Court File and Parties
COURT FILE NO.: FS-20-21098 DATE: 2020-09-21 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Charles Crouchman Applicant
– and –
Sandra Jean Garant Respondent
COUNSEL:
Jarrod Patterson, for the Applicant
Anthony Leardi, for the Respondent
HEARD: September 18, 2020
RULING ON MOTION
HEBNER J.
[1] The applicant brought a motion seeking, among other relief, an interim order granting a certificate of pending litigation to be registered against the lands and premises municipally known as 85 Miriam Court, Essex, Ontario, N8M 1Z8. This property is a mobile home in a trailer park owned by the respondent. The respondent does not own the land on which it sits. Accordingly, there is no place for the registration of a certificate of pending litigation. Mr. Patterson proceeded with his motion requesting, instead, an order that one-half of the sale proceeds of the trailer be placed into trust as security for his client’s claim.
Background Facts
[2] The applicant and the respondent were never married. They resided together for a lengthy period of time. The applicant asserts that the parties resided together since shortly after they began their relationship in approximately 2000 until 2020. The applicant asserts that the parties were living together in a relationship resembling marriage. The respondent concedes that the parties had a romantic relationship with each other that lasted from 2003 to 2009. She asserts that after 2009, the parties no longer had a romantic relationship but continued to reside at the same residence. She asserts that the parties resided together from 2004 to 2020.
[3] The applicant left the mobile home in March 2020. He claims to have been ousted from the home by the respondent and her son, Brian Garant. The mobile home has now been sold and Mr. Leardi has fairly advised that the closing of the sale is imminent. Absent any order, the net proceeds of sale will, in due course, be paid to the respondent.
The Claim
[4] The applicant claims an interest in the mobile home based on trust principles. Mr. Patterson advised that the claim is based on the alleged existence of a joint family venture.
[5] The purchase of the mobile home took place in 2016. The applicant asserts that the parties purchased it together. The respondent asserts that she purchased it herself. Although the applicant asserts that he made the down payment, the respondent provided proof that she made the payment in the form of a receipt from Libro Credit Union showing money she withdrew to make the payment. The mobile home was placed in the name of the respondent. The applicant claims the reason is that he was an undischarged bankrupt.
[6] Over the next four years, the applicant claims to have conducted extensive renovations to the residence with the assistance of his son-in-law and three grandsons. The applicant provides an extensive list of renovations he completed, including the installation of a bathroom, the construction of a mud room, the installation of new siding, the installation of new windows and the replacement of the roof.
[7] The respondent disputes this claim. She claims that her son, Brian Garant, completed the bulk of the renovations with minimal assistance from the applicant. She said, “Charles handed my son tools and supplies while my son worked.” She admits that the applicant helped to pull the old siding off and nailed the new siding on but asserts that “he did a terrible job” and Brian Garant had to repair it. The respondent asserts that the applicant was physically incapable of doing the renovations he claims given his physical limitations. The applicant’s income consists of WSIB and CPP disability benefits. The respondent asserts that the applicant was not physically capable of doing the work that he claims to have done.
[8] The applicant asserts that he paid for the renovations without contribution from the respondent. He provides, as proof, copies of a purchase order in his name for a granite countertop and two copies of credit card statements showing large purchases at Rona, Lowes and Canadian Tire, including a $2,487.95 purchase of a gazebo. He states, “I have significantly more receipts and notes regarding those costs and can provide them upon request.” The applicant claims to have a Walmart MasterCard with a balance of approximately $13,000. He asserts that the card was used to finance renovations to the home as well as the parties mutual living expenses. He asserts that the respondent had control of the credit card and used it for both her own and joint expenses.
[9] The respondent disputes the applicant’s claimed monetary contribution. She states that the applicant did not contribute anything and denies that any of the charges on his credit card are related to the mobile home. The respondent claims that she did not use the applicant’s Walmart card and that, as of March 30, 2020, the balance of the card was $1,000.
[10] The applicant seeks to proceed with a claim for an interest in the mobile home (or proceeds of sale) as a result of what he claims are his substantial contributions. He claims the existence of a joint family venture (see Kerr v. Baranow, 2011 SCC 10).
Position of the Parties
[11] The applicant takes the position that one-half of the proceeds of sale ought to be held in trust as security for his claim.
[12] The respondent takes the position that the applicant’s claim is specious and that there ought to be no hold on any portion of the proceeds of sale.
Analysis
[13] Where parties are married and on separation one spouse claims an equalization of net family property, the court has jurisdiction under s. 12 of the Family Law Act to make an order for the preservation of the spouses’ property pending a determination of the claim. The jurisdiction includes an order “for the possession, delivering up, safekeeping, and preservation of the property”: see s. 12(b). What is the jurisdiction where the parties were not married?
[14] In Dimartino v. Dimartino, 2016 ONSC 7461, the parties were married for 45 years and had two adult children. The husband was in the business of buying and selling properties. The wife claimed that the husband had transferred a property to his son, who was also in the building business, for nominal consideration. The wife claimed that the transfer was fraudulent. She brought a motion for a preservation/non-dissipation order against the son.
[15] Charney J. confirmed that the Family Law Act, s. 12(b), does not permit the court to make an order against a third party to the proceeding. The express language of s. 12 of the Family Law Act is directed to property owned by a spouse and not property owned by a third party. The wife had to rely on the equitable jurisdiction of the court to grant a Mareva injunction. In para. 32, Charney J. articulated the test relating to Mareva injunctions by reference to a 2014 decision of Perell J. as follows:
In O2 Electronics Inc. v. Sualim, 2014 ONSC 5050 (Ont. S.C.J.), at para. 67, Perell J. summarized the law relating to Mareva injunctions as follows:
For a Mareva injunction, the moving party must establish: (1) a strong prima facie case; (2) that the defendant has assets in the jurisdiction; and (3) that there is a serious risk that the defendant will remove property or dissipate assets before the judgment. A Mareva injunction should be issued only if it is shown that the defendant’s purpose is to remove his or her assets from the jurisdiction to avoid judgment. The moving party must also establish that he or she would suffer irreparable harm if the injunction were not granted and that the balance of convenience favours granting the injunction. Absent unusual circumstances, the plaintiff must provide the undertaking as to damages normally required for any interlocutory injunction.
[16] Although the facts in Dimartino are different than the facts before me, the analysis is the same. The Family Law Act, Part One, applies only to spouses who were married. As the applicant cannot request a preservation order under s. 12 of the Family Law Act, he is limited to requesting relief in the form of a Mareva injunction.
[17] The test for a Mareva injunction presents a higher hurdle than the test for a non-dissipation order: see Price v. Price, 2016 ONSC 728, and there is good reason for that. A Mareva injunction is akin to execution before judgment. A Mareva injunction is exceptional relief and can only be granted in extraordinary circumstances. When ordered, such extraordinary relief ties up the assets of the respondent before there has even been a determination on the merits of the case and before any judgment adverse to the respondent has been rendered. A request for such extraordinary relief imposes a considerable burden on the moving party.
[18] I turn now to the test as articulated by Perell J., above.
1. The applicant must establish that he has a strong prima facie the case.
[19] Here, the parties lived together in a domestic relationship for a significant time period; between 16 and 20 years. The mobile home was purchased after the parties had been together for at least 12 years. There is disputing evidence on the contributions made by the respondent towards the mobile home. It does not appear, based on the evidence provided so far, that he contributed towards the purchase price. There is competing evidence on the applicant’s contribution, if any, towards the costs of renovations completed at the mobile home. The applicant has provided some documentation to prove that he contributed towards these costs and has indicated he has many more receipts. There is competing evidence on the applicant’s contribution, if any, towards the physical work completed on the renovations. The applicant claims to have completed significant work. The respondent concedes some of the work but minimizes the applicant’s contribution.
[20] Based on the evidence that I have before me, in my view the applicant has a strong prima facie claim to some relief based on the length of relationship, the respondent’s admission that the applicant performed some work on the mobile home and the applicant’s proof of some financial contribution. The value, if any, of the applicant’s contributions is another question that will have to be decided by the trial judge in due course.
2. Does the respondent have assets in the jurisdiction?
[21] The respondent owns the mobile home. Once the mobile home is sold, she will have the proceeds of sale.
3. Has the applicant established a serious risk that the respondent will dissipate the proceeds of sale before judgment?
[22] The applicant gave evidence that he heard the respondent discuss her plans with her son, Brian Garant, on multiple occasions. The plan he heard was that the respondent intended to sell the mobile home and use the proceeds of sale to build a garage at Brian Garant’s home with a suite above it to serve as the respondent’s living quarters. The respondent did not dispute this evidence in her affidavit. If this plan were to come to fruition, then the proceeds would be dissipated and there is no indication that the respondent would have any other assets to satisfy a judgment.
4. The applicant must establish that he would suffer irreparable harm if the injunction were not granted and that the balance of convenience favours the granting of the injunction.
[23] The irreparable harm would be the inability to enforce any judgment in his favour. As for the balance of convenience, if one-half of the net proceeds of sale were held in trust, the applicant would have access to the other half of the net proceeds. There is no indication that she requires more than that. The balance of convenience, at this point, favours the applicant.
5. The applicant is required to provide an undertaking as to damages.
[24] There is no such undertaking in the applicant’s affidavit, probably because the motion did not initially request a Mareva injunction. This can be remedied by requiring the applicant to provide such an undertaking.
Disposition
[25] Having considered all of the foregoing and the factual matrix of this case, it is my view that the applicant has met the test for a Mareva injunction.
[26] I make the following order:
The applicant shall serve on the respondent and file with the court an undertaking to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the Mareva injunction has caused damage to the respondent for which the applicant ought to compensate the respondent.
Following service and filing of the undertaking, an order shall issue that one-half of the net proceeds of sale of the mobile home located at 85 Miriam Court, Essex, Ontario, M8M 1Z8, shall be held in trust pending further court order. If the parties are unable to agree on the appropriate trust account, the funds shall be held in trust by the respondent’s counsel, Anthony Leardi.
The applicant may file his financial statement with only his 2019 Notice of Assessment and shall have 40 days to file his 2017 and 2018 Notices of Assessment.
A case conference shall be scheduled by the Trial Coordinator. The balance of the relief claimed in the applicant’s notice of motion, specifically the request for the return of certain items of personal property, is adjourned to the case conference to be spoken to.
“Electronically signed and released by Hebner J.” Pamela L. Hebner Justice
Released: September 21, 2020
COURT FILE NO.: FS-20-21098
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Charles Crouchman Applicant
– and –
Sandra Jean Garant Respondent
RULING ON MOTION
Hebner J.
Released: September 21, 2020