Westlake v. Ellicock , 2021 ONSC 7363

COURT FILE NO.: FS-21-22877

DATE: 20211105

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SARA MERINA WESTLAKE

Applicant

– and –

EVAN ELLICOCK

Respondent

Megan Edmiston, for the Applicant

Self-represented, Respondent

HEARD: November 2, 2021

M.D. Faieta j.

reasons for decision

1The Applicant brings this motion for an order requiring the Respondent to vacate her house. The parties cohabited for about 12 months, and they separated in the summer of 2020 after the Applicant left her home fearing for her safety. The Respondent has refused to leave the Applicant’s home and has continued to live there for about 15 months after their separation.

Background

2The Applicant is 31 years old. The Respondent is 43 years old and the father of three children from prior marriages. The parties have been colleagues in the same film workers’ union for about a decade.

3The Applicant’s mother died in October 2018. Her father died in January 2019.

4Following her parents’ death, the Applicant received an inheritance from the sale of her parents’ real estate. Around this time, the Applicant’s romantic relationship with the Respondent began.

5In June 2019, the Respondent moved into the Applicant’s apartment in Toronto.

6In late 2019, the Respondent told the Applicant that he had amassed significant debts and feared that he would lose his house, located in Lindsay, Ontario, in foreclosure. The Respondent purchased this house (“the Property”) for $264,000 in August, 2016. The Applicant states that the Respondent pressured and cajoled her to purchase his house as an investment using her inheritance. In December 2019, the Respondent obtained an appraisal that showed that the value of the Property was $370,000.00

7In February 2020, the Applicant moved into the Property with the Respondent.

8The Respondent states that he and the Applicant entered into a cohabitation agreement on February 28, 2020. The Respondent further states that the alleged cohabitation agreement took the form of an email from the Respondent to the Applicant which states that she will purchase his home on March 23, 2020 at fair market value and that she will be the sole name on title with the understanding that the Respondent will hold a 25% interest in the house. The email further rstates that in the event of their separation each party “… will walk away with the percentage of interest each has in the value of the property”. The Respondent states that both parties signed this email. The Applicant admits that the parties discussed a cohabitation agreement and that she had retained Christine Ashbourne at Torkin Manes LLP for this purpose. However, the Applicant states that the parties never agreed upon the essential terms of a cohabitation agreement and that no such agreement was signed. The Applicant states that her unwitnessed signature on the email is a forgery.

9On March 23, 2020, the Applicant paid to the Respondent the sum of $390,000.00 to purchase the Property. This amount was $20,000 more than its appraised value. To pay for the purchase of the Property, the Applicant used the funds from her inheritance. The Applicant is the sole registered owner of the Property.

10The Applicant states that during their brief relationship, the Respondent was volatile, abusive and that he manipulated and controlled her. The Respondent denies these allegations.

11Sometime in the summer of 2020, the parties separated after the Applicant left the Property. She states that she left the relationship because she was fearful for her safety and that she retained counsel who notified the Respondent not to directly contact the Applicant.

12About 16 months have passed since the parties separated. Despite repeated requests for him to vacate the Property, the Respondent has refused to do so.

13By letter dated October 8, 2020, counsel for the Applicant demanded that the Respondent vacate the property by December 7, 2020.

14The Respondent retained counsel, Adam Borer, who advised by letter dated October 26, 2020 that he was reviewing the alleged email form of cohabitation agreement described above. This was the first time that the Applicant became aware of this alleged cohabitation agreement.

15The parties, through their counsel, attempted to resolve this dispute for several months without success.

16On March 26, 2021, the Respondent was notified that the Applicant would bring this Application for an order requiring the Respondent to vacate the Property if he did not vacate the Property by April 12, 2021.

17This Application was commenced on April 14, 2021.

18In his Answer, the Respondent seeks a declaration that he has a legal interest in the Property in accordance with the alleged cohabitation agreement. The Respondent states that there was an expectation that the Property would be considered a joint asset and that his interest in the Property is based on work he did at the Property from February 2020 to November 2020 such as fixing a basement leak, repairing two panes of glass windows, building a planter box, general landscaping and maintenance, etc.). Amongst other things, the Respondent seeks a preservation order under s. 12 of the Family Law Act, R.S.O. 1990, c. F.3 and an order for interim and permanent exclusive possession of the property. Such relief is not available under the FLA as the parties are not “spouses”. The Respondent also seeks relief by way of constructive/resulting trust or alternatively a monetary award as compensation for the Applicant’s unjust enrichment because of his contributions to the property.

19A Case Conference was held on July 29, 2021, before a Dispute Resolution Officer and on October 29, 2021, before Justice Monahan. The Respondent was self-represented at both case conferences.

20On July 30, 2021, the Applicant consulted the Respondent for dates for this motion. He did not respond. A further email was sent August 16, 2021. He did not respond. A further email was sent August 24, 2021. On August 25, 2021, the Respondent advised that he was unavailable on several dates proposed for October 2021 hearing of this motion and advised that he was available in early November 2021. On August 27, 2021, the Applicant was notified that this motion would be heard on November 2, 2021.

21The Applicant states that she continues to pay the property taxes and water for the Property. The Respondent does not pay rent.

22The Applicant states that she is unable to access the Property or realize on her investment. The Respondent has purchased property insurance for the Property even though he does not own the Property. The Applicant has attempted to arrange property insurance however various insurers have declined her applications because the Respondent is an unauthorized occupant of the Property. As a result, the Applicant is at risk of significant financial loss in respect of the Property given its uninsured status.

Motion for Adjournment

23At the outset of the hearing of this motion, the Respondent requested an adjournment so that he may retain counsel. His motion was dismissed.

24The Respondent did not serve a notice of motion or an affidavit in support of his request for an adjournment. The Respondent has had several months to retain counsel. He has chosen to represent himself in two case conferences. The Respondent committed to the hearing of this motion in early November 2021 a few months ago. I note that the Respondent has remained in the Applicant’s house after their separation for much longer than they cohabited together.

25I am satisfied that the Respondent’s last-minute request for an adjournment is advanced solely to delay the hearing of this motion and to permit him to continue to live largely expense free in a four-bedroom, mortgage-free house that he does not own, rent or reside in with the permission of its registered owner or this court and thus it does not serve the interests of justice to grant the adjournment.

Motion for Respondent to Vacate the Property

26The Applicant seeks the following Order:

1. An Order requiring the Respondent to give up possession and vacate the property municipally known as 13 Adelaide Street North in Lindsay, Ontario (“the Property”), on or before December 15, 2021, in favour of the Applicant.

2. An Order requiring the Respondent to deliver up to the Applicant’s counsel all keys and any garage door openers in relation to the Property concurrent with him vacating the Property.

3. An Order prohibiting the Respondent from removing any of the chattels situate in and about the Property save and except his personal clothing and belongings unless consented to by the Applicant in writing or by Order of this Court.

27The Applicant relies on Norman v. Connors, 2010 ONSC 1975, however that case is distinguishable on its facts and I prefer to deal with this motion as described below.

28There is no legal foundation to the Respondent’s possession of the Property after the date of separation. He is neither the registered owner nor a tenant. There is no court order that grants the Respondent possession of the Property nor is he in possession of the Property with the Applicant’s consent.

29I note that the Respondent’s right of possession, as an incident of ownership, was transferred to the Applicant upon his sale of the Property: See Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, s. 15(1).

30As the registered owner of the Property, the Applicant is entitled to possession of the Property and to ask for this Court’s assistance to remove those persons who are illegally in possession of the Property.

31The Respondent asks that he not be required to vacate the property until March 2022 on the basis that it will be difficult for him and his children to find alternate accommodation. The Respondent should have been looking for alternate accommodations long ago and I find that this submission is further evidence of his desire to continue his illegal possession of the Property for as long as possible.

32Motion granted. Order to go on the terms requested by the Applicant.

33The Applicant asked that costs of this motion be deferred to the Judge that will hear her motion for summary judgment in March 2022 in respect of the alleged cohabitation agreement. Upon further consideration, it is my view that I should determine the Applicant’s claim for costs of this motion. I direct that the Applicant deliver her costs submissions by November 12, 2021, the Respondent deliver his costs submissions by November 19, 2021 and the Applicant deliver any reply submissions by November 23, 2021. Costs submissions shall be no more than three pages in length exclusive of any settlement offers and outline of costs.