Court File and Parties

COURT FILE NO.: FS-23-8423 DATE: 20230405 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PAVEL VYMYSLICKY, Applicant AND: NADIA KYNCLOVA, Respondent

BEFORE: Tranquilli J.

COUNSEL: Applicant – self-represented Jennifer P. Ryan, for the Respondent

HEARD: March 30, 2023

Endorsement

[1] The respondent seeks the court’s assistance in securing the removal of the applicant from premises municipally known as 398 St. Clair Street West, Watford, Ontario, for which she holds sole title. The Watford property is the subject of an equitable claim made by the applicant in unjust enrichment, a constructive trust or resulting trust.

[2] The respondent also seeks an order restraining the applicant from directly or indirectly contacting the respondent except through counsel and coming within specific distances of the Watford premises and the residence where she is currently staying in Searchmont, Ontario.

Background

[3] The respondent is 72 years old. The applicant is 73 years old. Beyond those facts, the material facts are largely in dispute.

Respondent’s Version

[4] The respondent deposed that she and the applicant cohabited as a couple between March 2010 and August 2013 at the respondent’s former home in Strathroy, Ontario. She ended the relationship in August 2013 and paid to move the applicant’s personal property to Kitchener, Ontario. She had purchased the Watford property in sole tenancy in June 2013 and took occupancy after separating from the applicant. They resumed contact in 2015, at which time the applicant asked he could move into her Watford residence because he was living in poverty in a basement in Waterloo. The respondent states she was reluctant, but she eventually agreed to allow him to move into her home, on terms that he would pay $500 per month. No formal lease was ever signed.

[5] She maintains they did not resume their intimate relationship from 2015 onward and that he lived in her house as a licensee, or akin to being roommates or a landlord and tenant relationship.

[6] The respondent temporarily went to Searchmont, Ontario in July 2021 to assist her parents in the care of her terminally ill brother. She left her dog in the applicant’s care as her brother was immunocompromised. She paid for the dog’s food and care.

[7] In July 2022, the respondent asked the applicant to vacate the Watford property by August 31, 2022, as she planned to move her parents into the home with her. The applicant declined and directed her to bring a Landlord Tenant Board application for his eviction. Those proceedings came to naught. It was identified that the parties shared the kitchen and bathroom, such that the legislation did not apply.

[8] In the meantime, the applicant stopped paying the $500.00 per month in August 2022. The cable and phone are in his name; however, the applicant continues to pay for all other housing expenses.

[9] She claims the applicant otherwise made only modest contributions to the home, such as installing a modest patch of kitchen and dining room flooring that she had purchased. He once used his credit card to purchase a new washer and dryer, as it gave him a discount. She deposes that she paid him back almost half of the price; she held back the balance after he stopped paying rent and refused to leave.

[10] In August 2022, the applicant claims the respondent arrived at her mother’s house in Searchmont unannounced. He told her had had driven 12 hours to convince her to resume a relationship and let him stay in the Watford property. During the ensuing interaction, he reportedly pulled a hunting knife out of a bag he had with him and told her he would cut or slice his wrists. As she left the house to call for police assistance, he attempted to grab her shoulder. He later got down on one knee and asked her to marry him. The confrontation ended with him threatening that he was going to get her. OPP intercepted the applicant and took him to hospital where he was apparently assessed and released. A month later, he emailed the respondent and warned that she could not get into the house and that if she or others did so by force, they did it at risk of bodily harm.

[11] In February 2023, the applicant emailed the respondent and claimed he would now publicly destroy her character and humiliate her to all her social media friends. The translated version of the email demonstrates the use of profane and graphic language and appears to relate to his irritation that she was then in a new relationship. The respondent reported his conduct to police. She understood from police that they cautioned the applicant. However, he emailed her again that same evening and stated: “Be very careful what you do next!! Who is actually harassing who? That was harassment from you!!!”

Applicant’s Version

[12] The applicant claims that he and the respondent resumed their relationship in 2015 and lived in the Watford property between 2015 and July 2021 as a couple. He denies that they lived together as roommates or as landlord and tenant. His contributions to the home included the purchase of small tractor to mow the lawn, a new television and an enhanced cable package.

[13] He acknowledges the incident when he drove to Searchmont, Ontario in August 2022. He explained he was heartbroken and devastated at the respondent’s decision to end the relationship.

[14] The applicant disputed that the respondent paid him for the dog expenses and the washer and dryer. However, she has reviewed her bank records and deposed that the records confirm the payments were made. The applicant produced banking records in support of his position. The respondent noted that the applicant paid $904.00 in July 2022 to what appeared to be a dating website. On inquiry of the respondent, he claimed it was in fact paid to a London private investigation agency he retained to find out information on the respondent’s new intimate partner.

Positions of the Parties

[15] The respondent submits she is entitled to possession of the Watford property and that the applicant has failed to demonstrate a prima facie right to continue to occupy the premises. She claims a right of possession through one of a writ of possession, a finding that the applicant has committed the tort of trespass or an order for immediate vacant possession of the Watford property to the respondent. Of these three options, she submits the order for immediate vacant possession, with police assistance, is justified given the further delays that will accrue with the other two routes. She also seeks the restraining order because of the applicant’s aggressive and alarming conduct towards her since she asked him to vacate the premises.

[16] At the hearing, the applicant proposed that he would leave the Watford property, but that he be given until May 1, 2023 to vacate the premises. He advised he needed time to search for alternative accommodation. He maintained that a restraining order was unnecessary as he no longer wanted to have anything to do with the respondent, who he openly disparaged in court.

[17] The respondent proposed a vacancy date two days earlier, on additional terms such as what property could be removed from the premises. The applicant was unprepared to proceed on that basis. As the motion argument was already underway, the court directed that it would proceed to determine the issues as framed in the motion record.

Analysis

[18] Irrespective of whether the parties were living in a common law relationship since 2015, the applicant does not have a statutory right to occupy the premises under the Family Law Act, R.S.O. 1990, c. F.3, as amended. While a common law spouse may assert a proprietary right by way of an equitable claim, the court finds this record falls short of establishing that the applicant has a prima facie claim to continue to occupy the premises. He has produced little evidence to support his claim that they cohabited as a couple, only appearing to produce part of his banking records. Moreover, he has contradicted his own evidence, in first asserting they cohabited since 2010, then later stating that they began to live together in 2015. This is not to conclude that the applicant’s equitable claims are without merit. However, there is inadequate evidence to support his continued possession of the home. He has failed to satisfy the disclosure orders made at the urgent case conference on February 24, 2023. In addition, he has failed to continue to pay the respondent the monthly “rent” of $500.00 since August 2022, whereas the respondent has continued to pay all of the housing costs. In the meantime, the respondent is the sole owner registered on title and is entitled to possession of the property.

[19] The court is satisfied that the troubled history of these parties requires an order for vacant possession, with police assistance if necessary. The issue has festered for almost the past nine months during which time the dispute has escalated in disturbing ways. The court will allow the applicant a brief period of time in which to prepare for his departure, although it is noted that he has had several months to plan his move and should have funds to do so since he has not been paying respondent for the past several months. The applicant shall have until 11:59 pm on Thursday, April 13, 2023 in which to vacate the Watford property, failing which, the police shall enforce possession of the property in favour of the respondent and assist in his orderly removal from the premises.

[20] The court is also satisfied that a restraining order can issue under s. 46 of the Family Law Act. Although on the respondent’s version of their relationship, the parties were not in a common law relationship from 2015 to date, she does allow that they previously cohabited between 2010 and 2013. Under s. 46(2)(b), the respondent is eligible to apply for the order as they cohabited “for any period of time”.

[21] The evidence on this motion satisfies the court that the applicant has engaged in conduct which a reasonably minded person would regard as disturbing and a substantial source of anxiety to herself. The unannounced attendance at her family’s home after an 11- or 12-hour drive, with a threat of self harm, the profane and repeated emails taunting the respondent and threatening to embarrass her reasonably cause the respondent distress. His explanation that the expense that appeared to be incurred on a dating website was actually payment for a private investigation of the respondent’s new partner is hardly reassuring and is, in fact, troubling. The court was pleased to hear from the applicant in argument that he no longer wishes to have any contact with the respondent. However, given the nature of his conduct over a protracted period of time, and where this litigation is still in process, the court is of the view that an order is warranted to remind the applicant as to the expectations for his behaviour and so that the respondent can regain possession of the Watford property without fear of harassment or retaliation.

Disposition

[22] Orders will therefore issue as follows:

1. The respondent shall have vacant possession of 398 St Clair Street Watford, Ontario, N0M 2S0, effective 12:00 am, Friday, April 14, 2023;
2. The Ontario Provincial Police, local police and/or any other officers involved with enforcement are hereby directed to enforce possession of 398 St Clair Street Watford, Ontario N0M 2S0, effective 12:00 am Friday, April 14, 2023;
3. Until further order of the court, the applicant shall be restrained from: a. Directly or indirectly contacting or communicating with the respondent except through family law counsel; b. Coming within 5 km of 145 Finn Road, Searchmont, Ontario, P0S 1J0; c. Coming within the immediate boundary surrounding 398 St. Clair Street, Watford, Ontario N0M 2S0, being: i. West of Highway 79 [eastern boundary]; ii. The westernmost end of St. Clair St. [western boundary]; iii. Erie Street west of Highway 79 [southern boundary]; and iv. Victoria Street west of Highway 79 [northern boundary].
4. This order may be issued without the applicant’s approval of the draft order as to form and content.

[23] The respondent was entirely successful in her motion and is presumptively entitled to her costs. If the parties are unable to resolve costs, the applicant shall deliver her written cost submissions by April 17, 2023 and the respondent shall deliver his written cost submissions by April 24, 2023. There is no right of reply without leave. Written submissions are limited to two pages, excluding offers to settle and bills of costs, 12-point font, regular margins.

Justice K. Tranquilli Date: April 5, 2023