COURT FILE NO.: FC-21-00328

DATE: 20221129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Terry Huisman

Applicant

• and -

Bruce Elliott

Respondent

Mr. A. Sarnowski, for the Applicant

Self Represented

HEARD: November 25, 2022

The Honourable Mr. Justice J.R. Henderson

DECISION ON MOTION

1This is the applicant’s motion for summary judgment wherein the applicant requests a final order for:

1. Sale of the property known as Unit 314, 198 Scott Street, St. Catharines, Ontario (“Scott Street”);

2. Equal division of the net proceeds of the sale of Scott Street as between the applicant and the respondent, with credit for the partial payment of $70,000 paid by the respondent to the applicant in April 2021; and

3. Occupation rent regarding the respondent’s occupation of Scott Street from November 2020 to the present time.

2The respondent submits that there are genuine issues that require a trial, and accordingly summary judgment should not be granted. In particular, the respondent submits that he is entitled to compensation for work that he did at the applicant’s property known as 64 Crescentwood Drive, St. Catharines, Ontario (“Crescentwood”), that the respondent has not been compensated for his personal property that remains in the applicant’s possession, and that the partial payment of $70,000 was intended to be payment in full for the applicant’s interest in Scott Street.

THE BACKGROUND FACTS

3The parties cohabited in a relationship from June 2016 to November 2020. At the commencement of their cohabitation, they lived in a property that was owned by the applicant on Vansickle Road in St. Catharines. In November 2016 the applicant sold the Vansickle Road property and purchased Crescentwood in her name alone. The respondent did not contribute to the purchase price for Crescentwood. The parties continued to cohabit thereafter at Crescentwood.

4The parties executed a written cohabitation agreement in June 2016. After Crescentwood was purchased, the cohabitation agreement was amended in writing on April 30, 2018, to include a reference to Crescentwood.

5The amended cohabitation agreement refers to Crescentwood as “Terry’s Home”. Paragraph 8 of the amended cohabitation agreement reads, "Terry's Home is and shall always remain owned solely by Terry." Paragraph 10 reads, “Bruce acknowledges that he made no direct financial contribution toward the cost of acquiring Terry’s Home.” Paragraph 12 reads in part, “The financial benefits given by this agreement to Bruce are in recognition of, and represent full and final settlement of Bruce’s right to be compensated for his time and effort spent renovating Terry’s Home….”

6In July 2020 the parties decided to purchase Scott Street. The parties agreed that Scott Street would be a joint investment, that they would renovate the property and sell it, and that they would equally share the net proceeds of the sale. They each contributed $108,000 toward the purchase price. They made equal monetary contributions toward the renovations and they each did work related to the renovations.

7By approximately November 2020 the renovations had been completed on Scott Street, but the parties disagreed as to how they would proceed. The respondent wanted to keep and rent out Scott Street, whereas the applicant wanted to sell Scott Street.

8The parties separated in November 2020 at which time the respondent moved into Scott Street and the applicant remained at Crescentwood. The respondent has continued to reside at Scott Street since that time.

9Thereafter, there were some negotiations between the parties with respect to the respondent purchasing the applicant’s interest in Scott Street. This led to the respondent paying the sum of $70,000, by cheque, to the applicant in April 2021.

THE LAW

10Rule 16 of the Family Law Rules governs the process for a summary judgment motion. Rule 16(6) states “If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.”

11The two-part test for determining summary judgment motions is set out in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.J. No. 7. First, the motions judge should consider the evidence, without using the new fact-finding powers, to determine if there is a genuine issue requiring a trial. If there is no genuine issue requiring a trial, summary judgment should be granted. Second, if there appears to be a genuine issue, the motions judge is entitled to use the new fact-finding powers to determine if the need for a trial can be avoided. If the motions judge is able to achieve a fair and just result on the evidence presented on the summary judgment motion, then a trial will not be required.

ANALYSIS

12Regarding the applicant’s interest in Scott Street, the parties agree that they purchased the property together in July 2020 and that they each contributed equal amounts of money toward the purchase price and the renovations to the property. They also agree that they each contributed work toward the renovation of the property.

13Although the title to Scott Street was taken in the respondent’s name, the parties agree that this was a joint investment and that each of them is entitled to 50 percent of the equity in Scott Street. The respondent acknowledged the applicant’s equal interest in Scott Street in his documents and in court. Further, the respondent acknowledged that the parties attempted to negotiate the purchase price of the applicant’s share in Scott Street on the assumption that the applicant would be entitled to 50 percent of the equity in Scott Street.

14I find that the payment of $70,000 from the respondent to the applicant was a partial payment, not a final payment. The respondent deposed that they agreed to a final purchase price (the value of Scott Street) of $280,000 and that the applicant accepted a payment of $70,000. However, the email exchange between the parties clearly shows that the parties had not agreed on the value of the applicant’s interest and that the parties were discussing prices far in excess of $280,000.

15Furthermore, the applicant sent an email to the respondent, dated April 25, 2021, stating that she would cash his cheque for $70,000, but she wrote, “Just to be 100% clear, I am cashing this cheque in partial settlement of the outstanding debt that you owe me.” Still further, the respondent stated in open court that he paid $70,000 to the applicant, and then waited to hear if the final figure was more or less than this amount.

16Therefore, I find that the parties did not reach an agreement with respect to the value of the applicant’s interest in Scott Street. I find that the $70,000 payment made in April 2021 was a partial payment, not a payment in full satisfaction of the applicant’s interest in Scott Street.

17For these reasons, I find that there is no genuine issue for trial regarding the applicant’s claim for an interest in Scott Street. I find that the applicant is entitled to a 50 percent interest in Scott Street. I also find that the respondent has paid $70,000 to the applicant as partial payment for her interest in Scott Street. Furthermore, I find that if the parties are unable to reach an agreement for the respondent to purchase the applicant’s interest in Scott Street, the property should be listed for sale and sold.

18Regarding the respondent’s claim that he is entitled to compensation for work done at Crescentwood, the applicant relies on the cohabitation agreement. In my view, the terms of the amended cohabitation agreement confirm that the respondent contributed time and effort regarding Crescentwood, but that he made no direct financial contribution. However, the amended cohabitation agreement clearly states that respondent is not entitled to any further compensation for his time and effort regarding Crescentwood.

19In the pleadings the respondent does not challenge the validity of the amended cohabitation agreement. Both parties received independent legal advice prior to signing the cohabitation agreement and the amended cohabitation agreement. I accept that the amended cohabitation agreement meets all of the procedural requirements for a valid domestic agreement.

20The respondent relies on his testimony that at the time the parties purchased Scott Street there was a verbal agreement to the effect that the respondent would be compensated for his work at Crescentwood. The applicant denies that there was any such verbal agreement. In my view, this is a genuine issue, but one that I can resolve on this motion.

21The onus is on the respondent to prove the existence of a verbal agreement and the terms of that agreement. He cannot do so. The respondent is unable to provide any particulars as to the precise dates of the verbal agreement or the precise terms of the agreement. Moreover, there is nothing to support his bald allegation of a verbal agreement.

22Furthermore, the parties are bound by the terms of the amended cohabitation agreement. Paragraph 22 of the amended cohabitation agreement reads “This contract may be amended only by a domestic contract between the parties.” There is no evidence of any domestic contract that amends the amended cohabitation agreement.

23Therefore, I find that the respondent is not entitled to any further compensation for any work that he may have done regarding Crescentwood.

24There are two remaining issues that I cannot resolve on this motion, namely the applicant’s claim for occupation rent, and the respondent’s claim for compensation for, or the return of, personal items.

25Regarding occupation rent, the applicant may be entitled to occupation rent, but the evidence before this court is insufficient to allow me to calculate the quantum of the occupation rent. I do not have particulars of any expenses paid by the respondent that might be for the benefit of both parties, such as condominium fees, property taxes, and property insurance. Thus, this issue cannot be resolved on this summary judgment motion.

26Regarding the respondent’s claim for compensation for, or the return of, his personal items, there are disputes as to what items were left at Crescentwood, whether the respondent was given an opportunity to pick them up, whether the applicant still has possession of those items, and the value of those items. Again, these issues cannot be resolved on this summary judgment motion as I have very little evidence on these points.

CONCLUSION

27For the above-mentioned reasons, I grant partial summary judgment as follows:

1. The applicant is entitled to a 50 percent interest in Scott Street, less the $70,000 partial payment made by the respondent in April 2021;

2. The respondent shall have 60 days from the date of this decision to negotiate an agreement with the applicant for the purchase of the remainder of the applicant’s interest in Scott Street;

3. If the parties do not reach an agreement for the purchase of the applicant’s interest in Scott Street within 60 days of the date of this decision, Scott Street will be listed for sale and sold forthwith. The net proceeds of the sale will be divided equally between the parties, with credit for the $70,000 partial payment already made;

4. The respondent’s claim for compensation regarding work that he did at Crescentwood is dismissed;

5. The remaining issues regarding occupation rent and the respondent’s personal property shall proceed to trial in accordance with the Rules of Civil Procedure, subject to any further motion for summary judgment.

28Regarding costs, I accept that the applicant was partially successful on the summary judgment motion. Accordingly, I will allow costs at approximately 75 percent of partial indemnity costs. I fix costs at $7,500 all-inclusive payable by the respondent to the applicant within 90 days.

J. R. Henderson J.