Court File and Parties
Court File No.: 1357-16 Date: 2021-06-01 Superior Court of Justice - Ontario
Re: Susan Foertsch And: Gordon Foertsch
Before: The Honourable Madam Justice C. Lafrenière
Heard: February 17, February 19, March 3 and March 4, 2021
Counsel: J. Orme for the Applicant The Respondent self-represented
Judgment
Matter before the Court
[1] This is my judgment with respect to the trial heard in this matter.
[2] I will identify the parties as Susan and Gordon in this judgment.
[3] Susan commenced an Application on September 8, 2016, seeking only a judgment for divorce and costs in the event that Gordon filed an Answer to the Application.
[4] Gordon did file an Answer to the Application claiming various relief.
[5] The divorce was granted on July 25, 2017, resolving the claims in the Application except for costs. I note here that the divorce was granted on an uncontested basis because Gordon’s Answer was not filed until August 1, 2017, after he received a copy of the Divorce Judgment.
[6] As the only outstanding substantive claims were those in the Answer, at the commencement of trial, I determined Gordon would put his case in first, followed by Susan’s case and then followed by Gordon’s reply case, if he chose to call one. The parties agreed to this arrangement.
[7] In Gordon’s Answer, he sought an Order for exclusive possession of the matrimonial home and its contents, an unequal or equal division of the Net Family Property, a declaration that he holds an interest in the matrimonial home by way of resulting and or constructive trust. Also, in Gordon’s Answer he refers to a verbal agreement between the parties regarding the property at 35 Harrison Avenue.
[8] Gordon’s position advanced at trial is that the Court should find this verbal agreement constitutes an enforceable contract to which Susan must be held.
Issues to be determined
[9] The issues to be determined are as follows:
a) Did the parties have a verbal agreement regarding the property issues arising out of their marriage and separation specifically regarding the equalization of net family property and disposition of the property known as 35 Harrison Avenue?
b) If the parties did have a verbal agreement, what were the terms of that agreement?
c) If the terms can be ascertained, do those terms constitute an enforceable contract, such that the Court should order specific performance of the contract?
d) If the Court finds there was no agreement or the agreement is not enforceable, does Gordon have an interest in the property by way of resulting trust or constructive trust?
e) Finally, when the parties’ respective interests in the property are determined, what is the equalization payment required to be made by one party to the other to equalize the Net Family Property in this matter?
[10] Gordon did not pursue his claim for an unequal division of the Net Family Property in this matter. No evidence was led by either party regarding this claim. I consider this claim to be withdrawn.
[11] Gordon advised at the conclusion of the trial, he did not want “any part” of Susan’s employment pension and stipulated Susan’s employment pension need not be included in Susan’s Net Family Property for equalization purposes.
[12] Gordon’s Net Family Property statement sets out only one asset and that is the subject property. The whole of the property is listed on Gordon’s side of the equation. Gordon does not list any debts or seek any exclusions or deductions. He does not list any assets or debts in Susan’s name. On this basis, I make no decision as to an equalization of Net Family Property, especially considering Gordon’s position with respect to Susan’s pension. I consider Gordon’s claim for an equalization of Net Family Property to also be withdrawn.
[13] It is important to note that neither party had filed a Net Family Property Statement at the commencement of trial. They only did so at my insistence. As Gordon is the moving party with respect to his claim, I have focused on his statement to reach my conclusion that he effectively withdrew this claim.
[14] The parties achieved some consensus at the conclusion of trial. I made an Order on consent as follows:
Pursuant to the parties’ consent, there will be a Final Order as follows:
a) The property known municipally as 35 Harrison Ave, Hamilton, Ontario shall be immediately listed for sale;
b) Ms. Valerie Dalgetty-Righton shall be the real estate agent having carriage of the sale of the property;
c) Mr. Mark Dudzic shall be the lawyer having carriage of the real estate file, although each party may have her or his own counsel as well;
d) Pending release of trial judgment and decision on costs in this matter, the net proceeds of sale of the property shall be held in an interest bearing trust account. Net proceeds means the gross sale proceeds less payment of any outstanding encumbrances or other costs and real estate fees required to complete the transaction;
e) In the event that the parties cannot agree as to the terms of the sale or whether or not any particular offer should be accepted, a time before Justice Lafrenière should be arranged through the Trial Office for a hearing to determine the issue(s) in dispute;
f) The Applicant’s pension asset shall not be included in her net family property as the Respondent waives any right or claim to have this asset included in the net family property equalization calculation; and,
g) The balance of the issues is reserved.
[15] There is a Certificate of Pending Litigation registered against the property as well as a Declaration that the property is a matrimonial home.
[16] The parties also agreed that Certificate will be discharged as the parties have agreed the property will be sold and, further that the designation of the property as a matrimonial home will be removed because the property is no longer a matrimonial home as a result of the parties’ divorce.
Undisputed Facts
[17] I find the following background facts in this matter:
a) The parties were married on May 24, 2003 and separated on August 1, 2009;
b) The parties have no children together;
c) Susan is the registered owner of 35 Harrison Avenue, Hamilton (“the property”);
d) The property was purchased on March 5, 2004 for $87,400.00 with a mortgage of $86,219.00;
e) the parties resided in the property together until separation; and,
f) Gordon has continued to reside in the property since separation.
Result
[18] For the reasons articulated in this judgment, I find that Gordon has not established that the parties had a verbal contract regarding ownership of the subject property. If I am wrong in this finding and there is evidence to support the existence of a verbal contract, I find that the contract is not enforceable because Gordon has not established there was part performance of the contract to his determent.
[19] I am satisfied that Gordon has established on the evidence he has a constructive trust claim with respect to the property. I find that Gordon has a 50% interest in the property.
[20] I am satisfied that the evidence supports the finding that the parties intended to own the property jointly despite the fact that when it was purchased the title and mortgage were registered in Susan’s name alone.
[21] I make that finding and, on that basis, I order that the net sale proceeds of the matrimonial home are to be divided equally between the parties.
Gordon’s evidence
[22] Gordon is a painter and drywaller by trade.
[23] Gordon’s evidence is that Susan moved out of the property when they separated. At first, Gordon wanted to sell the house, but then determined if he rented out rooms he would be able to keep the house.
[24] About one month after they separated, Gordon says he and Susan reviewed their assets and debts. Gordon had a VISA debt of about $18,600.00 and Susan had a Mastercard debt of about $7,000.00. Susan’s car was worth more than his car. Both vehicles were registered in Susan’s name. Gordon did not specify the difference in value between the cars. Susan drove the 2000 Intrepid car and Gordon drove the 2004 Chevy Ventura van.
[25] He says they talked about the fact that if they sold the house, they would likely only receive enough funds to pay off their debts. Gordon’s evidence is clear that if the house was sold then, their intention was that the net sale proceeds be divided equally between them.
[26] Gordon says they made a deal which is the verbal contract upon which he relies. They agreed:
a) Gordon would keep the house and maintained all of the expenses, including the mortgage and municipal taxes;
b) each party would keep their own credit card debt;
c) each party would keep the car they used;
d) Susan would sign over ownership of the van to Gordon;
e) Gordon would pay Susan $10,000.00, when he could afford to do so; and,
f) the house would continue to be held in Susan’s name until he could arrange with the bank to have the mortgage transferred into his name alone.
[27] Susan signed the van over to Gordon.
[28] Gordon never paid Susan the $10,000.00.
[29] Gordon did not arrange to have the mortgage transferred to his name alone. The title to the property and the mortgage have continued to be in Susan’s name alone.
[30] Gordon paid off his credit card debt. Susan paid off her credit card debt.
[31] Seven years went by according to Gordon before the parties discussed things again. At that time, Gordon became aware of the increase in market value of the property because of the sale of houses in the neighbourhood. He decided he was going to move to Newfoundland and sell the house. He told Susan that he would give her $20,000.00 rather than the agreed upon $10,000.00 from the net proceeds of sale. Gordon’s position was that he would keep the rest of the net proceeds.
[32] Gordon conceded there was no agreement between he and Susan about this $20,000.00 payment. He said Susan did not answer him, when he made this proposal.
[33] The next thing that happened is Gordon was served with an Application for divorce. As noted above the only claims were for a divorce and costs if an Answer was filed. In the part of the Application entitled IMPORTANT FACTS SUPPORTING OUR CLAIMS(S) the following four paragraphs are set out:
a) These are the important facts that support a simple divorce.
b) Under paragraph 30 I only seek costs if an answer is filed.
c) The Applicant is the sole owner of 35 Harrison Avenue, Hamilton. The house was bought in 2004 and used as a material (sic) home when the parties separated on August 1, 2009.
d) The Respondent continues to live in the former matrimonial home and he is paying the mortgage and all costs. The agreement is that if the Respondent should die, any claim he has on the former matrimonial home is void however is [sic] the Applicant sells the home while both parties are alive the net proceeds will be divided equally.
[34] Gordon testified that he performed the terms of the verbal contract in part by paying his VISA debt. He said that when he told Susan he had paid the VISA debt she got mad. Gordon said he tried to give Susan the $10,000.00 in 2013 or 2014 and she would not take it. He later clarified he never offered to pay the $10,000.00 all at once but rather offered to pay Susan $1,000.00 or $2,000.00.
[35] Gordon says he has also made part performance by maintaining the expenses of the home. He makes the mortgage and utility payments directly, but the house insurance payment is automatically withdrawn from Susan’s bank account. Gordon then reimburses her for these payments by cheque. Gordon acknowledged that when he testified, he was two months behind in the reimbursement of the house insurance.
[36] Gordon’s evidence is that the house was put in Susan’s name alone on the advice of the real estate agent. At that time, Gordon had not filed his Income Tax Returns (“ITR”) for several years. The concern was that if Gordon was assessed by the government and found to be owing income tax, the government might take the house, if it was in joint names.
[37] In Gordon’s Answer, dated August 1, 2017, he stated that the bank would not agree he be on the title or mortgage to the property because he had not filed his ITRs for several years. Gordon further stated that he had not filed any ITRs after the house was purchased in 2004.
[38] He did sign the mortgage setting out his consent as a spouse to the mortgage being placed on a matrimonial home.
[39] There was an $8,000.00 down payment when the house was purchased. Susan borrowed the funds from her stepmother. Susan then got a bank loan and used the loan funds to re-pay her stepmother. Gordon says they both contributed to the payment of the loan.
[40] While the parties lived together, the mortgage payments, municipal tax payments and house insurance were paid from Susan’s account.
[41] Gordon did not contribute funds to that account.
[42] Gordon said he was earning about the same income as Susan and he paid for the food, gas and repairs on the house.
[43] Susan paid the utility bills.
[44] Gordon said that Susan often did not have sufficient funds to pay the mortgage or other expenses paid from her account. When that happened, Gordon used his VISA to pay the bills.
[45] He made repairs to the home before separation. He did the hardwood floor. He paid for the materials and did the labour. He thinks the cost was about $1,000.00. He also put in a new bathroom spending about $1,600.00 for materials. His father gave him a new toilet for the bathroom.
[46] The basement leaked when they moved into the house. He gutted the basement. It took him two months to scrape the mold out.
[47] Gordon also used left over paint from his jobs in the house. He re-painted the whole house inside and out. As well he scavenged shelving from job sites and installed it in the home.
[48] He raised the grade outside the house so that there were no leaks.
[49] He put on a new roof at a cost of $3,600.00.
[50] He put in new flooring in the attic.
[51] He put in patio stones that he bought for $100.00. He thinks his labour cost would have been $2,000.00.
[52] Gordon said that if he had been doing all of this work for pay, he would have earned $22,000.00.
[53] He re-surfaced the driveway at a cost of $500.00.
[54] He bought a new refrigerator, washer and dryer at a cost of $1,800.00.
[55] He believes he paid about 40% of the mortgage payments.
[56] After separation, he replaced the outside landing at the side door to make a separate entrance for his boarders, at a cost of $1,100.00, when he rented out the rooms.
[57] He began renting out rooms between 4 and 6 months after separation. He has continued to rent out 3 rooms on and off for 11 years.
[58] He charges weekly for the rooms. When he started renting rooms, he charged: $80.00; $100.00 and $120.00 for the respective rooms. He now charges $140.00; $150.00; and $170.00. The rent includes utilities.
[59] Gordon submits he is entitled to at least 75% of the net sale proceeds of the house because he has maintained all of the expenses since Susan moved out of the home.
Cross-examination
[60] Gordon acknowledged he set out in his Answer that he believed the house was worth between $250,000.00 and $300,000.00 and the mortgage balance was $50,000 at that time, August 2017.
[61] Gordon was challenged that when the parties made the agreement, he says they made, Gordon believed there was no more than $10,000.00 in equity in the home. Gordon responded he thought there was maybe $50,000.00 in equity.
[62] When challenged about not making the $10,000.00 payment to Susan, Gordon responded that if she had needed the money, he would have got it somehow putting it on his VISA or using his Line of Credit.
[63] Gordon acknowledged that the appliances he referenced in his evidence in chief were purchased after the parties separated and he is the only person benefiting from them. Gordon further acknowledged that some of the repairs or renovations he said he made after separation were solely for the purpose of renting out rooms in the house.
[64] Gordon was challenged that he consistently does not pay the house insurance and Susan must do so to ensure the property registered in her name continues to be insured. Gordon reluctantly agreed he has missed payments and been late with payments and had to make up payments on one occasion for a period of six months.
[65] Susan’s counsel reviewed Gordon’s ITRs with him. Gordon was ordered by the Court to get his taxes done. It took him six months.
[66] Gordon was challenged that it is fair to say he is maintaining all of the utility expenses of the house using the rental income from the boarders. Gordon did not agree. He did agree that he is “offsetting” the utility expenses against the gross rental income.
[67] The income on Gordon’s ITR consists of his income through his business as a self-employed painter/drywaller and the rental income. Gordon is entitled to deduct expenses from both these sources of income.
[68] Susan’s counsel challenged Gordon that in the years his earnings were in the $20,000.00 range after separation and he was not filing his ITR and therefore not paying income tax, his disposable income was much higher than what is set out as his line 150 income and that he could have paid the $10,000.00 during those years.
[69] Gordon’s answer was that she would not take the money.
[70] Gordon acknowledged he did not tell Susan he had rented out three rooms in the house. He asserted she knew he needed the rental income to maintain the house.
[71] Gordon acknowledged that he was not working when they moved into the property, but he disputes Susan’s assertion he had been out of work at least one year at that time.
[72] Gordon did not agree that Susan should have received one-half of the rental income, at least, as the registered owner of the property.
[73] Gordon insists the improvements he made to the home were made after the parties separated.
[74] Gordon acknowledged Susan has been on a disability income since 2005 about one year after purchasing the property.
[75] In cross-examination, Gordon provided more particulars as to how the parties arrived at a payment to Susan of $10,000.00 in their verbal contract.
[76] His VISA debt was $10,000.00 greater than Susan’s Mastercard debt. Susan’s car was worth $2,000.00 more than the van Gordon kept. He thought if she got $10,000.00, they would be equal going forward.
[77] Gordon stated if he could have had the mortgage put in his name, the arrangements would have been finalized at that time. He acknowledged he needed Susan to agree to stay on title to the property and on the mortgage.
[78] Gordon stated that when he decided he wanted to move to Newfoundland, he could not do so because at that point Susan made it clear she wanted half the net proceeds of sale of the property. Gordon said he missed out on a really nice house there and “has been trapped here ever since.”
[79] Gordon acknowledged that by 2016 he realized the equity in the property had greatly increased, from $87,000.00 to between $250,000.00 and $300,000.00. Further Gordon knew that, if he got most of the net proceeds, he could purchase the house he wanted in Newfoundland.
[80] Gordon added that he offered Susan an additional $10,000.00 for helping him out.
[81] Challenged that the equity at that time could have been $175,000.00, Gordon would not agree that it would be fair for the parties to divide the net proceeds equally. Gordon asserted he maintained all the expenses of the property and he put up with the “bullshit from the tenants.”
[82] Gordon acknowledged that when Susan purchased the property, the price was $30,000.00 less than the owner had paid in 1992. Gordon would not agree the purchase was a good deal because of the market.
[83] Gordon asserted he thought the house was worth $120,000.00 when the parties separated in 2009. The increase in value Gordon attributes solely to the improvements he made to the property. He refused to acknowledge changes in the market had anything to do with the increase in value.
[84] In cross-examination, Gordan’s evidence vacillated. On the one hand he asserted he should receive most of the net proceeds because of the improvements he made to the property and then he acknowledged that the vast majority of the improvements he says he made were completed before the parties separated.
[85] When Gordon reluctantly agreed to allow a real estate agent to view the home on two occasions, he refused to allow any photographs to be taken. Susan’s counsel asked why he refused photographs when presumably these photographs could provide evidence of the improvements he made. Gordon’s answer was that it was home and photographs would be an invasion of his privacy and he felt violated.
[86] Gordon reluctantly agreed as well that the improvements he relies on as having been completed after separation related to making the home ready to rent out the three bedrooms and repairing damage caused by the boarders over the years.
[87] Gordon reluctantly agreed that if the home had no equity, he could simply walk away and the property would be Susan’s problem. He acknowledged he has no liability regarding the property.
[88] Gordon also acknowledged that if he died the understanding between them was that his estate would not have any claim against the property.
Susan’s evidence
[89] When Susan’s counsel provided his opening statement he acknowledged that Susan conceded Gordon was entitled to 50% of the net sale proceeds of the house. In closing submissions, Susan’s counsel asked the Court to find that Gordon had not established a constructive trust against the property.
[90] Susan described the separation as abrupt. She did not have any discussions with Gordon at that time. She just told him she was leaving and did so.
[91] Susan believes that a few months after she moved out, she and Gordon discussed what would happen with the property. They agreed it would be sold and any profit divided between them.
[92] When the property was purchased, Susan had been employed on a full-time basis for more than 20 years. She qualified for the mortgage in her name alone.
[93] The property was registered in Susan’s name alone because Gordon had not paid any income taxes for many years and they were concerned the government could take the house.
[94] Susan borrowed the money for the down payment from her stepmother and later took out a personal loan to pay the money back. The personal loan was paid from Susan’s account and only her money went into this account. Her employment income and later her disability income was deposited directly into this account.
[95] From the same account, the following expenses for the property were paid, including the mortgage; the utilities; house insurance; and municipal taxes. Susan also paid the car insurance for both parties’ vehicles from this account.
[96] Gordon paid for household items, including, groceries; gas for their cars; and pet expenses. Gordon paid in cash.
[97] When they moved into the property, it needed extensive cleaning to make it livable. Susan did the cleaning. Gordon did the painting. They worked hard on the house to fix it up and make it livable.
[98] Gordon did a lot of work on the house because he had been out of work for a few months when they moved in and continued to be out of work for some time.
[99] Susan says that when she separated from Gordon and moved out of the property, she probably did not turn her mind to the fact that the house and mortgage were in her name alone.
[100] She knew the value of the home had increased significantly by the time she started the Application for divorce.
[101] Susan says they did discuss Gordon paying her $10,000.00 for her share of the equity in the house, but at that time they thought there was only about $20,000.00 in equity.
[102] Gordon did not say when he would give her the $10.000.00 and she did not assert herself. She let it slide. They only ever talked about the $10,000.00 the one time, shortly after she moved out in 2009.
[103] Susan described their agreement as “not in stone, a kind of floating thing.”
[104] She understood part of the agreement was that Gordon would arrange to have the house and mortgage transferred into his name.
[105] Susan does not recall Gordon offering to pay the $10,000.00 by way of instalments.
[106] She believes she stopped going to the house between one and three years before she started the divorce application in 2016.
[107] She never had any conversations with Gordon about the house after 2010. When they did talk about it, her understanding is they thought there was about $20,000.00 in equity and they would each get $10,000.00 or Gordon would buy her interest for $10,000.00. They did agree that if Gordon died any claim he had against the property would be null and void.
[108] Around 2016, she learned that the housing prices had gone up dramatically. She still thought they would eventually sell the property and split the profit, just that now the profit would be greater.
[109] After separation, they opened a joint account. Gordon deposits money into this account and the mortgage and municipal taxes are automatically withdrawn from this account.
[110] The house insurance is not paid from the joint account but from Susan’s account.
[111] Gordon has not provided the cheque for the house insurance regularly and sometimes he is three or more months late.
[112] Gordon did not abide by their agreement that he would make all payments relating to the property because he did not reimburse her regularly for the house insurance costs.
[113] Susan believes she had about $8,000.00 in an RSP when she and Gordon married. Her plan had been to cash it and use the proceeds for the down payment when she purchased the property but it was locked in so she borrowed the money from her stepmother for the down payment.
[114] She thinks the house may have been worth $90,000.00, when she moved out. She does not have a valuation.
[115] Susan offered an explanation as to why she allowed seven years to pass before she took any steps. She said she had a lot on her plate. She put the house at the back of her mind. She now realizes she should not have done so.
[116] When she turned her mind to the house again she learned the market value had increased significantly and thought it was a good time to sell and both she and Gordon would benefit from the increased profit.
Cross-examination
[117] Susan acknowledged that after separation they went together to the bank and were advised to open a joint account so that Gordon could pay the mortgage directly by putting money into the account with Susan’s name on it as the mortgage was in Susan’s name.
[118] Susan acknowledged they went together to the bank to re-new the mortgage five years after the property was purchased.
[119] Susan agreed that when they moved into the property the basement was damp and rainwater got into it. She agreed Gordon removed the existing carpet and put a new floor in and regraded the basement so that it was fairly dry.
[120] Gordon challenged Susan on her evidence that she believed they would each get about $10,000.00 if the house was sold when they separated in 2009. Susan was firm that she understood the equity was about $20,000.00 and the payment of $10,000.00 was based on that assumption.
[121] She does not remember exactly what each of them had in credit card debt. She agreed about $17,000.00 on his VISA sounds about right. She thinks she had about $7,000.00.
[122] Susan’s evidence is that she does not recall a conversation about an agreement between them. She does not remember what they talked about other than as she has stated.
Valerie Dalgetty-Righton
[123] Ms. Dalgetty-Righton is a real estate sales representative with Coldwell Banker. She has been a licensed real estate agent for 30 years and has focused on residential sales in her practice. She has worked mostly in Hamilton with an emphasis on the east part of Hamilton.
[124] She completed the Form 20.2 Acknowledgment of Expert’s Duty.
[125] Ms. Dalgetty-Righton was retained by Mr. Orme to do a report in May 2017 regarding the property. At that point, she was not able to view the inside of the home. Her report in the form of a letter is dated May 14, 2017. She did a “drive-by” and a comparative analysis by considering listings for similar properties in the neighbourhood. At that time, she recommended the property be listed for between $230,000.00 and $250,000.00.
[126] Ms. Delgatty-Righton did another “drive-by” report dated July 20, 2018. She still was unable to view the house. In her opinion, there was not a significant change in the market between 2017 and 2018. She noted again she would need to see the interior of the home to assist in the market analysis.
[127] Ms. Delgatty-Righton was permitted to view the interior of the house on August 22, 2018. She was accompanied by Mr. Orme’s law clerk. She noted Gordon told them that no pictures were to be taken of the home.
[128] Ms. Delgatty-Righton’s report is dated August 31, 2028. She concluded the property required significant updating and renovating. She advised the house would not appeal to most average buyers but would be suitable for a handyman or renovator.
[129] She stated, “the home appears to be set up as a rooming house with numbers on the bedroom doors” and that the living room was being used as a combined bedroom/living room.
[130] She described the home as being generally in below average condition and in need of a deep thorough cleaning. She described it as “filled with personal possessions which make it difficult to assess fully the condition of the flooring and some areas fully.”
[131] She noted that since she did the comparative analysis in July there have been no properties in a similar condition sold or listed in the area. She determined the best comparable was a property near-by that was listed at $199,000.00 and sold at $250,000.00 with multiple offers.
[132] Ms. Delgatty-Righton viewed the house again on September 23, 2020. She was again accompanied by a law clerk from Mr. Orme’s office. Ms. Delgatty-Righton was provided a list of the improvements Gordon said he had completed at the property since 2009. She was to confirm the improvements had been completed and assess if possible, the impact of the improvements on the fair market value of the property.
[133] The list is itemized in the report dated October 5, 2020 with Ms. Delgatty-Righton’s comments set out after each item:
a) Put in bathroom upstairs; • The bathroom still had a laundry tub for a sink as viewed previously. Gordon said this bathroom was done about 11 years ago
b) Drywall repair in bedroom on 2 walls where the walls had caved in; • Gordon said the damage was done by a tenant no longer living at the home. There was no evidence of damage
c) Repaired holes in drywall throughout the house; • She did not see any holes in the drywall and was not able to assess if holes had been repaired
d) Installed stairs to the side door; • This staircase is exterior to the side door. The steps are in good condition. Most windows near the steps are older, damaged and boarded up
e) New hot water tank; • This tank is a rental
f) Taps in shower in downstairs bathroom; • No comment
g) Purchased and installed new toilet downstairs; • Gordon said this bathroom was done before Susan moved out of the house. The painted royal blue bathtub was still in place and still badly chipped as seen previously
h) Repair to foundation; • She could not see any sign of repairs to the foundation. It may have been caulked but she saw no recent caulking or repair. She noted she is not qualified to inspect the basement which is an older block foundation built in 1940
and,
i) General maintenance and gardening. • She noted two small garden areas, one on each side of walkway to front door. Very small front yard. The rear yard has a large vegetable garden.
[134] She concluded the property to need updating and renovation. She did not observe any significant updating or repair had been done to the property since her first walk through in August 2018.
[135] She concluded the property would appeal to a handyman who will buy it to fix it up and then flip it for a profit. She suggested a list price of $299,900.00 in an effort to get multiple offers, few conditions and a higher price.
[136] In her oral evidence, she described the current market as a seller’s market because the inventory is very low because people are not putting their homes on the market for sale because of COVID-19 and not wanting people in their homes.
[137] There has been an influx of buyers from Toronto as well.
[138] She recommended a list at $349,000.00 or higher. In her opinion, the property will sell over $400,000.00 and could go as high as $450,000.00.
[139] The market is hot, and she would anticipate many competitive offers.
[140] She acknowledged the market can change and that now is the time to sell because people are lined up to see homes and make offers.
[141] On cross-examination, Gordon asked Ms. Delgatty-Righton if she could estimate the value of the home in 2009, when the parties separated. She answered she would have to do an analysis to be in a position to provide an opinion.
[142] I asked some questions of Ms. Delgatty-Righton. I wanted to know what she would recommend be done to the house to ready it for sale. Her answer was nothing because she could sell it as is. She would need to be able to show it at least three times a week for 2 to 3 hours at a time. She would start by having an open house for other agents. She expected that in this market the home would sell very quickly, and that the buyer would not require any conditions, not even a home inspection. She expected the property will sell for cash with no conditions and it will sell over the asking price. She anticipated multiple offers will be received.
[143] As noted above, at the conclusion of the trial, the parties agreed to list the home for sale. For this reason, I have not set out all of Ms. Delgatty-Righton’s evidence.
Case law relied upon by the parties
[144] Gordon relies on two Ontario Court of Appeal cases: Erie Sand and Gravel Ltd. v. Seres Farms Limited and Tri-B Acres Inc. 2009 ONCA 709; 97 OR (3d) 241 (“Erie”) and Mountain v Mountain Estate 2012 ONCA 806; 112 O.R. (3d) 721 (“Mountain”).
[145] Susan relies on the case of Jordan v Skwarek 2016 ABQB 380 (“Jordan”).
[146] The cases relied upon by the parties are in support of their respective positions regarding the existence of a verbal contract between them and the enforceability of the contract if it does exist.
[147] Both parties refer to the Statute of Frauds.
[148] I was not provided any cases regarding Gordon’s alternative claim for an interest in the property by way of constructive trust or his claim for compensation for unjust enrichment.
The Law with respect to Verbal Contracts or Agreements
[149] The Statute of Frauds generally requires that contracts creating interest in land or for the sale of land be in writing. The fact that a contract does not comply with the Statute of Frauds because it is not in writing does not render the contract void, but it renders it unenforceable in certain circumstances.
[150] Section 4 of the Statute of Frauds provides that no action can be brought to enforce an oral agreement regarding the sale of land or an interest in land.
[151] The purpose of section 4 is to prevent fraudulent dealings in land based upon perjured evidence.
[152] Equity, however, will not allow the Statute of Frauds to be used as an “engine of fraud.”
[153] There is a remedy in equity or by way of equitable doctrine that allows the Court to rely on an oral agreement, when the Statute of Frauds would otherwise preclude such reliance. The equitable doctrine is the doctrine of part performance.
[154] The equitable doctrine of part performance is to prevent the Statute of Frauds from being used as a variant of the unconscionable dealing it was designed to remedy. See Hill v Nova Scotia (Attorney General) 1997 401 (SCC), [1997] 1 SCR 69 at paragraph 10.
[155] The requirements of s. 4 must give way in the face of part performance because the acts of part performance fulfill the very purpose of the written document that is, they diminish the opportunity for fraudulent dealings with land based upon perjured evidence.
[156] In Hill at paragraph 9 the court stated:
.. . where the terms of an agreement have already been carried out the danger of fraud is averted or at least greatly reduced.
[157] As Corey J. stated in Hill:
. . . equity recognizes as done that which ought to be done. . . and a verbal agreement which has been partly performed will be enforced.
[158] This doctrine is engaged, when one party relies to his or her detriment on the oral promise of the other party and partly performs his or her obligation under the contract while the other party “stands by it.” It is inequitable for the other party to rely on the Statute of Frauds to excuse his or her non-performance of the oral contract. The doctrine of part performance has been held to exclude the operation of s. 4 of the Statute of Frauds. See Erie (supra).
[159] The doctrine requires the acts said to evidence the part performance must unequivocally refer to and support the alleged agreement and be amenable to no other interpretation. An objective reasonable bystander would conclude in all of the circumstances that the parties had intended to contract.
[160] In Erie, the ONCA considered the following questions:
Did the parties’ discussions amount to an agreement?
If the answer is yes, were there sufficient acts of part performance to take the agreement outside the requirements of s. 4 of the Statute of Frauds?
If so, should specific performance be ordered? Or, was it properly ordered at the trial level?
[161] In Mountain the parties were brother and sister. The brother brought the action seeking a declaration that he was beneficially entitled to the farm property based on an oral agreement he had with his parents that if he stayed on the farm and worked the farm with them, he would receive the farmland and its assets when the parents stopped farming. The son/brother had been working full-time on the farm for 24 years. When the father died, his will left all of his estate to his wife. Before the trial, the mother died leaving the sister as the defendant along with the father’s estate in the action. The trial judge found that the brother had not proven the alleged oral contract and dismissed the action. The brother appealed. The Court of Appeal allowed the appeal and ordered a new trial. The Court held that the issue whether a valid and binding oral agreement exists does not depend on the existence of a formal written document between the contracting parties. The Court referred to the Erie case and found that the trial judge had erred in his analysis and the application of the doctrine of part performance by erroneously stating the acts of part performance were those of the brother only and not of the father. The Court held that the doctrine of part performance is not limited to a consideration of the acts of the plaintiff and need not be consistent only to the alleged contract.
[162] At paragraph 66 in Mountain the court stated:
Fundamentally, the issue whether a valid and binding oral agreement exists does not depend on the existence of a formal written document between the contracting parties: see Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 1991 2734 (ON CA), 79 D.L.R. (4th) 97 (Ont. C.A.), at pp. 103-104. The essential terms of an oral contract for the purchase and sale of real property are the parties, property and price: see McKenzie v. Walsh (1920), 1920 72 (SCC), 61 S.C.R. 312 (S.C.C.). If these terms have been agreed on, then a contract may be found without the need for evidence of a written agreement. The trial judge misconceived the applicable legal test for proving an oral agreement by considering the lack of written documentation as being strong evidence against Gary’s claim.
[163] The Court in Mountain, at paragraphs 80-82, refers to the ONCA decision in Erie:
80 In Erie Sand & Gravel Ltd. v. Seres’ Farms Ltd., 2009 ONCA 709, 97 O.R. (3d) 241 (Ont. C.A.), Gillese J.A. clarified the legal principles that apply when determining whether there is an oral agreement respecting land, and if so, whether there are sufficient acts of part performance to take the oral agreement outside s. 4 of the Statute of Frauds. As explained in Erie Sand & Gravel Ltd., at para. 49, the doctrine of part performance is a creation of equity. The doctrine was created:
...to prevent the Statute of Frauds from being used as a variant of the unconscionable dealing which it was designed to remedy: see Hill v. Nova Scotia (Attorney General), 1997 401 (SCC), [1997] 1 S.C.R. 69, at para. 10. The requirements in s. 4 of the Statute of Frauds must give way in the face of part performance because the acts of part performance fulfill the very purpose of the written document — that is, they diminish the opportunity for fraudulent dealings with land based on perjured evidence.
81 Gillese J.A. made it clear, at para. 75, that the doctrine of part performance is not limited to a consideration of the acts of the plaintiff:
In sum, it appears to me that given the decision of the Supreme Court in Hill, it is now settled law in Canada that the acts of both parties to an alleged oral agreement may be considered when a court is called on to determine if sufficient acts of part performance take an alleged agreement outside the operation of the Statute of Frauds.
82 Gillese J.A. also made it clear that the acts of part performance need not be “referable only to the contract alleged”. Rather, the test as established by the majority judgment of Cartwright J. in Deglman v. Guaranty Trust Co. of Canada, 1954 2 (SCC), [1954] S.C.R. 725 (S.C.C.), at p. 733, is that it is sufficient if the acts are “unequivocally referable in their own nature to some dealing with the land”.
[164] And at paragraph 86 and 87:
86 In Erie Sand & Gravel Ltd., Gillese J.A. explained, at para. 94, that the proper approach to determining whether acts of part performance are referable to some dealing with the land is to begin by determining the context, or in other words, the relevant circumstances. The court is to “[t]hen consider the acts of part performance having regard to the way in which reasonable people carry on their affairs.”
87 The need for a contextual approach follows from the purpose of the doctrine of part performance. At para. 79 of Erie Sand & Gravel Ltd., Gillese J.A. discussed the two underlying aspects of the doctrine:
The first aspect is detrimental reliance which, as has been noted, requires a party to prove its acts of part performance. Without detrimental reliance there can be no inequity in relying on the Statute of Frauds, thus, it is the first hurdle to be met. The second aspect of the doctrine, however, relates to Equity’s requirement that the acts of part performance sufficiently indicate the existence of the alleged contract such that the party alleging the agreement is permitted to adduce evidence of the oral agreement.... The former is a matter of substantive law based on the rationale for the doctrine of part performance, whereas the latter is primarily evidentiary in nature.
[165] At paragraph 103 the Court stated:
The trial judge found that the uncertainty over when Gary and Debbie were to take the farm was significant evidence of the lack of any agreement between Gary and his parents (at para.137). He ignored that the evidence concerning Gary and Debbie’s conduct in agreeing to stay in the bungalow and incur renovation costs in response to Helen’s statements was capable of constituting evidence of an act of detrimental reliance that was “unequivocally referable to some dealing in the land” and “inconsistent with the ordinary relationship of employee or tenant”: see Brownscombe v. Alberta (Public Trustee), 1969 86 (SCC), [1969] S.C.R. 658 (S.C.C.); see also Thompson v. Guaranty Trust Co. (1973), 1973 161 (SCC), [1974] S.C.R. 1023 (S.C.C.).
[166] The doctrine of part performance is engaged when one party relies to their detriment on the oral promise of the other party and partly performs their obligation under the contract while the other party stands by and lets the first party incur expense and/or prejudice their position.
[167] The case of Jordan relied upon by Susan is a decision of the Court of Queen’s Bench of Alberta. Reference is made to the Erie decision. The test to invoke the doctrine of part performance is set out in the decision. The party claiming there is a valid contract must demonstrate:
a) Detrimental reliance; and,
b) That the acts of part performance sufficiently indicate the existence of the alleged contract such that the party alleging the contract is permitted to adduce evidence of the oral contract.
Positions Regarding an Enforceable Oral Contract
[168] It is Gordon’s position that there has been part performance of the verbal contract and that he has relied on the verbal contract to his detriment. I will review Gordon’s evidence on this point.
[169] Gordon says the part performance is that he paid his VISA bill and Susan signed over the van to him.
[170] Susan submits there is no part performance that takes this case outside the Statute of Frauds.
[171] In submissions, Gordon stated he wants the agreement they made to be honoured such that he is declared the owner of the property and, when it is sold, he is prepared to agree that Susan receive 25% of the net proceeds of sale and he would receive the balance of the net proceeds of sale.
[172] He submits Susan did nothing for 7 years after separation until he said he wanted to sell the property and move to Newfoundland. Shortly after that he was served with the Divorce Application in which Susan stated the property should be sold and the net proceeds of sale divided equally.
[173] Five years after Susan moved out, he went to the bank to attempt to re-negotiate the mortgage to pay it down faster because he believed he was the owner of the property. Evidence of their agreement is demonstrated by the fact that Susan went with him to the bank to re-negotiate the mortgage.
[174] Susan’s position is that while they had discussions there was no verbal contract. Even if there is evidence of a verbal contract, Gordon did not hold up his end of the bargain. He never paid Susan the $10,000.00 and he frequently was in arrears with respect to the home insurance payments forcing Susan to make these payments to make sure the property was insured.
[175] Susan submits that if the parties did make an agreement it was to divide the equity in the property, and they settled on a payment from Gordon to Susan of $10,000.00 to do so. They never turned their minds to what would happen if the property increased significantly in value.
[176] The agreement, if there was one, did not continue when Gordon offered to increase his payment to $20,000.00 as a result of the increase in value of the property. Susan did not accept this offer.
[177] Susan submits that signing the van over to Gordon was in her interest to protect her from any liability not part performance of an oral agreement.
Positions with respect to Constructive Trust
[178] Gordon’s submissions with respect to having an interest in the property by way of constructive trust can be summarized as follows.
[179] He has been living in the home for 17 years. He has made significant repairs and improvements to it. While the parties resided in the home together they both contributed to the expenses of the home and treated the property as a joint asset. The only reason he was not put on the title and the mortgage was because of the potential liability for unpaid income taxes and the concern that the property be protected from the government as a creditor.
[180] He has not asked her to contribute to any expenses for the property since the separation.
[181] Susan submits that from the time the property was purchased it was a joint venture between her and Gordon. If the property had been sold before separation, they would have likely split the proceeds equally.
[182] Susan submits that by the time they separated Gordon had not established he had a beneficial interest in the property.
Law regarding Equitable Remedies
[183] I will review the law with respect to equitable remedies.
[184] The seminal case in the area of unjust enrichment is Peter v. Beblow (1993) 1993 126 (SCC), 44 R.F.L. (3rd) 329 SCC. The parties were in a common law relationship for 12 years. The Applicant did the domestic work of the household and the raising of the children of the parties’ blended family.
[185] Writing for the majority, McLachlin J. summarizes the equitable concept of unjust enrichment:
An action for unjust enrichment arises when three elements are satisfied: (1) an enrichment; (2) a corresponding deprivation; and (3) the absence of a juristic reason for the enrichment. These proven, the action is established and the right to claim relief made out. At this point, a second doctrinal concern arises: the nature of the remedy. “Unjust enrichment” in equity permitted a number of remedies, depending on the circumstances. One was a payment for services rendered on the basis of quantum meruit or quantum valebat. Another equitable remedy, available traditionally where one person was possessed of legal title to property in which another had an interest, was the constructive trust. While the first remedy to be considered was a monetary award, the Canadian jurisprudence recognized that in some cases it might be insufficient. This may occur, to quote LaForest, J. in Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 34 (SCC), 1989 CanL II 34 (S.C.C.), [1982} 2 S.C.R. 574 at p. 678, “if there is reason to grant to the plaintiff the additional rights that flow from recognition of a right of property”. Or to quote Dickson, J., as he then was, in Pettkus v. Becker, 1980 22 (SCC), 1980 CanL II 22 (S.C.C.), [1980] 2 S.C.R. 834, at p.852, where there is a “contribution [to the property] sufficiently substantial and direct as to entitle [the plaintiff] to a portion of the profits realized upon sale of [the property].” In other words, the remedy of constructive trust arises, where monetary damages are inadequate and where there is a link between the contribution that founds the action and the property in which the constructive trust is claimed.
[186] McLachlin J. goes on to say:
Notwithstanding these rather straightforward doctrinal underpinnings, their application has sometimes given rise to difficulty. There is a tendency on the part of some to view the action for unjust enrichment as a device for doing whatever may seem fair between the parties. In the rush to substantive justice, the principles are sometimes forgotten. Policy issues often assume a large role, infusing such straightforward discussions as whether there was a “benefit” to the defendant or a “detriment” to the plaintiff. On the remedies side, the requirements of the special proprietary remedy of constructive trust are sometimes minimized. . . Occasionally the remedial notion of constructive trust is even conflated with unjust enrichment itself, as though where one is found the other must follow.
[187] McLachlin J. continues:
In every case the fundamental concern is the legitimate expectation of the parties: Pettkus v. Becker supra. In family cases, this concern may raise the following subsidiary questions:
a) Did the plaintiff confer the benefit as a valid gift or in pursuance of a valid common law, equitable or statutory obligation which he or she owed to the defendant?
b) Did the plaintiff submit to, or compromise, the defendant’s honest claim?
c) Does public policy support the enrichment?
[188] The constructive trust has been used as a vehicle for compensating for unjust enrichment in appropriate cases. The constructive trust, based on analogy to the formal trust of traditional equity, is a proprietary concept. The plaintiff is found to have an interest in the property.
[189] A finding that a plaintiff is entitled to a remedy for unjust enrichment does not imply that there is a constructive trust. The plaintiff must establish a direct link to the property which is the subject of the trust by reason of the plaintiff’s contribution.
[190] For a constructive trust to be found, monetary compensation must be inadequate and there must be a link between the services rendered and the property in which the trust is claimed.
[191] To determine Gordon’s equitable claims, that is a constructive trust or unjust enrichment, the Court must consider the factors set out in Kerr v. Baranow, 2011 SCC 10:
a) mutual effort,
b) economic integration,
c) actual intent, and,
d) priority of the family.
[192] If the Court finds there was a joint family venture, there must a consideration of:
a) whether or not there is a disproportionate accumulation of assets linked to Gordon’s contributions to the joint family venture;
b) if so, is the appropriate remedy a declaration of constructive trust or a monetary remedy; and,
c) how should the remedy be assessed?
[193] Specifically, with respect to the determination of any unjust enrichment, the onus is on Gordon to establish the three elements of unjust enrichment:
a) Susan has received a benefit or enrichment;
b) He has suffered a corresponding deprivation; and,
c) The absence of any juristic reason for the enrichment.
[194] If enrichment has been established, is the nature of the enrichment substantial enough to meet the threshold of “unjust”? There must be a balance of the benefits conferred and received by the parties to determine whether Gordon’s contribution is sufficient to entitle him to compensation. The Court must assess the value received by Susan.
[195] When determining whether the enrichment is unjust a consideration of the expectations of the parties is warranted. Gordon, as the provider of the benefits must have a reasonable expectation of compensation and Susan as the recipient must have known or ought to have known of that reasonable expectation.
[196] When the court is satisfied that there has been an unjust enrichment, the next analysis undertaken is that of the appropriate remedy.
[197] Is the appropriate remedy compensation for services rendered, that is, a monetary award based on quantum meriut or quantum valebat?
[198] The constructive trust remedy is available only when a monetary award is inadequate and there is a link between the contribution that founds the action and the property in which the constructive trust is claimed.
[199] Intention is not relevant to the establishment of a constructive trust.
Application of facts to the law
Credibility
[200] Susan submits her evidence should be preferred to Gordon’s evidence. Gordon’s evidence was seriously shaken on cross-examination while Susan’s evidence was not. Her credibility was not challenged.
[201] When Gordon gave his evidence in chief he said when the verbal contract was made they both thought the equity in the property was about $20,000.00. When challenged on cross-examination, Gordon said he thought the equity at that time was actually $50,000.00. This evidence contradicts Gordon’s position that if the parties sold the property at separation, they would have received net proceeds sufficient to pay of their debts only.
[202] Gordon’s evidence was very difficult to follow because it frequently changed as he sought to clarify his evidence or when he responded to questions in cross-examination. On many occasions, he advised he had forgotten something and required an opportunity to provide further evidence in chief. This happened both during his cross-examination and after it was completed. As he was offering new evidence when he gave his evidence in re-examination, it was necessary to allow Susan’s lawyer an opportunity to further cross examine Gordon.
[203] I find the shifting nature of Gordon’s evidence rendered it unreliable.
[204] I became persuaded that Gordon’s evidence changed as he considered what was the best position to put forward. Gordon stubbornly refused to acknowledge obvious facts, such as, the increase in the fair market value of the property was driven by market forces. Gordon would have the Court believe that the parties purchased a property for $87,000.00 in 2004 and that its value increased to at least $250,000.00 by 2017 because of the improvements he made to it rather than the change in the market.
[205] Susan gave her evidence in a calm and forthright manner. She was frank and candid. When she did not recall something, she said so. She gave evidence that supported Gordon’s position that he had done significant work on the property while they lived there together.
[206] Where the evidence of Susan and Gordon is in conflict, I prefer the evidence of Susan.
Findings of Fact
[207] I find that Gordon has not established the parties made a verbal agreement as he states. I find the evidence suggests the parties may have had a discussion but that the discussion did not amount to an agreement. I find the evidence of both parties establishes Gordon’s interest in the property by way of a constructive trust. I find Gordon is entitled to a 50% ownership in the property.
[208] I rely on the following factual findings I make:
a) I accept Susan’s evidence that the parties did not consider what they would do, if the value of the property increased;
b) I accept Susan’s evidence that they arrived at $10,000.00 as the amount of her one-half equity with reference only to what they believed the equity in the property was in 2009;
c) I find this is reasonable given the state of the house and the significant fluctuation in the fair market value was not anticipated by the parties;
d) The parties did turn their minds to what would happen, if Gordon died, while the house was still in Susan’s name and that was that any agreement was null and void and both parties acknowledged this understanding in their evidence;
e) This understanding supports the finding that the house would not be Gordon’s sole property until it had been transferred into his name and Susan removed from the mortgage, which never happened;
f) I find at best the parties agreed Gordon could remain in the house so long as he paid all the expenses and if and when he had funds to purchase Susan’s equity and take over the mortgage, she would transfer her interest to him;
g) I find that the house was taken in Susan’s name alone to protect it from Gordon’s potential income tax liability and because the bank would not allow him to be on the mortgage;
h) I find the evidence supports a finding that the purchase of the property was a joint decision and a joint venture;
i) Both parties contributed to the repair and renovation of the home while they resided together;
j) Both parties contributed to the expenses of the home, while they lived together;
k) I find the parties combined their financial resources and used them for their family unit; and,
l) I find it was the intention of the parties they would share in the ownership of the property despite the fact it was registered only in Susan’s name.
[209] If I had found sufficient evidence to support the finding of an oral contract, I find that Gordon has not provided the evidence of part performance that would take the contract outside the Statute of Frauds and allow the Court to order specific performance of it.
[210] I find that Gordon paying off his VISA debt is not part performance of the alleged agreement nor is the fact that Susan transferred the van into Gordon’s name.
[211] If there was an oral contract the significant components of it were that:
a) Gordon would pay Susan $10,000.00;
b) Gordon would renegotiate the mortgage in his name alone and release Susan from any liability; and,
c) Gordon would maintain all of the expenses with respect to the property.
[212] I find that Gordon did not comply with the payment or re-negotiating the mortgage and he did not pay all of the expenses of the property because Susan was called upon frequently to make the monthly house insurance payments and await Gordon’s reimbursement for these payments.
[213] If there was a valid contract between the parties, it makes no sense that Gordon continued to re-negotiate the terms of it. For example, he says he agreed to a payment of $10,000.00 but never made it.
[214] He insists this failure to perform this vital part of the contract is not his fault because Susan refused to accept his payment.
[215] When his evidence was clarified, it was not that he offered Susan the $10,000.00, he wanted to change the terms of the agreement so that he paid her in instalments. In cross-examination, he asserted that if Susan had needed the money he would have found it and paid her, suggesting that this term of the contract was conditional on Susan establishing she was in need of funds rather than it being the purchase price of her equity in the property.
[216] Another point with respect to this evidence is Gordon’s assertion he could have paid the $10,000.00. There is no reason that he provided that justifies his failure to comply with this term of the alleged contract.
[217] Gordon’s repeated “upping of the ante”, so to speak, by offering an extra $10,000.00 or even $20,000.00 and finally 25% of the net sale proceeds to Susan, is not consistent with the parties having a verbal contract.
[218] Gordon’s offers to increase the amount he paid to Susan support a finding that the parties understanding was that they were dividing equally the equity in the property. Gordon’s offers are the result of the increase in fair market value of the property. No other conclusion can be drawn, I find.
[219] As noted, I find that Gordon has established a constructive trust interest in the property. I rely on Susan’s evidence which very much supports this finding. I see no reason to deviate from the position Susan articulated at the commencement of trial that each party is entitled to a one-half interest in the property.
[220] The appropriate remedy as a result of the finding of the joint family venture is a constructive trust. A monetary remedy is not sufficient, I find. The evidence that is most persuasive and supportive of this finding is the evidence of the parties relating to the period when the property was purchased, and they resided in it together.
[221] I find that Gordon is not entitled to an interest in the home greater than 50% as he has submitted. Susan allowed Gordon to live in a home registered in her name alone and continued to have liability for the mortgage on the home. She conferred a benefit on Gordon by doing so. Gordon maintained the expenses of the home for the most part. There was no objective or independent evidence to support the finding that the improvements were the cause of the significant increase in value of the fair market value of the home during the time Gordon resided in it after separation.
[222] Therefore, my order is that the Respondent is entitled to a 50% interest in the property known municipally as 35 Harrison Street, Hamilton, Ontario and the net sale proceeds of the property are to be divided equally between the parties. All other claims in the Answer are dismissed, except for the claim of costs. The Applicant’s claim for costs is also outstanding.
[223] If costs are in issue the parties may make submissions in writing as follows:
a) The party seeking costs may serve and file submissions by June 25, 2021 of no more than 5 pages, double spaced in 12 point font with a Bill of Costs and any Offers of Settlement;
b) The responding party may serve and file submissions by July 16, 2021 of no more than 3 pages, double spaced in 12 point font with a Bill of Costs and any Offers of Settlement;
c) Any reply submissions may be served and filed by July 23, 2021 of no more than 2 pages, double spaced in a 12 point font; and,
d) If no submissions are received according to this schedule, I will order there will be no costs paid by either party to the other.
Date: June 1, 2021
COURT FILE NO.: 1357-16 DATE: 2021-06-01
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Susan Foertsch Applicant
- and -
Gordon Foertsch Respondent
REASONS FOR JUDGMENT
Lafrenière J.
Released: June 1, 2021