Surridge v. Ross, 2022 ONSC 7064

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-20-8304 DATE: 20221214

RE: Phillip Edward Glenn Surridge, Applicant AND: Cassandra Lorenne Ross, Respondent

BEFORE: Justice R. Raikes

COUNSEL: Aaron Drury - Counsel, for the Applicant John Kirby - Counsel, for the Respondent

HEARD: September 6, 2022

ENDORSEMENT

Nature of Motions

1The Applicant moves for summary judgment pursuant to Family Law Rule 16. He seeks an order that the Respondent be paid $49,183.55 and he receive the balance of funds currently held in trust from the sale of 39 D’Andrea Trail, Sarnia (hereafter “the property”). Alternatively, he asks that the Respondent receive $65,637.34 from the proceeds of sale and he receive the balance.

2The Applicant’s claim is predicated on unjust enrichment. He paid the down-payment. He paid the mortgage when they were living at the property together and all property expenses including the mortgage for 3.75 years after they separated. He also paid for improvements to the property after she left. His disproportionate contribution to the property should be compensated by an increase in his share of the sale proceeds and a corresponding reduction in hers.

3The Respondent opposes the Applicant’s motion and brings her own motion seeking partial summary judgment. The Respondent asserts that the Applicant’s materials acknowledge that she is entitled to a minimum of $49,183.55 from the sale proceeds. Those funds should be released to her now. The balance should stay in trust until the court determines whether occupation rent is payable and whether she is entitled to a full 50% share of the proceeds.

4The Respondent was a 50% owner on title, and she asserts that, as such, she should get half of the sale proceeds. She should also get an unspecified amount for occupation rent for the period post-separation when the Applicant lived on the property. The issue of occupation rent should be determined at a trial.

5Thus, there are competing summary judgment motions. The Applicant’s motion, if granted, would dispose of all issues including occupation rent. The Respondent’s motion, if granted, would provide for a partial payment to the Respondent with occupation rent and division of the balance in dispute.

Law- Summary Judgment

6Summary judgment is governed by r. 16 of the Family Law Rules. The applicable test is whether there is no genuine issue requiring a trial: r. 16(6). The party moving for summary judgment bears the burden of proof: Sanzone v. Schechter, 2016 ONCA 566, at para. 30; r. 16(4).

7A party responding to a motion for summary judgment cannot rest on mere denials or allegations but must set out in an affidavit or other evidence the specific facts showing that there is a genuine issue for trial: r. 16(4.1).

8On a summary judgment motion, each party is required to “put its best foot forward”. A party cannot succeed on summary judgment by saying that further or better evidence will be available in the future. The motion judge is entitled to assume that the evidence before him or her is the best evidence available: Chao v. Chao, 2017 ONCA 701.

9The Supreme Court of Canada, in its seminal decision on summary judgment, in Hryniak v. Mauldin, 2014 SCC 7 established that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. 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: Chao.

10The powers available to a judge for the purpose of determining whether there is a genuine issue requiring a trial were expanded by amendments made to the Family Law Rules in 2015. Rules 16(6.1) and (6.2) state:

16(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 the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

(6.2) The court may, for the purpose of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

11In Hryniak, the Supreme Court laid out the following analytical framework:

1. first, the motions judge should take a liberal approach only on the evidence before him or 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

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

(See: Hryniak, at para. 47; Philion v. Philion, 2015 ONSC 4255, at para. 17.)

12In Philion, at para. 19, Kent. J. wrote:

19Both the case law and the rules send a message to those of us involved in the administration of justice to, where possible, deal with matters expeditiously balancing procedure with the interest of access to justice by providing a timely, proportionate and affordable process while determining a fair and just result for the parties.

Undisputed Facts

13The following facts are not in dispute:

1. The parties never married.

2. The property was purchased on October 30, 2014.

3. Title was taken in their names jointly.

4. They used the same lawyer for the purchase, Tyler Casselman.

5. They did not have any form of written agreement between them regarding their respective interests in the property before or after purchase of the property.

6. They used their first-time homebuyers’ tax credit to reduce the Land Transfer Tax payable.

7. The purchase price was $251,500.

8. The Applicant withdrew $25,000 from his RRSP to pay the down-payment.

9. The Respondent did not contribute any money to the down-payment.

10. They jointly obtained first mortgage financing from the Bank of Nova Scotia for the balance of the purchase price.

11. The original mortgage loan was $231,782. The initial term was five years.

12. At the date of purchase, the Applicant’s income was much higher than the Respondent’s. She earned $27,637 in 2014 as a pharmacy technician.

13. The parties resided together at the property from October 30, 2014 to February 10, 2016 when they separated.

14. The Respondent left the property. The Applicant remained in the home until it was sold in November 2019.

15. The property sold for $395,000 less adjustments.

16. The Applicant made all mortgage and property tax payments during the time the parties cohabited and made all payments for the property including the mortgage and property taxes after they separated.

17. The Applicant re-partnered in 2017. He and his partner, Vanessa Voisey, resided on the property between 2017 and the date of sale. They have one child together.

18. The sale agreement was amended shortly before closing to allow for inspection, and completion of work to repair a moisture issue including repair of drywall and trim in the basement. Both parties signed the amendment as vendors.

19. The net sale proceeds were $163,945.16. Those funds continue to be held in trust by Mr. Casselman pending resolution of this litigation.

Disputed Facts

14The Applicant contends that there are only two factual issues in dispute: 1) whether the Respondent was needed to get the original mortgage as she contends, and 2) whether the repairs made to the basement before closing were necessary. He contends that both factual issues can and should be answered in his favour on the evidence.

15The Respondent submits that the factual disputes are not as limited as the Applicant contends. She asserts that there are several facts in dispute including,

1. whether the Applicant applied for a mortgage on his own behalf;

2. whether he could get financing without the involvement of the Respondent;

3. whether the financing he could get without her was on the same favourable terms;

4. whether there was ever a common intention to own the property except as joint tenants with equal beneficial ownership;

5. her contribution to the household;

6. the events leading up to the sale of the property;

7. her cooperation in securing the best price possible;

8. whether occupation rent is payable and over what period of time; and

9. what is the appropriate market rent payable.

16Obviously, there is some overlap in the areas of factual dispute alleged by the Respondent with those asserted by the Applicant, most notably how and why the mortgage was obtained jointly.

17I will examine these alleged factual disputes with a view to determining whether there is, in fact, a dispute, whether that dispute is material to the final outcome and, if so, whether the dispute can and should be resolved through the powers available under r. 16(6.1) or by means of oral testimony.

18I start first with the mortgage financing for the purchase of the property. The Respondent deposes that the Applicant had a terrible credit record. He tried to get mortgage financing through RBC and the Bank of Nova Scotia on his own but was declined. Without her, he would not have been able to get the needed financing or at least not on the same favourable terms.

19He disputes that history. He did not apply for mortgage financing on his own from the Bank of Nova Scotia. He was not turned down for such financing. He exhibits a letter from a Bank of Nova Scotia employee to the effect that there is no record of the Applicant being declined for mortgage financing and based on the information at the time, he would have qualified for same without the Respondent.

20No affidavit was filed by the Bank employee who wrote the letter. That employee was not involved in the mortgage transaction when they purchased the property. The Respondent suggests that the employee who wrote the letter may be a friend of Ms. Voisey which Ms. Voisey denies.

21In my view, the letter from the Bank employee is inadmissible. The purported evidence of the Bank employee as set out in her letter is appended as an exhibit to an affidavit sworn by the Applicant; as such, it is hearsay. It would not be admissible in that form at trial. Merely attaching a letter to an affidavit does not make the content of the letter admissible: r. 16(5); Windsor-Essex Children’s Aid Society v. D.(S.M.), 2011 ONCJ 311, [2011] O.J. No. 2858 (Ont. C.J.). No reason is given to explain why the employee did not swear an affidavit. By attaching the letter to an affidavit, the Applicant has effectively insulated the author from oral examination.

22There is a clear factual dispute as to whether he applied for mortgage financing and was turned down, and whether he could have obtained the mortgage financing for the purchase without the Respondent as co-borrower. Is that factual issue material to the outcome of the merits of the dispute? For reasons explained below, I am satisfied that it is not.

23It is indisputable that: 1) she was a co-borrower, and 2) she was jointly liable to the Bank on the mortgage. Whether he could have obtained a mortgage without her is hypothetical: he did not. They obtained a joint mortgage on property they held jointly. It cannot be denied, nor is it, that for the period 2014-2019, the Respondent was liable on the mortgage. If payments were not made, she faced default proceedings just as the Applicant did, including an action on her covenant.

24I turn next to the necessity for the basement repair when the property was sold. The Respondent deposes that:

1. There was never any discussion or consideration that she would be less than a 50-50 owner. That is what title shows.

2. When he asked her to sign the document amending the sale agreement, the Applicant referred to her bearing her “half share” of the cost to repair the basement. That reflects that she continued to have a 50% interest in the property.

3. She had an opinion from an unnamed engineer that the repairs were unnecessary, and the Applicant acknowledged as much in messages to her.

4. She wants to obtain expert evidence as to the need for the basement repairs.

25The Applicant points to her signature on the amendment to the sale agreement. She agreed to the work being done at their expense. He asserts that that is dispositive of this issue.

26I observe that the motions before me were served in March-April 2021. No expert evidence has been adduced notwithstanding the requirement on the parties to put their best foot forward at the summary judgment motion. Her evidence that she wants to obtain expert evidence amounts to little more than there will be better evidence at trial. Further, the vague suggestion in her affidavit of an opinion from an unnamed engineer is wholly inadequate and is hearsay for which no source is provided.

27Further, I agree with the Applicant that the suggestion that the basement repairs were not needed is irrelevant. The buyers asked for the amendment. The parties including the Respondent could have declined the amendment and taken their chances that the sale would be lost. They did not. They both signed and agreed to bear the cost. Any dispute as to the necessity for the repair is a red herring.

28The remaining areas of factual dispute raised by the Respondent can be grouped into the following categories:

1. She assisted in obtaining a fair price. But for her, he would have sold the home for far less to a friend.

2. The original intent that each side would own 50% of the beneficial interest in the property.

3. Although he paid the down-payment and the mortgage while she resided there, she contributed financially to other household expenses.

4. He should pay occupation rent for the period he lived in the house post-separation.

29I agree that there are factual disputes about the events leading to the sale of the property; however, they are not material to the issues to be decided. The amount obtained from the sale is what it is. The net proceeds are not disputed. No one is suggesting that but for the other party’s actions, the net proceeds would be higher. Even accepting her version, the result is the same.

30The Respondent deposes that:

• they looked at roughly 15 houses before deciding to make an offer to purchase the property.

• She went on title as a joint owner.

• She signed the mortgage as mortgagor, not guarantor.

• They represented to others that the property was “our house”.

• During their cohabitation at the property, he paid the mortgage and utilities on the property while she contributed to household expenses including, but not limited to, Internet, pet care and groceries.

• After separation, her credit was tied up in the property which prevented her from buying another property and building equity elsewhere.

• She incurred additional housing costs.

• After she moved out, the Applicant stayed in the home, eventually residing there with his new girlfriend.

31I do not read the Applicant’s evidence to say that at the time of purchase there was an intention that she would be anything but a 50% joint owner of the property. That is what the title said. That is what the lawyer’s reporting letter stated. The Applicant does not appear to me to be arguing otherwise. Rather, he contends that with the benefit of hindsight, he paid virtually all the acquisition and mortgage payments and he alone paid for improvements to the property. He urges the court to find that she has been unjustly enriched. He does not contend that she should get nothing from the property, only that he should get more.

32Put another way, I do not see a factual dispute as to their original intention that each side would own 50% of the property.

33The Applicant does not dispute that the Respondent contributed to other household expenses while they cohabited. By the same token, the Respondent does not dispute that he paid the mortgage and utilities while they were together. She also does not dispute that he continued to pay the mortgage and property expenses after they split up. As to other contributions to the household by her during their cohabitation, there is little or nothing in the evidence to support an offset for non-financial contribution.

34Thus, for categories 1-4, either there is no disagreement on the material facts, or such disagreements are peripheral to the issues engaged here.

35I turn to the claim for occupation rent.

Occupation Rent

36The parties never married so s. 24(1)(c) of the Family Law Act does not apply. The claim for occupation rent is made under s. 122(2) of the Courts of Justice Act. That subsection states:

(2) An action for an accounting may be brought by a joint tenant or tenant in common, or his or her personal representative, against a co-tenant for receiving more than the co-tenant’s just share.

37Where two parties in a common law relationship hold title jointly, each as to a 50% interest, and one party has exclusive use and possession of the property, the court may order occupation rent be paid by the occupying spouse if it is reasonable and equitable to do so: Irrsack v. Irrsack (1979), 27 O.R. (2d) 478, 1979 1647 (ON CA); Griffiths v. Zambosco [2001] O.J. No. 2096, 2001 24097 (ON CA), at para. 49.

38The caselaw under s. 24(1) of the Family Law Act is instructive as to when a claim for occupation rent should be granted, and what factors should be considered.

39A claim for occupation rent by one spouse against the other will be granted only in the exceptional case. To succeed in such a claim, the non-occupying spouse must show that “the remedies to gain possession of the property, to receive payments from the spouse in possession or support from him or her …are not available or insufficient to render justice between the parties”: Ombac v. George, 2015 ONSC 1938, at para. 33, citing Foffano v. Foffano, [1996] O.J. No. 3284 (Ont. Gen. Div.), at paras. 24-25 and McColl v. McColl (1995), 1995 7343 (ON SC), 13 R.F.L. (4th) 449 (Ont. Gen. Div.).

40In Griffiths at para. 49, the Court of Appeal set out some factors consistently taken into account when the claim arises in a family law context:

1. the timing of the claim for occupation rent;

2. the duration of the occupancy;

3. the inability of the non-resident spouse to realize on his or her equity in the property;

4. any reasonable credits to be set off against occupation rent; and

5. any other competing claims in the litigation.

41In Higgins v. Higgins, 2001 28223 (ON SC), [2001] O.J. No. 3011 (S.C.J.), Quinn J. set out at para. 35 the following additional factors the court may consider in awarding occupation rent:

1. the conduct of the non-occupying spouse, including the failure to pay support;

2. the conduct of the occupying spouse, including the failure to pay support;

3. whether the non-occupying spouse moved for the sale of the home and, if not, why not;

4. whether the occupying spouse paid the mortgage and other carrying charges of the home;

5. whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support; and

6. whether the occupying spouse has increased the selling value of the property.

Obviously, some of the above factors are not in play. There are no children of their relationship. Support is not an issue.

42Where occupation rent is found to be payable, the equitable approach is to allow the non-occupying spouse one-half of the rent that the premises would attract less one-half of the taxes and insurance for the period of possession: Irrsack; Ombac v. George, 2015 ONSC 1938, at para. 33.

43I find that there is a genuine issue as to whether occupation rent should be paid by the Applicant; however, I am satisfied that I have the evidence necessary to be able to fairly and justly adjudicate that issue on the merits at this stage. Can the issue be determined without resort to the additional powers found in r. 16(6.1). In my view, it can.

44The following facts are not contested in the evidence:

1. He continued to reside in the house after she left until the house was sold in November 2019.

2. He paid all expenses for the property during that period. There is no evidence that she continued to contribute to same.

3. His new partner resided with him for part of that time.

4. He paid the Respondent no rent during that period.

5. The property increased in value.

6. He made and paid for improvements and/or property maintenance.

45I turn to the factors identified above.

Timing of Claim

46This proceeding was commenced by Application in March 2020. The Respondent late filed her Answer in November 2020. That is when occupation rent was first claimed - more than four years after they separated. There is no evidence of any earlier request for occupation rent. The Respondent’s claim for occupation rent, or at least a portion of it, may well be statute barred.

Duration of Occupation

47The Applicant occupied the property for 3.75 years after the Respondent left the home. He resided there from February 2016 to November 2019 when it was sold.

Inability to Realize on her Equity

48Because the house was not sold sooner, the Respondent did not obtain her share of the equity in the property. There is, however, no evidence that she sought the sale of the property earlier or that she passed on specific properties or opportunities because her interest in the property was tied up. There is merely a bald averment that she was unable to utilize the monies from the house to acquire another property.

49I note that the Respondent put up no funds for the purchase of the property nor did she pay the mortgage during or after the time she lived there. It is not the case that the Applicant had the use of her financial contribution in the purchase of the house so that that her monies were invested in the house and were not available to her. Instead, she contributed to other monthly household expenses from which she also derived a benefit during her time residing at the property.

50Moreover, there is no evidence as to what an earlier sale of the property would have yielded, that she sought an earlier sale, that she had another property in mind to purchase but could not without her share of the sale proceeds.

Reasonable Credits Against Occupation Rent

51As already noted, the Respondent has adduced no evidence as to what a reasonable rent would be during the period of occupation by the Applicant. By contrast, the Applicant has detailed the payments made by him after she left the property including property taxes. He had the use of the property but he paid all expenses for the property.

52He continued to make the mortgage payments as he did before February 2016. Those payments included principal which thereby reduced the amount owing on the mortgage. That reduction in the principal owing to the Bank meant increased equity when the property was eventually sold. The net sale proceeds were greater because the property value increased and because he paid down the amount of the mortgage post-separation.

Other Competing Claims

53There are no other competing claims applicable in this case.

Move to Facilitate Sale

54The Respondent did not move from the house to facilitate its sale.

Improvements to the Property

55The Applicant paid 100% of the maintenance costs for the property post-separation. He also paid the full cost for installation of a new furnace in 2017 at a cost of $6,754.67. He deposes that he also paid for a new pool liner, a new deck, new flooring, and a new upgraded bathroom. His affidavit indicates that he attached receipts for same but only the furnace receipt was attached. No further details are provided for these improvements or the cost of same.

Balancing of Factors

56The Respondent asserts that the Applicant should pay occupation rent post-separation. Although she deposed that she wants to obtain expert evidence about market rental rates, no such evidence is before the court despite the passage of significant time. This is so notwithstanding the Applicant’s motion for summary judgment which would, if granted, resolve all issues including occupation rent on a final basis. Like the engineering expert above, the Respondent’s expression of a desire or intent to obtain such evidence is no more than a promise that more evidence will be available at trial.

57Having regard to the above factors, I find that it would be unreasonable and inequitable to require the Applicant to pay occupation rent to the Respondent in the circumstances. The Respondent has provided no evidence as to market rent. She made no claim for occupation rent until a year after the property was sold. She invested no money into the property by way of down-payment, monthly mortgage payments, or improvements to which she contributed money or work. The Applicant has paid for the property taxes and other expenses for the property with no contribution from her. Her “assistance” in obtaining the mortgage, if true, and the risk she assumed thereby are more than adequately compensated for by the interest she obtained on purchase of the property.

58Accordingly, I decline to exercise my discretion to order occupation rent be paid by the Applicant. The evidence before me simply does not warrant it.

59I turn next to the Applicant’s claim and the merits of his motion for summary judgment. The Applicant’s claim is framed in unjust enrichment or resulting trust. As will be apparent, I need not address resulting trust.

Unjust Enrichment

60The leading case on unjust enrichment is Kerr v. Baranow, 2011 SCC 10. To recover for unjust enrichment, the plaintiff must prove on a balance of probabilities that something was given by the plaintiff and received and retained by the defendant without juristic reason: Kerr, at para. 31. The core of the doctrine of unjust enrichment is restoring a benefit which justice does not permit one to retain: Kerr, at para. 31 citing Peel (Regional Municipality) v. Canada, 1992 21 (SCC), [1992] 3 S.C.R. 762, at p. 788.

61The essential elements of unjust enrichment are the same regardless the circumstances underlying the claim; however, the court should “exercise flexibility and common sense when applying equitable principles to family law issues with due sensitivity to the special circumstances that arise in such cases”: Kerr, at para. 34.

62The first two constituent elements are: an enrichment of the defendant with a corresponding deprivation suffered by the plaintiff. At paras. 38 and 39 in Kerr, Cromwell J. explained:

38For the first requirement – enrichment - the plaintiff must show that he or she gave something to the defendant which the defendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant and which can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible. It may be positive or negative, the ladder in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake (Peel, at pp. 788 and 790; Garland, at paras. 31 and 37).

39Turning to the second element – a corresponding deprivation – the plaintiff’s loss is material only if the defendant has gained a benefit or been enriched (Peel, at pp. 789-90). That is why the second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered (Pettkus, at p. 852; Rathwell, at p. 455). [Italics in original.]

63The final element requires that the benefit provided, and deprivation suffered, must be without juristic reason; viz. “there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff”: Kerr, at para. 40. Established juristic reasons include the intention to make a gift, a contract, or a disposition of law: Kerr, at para. 41. At this stage of the analysis, the court will consider the autonomy of the parties including the legitimate expectation of the parties, and the right of parties to order their affairs by contract: Kerr, at para. 41.

64In Garland v. Consumers’ Gas Co., 2004 SCC 25, the Supreme Court set out a two-step analysis for the absence of juristic reason. At the first step, the court will consider whether any of the established categories of juristic reason are applicable. If there is no juristic reason from an established category, the plaintiff has made out a prima facie case for the juristic reason component. That prima facie case may be is rebutted where the defendant can show that there is another reason to deny recovery. As part of the defendant’s attempt to rebut, the court will consider the reasonable expectations of the parties and public policy considerations: Garland, at paras. 44-46; Kerr, at para. 43.

Enrichment and Corresponding Deprivation Elements

65Once again, the material facts are not in dispute. The parties jointly agreed to purchase a house. They applied together for mortgage financing and jointly covenanted with the bank to pay the mortgage. Both risked being sued for non-payment if that occurred.

66The Applicant put up 100% of the down-payment. The parties arranged their finances so that he also paid the mortgage, taxes, and utilities. She paid other household expenses and/or contributed to same. When she left, he continued paying. She paid nothing on the mortgage.

67Thus, he paid the down-payment and all mortgage and property expenses – more than his 50% share per title. She did not contribute any amount for the purchase of the property, for debt servicing, or for property related expenses including improvements despite holding a 50% interest on title. She benefitted by his payments. He suffered a corresponding deprivation to the extent he paid more than one-half of the mortgage and property costs during and after their cohabitation. The first two elements are established.

Juristic Reason

68There is no written agreement or contract between the parties concerning their interests in the property before or after purchase. They received legal advice before closing. Title was taken by them as equal owners. There is no suggestion that a mistake was made in how title was taken.

69That title was subject to an encumbrance that they jointly agreed to – a mortgage. Again, there is no suggestion that there was a mistake in the mortgage.

70Pursuant to the mortgage, each was fully liable to pay the mortgage instalments when due and to repay the balance upon maturity. They were jointly liable for the debt incurred. There is no evidence of any agreement between them by which the Applicant agreed to pay 100% of the mortgage and property expenses.

71There is likewise no evidence that he forgave any contribution by her for her share of the mortgage debt, nor does she depose, for example, that she paid his vehicle payments as an offset to her share of the mortgage.

72I am mindful that the parties were in a romantic relationship at the time they purchased the property and obtained the mortgage. They moved in together after they purchased. She contributed to some household expenses but there is no suggestion that she paid her 50% share of the mortgage debt through other payments made. Her income at the time was very modest. Her evidence as to what she paid is lacking in detail especially as to the amount of any household expenses she paid. Once she moved out, she paid nothing.

73Accordingly, there is no contract between them that provides a juristic reason for the benefit (see para. 67 above) she obtained. Similarly, there is no evidence of a gift by him to her. The Applicant has established a prima facie case for absence of juristic reason.

74Has the Respondent rebutted the Applicant’s prima facie case for absence of juristic reason? I find that she has not.

75There is no evidence that the parties addressed their minds to what would happen vis-à-vis the property and mortgage debt if their relationship ended before the house was paid off. When they separated, there were likewise no discussions about how to service the mortgage debt or whether the house would be sold. He simply remained in the home and continued to make the payments as he always had with no contribution by her.

76The Applicant does not seek to eliminate her entitlement to all sale proceeds. He does not seek to undo the original purchase arrangements or claim that she should get nothing as if she never went on title or covenanted on the mortgage. Rather, he asks for an adjustment to recognize his payment of the mortgage and reduction of the principal amount owing. He also relies on his expenditures for improvements to the property to which she did not contribute.

77I hearken back to the issue about whether she was needed as a co-borrower when the property was purchased. Even if I accept her evidence that he could not have obtained the mortgage without her as a co-borrower, that does not provide a juristic reason for the Respondent to benefit from the reduction in principal amount owing under the mortgage since separation or the improvements made since separation given that she made no contribution to same, and he did.

Quantum of Unjust Enrichment

78I preface the analysis by setting out how the Applicant arrived at the figures he argues should apply to the division of proceeds. This is found at paras. 2-4 of his Factum.

79First, he calculates the profit on the home to be $131,274. He arrives at that figure as follows:

(A) Amount Borrowed: $231,782

(B) Amount Paid to Discharge Mortgage: $199,111

(C) Amount Paid Off from Mortgage: $32,670.52

(D) Proceeds from Sale: $163,945.16

(E) Profit (D less C): $131,274. 34

(F) Equal Division of Profit (E x 1/2): $65,637.34

He submits that this is the maximum the Respondent should receive – one half of the profit earned from the sale. He would likewise receive one-half of the profit but would also recover the amount by which the mortgage was reduced through monthly payments ($32,670.52). In this scenario, no credit is given to the Applicant for the down-payment made by him alone.

80Second, he seeks further credit of $16,453.79 for upgrades made to the property. That credit would reduce the Respondent’s share of the net proceeds to $49,183.55. His share would be correspondingly increased.

81There is no dispute that the mortgage payments made by the Applicant reduced the principal amount owing on the mortgage by $32,670.52. He also paid to replace the furnace, the cost for which was $6,754.67. He deposed to other improvements but the invoices for same were not attached to his affidavit and were not itemized in the body of his affidavit. He does not ask for any adjustment or credit for paying 100% of the down-payment.

82In my view, an adjustment is warranted based on unjust enrichment. The sale proceeds should be allocated between the parties as follows:

$32,670.52 (mortgage principal reduction) to the Applicant

$6,754.67 (furnace cost reimbursement) to the Applicant

Balance divided equally subject to adjustment for the Respondent’s 50% share of the basement repair if not yet paid by her.

Conclusion

83For the reasons set out above, I conclude as follows:

1. The Applicant’s motion for summary judgment is granted.

2. From the sale proceeds held by the real estate lawyer, the Applicant shall be paid first $32,670.52 and $6,754.67.

3. The balance of the sale proceeds shall be divided equally between the parties subject to adjustment for the Respondent’s 50% share of the basement repair if not yet paid by her.

4. The Respondent’s claim for occupation rent is dismissed.

84If the parties cannot agree on costs, they may make written submissions not exceeding three pages within 21 days.