Court File and Parties

COURT FILE NO.: CV-17-2220 DATE: 2020 01 02 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Indira Sampath, Applicant and Sirju Deopersad and Sandra Maria Do Rego Deopersad, Respondents

BEFORE: Petersen J.

COUNSEL: Dalkeith Palmer, for the Applicant Rahul Kesarwani, for the Respondent Sandra Deopersad No one appearing for the Respondent Sirju Deopersad

HEARD: December 30, 2019

ENDORSEMENT

INTRODUCTION

[1] There are two motions before me, one brought by the Respondent Sandra Deopersad and a cross-motion brought by the Applicant Indira Sampath. Both motions relate to the distribution of net refinancing proceeds relating to a transfer of title between co-owners of a residential property on Saturn Drive in Brampton (hereafter the “Saturn property”).

[2] Title to the Saturn property was previously registered in the name of the Respondent Sirju Deopersad, but equitable title to the property was held by Mr. Deopersad and Ms. Sampath as tenants in common, with Mr. Deopersad holding a 40% interest and Ms. Sampath holding a 60% interest. Full legal and equitable title have since been transferred to Ms. Sampath and her son Bryan Neebar. The net refinancing proceeds from this transfer are the subject of the motions before me.

[3] Mr. Deopersad was served with the motion materials. He filed an affidavit supporting Ms. Sampath’s cross-motion but took no position on Ms. Deopersad’s motion. He did not file his own responding motion materials, nor did he file a factum. No one appeared on his behalf at the motion hearing.

[4] The relationships between the parties in this matter are somewhat complicated. The Respondents, Mr. and Ms. Deopersad, are ex-spouses who were married to each other and have three children together. Ms. Sampath is also Mr. Deopersad’s ex-spouse. She lived with him in a common law relationship after his marriage to Ms. Deopersad ended. She and Mr. Deopersad have now also separated. Mr. Neebar (Ms. Sampath’s son) is not a party to this proceeding, but he is involved in the factual matrix of the case.

BACKGROUND FACTS

[5] This proceeding arises out of a related but separate divorce proceeding between Mr. and Ms. Deopersad. I will not recite all the relevant background facts. Summaries of the history of the proceedings may be found in the judgments of Justice Wein in Deopersad v. Deopersad, 2016 ONSC 2919 and 2016 ONSC 4242 (unreported) and in Justice Shaw’s Endorsements in this proceeding: Sampath v. Deopersad, 2017 ONSC 7055 and 2018 ONSC 5307 (unreported).

[6] In short, the Respondents separated in January 2012 and Ms. Deopersad commenced a divorce Application in May 2014. The Application went to trial in February 2016. Justice Wein issued a judgment with respect to equalization, child support and spousal support issues in April 2016. She released a ruling on costs in June 2016. Her decisions resulted in orders against Mr. Deopersad, requiring him to pay Ms. Deopersad a total amount in excess of $195,000 and ongoing monthly child support and spousal support payments.

[7] Mr. Deopersad did not comply with the court orders. In June 2016, he sold the Respondents’ former matrimonial home for approximately $900,000 but did not use the proceeds of sale to pay the judgment against him.

[8] In an effort to enforce the judgment, Ms. Deopersad obtained a Writ of Execution. Then, in October 2016, a Writ of Seizure and Sale was issued in respect of the Saturn property. Title to the property was registered in Mr. Deopersad’s name. He had purchased it in 2011.

[9] Mr. Deopersad was served with a Notice of Sherriff’s Sale of the Saturn property in April 2017. He was residing with Ms. Sampath and Mr. Neebar at the property at that time. He responded to the notice by instructing his counsel to advise Ms. Deopersad’s counsel of a trust arrangement that he claimed existed between him and Ms. Sampath with respect to the property.

[10] In May 2017, Ms. Sampath registered a caution on title to the Saturn property. Mr. Deopersad then executed a Statutory Declaration declaring that Ms. Sampath had purchased the property, but title was registered in his name because she could not obtain mortgage financing.

[11] Ms. Sampath commenced the Application in this proceeding in June 2017. In her Application, she sought a declaration that Mr. Deopersad held title to the property in trust for her, a declaration that she was the 100% beneficial owner of the property, an order directing transfer of title to the property to her, as well as orders enjoining Ms. Deopersad from pursuing enforcement proceedings and preventing the Sheriff from selling the property.

[12] Ms. Sampath obtained an interim injunctive order from Justice Bloom in June 2017, ordering Ms. Deopersad to cease all enforcement proceedings until such time as the Application was heard.

[13] Justice Shaw heard the Application in July 2017. At that hearing, Ms. Deopersad alleged that Mr. Deopersad and Ms. Sampath were colluding to avoid the sale of the Saturn property and thereby defeat her enforcement proceedings. She argued that there was no trust arrangement between them and that Mr. Deopersad was the sole owner of the Saturn property.

[14] Justice Shaw made the following findings of fact. Ms. Sampath and Mr. Neebar attempted to purchase the property in March 2011, but the transaction was not completed. The property was then purchased by Mr. Deopersad in April 2011 for $349,000 and title was registered in his name alone. Ms. Sampath and Mr. Neebar began living at the Saturn property as soon as it was purchased. Ms. Deopersad, who was then still married to Mr. Deopersad, was not aware that Mr. Deopersad had purchased this property.

[15] Mr. Deopersad obtained a mortgage loan in the principal amount of $329,647.95 to complete the transaction. Ms. Sampath contributed $22,000 to the down-payment and Mr. Deopersad contributed $15,000. Justice Shaw rejected Ms. Sampath’s testimony that she borrowed the $15,000 from Mr. Sampath and paid him back by allowing him to live at the property rent-free for ten months commencing in January 2014. Justice Shaw found that Mr. Deopersad made the $15,000 contribution to the purchase price and was not reimbursed for that money.

[16] Justice Shaw also rejected other aspects of Ms. Sampath’s evidence, including her claim that she spoke to Ms. Deopersad about helping her to purchase the Saturn property in 2011. Justice Shaw placed little, if any, weight on Mr. Deopersad’s evidence in the proceeding because of his non-compliance with the outstanding judgment of Justice Wein. Justice Shaw held that “any evidence he proffers in this matter will be self-serving to avoid [Ms. Deopersad’s] attempts to enforce the judgment”.

[17] Based on documentary corroboration, Justice Shaw accepted Ms. Sampath’s evidence that she had been making the mortgage payments for the Saturn property, at least for the period from March 2014 to May 2016.

[18] There was no documentation to support Ms. Sampath’s and Mr. Deopersad’s claims that title to the property was at all times held in trust by Mr. Deopersad for Ms. Sampath’s sole benefit. Justice Shaw nevertheless found that there was a purchase money resulting trust. She concluded, based on their respective financial contributions to the purchase price of the property, that Ms. Sampath held a 60% ownership interest in the property and Mr. Deopersad held a 40% interest.

[19] In her November 2017 Endorsement, Justice Shaw commented on the mortgage payments made by Ms. Sampath. She remarked that Ms. Sampath and her son had been living at the property since it was purchased, so “it would be expected that they be paying the expenses for the property.” She held that the contributions made by Ms. Sampath to the carrying costs of the property were payments “contributed to her own asset”. For that reason, Justice Shaw declined to grant the relief requested in Ms. Sampath’s Application, other than a declaration that Ms. Sampath had a 60% interest in the property by virtue of a purchase price resulting trust.

[20] It is noteworthy that Ms. Sampath’s Application did not include any claims – in the alternative to her principal claim that she was the 100% owner of the Saturn property – seeking compensation from Mr. Deopersad for a proportionate share of contributions to the carrying costs of the property. Justice Shaw therefore did not address that issue in her Endorsement.

[21] In a subsequent April 2018 Endorsement, Justice Shaw vacated Justice Bloom’s temporary order enjoining Ms. Deopersad from continuing enforcement proceedings. Justice Shaw ordered that Ms. Deopersad could direct the Sherriff to sell Mr. Deopersad’s 40% interest in the property, but only after Ms. Sampath’s 60% interest was registered on title. She further ordered that Ms. Deopersad’s Writ of Execution would be temporarily suspended, if necessary, to effect this registration.

EVENTS GIVING RISE TO THE MOTIONS

[22] Mr. Deopersad subsequently agreed to transfer his 40% interest in the Saturn Property to Ms. Sampath and Mr. Neebar. Ms. Deopersad did not object to this transfer because she obtained an assurance that Ms. Sampath would refinance the property to acquire Mr. Deopersad’s 40% interest at fair market value and that the resulting payment to Mr. Deopersad would be assigned to her in partial satisfaction of his judgment debt.

[23] Ms. Deopersad consented to lifting her Writ of Execution so that Mr. Deopersad could transfer title to the property to Ms. Sampath and Mr. Neebar, on condition that she receive payment equivalent to Mr. Deopersad’s 40% interest in the property. She demanded and received an undertaking from Ms. Sampath’s real estate solicitor, Manbir Sodhi, to hold all net financing proceeds in trust pending agreement of the parties or a further court order with respect to distribution of the funds.

[24] The solicitor’s undertaking stipulates that the net financing proceeds are to be calculated as the gross mortgage advance obtained by Ms. Sampath and Mr. Neebar, less the amount payable to discharge the existing mortgage on the property, the amount required to pay the balance owing in Mr. Neebar’s Capital One account, and the amount of the broker’s fee.

[25] With the requisite assurances in place, the Writ of Execution was temporarily lifted on March 6, 2019 to permit Mr. Deopersad to transfer the full legal and beneficial title to the Saturn property to Ms. Sampath and Mr. Neebar. On March 7, 2019, the writ was reinstated on title to the property.

[26] In order to acquire Mr. Deopersad’s 40% interest in the property, Ms. Sampath and Mr. Neebar obtained mortgage financing in the amount of $390,000. A portion of those funds ($254,105.32) was used to discharge the existing mortgage on the property. A draft trust ledger statement from Mr. Sodhi’s office (dated March 5, 2019) reveals that the brokerage fee paid from the gross mortgage proceeds was $10,000 and the balance paid to Mr. Neebar’s Capital One account was $5,668.82.

[27] The draft trust ledger statement reveals that other expenses were also deducted from the mortgage principal of $390,000, notwithstanding Mr. Sodhi’s undertaking. Specifically, the following deductions appear to have been made:

Property Tax Holdback $ 1,500.00 FCT Fee $ 332.92 Application Fee $ 3,900.00 Paid Wire Fee $ 17.50 Land Transfer Tax $ 1,424.14 Fee to register transfer $ 76.55 Fee to register charge $ 76.55

[28] The March 5, 2019 draft trust ledge statement shows a total of $112,898.20 held in trust.

[29] A later trust statement from Mr. Sodhi dated September 22, 2019 shows different deductions being made from the mortgage principal, namely those mentioned in the solicitor’s undertaking, plus a further deduction of $4,968.32 for Mr. Sodhi’s legal fees and disbursements (despite his undertaking), and a final deduction of $5,000 given to Mr. Deopersad “in advance of settlement”. It is undisputed that, in April 2019, the parties agreed to instruct Mr. Sodhi to advance $5,000 of the refinancing proceeds to Ms. Deopersad, because she was about to be evicted from her apartment due to rent arrears.

[30] According to the most recent trust statement, a net amount of $104,507.19 from the mortgage refinancing proceeds is currently held in trust by Mr. Sodhi.

[31] Given the inconsistency in the evidence, it is unclear to me whether the deductions reflected on the March 5, 2019 draft trust ledger statement were actually made.

[32] In any event, to this day, Mr. Deopersad has not complied with Justice Wein’s orders. Apart from amounts collected by the Family Responsibility Office and remitted to Ms. Deopersad, and the $5,000 advance from the trust funds paid to Ms. Deopersad in April 2019, Mr. Deopersad has not made any payments toward satisfaction of his debt to her. The evidence in the motion record establishes that he still owes her approximately $145,000, with interest accruing on the outstanding amount.

THE PARTIES’ POSITIONS IN THE MOTIONS

[33] The parties agree that Ms. Deopersad is entitled to be paid the net proceeds owing to Mr. Deopersad from the transfer of his 40% interest in the Saturn Property, in partial satisfaction of his judgment debt to her. The parties disagree, however, on how to calculate the quantum of Mr. Deopersad’s share of the proceeds.

[34] In her motion, Ms. Deopersad challenges the propriety of some of the deductions reflected on the March 5, 2019 draft ledger statement. She argues that most of those disbursements should be borne entirely by Ms. Sampath and Mr. Neebar, not deducted from Mr. Deopersad’s 40% share of the proceeds. She submits that the improper deductions should be “added back” by way of repayment to the trust by Ms. Sampath.

[35] Based on the calculations in her factum, Ms. Deopersad submits that a total amount of $131,644.26 should be remitted to her from the refinancing proceeds, which would include the full amount of monies held in trust by Mr. Sodhi, plus additional amounts “added back” to the trust. She has indicated a willingness to wait, if necessary, for receipt of the “add back” amounts on reasonable terms.

[36] Ms. Sampath disputes the alleged impropriety of any of the deductions, but she acknowledges that Mr. Deopersad is not liable for 100% of the transactional costs. In response to Ms. Deopersad’s motion, Ms. Sampath proposes that Mr. Deopersad be held liable for 40% of the disbursements deducted, including the Land Transfer Tax, property tax hold-back, broker’s fee, various registration fees and solicitor’s fees.

[37] In her cross-motion, Ms. Sampath claims entitlement to reimbursement from Mr. Deopersad for his 40% share of the carrying costs of the property, which she claims to have paid over the years. She argues that further deductions must be made from Mr. Deopersad’s share of the refinancing proceeds to account for his proportionate liability for the carrying costs.

[38] Ms. Sampath’s claim is based on the principle of unjust enrichment. She submits that, by paying the mortgage and other carrying costs on her own over the years, she contributed significantly to Mr. Deopersad’s enrichment, to her own detriment, for which there is no juristic reason. She argues that she is therefore entitled in equity to be compensated. She submits, “It is only fair and just that Sirju [Mr. Deopersad] pays his 40 percent proportionate share of the carrying costs of the Property in order to benefit from the appreciated value and sale of his 40 percent ownership interest.”

[39] The appraised value of the property on the date of transfer in March 2019 was $605,000. Based on the purchase price in April 2011 (i.e., $349,000), the value of the property increased by $256,000 during the years of Ms. Sampath’s co-ownership of the property with Mr. Deopersad. The mortgage on the property was concurrently reduced over that period of time. The principal owing on the mortgage was originally $329,647.95 at the date of purchase and $254,105.32 was required to discharge the mortgage when Mr. Deopersad’s 40% interest was transferred in March 2019.

[40] Ms. Sampath acknowledges that the value of Mr. Deopersad’s 40% share of the equity in the property is payable to Ms. Deopersad in partial satisfaction of the outstanding judgment against Mr. Deopersad, but she argues that the calculation of his share of the equity must take into consideration his 40% liability for household expenses, including $69,000 in mortgage payments, $18,000 in utilities and $5,222 in home insurance premiums. At the motion hearing, Ms. Sampath’s counsel suggested that she could prove the precise amounts owed by Mr. Deopersad by way of a Reference before a Master.

[41] Mr. Deopersad agrees with Ms. Sampath’s position on this issue, although he has not taken any position on the precise amounts owing to her for his proportionate share of the carrying costs. In his affidavit, he simply deposed that, “I … agree with Ms. Sampath that the net amount payable to me [and ultimately to be remitted to Ms. Deopersad] must take into consideration my 40% proportionate share of the mortgage paid and all other associate (sic) costs during the period of my ownership.”

[42] Ms. Deopersad opposes Ms. Sampath’s cross-motion. She argues that, as a judgment creditor holding a Writ of Execution stemming from claims associated with child and spousal support, equalization, costs and interests, she has a claim to Mr. Deopersad’s 40% equity in the property that takes priority over Ms. Sampath’s claims, which have not been determined or even filed in any court of law. In reply, Ms. Sampath submits that she has no need to commence legal proceedings against Mr. Deopersad, because he has agreed to pay her his proportionate 40% share of the carrying costs from his equity in the Saturn property. Ms. Deopersad views this agreement as evidence of Ms. Sampath’s ongoing collusion with Mr. Deopersad to artificially reduce the value of his share of the equity in the Saturn property in order to prevent her from enforcing the judgment against him.

[43] Ms. Sampath denies any collusion. She submits that this is not a situation of priority between creditors. She argues that Ms. Deopersad is only entitled to collect from the net refinancing proceeds the amount that Mr. Deopersad is legally entitled to receive for his 40% interest, which necessarily must take into account adjustments for his proportionate carrying costs.

[44] Ms. Deopersad argues that, if any accounting is allowed to apportion the carrying costs, then the accounting must also include consideration of occupation rent payable by Ms. Sampath to Mr. Deopersad during the years that she occupied the property with her son and enjoyed exclusive benefit of that occupancy. Ms. Sampath objects to this occupation rent claim, arguing that it is specious because Mr. Deopersad has not sought occupation rent payments.

[45] According to the calculation appended to Ms. Sampath’s factum, she takes the position that Ms. Deopersad is only entitled to receive $75,336.02 of the remaining trust funds. Given her position, I made an interim order on the date of the motion hearing directing Mr. Sodhi to release $75,000 of the funds currently held in trust to Ms. Deopersad, the remainder to continue to be held in trust pending final resolution of the outstanding issues in dispute.

ANALYSIS

[46] In my view, the quantum of Mr. Deopersad’s 40% share of the net refinancing proceeds from the Saturn Property should be calculated as follows.

[47] First, the starting point for the calculation is not the amount of monies currently held in trust, nor the net amount that would be in trust after the deductions permitted by Mr. Sodhi’s solicitor’s undertaking. Rather, the actual equity in the property must be calculated as of the date of transfer of Mr. Deopersad’s 40% interest to Ms. Sampath and Mr. Neebar. The appraised value of the Saturn Property at the time of the transfer was $605,000. The mortgage on the property was $254,105.32. There was, therefore, equity in the property in the amount of $350,894.68 on the date of transfer. Mr. Deopersad’s 40% share of the equity was valued at $140,357.87.

[48] Next, a determination must be made of Mr. Deopersad’s liability for any disbursements incurred as a result of the refinancing and the transfer of his interest. Expenses for which he is liable must be deducted from the gross amount ($140,357.87) of the proceeds payable to him.

[49] The evidence shows that $5,668.82 of the principal mortgage funds were used to pay the balance on Mr. Neebar’s Capital One credit card. Ms. Sampath argues that this was appropriate because it was a requirement of the mortgagee. Only the first page of the mortgage commitment letter was included in the record and it does not show this requirement, but Mr. Sodhi’s account corroborates that the debt was paid “as required by the Lender”. In my view, the fact that the mortgagee insisted on payment of Mr. Neebar’s credit card debt is irrelevant. This is not a disbursement for which Mr. Deopersad has any liability whatsoever, hence no portion of that payment to Capital One should be deducted from the gross proceeds payable to Mr. Deopersad.

[50] I agree with Ms. Deopersad’s submission that the Land Transfer Taxes should not be deducted from Mr. Deopersad’s share of the proceeds. During her cross-examination, Ms. Sampath acknowledged that such taxes are typically paid by the purchaser/transferee in a real estate transaction, not by the vendor/transferor. At the motion hearing, Ms. Sampath’s counsel submitted that she and Mr. Deopersad had reached an agreement to split the Land Transfer Taxes in accordance with their proportionate ownership shares. There is no evidence to support that submission. The Land Transfer Taxes are properly borne by Ms. Sampath and Mr. Neebar, who acquired Mr. Deopersad’s interest in the property.

[51] I also agree with Ms. Deopersad’s submission that the $1,500 hold-back for property taxes should not be deducted from Mr. Deopersad’s share of the proceeds. The precise purpose of the hold-back is unclear from the record. Ms. Deopersad argues that it benefits Ms. Sampath and Mr. Neebar exclusively because the funds are held back to protect the lender from liability for future property taxes. Ms. Sampath argues that it benefits Mr. Deopersad because the funds are held back to cover past property taxes. The evidence in the record is insufficient to enable me to make a determination of this issue. I note, however, that Ms. Sampath gave an undertaking during her cross-examination to request from Mr. Sodhi information regarding the purpose of the hold-back. She did not fulfill that undertaking. I therefore draw an adverse inference against her and conclude that no portion of the hold-back monies were for Mr. Deopersad’s benefit.

[52] I agree with Ms. Deopersad’s submission that the $76.55 fee to register the title transfer should be borne exclusively by Ms. Sampath and Mr. Neebar as the transferees. Consequently, no portion of that amount will be deducted from Mr. Deopersad’s share in the equity.

[53] Ms. Deopersad accepts that Mr. Deopersad must contribute to the refinancing costs and that his share of the proceeds will be reduced by his proportionate share of those costs. Furthermore, she acknowledges that she should contribute to the refinancing costs, since she benefitted from the transaction. She suggests that the costs be divided equally between them and Ms. Sampath and Mr. Neebar, who benefitted equally (in different ways) from the refinancing. I agree with this suggested approach.

[54] The refinancing costs include:

• a $76.55 fee to register the charge on title to the property,
• a $332.92 FCT Fee,
• a $3,900 Application fee, and
• a $17.50 wire fee.

[55] These transactional fees total $4,326.97. All of these fees are directly attributable to the mortgage refinancing. They should therefore be apportioned equally between the four persons who benefitted from the refinancing. Mr. Deopersad’s gross share of the proceeds will consequently be reduced by $1,081.74 to reflect his 25% share of these fees. Ms. Deopersad’s ultimate payout from the net refinancing proceeds payable to Mr. Deopersad will be reduced by a further $1,081.74 to reflect her 25% contribution to these fees.

[56] In my view, the same approach should be taken to apportion the real estate solicitor’s fees ($4,968.32) and the broker’s fee ($10,000 [1]). Ms. Deopersad, Mr. Deopersad, Mr. Neebar and Ms. Sampath all benefitted from the legal services and brokerage services provided. They should therefore contribute equally to those fees. Mr. Deopersad’s gross share of the proceeds will therefore be reduced by $3,742.08 to reflect his 25% share of the legal and brokerage fees. Ms. Deopersad’s ultimate payout from the net refinancing proceeds payable to Mr. Deopersad will be reduced by a further $3,742.08 to reflect her 25% contribution to these fees.

[57] In my view, no further deductions should be made from Mr. Deopersad’s gross share of the refinancing proceeds. While I sympathize with Ms. Sampath’s sentiment that it seems inequitable for Mr. Deopersad to enjoy the benefit of the appreciated value in the property without having contributed to the carrying costs, her claim for monetary compensation for unjust enrichment was not pleaded in her Application. In her Notice of Application, she sought a declaration that she is the 100% beneficial owner of the Saturn property. She also sought additional declaratory and injunctive relief consistent with a 100% ownership interest. She was not entirely successful on the Application. She obtained only a declaration that she held a 60% beneficial interest in the property. Her Application did not include any alternative pleadings, in the event that Mr. Deopersad were found to be a part owner of the property. She did not plead that, in such event, she should be compensated by Mr. Deopersad for unjust enrichment based on her disproportionate contributions to the carrying costs.

[58] It is well established in the jurisprudence that a successful claim for unjust enrichment may attract either a personal restitutionary award or a proprietary restitutionary award. In other words, a successful claimant may be entitled to a monetary or a proprietary remedy. A monetary remedy may or may not be calculated based on quantum meruit. A proprietary remedy typically takes the form of a constructive trust: International Corona Resources Ltd. v. LAC Minerals Ltd., , [1989] 2 S.C.R. 574, at p. 669, per La Forest J.; Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 46-53, per Cromwell J.

[59] The issue of compensating Ms. Sampath monetarily for Mr. Deopersad’s alleged unjust enrichment was never raised and was therefore not addressed by Justice Shaw. Justice Shaw did, however, take into consideration the contributions that Ms. Sampath had made to the mortgage and carrying costs. She ruled that those contributions did not entitle Ms. Sampath to a greater ownership interest in the property than 60% (or to any other relief sought in Ms. Sampath’s Application).

[60] Although Justice Shaw did not expressly say so, I find that her reasons in paragraphs 77 to 80 of her November 24, 2017 Endorsement effectively reject a claim for a proprietary remedy for any unjust enrichment that Ms. Sampath may have suffered. Justice Shaw concluded, at paragraph 76, that Ms. Sampath’s contribution to the purchase price of the property entitled her to a 60% ownership interest. She concluded, in paragraphs 77 to 80, that Ms. Sampath’s contributions to the carrying costs of the property did not entitle her to a greater percentage ownership interest. In other words, Justice Shaw ruled that Ms. Sampath was not entitled to a proprietary remedy (constructive trust) for unjust enrichment.

[61] I make no finding as to whether Ms. Sampath may be entitled to monetary compensation from Mr. Deopersad for unjust enrichment. She may choose to pursue him for compensation in a separate legal proceeding if he is unwilling to pay her the amounts that she claims he owes. She is not, however, entitled to obtain that remedy in the context of this proceeding, in which no claim for compensation based on unjust enrichment was pleaded.

[62] Moreover, although Mr. Deopersad agrees in his affidavit to Ms. Sampath’s suggestion that his 40% share of the carrying costs should be deducted from the refinancing proceeds payable to him before the net proceeds are paid to Ms. Deopersad, that agreement cannot defeat Ms. Deopersad’s claim. When Ms. Deopersad’s Writ of Seizure and Sale was issued against Mr. Deopersad’s interest in the Saturn property, it entitled her to the sale proceeds of whatever legal or equitable interest Mr. Deopersad had in the real property: Ferrier v. Civiero, 1999 CarswellOnt 4197 (S.C.), 2000 CarswellOnt 5277 (Div. Ct.) and , 147 O.A.C. 196 (Ont. C.A.), referenced in Ferrier v. Ontario, 2003 CarswellOnt 5917 (S.C.), at para. 39. Mr. Deopersad’s 40% ownership interest in the property had a value of $140,357.87. Ms. Deopersad is therefore entitled to that amount, subject only to reasonable deductions relating to Mr. Deopersad’s liability for transactional costs associated with the transfer of his interest and the refinancing the property.

[63] Ms. Sampath’s claim for compensation due to unjust enrichment, however meritorious it may be, cannot take priority over Ms. Deopersad’s entitlement. If Ms. Deopersad had persuaded Justice Shaw to declare that she had a greater than 60% ownership interest in the property based on her contributions to the carrying costs, her position would be different. Those are not the facts before me.

[64] For the reasons explained above, the reasonable deductions from Mr. Deopersad’s gross 40% share of the proceeds are the following:

Transactional fees $ 1,081.74 Legal and brokerage fees $ 3,742.08 TOTAL: $ 4,823.82

[65] The net amount of the refinancing proceeds payable to Mr. Deopersad is therefore $135,534.05 (i.e., $140,357.87 - $4,823.82). Ms. Deopersad is entitled to be paid that amount, subject to the following deductions:

(i) $4,823.82 for her 25% contribution to the transactional fees and legal and brokerage fees associated with the refinancing (as calculated above); (ii) $5,000 for the advance that she received from the trust funds in April 2019; and (iii) $75,000 for the funds advanced to her pursuant to my interim order at the motion hearing.

[66] The outstanding amount owing to Ms. Deopersad is therefore $50,710.23.

CONCLUSION

[67] For all of the above reasons, I grant Ms. Deopersad’s motion and dismiss Ms. Sampath’s cross-motion.

[68] I order that Ms. Deopersad be paid, from the proceeds of refinancing of the Saturn property, the amount of $50,710.23 (in addition to the $80,000 already advanced to her).

[69] The funds remaining in trust with Mr. Sodhi shall immediately be released to Ms. Deopersad in full. I am unable to calculate the shortfall because the precise amount of money held in trust is unclear from the record. Whatever the shortfall, it must be paid to Ms. Deopersad by Ms. Sampath, who ought not to have instructed Mr. Sodhi to apply the refinancing proceeds to disbursements that she and Mr. Neebar ought to have incurred. (If she did not provide those instructions, she will need to address that issue with Mr. Sodhi.)

[70] Since Ms. Deopersad has indicated a willingness to accept some reasonable delay in the payment of the shortfall amount, I order that (subject to any different agreement reached by the parties) the full amount owing to Ms. Deopersad shall be paid by Ms. Sampath within 180 days.

[71] As the successful party, Ms. Deopersad is presumptively entitled to her costs of these motions, subject to any offers to settle that may impact either her entitlement or the quantum of costs owing.

[72] The parties are encouraged to resolve the issue of costs through a negotiated settlement, failing which brief written submissions with respect to costs can be made. Ms. Deopersad shall serve and file a Bill of Costs and her written submissions by February 14, 2020. (I have allowed a period of approximately six weeks so that the parties have time to endeavour to settle costs, knowing that Mr. Palmer will be away for two weeks commencing January 3, 2020.) Ms. Sampath’s costs submissions shall be served and filed by February 28, 2020. The parties’ written submissions must be restricted to two pages, excluding any offers to settle. Submissions should be sent to my attention at the Brampton Courthouse or may be emailed to my judicial assistant.

NOTE: If I have made any arithmetical errors in the calculations in this Endorsement, either party may bring those errors to my attention and a telephone conference call will be scheduled, if necessary, to address and correct them.

Petersen J. Date: January 2, 2020

[1] Ms. Deopersad initially objected to the amount of the broker’s fee, arguing that it was excessive, but she withdrew that objection at the motion hearing.