COURT FILE NO.: FS-15-00020137-0000
DATE: 20211119
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Phivos Kyriacou
Applicant
– and –
Maria Zikos
Respondent
Nicholas Kapelos and Rajesan Rajendran, for the Applicant
Toni Wharton and Jacob Stall, for the Respondent
HEARD: June 7, 8, 9, 10, 11, 14, 15 and 16, 2021 and July 20, 2021, supplemented by written submissions dated June 25, July 9, July 16, 2021 and October 8, 2021.
TRIAL REASONS
Kimmel j.
Table of Contents
Overview.. 4
Basic Factual Chronology. 5
The Issues to Be Decided. 8
Credibility Considerations. 9
Credibility Attacks. 9
Credibility Analysis. 10
(a) Additional Credibility Issues - Phivos. 11
(b) Additional Credibility Issues - Maria. 13
The Nature of the Relationship Between the Parties. 14
Resulting Trust 15
The Test for a Resulting Trust 15
Resulting Trust Analysis. 16
(i) Phivos’ Rationale for the Transfer of Title. 17
(ii) Proof of Funds Received from Phivos’ Father at the Time of Purchase. 18
(iii) Consideration for Transfer of Phivos’ 50% Interest in 39 Chipper Beyond the $10,000.00 19
(iv) No Reason to Look Behind the Stated Consideration for the Transfer 19
(v) Other, “Equitable,” Grounds for Denying the Resulting Trust Remedy. 20
Unjust Enrichment 21
The Claimed Maintenance, Repairs, Renovations, Upgrades and Improvements at 39 Chipper 22
Claimed Value of Work Done by Phivos in the Cleaning Business. 25
Enrichment and Corresponding Detriment 25
The Juristic Reason for the Work Done by Phivos at 39 Chipper 25
Remedies for Unjust Enrichment 28
Constructive Trust 29
Joint Family Venture. 30
Were Maria and Phivos Working Towards Common Goals?. 33
Were Maria and Phivos Economically Integrated?. 33
Was there an Intention to be Economic and Domestic Partners?. 34
Was Family Prioritized?. 34
Was there a Joint Family Venture?. 35
Quantum Meruit 35
Other Impediments to the Granting of Equitable Relief for Unjust Enrichment 36
Damages for Personal Effects and Truck. 36
Final Order and Costs. 38
Overview
[1] This eight-day trial was conducted over Zoom. Eight witnesses testified. The court received both oral and written closing submissions.
[2] Phivos Kyriacou (“Phivos”) and Maria Zikos (“Maria”) met in the early 2000s. They became friends and later became romantically involved.
[3] Maria had been living with another man in a rented home with her two children and was looking for a house to buy. Maria was collecting social assistance and working as a waitress in a bar, where she met Phivos. Phivos had been recently widowed and was living in a rented apartment with two of his three daughters. Phivos had experience in construction and was an auto mechanic, although he was not working at the time they met and was collecting social assistance. Phivos continued to collect social assistance throughout the relevant time period.
[4] Maria and Phivos purchased a house together at 39 Chipper Crescent (“39 Chipper”) under an agreement of purchase and sale signed on June 18, 2001, which closed on July 31, 2001. The parties’ relationship was tumultuous. They have very different accounts of the nature of their relationship during the twelve years after they purchased 39 Chipper until Phivos moved to Cyprus in August 2013. After Phivos moved to Cyprus, he only returned to Canada for short periods of time. He has never returned to 39 Chipper since he left. Maria continues to live in the house.
[5] Although the legal title and ownership of the house at 39 Chipper was transferred into Maria’s name alone in January 2002, Phivos claims he continued to hold a beneficial ownership interest in it. Phivos commenced this application in 2015, claiming an interest in 39 Chipper by way of resulting or constructive trust (amongst other claims). In addition to making a monetary contribution towards the purchase (which Maria says she repaid), Phivos also claims to have maintained, repaired, renovated, upgraded and improved the property at 39 Chipper commencing immediately after it was purchased, and over the years until he left in 2013.
[6] In or about the fall of 2001, Maria started her own office cleaning business, Maria’s Unique Janitorial (the “cleaning business”). Phivos worked with Maria in her cleaning business during the periods when he was living at the house until he left in August 2013, without receiving any salary or direct payments for his work. Maria handled all the finances for the cleaning business. Maria paid the mortgage, property taxes, utilities and insurance (“carrying costs”) for 39 Chipper from the time it was purchased. Maria has rented out the basement apartments to various tenants since 2001, although not continuously. All of the rent for the basement units has been paid to Maria.
[7] It is not seriously disputed by either party that any value for work done by Phivos in the cleaning business was effectively applied towards his room and board when Phivos was living at the house. The main points of disagreement are about the value of that work, the value of the work that Phivos did to maintain, repair, renovate, upgrade and improve the property at 39 Chipper and whether that latter work was also part of his contribution to his room and board after the January 2002 transfer. The determination of these factual disagreements inform the analysis of the various claims that Phivos makes.
[8] The court heard the testimony of eight witnesses over eight days of trial in June 2021 and received detailed written and oral submissions in July 2021 (supplemented in October 2021). In a clarifying submission that was provided by the applicant after the closing arguments were completed, at the request of the court, the applicant confirmed that he seeks the following relief:
The Applicant is requesting an Order that the Applicant is a 50% owner of the Property [at 39 Chipper] pursuant to a resulting or constructive trust or alternatively damages including but not limited to the value of the construction, labour and materials that the Applicant contributed to the property in the amount of $105,440.00 and the value of the Applicant's household furnishings, personal effects, truck, and tools of trade in the amount of $49,520.00.
[9] For the reasons that follow, the applicant’s claims are dismissed.
Basic Factual Chronology
[10] Many facts are in dispute. Each party challenges the credibility of the other and this will be addressed later in these reasons. There is a basic factual chronology of events that I have discerned from the testimony and exhibits. I will start by outlining the following facts, about which I can make findings without regard to credibility considerations:
a. Maria and Phivos met at the Maple Leaf Bar on the Danforth in or about the early 2000s.
b. Maria and Phivos entered into an agreement of purchase and sale, signed on June 18, 2001, to buy 39 Chipper as joint tenants, for a purchase price of $240,000.00 due on closing, including a $5,000.00 deposit paid by Maria upon signing.
c. Both Maria and Phivos were receiving social assistance from the government at the time of this purchase, but they did not disclose this to the mortgage company. They both submitted false employment letters to support their mortgage application.
d. The closing of the purchase of 39 Chipper took place on July 31, 2001. Maria and Phivos took title as joint tenants. The balance of the purchase price and other closing adjustments and disbursements were paid on closing by a combination of cash (an additional $25,000.23, over and above the $5,000.00 deposit already paid) and a mortgage advance from TD Bank.
e. The mortgage commitment that Phivos and Maria received from TD Bank was for a total of $221,400.00 (which included a $5,400.00 fee payable to the mortgage insurer). It had a maturity date of August 1, 2006. The monthly payments due under the mortgage were specified to be $1,453.59.
f. The certified cheques provided to the lawyer acting for Maria and Phivos (Alan Luftspring) on the July 31, 2001 closing date, for $6,400.00 and $18,000.00 respectively, were drawn on bank accounts associated with Phivos. Further amounts were drawn on accounts associated with Phivos to fund closing costs totalling $750.00.
g. By a Memorandum of Agreement dated and signed by both parties on January 9, 2002 (the “Memorandum”), Phivos agreed to transfer his interest in 39 Chipper to Maria (the “January 2002 transfer”) and release all of his interest and rights in that property in consideration of the payment of $10,000.00 by Maria to him.
h. In the Memorandum, both parties acknowledged that, notwithstanding the transfer, they both remained jointly and severally liable on the mortgage and acknowledged that the mortgage company could call the loan as a result of this transfer or require them to transfer it back into both of their names.
i. The mortgage company was not advised of the transfer prior to the refinancing of the mortgage by Maria in 2005 and neither of the potential outcomes (the bank calling the loan or requiring that title be transferred back into their joint names) occurred.
j. Phivos transferred title to 39 Chipper to Maria on January 11, 2002 (the “January 2002 transfer”). The stated consideration on the transfer deed that he signed was comprised of $10,000.00 in cash and the assumption of the mortgage principal and interest in the amount of $110,000.00.
k. Phivos signed a receipt to Maria and to her lawyer, Speros Kanellos, acknowledging that Phivos had received $9,000.00 by certified cheque and $1,000.00 in cash on January 11, 2002.
l. The Memorandum allowed Phivos to remain at 39 Chipper as a tenant until the end of February 2002, for a specified monthly rental amount of $500.00.
m. Phivos temporarily moved out of 39 Chipper in early 2002, around the time of the January 2002 transfer.
n. Phivos moved back in to 39 Chipper after the January 2002 transfer. Phivos’ primary residence between 2002 and 2013 was at 39 Chipper, although he did stay friends or family, from time to time when he and Maria were arguing.
o. Phivos never paid rent directly to Maria.
p. Maria paid all of the carrying costs for 39 Chipper from and after it was purchased in July 2001 and throughout.
q. Maria has received all rents paid by tenants who have occupied the basement suites at 39 Chipper from time to time since the fall of 2001 when the first tenant moved in.
r. Maria started her cleaning business in the fall of 2001. Phivos worked with Maria in the cleaning business.
s. Maria managed all of the finances associated with the cleaning business, including the collection and receipt of payments from customers and the payment of expenses.
t. No salary or other amounts were paid directly to Phivos for any work he did in the cleaning business.
u. Phivos did some maintenance, repairs, renovations, upgrades and improvements to the property at 39 Chipper during the time that he lived there. He did not receive any payment for the work he did or reimbursement for any materials he supplied for the work.
v. On April 15, 2005, Maria pre-paid the mortgage with TD Bank (that was not due until August 1, 2006) and refinanced 39 Chipper with an RBC mortgage for a higher principal amount and at a lower interest rate. Maria alone signed the new mortgage documents when the mortgage was refinanced in 2005, and Phivos ceased to have any legal responsibility in respect of any mortgage for 39 Chipper from and after that date.
w. Maria opened a beauty salon called Paradise Beauty Palace in May 2005, that was closed in December 2005.
x. Maria signed a promissory note to her daughter Vicky for $60,000.00, dated October 3, 2005. A second mortgage was registered against 39 Chipper for $60,000.00 in favour of Vicky on February 14, 2006.
y. Maria declared bankruptcy on March 22, 2007. Many of her listed creditors were associated with her failed beauty salon business.
z. Maria purchased a property in Cyprus with her mother and brother on October 26, 2007.
aa. Maria was conditionally discharged from bankruptcy on June 9, 2008.
bb. Phivos went to Cyprus in August 2013 and did not return to 39 Chipper after that.
cc. Phivos drove a 2006 truck that he left in front of the house, at 39 Chipper, when he went to Cyprus. The truck was in Maria’s name and she received $215.00 from the person who came to tow it away a few months later.
dd. It is agreed by the parties (per the supplementary submission received by the court dated October 8, 2021) that the net value of 39 Chipper on the date that the parties separated for the last time, in August 2013, was $300,000.00. This is based on an agreed fair market value at that time of $490,000.00, less the agreed outstanding mortgage balance at that time of $190,000.00.
ee. It is agreed by the parties (per the supplementary submission received by the court, dated October 8, 2021) that the net value of 39 Chipper as of the date of the trial was $860,000.00. This is based on an agreed value of $1,050,000.00 less the agreed outstanding mortgage balance of $190,000.00.
[11] There are a number of material facts in dispute between Phivos and Maria, including:
a. There is a dispute about how much cash each of them contributed towards the initial purchase of 39 Chipper: Phivos says he contributed $25,000.00, using funds he received from his father, and that Maria contributed only the $5,000.00 deposit; Maria says that Phivos contributed $10,000.00 on closing (with monies from his father) and she contributed the $5,000.00 deposit plus an additional $15,000.00 on closing.
b. The parties disagree about the nature, extent, timing and quality of the work undertaken by Phivos at 39 Chipper over the relevant time period, between August 2001 and August 2013.
c. The parties disagree about the nature and extent of Phivos’ work in the cleaning business.
d. The parties disagree about the purpose and circumstances surrounding the January 2002 transfer of Phivos’ 50% titled interest in 39 Chipper to Maria, and about the consideration and other matters recorded in the documents signed in connection with that transfer.
e. The parties disagree about the nature of their relationship and about whether they lived together as a couple between January 2002 and August 2013.
The Issues to Be Decided
[12] The issues raised by the pleadings and submissions of the parties are as follows:
a. The credibility of both parties.
b. The nature of the relationship between the parties.
c. Whether Maria holds any portion of 39 Chipper by way of resulting trust for Phivos.
d. Whether Maria holds or held any portion of 39 Chipper by way of constructive trust for Phivos.
e. Whether Maria and Phivos engaged in a joint family venture.
f. Whether Phivos should be paid on a quantum meruit or other basis for the value of any maintenance, repairs, renovations, upgrades or improvements he made to the property at 39 Chipper.
g. Whether Maria is liable to Phivos for any damages for his truck and/or personal effects that were sold or discarded by her after he left.
[13] I will address each issue in turn.
Credibility Considerations
[14] Each of the parties challenges the credibility of the other. They rely on different cases that provide essentially the same guidance regarding the court’s credibility assessments.
Credibility Attacks
[15] According to the Supreme Court of British Columbia case of Joshi v. Joshi, 2017 BCSC 207, relied upon by the respondent, accepting all or part of the testimony of one witness over another involves an assessment of credibility (truthfulness/honesty) and reliability (accuracy) of both the witness and the evidence: at para. 5. That in turn involves considering many different factors, including:
a. The internal consistency of the witness’s account of events;
b. Consistency with other evidence afforded by witnesses, documents or physical evidence;
c. Whether the evidence is reliably corroborated or contradicted by other evidence;
d. The demeanour of the witness and whether the questions are answered in a frank and forthright fashion without evasion, speculation or exaggeration;
e. Whether the witness has any interest in the trial outcome or has any motive to fabricate;
f. The witness’s ability/opportunity to observe the events in question and to reliably recall/communicate same;
g. Whether (based on properly admissible evidence) the witness has ‘poor character for truthfulness’; and
h. The inherent plausibility of the evidence and its consistency with the probabilities affecting the case as a whole.
[16] Maria points out examples of internal inconsistencies in Phivos’ evidence and inconsistencies between his evidence and the evidence of other witnesses (including the testimony of his own brother, Mario Kyriacou, and his friend, Dinos Michael, who he called to testify, in addition to the testimony of his former friend, Nikos Xenofontos, who Maria called as one of her witnesses). There are also many examples of inconsistencies between Phivos’ evidence and various documents (including legal and mortgage documents relating to 39 Chipper, his income tax filings and court filings made in the context of family law proceedings that he was involved in regarding his daughters).
[17] Maria contends that Phivos cannot meet his onus of proof on the various claims by relying upon his own self-serving, unreliable and untruthful testimony, nor is he assisted by the evidence of his friend Dinos or his brother Mario, who are biased in his favour. She argues that her credibility is less of an issue because she does not have the onus of proof, but also because the inconsistencies in her testimony should be attributed to a lack of memory of events that occurred long ago rather than intentional lies. She argues that her testimony should thus be preferred to that of Phivos on points where they differ.
[18] The case of Novak Estate, Re, 2008 NSSC 283, 269 N.S.R. (2d) 84, relied upon by Phivos, considers similar factors and adopts a similar approach to the court in Joshi. Phivos emphasizes from these cases that: "There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence”: at para. 37.
[19] Phivos details examples of internal inconsistencies in Maria’s evidence, comparing and contrasting her trial evidence to her pre-trial questioning, bankruptcy proceeding filings and statements made in her income tax filings, on various topics.[^1] It is argued that Maria’s evidence is implausible on many topics, but, in particular, in connection with the tens of thousands of dollars in undeclared cash that she claims to have saved (while collecting social assistance, looking after her children and working part-time in a bar and as a cleaner) and hidden in her house.
[20] Phivos also places significant emphasis on the implausibility of Maria’s attempt to characterize their relationship as essentially platonic from and after January 2002, and her suggestion that Phivos was no more than a tenant at 39 Chipper from and after that date, as discussed in more detail later.
Credibility Analysis
[21] Both parties have serious credibility issues in this case, as they have pointed out in each other’s testimony, with examples noted above of inconsistencies in their own testimony at trial and testimony they gave prior to trial in this and other proceedings, and between their testimony and that of other witnesses.
[22] Further, they both admitted to having misrepresented their employment status and financial resources on their application for their mortgage for 39 Chipper. Phivos would not admit that this was a lie and insisted it was just a means of getting a mortgage. That may be, but from where I sit, it was a misleading or fraudulent means of getting a mortgage which both Phivos and Maria appear to have had no qualms about at the time, and expressed no real regrets about at the trial.
[23] There are unexplained gaps and inconsistencies in both of their income tax filings (which they both claim to be ignorant of and blame on the bookkeeper who they used). It is clear from the record that both parties have significant credibility issues and a demonstrated propensity for lying or distorting the truth or having convenient memory lapses when it suits their purposes.
[24] Very little of what the parties testified about was “black or white”. Much was “grey” (ambiguous or contradicted, sometimes with an attempted explanation for the discrepancy, but often not). Below are some further examples underscoring the difficulty that I have with accepting, at face value, the evidence of either of the parties. I will not go so far as to say that I do not believe anything that either Phivos or Maria said in their testimony. However, in light of all of the identified difficulties with their testimony, I am not prepared to accept what either of them have said without some independent corroboration where it is contentious and/or has an air of implausibility.
(a) Additional Credibility Issues - Phivos
[25] Phivos consistently and repeatedly misrepresented his employment status and ability to work in order to continue to receive social assistance. He further admits to having misrepresented his financial situation in previous family law court proceedings involving his children. If Phivos is to be believed, he was intentionally misleading the court in the family law proceeding regarding his interest in 39 Chipper that he now claims to be entitled to after the transfer of title into Maria’s name alone.
[26] There are also other examples of direct contradictions between his sworn testimony in the family law proceedings and his position in this proceeding. The most glaring examples of contradictions and inconsistencies come from Phivos’ affidavit, sworn February 17, 2008, in the family law proceeding that he was involved in at the time relating to his children. The following is an excerpt from paragraph 16 of that affidavit:
I did buy a home with Maria Zikos at 39 Chipper Crescent in July, 2001. My father gave me $15,000.00 as my share of the downpayment, which I used for this purpose. Maria Zikos was my girlfriend at the time but we broke up about 3 or 4 months later and she returned the $15,000.00 to me and I left the house to live in a motel for 3 weeks and then with my father for about 4 months. After an unsuccessful attempt at reconciliation of our relationship, I ended up renting a room in Maria Zikos' house for $400.00 per month which is where I still live. Maria Zikos and I do not have anything other than a platonic friendship and I am her tenant.
[27] Although the amount is indicated to have been $15,000.00 rather than $10,000.00, this prior sworn testimony affirms Maria’s narrative: that she repaid the monies Phivos had received from his father and contributed to the purchase when they broke up in January 2002, that Phivos transferred his interest in the house to her and that when he moved back in he was a tenant (although his rent was paid through the monies he earned through his work). This prior sworn statement is inconsistent with Phivos’ trial testimony that he invested $25,000.00 at the time of purchase (only part of which was repaid), retained an interest in the house after the January 2002 transfer and that he was not subsequently living at 39 Chipper as a tenant.
[28] Phivos clarified in his trial testimony that he was using the term “downpayment” incorrectly in this affidavit and was intending to refer to the cash that he contributed to close the purchase of 39 Chipper. Phivos tried in his trial testimony to reconcile the affidavit with his current position by saying that his father gave him two separate gifts in connection with the purchase of 39 Chipper, one for $10,000.00 that was repaid, and one for $15,000.00 that was not, however that too is inconsistent with his prior affidavit in which he testified that $15,000.00 was returned to him. Phivos says that his prior affidavit was untruthful.
[29] Phivos’ former friend Nickos Xenofontos testified that at the time Phivos told him that his father had given him $10,000.00 towards the purchase of 39 Chipper. While this is hearsay, it is a contemporaneous admission by Phivos against his interests on a critical factual discrepancy that could be admitted under a hearsay exception, with some caution given that Nikos is no longer friends with Phivos as a result of a dispute over monies that Nikos claims Phivos stole from him.
[30] The sworn statement made by Phivos in the same February 17, 2008 affidavit, that he rented a room from Maria at 39 Chipper for $400 per month and that their relationship was platonic, was affirming of an earlier November 7, 2007 financial statement sworn by Phivos in which he also indicated he was paying $400 per month in rent at 39 Chipper. Although the amounts are variable, the income tax returns filed by Phivos in 2002 and onwards also declare that he was paying rent. Phivos now claims that was never the case and that they lived at 39 Chipper as a couple throughout this time frame. When confronted at trial with these inconsistencies, Phivos blamed the professionals who were assisting him: first, the lawyer who drafted the affidavits and financial statements and second, the bookkeeper who prepared his income tax returns and accounting records.
[31] Phivos also attested in the family law proceeding that he spent the money he received from Maria for the house at the casino, which he denied at trial, testifying that he was not a gambler. According to the trial testimony of his former friend, Nikos Xenofontos, Phivos admitted to him that he went to the casino after getting the house money from Maria and that Phivos was constantly in need of cash and begging and borrowing from friends.
[32] Nikos Xenofontos was called by Maria and testified to having lent $1,000.00 to Phivos that was never repaid. He also testified that Phivos received $4,000.00 that he was supposed to take to Nikos’ wife in Cyprus, but never delivered the money and now denies having received it. They are no longer friends. The evidence of this third-party witness further calls into question Phivos’ credibility and ability to accurately recount events during the relevant time frame, particularly those involving monetary transactions.
[33] Phivos does not remember and can explain, little if anything, about things he did and said in the family law proceedings involving his children (which he blames on his confused state of mind at the time and incompetent lawyers), yet claims to recall the precise work and precise number of hours that he spent on renovations and maintenance at 39 Chipper in that same time frame. There is an implausibility to his selective ability to recall events in this time frame.
(b) Additional Credibility Issues - Maria
[34] Maria’s testimony about her financial resources and monetary transactions during the relevant time frame also has many gaps. She claims to have significant cash that was kept in the house in a secret hiding spot, in amounts that far exceed what she declared on her income tax returns and she has not provided a plausible explanation of where these funds came from, suggesting that they were saved from tips while she worked part-time as a waitress while collecting social assistance and supporting her two children. Maria claims to have dolled out cash from her secret stash to contractors for work that Phivos says he did and for materials he says he paid for, but she does not appear to have disclosed any of her stashed cash to her creditors in her statement of financial affairs when she declared bankruptcy in March 2007.
[35] She was not able to readily explain or reconcile the amounts of rent that she declared as having received on her income tax returns with what she says Phivos was “paying” in rent (notionally, through his work in her cleaning business and/or his work around the house) and with the rental amounts that she was receiving from the various basement tenants.
[36] Maria and her daughter, Vicky, were not able to provide a coherent accounting and reconciliation of the receipt and use of the $60,000.00 that Vicky supposedly lent her (the source of which funds appear to have been at least, in part, from Maria’s stash of cash), and that was later documented to be partially secured by Maria’s interest in 39 Chipper, thereby protecting that asset from Maria’s unsecured creditors in her subsequent bankruptcy. While I will not go so far as to find that these transactions were unlawful or that Maria’s daughter was knowingly involved in a deception, it does appear that she was complacent in transactions that were designed by Maria to protect her assets – namely her interest in 39 Chipper and her “cash” – from existing and/or potential business creditors. Irrespective of whether these transactions were legitimate (about which I need not make, and am not making, a finding), neither Maria or Vicky provided coherent or forthright explanations about these transactions in their trial testimony. Maria also did not disclose her interest in the property in Cyprus to her creditors in her bankruptcy.
[37] There are various inconsistencies in Maria’s testimony about her relationship with Phivos. She initially testified that they were just friends when they bought 39 Chipper, but later acknowledged that she had fallen in love with him and that their relationship ended after she discovered he had drawn down on their joint line of credit in late 2001 or early 2002. Further, it is difficult to reconcile Maria’s testimony that her relationship with Phivos was essentially platonic after January 2002 with the acknowledged facts that Phivos had no other fixed address aside from 39 Chipper between August 2001 and August 2013, that Phivos and Maria slept in the same bedroom when he was at 39 Chipper throughout that time frame and that they engaged in intimate relations during that period.
[38] Maria’s own daughter testified that she questioned over the years why her mother was still with Phivos, suggesting that she thought they were a couple. Phivos’ friend, Dinos, and his brother, Mario, similarly testified that they perceived Maria and Phivos to have been living together as a couple during this period.
[39] While Phivos had previously testified (in the family law proceedings) that he paid rent and that their relationship was platonic, he claims he said that to address issues that he was facing in the family law proceedings, but that it was not true. It has been suggested that Maria is now taking advantage of that earlier lie to change the narrative to suit her purposes in this case. Maria is clearly downplaying their relationship now.
The Nature of the Relationship Between the Parties
[40] Phivos argues that, as it was in the case of McLean v. Danicic, [2009] O.J. No. 2356, whether the parties were cohabitating as spouses is important for two reasons: "First, it bears on the credibility of the parties in light of the evidence on this" and "[s]econd, the nature of their relationship and their reasonable expectations during the relationship has implications for the range of remedies available": at para. 9. Like in McLean, Maria has maintained throughout this trial that Phivos was nothing more than a tenant at 39 Chipper after he transferred his interest in the house to her in January 2002, yet, he maintains, the evidence is overwhelming that they were cohabitating in a spousal relationship.
[41] Under s. 1(1) of the Family Law Act, R.S.O. 1990, c. F.3, "‘cohabit’ means to live together in a conjugal relationship, whether within or outside of marriage.” Under s. 29 of the Family Law Act, with respect to Part III - Support Obligations, “‘spouse’ means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabitated, (a) continuously for a period of not less than three years.” The determination of whether two persons are cohabiting, or living in a “conjugal relationship”, is made on a case-by-case basis with regard to a non-exclusive list of factors set out in Molodowich v. Penttinen, 1980 CanLII 1537 (ON SC), [1980] O.J. No. 1904, at para. 16, that have been relied upon in numerous family law cases: see e.g. Macmillan-Dekker v. Dekker, 2000 CanLII 22428 (ON SC), [2000] O.J. No. 2957, at para. 59, and more recently in Boudreau v. Jakobsen, 2021 ONCA 511, at para. 8.
[42] Phivos argues that the Molodowich factors strongly favour a finding that he and Maria were living together (cohabiting) in a conjugal relationship: (i) the parties lived together at 39 Chipper for the better part of twelve years, between July 2001 and August 2013, with the exception of a few months over that lengthy period; (ii) both contributed, Maria financially and Phivos through his physical labour, to the maintenance and upkeep of the property; (iii) they slept together in the master bedroom and engaged in sexual relations; (iv) they exclusively occupied the house with their families (aside from paying tenants in the basement suites); (v) they had arguments from time to time (including about Phivos’ infidelity and about money, matters that couples often argue about); (vi) they socialized with others as a couple; (vii) they took vacations together in Mexico, Dominican Republic and Cyprus (in 2008 and 2009); and (viii) they worked together in Maria’s cleaning business, the net income from which, along with rental income from basement tenants, was used to pay for the carrying costs of the property at 39 Chipper and for their groceries and other living expenses.
[43] Maria claims that, after their disagreement and break-up in January 2002, Phivos was a tenant at 39 Chipper and that he worked around the house, and in her cleaning business, for his room and board.
[44] The evidence supports a finding, and I do so find, that Maria and Phivos were in a romantic relationship when they purchased and moved into 39 Chipper. They had a disagreement and broke up in or about January 2002. Various steps were taken at that time regarding the title to 39 Chipper, the legal and/or equitable effects and implications of which are discussed in the next sections of this judgment. Thereafter, their relationship was rocky, and I would describe it as “on again/off again” until Phivos finally left and moved back to Cyprus permanently in August 2013. There were times when Phivos and Maria were not getting along and Phivos stayed with his friends Dinos or Nickos, with family or in his car. There were other times when they were getting along and they lived together at 39 Chipper as a couple, even if not always a “happy” couple.
[45] These are factual matters. Both parties agree that I do not need to put a legal label or characterization on their relationship. It is not necessary for me to make a finding that they were “spouses” or cohabiting in a conjugal relationship under Ontario law since there is no support claim being made.
Resulting Trust
The Test for a Resulting Trust
[46] Phivos claims an interest by way of resulting trust in the property at 39 Chipper. He relies upon the following summary of the law of resulting trust in support of his claim, taken from Jackson v. Mayerle, 2016 ONSC 72, at para. 569:
a. The presumption of resulting trust is the general rule for gratuitous transfers.
b. The leading resulting trust cases are ... Kerr v. Baranow, 2011 SCC 10 (in the family context).
c. A resulting trust arises when title to property is in one party's name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner. Pecore (supra).
d. The mere placing of property in another person's name without consideration creates a presumption of a resulting trust ...
e. Resulting trusts generally arise where property is purchased by one person (the beneficial owner) and placed in the name of another (the legal owner) without consideration passing between the two of them. The law considers the legal owner as holding the property in trust for the beneficial owner who paid for it.
f. Equity presumes that the transferor intended the recipient to hold title on a resulting trust (in trust for the transferor) rather than presuming that the transferor intended to make a gift to the title holder ...
g. Equity presumes bargains, not gifts. Pecore (supra).
h. The presumption of a resulting trust is based on presumptions about the intention of the transferor.
i. But the presumption of resulting trust is rebuttable by the transferee (the legal title holder) if it can be shown that the transferor intended to make a gift. The actual intention of the transferor is the governing consideration. It is the intention of the transferor alone that counts ...
j. Where a transfer is challenged, the presumption allocates the legal burden of proof. Where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended.
k. In Kerr the Supreme Court confirmed that a traditional resulting trust may arise in the domestic context where there has been a financial contribution to the initial acquisition of a property and a subsequent gratuitous transfer of title to the property.
l. The intention of the transferor to make a voluntary and gratuitous transfer is an essential ingredient of a legally valid gift ...
[47] In summary, for the court to find a resulting trust in favour of Phivos, he needs to prove, on a balance of probabilities, that:
a. he transferred his 50% titled interest in 39 Chipper to Maria in January 2002;
b. for no consideration; and
c. that it was not intended to be a gift.
Resulting Trust Analysis
[48] It is uncontroverted that legal title to 39 Chipper was transferred into Maria’s name alone in January 2002. Neither party suggests that Phivos intended to “gift” Maria his interest. So, the only issue to be decided is whether the January 2002 transfer by Phivos of 50% of the titled interest was made for no consideration.
[49] According to the Memorandum signed by the parties just prior to the transfer of title, the consideration was the payment of $10,000.00 by Maria to Phivos, which he acknowledges receiving. The transfer deed also refers to the assumption by Maria of responsibility for the $110,000.00 in mortgage financing. There was no formal assumption by Maria of Phivos’ joint liability for the TD mortgage. The Memorandum documents that the parties were advised that the bank might not permit the formal assumption during the term of the mortgage. However, as a practical matter, Maria made all of the mortgage payments until she was able to assume full legal responsibility for the mortgage when it was refinanced in 2005 (before the expiry of its term).
[50] The starting point is these contemporaneous documents, signed by both parties that describe the consideration Phivos received, and the subsequent refinancing of the mortgage that Phivos did not participate in. As the court held in Erb v. The Queen, 1999 CanLII 203 (TCC), [2000] 1 CTC 2597, at para. 26:
[W]here a person transfers property to someone else by a deed or conveyance that on its face is absolute and does so to achieve a purpose that is premised upon a transfer of beneficial ownership, it would require very cogent evidence to establish that the transferor had no intention of doing what the documentation unequivocally shows that it did do and that it intended to withhold from the grantee beneficial title to the property.
[51] Phivos nonetheless maintains that he received no consideration for the transfer of his interest to Maria. He contends that the payment of $10,000.00 that he received was intended simply to equalize their initial cash contributions towards the equity at the time of purchase (based on his assertion that he contributed $25,000.00 and she only contributed $5,000.00). He also relies on the fact that he remained legally liable on the mortgage at the time of the January 2002 transfer (in other words, responsibility for the mortgage was not legally assumed by Maria in 2002, even if it was assumed for all practical purposes).
[52] Phivos’ position depends upon the plausibility of his contentions that: (i) the transfer of title was intended and understood by both parties to protect 39 Chipper from his creditors (business and/or his children in the family law proceeding); (ii) he had contributed more than $10,000.00 at the time of the purchase (using $25,000.00 in funds gifted to him by his father); (iii) he did not receive more than $10,000.00 in consideration at the time he transferred his 50% title to Maria; and (iv) there are cogent reasons to look behind the contemporaneous documents signed at the time he transferred his 50% title to Maria. There are also further considerations that need to be accounted for, given the equitable nature of the relief he seeks, such as the doctrines of “clean hands” or “estoppel by convention” or “proprietary estoppel.”
(i) Phivos’ Rationale for the Transfer of Title
[53] The alternative explanation Phivos propounds for why title was transferred in January 2002, to protect 39 Chipper from his creditors, is not reliably corroborated and/or is not plausible. For example:
a. The family law proceeding was not commenced until quite some time after the transfer, so his explanation that this transfer was precipitated by some imminent threat that his children could look to his share of 39 Chipper to satisfy his obligations to them does not line up from a timing perspective (and also does not cast him in a particularly good light); and
b. He has not identified a single business creditor who was seeking payment of debts that would have precipitated the need to transfer title in January 2002, so shortly after they had purchased 39 Chipper.
[54] This lack of corroboration for Phivos’ alternative explanation is reinforced by his own subsequent sworn testimony and financial disclosure in the family law proceedings involving his children, in which he consistently did not disclose that he held any beneficial interest in 39 Chipper for many years after the January 2002 transfer of title. Phivos holding out to the court repeatedly that he had no interest in 39 Chipper is evidence that there was no intention by the parties to leave Phivos holding any interest in 39 Chipper, and a lack of such an intention should be fatal to Phivos’ resulting trust argument: see Royal Bank of Canada v. Nonis et al., 2016 ONSC 3643, at paras. 41-42.
[55] Conversely, Maria’s explanation of the rationale and timing of the transfer of title, because the parties were having relationship issues after she discovered that Phivos had been drawing down on the line of credit that they were both responsible for, is more plausible. Phivos does not deny drawing on the line of credit. He simply says that the funds were used to purchase materials for the work he was doing at 39 Chipper and he thought Maria knew that. Maria says she did not know this, and that this led to an argument and their break-up. Her daughter Vicky testified that Maria and Phivos were arguing a lot in this time frame. Phivos does not dispute that they broke-up and that he moved out of 39 Chipper for a little while in this time frame.
[56] The evidence simply does not support Phivos’ contention that this January 2002 transfer of title was done to protect 39 Chipper from his children and other creditors.
(ii) Proof of Funds Received from Phivos’ Father at the Time of Purchase
[57] There is no dispute about the fact that Phivos’ father gave him $10,000.00 to assist in the purchase of 39 Chipper. The dispute is about whether his father gave him an additional $15,000.00 towards that purchase. This directly correlates with how much Phivos contributed towards the purchase of 39 Chipper since he acknowledges that the monies gifted from his father was his only source of funds at the time.
[58] Phivos contends that his father gave him $25,000.00 that was applied towards the initial purchase. He says that the payment to him of $10,000.00 at the time of the January 2002 transfer was not in consideration of the transfer of his interest, but rather to equalize the parties’ initial contributions, his having allegedly been $25,000.00 and Maria’s having allegedly been only $5,000.00. He says this was intended to reflect their equal interests in the property, notwithstanding the transfer of title.
[59] While the closing funds at the time of their purchase of 39 Chipper (amounting to just under $25,000.00) were drawn on accounts associated with Phivos, he acknowledges he had no source of income or savings at that time. Phivos says the funds were a gift from his father and Maria says she provided him with the majority of these funds from her stash of cash. Phivos called his brother Mario to provide hearsay evidence that their father had told Mario that he had gifted $25,000.00 to Phivos to purchase the house at 39 Chipper, which itself cannot be given much, if any, weight, in light of his relationship with Phivos and the lack of any independent corroboration of the transfer of funds from father to son. Phivos has tendered no contemporaneous proof (records of transfers) of his father having given him $25,000.00, or $10,000.00, or $15,000.00 at or before the time that 39 Chipper closed. Furthermore, Phivos testified in the family law proceedings that his father gave him $15,000.00, not $25,000.00. This prior inconsistency casts further doubt upon his evidence now that the gift from his father was for $25,000.00.
[60] The fact that these funds came from bank accounts associated with Phivos does not prove that his father, as opposed to Maria, was the source of these funds. It is no more plausible that Phivos’ father gave him the full $25,000.00 (as he now claims) than it is plausible that his father gave him $10,000.00 and that the remaining $15,000.00 on closing (plus the original $5,000.00 down payment) came from Maria’s cash savings.
[61] Phivos has not met his evidentiary onus to prove that he received from his father, or contributed towards the purchase of 39 Chipper, more than $10,000.00.
(iii) Consideration for Transfer of Phivos’ 50% Interest in 39 Chipper Beyond the $10,000.00
[62] Even if the court were to accept that Phivos contributed proportionately more than $10,000.00 towards the initial purchase (based on the cheques having been drawn from accounts associated with him and Maria’s inability to “prove” that she had $30-40,000.00 in cash sitting around the house), the return of that $10,000.00 together with Maria’s assumption of the mortgage at a later point in time are sufficient consideration to prevent any resulting trust from arising: see Jafar-Gholizadeh v. Larijani, 2018 BCSC 279,at paras. 126-127, 129-130, 132-133; Elliott v. Rohatynchuk, 1999 CanLII 5777 (B.C.S.C.), at paras. 27-29; and Nonis et al., at paras. 39-40.
[63] Phivos has not established that he should have received more than $10,000.00 in consideration for the transfer of his interest six months after the property was purchased. However, he actually did receive consideration beyond his monetary contribution towards the purchase because he was relieved from the legal responsibility for the TD mortgage that he had signed when Maria assumed full responsibility for the mortgage refinancing in 2005.
[64] It is not disputed that Maria paid Phivos $10,000.00 and eventually assumed full legal responsibility for the mortgage when it was refinanced in 2005. Maria’s eventual assumption of full legal responsibility for the mortgage independently constitutes valuable additional consideration for the transfer of Phivos’ interest in 39 Chipper to her.
[65] I find that there was consideration given by Maria to Phivos for the January 2002 transfer of his 50% titled interest in 39 Chipper to her. In these circumstances, no presumption of resulting trust arises (and no onus shifts to Maria to demonstrate that Phivos gifted her anything): see Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 19.
(iv) No Reason to Look Behind the Stated Consideration for the Transfer
[66] Ultimately, I have not been persuaded of any basis on which I should look behind the transfer documents signed by both parties in 2002, which record that Phivos transferred his 50% interest in 39 Chipper for valuable consideration in January 2002.
[67] There is no cogent evidence to establish that Phivos did not intend to transfer the beneficial ownership and title to 39 Chipper to Maria for valuable consideration, as the documents signed at the time unequivocally indicate: see Erb, at para. 26. Neither of the lawyers who were involved at the time in the drafting of these documents (Mr. Luftspring, who had previously acted for both parties on their purchase of 39 Chipper and who prepared the Memorandum but who was not called by either party to give evidence at trial; and Mr. Speros, who prepared the 2002 transfer deed and receipt and oversaw the execution of all of the documents and who was called by Maria to give evidence at trial) have said that they were advised at the time of any trust or ulterior purpose or arrangements of the nature that Phivos now asserts: see Elliott, at para. 23.
[68] Phivos now argues that he did not read or understand these documents and did not seek or obtain any legal advice before signing them, despite Mr. Luftspring having recommended to both parties that they do so. Phivos claims that, despite this advice, he relied upon Maria and her lawyer to prepare the documents that reflected what he now says his understanding was at the time, that Maria was holding his 50% interest for him. I find this testimony wholly implausible and unsatisfactory. The parties were breaking-up at the time and it is not realistic for Phivos to suggest that Maria and her lawyer were looking after his interests. Further, if he did not read the documents and chose not to seek legal advice, as he now says, he cannot rely upon the absence of such advice and a lack of understanding as a basis for the court to look behind the plain words of those documents which he does not dispute he signed at the time.
[69] The determination on the assertion of resulting trust in favour of Phivos can be made on the basis of the objective and contemporaneous evidence, which does not give rise to a presumption of a resulting trust. Valuable consideration was provided at the time of the transfer and the contemporaneous documents are consistent with a finding that Phivos transferred both legal and beneficial title of his interest in the property at 39 Chipper to Maria in January 2002. I find that he did so.
(v) Other, “Equitable,” Grounds for Denying the Resulting Trust Remedy
[70] Phivos admits to committing a fraud so that he could continue to receive social assistance, by claiming he was not working for medical reasons (when he was working for Maria) and by not disclosing that he held any ownership interest in 39 Chipper. This would be another reason for the court to deny his request now for an equitable remedy predicated on him having had a beneficial interest in 39 Chipper throughout the time that he was collecting social assistance: see Campbell v. Szoke, 2003 CanLII 2291 (ON SC), [2003] O.J. No. 3471, at para. 91; Tays v. Bastiaens, 2011 NBQB 217, 338 D.L.R. (4th) 168, at paras. 27-28, 32.
[71] Phivos unabashedly now is asking the court to enforce an equitable trust that he admits was created for an unlawful purpose (to avoid his creditors). While the Court of Appeal has said that a general intention to defeat creditors will not always defeat a trust claim where no creditors were actually prejudiced (see Holtby v. Draper, 2017 ONCA 932, 138 O.R. (3d) 481, at para. 72, aff’g Holtby v. Draper, 2015 ONSC 7160, [2015] O.J. No. 6064, at para. 55), Maria quite properly points out that this case is distinguishable because Phivos’ intention was to defeat specific creditors (his children). If Phivos’ objective was, as he now says, to avoid or defer paying any support to his children in the family law proceeding, he appears to have achieved that objective. The fact that he now regrets this and wishes that he had treated his children differently and has subsequently tried to make that up to them does not detract from the objective that he sought to achieve at the time of the 2002 transfer of title to Maria.
[72] Thus, even if there had been no consideration such that a presumption of resulting trust arose, it would be defeated because, on his own theory of the transfer, Phivos has not come to court with clean hands and he is not deserving of an equitable trust remedy from the court: see Holland v. Holland, 2007 CanLII 47154 (ON SC), [2007] O.J. No. 4329, at paras. 13, 15. While Phivos tries to argue that Maria was complicit in his fraud and he should therefore not be barred from seeking the remedies he does as against her (according to Tays), to prove her complacency would require him to establish that she intended to hold the 50% interest in trust for him, which is not consistent with her subsequent conduct when she refinanced the property and did not require him to remain responsible to the bank.
[73] The further arguments raised by Maria of estoppel by convention and/or proprietary estoppel might have raised further bars to Phivos’ resulting trust claim. For these arguments, Maria relies upon the fact that she acted in reliance upon the signed Memorandum, by relieving Phivos of any legal responsibility under the mortgage when it was refinanced in 2005, and assuming that responsibly alone, and by repaying all amounts due and owing under the mortgage and joint line of credit, both before and after renewal.
[74] Maria argues that it would be unfair for the court to allow Phivos to resile from the stated agreement now, after Maria has paid the mortgage and all other expenses at 39 Chipper in reliance on the parties’ signed statement that Phivos released all of his interest and rights to 39 Chipper: see Fram Elgin Mills 90 Inc v. Romandale Farms Limited, 2021 ONCA 201,), at para. 144; Spadacini-Kelava v. Kelava, 2020 ONSC 7907, 52 R.F.L. (8th) 143, at para. 135.
[75] In the circumstances of this case, where the evidence is not sufficient to give rise to the presumption of a resulting trust in the first place, there is no need to resort to the “clean hands” or “estoppel by convention” or “proprietary estoppel” doctrines, which might have been other available grounds for denying Phivos’ resulting trust claim if it had been established in the first place.
Unjust Enrichment
[76] The Supreme Court of Canada in Becker v. Pettkus, 1980 CanLII 22 (SCC), 117 D.L.R. (3d) 257 (S.C.C.), at p. 273, adopted Lord Mansfield’s suggestion made in Moses v. Macferlan (1760), 2 Burr. 1005, 97 E.R. 676 (Eng. K.B.), at p. 1012, that: "the gist of this kind of action is that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money".
[77] Phivos contends that Maria has been unjustly enriched by the labour, skills and materials that he contributed to the maintenance, repairs, renovations, upgrades and improvements to the property at 39 Chipper.
[78] In addition to the enhancements (through the maintenance, repairs, renovations, upgrades and improvements) to the property itself, Phivos maintains that, without his labour and skills, the borrowed funds from his father that he claims to have used, along with monies drawn down on the joint line of credit to pay others who assisted him (or he assisted and paid for materials) in his work at the property at 39 Chipper, Maria would not have been able to afford to renovate the basement and create the rental units that, in turn, generated the income that Maria used to pay the carrying costs for the property (including the mortgage payments, both before and after Maria assumed sole legal responsibility for the mortgage in 2005). Phivos also claims that he further contributed to the income that was used by Maria to pay for the carrying costs at 39 Chipper from the unpaid work he did with Maria in the cleaning business. All of these contributions are said to have been made by Phivos over the twelve years that they lived at 39 Chipper.
[79] According to Phivos, without his direct and indirect contributions to the cleaning income and the rental income used by Maria to support the carrying costs of the property at 39 Chipper, Maria would have had to sell the property. Instead, she was able to keep it and it is now worth much more money due to the increase in the real estate market and as a result of the improvements and maintenance work that he did. Phivos seeks to connect his contributions to the property in this way, as well as through his work on the maintenance, repairs, renovations, upgrades and improvements to the property at 39 Chipper, to establish the constructive trust in the property at 39 Chipper, which he seeks as his primary remedy, with damages based on quantum meruit claimed in the alternative.
[80] The Supreme Court in Peter v. Beblow, 1993 CanLII 126 (SCC), 101 D.L.R. (4th) 621 (S.C.C.), long ago determined, and it remains so today, that the following three elements must be proven on a balance of probabilities to succeed in a claim for unjust enrichment: (a) an enrichment; (b) a corresponding (causally connected) deprivation; and (c) an absence of juristic reason for the enrichment: at p. 630).
The Claimed Maintenance, Repairs, Renovations, Upgrades and Improvements at 39 Chipper
[81] In this case, there is a factual dispute about how much work Phivos did at 39 Chipper, how that work should be valued and who paid for the materials. But it is agreed that Phivos did some work, for which he was not paid directly.
[82] Phivos has provided an updated chart[^2] purporting to summarize his testimony about the specific work that he claims to have contributed to the property at 39 Chipper. Phivos claims he renovated the basement and created the rental units, built a pergola, built a shed, turned the garage into an addition to the house and finished it, opened up the kitchen and finished the kitchen renovation, rebuilt two bathrooms, refinished the hardwood floors, installed baseboards and moulding, created bow windows at the front of the house and in the garage addition, widened the veranda, finished the driveway, arranged for completed stone work in the front of the house, built a fence at the back and side of the house and did some work on the electrical and gas hook-ups.
[83] For each item of work, he has estimated the time expended, the value of the labour (based on a daily rate of between $400-500 per day) and the value of materials he supplied. There are no invoices for his labour or materials. This is all based on his testimony and the testimony of his friend Dinos and his brother Mario, relating to those aspects of the work that they assisted him with (mostly in the basement). The total amount claimed for this work is $105,440.00. According to the chart provided as part of Phivos’ supplementary closing submissions, this claimed amount appears to be based on an estimated 101-110 days (22 weeks, or 5.5 months) of work[^3] and an estimated $45,440.000 in material costs.
[84] Phivos’ evidence about the labour and materials and costs that he claims to have contributed to the property at 39 Chipper, both before and after the January 2002 transfer to Maria, was:
a. Imprecise: he testified only in very general terms about how long he now estimates each renovation or improvement took him, and his testimony was sufficiently confusing that a clarifying submission had to be provided after closing arguments to reconcile what had been said by him (and others) during the trial testimony and to “clarify” what work he claimed to have done and what values he ascribed to that work;
b. Inconsistent: in terms of how Phivos, who himself had no money at the time, could have paid for materials and other labourers, which he variously says were covered through additional monies he now claims to have received from his father and/or from the joint line of credit; and
c. Not entirely corroborated: The evidence of his friend Dinos and brother Mario, who helped him with the basement renovations, was not entirely aligned with what Phivos described regarding the timing, nature and extent of the work that was done in the basement and whether it was done while Phivos’ daughters were living there (as Phivos contends) or at some later time. They testified to different amounts of time and a different order and timing of work that was done in the basement. Neither of them testified to having been involved in the full extent of the work that Phivos is claiming for.
[85] Maria disputes, at some level, almost everything that Phivos says he did at the property. In some instances, she denies he did the work at all (for example, she insists that she hired someone to refinish the floors and ready the front of the house for the bow windows); in some other instances, she complains about the extent of his work (only some baseboards were re-done, he did not renovate the bathrooms, he just painted them, a kitchen company was hired to install the new kitchen, not Phivos, and a lot of the work that Phivos says he did in the basement was already done or roughed in when they purchased the property); and in yet other instances she complains about the quality of the work done (for example, the moulding in the master bedroom cracked, the moulding around the fireplace in the garage had to be replaced, and the pergola and the shed had to be re-finished). Maria also insists that she, not Phivos, paid the labourers who came to the house and paid for the materials that were used, purchased on her Home Depot card. This is another area where I do not find the evidence of either of the parties to be particularly reliable and it has not been corroborated.
[86] Maria only called one person who was involved in fixing or completing Phivos’ work, her current tenant Daniel Stoian. He was not nearly as critical of the work that had been done before he became involved as Maria was. However, it is Phivos, not Maria, who has the onus of proving the nature, extent and value of his work.
[87] Beyond the difficulty that Phivos has in meeting his burden of proving the nature and extent of his work, Maria also contends that it is fatal to his claims that he has not provided any expert evidence about the value of that work (labour and material costs), choosing to rely instead on his own estimate of hours spent and the hourly rates that he says were the market rates for construction labour at the time, which he sought to corroborate through the testimony of his friend Dinos, which was objected to by Maria’s counsel.
[88] Maria asks the court to give no weight to the “opinions” of value given by Phivos and Dinos because “only a properly qualified expert may give an opinion of value, at least when that opinion is tied to an external standard or measure like ‘fair market value’”: see Envirodrive Inc. v. 836442 Alberta Ltd., 2005 ABQB 446, 7 B.L.R. (4th) 61, at paras. 50-51; see also R v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at p. 42. Phivos has failed to meet his obligation to produce proper evidence to support the value he claims to have contributed to the property at 39 Chipper.
[89] While there may be circumstances in which the court can value work done for purposes of restitutionary claims without the assistance of expert testimony, no authority has been provided in which a court has done so in a situation such as this where there is a dispute about the nature and extent of the work done by the party making the restitutionary claim, and in which there is no evidence or agreement about the value of any of the work or materials contributed. Even if the court could extrapolate a value in some circumstances, for example in the case of Tyner v. Tyner, 2015 ONSC 3475, at paras. 16, 19, 20, 22, 23, 29, 34, and 35, relied upon by Phivos, that valuation exercise is not appropriate where its foundation (e.g. whether and to what extend work was done) is disputed. I cannot even roughly estimate the value of the work done by Phivos using a general minimum wage because I do not consider his evidence on its own to be reliable and, absent credible corroboration, of which there is very little (perhaps a few days of work in the basement that Dinos and Mario can confirm), it is not sufficient to meet the onus of proof.
[90] I do not need to make a decision as to who is telling the truth as between Phivos or Maria, regarding exactly what work Phivos did at 39 Chipper and when he did it. Phivos has the onus to prove the work he did and the value that should be attributed to that work on a balance of probabilities, and he has not done so. That leaves the court with only generalities to consider.
Claimed Value of Work Done by Phivos in the Cleaning Business
[91] With respect to the work Phivos did in the cleaning business, Maria testified that Phivos worked approximately three to four hours in the evenings occasionally (and she is critical of the work he did). Phivos says he worked an eight to twelve hour overnight shift most weeknights. For reasons previously indicated concerning the credibility of both parties, I do not accept the testimony of either Maria or Phivos regarding how many hours a week Phivos worked in the cleaning business, or how many weeks a year he worked.
[92] Further, there is no evidence of any agreed hourly rate, even if the hours could be determined. For purposes of a fee-for-service determination of damages, the court might have been able to impute minimum wage to calculate the value of the work if the hours had been established, but the evidence regarding the hours worked by Phivos is not reliable. At best, I might be able to estimate nominal hours based on Maria’s admissions that he worked 3-4 hour shifts, in some periods five days a week and in other periods less or not at all. That would be worth, according to my very rough calculations, something less than $300 per week, on average (depending on what the minimum wage was at a given point in time, about which no evidence has been provided).
[93] I am unable to determine or even reasonably estimate the value of the work done by Phivos in the cleaning business, beyond the very rough estimate that it might have been worth less than $300 per week, if he was actually working. Phivos has the onus to prove the work he did and the value that should be attributed to the work he did in the cleaning business on a balance of probabilities, and he has not done so. Just as the court is unable to determine the value of the work that Phivos did in maintaining, repairing, renovating, upgrading and improving the property at 39 Chipper, the court is once again left with only generalities to consider.
Enrichment and Corresponding Detriment
[94] Whatever work Phivos did do (which he would say was to his detriment, in the form of unpaid labour and some contributed materials), it would not be unreasonable for the court to infer that it benefited Maria in some way. Unpaid provision of services or labour may “…constitute a deprivation because the full-time devotion of one’s labour and earnings without compensation may readily be viewed as such”: see Kerr, at para. 42. Phivos does not need to prove the precise value of his labour to enable the court to rule that there was, in general terms, some benefit to Maria and corresponding detriment to him.
The Juristic Reason for the Work Done by Phivos at 39 Chipper
[95] Cromwell J., writing for the majority in Kerr, explained the correct approach to this third aspect of the unjust enrichment test as follows:
[114] As previously set out, juristic reason is the third of three parts to the unjust enrichment analysis. As McLachlin J. put it in Peter, at p. 990, “It is at this stage that the court must consider whether the enrichment and detriment, morally neutral in themselves, are ‘unjust’.” The juristic reason analysis is intended to reveal whether there is a reason for the defendant to retain the enrichment, not to determine its value or whether the enrichment should be set off against reciprocal benefits: Wilson, at para. 30. Garland established that claimants must show that there is no juristic reason falling within any of the established categories, such as whether the benefit was a gift or pursuant to a legal obligation. If that is established, it is open to the defendant to show that a different juristic reason for the enrichment should be recognized, having regard to the parties’ reasonable expectations and public policy considerations.
[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.
[96] Maria admits that some work was done by Phivos to the property at 39 Chipper but she says that he did far less than he claims to have done, some of it was not done well and had to be re-done, and some of it was done by others who she paid directly. She also admits he did some work in the cleaning business, despite their different accounts of the nature and extent of his work and how well it was done.
[97] Domestic services and other contributions (my emphasis) are capable of supporting a claim for unjust enrichment, where no independent duty exists at common law, equity or by statute to perform work or services for the other: see Kerr, at para. 42. But the ultimate question for the court is whether, in the circumstances of the particular case, is there any “…reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff…” or would the retention of the benefit be unjust in the circumstances: see Kerr, at para. 40, citing Pettkus, at p. 848; Rathwell v. Rathwell, 1978 CanLII 3 (SCC), [1978] 2 S.C.R. 436, at p. 456; Sorochan v. Sorochan, 1986 CanLII 23 (SCC), [1986] 2 S.C.R. 38, at p. 44; Peter, at p. 987, Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762, at pp. 784, 788; and Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at para. 30.
[98] Maria contends that, whatever work Phivos did do in the cleaning business or at the house was all done in exchange for his “room and board.” In the context of the unjust enrichment claim, even if the issues surrounding the proof of the value of the work said to have been done are put aside and left to be considered in the context of the remedy, before getting to the remedy question, the court must first decide whether the “room and board” that Phivos enjoyed at 39 Chipper for the many years that he lived there was a juristic reason for Maria to have retained the benefit of the work that Phivos did at the property and in the cleaning business.
[99] A contract is one of the recognized categories of juristic reasons. The Memorandum signed by the parties expressly contemplated that Phivos would compensate Maria if he returned to live at 39 Chipper. While it only specified the amount he had to pay for the month of February 2002, that informs the reasonable expectations of the parties that Phivos would be paying some form of compensation in exchange for being permitted to live at 39 Chipper after he transferred his 50% interest to Maria in January 2002. The parties’ agreement at the time of the transfer also reflects that it would be Maria’s responsibility to pay the mortgage, which she did along with all of the other carrying costs, from whatever means she had available to her.
[100] Phivos has not suggested that he actually paid any monies for rent or that he paid any of the carrying costs directly, or that he made any material contribution towards any common expenses for food or daily living. While he says he was not a tenant, consistent with what the parties appear to have contemplated in the Memorandum, some of his tax returns and his sworn testimony in the family law proceeding reflect that he was paying rent. Further, Phivos himself testified that he paid his way through his work in the cleaning business. Maria testified to the same effect, that she did not pay him directly for his work because he was not directly paying her for rent or food.
[101] Phivos challenges the Memorandum and suggests that it does not accurately reflect his understanding and intentions. I have concluded earlier in these reasons that I do not accept his testimony or his challenges, which are implausible. However, even if there had not been a Memorandum or contract, this mutual conferral of benefits of work in exchange for shelter and food supports an inference, and I do so infer and find, that there was a common intention and understanding that Phivos would work in exchange for his room and board.
[102] A juristic reason does not have to fall under an established category of juristic reasons upon which to deny recovery. It remains open to the court to determine that there is another juristic reason to deny recovery: see Kerr, at paras. 43, 44. At that stage, the court may take into consideration the parties’ reasonable expectations. Those may, in turn, be informed by mutual benefit conferrals: see Kerr, at paras. 109, 114, 115 and 122. In this case, the juristic reason for the benefits that Maria received from Phivos’ unpaid labour is countered by the juristic reason of the benefits he received in return, his room and board at 39 Chipper.
[103] This analysis regarding the conferral of mutual benefits applies not only to his work in the cleaning business but also to his work maintaining, repairing, renovating, upgrading and improving the property at 39 Chipper. I find that in exchange for having a roof over his head and food to eat, Phivos worked part-time in the cleaning business and did work around the house. That is a juristic reason for any benefit that Maria received for the work Phivos did.
[104] The analysis can only be done on the basis of these generalities because of the absence of reliable evidence about the value of this work, which Maria describes as intermittent in terms of the cleaning business and to be in the nature of “odd jobs” around the house, in contrast with Phivos’ testimony of his daily overnight shifts in the cleaning business and extensive maintenance, repairs, renovations, upgrades and improvements around the house. The truth no doubt lies somewhere in between, but is elusive because of the lack of proof given the credibility concerns that I have previously indicated with matters of proof dependent upon Phivos’ testimony.
[105] In the absence of proof on a balance of probabilities of the precise nature, extent and value of the work done by Phivos (which he bore the onus to adduce at trial), in general terms, I do not consider it to be unjust for Maria to retain the benefit of the work that Phivos did in Maria’s cleaning business at 39 Chipper as part of the mutual conferral of benefits that allowed Phivos to continue to live and eat at 39 Chipper without paying for any living expenses for the better part of eleven and a half years after he sold his interest: see Webb v. Laforme, 2016 ONSC 5635, at paras. 91, 100, 102, and 109; Novakovic v. Kapusniak, [2005] O.J. No. 2713, at paras. 27-28, 30-31.
[106] The analysis regarding the work at 39 Chipper that Phivos claims to have undertaken prior to January 2002 is slightly different, but leads to the same result. This would cover the majority of the work that Phivos claims to have done in the basement and to the trim and hardwood on the main floor. Beyond the disagreement between Maria and Phivos about the extent of the work Phivos did and about which one of them paid for certain of the materials and third party labour costs[^4], Maria maintains that whatever contributions Phivos made towards the maintenance, repair, renovation, upgrading and/or improvement of 39 Chipper ought to be attributed to Phivos’ share of the carrying costs while he was living there as a co-owner between August 2001 and January 2002.
[107] There is no evidence of any increase in the value of 39 Chipper between July 31, 2001 and January 2002, whether due to market forces or to any maintenance, repairs, renovations, upgrades or improvements done to the property. In that time frame, Phivos was a joint owner and jointly responsible for the mortgage and other carrying costs (absent proof to the contrary, of which there is none). His legal obligation for 50% of those costs as a 50% joint owner is a juristic reason for any labour and materials that he contributed towards the property and any work he did in Maria’s cleaning business in that time frame.
[108] Furthermore, the work Phivos did before the January 2002 transfer of his 50% interest to Maria was covered by the stated consideration that he received from Maria upon that transfer, detailed in the contemporaneous documents and discussed earlier in these reasons. The documented consideration indicated in the legal documents signed by the parties at the time is a further juristic reason for Maria to retain the benefit of any work that Phivos did at 39 Chipper during this earlier period, which would cover most of the work that he claims to have done in the basement in addition to some of the work he did on the main floor.
Remedies for Unjust Enrichment
[109] The evidence does not support a finding that there was a disproportionate benefit conferred by Phivos on Maria such that she was unjustly enriched by the work he did in the cleaning business and at the property at 39 Chipper in exchange for living there for 11½ years. There was a juristic reason for the benefits received by Maria and I have not found her to have been unjustly enriched at Phivos’ expense.
[110] This would not be the first case in which a court has held that “the mere appreciation of one of the cohabitant’s assets under the circumstances of this case does not of itself create an unjust enrichment”: see Peters v Swayze, 2017 ONSC 1779, aff’d 2018 ONCA 189, at para. 29.
[111] Absent a finding of unjust enrichment, there is no need to consider the possible remedies for such. Nonetheless, in the interests of completeness, I will address them briefly.
Constructive Trust
[112] The primary remedy sought by Phivos is a constructive trust in the property at 39 Chipper. It assumes that unjust enrichment has been established in this case, which it has not, nor has Phivos established that a constructive trust remedy would have been appropriate, even if he got to the remedy stage. Phivos does not address in a meaningful way the distinction between the different remedies for unjust enrichment or the argument that, even if Maria was enriched at his expense through his work, that does not necessarily lead to a remedy other than monetary compensation for the value of the work done. A finding of unjust enrichment does not necessarily imply that there is a constructive trust. Rather, the first remedy to consider is a monetary award: see Kerr, at para. 47. That said, because constructive trust is the primary remedy that Phivos seeks, I will deal with it first.
[113] The first requirement for a constructive trust is not the problem for Phivos. For the court to impose a remedy of a constructive trust, the claimant’s contribution needs to be linked to a specific property. “Where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour”: see Kerr, at para. 50. Since it is not disputed that Phivos did work at 39 Chipper, this threshold requirement would be met. It might even be possible for a sufficient link to be established between the work Phivos did in the cleaning business and the carrying costs for 39 Chipper that were funded by the proceeds of that labour. However, the existence of a link between Phivos’ contributions and the property at 39 Chipper is not enough to ground a finding of a constructive trust.
[114] Without proper evidence to support the value that Phivos claims to have contributed to the property at 39 Chipper, he is unable to meet his evidentiary onus for the constructive trust remedy that he asserts: Abbey, at p. 42; Envirodrive Inc., at paras. 50-51.
[115] In a case such as this, the lack of any direct evidence upon which the court can reliably measure the value of benefits conferred on Maria (from Phivos’ work) and the benefits conferred on Phivos (e.g. what it would have cost him to live elsewhere during this time frame), would impede the court’s ability to determine any of the potential remedies, if there had been a finding of unjust enrichment, including the constructive trust remedy. The court needs to be able to measure and assess the parties’ respective contributions in order to make a fair and equitable distribution in deciding how much of the property at issue will be impressed with the claimed constructive trust: see Kerr, at para. 53.
[116] Phivos asks the court to find that he has a 50% constructive trust interest in 39 Chipper without any logical support for this particular percentage. Even in his best case scenario, if the court were to accept his claimed (but unproven) values for the maintenance, repairs, renovations, upgrades and improvements he made to the property estimated at $105,440.00, he offers no mathematical or other support for how that translates into a 50% interest at any relevant time (he is claiming a resulting trust would entitle him to 50% of the value at trial, whereas a constructive trust would entitle him to a 50% interest as of the date of separation in August 2013). There is evidence in the trial record of the fair market value of 39 Chipper at three points in time:
a. The parties have agreed that the fair market value of the property was $490,000.00 in August 2013;
b. the parties have agreed that the fair market value of the property was $1,050,000.00 at the time of the trial; and
c. it is reasonable to assume its fair market value was the purchase price paid at the time of purchase in July 2002, which was $240,000.00 (this value would not include the value of any work done by Phivos since it pre-dated his work).
[117] Phivos has offered no principled basis on which the court could extrapolate from the estimated $105,440.00 in labour and materials a 50% interest in the property at 39 Chipper and a corresponding entitlement to 50% of the increase in the net value of the property (net of the mortgage at any of the given points in time). There is also no evidence to suggest whether, or to what extent, the value of the property was impacted by any of the work Phivos did.
[118] When faced with a similar problem in Feaver v. Curno, 2010 ONSC 4009, at paras. 206, 213 and 215, the court concluded that it could not give effect to a claim for a share in the increase in the value of a property in the absence of expert testimony even if the claimant’s evidence about having made financial contributions and renovations to the property at issue was accepted. Phivos similarly offers no expert or other evidence to support the contention that the maintenance, repairs, renovations, upgrades and improvements that Phivos made directly increased the value of 39 Chipper: see Gonsalves v. Scrymgeour, 2016 ONSC 6659, at paras. 203-205, 210, and 240; Reiter v. Hollub, 2015 ONSC 6397, at paras. 23-25.
[119] The court is not able to assess the value of Phivos’ contributions and how they impacted the value of 39 Chipper on any of the relevant dates. This renders the constructive trust remedy unavailable to Phivos.
[120] Accordingly, if a monetary remedy were to be considered in this case, it would have to come within the criteria for applying the “value survived” assessment of appropriate monetary relief within the structure of a joint family venture or the “value received” or fee-for-service assessment (quantum meruit): see Kerr, at paras. 7, 48-49 I turn to those remedies next.
Joint Family Venture
[121] Justice Cromwell sums up his analysis of the remedies for unjust enrichment in Kerr, at para. 100, by concluding:
a. The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach.
b. Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions.
c. To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.
d. Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family.
[122] Although not formally pleaded, at trial Phivos claimed that the contributions that he made to the property at 39 Chipper and to Maria’s cleaning business, without receiving any compensation, were for the purposes of their joint accumulation of wealth under a joint family venture. A joint family venture is one of the available remedies where there has been a finding of unjust enrichment. Some courts have considered it to be bound up in the determination of unjust enrichment as addressed earlier in the analysis, but the more accepted approach, based on the framework outlined by the Supreme Court in Kerr, is that it is one of the remedies to be considered if there has been a finding of unjust enrichment.
[123] This remedy has sometimes been used to assist claimants who are unable to prove the value of their work or contributions to a particular property or asset, but who maintain that they have nonetheless contributed to the overall accumulation of wealth and assets of the family over the duration of a relationship and that they should be entitled to an award of damages as a result.
[124] Turning first to the alleged link, Phivos contends that his “sweat equity” in the work he did over the years at the house, and in the cleaning business, contributed to Maria’s ability to hold on to the property and its increase in value (and her corresponding increased wealth) over time. Phivos says all would have been lost but for the rental units that he created to generate income to cover the carrying costs of 39 Chipper. Phivos says this can be established based on the following factual determinations:
a. The rental suites that Phivos finished in the basement generated rental income that has sustained the property over all these years by funding the carrying costs;
b. Maria could not have afforded the carrying costs without that rental income, while supporting her children when she was on welfare in the early time frame, before she started her cleaning business (per the case of De Cruz-Lee v. Lee, 2015 ONSC 2012, relied upon by Phivos); and
c. Maria could not have raised or borrowed sufficient funds to pay someone else to do the work that was done in the basement to create the rental suites.
[125] While the first two may be factually supported, the last point is not. To the contrary, Maria was able to get a mortgage and a line of credit on her own in 2005, she testified to having saved cash that she used to pay others who did work for her and to having supportive friends and family members. The issue of other possible sources of funds to cover these renovation costs was not explored in the evidence at trial and the inference that Phivos asks the court to draw, that Maria could not have raised or borrowed sufficient funds to sustain the property without him, is not supported.
[126] Even if Phivos’ onus is not as high as this, and he need not demonstrate that the property would have been lost but for his contribution but simply that there was some link between his contributions to the property at 39 Chipper and the cleaning business and Maria’s ability to stay afloat and hold on to the property at 39 Chipper while its value increased over this time period, Phivos would still need to demonstrate the essential second element of this remedy, which is that there was in fact a joint family venture between him and Maria during this period.
[127] Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent, and (d) priority of the family: see Kerr, at para. 89.
[128] Phivos cites Kerr, at paras. 90-99, for examples of how the court should look at these four factors:
a. mutual effort, e.g ., "whether the parties worked collaboratively towards common goals;"
b. economic integration, e.g ., whether "a joint bank account that was used as a "common purse,"" and/or "sharing of expenses and the amassing of a common pool of savings;"
c. actual intent, e.g .,whether "the parties saw one another as domestic and economic partners;" and
d. priority of the family, e.g ., "detrimental reliance on the relationship, by one or both of the parties, for the sake of the family."
[129] Maria opposes the court’s consideration of this doctrine on the basis that it was not expressly raised in the pleadings. That is true, but Phivos argues that the constructive trust remedy was claimed and that the joint family venture claim is an alternative remedy for unjust enrichment. Some courts have said that the joint family venture is a separate and distinct remedy from a constructive trust arising from a claim for unjust enrichment[^5] and that might require it to be distinctly plead. However, I can envision circumstances in which the existence of a joint family venture may be wound up in the determination of whether there has been any unjust enrichment. Approached from that perspective, a plea of unjust enrichment could cover a joint family venture, particularly because unjust enrichment is not limited to stated categories.
[130] The joint family venture claim fails on other grounds, so I do not need to dismiss it on the basis that it was not formally and specifically pleaded, although, in my view, the better practice would have been to have done so specifically.
[131] First, if it is addressed in its proper context as a remedy for unjust enrichment, it fails because unjust enrichment has not been established, for the reasons previously indicated. Second, there was no joint family venture between Maria and Phivos during the relevant time period, which is from and after the January 2002 transfer until August 2013, when Phivos moved out of 39 Chipper for the last time. I will turn now to the four factors and other relevant circumstances that have led me to this determination.
Were Maria and Phivos Working Towards Common Goals?
[132] There is no evidence of any common goals that Maria and Phivos were pursuing from January 2002 to August 2013. The fact that they lived under the same roof and worked in the cleaning business together says no more than they were commonly motivated to have a roof over their heads and food on the table. I have previously examined the evidence regarding the terms under which Phivos continued to live at 39 Chipper, and have determined that his contributions to the property and to the cleaning business were in exchange for his “room and board”.
[133] Phivos and Maria met and became a couple when they both had children who they were raising independently of each other, they had a volatile personal relationship and appear to have stayed and worked together out of convenience rather than out of some common family objective. Neither of them gave any evidence of future plans to retire and live out the rest of their lives together. They did not function as a family or attempt to integrate their children into a family unit. I am unable to find that Maria and Phivos were working towards any common family goals.
Were Maria and Phivos Economically Integrated?
[134] There is no evidence that the parties had a joint bank account. Their joint line of credit was a point of contention (and the reason that Maria says they broke up and Phivos transferred his interest to her in January 2002). Maria dealt with the joint line of credit, and she controlled the finances of the cleaning business and was in charge of paying for all of the carrying costs of 39 Chipper and all costs of daily living at 39 Chipper.
[135] Phivos worked in Maria’s cleaning business, with no money actually changing hands between them and no formal accounting of who was paying for what on a day-to-day basis. Work was done in and around the house from time to time by Phivos and his friends, for which he did not render and invoice and was not paid at the time the work was done. Some of the materials for the work were paid for by Maria and some by Phivos, although neither of them kept any records or receipts for the purchases of materials so this cannot be verified. To that extent there was a “common purse” and sharing of expenses, but there was no common pool of savings. To the contrary, after the January 2002 transfer, Maria went to some great lengths to separate their finances, by taking over their joint debts.
Was there an Intention to be Economic and Domestic Partners?
[136] The third factor, actual intent, reflects the court’s concern for the autonomy of the parties and considers that one reason domestic partners may choose not to marry could be a desire “not to have their lives economically intertwined”: see Kerr, at para. 94. In light of that, Cromwell J. suggests that “the actual intentions of the parties must be given considerable weight.”
[137] Courts can infer the actual intent of the parties from conduct such as explicitly labelling the relationship as a partnership, accepting their relationship as equivalent to marriage or holding themselves out to the public as married, the stability of the relationship, as well as the length of cohabitation: see Kerr, at para. 95. While I have found that the parties were cohabiting and presented as a “couple” socially and engaged in occasional sexual relations, theirs was an “on again/off again” relationship, and perhaps a liaison of convenience at best. I do not consider their cohabitation to be akin to a domestic partnership or to carry the indicia of such.
[138] There is no evidence of any intention on either party to share their wealth. Maria kept her cash hidden in the house. They both worked to contribute to the daily sustenance of the house and put food on the table, but there is no evidence that they shared their bank accounts, mingled their social assistance monies or, contributed to each other’s children’s needs.
[139] The only circumstance from which an intention to be economically intertwined might be inferred would be their joint purchase of 39 Chipper, but even if they held such an intention back in 2001, that was overtaken by the transfer of Phivos’ interest to Maria in January 2002 from and after which their demonstrated intentions were very much the opposite. The Memorandum documents that their intention was for Phivos to pay rent and for Maria to take on sole responsibility for the property and the business.
[140] There is no evidence that either Phivos or Maria intended to be domestic or economic partners in the period between January 2002 and August 2013, nor any evidence from which such an intention can be reasonably inferred.
Was Family Prioritized?
[141] Maria and Phivos had some limited interactions with each other’s children. They did take some vacations together and with Maria’s children (after Phivos became estranged from his daughters), and socialized with friends as a couple. However, neither of them testified to any examples of having prioritized the family or each other to their detriment.
[142] Both Phivos and Maria were very much looking after themselves and, in the case of Maria, her own children as well. There was no evidence of decisions being made in the context of the family unit about the best use of their revenue and assets. Phivos took no responsibility for providing for Maria, her children or even his own children and gave no evidence about any economic or other sacrifices he made on account of Maria or her children: see Kerr, at paras. 90-99; Reiter) at para. 17. Although he did try to suggest that he became estranged from his children to appease Maria, I do not accept that testimony as credible.
Was there a Joint Family Venture?
[143] Having assessed the relevant circumstances and four identified factors, among others, Phivos has not established on a balance of probabilities that he and Maria were engaged in a joint family venture.
Quantum Meruit
[144] The applicant correctly observes that the value survived approach has been considered the more accurate way in which to value contributions made to property in circumstances of a relationship of unmarried persons where there is a link between the joint efforts of the parties and the accumulation of wealth: see Kerr, at para. 55; Anderson v. Dudek, 2011 ONSC 4937, at para. 147. But that joint effort or contribution towards a common business or family goal has not been established here.
[145] The "value received” or quantum meruit approach, which considers the value of the services provided by the claimant, is the default monetary remedy for unjust enrichment, although it is often argued in the alternative to the constructive trust and “value survived” remedy under the joint family venture: see Wawzonek v. Page, 2015 ONSC 4374, 63 R.F.L. (7th) 317, at para. 129.
[146] The same difficulties exist in attempting to determine a monetary remedy based on a fee-for-service (or quantum meruit) as exists in respect of the other claimed remedies: the absence of a reliable evidentiary basis on which to value the work that Phivos did.
[147] If Phivos has proven the value of his work at 39 Chipper and his work in the cleaning business on some objective basis, and if that value had been demonstrated to have exceeded the cost of reasonable rent and food for the eleven plus years that he lived at 39 Chipper, he might have succeeded in some quantum meruit claim. However, in the absence of proof of any of these values, the only reasonable inference that I can draw is that the value of his work was roughly equal to (or less than) the value of the room and board that he received. There is no basis on which I can determine a quantum meruit claim that results in monies owed to Phivos by Maria based on the evidence before me.
[148] I can test the fairness of this outcome using the values that Phivos attributes to his work (which he estimates at approximately $105,440.00 and Maria contends are highly inflated). That translates into roughly $8,750.00 per year for the twelve years that he lived at 39 Chipper (roughly $732.00 per month). Even if some additional amount is added for his work in the cleaning business (say 20 hours per week at $14 an hour[^6], for another approximately $1,120.00 a month), these before tax values for work done, amounting to approximately $1,852.00 per month in the aggregate, are within the realm of what one might expect it would cost to live in Toronto during this time period.
Other Impediments to the Granting of Equitable Relief for Unjust Enrichment
[149] Beyond the evidentiary lacuna, there is a further impediment that is raised against granting any equitable relief to Phivos in the circumstances of this case. The court in Campbell, at para. 91, refused to grant a remedy for unjust enrichment where a party collected social assistance and did not disclose on her tax returns that she was living with the other party, holding that “it is inappropriate that she be given an equitable remedy based upon a relationship that she was at pains to conceal in order to receive a financial benefit from public funds.” Similarly, in Tays, at paras. 27-28, 32, the court declined to grant a remedy for unjust enrichment where the applicant fraudulently obtained social assistance while living with the respondent in the property for which she was seeking an equitable remedy.
[150] Phivos’s tax documentation, his family court documents, and his testimony reveal that he was claiming social assistance between 2001 and 2013 while maintaining to the government that he had no ownership of 39 Chipper, was a tenant, was not working, could not work for medical reasons, and was not in relationship with Maria. He is now asserting the opposite in support of his claims against Maria in this action. Phivos admitted during his testimony that he claimed social assistance between 2001 and 2013 on the basis of being medically unable to work throughout the entire period in which he now says he was performing physical labour through maintenance, repairs, renovations, upgrades and improvements to the property at 39 Chipper, and working in Maria’s cleaning business.
[151] Phivos has not established an evidentiary foundation for his constructive trust claim, but even if he had, this equitable remedy would not be available to him because he has not come to court with “clean hands”.
Damages for Personal Effects and Truck
[152] Phivos claims that when he left 39 Chipper for the last time in 2013, he left behind personal effects and his truck, which he has valued at approximately $49,500.00. Aside from Phivos’ own testimony, there is no evidence of what personal belongings he left at 39 Chipper, nor any evidence of the value of the items.
[153] Phivos did not particularize a specific claim for damages for his personal effects and the truck in his pleadings. He asserted a general claim for conversion of his personal effects, his tools and his truck, that he says were either discarded or sold by Maria. At trial, he claimed that she is liable to him in damages for the values that he now attributes to these various items.
[154] As a starting point, a claim for conversion cannot succeed when the items were, for all intents and purposes, abandoned by him. He left them at 39 Chipper. It has not been suggested that Maria had a duty to keep these items for Phivos. It has also not been established that Phivos had any reasonable expectation that they would be preserved and returned to him.
[155] Phivos had other belongings in a storage locker that he also abandoned. Phivos testified that he had a scaffold, a big professional painting gun, and a big compressor in his storage unit, and that he defaulted on the payments to this storage unit because he went to Cyprus. His evidence at trial was that he “did not really care” what happened to these items. It is reasonable to infer that he initially felt the same way about many of his personal effects and tools that he left behind when he left 39 Chipper for the last time in August 2013. This is reinforced by the fact that he did not immediately make any effort to retrieve them.
[156] Despite having no “duty” to keep Phivos’ personal belongings, when Phivos did eventually call in October or November of 2013 and ask for his personal belongings to be returned, Maria arranged to drop some of them off in a bag to Mario and his friend at a restaurant/bar. She acknowledges that there were some other personal effects that she eventually dropped off at goodwill, including a bed spread. Maria says that Phivos left a computer in the house that she threw away and that Phivos left two guns in the house that Maria asked the police to come and take away. Maria says she was not aware of what tools were in the truck, if any, or who they belonged to.
[157] Phivos says there were tools in the truck, but no one could corroborated this. At best, his brother Mario and his friend Dinos simply said they were aware that he had tools but neither of them said they saw the tools in his truck. Dinos tried to get his own tools from Phivos’ truck after Phivos left, but testified that he was not permitted by Maria’s son to look inside the truck and he never retrieved or saw any of his tools in the truck.
[158] According to Phivos, and as summarized in the clarifying submission that was provided on October 8, 2021 after the oral closing arguments, he estimates the value of the tools that he left in his truck to be $16,420.00 to $16,920.00, the value of his personal belongings that he left at 39 Chipper to be $25,500.00 to $25,800.00 and the value of his truck that he left parked outside of 39 Chipper to be $6,800.00, which is what he says supports his claim for damages of $49,520.00.
[159] Phivos could not produce even a single picture or proof of purchase for any of the belongings for which he is claiming damages, aside from the truck, which was in Maria’s name. Phivos has not established any evidentiary or legal basis on which he can claim entitlement to the proceeds of its sale or its value.
[160] Phivos also produced no evidence as to the value of any of the belongings other than his own testimony, which is not proper opinion evidence as to the value of items. Furthermore, I find his value estimates to be implausible given his own conduct in relation to these items. If these personal effects and tools and the truck were really worth almost $50,000.00, it is unlikely that he would walk away from 39 Chipper with the intention of ending his relationship with Maria once and for all and go back to Cyprus (having made up the lie of going to Cyprus to visit a sick uncle to avoid arousing her suspicions) without taking some care to put any of his valuable personal effects somewhere else for safekeeping. I cannot accept his value estimates in the face of any rational explanation for his failure to protect these assets.
[161] Phivos had the onus to adduce evidence as to the value of these items to prove the damages he claims to have suffered. Since the court has no evidence before it to make such a determination, no more than nominal damages could be awarded, even if there was a proper cause of action upon which to ground this damages claim: see Envirodrive Inc.,at paras. 50-51; Park v. Wave Hockey Inc., 2013 ONSC 6024,at paras. 91-114.
[162] In summary, Phivos cannot succeed in a claim for conversion of items that he abandoned. Further, he has not proven the existence or value of most of the items that he claims damages for, except the truck that was owned by Maria, not him. These claims for damages for conversion of Phivos’ personal belongings and the truck have not been proven and are dismissed.
Final Order and Costs
[163] For the reasons outlined above, this action is dismissed.
[164] At the conclusion of oral closing argument, the parties agreed to exchange Bills of Costs with each other by August 6, 2021 (which I expect they did long ago) and asked for the opportunity to make page-limited cost submissions in writing following the release of my decision, to which they proposed to attach their Bills of Costs and any relevant settlement offers.
[165] The court expects the parties to attempt to reach an agreement on costs and will allow an opportunity for them to try to do so before receiving their written cost submissions. While Maria is the successful party (the action having been dismissed) the issues were difficult to decide and were made more difficult by the credibility concerns on both sides. That will be among the factors that the court takes into account if the parties do not reach an agreement on costs and the court is asked to decide them.
[166] If the parties are able to reach an agreement on costs they should advise the court, through my judicial assistant linda.bunoza@ontario.ca by November 30, 2021. If they are unable to reach an agreement on costs, the respondent shall deliver her cost submission of no more than 3.5 pages double spaced, together with her Bill of Costs and any settlement offers referenced in her submission by December 9, 2021. The applicant shall deliver his cost submission of no more than 5 pages double spaced, together with his Bill of Costs and any settlement offers referenced in his submission by December 16, 2021. The respondent may deliver a reply cost submission of no more than 1.5 pages double spaced on or before December 23, 2021. All cost submissions shall be served on the opposite party and filed through the online filing portal in the normal course, uploaded onto CaseLines and copies shall also be sent by email to my judicial assistant.
Kimmel J.
Released: November 19, 2021
COURT FILE NO.: FS-15-00020137-0000
DATE: 20211119
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Phivos Kyriacou
Applicant
– and –
Maria Zikos
Respondent
tRIal REASONS
Kimmel J.
Released: November 19, 2021
[^1]: Such evidentiary discrepancies are discussed in more detail later in these reasons and cover topics such as: the rent paid by the basement tenants, whether Maria paid Phivos for any of his work in the cleaning business, whether Phivos paid any rent, her ownership and source of funds for the purchase of a property in Cyprus and the transactions between Maria and her daughter Vicki leading to the recording of a $60,000.00 loan from daughter to mother.
[^2]: This was provided in a clarifying submission dated October 8, 2021 from the applicant’s counsel, in response to a request from the court that the applicant provide an updated reconciliation and accounting of what he was claiming, after counsel had acknowledged that some adjustments should be made to a previous summary. There were some objections raised by counsel for the respondent to certain entries in the updated information that had not been previously detailed, but given my findings and decision herein to deny all of the amounts claimed on the basis that they have not been proven on a balance of probabilities, I do not consider it necessary to address the request for certain specific items to be excluded from the analysis.
[^3]: The respondent suggests that the chart provided by the applicant for work done at 39 Chipper indicates fewer days of work, at an estimated range of 68 to 74 days, which is about 3.5 months of work, assuming a five-day work week. This fails to account for some work claimed by the applicant in the chart that does not indicate a corresponding time in that particular column of the chart. The time can be, and I have, extrapolated based on the assumed daily rate of $500. This is what I have done to determine that the total time corresponding with the claimed work amounts to approximately 5.5 months.
[^4]: This latter point is further complicated by Phivos’ assertion that he used the parties’ joint line of credit to pay for third party labour and materials. If that was the case, then they both effectively paid for these costs, and Maria ultimately was the one who paid off that line of credit.
[^5]: For example, see Gonsalves.
[^6]: If the court were to even attempt to value some of the work, nothing more than a minimum hourly wage for work proven to have been done could be awarded, in the absence of expert evidence: McLean,at para. 73. In the absence of any evidence of what the minimum wage was at different times during the relevant period, I have used what I consider to be a generous number to illustrate the point, of $14 per hour.