Knight v. Knight-Kerr

COURT FILE NO.: FS-17-0103 DATE: 20210104 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Randal Allan Knight Applicant

– and –

Mary Lynne Isobel Knight-Kerr Respondent

COUNSEL: D. Reid, for the Applicant Self-Represented

HEARD: September 28, 29, 30, October 1 and 2, 2020

BEFORE: Justice R. Raikes

Issues

[1] The issues in this case are: i. Is the “Family Agreement” dated March 1, 2009 a binding agreement? ii. If yes, has the Respondent been unjustly enriched by home upgrades performed largely by the Applicant? iii. Is the Respondent entitled to return of Echo, a ShihPoo? iv. Equalization of family property. v. Should this court issue a restraining order against the Applicant?

Background

[2] The parties met New Year’s Eve 2006. They dated and began cohabiting in June 2008. He proposed on February 14, 2009 and they married March 14, 2009.

[3] They separated July 14, 2017. There are no children of the marriage.

[4] The Respondent was previously married and has two sons, Kyle born August 28, 1990 and Branden born October 7, 1993. They lived with her after her first marriage broke down and were living with her when the parties married. She was employed by Bell Canada and had been for several years as at the date of marriage.

[5] After her first marriage ended and in 2004, the Respondent acquired a house at 103 Kroger Cres. in Cambridge. Title was held by her sister, in trust for the Respondent. The house was a small three-bedroom home with a finished basement. She remortgaged the property in May 2009 soon after the parties married. Title was transferred then from her sister to the Respondent alone for nominal consideration.

[6] The purpose of the mortgage refinancing was to have funds available to pay for improvements in the house. The bank valued the property at $250,000 and her mortgage was increased from $171,000 to $180,000. She was the sole mortgagee.

[7] The Applicant was also previously married and had children who were older than the Respondent’s children. His children never resided with the parties.

[8] He was employed as a manager at a concrete prefab business that makes and sells underground products. Previously, he worked for several years in construction until he suffered an injury.

[9] The Applicant enjoys building and renovating. He is an experienced and very skilled carpenter. By his own admission, he likes to be busy with building projects and has very high standards for workmanship. The pictures tendered during the trial reflect same.

[10] During the time they resided together on Kroger Cres., the Applicant made improvements to most of the rooms in the house. Some improvements were more extensive than others. He also made significant improvements to the front and back yards including the rear patio. He had help for some of these projects but, the work was done principally by him. It is not clear exactly when the improvements were made and in what order. I find that the work done was spread out over the roughly five years they lived together on Kroger Cres..

[11] The parties resided at 103 Kroger Cres. until 2012 when the Respondent sold that property and the parties moved to a home at 34 Jackson Cres. in Listowel. The proceeds of sale for Kroger Cres. were used for the purchase of the Jackson Cres. home. By the date of the move to Jackson Cres., Kyle and Branden were no longer residing with the parties.

[12] The Applicant made improvements to the Jackson Cres. property as well. Those improvements were not described in as much detail. My impression is that the Applicant is a man who loves to work with his hands building things. It gives him enormous satisfaction to do so.

[13] Title to the Jackson Cres. property was held jointly. That property sold in May 2018 during this litigation. A portion of the sale proceeds is held in trust by respective counsel pending the outcome of the trial.

[14] At both properties, the out-of-pocket expenses for the improvements were shared. He used his credit card to buy supplies as needed. The Respondent managed their finances and ensured that bills were paid including property taxes, utilities, mortgage payments, insurance, and vehicle payments. They shared joint bank accounts and lines of credit.

Family Agreement

[15] The Respondent relies on a written agreement dated March 1, 2009 – 13 days before they married – on the issue of equalization. She maintains that per the terms of that Agreement, she is entitled to the first $45,000 of the proceeds of sale of the Jackson Cres. property before any division, and the Applicant is not entitled to share her Bell Pension or government pensions. She is likewise not entitled to share in his pensions.

[16] The Applicant denies that he signed the Family Agreement. He indicates that he first became aware of its existence after the parties separated when sitting in his lawyer’s office. The signature on the Agreement is not his. He would never have signed such a one-sided agreement. A prenuptial agreement was never discussed and never referred to before they separated.

[17] The Applicant called a hand-writing expert from Texas, Wendy Carlson. Ms. Carlson compared the signature on the Family Agreement to four other documents that bore his signature. Ms. Carlson concluded that the signature on the Family Agreement was not made by the Applicant. I will have more to say about Ms. Carlson’s evidence below.

[18] The issue in this case is whether he signed the Family Agreement. His denial is the only basis on which the Agreement is challenged. The Applicant does not seek to set aside the Agreement under s. 56 of the Family Law Act.

[19] The Family Agreement was drafted by the Respondent. She sought assistance from her friend, Linda Ingles, who also worked at Bell Canada. Ms. Ingles is married to a close friend of the Applicant. She has known the Applicant for many years; in fact, she met him before she met the Respondent. Ms. Ingles testified, inter alia, that:

• She helped the Respondent write the Family Agreement.
• She knew the Respondent during the time that her first marriage broke down. It was a terrible time for the Respondent.
• She understood that the Family Agreement was important to the Respondent because of what she had been through with her first husband.
• The Agreement was drafted shortly before or after the parties were married.
• She provided ideas to the Respondent and edited the Agreement by email.
• She was not present when the Agreement was signed.

[20] Ms. Ingles was a credible and reliable witness. She gave her evidence in a straightforward manner. Her answers were responsive to the questions asked, consistent, and showed no apparent bias. She did her best to accurately recall events. Her evidence was largely unchallenged in cross-examination.

[21] The Respondent testified that shortly after the Applicant proposed, they discussed a pre-nuptial agreement on at least three occasions. It was not her first marriage. She was not marrying young. She had already been through a bad marriage breakdown. She had two children and wanted to protect them in case she died, or the parties separated. There was a great imbalance in their respective financial situations. She had an indexed pension through Bell Canada worth more than $175,000, the house was worth roughly $250,000, her car was paid for, her son’s father had money saved for RESPs for the boys, and she had $19,000 in RRSPs. By contrast, the Applicant had very little accumulated wealth. She wanted to protect what she had for herself and her sons’ sake.

[22] The Family Agreement provides that upon marriage breakdown, she will receive the first $45,000 from the proceeds of sale of the Kroger Cres. property or any subsequent home. She testified that when she acquired the Kroger Cres. property, she put down a $45,000 deposit. She was content to share any increase in value with the Applicant but wanted to keep and protect her deposit.

[23] According to the Respondent, she and the Applicant had dinner with her mother in Cambridge on March 1, 2009. Between the meal and dessert, they drove home with her godfather, William Pesant, who lived close by. Mr. Pesant was an accountant. He had provided advice to her when her first marriage broke down. He suggested that the Agreement be witnessed by someone who was not a family member. She asked and he agreed to fill that role.

[24] Mr. Pesant witnessed their signatures on the Family Agreement. He has since died. Before the Applicant signed, Mr. Pesant asked the Applicant if he had read the Agreement. He confirmed that he had. According to the Respondent, the Applicant was not happy about the Family Agreement. He sighed heavily before he signed. He said, “you’re really going to do this” or words to that effect. He signed the Agreement on the kitchen counter. He moved immediately to the dining area while she signed. He declined to return to her mother’s home for dessert.

[25] The Respondent was cross-examined on plans and other preparations made for their wedding. They were married only a month after he proposed. She denied that there was insufficient time to do everything necessary for the wedding and draft the Family Agreement. She also testified that if he had refused to sign the Agreement, she would not have gone through with the wedding despite the preparations made.

[26] As mentioned, the Applicant denies ever signing the Family Agreement. In cross-examination, the Applicant agreed that he initially testified in oral questioning that he did not know anyone named William Pesant. At trial, he agreed that he did know Mr. Pesant and, in fact, was one of Mr. Pesant’s pallbearers. He offered by way of explanation that he just forgot and has been a pallbearer many times. I find his explanation to be unlikely and not believable.

[27] The Respondent disputes that the Agreement is as one-sided as the Applicant contends. She noted that under the Agreement, the Applicant expressly had no support obligation for her sons, who were then 18 and 15 years old, and he had no obligation to contribute any money toward their post-secondary education.

[28] The Agreement contains a provision that each of their children have the choice of one “treasure” – an item of personal or sentimental value to that child – if the parties both died. The remaining items would be sold although the children would have the opportunity to buy additional items. She points to that provision as one that they discussed because the batting order of who picked first etc. is spelled out. The Applicant’s daughter Kayla’s date of birth was incorrect on the typed Agreement and was amended and appears initialed by both parties.

[29] The Respondent also relies on letters sent to OSAP for her son, Branden, to evidence that the Applicant was aware of and had signed the Family Agreement. Branden was accepted for admission at the University of Guelph. He applied for OSAP. He was initially rejected because he was under 16 years and the Applicant was assumed responsible to contribute to his school costs. Branden appealed that decision. The Respondent spoke with the OSAP loans officer at the university to ascertain exactly what was needed for the appeal.

[30] On September 25, 2012, the Respondent wrote a letter to OSAP for the appeal. She attached, inter alia, the “Pre-Nuptial Agreement” and a letter from the Applicant as stepfather. She authored both letters. The Applicant’s letter is signed by him and is also dated September 25, 2012. The letter states:

My name is Randy Knight. I married Branden’s mom in March 2009 at that time Branden was just shy of 16. We agreed that we would not be financially responsible for each other’s children.

I have 4 girls of my own: 3 of which have all gone to post secondary school. I am still paying off some loans to cover a portion of their school costs. By the time I finish paying those costs off, I will have very little time to begin to save for retirement. I am 51 and have never been in a position financially to begin the savings for when I am older and have no work pension.

We currently split on expenses and I have given my old car to Louise to help her out.

While I wish Branden well, I am not in a position to take on his financial support. [Italics added.]

The letter signed by the Respondent refers to the Pre-Nuptial Agreement but the letter from the Applicant contains no such reference.

[31] The Respondent testified that the Applicant read the entire package sent to OSAP including her letter. He read his letter of September 25, 2012 before signing it. He also had to sign Branden’s OSAP application the following year.

[32] In his evidence in-chief, the Applicant testified that the signature on the letter could be his, but he does recall ever signing that letter. He did not type the letter. In cross-examination, he denied any recollection that a letter was needed for OSAP so that Branden could get OSAP without a contribution from him. He testified that he had nothing to do with finances. He had no idea how Branden was able to go to school.

[33] The letter to OSAP from the Applicant was not examined by Ms. Carlson.

[34] I find it implausible that the Applicant was entirely in the dark as to how Branden’s school expenses were being managed or the OSAP appeal. I find his answers regarding the OSAP letter to be disingenuous and not credible.

[35] The Respondent also relies on a text sent by her to him on July 21, 2017, a week after the parties separated and following a meeting on July 17, 2017 at the Jackson Cres. home in Kayla’s presence where they tried to discuss their situation. Tempers flared and the meeting was cut short by Kayla. In the text, she mentioned payment of her $45,000 deposit. She asserts that this is consistent with the terms of the Family Agreement and was before he saw counsel. The Applicant did not testify to the date he first consulted counsel, but her text is certainly very close in time to their separation.

[36] When the parties separated in July 2017, the Applicant moved in with his daughter, Kayla, and her family. The Applicant’s daughter, Kayla Knight, went online and found a company in Toronto that advertised forensic document analysis. She contacted them and they put her in contact with Ms. Carlson in Texas. Ms. Knight provided four documents signed by her father when the Family Agreement was allegedly signed for use as comparators.

[37] Ms. Knight provided the documents to Brian at Docufraud. He forwarded her email and attachments to Ms. Carlson. In the email by Ms. Knight, she described the Family Agreement as “document signature in question” and “forged”. The four comparator documents were a CIBC bank card signed in 2017, a driver’s license issued in November 2012, an income tax document from 2009, and a vehicle purchase agreement from 2008.

[38] Ms. Carlson started first with the four documents that she knew were not in dispute. She magnified all signatures to 200%. She looked for features common to those signatures. She testified that signatures are an activity that the brain has done so often that it becomes automatic. She then looked at the signature on the Family Agreement. She knew before she started her analysis that the signature on the Family Agreement was disputed.

[39] Ms. Carlson opined that the signature on the Family Agreement was not the same as that on the other four documents even though, to the naked eye, they seem alike. She concluded that the Applicant did not sign the Family Agreement.

[40] I am satisfied that Ms. Carlson was a credible witness in the sense that she clearly believed what she testified to. I am, however, troubled by the following as it concerns the reliability of her testimony:

1. Ms. Carlson was aware from the outset of her engagement that the Applicant was disputing his signature on the Family Agreement. The document in dispute was identified and described as “forged” when given to her;
2. She was not asked to blindly examine the five documents to ascertain whether the signatures were the same on each. Instead, she was told which documents were not in dispute and which one was;
3. Only two of the comparators were signed relatively close in time to the Family Agreement. The driver’s license and bank card were signed by the Applicant in 2012 and 2017, respectively;
4. There is no mention in her report of the timing of the signatures on the comparator documents;
5. She was working from fax or emailed copies of signatures, not the original documents;
6. She agreed that a signature may be different when a person is agitated or angry; however, she also indicated that she would then expect that the signature would contain features consistent with anger which she did not observe here;
7. Ms. Carlson was not present when any of the documents were signed. She cannot say for certain that the Applicant did not, in fact, sign the Family Agreement;
8. There is no professional body that certifies and regulates hand-writing experts;
9. There are schools where hand-writing analysis is taught through in class and on-line courses with apprenticeships. That is how she was educated; and
10. Ms. Carlson has testified in courts in the United States but not in Canada. She has worked on few cases in Canada.

[41] As a matter of common sense, a person’s signature may appear different depending on the circumstances in which a document is signed. Is the signatory signing his or her name quickly? Is he or she signing several documents one following the other? What is the writing surface when the signature is made? What position is the person in when he or she signs? Is the person upset or anxious when he or she signs? This is not a case where the so-called differences are readily apparent to anyone looking at the signatures.

[42] In my view, Ms. Carlson’s opinion evidence is one piece of evidence to be considered by me in determining whether the Applicant signed the Family Agreement. Her evidence is not determinative of the issue. My concerns above go to the weight I attach to her evidence.

[43] I observe that the Applicant had a very clear recollection of what work he did at both homes, how the dog, Echo, came to be purchased, his work history and more. However, his recollection was noticeably limited on issues concerning the Family Agreement, the OSAP appeal, and financial matters.

[44] The Applicant contended that he left all financial matters to the Respondent; however, that explanation rings hollow. His initial denial that he knew Mr. Pesant when he had been a pallbearer at his funeral is instructive. I find it unlikely that he was unaware how Branden was able to afford to go to school. I do not find his evidence credible or reliable as it relates to the Family Agreement.

[45] I accept the Respondent’s evidence that the Applicant read his letter to OSAP before he signed it and that he read her letter to OSAP drafted and signed that same day. His letter expressly indicates that they “agreed” that he was not financially responsible for her children’s post-secondary education.

[46] I have reviewed the terms of the Family Agreement. It purports to deal with two scenarios: death of one or both, and marriage breakdown. The document is not wholly one-sided such that no reasonable person would have signed it. There are benefits to the Applicant:

• For example, as just indicated, he had no obligation to contribute financially to the support of her children nor to their post-secondary education.
• With respect to the house, she receives only her initial payment of $45,000 upon sale of that home or their future home. He shares equally in any profit (equity) above $45,000. According to the figures at renewal of the mortgage only two months later, there was $70,000 in equity in the Kroger Cres. home. He had lived there less than a year and she was paying the mortgage.
• If she predeceased him, her Bell Group Pension plan was payable to him as the surviving spouse. For choice of a “treasure”, his daughter, Melissa, chose first. His daughters, Sarah and Lauren also chose before Branden.

[47] I find that the Respondent’s evidence as it relates to the Family Agreement to be both credible and reliable. She was consistent in her evidence in the face of vigorous cross-examination. Her rationale for the Agreement, her description of events leading to its execution, her evidence concerning the OSAP appeal, and her text in July 2017 are persuasive. Her evidence is corroborated, in part, by that of Ms. Ingles.

[48] Therefore, I am satisfied on a balance of probabilities that the Applicant signed the Family Agreement on March 1, 2009. He read the document before he signed. It was an agreement whose terms were discussed between them. He knew that she was adamant that the Agreement be signed before they married. He accepted the terms although he would have preferred that there be no agreement.

[49] I note that neither party consulted a lawyer although both could have done so. The Respondent described the Applicant as unwilling to see a lawyer even to have his Will done. The Applicant was aware of her financial situation when they married. Each knew where the other worked and what their incomes were. He knew she had a home. He knew she had a pension through Bell Canada. There is no evidence that he ever asked to see what the pension value was before they separated.

[50] In these circumstances, I find that the Family Agreement is a binding agreement. It is a marriage contract within the meaning of s. 52 of the Family Law Act. It deals with support obligations and the division of property on marriage breakdown. It is in writing, signed by the parties, and witnessed: s. 55(1) Family Law Act.

[51] In MacDougall v. MacDougall, 2005 44676 (ON CA), [2005] O.J. No. 5171, the Court of Appeal set forth the following principles for interpreting a domestic contract:

• The court must search for an interpretation that is in accordance with the parties’ intentions at the time they entered into the contract.
• Where two interpretations are possible, the court should reject the one that would produce a result that the parties would not have reasonably expected at the time they entered into the contract.
• Instead, the court should favor an interpretation that promotes the reasonable expectations of the parties and provides a sensible result in the family law context.
• To arrive at such an interpretation, the court must interpret the provision in the context of the entire contract, including the entirety of the section at issue, to discern the likely intention of the parties.

[52] The Family Agreement is not drafted by a lawyer and lacks the usual clauses that specifically refer to contracting out of the equalization provisions of the Family Law Act. Nevertheless, the clear intent of the clause in the Agreement concerning the matrimonial home is that the Respondent shall receive the first $45,000 of any sale proceeds from the matrimonial home after payment of the mortgage. The balance is to be divided equally; viz. the balance of the profits from the sale of the home will be equalized. The intention is to place the $45,000 on a different footing than the rest of any profit earned on sale of their matrimonial home.

[53] The clause concerning pensions is likewise clear: neither party shall be entitled to any share of the other’s pensions on marriage breakdown. The logical inference is that pensions do not form part of the matrimonial property for equalization. Again, the Family Agreement does not expressly refer to equalization. However, the intentions of the parties and their reasonable expectations as reflected in the wording used are clearly inconsistent with pensions being equalized on marriage breakdown.

[54] Therefore, I find that the Family Agreement is a valid and binding domestic contract, the Respondent is entitled to the first $45,000 of the sale proceeds from the matrimonial home after payment of the mortgage, the balance of the sale proceeds will be equalized, and pensions for either party will not be equalized.

[55] I turn next to the Applicant’s claim of unjust enrichment.

Unjust Enrichment

[56] To establish an unjust enrichment, the Applicant must prove on a balance of probabilities that: 1) the Respondent has been enriched; 2) he has suffered a corresponding detriment; and 3) there is no juristic reason for the enrichment: Kerr v. Baranow, 2011 SCC 10 at paras. 3 and 32.

[57] While the underlying principles of the law of unjust enrichment are the same for all cases, courts must apply those common principles in ways that respond to the particular context: Kerr, at para. 34.

Benefit/Detriment

[58] At paras. 37 – 39 in Kerr, Justice Cromwell wrote the following with respect to the first two criteria:

[37] The Court has taken a straightforward economic approach to the first two elements - enrichment and corresponding deprivation. Accordingly, other considerations, such as moral and policy questions, are appropriately dealt with at the juristic reasons stage of the analysis: see Peter, at p. 990, referring to Pettkus, Sorochan v. Sorochan, 1986 23 (SCC), [1986] 2 S.C.R. 38, and Peel, affirmed in Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at para. 31.

[38] For the first requirement – enrichment - the plaintiff must show that he or she gave something to the defendant which the defendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant in which can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible. It may be positive or negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake (Peel, at pp. 788 and 790; Garland, at paras. 31 and 37).

[39] Turning to the second element - a corresponding deprivation - the plaintiff’s loss is material only if the defendant has gained a benefit or been enriched (Peel, at pp. 789-90). That is why the second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered (Pettkus, at p. 852; Rathwell, at p. 455).

[59] In Kerr, Justice Cromwell wrote that mutual benefits may be considered at the juristic reason step but only to the extent that it provides relevant evidence of the existence of a juristic reason for the enrichment (para. 109). Mutual benefits are not addressed at the benefit/detriment stage (para. 110). At para. 115, he wrote:

[115] The fact that the parties have conferred benefits on each other may provide relevant evidence of their reasonable expectations, a subject that may become germane when the defendant attempts to show that those expectations support the existence of a juristic reason outside the settled categories. However, given that the purpose of the juristic reason step in the analysis is to determine whether the enrichment was just, not its extent, mutual benefit conferral should only be considered at the juristic reason stage for that limited purpose.

[60] The Applicant did extensive home renovations to the property at 103 Kroger Cres. during the time he lived there. While the Respondent sought to minimize his efforts by saying that others helped, that she paid for the materials used, or that there was no objective evidence that his work increased the value of the home, the fact remains that the Applicant expended much time and effort in home improvement projects. If she had used an outside contractor, the cost would have been significant.

[61] In my view, it does not matter at this stage that the Applicant enjoyed doing the work or that he was residing in the house. It is also unnecessary to prove a specific economic gain such as an increase in the price she obtained on sale of the home. Improvements made may amount to little more that aesthetics or regular home maintenance such as replacing shingles on a roof. She gained by improvements made to her home and property that she did not have to pay someone else to do.

[62] There is a corresponding deprivation. He could have worked on projects for others. He could have spent his time doing other things. His time, effort and skills have value which he gave up for the Respondent’s benefit.

Juristic Reason

[63] I turn next to the third criterion: absence of juristic reason. As explained in Kerr at para. 40, absence of juristic reason simply means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff. The traditional juristic reasons to deny recovery include the intention to make a gift (donative intent), a contract or a disposition of law.

[64] At paras. 43-45, Justice Cromwell wrote in Kerr:

[43] In Garland, the Court set out a two-step analysis for the absence of juristic reason. It is important to remember that what prompted this development was to ensure that the juristic reason analysis was not “purely subjective”, thereby building into the unjust enrichment analysis an unacceptable “immeasurable judicial discretion” that would permit “case by case ‘palm tree’ justice”: Garland, at para. 40. The first step of the juristic reason analysis applies the established categories of juristic reasons; in their absence, the second step permits consideration of the reasonable expectations of the parties and public policy considerations to assess whether recovery should be denied:

First, the plaintiff must show that no juristic reason from an established category exists to deny recovery […] The established categories that can constitute juristic reasons include a contract (Pettkus, supra), a disposition of law (Pettkus, supra), a donative intent (Peter, supra), and other valid common law, equitable or statutory obligations. If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case under the juristic reason component of the analysis.

The prima facie case is rebuttable, however, where the defendant can show that there is another reason to deny recovery period as a result, there is a de facto burden of proof placed on the defendant to show the reason why the enrichment should be retained. This stage of the analysis thus provides for a category of residual defence in which courts can look to all the circumstances of the transaction in order to determine whether there is another reason to deny recovery.

As part of the defendant's attempt to rebut, courts should have regard to two factors: the reasonable expectations of the parties, and public policy considerations. [paras. 44-46]

[44] Thus, at the juristic reason stage of the analysis, if the case falls outside the existing categories, the court may take into account the legitimate expectations of the parties (Pettkus, at p. 849) and moral and policy-based arguments about whether particular enrichments are unjust (Peter, at p. 990). For example, in Peter, it was at this stage that the Court considered and rejected the argument that the provisions of domestic and child care services should not give rise to equitable claims against the other spouse in a marital or quasi-marital relationship (pp. 993-95). Overall, the test for juristic reason is flexible, and the relevant factors to consider will depend on the situation before the court. (Peter, at p. 990)

[45] Policy arguments concerning individual autonomy may arise under the second branch of the juristic reason analysis. In the context of claims for unjust enrichment, this has led to questions regarding how (and when) factors relating to the manner in which the parties organized their relationship should be taken into account. It has been argued, for example, that the legislative decision to exclude unmarried couples from property division legislation indicates the court should not use the equitable doctrine of unjust enrichment to address their property and asset disputes. However, the court in Peter rejected this argument, noting that it misapprehended the role of equity. As McLachlin J. put it at p. 994, “It is precisely where an injustice arises without a legal remedy that equity finds a role.” (See also Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325, at para. 61.)

[65] I found above that shortly before they married, the parties entered into the Family Agreement. Under the heading “Marriage Break-Up”, the Agreement states:

Louise will receive the first $45,000 (repayment of the original house deposit). This continues forward should they move to another location. Randy and Louise shall benefit equally from the remainder of house profits.

[66] Thus, there is a contract that governs how they will share in any profits earned on sale of their matrimonial home including increases in value. Improvements made by him confer a mutual benefit on both parties in the sense that the improvements make the home more comfortable and presentable to live in, and if the improvements help achieve a higher price on disposition, the parties share equally in that increase. The Applicant benefits from his contributions.

[67] The contractual provision does not specifically refer to work done by the Respondent but, in my view, it does provide a juristic reason for her to retain her share of any financial benefits gained.

[68] If I am wrong that the Family Agreement does not provide a juristic reason, I nevertheless find that the parties reasonable expectations were that they would share equally in any increase in value of their matrimonial home above her initial investment in the purchase of 103 Kroger Cres.. They shared the cost of improvements made. He spent and she paid. He was doing something he enjoyed doing for their mutual benefit.

[69] Further, she purchased 103 Kroger Cres.. She made the mortgage payments indirectly through her sister for years. He did not put up any money toward the purchase of that home. There was equity in the house when he began living there and when they married. The contract reflects the parties’ reasonable expectations that her investment be repaid if their marriage broke down.

[70] I find that there was a juristic reason for the Applicant to retain benefits derived from the home improvements made by the Respondent. The claim for unjust enrichment fails.

Echo

[71] Both parties are “dog people”. Both have had dogs as pets for years. One of the most contentious issues in this case is who gets to keep Echo, a ShihPoo purchased in March 2012.

[72] The law is clear that pets are property even though anyone who has owned a pet would know, they are so much more.

[73] Both parties testified that they were in the mall with the Applicant’s four-year old granddaughter when they went into the pet store. His granddaughter saw Echo and immediately fell in love with the dog. According to him, they wandered a bit longer in the mall before going back to buy the dog. It was a mutual decision although she paid.

[74] She testified that he liked the freedom of not having a pet. It allowed them to travel. He was not keen to buy the dog, but she decided on the spot that she was buying Echo.

[75] Echo was purchased March 29, 2012 from #1 Pet Centre in Cambridge. The Respondent paid for Echo using her credit card. She is named on the purchase agreement as the owner. Echo had regular veterinary appointments at a clinic where, again, the Respondent was registered as the owner.

[76] Both parties adored Echo. He traveled with the Applicant for sales calls for a year or more. Both took Echo to the veterinarian for appointments although the Respondent did more of the appointments. Echo had seasonal allergies that caused him to bite at his fur causing inflammation and bald spots. He was on special food for his allergies.

[77] The parties separated July 14, 2017. For a short period, they continued to live in the house on Jackson Cres.. The Applicant regularly had his daughters or other family members come over when he was home. This was uncomfortable for the Respondent. The Applicant moved out and began living with his daughter, Kayla. Echo remained with the Respondent in the Jackson Cres. home.

[78] On September 9, 2017, the Applicant and his daughter, Kayla, came to the Jackson Cres. property. Echo was in a fenced in area by the pool. The Applicant got out of his truck, unlocked the gate and took Echo. The Respondent saw what was happening from in the house but was too late to intervene. The Applicant drove off with Echo and has had Echo in his possession since.

[79] The Applicant testified that he received a call from his neighbour saying that Echo was in distress. That is why he stopped by. That is why he took Echo. There are photographs showing inflammation and some hairless spots on Echo’s coat. He tried to get Echo into a different veterinarian but had difficulty doing so because the Respondent made it broadly known that the dog was hers. Echo was ultimately seen by a specialist in Guelph who was able to help Echo long-term with his allergies.

[80] Much evidence was adduced about incidents at the Jackson Cres. property post-separation where the Applicant was denied entry to the house, was told to leave, police were called, and eventually, his personal items were removed with help from family. I conclude that the Respondent was taking a hard line, confrontational approach to the breakdown of their marriage. At that stage, reasoned discussion was impractical.

[81] I do not accept that the Applicant went to get Echo as a result of any call from a neighbour. It seems to me more likely that he loved the dog, knew that the Respondent would never give Echo to him, and he seized the opportunity to get Echo. I do not go so far as to conclude that he did so to hurt the Respondent.

[82] I do not agree that the ownership documents and veterinarian registration showing the Respondent as the owner of Echo is determinative of ownership. Echo was jointly purchased. Who paid and who was registered as owner ignores the reality: Echo was jointly owned by both parties. Echo was the family pet. Both parties cared for his needs. Each spent time alone and together with Echo.

[83] Echo has been in the Applicant’s care since September 2017. I find that Echo should remain with the Applicant. The purchase price paid was $400. I find that Echo’s value is undiminished for equalization purposes.

Equalization

[84] The Applicant prepared and served a brief (Ex. 5) containing a Net Family Property Statement (“NFP”) dated September 23, 2020 with supporting documents. The Respondent served her NFP on September 23, 2020 although it was not properly completed.

[85] At the outset of trial, the Applicant provided a further final NFP dated September 28, 2020. In it, he adopted some of the valuation figures for some items from the Respondent’s NFP to narrow the issues and shorten the trial. Neither party filed a Comparison of Net Family Property Statements.

Part 4(a) - Land

[86] The Jackson Cres. property was purchased in 2012 for $250,000 and sold for $572,000 in 2018. The Respondent asserts in her NFP that the property was worth $600,000 on the date of separation based on private purchasers who were willing to pay that amount. No appraisal has been filed in evidence. No offer to purchase for $600,000 was provided. The best reliable evidence of value is the price obtained - $572,000.

[87] The first $45,000 should be deducted pursuant to the terms of the Family Agreement. Those funds belong to the Respondent and come off the top of the sale proceeds. The net amount is $527,000. That amount is divided equally - $263,500 each.

[88] For equalization purposes, Part 4(a) should show the following: Applicant $263,500, Respondent $308,500. In order to ensure that the $45,000 is neutral and not counted in her net family property, a corresponding exclusion is necessary in Part 7 (see below) pursuant to s. 4(2) item 6 of the Family Law Act.

Part 4(b) – General Household Items and Vehicles

i. Household Contents

[89] The Respondent obtained a two-page appraisal of itemized household contents including tools (see Ex. 5, Tab 2) dated October 13, 2017. The total value of the items listed is $7,780. The Applicant accepts the total value estimated.

[90] The Applicant highlighted in yellow those items he believes he received post-separation. Most are tools or lawn care items. The value of the items received by him is $2,865. He denies that he received the remaining items on the two-page list.

[91] There is a second appraisal at Tab 5 by the same appraiser dated April 13, 2018. The estimated value of items listed is $2,920. The Applicant denies receiving any of the listed items on the April 13, 2018 appraisal.

[92] The Applicant’s daughters compiled a list of contents of the home by room including the garage, shed, and outside. An approximate value is set out for most items. The estimated values come from the Applicant; no outside source was consulted or used to arrive at the amounts.

[93] The Applicant identified the items that he received post-separation by pink highlighter. Some of those items have no value shown; for example, the wheelbarrow. For the highlighted items where a value is shown, the aggregate of such items is $1,565.

[94] I note that:

• Some of the items on the list compiled by his daughters overlap with the October 13, 2017 appraisal list.
• Some of the items he highlighted in pink on his daughters’ list as items received appear on the October 13, 2017 appraisal list but are not highlighted in yellow to evidence that he received same.

All to say that the three lists overlap, values for some items are missing entirely, and there is inconsistency in the identification of the items actually received by the Applicant after the parties separated.

[95] His NFP estimates that he received a snow blower, pressure washer, coffee table/end set worth $900, various tools valued at $2,865 (see above), and a 2012 John Deere Lawn Tractor valued at $1,000. The aggregate is $4,765.

[96] I accept that he received the items he identified in his evidence. As mentioned, some items have no estimated value. The Respondent’s NFP is of no assistance because she estimated only the goods retained by her.

[97] I conclude that the value of household goods retained or received by him post-separation is $5,200. That includes the items listed in paragraph 90 above. I have added a very modest additional amount to reflect that he received more than was used to derive his estimates. Thus, the aggregate of the three (3) line items on his NFP is $5,200.

[98] Turning to the Respondent’s household contents, she stayed in the home. Most of the furniture and contents remained with her. She estimates the value of contents that she kept as $4,000. The Applicant estimates what she kept as $10,000.

[99] Apart from the appraisals obtained by the Respondent, there is no other independent evidence of value. On the two appraisals, the Respondent had roughly $7,800 of items after deduction of the items highlighted in yellow by the Applicant as items he received. However, as I indicate above, some items not shown as received by him from the appraisal are shown as received in the document compiled by his daughters. Moreover, it is equally clear that not all household items were appraised; for example, dishes etc.

[100] Some adjustment is necessary. It is impossible to do so with mathematical precision. I fix the value of household contents retained by her on separation at $7,500.

ii. Vehicles

[101] The Respondent owned a 2014 Mazda 6 which she drove. She kept that car when the parties separated. She estimates its value at $10,000 in her NFP. No appraisal is offered for that value.

[102] The Applicant estimates the value of the car at $12,500. He has provided a page from a website advertising the same vehicle at a Brampton dealership. The asking prices for two such cars are $13,995 and $13,250. According to handwriting at the top of the page, her vehicle had roughly 70,000 more kilometers.

[103] I fix the value of her vehicle at separation at $11,000 given the difference in kilometers with the vehicles depicted.

[104] The parties jointly owned a 2016 Dodge Ram truck. It was the Applicant’s principal vehicle. He retained it after separation. There was a loan against the truck. He attempted to sell it without success. She called him one day to tell him to have it ready for her. She would sell it which is what she did. The sale price was $25,000. The value is split 50-50 between them.

[105] There are two items on her NFP that are not disputed: wedding rings and wood.

[106] Therefore, as it relates to this Part, the totals are:

	Applicant	Respondent
Household contents	$5,200	$7,500
2014 Mazda		$11,000
2016 Ram Truck	$12,500	$12,500
Wedding rings		$1,500
Echo	$400
Wood	$400
Total:	$18,100	$32,900

Part 4(c) – Bank Accounts and Savings, Securities and Pensions

[107] I accept the amounts shown on the Applicant’s NFP.

[108] The Respondent conceded her error concerning the amounts on the BMO – Joint and TD Bank in cross-examination. The amount of the RRSPs with Manulife is common to both NFPs. The RESP amount shown on her NFP ($1.09) is de minimis and need not be included.

[109] With respect to her Bell pension, the Respondent included the full commuted value of the pension as at the date of separation in her NFP. Tab 10 of ex. 5 is an actuarial report obtained by the Respondent. The actuary advised that the present value of pension earned during the marriage was $90,743. That is the figure used by the Applicant on his NFP and is the appropriate amount for calculation of equalization.

[110] As indicated above, the parties agreed in the Family Agreement that neither would share in the other’s pension upon marriage breakdown. Whether the $90,743 is included but later excluded in Part 7 or is simply omitted from the calculation altogether is a matter of no moment.

[111] I will include it at this stage for the sake of completeness.

[112] The totals under this Part are: Applicant $2,021, Respondent $120,988.

Part 4(d), (e), and (f)

[113] Neither party discloses any amounts under Part 4(d) or (e). With respect to Part 4(f), the Respondent lists a debt of $35,900 owing by her first husband who died. That debt is virtually uncollectible and has no value.

Part 4 Totals

[114] The total amounts for each party for Part 4 are: Applicant $283,621, Respondent $462,388.

Part 5 – Debts and Other Liabilities

[115] The debts and liabilities shown under Part 5 of the Applicant’s NFP are supported by the documents at Tabs 11-20 of ex. 5. The Respondent showed a higher amount for her debt to CIBC Visa but agreed in cross-examination that the figure she used was that at the end of the billing period and included purchases made after separation. The figure used by the Applicant ($4,475.16) is correct.

[116] The Applicant included a notional tax payable in respect of the Bell pension. That figure derives from the calculation by the Respondent’s actuary at Tab 10.

[117] The Respondent claims an alleged debt of $1,480 to Bell for “mitigation pay” that dates back to 2002 when Bell merged management and other employee payrolls. She testified that Bell advanced funds to management employees that must ultimately be repaid. Exhibit 9 is a paystub for the period ended October 14, 2017 that shows amount at the bottom of the page.

[118] I observe that it is a debt owing but one that was owing at the date of marriage. Whether I include this debt at this point and again as a debt against her date of marriage assets or simply omit it from the calculation altogether has the same result. I include it for the sake of completeness.

[119] The total debt and liabilities for each party are: Applicant $196,526, Respondent $254,125.

Part 6: Property/Debts/Other Liabilities on Date of Marriage

[120] Dealing first with the Applicant, he indicates that he had $24,000 in assets as at the date of marriage comprised of a vehicle with an estimated value of $20,000 and tools estimated at $4,000. He testified that some of the tools were kept at a friend’s home because they were too large for the Kroger Cres. house. He also sold some during the marriage.

[121] As indicated above, the Applicant is a skilled carpenter. That he would acquire tools from time to time and have a steady cache of tools is entirely reasonable. His estimate of $4,000 strikes me a fair and reasonable.

[122] With respect to the Altima, it was a 2008 model that he purchased in 2008. The total cost to purchase was $27,374. With taxes, the price was slightly over $30,000. He provided listings for the same model car showing a value between $18,000 and $22,000. I accept the $20,000 amount as reasonable.

[123] Turning to the Respondent, she estimates her date of marriage assets at $464,431, less debts of $158,038 consisting of the mortgage on the Kroger Cres. home and a Visa bill of $323.33. Her stated assets are comprised as follows:

Land $250,000 General household items/vehicles $8,000 Bank accounts and savings $179,180 Money owed to her $26,000 BCE Stock $1250.57

[124] There is no dispute as to the value of the Kroger Cres. property nor the amount of the mortgage.

[125] The Applicant estimated the value of the Respondent’s household contents and vehicle at $6,000. Neither party provided any support for the amounts estimated for this item. I note that the letter written to OSAP indicated that the Applicant gave the Respondent his old car to help her out. I also observed furniture in the photos taken of the Kroger Cres. home most of which was there when the Applicant moved in.

[126] I accept the Applicant’s figure of $6,000 absent any meaningful evidence as to value of the contents and the vehicle from the Respondent.

[127] The $179,180 identified as savings must include her accrued pension at Bell as at the date of marriage. No bank statements were adduced, nor did she testify to significant other savings. The only bank statement filed relates to a Scotiabank RESP account as at April 9, 2009 which shows a balance of $860.35.

[128] In calculating her date of separation assets above, only the amount accrued by her Bell pension during the marriage was included. To be consistent, the accrued value of her pension as at the date of marriage should be excluded.

[129] No statement was provided showing the date of marriage value of the Bell pension. She testified that it was $175,000.

[130] Without banks statements from the date of marriage, it is impossible to determine with any precision how much the Respondent had in savings. I note that she claimed RRSPs in Part 4(c) of $25,992 “from 1st marriage Settlement”.

[131] I fix the amount of her savings as at the date of marriage at $27,500 comprised of the RRSP settlement, the RESP balance and a modest amount for day-to-day savings. The balance is likely the accrued value of her Bell pension as at that date of marriage. Therefore, I reduce this item to $27,500.

[132] I observe that her March 3, 2009 Scotiabank Visa statement indicates a balance owing of $323.33 with a note that $110 was paid on March 28, 2009.

[133] Again, the Respondent claims $26,000 in monies owed to her. This amount is less than the alleged debt owing at the date of separation by her now deceased first husband. The debt has been owing since well beyond any applicable limitation period. I conclude that there is no prospect of that debt ever being repaid. For the reasons above, this alleged debt should be omitted in the calculation of equalization.

[134] A statement from Bell found at Tab 25 of ex. 5 indicates that as at October 27, 2017, the Respondent held 14.1899 shares having a value of $351.21. No statement is provided showing her shareholdings as at the date of marriage. Did she own any BCE shares? How many? There is simply no evidence to support the $1250 figure on her NFP.

[135] The Applicant has accepted the $351 amount for BCE stock in Part 6 as an asset held by her at the date of marriage. Accordingly, I fix the amount of BCE share holdings at $351.

[136] The aggregate of the property held by the Respondent at the date of marriage before deduction of any debt or liabilities is $283,851.

[137] I turn next to the debt/liabilities as at the date of marriage.

[138] The Applicant owed $24,000 on the car loan for the Altima.

[139] The Respondent owed $157,715 on the Kroger Cres. mortgage. She owed $323.33 on her Visa credit card. She had a notional tax on the RRSPs at 15% in the amount of $2,448.22. She had a debt owing to Bell for mitigation pay of $1,480. Her aggregate debts and liabilities at the date of marriage were $161,967.

[140] The net value of property owned by the parties at the date of marriage was: Applicant $0 ($24,000 less $24,000), and Respondent $121,884 ($283,851 less $161,967).

Part 7 – Value of Excluded Property

[141] The Family Agreement applies at this stage. First, the Respondent is entitled to exclude $45,000 representing her deposit from the Kroger Cres. home. Second, she is entitled to exclude the Bell pension accrued during the marriage. That amount is $90,743 less the credit already given for notional tax of $13,611 which is $77,132.

[142] The aggregate of excluded property is $122,132.

Final Calculation

[143] Based on the above determinations, the following totals for net family property apply:

Applicant Value of Property Owned on Valuation Date: $283,621 Less: Debts/Liabilities, Property Owned on Marriage/Excluded Property: $196,526 Total: $87,095

Respondent Value of Property Owned on Valuation Date: $462,388 Less: Debts/Liabilities, Property Owned on Marriage/Excluded Property: $498,141 Total: $0

[144] The Applicant pays the Respondent $43,547 by way of equalization.

Post-Separation Adjustments

[145] When the sale of Jackson Cres. closed, the net proceeds held in trust by the real estate lawyer was $220,221.

[146] The statement of adjustments provided shows two payments made to the Sorbara law firm of $6,000 and $13,000. Those payments were on account of the Respondent’s legal expenses for these proceedings. Obviously, those payments benefitted the Respondent alone. Whether she will recover any portion of that money through costs is not known at this point.

[147] The Applicant is entitled to a post-separation adjustment for the monies used solely for the Respondent’s legal expenses. Thus, an adjustment is warranted in the amount of $19,000.

[148] In 2020, the monies held by the Sorbara firm in trust were divided: $100,000 was paid to Mr. Reid in trust and the remainder in trust held by the Sorbara firm is $94,423 plus any accrued interest since completion of the sale in May 2018. The fact that the proceeds are in two accounts not one is irrelevant.

[149] Based on my findings above, the Respondent is entitled to $45,000 from the sale of the home per the Family Agreement less $19,000 already received ($26,000), $43,547 for equalization, and prejudgement interest on both amounts. Those amounts should be paid to her from funds held in trust. The balance of any monies held in trust, regardless where and by whom held, should be divided equally between the parties.

Restraining Order

[150] The Applicant seeks a restraining order. She indicated in closing submissions that she feared the Respondent would harass her when she gets Echo back.

[151] There is no basis to grant a restraining order in this case. The parties have been separated since July 2017. There is no evidence of past threats or violence. There is no evidence of ongoing harassment. Echo will remain with the Respondent. The request for a restraining order is dismissed.

Conclusion

[152] I conclude as follows:

1. The Family Agreement dated March 1, 2009 is a valid and binding domestic contract.
2. Pursuant to the terms of the Family Agreement, the first $45,000 of any profit earned on sale of the matrimonial home shall be paid to the Respondent less $19,000 already paid for her benefit ($26,000 net).
3. Pursuant to the terms of the Family Agreement, neither party shall be entitled to share in the pensions of the other. Accordingly, pensions accrued during the marriage shall not be equalized.
4. The Applicant shall pay to the Respondent $43,547 for equalization.
5. The Respondent shall receive prejudgment interest on the amounts in 2 and 4 above.
6. The Applicant’s claim for unjust enrichment is dismissed.
7. The Respondent’s claim for a restraining order is dismissed.
8. If the parties cannot agree on costs, they may make written submissions within 21 days hereof.

[153] In the event that there is an arithmetic error, the parties should notify the Trial Coordinator and schedule a remote hearing to deal with same.

Justice R. Raikes

Released: January 4, 2021