can found a cause of action”: Cowper-Smith v. Morgan, 2017 SCC 61, [2017] 2 S.C.R. 754 at para.17. This was the primary cause of action advanced by Ms. Grasso’s counsel during closing submissions at trial.

98The Supreme Court summarized the elements of proprietary estoppel in Cowper-Smith, at para.23, as follows:

[T]o establish proprietary estoppel one must first establish an equity of the kind that proprietary estoppel protects. This requires three things: a representation or assurance on the basis of which the claimant expects to enjoy a right or benefit over property, reasonable reliance on that expectation, and detriment as a result of the reliance. When the owner of an interest in the property over which the claimant expects to enjoy a right or benefit is responsible for the representation or assurance, then the equity established by the claimant’s reasonable reliance may be given effect by proprietary estoppel.

99Prior to the Supreme Court’s decision in Cowper-Smith, the doctrine of proprietary estoppel received uneven treatment in Canadian jurisprudence: Clarke v. Johnson, at paras.47-53. Many courts treated unconscionability as one of the elements of the doctrine, requiring a claimant to demonstrate that the property owner sought to take unconscionable advantage of them by denying them the right or benefit over land that they expected to receive: Schwark v. Cutting, 2010 ONCA 61 at paras.16, 28, 34; Clarke v. Johnson, at para.52. In Cowper, at para.20, the Supreme Court ruled that “unfairness or injustice – sometimes referred to us ‘unconscionability’… – are not stand-alone criteria; they are what proprietary estoppel aims to avoid by keeping the owner to her word”.

100In order to establish the first element of proprietary estoppel, a claimant must demonstrate that the property owner made a clear and unambiguous promise that the claimant would enjoy a right or benefit over the property. It must be a promise that appears to have been intended to be taken seriously and that one might reasonably expect to be relied upon by the person to whom it was made: Cowper-Smith, at paras.15 and 26.

101The reasonableness of the claimant’s reliance on the property-owner’s representation is circumstantial and must be assessed in the context in which the promise was given. The question is “whether the meaning conveyed by the property owner would reasonably have been understood as intended to be taken seriously as an assurance which could be relied upon”: Cowper-Smith, at para.26. The reasonableness of the claimant’s reliance must also be assessed in light of the detriment the claimant has actually suffered: Cowper-Smith, at para.48.

102Where the elements of proprietary estoppel are present, the Court must “determine whether it is appropriate to satisfy the equity by recognizing the modification or creation of property rights in situations where there is want of consideration or of writing”: Cowper-Smith, at para.17. A remedial constructive trust is one means by which equity may be satisfied in cases where proprietary estoppel is established.

Pleadings

103Dr. Bhatt’s counsel submits that Ms. Grasso should not be permitted to advance a claim based on proprietary estoppel because she did not specifically plead that cause of action in her Application. I disagree. Ms. Grasso listed “constructive trust” and “partition and sale” as remedial requests on her Application form. Dr. Bhatt was therefore put on notice that she was arguing an equitable basis for a remedial constructive trust. She did not specifically plead “unjust enrichment” and “proprietary estoppel” as alternative causes of action, but she pleaded the material facts upon which she was relying to advance both of those claims. With respect to proprietary estoppel, she pleaded that she had an expectation that title to the property would be transferred to her and Mr. Bhatt based on the manner in which the property was purchased for them by Dr. Bhatt. I agree that her pleadings could have been more particularized regarding the alleged promise made by Dr. Bhatt to transfer title to them at a later date, but absolute precision in family law pleadings is not required. Ms. Grasso’s pleadings are not so deficient as to prejudice Dr. Bhatt’s ability to respond to the proprietary estoppel claim.

Ms. Grasso’s Testimony

104For the reasons already explained above, I have concerns about Ms. Grasso’s credibility. I will nevertheless summarize the testimony that she gave regarding the elements of proprietary estoppel.

105According to Ms. Grasso, when she and Mr. Bhatt moved from Windsor to Mississauga in or about 2005, they started looking for a home to purchase together. They had been cohabiting for three years in Windsor. They were planning to marry and eventually have children. They were living in an apartment and were paying a lot of money in rent. They knew that it would make more sense economically for them to pay toward the equity in a house.

106They would not have been able to obtain mortgage financing at a reasonable interest rate because she was a student and Mr. Bhatt was unemployed and had poor credit. They discussed with Mr. Bhatt’s parents the possibility of putting the mortgage in Dr. Bhatt’s and his wife’s names so that a lower mortgage interest rate could be obtained. Dr. Bhatt was supportive and discussed their plans with them in detail. He and his wife had helped their daughters to purchase first homes and were willing to do the same for their son.

107Ms. Grasso said that she and Mr. Bhatt were initially looking to buy a small condo unit pre-construction, but her in-laws convinced them that a home would be better value and would be more suitable to raise a family. Dr. Bhatt, her mother-in-law and her sister-in-law Kalpna all came to look at the townhouse with them. They thought it was a perfect property for her and Mr. Bhatt because of its size, fenced backyard and proximity to family and schools for their future children. It was a newly-constructed unit. A previous purchaser’s financing had fallen through, so the developer was eager to sell and willing to sell at a reduced price. Dr. Bhatt told them the property was worth a lot more than the asking price and said, “you’d be crazy not to buy it … you’d be getting a steal”.

108According to Ms. Grasso, Dr. Bhatt never discussed the property as an investment for himself or as a future retirement property for him and his wife. The townhouse was purchased as a family residence for her and Mr. Bhatt and not for any other reason. It would not have been a suitable retirement residence for her mother-in-law because of its design. Her mother-in-law had mobility issues and the townhouse had multiple floors with staircases and no bedroom on the ground floor.

109Ms. Grasso and Mr. Bhatt had discussions with Dr. Bhatt about financing. Ms. Grasso initially testified that they agreed to pay Dr. Bhatt $20,000 toward the down-payment and $1,000/month thereafter toward the mortgage. However, part way through her testimony, she started saying that these were just voluntary payments that she and Mr. Bhatt were making. She made statements such as, “His dad didn’t even want money – he was buying the house for us”; “We were getting a house bought for us, but we still wanted to contribute”; “It was always a gift but we still wanted to contribute”; and “We wanted to contribute but they didn’t want to take any money from us.”

110At another point during her testimony she stated, “They knew what we had to contribute but it was automatic that they were going to match us with the numbers”. This statement is inconsistent with the suggestion that the house was being purchased for them. Moreover, Dr. Bhatt’s contribution to the acquisition of the property can hardly be described as a “matching” amount. It is undisputed that Dr. Bhatt and his wife paid down $100,000 for the purchase, which would mean they paid four times the $20,000 amount that Ms. Grasso claims she and Mr. Bhatt contributed.

111Ms. Grasso recalled that she and Mr. Bhatt were present with her sister-in-law Kalpna when the Agreement of Purchase and Sale was executed on July 29, 2006. She testified that, on that day and on several occasions thereafter, Dr. Bhatt assured them that he would transfer title to the property into their names after they got married.

112As further evidence that the townhouse was purchased for her and Mr. Bhatt, Ms. Grasso testified that they were present on the closing date of October 30, 2006. According to her testimony, Dr. Bhatt and his wife came to Mississauga and they all went together to pick up the keys. They then went to the townhouse and her sisters-in-law and brothers-in-law came to see the unit. She said “it was a big deal”. She recalled that they all went out for dinner to celebrate the fact that she and Mr. Bhatt got their first house.

113Ms. Grasso argues that Dr. Bhatt expressly acknowledged that she and Mr. Bhatt owned the beneficial interest in the townhouse. To support this argument, she testified that when Mr. Bhatt was having difficulty participating in meetings of the condominium corporation’s Board, they obtained a letter from Dr. Bhatt “to reflect that we were the owners”. The letter in question is actually a Proxy dated March 6, 2011. It does not indicate that Mr. Bhatt or Ms. Grasso are owners of the townhouse unit. On the contrary, it states that Dr. Bhatt is the registered owner and that he appoints his son, Rishi Bhatt, as his proxy to attend on his behalf and vote on his behalf at the meetings of owners.

114Ms. Grasso submits that it was reasonable for her to take Dr. Bhatt’s promise to transfer title seriously because he was wealthy and he had purchased homes for his other children. She stated that this was “talked about many times, not just one conversation”. She recalled her parents-in-law stating that “they were going to buy us a house because they did it for the other siblings and they didn’t want us to pay rent anymore.”

115Ms. Grasso testified about the financial assistance allegedly provided by Dr. Bhatt to his daughters. She said Dr. Bhatt and his wife either paid the initial down payment on their daughters’ homes or matched whatever money the daughters had saved to contribute to the down-payments. She stated, “It happened with all the sisters and my husband was the last one.… It was his turn for that.” She also testified that Dr. Bhatt “had signed for properties for everyone else”, meaning that he had assumed the mortgages on his daughters’ first homes. She said, “He did that in previous years with others, so he was doing it with us.”

116Ms. Grasso and Mr. Bhatt were married in June 2012. According to Ms. Grasso, although Dr. Bhatt had promised to transfer title to the property after their wedding, he did not do so. Dr. Bhatt’s wife became seriously ill immediately after the wedding. Her mother-in-law’s well-being became the family’s priority. After her mother-in-law’s health improved, Dr. Bhatt told her and Mr. Bhatt that they would have to wait until Mr. Bhatt finished school before title would be transferred to them. Mr. Bhatt eventually feigned his graduation, but Dr. Bhatt still did not transfer the property to them. Instead, Dr. Bhatt told them that he wanted Mr. Bhatt to become settled and established first.

117Shortly after Mr. Bhatt was arrested for threatening Ms. Grasso on March 3, 2015, Dr. Bhatt went to the townhouse to obtain some of his son’s personal belongings. Mr. Bhatt was released on bail conditions that precluded him from attending the residence, so his father made arrangements with Ms. Grasso to go to the townhouse to pick up some clothes and other items. Ms. Grasso was at the courthouse at the time, speaking with a victim-assistance coordinator. She called Dr. Bhatt when she was done. He told her not to go home because he had changed the locks on the townhouse.

118Ms. Grasso testified that Dr. Bhatt asked her to go to Naina’s house because he and his daughter wanted to talk to her. She was tired and wanted to go home. There was a snow storm outside. It was cold and she needed to get her son indoors and into bed, so she hung up the phone on Dr. Bhatt. She stated that her sister-in-law Naina then called her and tried to pressure her to alter her police statement about Mr. Bhatt’s threatening conduct. She refused and Naina then told her they would keep her from the townhouse if she did not cooperate. Ms. Grasso was able to access the townhouse by calling a locksmith to have the locks changed again.

Donna Grasso’s Evidence

119Ms. Grasso’s mother, Donna Grasso, testified in a straightforward manner. Her evidence was consistent throughout and was not shaken on cross-examination. I have no reason to doubt her credibility or the accuracy of her recall of events.

120Donna Grasso recalled Dr. Bhatt telling her that he and his wife were going to look for a house for Ms. Grasso and Mr. Bhatt to live in because they were planning to have a family. He told her he had done the same thing for his daughter and her husband, but he was afraid to put the title of the house in Mr. Bhatt’s name because Mr. Bhatt was irresponsible.

121Donna Grasso did not recall Dr. Bhatt ever saying anything about buying the property as an investment or as a retirement home for himself and his wife. In her view, the townhouse would not have been suitable for them as a residence because of his wife’s mobility issues. It had too many stairs going up to the bedrooms and the laundry was in the basement. Also, the backyard could only be accessed from the basement, which would not have been practical for Dr. Bhatt’s wife.

122Donna Grasso testified that, during a visit to Dr. Bhatt’s home in Windsor one day, he and his wife said they were going to transfer title to the property into Mr. Bhatt’s and Ms. Grasso’s names after they got married. She also recalled another occasion about six months after Mrs. Bhatt died, when she and her sister were visiting Dr. Bhatt’s house for a family function. Mr. Bhatt was arguing with his father because the transfer of title had not taken place as promised. She heard Dr. Bhatt say to his son, “You’re not responsible right now, I’m worried about you losing the house.”

Mr. Bhatt’s Affidavit Sworn July 26, 2016

123As explained earlier, Mr. Bhatt did not participate in the trial. He was not cross-examined, which diminishes the weight that I am prepared to give to his affidavit evidence.

124He deposed that his father purchased the townhouse for investment purposes and as part of a retirement plan. He stated that his father did not require the property immediately, so he and Ms. Grasso were permitted to live there without paying rent or any money toward the down-payment, mortgage loan, property taxes or utility bills. He said they planned to live there only temporarily until they could purchase a condominium of their own. They knew that they would be required to vacate eventually because his parents intended to live there when they retired.

Dr. Bhatt’s Testimony

125Dr. Bhatt denied virtually all aspects of Ms. Grasso’s and Donna Grasso’s testimony.

126As I alluded to earlier in these reasons, I have serious concerns about the reliability and credibility of Dr. Bhatt’s evidence. He answered a multitude of questions with “I don’t know”, “I have no idea”, “I don’t remember” and so on. He either has significant memory deficits or he was deliberately being selective in his recall of events in order to avoid answering certain questions. Either way, I am left with doubts about the accuracy and completeness of his evidence.

127At one point during his cross-examination, Dr. Bhatt either could not recall Ms. Grasso’s testimony from two days prior or he feigned not recalling it. He tried to explain by saying that he had not been paying attention during her testimony, which I found to be implausible. I could not discern whether he was inventing an excuse to cover up his short-term memory lapse or whether he was being sarcastic. Either way, it did not enhance my confidence in the veracity of his testimony.

128It was obvious at many points during Dr. Bhatt’s cross-examination that he was being deliberately evasive, so much so that I was required to direct him more than once to answer the question asked. He would respond to questions with other questions or with non-responsive statements. He was frequently combative and sarcastic. He routinely interrupted counsel and also interrupted me on more than one occasion. It became an exercise in frustration that unnecessarily prolonged the trial.

129Even more troubling were numerous internal contradictions in Dr. Bhatt’s testimony, which left me with the impression that he would say whatever seemed most convenient in the moment, without regard to whether he was being consistent or truthful. For example, during his examination-in-chief, he was asked whether Ms. Grasso ever gave him cash payments toward the mortgage. He answered emphatically no and added, “I don’t deal in cash because I don’t want to get in trouble with income tax.” Later, during his cross-examination, he was questioned about a specific withdrawal from his bank account in the form of an $11,000 cheque. He was asked whether the money was given to his daughter Kalpna to pay for her daughter’s university tuition. He could recall what it was for but stated, “I don’t send cheques, sometimes I give cash or whatever”. Ms. Grasso then reminded him of his earlier testimony that he does not deal in cash and he replied, “Of course I deal in cash”. Later during his cross-examination, he returned to his previous testimony and said, “I never give cash to my children”. This is just one of many examples of his tendency to contradict himself within a short time span.

130Some of Dr. Bhatt’s evidence was so farfetched as to be simply unbelievable. For example, he testified that the reason he changed the locks on the townhouse after his son was arrested is because the locks were “flimsy” and “not up to date”. He claimed that Ms. Grasso said there had been break-ins in the neighbourhood and he simply wanted to improve the security of the townhouse to ensure that his daughter-in-law and grandson were safe. He insisted that his intention was “to look out for both of them”.

131The timing and manner in which the locks were changed lead me to believe that this is a fabricated falsehood. Moreover, in his affidavit sworn July 9, 2015, Dr. Bhatt deposed that after changing the locks, he provided Ms. Grasso “with notice so that she could pick up the keys directly from me in order to facilitate removing her property from my home.” In his affidavit and again at trial, he testified that he contacted the police to find out whether they would assist him in having Ms. Grasso and her child removed from the property. Clearly, his intention in changing the locks was to exclude Ms. Grasso and her son from the townhouse, not to look out for them.

132Dr. Bhatt gave unequivocal answers to questions when it was self-serving to do so. When he was subsequently required to acknowledge that the truth was not so absolute, he attempted to qualify his earlier answers. For example, he was resisting Ms. Grasso’s allegation that he had made generous monetary gifts to his children. When asked about this by his own counsel, he made unqualified statements such as, “I didn’t gift anything to anybody”, “none of my children received a gift” and “I haven’t given anything to any of my children”. He insisted that any money he had ever given to any of his children had been by way of loans that were paid back with interest. He stated, “no one gets anything for free.”

133During his cross-examination, however, he acknowledged that he was making car payments for one of his daughters, that he financed a year of his grand-daughter’s university tuition and that he spent substantial sums of money to pay for his children’s weddings, including $40,000 or $50,000 on Mr. Bhatt’s marriage to Ms. Grasso. He also acknowledged that he purchased a car for Mr. Bhatt. At that point he stated, “as a parent, I am supposed to do certain things for my kids”. Ms. Grasso’s counsel reminded him of his earlier testimony that “no one gets anything for free.” He replied, “He’s my son. He’s entitled to what I have.” This answer constituted a complete about-face from his previous statements that he did not gift anything to any of his children and always insisted on repayment with interest when he provided them with financial assistance.

134Dr. Bhatt was cross-examined at length about financial assistance that he provided to his daughters to help them with the purchase of their first homes. He acknowledged that he and his wife jointly purchased a home with their daughter Kalpna and Kalpna’s husband. He initially stated that he “financed that purchase”, then quickly changed his testimony and asserted that Kalpna and her husband contributed half of the down-payment. He said the four of them shared the carrying costs of the property and split the proceeds of sale equally when the property was eventually sold.

135Dr. Bhatt testified that he did not provide financial assistance to his daughter Naina but rather entered into a business with her and her husband, which included the purchase of several investment properties.

136With respect to the townhouse involved in this case, Dr. Bhatt denied that it was acquired for Ms. Grasso and Mr. Bhatt to live in it. He testified that Ms. Grasso and Mr. Bhatt were not even present when he and his wife entered into the Agreement of Purchase and Sale. He said they were driving around the neighbourhood with their daughter Kalpna on July 29, 2006 when they noticed the “for sale” sign and entered the unit to view it. They bought it on the spot with no discussion about his son and Ms. Grasso living there.

137Dr. Bhatt denied coming to Mississauga for the closing on October 30, 2006 and denied that there was a celebratory dinner for Ms. Grasso and Mr. Bhatt. He stated that his daughter Naina acted as his agent for the closing and obtained the keys to the townhouse for him.

138Dr. Bhatt made inconsistent statements about his original intended use for the townhouse. In his affidavit sworn July 9, 2015, he deposed that he purchased it as an investment to finance his retirement. At trial, he said he bought the property as a future residence for him and his wife to live closer to their children and grandchildren during their retirement. He said it was also purchased as an interim place for him and his wife to stay when they visited family in Mississauga, rather than staying with their daughter.

139In his affidavit dated July 9, 2015, Dr. Bhatt deposed that he consented to his son and Ms. Grasso living in the townhouse rent-free because “they were a young couple starting out their lives.” He said he expected them to become financially independent and either start paying him rent or move out so that he could rent or sell the property, in accordance with his investment objectives.

140Having testified that he and his wife intended to stay in the townhouse when they visited their children in Mississauga, Dr. Bhatt was required to explain how Mr. Bhatt and Ms. Grasso came to live there. During his examination-in-chief, he told an unconvincing story, alleging that they moved into the unit without his prior knowledge or consent. He said that they obtained the key from his daughter Naina. He claimed not to have given Naina permission to do this. He said he found out the next day and told his son that they had to move out, because the townhouse was for his purpose only. He said his son promised either to vacate or start paying rent, but “moving day never came” and no rent was ever paid. Dr. Bhatt stated that he eventually acquiesced to them occupying the unit rent-free because he did not want to throw his son out “on the road”.

141During his cross-examination, Dr. Bhatt initially retracted many of the statements he had just made. He claimed that he had “no idea” when Mr. Bhatt and Ms. Grasso moved into the townhouse unit or how they obtained the key. He said he could not remember when or how he found out that they moved in. Later during his cross-examination, he changed his evidence again and said Naina checked with him “whether it would be ok for them to live in the unit”. He said he told Naina “they could stay temporarily for a few days” because they were being evicted from their apartment. He and his wife both agreed that, because the unit was empty, Mr. Bhatt and Ms. Grasso could stay there temporarily until their affairs were sorted out. However, at a later point in his testimony, he retracted that statement and said, “I never gave any permission, ever” for them to live there.

142At that point in his cross-examination, Ms. Grasso’s counsel showed him the Answer that he filed in this proceeding on November 15, 2016. It states, “The Applicant and co-Respondent, Rishi Bhatt, have lived at the Property with the permission and consent of Dr. Bhatt.” He denied that the Answer was his document and claimed that it was not his signature on the document. Dr. Bhatt’s lawyer also signed the Answer and filed it on his behalf, which leads me to conclude that the document was, in fact, signed and submitted by Dr. Bhatt.

143I note that Dr. Bhatt also denied having signed the Proxy authorizing Mr. Bhatt to attend condominium Board meetings on his behalf. I found his evidence on this issue to be credible because (1) the signature on the Proxy is noticeably different from Dr. Bhatt’s signature on multiple other documents in the record and (2) by all accounts Mr. Bhatt is untrustworthy, so it is probable that he forged his father’s signature on the Proxy in order to overcome the condo Board’s objection to him attending and voting at meetings.

144Throughout his testimony at trial, in his affidavit and in his pleadings, Dr. Bhatt consistently denied Ms. Grasso’s allegation that he promised to transfer title the townhouse title to her and Mr. Bhatt at a future date.

Naina Joshi’s Testimony

145I have some concerns about the reliability of Ms. Joshi’s testimony, primarily because she corroborated Dr. Bhatt’s unbelievable evidence that the locks on the townhouse were changed in order to enhance security for Ms. Grasso. Mr. Joshi denied barring Ms. Grasso’s access to the townhouse in an effort to pressure her to retract or alter her statement to the police about Mr. Bhatt’s threatening behaviour. For reasons articulated in paragraphs 130 and 131 above, I prefer and accept Ms. Grasso’s evidence on this point. I conclude that Ms. Joshi and Dr. Bhatt colluded with respect to their testimony about the reason for changing the locks. This deliberate falsehood is a serious taint on Ms. Joshi’s credibility.

146I do not, however, reject Ms. Joshi’s testimony in its entirety. Some of her evidence was plausible and consistent with the preponderance of other evidence in the record.

147Ms. Joshi testified that she attended on her father’s behalf for the closing of the real estate transaction on October 30, 2006. She confirmed that she was the person who gave the townhouse key to her brother Rishi. According to her recollection, Rishi called their mother and asked if he could live in the townhouse. Ms. Joshi spoke to both of her parent’s about her brother’s request. Her father was adamant that he not live there, given his history of financial irresponsibility, but her mother convinced her father to allow it. Mr. Bhatt and Ms. Grasso were having trouble making rental payments at their apartment. The idea was to give them an opportunity to “pull up their socks” and save money for a down-payment to purchase their own condo unit.

148Ms. Joshi testified that she and Dr. Bhatt co-owned investment properties as part of a business venture. She denied Ms. Grasso’s allegation that her father purchased her first house for her or made a substantial financial contribution to the purchase without expectation of repayment.

Kalpna Pathak’s Testimony

149Ms. Pathak testified in a straightforward manner. In general, she demonstrated apparent good recall of events. She readily acknowledged when her memory was hazy or when she did not know the answer to a question asked. She did not obfuscate. She did not contradict herself. I have no reason to doubt the reliability and credibility of her testimony.

150Ms. Pathak stated that she and her daughter were with her parents on July 29, 2006 when they first saw the townhouse unit and paid a deposit for its purchase. She said her parents wanted to acquire a residence for their future retirement. They intended to use the residence in the meantime when they came to Mississauga to visit their children. She had made appointments for them to view new condominium complexes but her father did not want to live in an apartment-type unit. When they saw the townhouse for sale, she recalled her father saying that was more what he was envisioning for his retirement. She did not think the townhouse was unsuitable as a residence for her mother, despite her mother’s health issues.

151Ms. Pathak testified that Ms. Grasso and Mr. Bhatt were not present when the Agreement of Purchase and Sale was executed. She testified that she was not aware of any discussions about her brother and Ms. Grasso living in the unit or about purchasing the unit for their use.

152Ms. Pathak was not involved in the closing of the real estate transaction. She said her sister Naina picked up the keys on their parents’ behalf. She believed it was Naina and her mother’s decision to allow her brother Rishi to move into the unit, but she was not sure because she was not involved in the discussions.

153Ms. Pathak acknowledged that, when she and her husband purchased their first home, her parents assisted them by financing the down-payment. She explained that it was not a gift. She stated that the four of them were registered on title as joint owners and she and her husband carried the property by making all the mortgage, property tax and utilities payments. She testified that her father was repaid his initial investment when the property was sold and they split the profits from the sale equally. Although Ms. Pathak’s recollection of the details of this arrangement differed from that of Dr. Bhatt, both accounts were consistent to the extent that neither suggested Dr. Bhatt gifted Ms. Pathak a substantial amount of money to purchase her first home.

154Ms. Pathak testified that the reason her father bought her a car was to repay her for doing his OHIP billings without compensation from 1999 until his retirement.

Factual Findings and Conclusions

155It has been challenging to make factual determinations in this case because none of the three parties was a particularly reliable witness. Ms. Joshi’s evidence in support of Dr. Bhatt’s position also suffered from deficiencies in credibility. Ms. Figliano’s testimony was credible but not helpful. I found Donna Grasso and Kalpna Pathak to be credible, but their evidence was of limited assistance.

156I must assess whether, based on the totality of the evidence that I do accept, Ms. Grasso has proven the elements of proprietary estoppel on a balance of probabilities. For the reasons that follow, I conclude that she has failed to do so.

157I am not persuaded that the townhouse was acquired for the sole purpose of providing Ms. Grasso and Mr. Bhatt with a family residence. I believe that the purchase was made by Dr. Bhatt and his wife as a place for them to stay when they visited their children and as an investment for them for their retirement, regardless of whether or not they intended to make it their principal residence one day.

158I find that Dr. Bhatt and his wife allowed their son and Ms. Grasso to reside in the townhouse rent-free. This was done to provide Mr. Bhatt with an opportunity to accumulate savings and achieve some financial independence and stability. I believe that Dr. Bhatt talked about potentially transferring title to their names after they married, but the evidence does not establish, on a balance of probabilities, that he made a clear and unambiguous promise to do so unconditionally. On the contrary, the evidence supports a finding that Dr. Bhatt’s willingness to transfer title to his son was always predicated on his son demonstrating fiscal responsibility and getting his life and his finances in order.

159After Dr. Bhatt’s wife passed away in 2014, title to the townhouse was transferred to Dr. Bhatt’s name alone. This would have been an ideal opportunity to transfer title to Mr. Bhatt and Ms. Grasso, had that been Dr. Bhatt’s intention. Donna Grasso testified that, when the property was acquired, Dr. Bhatt expressed to her a concern about registering title in his son’s name because of Mr. Bhatt’s lack of fiscal responsibility. She also testified that, a few months after Dr. Bhatt’s wife died, she overheard Dr. Bhatt tell his son that he was too irresponsible to be trusted with ownership of the property. This supports my finding that Dr. Bhatt’s willingness to transfer title to Mr. Bhatt was conditional from the outset.

160Based on Ms. Grasso’s own evidence, the promise allegedly made by Dr. Bhatt was not clear and unambiguous. Ms. Grasso was not able to articulate the details of the promise, specifically whether clear title was supposed to be transferred, without any encumbrances, or whether they expected to assume Dr. Bhatt’s mortgage on the property. Had title been transferred right after the wedding, as Ms. Grasso suggests was promised, there would have been a substantial mortgage loan still to pay. Ms. Grasso is now claiming entitlement to 50% ownership of the property with no mortgage – a property that has more than doubled in value since it was purchased. As Dr. Bhatt’s counsel submitted in closing argument, how does she expect the Court to enforce a promise when we do not even know the details of the ostensible promise?

161Based on the totality of the evidence, I find that the only clear and unambiguous representation made by Dr. Bhatt was that Mr. Bhatt and Ms. Grasso could live in the townhouse rent-free. There is no evidence that he promised they could live in the townhouse permanently, but he clearly represented (whether expressly or through acquiescence) that they could reside in the townhouse indefinitely. It was intended to be a temporary arrangement, but had no fixed end date. I find that this is the most likely scenario based on all the evidence. It is consistent with the type of generosity that Dr. Bhatt demonstrated with his other children, namely limited financial support to help them get started as independent adults. He likely used the prospect of eventually transferring title to Mr. Bhatt and Ms. Grasso as an incentive for Mr. Bhatt to show some fiscal responsibility, but there is insufficient credible evidence to conclude that Dr. Bhatt promised to do so unconditionally and without any consideration from Mr. Bhatt or Ms. Grasso in return.

162Even if I had found that Dr. Bhatt made the requisite representation, Ms. Grasso has not established the other elements of proprietary estoppel. In particular, there is no credible evidence of detrimental reliance in this case.

163Ms. Grasso argues that, had she and Mr. Bhatt not been paying $1,000 per month toward the mortgage on the townhouse, they would have saved their money and purchased another property. She testified that she would not have stayed living in the townhouse for so many years had she known that Dr. Bhatt was not going to transfer title to her. She said she would have used her savings to purchase another property and would have benefitted from the increased market value in the property. On that basis, her counsel argued that Ms. Grasso should at minimum be awarded a payment of 50% of the increased value in the property.

164I reject this argument for several reasons. First, Ms. Grasso and Mr. Bhatt were paying $1,300 in rent back in 2006. Had they not lived in the townhouse, they would have had to pay more than the $1,000 per month she claims they paid to Dr. Bhatt to rent another property. Second, I have found, in any event, that they did not make monthly payments to Dr. Bhatt. Third, given Mr. Bhatt’s unemployment and excessive spending habits, it is improbable that they would have been able to save enough money on Ms. Grasso’s income alone to make a down-payment on another property.

165I accept that Ms. Grasso paid the utilities associated with the townhouse for eight and a half years. She did so without assistance from Mr. Bhatt, who was supposed to pay those bills with the allowance that his father was giving him. These expenses (e.g. home internet, cell phones, water, gas, hydro, etc.) would have been incurred at any other property where Ms. Grasso resided, so they do not constitute evidence of detrimental reliance.

166For all of the above reasons, Ms. Grasso’s claim for a constructive trust remedy based on proprietary estoppel is dismissed.

167Ms. Grasso has no ownership interest in the townhouse and is therefore not entitled to an order for its sale.

Occupancy and Occupation Rent

168I have concluded that Dr. Bhatt does not hold title to the townhouse in trust for either Ms. Grasso or Mr. Bhatt’s benefit. He is the sole owner. He holds 100% of both the legal and beneficial interest in the property.

169On April 21, 2015, Dr. Bhatt instructed a lawyer to write to Ms. Grasso, demanding that she move out of the townhouse. Ms. Grasso was advised that, if she did not take immediate steps to vacate the property, Dr. Bhatt would deem her to be unlawfully occupying the premises and to be trespassing in accordance with the Trespassing to Property Act, R.S.O. 1990, c. T.21

170Although Dr. Bhatt generously permitted Ms. Grasso to live in the townhouse with his son rent-free for an indefinite period of time, he made it clear after she separated from his son that he was withdrawing his permission. The April 21, 2015 letter from his counsel demanded that she vacate the property by May 1, 2015. She committed a trespass by remaining in the townhouse beyond May 1, 2015 without his consent and without lawful justification.

171Ms. Grasso eventually obtained an interim court order on November 22, 2016, allowing her to occupy the premises pending the outcome of this litigation. The interim order did not, however, negate the trespass that she had committed up until that point. The interim order is now terminated in light of my finding that her claim to an ownership interest in the property has no merit. Based on her tort of trespass, Dr. Bhatt is entitled to have Ms. Grasso vacate the property forthwith: Lewis v. Oriji, 2009 CanLii 1802 (ONSC) at paras.8-9; Bathie v. Munro, 2002 CarswellOnt 3621 (O.C.J.) at paras.7-8.

172Ms. Grasso has resided in the townhouse with her son from the date of separation on March 3, 2015 until the present. She has lived there without making any payments to Dr. Bhatt. From the date of separation until October 2017, she was not even paying for the utilities that she used. The evidence establishes that she tossed the utility bills on Kalpna Pathak’s doorstep so that they would be paid by Dr. Bhatt. She resumed paying utility bills in November 2017.

173Dr. Bhatt seeks an order that Ms. Grasso pay him retroactive occupation rent in the amount of $1,825 per month from April 2015 to present. He relies on jurisprudence developed pursuant to s.24(1)(c) of the Family Law Act, which allows the court to “direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse”. He cannot, however, advance a claim pursuant to this section because he is not Ms. Grasso’s spouse and the townhouse is not a matrimonial home within the meaning of s.18 of the Family Law Act.

174Dr. Bhatt also cannot make a claim for occupation rent pursuant to s.122(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, because Ms. Grasso is neither a joint tenant nor a tenant in common who has ousted him from the property.

175The only basis upon which Dr. Bhatt can seek payment from Ms. Grasso is based on a claim for damages flowing from her tort of trespass. In his Amended Answer, he pleaded that Ms. Grasso “has been living at the property illegally or unlawfully without the owner’s consent since March 3, 2015”, which is tantamount to a claim of trespass. In his Amended Answer (and in his companion Application against Ms. Grasso, which has been stayed), he sought orders for possession of the property, removal of Ms. Grasso from the property, and leave to issue a writ of possession for the property. He did not plead a request for any monetary compensation on the basis of occupation rent or damages for trespass.

176It is clear, however, that at some point during the litigation, Ms. Grasso became aware of the fact that Dr. Bhatt was seeking to be compensated by her and the Court allowed his monetary claim to be advanced. The Trial Scheduling Endorsement Form signed by all parties on August 29, 2017 and endorsed by Justice Van Melle includes “whether the Applicant owes Respondent Dr. Bhatt any carrying cost for the property” as an issue to be tried.

177At trial, Dr. Bhatt argued that he would have been able to rent the townhouse to paying tenants had Ms. Grasso not occupied the premises unlawfully. He submitted that she should therefore be ordered to pay him fair market rent. To prove his damages, he produced an appraisal of the property that the fair market rent for the unit was $1,825/month in 2015, $1,860/month in 2016 and $1,890/month in 2017. This evidence was not disputed by Ms. Grasso.

178Although Dr. Bhatt has established the market rental rate for the unit, he has not persuade me that he would have rented the unit to tenants had Ms. Grasso vacated the premises when requested to do so. It is equally probable, in my view, that he would have let his son Rishi occupy the unit without paying rent. His own evidence was that he and his wife (when she was living) initially intended to use the premises as a place to stay when they visited their children in Mississauga. It is equally probable that he would have used the townhouse for that purpose rather than rent it to tenants. Dr. Bhatt not proven on a balance of probabilities that Ms. Grasso’s trespass resulted in lost rental income to him from May 1, 2015 to present.

179Dr. Bhatt has, however, established that he incurred damages by having to pay for utilities used by Ms. Grasso after the parties separated in March 2015. The evidence establishes that he paid the utilities from about April 2015 until October 2017. He submitted copies of both Enbridge and Enersource bills that he paid for the townhouse unit in 2015 and 2016. The documentary record is incomplete, but I am prepared to extrapolate from the bills submitted, which leads me to conclude that he paid, on average, $116/month to Enbridge and $324/month to Enersource. He therefore incurred $13,640 ($440/month x 31 months) in expenses attributable to Ms. Grasso’s trespassing. Dr. Bhatt is entitled to damages in that amount.

PaRT IV – ORDERS

180Based on my findings above, I make the following orders:

(a) Michelle Grasso shall pay Dr. Bhatt $13,640.

(b) Michelle Grasso and her son shall vacate the property as soon as possible and no later than February 28, 2019.

(d) Michelle Grasso shall have sole custody of her son.

(e) Rishi Bhatt may see his son but his access visits will be scheduled at Michelle Grasso’s sole discretion. She has the right to deny an access visit if Mr. Bhatt is impaired. His access rights will be exercised at a Supervised Access Centre, to be arranged by him at his expense.

(f) Rishi Bhatt shall not attend at Michelle Grasso’s residence, place of work, or any place where she is known to be. He is to remain at least 400 metres from her at all times.

(g) Rishi Bhatt shall not attend at his child’s daycare or school or any place where his son is known to be, except at a Supervised Access Centre.

(h) Rishi Bhatt shall not communicate directly or indirectly with his son without Michelle Grasso’s prior consent. He shall not communicate directly or indirectly with Michelle Grasso except for the purpose of arranging supervised access visits with their son and for the purpose of making payments for daycare expenses.

(i) Rishi Bhatt’s signature will not be required on any government documentation for his son, such as a passport application or travel declaration. Michelle Grasso may travel with her son without Mr. Bhatt’s consent.

(j) Rishi Bhatt shall not take his son outside of Peel region without Michelle Grasso’s prior authorization.

(k) Neither Michelle Grasso nor Rishi Bhatt will change the child’s name.

(l) Rishi Bhatt shall pay Michelle Grasso $20,086 in child support arrears forthwith.

(m) Effective February 1, 2019 and on the first day of each and every month thereafter, Rishi Bhatt shall pay Michelle Grasso child support in the amount of $445, based on an imputed annual income of $48,000. This amount is reviewable annually on the anniversary of this judgement.

(n) Rishi Bhatt shall provide Michelle Grasso with a copy of his previous year’s complete income tax return and Canada Revenue Agency Notice of Assessment (and any Notice of Reassessment) by no later than July 1st of each year to facilitate the review of child support payments.

(o) All child support payments will be enforced through deductions made by the Family Responsibility Office.

(p) Rishi Bhatt shall pay Michelle Grasso $2,777 forthwith for his 50% share of their son’s daycare expenses in 2016, 2017 and 2018.

(q) Commencing January 1, 2019, Michelle Grasso will provide Rishi Bhatt with receipts for any ongoing daycare expenses that she incurs. Rishi Bhatt shall reimburse her 50% of those amounts within 10 days of obtaining the receipt.

(r) Either party may apply in writing for a divorce on an uncontested basis.

181The parties may make brief written submissions (maximum 2 pages, excluding offers of settlement and Bills of Costs) with respect to costs. Dr. Bhatt’s submissions must be served and filed by February 15, 2019. Ms. Grasso’s submissions must be served and filed by March 1, 2019.

Petersen J.

Released: January 29, 2019

COURT FILE NO.: FS-15-0141-00

DATE: 20190129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michelle Grasso

Applicant

– and –

Rishi Gunvantrai Bhatt

Respondent

– and –

Gunvantrai Jayantilal Bhatt

Third Party Respondent

REASONS FOR JUDGMENT

Petersen J.

Released: January 29, 2019

Footnotes

There are a few exceptions where a presumption of advancement arises instead, but they do not apply in the circumstances of this case: Walters v. Nusseiri, 2019 ONSC 22 at paras.74-76.
An incomplete record of bank statements was produced as evidence. Many months were missing.
The nature of the coverage provided by this policy is unknown. It is not specified in the bank statements and there is no other documentary evidence to establish the type of policy. It may have been contents insurance for the furnishings owned by Ms. Grasso and Mr. Bhatt. It was not home-owners’ insurance because property insurance was obtained by the condominium corporation. It was not auto insurance, because auto insurance premiums are specified in the bank statements as such.

Footnotes

There are a few exceptions where a presumption of advancement arises instead, but they do not apply in the circumstances of this case: Walters v. Nusseiri, 2019 ONSC 22 at paras.74-76.
An incomplete record of bank statements was produced as evidence. Many months were missing.
The nature of the coverage provided by this policy is unknown. It is not specified in the bank statements and there is no other documentary evidence to establish the type of policy. It may have been contents insurance for the furnishings owned by Ms. Grasso and Mr. Bhatt. It was not home-owners’ insurance because property insurance was obtained by the condominium corporation. It was not auto insurance, because auto insurance premiums are specified in the bank statements as such.

PART I – introduction

Parties and Issues

Procedural History

Trial

PART II

issues between ms. Grasso and mr. Bhatt

Restraining Order

Custody

Access and Parenting Time

Child Support and Section 7 Expenses

Equalization of Net Family Property

Divorce

PART III

OWNERSHIP, OCCUPANCY AND SALE OF FAMILY RESIDENCE

Family Residence

Ms. Grasso’s Position Regarding the Family Residence

Dr. Bhatt’s Position Regarding the Family Residence

Rishi Bhatt’s Position Regarding the Family Residence

“Purchase” Resulting Trust

“Common Intention” Resulting Trust

Constructive Trust

Unjust Enrichment

Proprietary Estoppel

Donna Grasso’s Evidence

Mr. Bhatt’s Affidavit Sworn July 26, 2016

Dr. Bhatt’s Testimony

Naina Joshi’s Testimony

Kalpna Pathak’s Testimony

Factual Findings and Conclusions

Occupancy and Occupation Rent

PaRT IV – ORDERS

Footnotes

PART I – introduction

Parties and Issues

Procedural History

Trial

PART II

issues between ms. Grasso and mr. Bhatt

Restraining Order

Custody

Access and Parenting Time

Child Support and Section 7 Expenses

Equalization of Net Family Property

Divorce

PART III

OWNERSHIP, OCCUPANCY AND SALE OF FAMILY RESIDENCE

Family Residence

Ms. Grasso’s Position Regarding the Family Residence

Dr. Bhatt’s Position Regarding the Family Residence

Rishi Bhatt’s Position Regarding the Family Residence

“Purchase” Resulting Trust

“Common Intention” Resulting Trust

Constructive Trust

Unjust Enrichment

Proprietary Estoppel

Donna Grasso’s Evidence

Mr. Bhatt’s Affidavit Sworn July 26, 2016

Dr. Bhatt’s Testimony

Naina Joshi’s Testimony

Kalpna Pathak’s Testimony

Factual Findings and Conclusions

Occupancy and Occupation Rent

PaRT IV – ORDERS

Footnotes

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Bachand v. Leclair et al., 2024 ONSC 4044

Posner v. Ouanounou, 2024 ONSC 2971

Metske v. Metske, 2023 ONSC 1032

Cited By (5 cases)

D.H. Anderson Investments Inc. v. Castanares, 2025 ONSC 3368

Abou-Assaly v. El-Saikali, 2025 ONSC 2707

Bachand v. Leclair et al., 2024 ONSC 4044

Posner v. Ouanounou, 2024 ONSC 2971

Metske v. Metske, 2023 ONSC 1032