COURT FILE NO.: FS-21-102001-00
DATE: 2022-10-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
VIJAI RAMNARINE
Roma S. Mungol, for the Applicant
Applicant
- and -
ANITA DINDYAL
Self-represented
Respondent
HEARD: September 29, 2022, By video-conference, at Brampton, Ontario
Price J.
Reasons For Order
NATURE OF MOTION
[1] The Applicant, Vijai Ramnarine (“Mr. Ramnarine”), is the former husband of the Respondent, Anita Dindyal (“Ms. Dindyal”). He brings this motion pursuant to the Order of this Court dated June 13, 2022, which granted him leave to move for an Order for the distribution of the net sale proceeds of sale of the parties’ jointly owned investment condominium (“the property”) located at 30 Shore Breeze Drive, Suite 3821, Toronto, Ontario, in equal shares between the parties.
[2] Ms. Dindyal objects to the release of the sale proceeds before payment to her of management fees which she claims for the time she says she spent to manage the property from the time when the parties entered into the Agreement of purchase and sale to sell the property until 2021, when the transaction closed. Mr. Ramnarine disputes Ms. Dindyal’s claim for management fees.
BACKGROUND FACTS
The parties’ marriage and separation
[3] Mr. Ramnarine and Ms. Dindyal were married on August 30, 1997. Their relationship gradually deteriorated over the years, and they separated after 19 years, in August 2016.
[4] There are two children of the marriage, namely, T.R., who is now almost 22 years old, and A.R., who is 18.
[5] The parties’ relationship towards the later part of the marriage was volatile. Ms. Dindyal accused Mr. Ramnarine of assaulting her in August 2016. He was charged with assault and released on bail. The charge was later withdrawn when Ms. Dindyal provided a statement in writing to the Crown that she had lied and that Mr. Ramnarine had never assaulted her as she had alleged.
[6] The parties reconciled for a short period and then separated. They continued to live separate and apart in the matrimonial home.
[7] When the parties separated, there was no equalization issue between them. The former matrimonial home was sold in July 2019. The parties divided the net proceeds of sale equally between them and went to live in investment properties they had bought during the marriage in their sole names. They amicably resolved all the property issues save for issues pertaining to the property.
The parties’ children
[8] The parties' daughter, A.R., began undergraduate studies at the University of Western Ontario this fall, and T.R. has been accepted to Sheridan College. During the marriage, the parties saved approximately $42,000.00 in RESPs for their children's education. There is approximately $32,500.00 of this remaining in the RESPs, as some recent payments have been made for A.R.’s school fees. T.R. had previously registered at Sheridan College to take a course in electronics but dropped out after one semester. T.R. then started another course and dropped out again.
[9] The parties agree that the balance remaining in the RESPs will be used for the children's education. Ms. Dindyal wants to have a clause in the parties’ agreement or in the Court Order that the monies can be used for any purpose for the children, such as purchasing a car. The Applicant objects to this as a car is not a necessity. The children already have a car, even though it is not new.
[10] Neither of the children have applied for support from the Ontario Student Assistance Program or for other loans to assist with their educational expenses.
[11] At the hearing, Ms. Dindyal advised the Court that she wished to vary the Order of Justice Cheung of the Ontario Court of Justice dated July 13, 2021, which required Mr. Ramnarine to pay child support for the parties’ youngest child, by adding child support for the eldest child, who has a learning disability and would be beginning post-secondary studies in the fall.
[12] Mr. Ramnarine has agreed to Ms. Dindyal’s request that they enter into an Agreement whereby each of them will put aside $60,000.00 from their share of the sale proceeds for their children's education. Those monies are to be deposited into a joint bank account and not withdrawn unless they both agree.
[13] This Court advised Ms. Dindyal, who was self-represented, that she must either make a Motion to Change a Final Order in the Ontario Court of Justice using Form 15, or obtain a stay of the Ontario Court proceeding from that Court, and seek the relief in the present proceeding in the Superior Court.
The investment property
[14] In about 2014, the parties made a down payment on the property, which was then being built. The purchase of the property closed after the parties separated on June 15, 2020. The property was bought in joint names for $305,468.00, with the assistance of a mortgage from Computershare Trust Company of Canada of $305,468.00. The down payment for the property and closing costs were paid, equally by Mr. Ramnarine and Ms. Dindyal.
[15] Prior to closing, the parties obtained occupancy of the property in or about February 2022. They were required to give the Vendor five postdated cheques of $1,544.90 for rent until closing. Mr. Ramnarine provided these cheques without any contribution from Ms. Dindyal, on the understanding that Ms. Dindyal would repay him her half share once she has the money to do so. Only four of the cheques were cashed, for the following periods: February; March; April; and May, 2021, for a total of $6,179.60 for all four of the cheques, because in June 2021, the parties completed the purchase.
[16] Ms. Dindyal has not yet reimbursed Mr. Ramnarine for his half share of $3,089.80.
[17] At the hearing on June 13, 2022, the parties agreed to list the property for sale. They agreed on the listing realtor and on the lawyer who would assist them with the sale. They further agreed that Mr. Ramnarine, on the advice of their realtor, could retain contractors to perform cosmetic repairs, most particularly interior re-painting, for a maximum of $3,000.00, which would be reimbursed to him from the proceeds of sale. He was ordered to give Ms. Dindyal particulars of the repairs and proof of their cost.
[18] Mr. Ramnarine now says that Ms. Dindyal took over sole control of the property. It had been agreed, pursuant to the June 13, 2022 Order, that Ms. Dindyal would give him a set of keys to attend to the repairs to the property and to facilitate its sale. On closing, they were provided with two sets of keys, and it was agreed that Mr. Ramnarine would pick up his set at the same time Ms. Dindyal picked up hers.
[19] Mr. Ramnarine says that when he requested his set of the keys, Ms. Dindyal stated that she did not have a spare set, as well as that he should request his set from the tenants who were occupying the property and make a copy.
[20] It was agreed between the parties that they would rent the property, and the rental income therefrom be used to pay for the mortgage, which was $1,517.68, which included a portion for the payment of property and common expenses of $488.89.
[21] The rental income received was enough to cover the expenses on the property. That tenancy expired on May 1, 2021, and a new tenancy was entered into. However, rental income received from that tenancy was insufficient to cover all expenses. There was a deficit of $171.68 per month which Ms. Dindyal paid. At the hearing on June 13, 2022, Mr. Ramnarine agreed that he would reimburse Ms. Dindyal for his share of the deficit.
[22] The Tenants for the property were obtained through TFN Realty Inc., Brokerage. Both the Listing Agreements and the second Tenancy Agreement, dated May 30, 2021, were in the parties’ joint names.
[23] Ms. Dindyal began a proceeding in the Ontario Court of Justice in Brampton as File No. 564/20 in which she obtained a final Order from Justice Cheung dated July 13, 2021, for child support for the parties’ youngest child.
[24] Mr. Ramnarine began the present proceedings by Application issued on October 26, 2021. In it, he claims an Order for partition and sale of the property and for an Order that the net proceeds of sale be divided equally between them after deducting their legal fees for the sale, real estate commission, and ancillary sale costs.
[25] Before beginning the proceeding, Mr. Ramnarine approached Ms. Dindyal for her consent to sell the property, but Ms. Dindyal refused. On July 27, 2021, Mr. Ramnarine’s counsel wrote to Ms. Dindyal requesting her agreement to list the property for sale or, alternatively, to buy out his interest.
[26] Ms. Dindyal refused to give her consent to sell the property. She would only consent to the sale if Mr. Ramnarine agreed to put aside his half share of the sale proceeds for their two children. Mr. Ramnarine refused.
[27] Mr. Ramnarine made a motion for sale of the property. The motion was heard in part by this Court on June 13, 2022.
[28] The parties agreed at the hearing on June 13, 2022, that their real estate lawyer would hold the net proceeds of sale of the property in trust pending agreement in writing of the parties or further Order of this Court. The post-separation adjustments to each party’s share of the net proceeds, based on expenses that Ms. Dindyal had incurred in maintaining the property since the separation, were to be addressed and determined by this Court at a later motion for distribution of the net proceeds of sale of the property. Ms. Dindyal advised that she wanted the net proceeds held in trust for the benefit of the parties’ children. The Court imposed a timetable for the exchange of documents and directed that Mr. Ramnarine’s motion or distribution of the proceeds would be heard on September 29, 2022.
[29] Ms. Ramnarine had found tenants for the property and entered into an oral month-to-month lease with them pending the sale. The parties agreed that Ms. Ramnarine would continue to collect rent from them, obtain their approval for the cosmetic repairs, and apply the rent received from them to the ongoing expenses of the unit. She was to produce evidence of those expenses and the payment of them to Mr. Ramnarine. Both parties were to contribute equally to the payment of any excess of such expenses over the rent that Ms. Dindyal received and applied to their payment.
[30] Ms. Dindyal agreed to give Mr. Ramnarine access to the unit to enable him to inspect the premises and arrange for the cosmetic repairs. Ms. Dindyal was to give Mr. Ramnarine the tenants’ contact information and a key for entry.
[31] The second tenancy terminated at the end of May 2022. Ms. Dindyal then rented the property on a short-term lease by way of an oral agreement until it was agreed to sell the property pursuant to the Order of June 13, 2022.
[32] The property was listed for sale pursuant to the Court Order. It sold for $600,000.00 on August 3, 2022. The transaction closed on September 1, 2022.
THE ISSUES
[33] Mr. Ramnarine’s motion requires the Court to determine the following issues:
a) Is Mr. Ramnarine entitled to an Order at this time for the equal division and release of the net sale proceeds of the property located at 30 Shore Breeze Drive, Suite 3821, Toronto, Ontario to Mr. Ramnarine and Ms. Dindyal?
b) Is Ms. Dindyal entitled to a holdback from the net proceeds of sale for the management fees she claims in respect of the property and, if so, what is the appropriate amount of holdback?
POSITIONS OF THE PARTIES
Mr. Ramnarine’s position
[34] Mr. Ramnarine submits that after the payment of the mortgage, real estate commission, and standard adjustments on closing, the net proceeds should be divided equally between him and Ms. Dindyal. He was unable to confirm the amount of the net proceeds of sale until after closing. Each of the parties has provided a schedule of all expenses paid by each of them from the occupancy of the property to closing.
[35] Mr. Ramnarine says that when the parties bought the property, they were still married, and he submits that a joint owner of property cannot claim management expenses from the other joint owner as the owners have a joint responsibility towards the property they own. Further, the owners cannot claim such fees as a business deduction for tax purposes. Such fees can only be claimed if they are paid to a professional management company hired to manage the property.
[36] Mr. Ramnarine argues that there is no justification for the proceeds of sale not to be distributed equally to the parties at this time, after deducting the mortgage, taxes, legal fees, real estate commission, adjustments on the sale, and the reasonable expenses they incurred during acquisition and ownership of the property. He further submits that once this issue is determined, the issue of equalization of net family property will be resolved.
Ms. Dindyal’s position
[37] Ms. Dindyal submits that during the marriage, the property was bought as an investment for the children and that the parties had agreed that it would be used as collateral for the children’s benefit. Mr. Ramnarine disputes this. It is his position that the property was bought as an investment property to make money for the parties and that the net proceeds, after expenses, were to be divided between them.
[38] Ms. Dindyal is claiming management fees for herself at the rate of $60.00 per hour, for a total of $39,600.00 from 2014 to 2021. She has attached, as exhibit "F", the management fees she is claiming. Mr. Ramnarine disputes Ms. Dindyal’s claim for management fees. He says that the parties never made any agreement, orally or in writing, to this effect.
[39] Ms. Dindyal argues that Mr. Ramnarine never participated in the purchase of the property and that she did everything, which Mr. Ramnarine denies. He says that they bought the property as joint tenants and jointly entered into the mortgage. The only time they attended at the building site, he says, was to inspect the property prior to occupancy. He submits that Ms. Dindyal’s claim is frivolous and without merit, and he seeks an Order dismissing it.
DUTY TO SELF-REPRESENTED LITIGANTS
The obstacles to Ms. Dindyal’s position in the motion
[40] Ms. Dindyal, who is self-represented, faces substantive, procedural, and evidentiary obstacles in this motion.
a. Substantive obstacles
[41] While a joint tenant is not entitled to charge management fees to their co-tenant, Ms. Dindyal’s claim is essentially that she expended time and labour into the maintenance of the property which, if not compensated, would result in Mr. Ramnarine being enriched at her expense without any juridical reason. Additionally, she argues that the net proceeds are impressed with a trust in that she and Mr. Ramnarine had an oral contract to use the net proceeds for the benefit of their children and, in particular, for their education.
[42] If Ms. Dindyal were represented by a lawyer, it is likely the lawyer would have framed her position based on principles of breach of contract, constructive trust, unjust enrichment, and a trust for the benefit of the children, rather than as a claim by one joint owner against the other for management fees.
b. Procedural obstacles
[43] If Ms. Dindyal were represented by a lawyer, her lawyer would likely seek to adjourn the motion and leave to amend her Answer to advance the allegation she made at the hearing of the motion, to the effect that a contract existed between her and Mr. Ramnarine to create a trust for the benefit of their children, and to assert a claim to a constructive trust interest in Mr. Ramnarine’s share of the net proceeds of sale based on the principle of unjust enrichment. She would then have the necessary basis, procedurally, for advancing the position she asserted at the hearing of this motion.
c. Evidentiary obstacles
[44] When the hearing of the motion began, Ms. Dindyal’s affidavit had not been uploaded to CaseLines, the electronic platform that the Court employs to give the judge hearing a motion access to the documents filed by each party. Ms. Dindyal sent her affidavit to the court clerk, as an attachment to an e-mail. However, the affidavit was neither sworn nor affirmed.
[45] The affidavits the parties filed contained conflicting allegations of fact upon which neither had cross-examined the other. The Court has frequently commented on the challenge of making findings of fact based on conflicting affidavits when the evidence they contain has not been tested by cross-examination. See: Ziskos v. Miksche, 2007 46711 (ON SC), per Spies J., at para. 44; Vopni v. Norris, (1994) 73 O.A.C. 305 (Ont. Div. Ct.) at paras. 23-27; Finch v. Butler, 2010 ONSC 4796, per DiTomaso J., at para. 52; McNutt v. Draycott, 2014 ONSC 5363, per Gray J., at para. 21 and 40; Lo Giacco v. Papadopoulos, 2005 CarswellOnt 832, per Hoilett J., at para. 4; Compresseurs Gagnon Inc. v. Max Auto Supply Ltd., 1998 CarswellOnt 1121, per curiam, at para. 1; Smith v. Smith, 2009 CarswellOnt 5688, per Daley J., at paras. 8 and 15.
[46] If Ms. Dindyal were represented by a lawyer, it is likely that her lawyer would have requested an adjournment of the motion to enable her to have her affidavit sworn or affirmed and uploaded to CaseLines, as well as to permit cross-examination on the affidavits.
[47] In Pintea v. Johns, 2017 SCC 23, at para. 4, the Supreme Court of Canada unanimously endorsed the Principles on Self-Represented Litigants and Accused Persons (“the Principles”) published by the Canadian Judicial Council in 2006. See: Canadian Judicial Council, archived version: http://www.scc-csc.ca/cso-dce/2017SCC-CSC23_1_eng.pdf).
[48] The Principles ensure that self-represented litigants are provided with fair and equal treatment in the courts. They require:
• Fair access to justice – This requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient, and accommodating. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons. (The Principles, page 2)
• Some leniency for minor deficiencies – Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case. (The Principles, page 4)
• Judges have a responsibility to inquire – Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications before the self-represented person makes critical choices. (The Principles, page 7)
• Rules should not be used to hinder – Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons. (The Principles, page 7)
[49] In Girao v. Cunningham, 2020 ONCA 260, at para. 149, the Court of Appeal for Ontario reminded us that the Principles, as endorsed and outlined in Pintea, need to be followed throughout the entire proceeding. They affect how the self-represented litigant should be treated in the courtroom and require that the court be flexible (while ensuring impartiality) in terms of procedures and the admissibility of evidence when one party is self-represented.
[50] Mr. Ramnarine was given leave to make a motion for the distribution of the net proceeds of sale of the property after deducting, among other things, the expenses that had been incurred in its management. The Court proceeded on the assumption that the parties substantively agreed about their respective roles in the management of the property, the expenses that were to be deducted, and how the net proceeds were to be distributed between them.
[51] It was evident at the hearing of the motion that the parties are not in agreement on those matters. Moreover, there are substantial factual issues in dispute between them that can only be adjudicated fairly after further production and questioning. I refer to the amount of time Ms. Dindyal spent managing the property and how that would be reflected in their respective shares of the net proceeds and the parties’ alleged agreement as to how the net proceeds were to be used.
[52] This is not a motion for summary judgment dismissing Ms. Dindyal’s claims or allowing Mr. Ramnarine’s claim for half of the net proceeds of sale to be distributed to him. If he had sought that relief, it would have been incumbent on both parties to put their best foot forward and provide cogent evidence to support their position that those are genuine issues requiring a trial. (Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 32) Summary judgment cannot be obtained under the guise of a motion for distribution of the net proceeds of sale of a property. Ms. Dindyal should have a fair opportunity to obtain legal advice as to the way she has framed her Answer, and as to the evidence she would require to support a claim for a constructive trust interest in Mr. Ramnarine’s share of the net proceeds, or the trust she says the parties agreed to create on behalf of their children.
CONCLUSION AND ORDER
[53] For the foregoing reasons, it is ordered that:
Mr. Ramnarine’s motion is dismissed, without prejudice to his right to renew the motion, if he wishes, provided that such a renewed motion, if made, shall not be heard until after January 15, 2023. In that event, both parties have leave to deliver additional evidence in the motion.
Ms. Dindyall has leave to serve and file an amended Answer by October 31, 2022.
Mr. Ramnarine has leave to serve and file a Reply by November 14, 2022.
Each of the parties shall produce to the other, by November 30, 2022, an affidavit with the evidence they rely on in support of, or in opposition to, Ms. Dindyal’s claim for a constructive trust interest, or for a trust for the benefit of the parties’ children.
The parties have leave to conduct questioning, limited to two hours each, by December 16, 2022.
The parties shall attend a mediation of the remaining issues by January 15, 2023.
If the issues in dispute are not resolved by January 15, 2023, the parties shall, as previously ordered, attend a Settlement Conference on March 1, 2023, at 10:00 a.m.
Price J.
Released: October 7, 2022
COURT FILE NO.: FS-21-102001-00
DATE: 2012-10-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
VIJAI RAMNARINE
Applicant
- and –
ANITA DINDYAL
Respondent
REASONS FOR ORDER
Price J.
Released: October 7, 2022