COURT FILE NO.: FS-18-0261
DATE: 20211013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Marlene Pimenta
Applicant
- and -
Roger Jaggernauth
Respondent
COUNSEL: Robert N. Kostyniuk, for the Applicant James Herbert, for the Respondent
HEARD: September 27-29, and October 1, 2021
REASONS FOR JUDGMENT
MANDHANE J.
OVERVIEW
[1] Marlene Pimenta and Roger Jaggernauth met in 2013 and quickly became romantic. Jaggernauth was divorced and had three children. Pimenta was separated but was still living with her husband in their matrimonial home; she had two children. Jaggernauth worked full-time earning approximately $100,000 per year, while Pimenta worked part-time earning approximately $30,000 per year.
[2] As their relationship became serious in 2014, Pimenta and Jaggernauth started to talk about moving in together. Pimenta, however, was not ready to purchase a property until she finalized her divorce.
[3] In August 2014, Jaggernauth bought 1810 South Sheridan Way, Mississauga (the “Home”) for $455,000. He immediately embarked on an extensive and ambitious renovation.
[4] The parties lived together in the Home for a total of 30 months – between March and November 2015 (eight months), and July 2016 and May 2018 (22 months). The parties permanently parted ways in 2018. By that time, the Home had increased in value to $810,000.
[5] The parties’ relationship was tumultuous, with police being called, and periods when Pimenta would leave the Home. Despite their difficulties, the parties agree that Pimenta made various loans and contributions towards the Home throughout the relationship, including before she moved in and while the parties were temporarily separated.
[6] On October 9, 2018, Pimenta brought this Application and obtained a Certificate of Pending Litigation over the Home. She says that she contributed well over $200,000 towards the Home that was never repaid. She asks me to order that she has a one-half beneficial interest in the Home pursuant to a constructive trust.
[7] While Jaggernauth admits that he was unjustly enriched by Pimenta, he says he only owes her $135,876.59, and that she is not entitled to any share of the increased value of the Home because her contributions were loans not investments. He denies that Pimenta has any beneficial interest in the Home whatsoever; he was the sole purchaser and the only one who paid the mortgage and taxes.
[8] For reasons that follow, I find that Pimenta contributed at least $218,829.64 towards the Home that was never repaid by Jaggernauth. The most appropriate remedy in all the circumstances is to impose a constructive trust granting Pimenta a one-half (50%) beneficial ownership in the Home.
FACTUAL BACKGROUND
[9] On August 15, 2014, Jaggernauth purchased and moved into the Home. He paid $455,000, which was financed with a loan from his mother ($100,000), a loan from Pimenta ($24,000), and a mortgage in the amount of $364,000. Jaggernauth was the sole titleholder and the only person listed on the mortgage. Pimenta’s loan of $24,000 was quickly repaid.
[10] While she was not formally involved in the purchase, Pimenta says that the parties’ shared intention was to renovate the Home so that they could raise their five children there eventually. Jaggernauth began renovating the Home in 2014 and completed the work in 2018. Jaggernauth and his brother did some of the work, while they also hired skilled trades and Pimenta’s nephews.
[11] Throughout 2014, Pimenta and Jaggernauth continued to live separately while Pimenta awaited her divorce. On February 13, 2015, Pimenta signed a separation agreement and received an equalization payment of approximately $300,000. After her divorce was finalized in March 2015, Pimenta moved into the Home. She had week-about parenting time with her children, while Jaggernauth’s three children were there on weekends.
[12] Jaggernauth says that he asked Pimenta to pay rent, but that they eventually agreed that $1500 per month would be applied against her monetary contributions to the renovations. Pimenta denies that the parties had any rental or set-off agreement.
[13] On March 27, 2015, Pimenta gave Jaggernauth $100,000 to pay off the loan he had received from his mother to purchase the Home. Pimenta says that her understanding was that this was a necessary step for her to go on title. Jaggernauth says that he only paid his mother back $53,000 because the rest was a gift.
[14] Over time, the parties settled into a pattern. Jaggernauth was responsible for paying the mortgage ($1509.78 per month), property taxes ($4183.05 per year), and home insurance ($1400 per year); while Pimenta was responsible for utilities (approximately $700 per month) and domestic labour (grocery shopping, cooking, laundry, etc.). Both parties contributed to household expenses such as groceries, restaurants and entertainment (totalling approximately $500 per month each).
[15] In April 2015, the parties visited the mortgagee to explore adding Pimenta onto the mortgage, but no further steps were taken at this time. In October 2015, the parties visited a paralegal to put the Home and mortgage into their joint names, but again they never went through with it. Jaggernauth says that he wanted to retain a majority interest and Pimenta would not agree.
[16] For a period of eight months, between November 2015 and July 2016, Pimenta moved out of the Home and rented a condo for $1950.00 per month. The parties agree that Pimenta continued to make purchases towards the Home even though she was not living there anymore. She says that the parties were still seeing each other regularly and trying to reconcile. On November 4, 2015, shortly after she left the Home, Jaggernauth delivered a handwritten letter to Pimenta so that he could be “accountable in the eyes of the law.” In the letter, he promised Pimenta that, by January 1, 2016, he would marry her, finish their Home at his sole expense, make her an equal owner of the Home, give her half of all his other assets.
[17] In February 2016, while they were still temporarily separated, the parties consulted a lawyer about putting the Home and mortgage in their joint names. However, they could not agree on the terms; both parties wanted 60/40 ownership in their favour. In and around this time, Pimenta was added onto the Home insurance policy. Jaggernauth says that he added Pimenta to the policy as security for her loans, while Pimenta says that it was meant to placate her so that she would stop asking Jaggernauth to put her on title.
[18] Sometime in 2016, Jaggernauth sold his Ajax home and received approximately $200,000. He repaid some of the monies that he owed to Pimenta and used some of the money towards the renovations.
[19] Pimenta moved back into the Home in July 2016. In May 2016, Jaggernauth had her sign a “rental application form” for $1500 per month. There was no lease signed and no rent was ever paid pursuant to the application.
[20] The parties started planning their wedding for September 2016. About a month before the scheduled date, Jaggernauth called it off. Afterwards, Pimenta kept living in the Home and contributing towards the renovations.
[21] In February 2017, unbeknownst to Pimenta, Jaggernauth took out a line of credit in the amount of $60,000 which was secured against the Home.
[22] In May 2018, Pimenta moved out and stopped making contributions towards the Home. Both parties agree that all the renovations were done by this point in time.
[23] After Pimenta left, Jaggernauth remained in the Home. He continues to live in it today with his extended family. As of April 6, 2019, the Home was valued at $830,000. There are outstanding mortgages and loans totalling $431,409.88. There was no evidence before the Court about the current value of the Home.
[24] Pimenta is currently living in a rented condo for $2500 per month; her children visit her regularly. She says that she has not been able to purchase another home in the GTa since 2018 because her money is tied up in the Home and this litigation.
ANALYSIS
[25] Jaggernauth conceded that Pimenta has established the three requirements for unjust enrichment: (1) an enrichment by one party; (2) a corresponding deprivation of the other party; and (3) the absence of a juristic reason for the enrichment: Kerr v. Baranow, 2011 SCC 10, [2011] 1 SCR 269 (S.C.C.) at paras. 30-31.
[26] The only outstanding issues relate to the quantum of the unjust enrichment and the appropriate remedy.
The quantum of the unjust enrichment
[27] The parties differ by approximately $137,093.48 in terms of their accounting. The following table summarizes the parties’ positions at trial:
| Line # | Pimenta’s Accounting | Jaggernauth’s Accounting | Description |
|---|---|---|---|
| 1. | $287,860.07 | $252,219.64 | Contributions to the Home (purchases, e-transfers, etc.) |
| 2. | $28,050 | $0 | Cash payments |
| 3. | $24,100 | $0 | Roof, appliances, doors |
| 4. | ($61,440) | ($61,440) | Repayments |
| 5. | $0 | ($45,000) | Value to Pimenta of living in the Home |
| 6. | $0 | ($4,303.05) | Joint vacations |
| 7. | $278,570.07 | $141,476.59 | NET AMOUNT |
[28] Line 1 represents the cash advances and purchases made by Pimenta towards the Home. Jaggernauth agrees that Pimenta gave him a total of $195,000 between September 2, 2014 and April 1, 2015; e-transferred him cash throughout their relationship; and purchased materials and chattels at Home Depot, Lowes, etc.
[29] Despite being on notice that Jaggernauth disputed some of the items claimed in Line 1, Pimenta did not provide any evidence at trial about the disputed amount of $38,640.43. She did not adduce any bank statements, receipts, or other documentation to substantiate these amounts. She has not satisfied me on a balance of probabilities that these amounts were contributions towards the Home.
[30] I accept Pimenta’s claim in Line 2 that she gave Jaggernauth cash totaling over $28,050. Given the extent of the renovations and the need for skills trades, it is likely that there were significant cash outflows throughout the duration of the project. Pimenta proved that she made the withdrawals, but there were no records (i.e., informal accounting, IOU, etc.) to show that this money was given to Jaggernauth.
[31] Overall, I prefer Pimenta’s evidence to that of Jaggernauth’s in relation to the cash transfers. Pimenta testified that Jaggernauth would ask her to withdraw cash so he could pay tradespersons. She adduced text messages with examples of his requests. Jaggernauth admitted that he always paid third-party contractors in cash. When asked how he came up with the cash to pay the skills trades, Jaggernauth was evasive. He said that he always has a “cash float” of approximately $10,000, that he had money from the Ajax house, and that he was earning an income. He did not specify where the cash float came from, how much money from the Ajax property he invested in the Home, or the amount of his monthly income that was being invested in the renovation. His Financial Statement indicates that he had significant debts going into the relationship with Pimenta, and that he accrued more while they were together
[32] In Line 3, Pimenta claims $24,100 for appliances, windows, roofing, and spray foam. She produced no receipts or any supporting documentation. She says that she paid for some of these items in cash. She could not recall many details, like, for example, the name of the company or supplier, the dates the work was completed, or the products installed. Pimenta has not satisfied me on a balance of probabilities that she made these contributions to the Home.
[33] Per Line 4, the parties agree that Jaggernauth repaid Pimenta a total of $61,440.
[34] In Line 5, Jaggernauth claims that he is entitled to a set-off for the value to Pimenta of living in the Home. He says that I must look at the benefits that accrued to Pimenta and set-off a reasonable amount for rent: Peters v. Swayze, 2018 ONSC 189 (C.A.); Thomas v Fenton, 2006 BCCA 299 (C.A.), at para. 25.
[35] Pimenta denies that the parties ever entered into any rental agreement, or any agreement in lieu of rent. When asked about the rental application that she filled out in July 2016, Pimenta says that Jaggernauth had asked her to do so for “tax purposes” but that nothing ever came of it. Pimenta says that she made many contributions to the home that far exceeded any rent that she would have paid.
[36] It is clear on the evidence that Pimenta regularly paid the utilities for the Home, as well as covering the costs of groceries, meals, and other common expenses. Her itemized banking documents show that her contributions regularly totalled over $1500 per month. Because Pimenta worked part-time, Jaggernauth benefited from her in-kind contributions to the household including meal preparation, laundry, and household cleaning and maintenance. In short, the parties both contributed to the day-to-day costs of the Home and benefited equally from the arrangement. I refuse to set off any amount for rent.
[37] In Line 6, Jaggernauth claims a set-off for vacations. Pimenta says that she also paid for vacations, restaurants, and outings that she is not claiming as part of this Application. Jaggernauth has not satisfied me that the vacations amount to an unjust enrichment to Pimenta that is properly set off against her contributions to the Home.
[38] Based on my findings above, the total amount of the unjust enrichment in favour of Jaggernauth is at least $218,829.64. My calculations are summarized here:
| Line # | Court-determined amount | Explanation |
|---|---|---|
| 1. | $252,219.64 | Amounts paid by Pimenta for Home |
| 2. | $28,050 | Cash transfers from Pimenta to Jaggernauth |
| 3. | $0 | Pimenta’s payments for roof, appliances, doors |
| 4. | ($61,440) | Loans repaid to Pimenta by Jaggernauth |
| 5. | $0 | Value to Pimenta of living in the Home |
| 6. | $0 | Joint vacations paid for by Jaggernauth |
| 7. | $218,829.64 | NET AMOUNT OF UNJUST ENRICHMENT |
The Appropriate Remedy
[39] Having quantified the unjust enrichment, I now turn to the proper remedy.
[40] Pimenta asks me to impose a proprietary award. She says that her contributions to the Home were an investment and that I should impose a constructive trust giving her 50% beneficial ownership. She says that this is the only remedy that recognizes the parties’ shared intentions for the Home, and that would allow her to benefit from its much-increased value.
[41] Jaggernauth asks me to award a monetary award based on quantum meruit. He says that Pimenta’s contributions to the home were loans and have been quantified to the last penny. He says that Pimenta has not established that a monetary award is insufficient in this case, especially since she is a secured creditor with respect to any monetary award as she has a CPL on the Home.
[42] According to the Supreme Court of Canada in Kerr at para. 46: “Remedies for unjust enrichment are restitutionary; the object of the remedy is to require the defendant to repay or reverse the unjustified enrichment.” The Supreme Court has also recognized the need for flexibility and common sense when applying equitable principles in family law due to the special circumstances that can arise: Kerr, at para. 34, referring to Peter v. Beblow, [1993] 1 S.C.R. 980 (S.C.C.) at p. 997.
[43] Depending on the factual circumstances, a successful claim for unjust enrichment may result in either a monetary or proprietary award: Kerr at para. 46. Monetary awards are preferred unless the claimant can establish that such an award would be inappropriate in all the circumstances: Kerr, at para. 52.
[44] There are at least two bases for calculating monetary awards: “value received” (quantum meruit) or “value survived.” The former is a simple matter of accounting (money in, money out), while the latter allows the claimant to share in the wealth accumulated during the relationship. There can be significantly different outcomes based on the calculation used.
[45] In family law cases, monetary damages will only be calculated on a “value survived” basis if the Claimant can establish that the parties were involved in a “joint family venture,” and where there is a clear link between the claimant’s contributions to the joint venture and the accumulation of wealth: Kerr at paras. 49, 55, 59-60, 80-81 and 87.
[46] There is no presumption of a joint family venture simply because the parties cohabitated; its existence must be grounded in evidence and based on consideration of the parties’ mutual effort, economic integration, actual intent, and prioritization of the family: Kerr, at paras. 87-99.
[47] The Court of Appeal for Ontario has confirmed that, in appropriate circumstances, the concept of a joint family venture can be applied to a single asset or set of assets: Farkas v Bedic, 2016 ONCA 82 (C.A.); see also, Yonathan v. Matrook, 2015 ONSC 1984(S.C.J.).
“Value received”
[48] Jaggernauth says that a “value received” award is the most appropriate remedy because Pimenta quantified her claim, and because her contributions were personal loans and not investments in the Home.
[49] I disagree. Pimenta’s outstanding contribution of over $200,000 was more in the nature of an investment than a loan. Pimenta personally purchased chattels from Home Depot, Lowe’s, and other retailers, and e-transferred money to Jaggernauth to pay for contractors. There were no loan documents, IOUs, or other promissory notes, and there was no contemporaneous record keeping. It is telling that Jaggernauth could not identify any benefit that accrued to Pimenta from her advancing him over $200,000. He did not pay interest, nor did he offer her equity in another asset. Pimenta was more an investor than lender. The fact that she also advanced him loans from time to time, that were repaid, does not take away from my finding.
[50] A monetary award based on value received would be unfair because it would give Jaggernauth the exclusive benefit of the parties’ joint investment in the Home: Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R. 303 (S.C.C.) at para. 91. It would not, for example, adequately compensate Pimenta for the lost opportunity of investing her money in GTA real estate which would surely have increased in value post-separation.
“Value survived”
[51] Jaggernauth says that Pimenta is not entitled to damages on a “value survived” basis. He says that this was not a joint family venture. He notes, for example, that the relationship was turbulent, short-lived, did not result in children or co-mingling of finances, and that neither party changed their lifestyle to prioritize the family (i.e. both worked).
[52] While the parties’ relationship was certainly not typical, I am satisfied that they were engaged in a joint family venture in relation to the Home. The parties were jointly involved in paying the mortgage, taxes, utilities, and household expenses. Neither Pimenta nor Jaggernauth claimed these amounts in their accounting, which suggests that the parties were each contributing monies and labour proportional to their income and skills, with the shared goal of living comfortably and increasing the value of the Home. It is notable that Pimenta continued to prioritize her contributions to the Home even while the parties were temporarily separated for eight months.
[53] This situation is distinguishable from Taylor v. Guindon, [2005] O.J. No. 3110 (S.C.J.) at para. 83, where the plaintiff’s only contribution to the home was through her domestic labour. It is also distinguishable from Peters v. Swayze, 2018 ONSC 189 (C.A.) at para. 10 where the applicant did not pay for any capital repairs or common utilities.
[54] Overall, while the parties were never able to settle on the final terms of their agreement in relation to the Home, I accept Pimenta’s evidence that there was a shared intention over the course of the relationship that she would eventually have at least a half-ownership interest in the Home. This shared intention is reflected in the correspondence between the parties and paralegals, real estate counsel, the mortgagee, and the insurer. It is poignantly reflected in Jaggernauth’s handwritten letter wherein he states his intention to be “accountable in the eyes of the law” by marrying her and making her a joint owner of the Home. The fact that Jaggernauth never kept his promise to marry does not take away from the parties’ shared intention in relation to the Home.
[55] While I am prepared to find a joint family venture in relation to the Home, it is difficult to quantify an appropriate monetary award based on the record before me: Djekic v Zai, 2015 ONCA 25 (C.A.) at para. 14. Because neither party adduced evidence about the current value of the Home, it is impossible to determine the accumulated wealth or equity (i.e., “value survived”) with any degree of accuracy. Under cross-examination, the Respondent’s valuation expert refused to provide even a ballpark current valuation for the Home.
[56] Pimenta’s counsel suggested that I use my reference power to obtain a current valuation. Jaggernauth’s counsel vehemently resisted such an approach, stating that I would effectively be allowing Pimenta to bifurcate her case after having failed to prove an essential element of her claim for damages. Pimenta’s counsel finally suggested that I award an additional $200,000 in damages to account for the increased value in the Home. There is no evidence to support such an order.
Constructive trust in property
[57] On the facts and evidentiary record before me, the most appropriate remedy is to impose a constructive trust granting Pimenta a one-half beneficial ownership in the Home. Pimenta has satisfied me that there is a substantial and direct link between her contributions and the acquisition, preservation, maintenance, and improvement of the Home: Kerr, at para. 50. She has also satisfied me that a monetary award based on “value received” would be unfair, and that an award based on “value survived” is not easily quantifiable based on the evidence before me.
[58] In general, a trust in property awarded should be proportionate to the claimant’s contributions: Kerr, at para. 53. Here, a precise accounting of each party’s contribution to the Home is next to impossible because both parties were contributing cash, chattels, about labour, without keeping any corresponding records. Moreover, there is very little evidence before me regarding Jaggernauth’s contributions beyond the mortgage payments, taxes, and insurance premiums. For example, he produced no itemized accounting for his contributions to the renovations.
[59] What I know is that Jaggernauth bought the Home in 2014 for $455,000. Between 2014 and 2018, Pimenta contributed over $200,000 for which she has received no benefit. By 2019, the Home had increased in value to $830,000. As of August 25, 2021, Jaggernauth’s outstanding mortgages and loans on the Home totalled $431,409.88.
[60] I am prepared to grant Pimenta a one-half ownership interest in the Home. In my view, this is the only remedy that fairly compensates her for her investments as part of the joint family venture in 1810 South Sheridan Way, Mississauga.
COSTS
[61] Pimenta requests $68,777 on a partial indemnity scale and $102,725 on a substantial indemnity scale. By way of comparison, Jaggernauth claims $50,707.50 on a partial indemnity basis and $84.513.14 on a substantial indemnity basis.
[62] To properly exercise my discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, I must consider and apply Rule 24 of the Family Law Rules, O. Reg. 114/99.
[63] Pimenta was largely successful on this Application and is entitled to costs. Her Bill of Costs is reasonable based on the complexity of the legal and factual issues, the complex sealing motion, and the seniority of the various counsel involved. I would deduct $10,000 on account of Pimenta’s change in counsel, which likely resulted in some duplication.
[64] Pimenta was more successful at trial than either of her offers to settle, or those made by Jaggernauth. Jaggernauth made offers to settle, which ranged from $100,000 to $180,000. Pimenta served Offers to Settle on July 15, 2020, for the all-inclusive sum of $245,000; and on September 23, 2021, for the all-inclusive sum of $300,000.
[65] Based on her valid offers to settle, Pimenta is entitled to substantial indemnity costs (80%) from July 15, 2020 onwards: Rule 24(12) of the Family Law Rules; Rule 49.10(1) of the Rules of Civil Procedure, R.R.O. O. Reg. 94.
[66] Pimenta is entitled to a total costs award of $88,935.24, inclusive of HST and disbursements, broken down as follows:
| Date Range | Amount | Scale |
|---|---|---|
| October 2018-October 2020 | $17,539.21 | Partial indemnity (65%) |
| October 2020-October 2021 | $76,843.48 | Substantial indemnity (80%) |
| ($10,000) | Duplication due to change in counsel | |
| Disbursements | $4552.55 | (100%) |
| Total | $88,935.24 |
ORDER
[67] The Certificate of Pending Litigation in relation to the property at 1810 South Sheridan Way, Mississauga, Ontario shall remain in full force and effect until further order of this Court.
[68] The Applicant, Marlene Pimenta, shall have a one-half (50%) beneficial interest in the property at 1810 South Sheridan Way, Mississauga, Ontario.
[69] The Respondent, Roger Jaggernauth, shall pay the Applicant $88,935.24 in costs.
[70] I remain seized of this matter. If the Applicant, Marlene Pimenta, decides to bring a proceeding in relation to the subject property, I shall be assigned to hear the same.
Mandhane J.
Released: October 13, 2021