Court File and Parties

COURT FILE NO.: FS-21-22877 DATE: 20220329 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Sara Merina Westlake, Applicant – and – Evan Ellicock, Respondent

Counsel: Megan Edmiston, for the Applicant Self-represented, for the Respondent

HEARD: March 15, 2022

BEFORE: E.L. Nakonechny, J.

Reasons for Decision

[1] The Applicant, Sara, brings this motion for an order pursuant to Rule 16 of the Family Law Rules dismissing the claims of the Respondent, Evan, set out in his Answer dated June 4, 2021 on the basis that there is no genuine issue for trial.

[2] In the alternative, Sara seeks an order dismissing the specific claims made by Evan to an interest in the property known municipally as 13 Adelaide Street North, Lindsay, Ontario, by way of constructive or resulting trust or joint family venture; for monetary compensation for unjust enrichment; or on the grounds that there is a valid domestic contract between the parties dated February 28, 2020.

[3] In the further alternative, Sara asks that Evan’s Answer be struck pursuant to Rule 1(8) of the Family Law Rules for his failure to pay costs ordered by Faieta, J. on January 10, 2022.

[4] Evan appeared today but had filed no materials for the motion. He asked that Sara’s motion be adjourned. Evan did not serve a Notice of Motion or an affidavit in support of his request for an adjournment, nor had he advised the Court or Ms. Edmiston that he would be seeking an adjournment.

[5] This long motion was scheduled by Order of O’Brien, J. dated September 7, 2021. Evan was served with the 14B motion materials on August 20, 2021 as evidenced by the sworn Affidavit of Service of Ms. Tong. Evan filed no responding materials for the 14B motion. He received a copy of O’Brien, J.’s Order and was aware of the date.

[6] The date of this motion was also raised in the motion before Faieta, J. heard November 2, 2021. Evan appeared at that motion. He also appeared on January 6, 2022, at Sara’s motion for a writ of possession to enforce the November, 2021 Order and at Sara’s motion for costs on January 7, 2022. Evan did not file pleadings for those motions.

[7] Evan has essentially failed to participate in this proceeding. He was ordered to vacate Adelaide by December 15, 2021 and he did not. He was ordered to pay Sara costs of $18,700 and he has not.

[8] Rule 2(3) and (5) of the Family Law Rules requires the Court to promote the primary objective of dealing with cases justly by ensuring that the procedure is fair to all parties and controlling the progress of the case. In my view, Evan’s request for an adjournment is an attempt to further delay the determination of this proceeding. Evan has not filed any evidence to support his claims. He does not argue that he needs the adjournment to retain counsel or file evidence. I find it would not be fair to Sara, who has complied with all the requirements of the FLR to have her motion heard, to grant Evan’s request for an adjournment.

[9] The request for an adjournment is denied.

Background

[10] The parties had a relationship of about one year. They were not married. They have no children together. They are not common law spouses.

[11] In June 2019, Evan moved into Sara’s apartment in Toronto.

[12] Evan owned a home known municipally as 13 Adelaide Street North, Lindsay, Ontario. In late 2019, he told Sara that he was going to lose the property through foreclosure by the mortgagee. Sara says that Evan asked her to use money she had inherited from her parents to pay his debts. Sara did not agree.

[13] Sara says that Evan then began to pressure her to purchase Adelaide from him. She relented and agreed.

[14] Adelaide was appraised at $370,000 in December, 2019.

[15] In February 2020, Sara moved into Adelaide with Evan.

[16] Evan states that the parties entered into a cohabitation agreement on February 28, 2020 in the form of an e-mail he sent to Sara which purports to be signed by both of them. The e-mail states that that Sara shall purchase Adelaide from Evan in her sole name for fair market value with the understanding that Evan will hold a 25% interest in the home. The e-mail states that if the parties separate each party will “walk away with the percentage of interest each has in the value of the property.”

[17] Sara acknowledges that the parties discussed a cohabitation agreement. She denies that the February 28 e-mail is a valid domestic contract and states that the parties did not agree upon the essential terms of the contract. She says that her signature on the e-mail, which is not witnessed, is a forgery.

[18] On March 23, 2020, Sara paid Evan $390,000 to purchase Adelaide, $20,000 more than the appraised value. Sara purchased Adelaide in her name alone with her inheritance. There was no mortgage.

[19] In June 2020, Sara moved out of Adelaide. She says that Evan was abusive and controlling toward her and that she feared for her safety. Evan denies these allegations.

[20] Sara retained counsel and made numerous requests for Evan to move out of Adelaide. He refused. In October 2020, Sara’s counsel wrote to Evan demanding he move out of Adelaide by December 7, 2020. Evan retained counsel who wrote back raising the issue of the alleged cohabitation agreement. This was the first time Sara knew about this claim.

[21] The parties were not able to resolve the dispute. Sara commenced this Application in April, 2021.

[22] In Evan’s Answer dated June 4, 2021, he claims a certificate of pending litigation, a preservation order under s 12 of the Family Law Act; exclusive possession under Part II of the FLA; a constructive or resulting trust interest in Adelaide or a monetary award as compensation for unjust enrichment of Sara, compensation on the basis of a joint family venture, and a declaratory order that there is a valid domestic contract between the parties and that he has a legal interest in Adelaide.

[23] In the Answer, Evan claims that the parties formed an economic partnership and that he contributed financially to the maintenance and upkeep and made improvements to Adelaide. He provides a list of repairs he says he carried out and bills he says he paid from February, 2020 to November 2020 including landscaping, painting, plastering, toilet and windows replaced and repairs to the staircase.

[24] Sara denies Evan’s claims that he maintained or repaired the property. She acknowledges that Evan may have paid some utilities directly while he lived in Adelaide between June 2020 and January 2022 without her consent. He paid no rent during this period while she paid property taxes, utilities, water and other expenses totalling over $12,000.

[25] Sara states that when Evan eventually left the property in January, 2022, it was in a terrible state of disrepair. Sara’s Affidavit sworn March 7, 2022, corroborated by the Affidavit of Leonard Marsello dated March 7, 2022, includes photographs showing extreme neglect and filth left behind which attracted mice and pests. There was risk of frozen pipes, broken eavestroughs, removal of fixtures and smoke alarms. Sara has hired a contractor to do repairs and clean the home so it can be sold. She will incur further expenses for this work.

[26] Sara argues that even if Evan’s claims of money or money’s worth contributions to Adelaide are believed, the Court must consider that Evan lived in Adelaide rent free for 18 months without her consent while she paid the carrying costs; he left the property in a mess that she has to pay to repair, he refused to leave the property which caused her to incur legal fees to get him out and he has not paid the costs ordered by Faieta, J.

The Law and Analysis

[27] Rule 16(6) of the Family Law Rules, O. Reg. 114/99 provides: If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[28] The onus is on the moving party to show that there is no genuine issue requiring a trial.

[29] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out the process to be followed by a court in applying the summary judgment rules. In Philion v. Philion, 2015 ONSC 4255 at para. 17, Kent J. summarized the process as follows:

First, the motions judge should take a liberal approach only on the evidence before her, without using the new fact finding powers under the second part of this test. If the summary judgment process provides the motions judge with the evidence required to justly determine the motion, it will be held that there is no genuine issue requiring a trial; and

Second, if there appears to be a genuine issue requiring a trial, the motions judge is entitled, at his discretion, to weigh evidence, evaluate credibility, and draw reasonable inferences, in order to determine if the need for a trial can be avoided using these new tools to come to a fair and just result.

[30] Rule 16(6.1) of the Family Law Rules sets out the court’s powers on a motion for summary judgment:

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. weighing of evidence;
2. evaluating the credibility of a deponent; and
3. drawing any reasonable inference from the evidence.

[31] The powers are discretionary and should be used if doing so will lead to a fair and just result, consistent with the primary objectives of Rule 2(2) of the Family Law Rules: fairness, timeliness, affordability and dealing with the case in ways that are appropriate to its importance and complexity.

[32] At paragraph 49 of Hryniak, the court states: “There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. This will be the case when the process: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

[33] The rule that each party on a summary judgment motion must put its “best foot forward” continues to apply: Cuthbert v. T.D. Canada Trust, 2010 ONSC 830 at para. 12; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, aff’d 2014 ONCA 878, leave to appeal refused [2015] S.C.C.A. No. 97 at para. 32.

Evan’s claims to Adelaide

Resulting Trust

[34] A resulting trust may be imposed to return property to the person who paid for the purchase and is beneficially entitled to it, from the person who has title to it: Rathwell v. Rathwell, [1978] 2 S.C.R. 436. In family law, the cases generally deal with situations of gratuitous transfers between spouses.

[35] In Kerr v. Baranow, 2009 BCCA 111, the Court of Appeal said, at para. 42: "a resulting trust is an equitable doctrine that, by operation of law, imposes a trust on a party who holds legal title to property that was gratuitously transferred to that party by another and where there is evidence of a common intention that the property was to be shared by both parties.”

[36] The facts of this case do not support a claim for resulting trust. Sara paid Evan more than the appraised value of Adelaide to purchase his interest outright at his request so the property would not be foreclosed by the mortgagee. The entirety of the funds to purchase come from Sara’s inheritance. There is no evidence of common intention that Sara was holding all or part of the title in trust for Evan as a beneficial owner. He made no financial contribution to the purchase.

Unjust Enrichment

[37] The Respondent has filed no evidence to prove the repairs and improvements he says he performed or the bills he says he paid. The statements in the Answer are the only facts the Respondent relies on to make his claim, but they are not evidence.

[38] The Supreme Court of Canada in Peter v. Beblow, 101 D.L.R. (4th) 621 (S.C.C.) held 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 page 630.

[39] In Kerr v. Baranow, 2011 SCC 10, Justice Cromwell sets out the Court’s analysis of the remedies for unjust enrichment at para. 100:

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.

[40] Where the contributions of both parties over time have resulted in an accumulation of wealth, unjust enrichment occurs when one party retains a disproportionate share of assets that are a product of their joint efforts following the breakdown of the relationship. While the law of unjust enrichment does not mandate a presumption of equal sharing, the decision whether to award a party a proprietary interest or monetary payment must reflect the true nature of the enrichment and the corresponding deprivation.

The Enrichment and the Corresponding Deprivation

[41] Evan has provided no evidence to prove that he made monetary or non-monetary contributions to Adelaide in the period after Sara purchased it from him to the time he vacated the home. Evan has the onus to prove the work he did and the value to be attributed to his contributions on a balance of probabilities. He has not done so.

[42] Evan has not shown that he gave a tangible benefit to Sara that she received and retained. There is no evidence of any increase in the value of Adelaide in the relevant time due to market forces, or to any maintenance, repairs or other payments Evan alleges to have made. The evidence does not support a finding that Sara received a disproportionate benefit or that she was unjustly enriched by Evan’s work or monetary contributions to Adelaide. Evan resided in the home for 18 months after separation and paid no rent and only a portion of the utilities. He has not proven that he suffered any deprivation.

Was there a Juristic Reason?

[43] 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.

[44] Evan has not met the onus of proving enrichment and corresponding deprivation. The Court need not continue the analysis to examine juristic reason.

[45] Without a finding of unjust enrichment, there is no need for the Court to consider the possible remedies. However, in the interest of completeness, I will address them briefly.

Remedy for Unjust Enrichment

[46] Evan claims a constructive trust in Adelaide. This assumes that unjust enrichment has been established in this case, which it has not. Evan has not established that a constructive trust remedy would be appropriate, even if he got to the remedy stage. A finding of unjust enrichment does not necessarily imply that there is a constructive trust. The first remedy to consider is a monetary award: see Kerr, at para. 47.

[47] Evan has provided no evidence to support the contributions that he claims to have made to Adelaide and how they impacted its value. There is no direct evidence for the Court to measure the value of the benefits conferred on Sara by Evan. Because the Court cannot make this assessment, neither the constructive trust nor the monetary remedies are available to Evan: see Kerr, at para. 53.

[48] Evan claims the remedy of joint family venture. He argues that the contributions he made to the home were for the purposes of the parties’ joint accumulation of wealth over the duration of the relationship.

[49] A joint family venture is one of the available remedies where there has been a finding of unjust enrichment. Some courts have held it to be a consideration in the determination of unjust enrichment, but the more accepted approach, based on the framework outlined by the Supreme Court in Kerr, is that it is an available remedy when there has been a finding of unjust enrichment: Kyriacou v. Zikos, 2021 ONSC 7589 at para. 122.

[50] 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.

[51] I have found that Evan has not met the onus of proving unjust enrichment. He is not entitled to a remedy of joint family venture. Because this is a motion for summary judgment, I will examine the relevant facts and apply them to the four factors for joint family venture set out in Kerr to determine if the claim raises a genuine issue for trial.

Were the parties exerting a mutual effort?

[52] The parties lived together in Adelaide from February, 2020 to June, 2020, about four months. Sara purchased the home from Evan in March, 2020 for more than the appraised value.

[53] Even during the short period of cohabitation, there is no evidence that the parties worked together to preserve and grow the asset of the home. I find that there was no mutual effort.

Were the parties economically integrated?

[54] The parties had no joint bank accounts. They did not pool their incomes to pay for the carrying costs of the home or their joint expenses.

[55] I find that the parties were not economically integrated.

Was there actual intent to be domestic and economic partners?

[56] The parties had a short relationship. They were each employed throughout. They did not have joint funds. They did not support one another financially except for the period after separation when Sara paid to carry Adelaide while Evan resided there without her consent.

[57] Sara agreed to buy Adelaide to prevent Evan from losing it to foreclosure. Three months later the parties separated. Thereafter, Sara tried to move Evan out of the home so she could sell it and realize the equity. He refused. There is no evidence that Sara intended the home to be a shared asset.

[58] I do not find that the parties intended to be domestic and economic partners.

Was Family Prioritized?

[59] The parties were in a relationship for about one year. They had no children. Sara denies that she stood in the place of a parent to Evan’s children from a prior relationship. There is no evidence that she did so.

[60] Based on the short period of their cohabitation, I find that the parties did not prioritize their family or work to support it and each other.

[61] I have assessed the relevant circumstances and the four factors in Kerr. I find that Evan has not established on a balance of probabilities that he and Sara were engaged in a joint family venture.

The Cohabitation Agreement

[62] Evan argues that he is entitled to an interest in Adelaide based on the Cohabitation Agreement dated February 28, 2020. Sara argues that the contract is invalid because it does not meet the requirements of the Family Law Act or the requirements of contract law.

[63] Section 55(1) of the FLA states that a domestic contract is unenforceable unless it is made in writing, signed by the parties and witnessed. Sara denies that she signed the e-mail which is the alleged contract. The parties’ signatures are not witnessed. There is also no evidence of independent legal advice.

[64] Sara states that there was no meeting of the minds on the essential terms of the contract. She refers the court to a subsequent e-mail sent by Evan, not signed, which contains additional terms. These terms are not related to Adelaide, but Sara argues that they demonstrate the earlier e-mail was not intended to be final or binding.

[65] Sara also argues that the contract is invalid for want of consideration. The terms of the contract state that Sara will purchase Adelaide for a value higher than the appraised value and also give Evan a 25% interest in the property. This, she states, results in a gift to Evan of about $95,000 for no consideration.

[66] The purpose of s. 55(1) is to ensure formality in the execution of domestic contracts: to confirm that it was signed by the parties and to protect against coercion and duress. The Court may relax the strict requirements where it is satisfied that the parties both signed the agreement, both understood the agreement and the obligations imposed, where the terms are reasonable and where there was no unfairness in the negotiation and the execution. See: Gallacher v. Friesen, 2014 ONCA 399 and Virc v. Blair, 2014 ONCA 392.

[67] Sara denies signing the document. Evan argues that she did. He provides no evidence regarding the circumstances of the negotiation and signing or an explanation of why Sara would agree to pay him more than the appraised value and hold 25% of the value (including any appreciation to the date of separation) in trust for him.

[68] The onus is on the party seeking to rely on the contract to prove its validity. Evan has not met his burden of proof. I accept Sara’s evidence that she did not sign the contract. It does not meet the formal validity requirements of s. 55(1) of the FLA.

Is there a Genuine Issue Requiring a Trial?

[69] On a motion for summary judgment both parties are obligated to put their “best foot forward”. In Landrie v. Congregation of the Most Holy Redeemer, 2014 ONSC 4008, [2014] O.J. No. 3132 (Ont. S.C.J.), Perell, J. stated:

“.... Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will respectively present at trial. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing.”

[70] Rule 16(6) and Hryniak, supra, at para. 66 confirm that the court shall grant summary judgment based on the evidence before it if it is satisfied that such evidence discloses no genuine issue requiring a trial with respect to a claim or a defence.

[71] On a motion for summary judgment, the moving party must establish a prima facie case that there is no genuine issue requiring a trial. The onus then shifts to the responding party.

[72] Sara has demonstrated a prima facie case that there is no genuine issue for trial. The onus then shifts to Evan.

[73] Rule 16(4.1) requires that a party who is responding to a summary judgment motion: may not rest on mere allegations or denials, but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

[74] Evan failed to file any evidence setting out facts to show there was genuine issue for trial. He did not discharge his obligation to put his best case forward. He chose not to cross-examine Sara on her affidavits filed, thereby leaving her evidence uncontradicted and unchallenged.

Disposition

[75] For the reasons set out above, I find that there is no genuine issue requiring a trial. Sara’s motion for summary judgment is granted.

[76] If the parties cannot agree on costs, they may each serve and file costs submissions of no more than two pages exclusive of offers to settle and Bills of Costs within 20 days. Submissions shall be sent to AnnaMaria.Tiberio@ontario.ca.

E.L. Nakonechny, J. Released: March 29, 2022