Court File and Parties

COURT FILE NO.: 69/19 DATE: 20230516 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Jacqueline Regier Applicant – and – Eric Bennett Respondent

Counsel: Rachel Stephenson, for the Applicant Michael D. Swindley, for the Respondent

HEARD: October 24-28, 2022 and November 4, 2022

Reasons for Judgment

WATERS J.

I. Overview

[1] The issues for determination are:

a. Does the mother have an unjust enrichment/constructive trust interest in the property situated at 197 Greenlees Drive, Kingston (“Greenlees”)?

b. What is the quantification of (and remedy in respect of) the mother’s unjust enrichment/constructive trust, if any?

c. Does the father have an unjust enrichment/constructive trust interest in the property situated at 483 Stone Street North, Gananoque (“Stone Street”)?

d. What is the quantification of (and remedy in respect of) the father’s unjust enrichment/constructive trust, if any?

e. Does the father owe to the mother Section 7 expenses in the amount of $2,172.58?

f. Costs related to the parenting issues associated with this matter.

[2] The Applicant (“mother”) alleged “this case is about two people who were involved in a relationship between 2012 and 2017. They each contributed to the other’s property, both financially and otherwise.” She described the problem being that the Respondent (“father”) asserts she “should pay him back for all the contributions he made to the mother’s property but that she should get nothing in return from him for the contributions she made to his property.”

[3] The mother seeks an Order as follows:

a. That she is entitled to receive half of the equity in the Kingston property as at the date of separation or $52,325, less any interest that the father may have had in the Gananoque property at the date of separation,

b. The father shall pay the mother the sum of $2,172.58 for section 7 expenses,

c. Interest on any amounts owing to her,

d. Costs related to the parenting Order, and

e. Costs of the trial on a substantial indemnity basis from the date of retaining her current counsel.

[4] The father’s position is he made quantifiable contributions to the mother’s property compared to the mother’s position wherein she claims that she can substantiate quantifiable contributions to the family’s overall expenses with those expenses being groceries, daycare, and household goods. The road map provided by the father is one that he asserts shows a direct nexus to his contributions made to the mother’s property and one that shows her contributions as being muddied with no nexus to his property.

[5] The father seeks the following order:

a. The mother’s constructive trust claim with respect to the property at 197 Greenlees Drive shall be dismissed,

b. The mother’s claim for reimbursement of section 7 expenses shall be dismissed,

c. The mother shall pay to the father the sum of $77,451.00 (or such other amount as this Honourable Court may determine) in full and final satisfaction of the father’s constructive trust claim with respect to the property at 483 Stone Street North, Gananoque, Ontario,

d. In the alternative to the foregoing, the father shall be entitled to a constructive trust in 83 Stone Street North, Gananoque, Ontario, and in turn, a one-half interest in same,

e. The mother shall pay to the father pre-judgment interest on the sum of $77,451.00 (or such other amount as this Honourable Court may determine) from November 17, 2017, to the date of trial, and

f. The mother shall pay to the father costs on a full-indemnity basis.

[6] I heard a Voir Dire on day four of the trial. I decided the mother could not file documents which she had not previously produced. The documents were consistently in the mother’s care and control; and, she had the opportunity to make disclosure within the timeline as prescribed in the Trial Scheduling Endorsement Form, but she did not. The mother asserts that she was not aware of her care and control of the documents until post-commencement of the trial. Further, counsel were cooperative with respect to the introduction of evidence right up until the time of trial and yet the disclosure of documents was not revealed.

II. Result

[7] Costs were reserved on the Voir Dire. The Voir Dire took approximately thirty-five minutes.

[8] For reasons that follow, I make the following judgment:

a. The mother shall pay to the father the sum of $8,000.00 plus interest (as of April 2012).

b. The father shall pay to the mother the sum of $3,000.00 plus interest (as of January 2015).

c. The mother’s claim for section 7 expenses payable by the father in the amount of $2,172.58 is dismissed.

d. The parties shall file their cost submissions with respect to the parenting issues (only) to this court no later than fourteen (14) days following the release of this decision. The submissions shall not be greater than five (5) pages in length, double spaced, and the text shall be in 12-point font.

[9] The parties shall attempt to resolve the issues of costs with respect to this trial. In the event the parties are unable to resolve the issue, the Applicant shall file her cost submissions with respect to the trial no later than fourteen (14) days following the release of this decision. The Respondent shall file his cost submissions with respect to the trial no later than twenty-one days following the release of this decision. The submissions shall not be greater than five pages in length, double spaced and the text shall be in 12-point font.

III. Background Facts

[10] I accept the parties jointly filed an Agreed Statement of Facts.

[11] The parties began their relationship in 2011. At the time of the commencement of the relationship, the father was living with his parents in Bath, Ontario. As the relationship progressed, the father was living consecutively at his parents’ home and at the mother’s apartment in Kingston.

[12] The father was unemployed in 2011 while residing between his parents’ home and the mother’s Kingston apartment. The father worked for the Canadian Border Services Agency (“CBSA”) application and training process during this time frame. In July 2012 the father secured employment with the CBSA.

[13] The parties moved to 483 Stone Street North, Gananoque, Ontario on April 27, 2012.

[14] The parties were never married.

[15] The parties have two children, namely, B.A. Bennett (born October 2013) (“B.A.”) and K.L. Bennett (born May 2015) (“K.L.”)(“children”). The children attend school in Kingston, Ontario. The parties’ shared a parenting regime with a four-day cycle alternating the children.

[16] The parties separated on November 17, 2017.

[17] The mother is a registered psychotherapist and is employed with the Maltby Centre as a child and family mental health counsellor.

[18] The father is employed with CBSA in a full-time capacity and works rotating 4 days on/4 days off shifts.

[19] The parties did not have a domestic contract.

[20] The parties agree that they were engaged in a joint family venture.

483 Stone Street, Gananoque, Ontario

[21] The mother is solely titled to the Stone Street property.

[22] The parties have agreed to utilize date of separation values for the purpose of valuation for this trial.

[23] The value of the Stone Street home at the date of separation was $280,000.00. The mortgage balance at date of separation was $206,558.94. Therefore, the net equity in the Stone Street home at date of separation was approximately $73,441.00.

[24] The mortgage registered on the Stone Street property at the date of purchase on April 27, 2012, was exclusively in the mother’s name. This mortgage was held by MCAP. This mortgage was paid by the mother through the parties’ joint account during the relationship.

[25] All utility accounts were registered in the mother’s name.

[26] The parties resided in the upper floor of the Stone Street property from April 27, 2012, through to February 2015. During this time the lower floor was deemed to be a rental unit.

[27] The mother was the person responsible for collecting the rent payments from the lower floor tenants and received all rent payments save for the specified periods of August 2017, September 2017, and October 2017. It was during these three months that the father directed the tenants to provide him with the rent payments.

197 Greenlees Drive, Kingston, Ontario

[28] The father is solely titled to the Greenlees Drive property.

[29] The parties have agreed to utilize date of separation values for the purpose of valuation for this trial.

[30] The value of the Greenlees Drive home at the date of separation was $400,000.00. The mortgage balance at date of separation was $295,350.70. Therefore, the net equity in the Greenlees Drive home at date of separation was approximately $104,650.00.

[31] The Greenlees Drive property was purchased in 2014 when the parties decided to move to Kingston, Ontario. The reason for the move to Kingston was to allow the children to attend a French daycare and ultimately a French Catholic school.

[32] Prior to residing in the Greenlees Drive property the home was renovated, and the parties remained at the Stone Street property until the renovations were completed at Greenlees Drive.

[33] The mother claims she solely paid for “childcare, children’s clothing and toys and almost all of the groceries and household supplies.” The mother has not provided any documentary evidence to support her assertions of contributions to the Greenlees Drive property. Summaries were provided without the benefit of substantiating documentation.

IV. Relevant Litigation History

[34] The mother commenced an Application on or about February 14, 2019 and filed the document with the court on March 6, 2019.

[35] The father served and filed an Answer which was put before the court without a date inserted. The service and filing of the Answer is not disputed as it was included in the Trial Record and asserted by the Respondent to be filed on June 10, 2019.

[36] The mother served and filed a Reply on or about June 17, 2019.

[37] Pursuant to the Order of Justice Minnema dated March 5, 2021, the Applicant served and filed an Amended Application on or about March 31, 2021.

[38] The parties resolved all parenting and support issues by way of a Final Order dated February 15, 2022 made by the Honourable Madam Justice Swartz. The parties did not resolve the issue of costs associated with the parenting issues and this issue remained live at this trial.

V. Credibility and Reliability

[39] The mother asserts that the father’s evidence was not believable or logical, that he was reprimanded by me; and, that he tended to argue when pressed during questioning.

[40] The father asserts that the mother was evasive, defensive, refused to answer yes or no questions; and, at multiple occurrences had to be reprimanded by me.

[41] As articulated by Jarvis J. in Jayawickrema v. Jayawickrema, 2020 ONSC 2492, at para. 28:

… the assessment of witness credibility is an inexact science, impossible to articulate with precision. For example, a witness may impress the court with the coherence and logic, or common sense, of their narrative but be unreliable due to their interest in the outcome of the case or the lack of probative information. Or a witness may be so interested in a case that they are incapable of making an admission or facilitating the disclosure of information that they perceive as helpful to the other party and harmful to their case. These affect the weight to be given to that evidence. There is, quite simply, no one-size-fits-all template. Several of the many considerations relevant to the weighing and assessment of witness credibility and reliability, and relevant to his case, were comprehensively reviewed in Al-Sajee by Chappel J. who aptly observed that,

…the judge is not required by law to believe or disbelieve a witness's testimony in its entirety. On the contrary, they may accept none, part or all of a witness's evidence, and may also attach different weight to different parts of a witness's evidence [Citations omitted.]

[42] I find the following.

a. The father testified with respect to various financial circumstances. Various inadequacies were established in cross-examination with respect to the father’s financial evidence.

b. The father’s sworn financial evidence did not include any financial dealings with his father, (paternal grandfather). In cross-examination, it was revealed that not only did he provide the sum of $16,000 to his father sometime around June 2016, but that for the entire duration of his relationship with the mother the sum of $160.00 was withdrawn from his bank account monthly and the father assumed it was for his father’s assistance. There was a lack of clarity by the father with respect to his financial dealings with his father.

c. The father denied the existence of a Canada Revenue Agency (“CRA”) debt that existed (based on 2014 payments) of approximately $10,000.00. This was not on his original sworn financial statement; but, given the opportunity to testify with respect to his finances, the father did acknowledge such debt.

d. The father underestimated the total value of his investment asset on date of cohabitation. The amount set out in his sworn financial statement was $50,000.00 yet it was firmly established during cross-examination that given the withdrawals during the relationship the amount was a minimum of $75,000.00.

e. The father further denied the existence of a 2005 Jeep debt that existed on the date of cohabitation in the approximate amount of $2,700.00. The father also swore a financial statement that was erroneous with respect to his date of separation bank balance.

f. The father provided evidence that he had experience in the rental property industry. He provided evidence that he had business experience in an ownership capacity in a Pita Pit® enterprise. The father asserted to have a certain level of business acumen. In his evidence, he asserted that he was of the belief that he was on title with the mother on the Stone Street property, yet he was aware that he did not execute any type of documentation to participate in the ownership of the Stone Street property. Further, despite his apparent prior involvement with the rental property industry, he advised that he was not aware of the reporting process with respect to income tax and the claiming of rental income.

g. The father neglected to acknowledge a car loan on his MKX vehicle on his sworn financial statement and in cross examination he acknowledged the loan and guesstimated the balance to be $1,700, citing that the omission was because he was not a forensic accountant.

h. The father did not include a value for his employment-related pension, but he did acknowledge that the pension did grow during the relationship of the parties.

i. The father acknowledges he was an owner in a Pita Pit® franchise but is unsure if he was involved in a partnership agreement or if the business was incorporated.

j. The father’s evidence also indicates he was involved in rental properties in the early to mid 2000’s with other business partners but advised he did not have a partnership agreement or corporate agreement.

[43] I find the father’s evidence with respect to financial issues lacks credibility. It is impossible for me to assess his net worth at the date of cohabitation and the date of separation based on the evidence presented.

[44] I find the mother’s evidence with respect to the issue of accounting as it related to the two properties, Greenlees Drive and Stone Street also lacked credibility. During the trial, the mother made assertions not supported by evidence. Specifically, there was little substantiation of the mother’s assertions with respect to the financial contributions she claims to have made to the properties.

[45] With respect to the mother’s financial documentation, her February 7, 2019 sworn financial statement contained errors. She included her Sutherland Drive property on the financial statement, included an incorrect RRSP amount on the financial statement; and her bank account at date of cohabitation was incorrectly stated.

[46] The mother provided extensive summaries to the court with respect to the Greenlees Drive property which contained payments for items completely unrelated to the property or to family expenses. The mother, upon examination, identified some of these expenses as being for NHL hockey tickets and gifts for family members (e.g. lava lamp). The summaries were not credible.

[47] The mother’s witnesses included a mortgage broker, friends and family. I find the testimony of the witnesses offered little value to the issues for determination by me.

[48] The father’s witness, Mr. Kyle Harris, testified the father directed content of his Affidavit. As a result, this evidence has no credibility.

[49] Neither party provided any specific receipts relating to their summaries provided in evidence. Both parties’ credibility was impugned by the passage of time, that is, the sheer passing of time and lack of comprehensive record keeping.

[50] For clarity, when assessing the issue of credibility, consideration is provided to both truthfulness and reliability. The evidence provided by both parties is unreliable with respect to various financial issues. The evidence is unsubstantiated.

[51] Given the credibility issues detailed above, I have carefully reviewed and considered the evidence before the court. To that end, I have assessed the oral evidence and the substantial corroborating (or conflicting) documentary evidence in my analysis.

VI. Property Issues

Unjust Enrichment and Constructive Trust

The Unjust Enrichment Test

[52] Prior to the analysis related to unjust enrichment, the parties agreed that they were in a “joint family venture”.

[53] The Supreme Court of Canada in Kerr v. Baranow summarized the principle of unjust enrichment relied on by the parties in their respective claims at paras. 32 and 34:

Canadian law, however, does not limit unjust enrichment claims to these categories. It permits recovery whenever the plaintiff can establish three elements: an enrichment of or benefit to the defendant, a corresponding deprivation of the plaintiff, and the absence of a juristic reason for the enrichment […]

Although the legal principles remain constant across subject areas, they must be applied in the particular factual and social context out of which the claim arises. The Court in Peter was unanimously of the view that the courts “should exercise flexibility and common sense when applying equitable principles to family law issues with due sensitivity to the special circumstances that can arise in such cases” (p. 997, per McLachlin J. (as she then was); see also p. 1023, per Cory J.). Thus, while the underlying legal principles of the law of unjust enrichment are the same for all cases, the courts must apply those common principles in ways that respond to the particular context in which they are to operate.

[Emphasis added.]

[54] The parties each rely on the court’s finding in Kerr to support their respective claims of their monetary award claim and constructive trust claim in the property titled in the other party’s name. With respect to the appropriate remedy, if a claim for unjust enrichment in the context of a family law dispute has been established, the court in Kerr held, at para. 100:

I conclude:

1. The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach.

2. 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.

3. 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.

4. 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.”

[Emphasis added.]

[55] I need not decide with respect to whether there was a joint family venture based on the parties’ consent agreement that there was a joint family venture.

Does the father have an unjust enrichment/constructive trust interest in the property situated at 483 Stone Street North, Gananoque (“Stone Street”)?

[56] The mother commenced the search for an income property in 2011/2012 and was seeking a property in the Gananoque area. The mother required financial assistance to purchase an income property. The maternal grandmother, Cathy Regier, agreed to assist her daughter with the income property purchase by accessing her Registered Retirement Savings Plan (RRSP) funds.

[57] The mother was pre-approved for a mortgage in or around January 2012 on her own. There was no necessity for a co-signor.

[58] The mother’s witness, Steve Marshall (mortgage broker), reviewed his work files for the brunt of his testimony. Mr. Marshall confirmed that the mother was approved for a mortgage without the necessity of a co-signor but that a gift was required with respect to the down payment. He understood the gift to be from the maternal grandmother, because of the gift letter in his file and the mortgage checklist document which indicated a gift from parents and RRSP under the heading of “Down Payment Confirmation”. The father’s name did not appear on any documents provided by Mr. Marshall.

[59] The parties were involved in a relationship at the time of the mother’s purchase of Stone Street and the father did attend to the Stone Street property prior to the purchase. However, the father was not involved in the offer process, the closing with the real estate lawyer nor was he considered in the financing application.

[60] The $8,000.00 down payment issue was given significant time in evidence. The issue is characterized by the mother that the father insisted on contributing to the purchase of the Stone Street property. The mother’s evidence is that she was provided with an ultimatum that if she did not accept the $8,000.00 contribution form the father that he would terminate the relationship. The mother’s evidence was that the father gave the maternal grandmother a bank draft on April 5, 2012, in the amount of $8,000.00 and that the re: line on the bank draft read as follows “Eric Bennett 483 Stone St. N. Gananoque House Down Payment.”

[61] The maternal grandmother provided the mother with a cheque on April 10, 2012, in the amount of $8,000.00. The Stone Street purchase closed on April 27, 2012, with the mother as the sole owner.

[62] The maternal grandmother executed a gift letter for $8,000.00 on April 16, 2012. The mother asserts she did not need any money from the father as she already had it from her mother and that she didn’t receive the $8,000.00, her mother did.

[63] To close the Stone Street home, the mother withdrew $9,490.00 from her RRSP to put toward the purchase.

[64] The father took the position that the $8,000.00 represented his investment in the Stone Street property. He acknowledged the monies were paid to the maternal grandmother and not to the mother. The mother testified that the father has not been directly repaid for this money.

[65] The father’s evidence was that he believed he was on title at Stone Street, yet his evidence was that he was in training for CBSA in Quebec and was not allowed to miss a day of training unless there was a death in the family. There was a zero-tolerance policy for missing time.

[66] The father testified that he learned he was not on title sometime close to date of separation (November 17, 2017).

[67] The mother provided an overview of the initial financial arrangement between the party as fluid and loose in nature. The mother would provide a summary of expenses from time to time including the mortgage, utilities and living expenses and when the first child, B.A., was born in October 2013 her expenses were also included. From the summary of expenses, the mother would deduct the rent received from the tenant who resided in the lower level of the home. The mother would then detail a dollar amount to the father as his share to be paid. The amount payable was inconsistent as other factors were considered, such as if the father made a significant purchase for the household (e.g. a big grocery shop). The mother asserts that the father did not pay the sums requested by her every month.

[68] Each party provided the court with summaries of contributions made during the period of April 2012 to January 2015. The mother advised the court that she contributed the sum of $65,307.00 during this period. It is the mother’s evidence that the father contributed the sum of $17,864.00 during this period while father refutes that amount and asserts a contribution of $25,738.00. The challenge with this approach by the parties is that the definition of “contribution” is never made entirely clear. A further problem is that the financial evidence of the parties is notably unreliable.

[69] To prepare the home for an upper and a lower level, renovations were required to be completed on the Stone Street home. The mother’s evidence is that she was exclusively responsible for the cost of the renovations in the lower unit of the Stone Street property. The time frame required to complete the lower-level renovations was from April 27, 2012 (closing date) to mid-July 2012. The total cost of the lower-level renovation was claimed by the mother in the amount of $16,916.00. This amount was provided to the court by way of a summary of renovation expenses, however, other expenses were included in the summary and therefore the exact amount of the renovation was not before the court.

[70] The father was enrolled in his CBSA training in Quebec and was only home on weekends is the mother’s evidence. In cross-examination the mother was presented with receipts which the father used to attempt to refute that he was home not only on weekends.

[71] An improvement holdback was negotiated into the initial mortgage of the Stone Street property. The improvement holdback was in the amount of $6,889.00. The improvement holdback was released on June 18, 2012. An inspection was conducted by an appraiser to allow for the release of improvement holdback.

[72] The mother asserted that she did employ a handyman for the period of a week during these renovations, Mr. John Thompson. Mr. Thompson was located by way of a Kijiji ad. He worked for approximately five days and earned $1,100.00 and performed many varied tasks. The mother’s evidence is that she could not locate Mr. Thompson, despite efforts to do so, to seek his testimony at trial.

[73] The mother’s witnesses, Cathy Regier, Brianne Dier, Sue Fenwick, and Kimberly Higgs did not offer persuasive evidence with respect to the issue of the mother completing the Stone Street renovation.

[74] The maternal grandmother witnessed the mother in the lower unit during renovations.

[75] Ms. Dier had not directly observed the mother complete renovations at Stone Street.

[76] Joan Lefaivre provided testimony that was post-separation and of little relevance.

[77] The witness, Kimberly Higgs, testified that during the initial renovation to Stone Street she witnessed the mother going in and out of the basement and heard renovations being done. She believed that the mother was alone in the house but was not actually in the Stone Street property to assess the mother’s contributions to the renovations.

[78] Susan Fenwick is a close friend of the mother. She testified that she saw Stone Street before the renovation were completed and that she was at the property after the renovations were completed.

[79] The evidence of the mother’s current partner, Gregory Morash, related to post-separation issues and was of little assistance.

[80] The mother filed with the Court photographs of before and after pictures of the renovations completed at the Stone Street property.

[81] The father asserts he made key contributions to the Stone Street property, including assistance with the removal of a tree, assistance provided to a contractor for upper-level renovations, paid to have the foundation fixed, repaired/widened the driveway, and painted the lower-level unit with Bobby Morehouse, an acquaintance of the father.

[82] The upper unit was renovated in February, 2013. Mr. Kyle Harris was hired for completion of trim in the upper unit. His evidence is that the renovations were completed as a joint effort with himself as lead and with the father. He does not state the role of the father for the renovation work.

[83] Mr. Harris advised that he was paid for his services by the father. The materials were purchased in the United States. The mother acknowledges that the father paid for the materials and for Mr. Harris’ services and that the amount of the renovation would have been deducted from the monthly amount owing by the father.

[84] The father testified that he paid $1,200.00 on December 20, 2012, to fix the foundation problem at the Stone Street property. He had no evidence to substantiate his assertion. The mother also offered nothing to prove she paid for the foundation fix. The father’s evidence is that he paid the $1,200.00 out of his personal chequing account to Mr. Terry Cooper. This payment was not substantiated.

[85] The father’s witness, Eric Latourney, a long-time acquaintance of the father, provided evidence that the father was present when Mr. Latourney attended at Stone Street to cut down a tree. Mr. Latourney was not cross-examined as he had a family emergency to attend to and his lack of cross-examination was on consent by the mother. The mother acknowledged that Mr. Latourney did attend at the Stone Street property and did cut down a tree and was paid from the joint account. She does not acknowledge that the father assisted.

[86] Mr. Latourney indicated that the father attended the removal of the willow tree and that the father and his friends assisted with stacking light brush into a pile. The father did not provide proof of payment to Mr. Latourney. There was no receipt.

[87] The father testified he took three trips to get gravel to widen the driveway at Stone Street.

[88] He testified he painted the lower-level unit of Stone Street with an acquaintance, Bobby Morehouse. This painting was completed when the mother was in the Dominican Republic. The father’s evidence is that he paid Mr. Morehouse “probably” $180.00 cash. There was no proof of any such payment provided.

[89] The first tenant to occupy the lower level was Ashley Corcoran. She resided in the lower-level unit for the period of August 1, 2012, until November 30, 2015, and her rent for the entirety of her lease was $1,000.00 per month and the mother asserts this rent was paid directly to her for the entirety of the lease. The mother included rental income on her income tax return.

[90] The mother provided evidence that she was the contact person with respect to the advertising of leases, the screening of prospective tenants and the management of the Stone Street property once tenants were in place. Text messages between the mother and the tenant, Lorie Cross, were introduced to substantiate the mother’s claim. The mother did testify that the father was asked to assist with tenant-related issues by collecting rental cheques and delivering landlord and tenant board notices. The explanation provided by the mother as to the request for the father to participate in these requested tasks was since once the parties moved to the Greenlees Drive property in Kingston the Stone Street home was on the route from the Greenlees Drive home to the father’s place of work.

[91] Beyond the picking up or cheques or delivering of notices, the mother did note that the father completed “blue jobs” at the Stone Street property. He may have completed some snow removal between tenants but that the leases for the tenants included that they were responsible for their own snow removal.

[92] The parties opened a joint account for the Stone Street property in April 2015 and closed the account at the end of August 2017. The purpose of the account was to pay the mortgage and utilities for the Stone Street property. After the parties moved to the Greenlees Drive property, new tenant leases were drafted, and the leases became joint leases with both the mother and father listed as the lessors.

[93] The upper unit at Stone Street was rented out as of March 1, 2015 for $1,500.00 per month. The residential tenancy agreement for this period was in both parties’ names. The first and last month rent payments were e-transferred to the father and then forwarded to the mother.

[94] Renovations were required upon the parties vacating the unit for their move to Greenlees Drive. The mother’s evidence is that she hired a worker found on Kijiji named Bruce Vaughan and that she assisted him with renovations to prepare for the new tenants in the upper unit.

[95] Renovations were required between lower-level tenants. Prior to Ms. Lorie Cross moving in the mother asserts that she solely completed renovation to the lower level. Further, the mother provided a series of text messages between herself and Ms. Cross with respect to tenancy related issues. The mother asserts the father did not participate in the renovation.

[96] Ms. Cross provided testimony that confirmed that her primary contact with respect to landlord and tenant issues was the mother. Her testimony was of little value beyond that confirmation.

[97] I must turn to the analysis to determine if the “contributions” of the father resulted in an increase in value to the Stone Street property.

[98] In Kerr, the court also cautioned, at para. 85:

I conclude, therefore, that the common law of unjust enrichment should recognize and respond to the reality that there are unmarried domestic arrangements that are partnerships; the remedy in such cases should address the disproportionate retention of assets acquired through joint efforts with another person. This sort of sharing, of course, should not be presumed, nor will it be presumed that wealth acquired by mutual effort will be shared equally. Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other’s property or any other relief. However, where wealth is accumulated as a result of joint effort, as evidenced by the nature of the parties’ relationship and their dealings with each other, the law of unjust enrichment should reflect that reality.

[Emphasis added.]

[99] With respect to the Stone Street property, the parties agreed on the use of date of separation values, and the equity in the property was determined to be approximately $73,441.00 on the date of separation.

[100] The father’s mortgage application for Greenlees Drive dated December 3, 2014, did not include the Stone Street property’s value or the corresponding liability.

[101] Based on the evidence presented at trial, I find that the father’s contributions made to the acquisition, preservation, maintenance, and improvement of the Stone Street property did not result in an increase to the value of the Stone Street property. The $8,000.00 payment made to the maternal grandmother shall be addressed separately.

[102] I find the accuracy of the financial records presented by both parties in their summaries are not reliable.

[103] The rental income derived from tenants contributed to the acquisition of equity. Evidence was clear with respect to quantum paid for rent for both the upper and the lower level.

[104] I accept the mother’s evidence that she made significant contributions to the rental activities associated with the property.

[105] The net equity in the Stone Street property, as calculated by the Applicant, was $77,341 at the date of separation. I find the net equity in the home was derived by way of a mortgage paydown and an increase in market value.

[106] In Martin v. Sansome, 2014 ONCA 14, at para. 52, the court set out the appropriate analysis for determining an unjust enrichment-based claim for an interest in property within the context of a domestic relationship and following the Supreme Court’s decision in Kerr v. Baranow:

1. Have the elements of unjust enrichment — enrichment and a corresponding deprivation in the absence of a juristic reason — been made out?;

2. If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money?;

3. If the answer to question 2 is yes, should the monetary damages be quantified on a fee-for service basis or a joint family venture basis?; and,

4. If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest?

[107] The parties enjoyed a mutually beneficial arrangement while living in the Stone Street property. While the parties lived at Stone Street, the mother arrived at a contribution amount (generally monthly but not always) from the father which deducted the amount of the rental income.

[108] The father made a discrete $8,000.00 payment to the maternal grandmother. The mother did not require this payment for the Stone Street property as she was already receiving the money from her mother, Cathy Regier. I deem that this payment, unlike the other contributions from the father, did not contribute to a benefit to both parties. This $8,000.00 did constitute an enrichment to the mother and a corresponding deprivation to the father. This payment, while not a direct payment to the mother, was acknowledged by the mother as being made by the father to the Stone Street property. The mother states that the acceptance of the money was based on duress with respect to the potential termination of the relationship pending if the payment was not accepted. I do not find that this $8,000.00 payment was a “down payment” as characterized by the father on the bank draft. But for the mother’s own evidence and the evidence of the maternal grandmother, I would not have found the direct nexus of the payment between the mother and the father.

[109] In Reiter v. Hollub, 2017 ONCA 186, at para. 37, the court found that in a similar circumstance where a one-time payment was made that did not constitute a payment in a shared expense arrangement:

Given the law’s presumption against a gift (Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para 24) and the absence of any evidence of donative intent, the payment should simply be returned.

What is the quantification of (and remedy in respect of) the father’s unjust enrichment/constructive trust, if any?

[110] Accordingly, the $8,000 payment made to the mother in April 2012 shall be returned to the father with interest payable pursuant to the Courts of Justice Act.

Does the mother have an unjust enrichment/constructive trust interest in the property situated at 197 Greenlees Drive, Kingston (“Greenlees”)?

[111] The parties had one child and another on the way and decided it was time to move to Kingston to access the French language, Catholic school system and to seek a larger home.

[112] The mother’s evidence is she found the Greenlees Drive home and that she made efforts to investigate her contributing to the home at the point of purchase. She testified that she spoke to the mortgage broker, Mr. Marshall, and it was decided that it didn’t “make sense” for her to access equity in the Stone Street property to contribute to the new purchase. The father had the necessary funds available to him.

[113] The offer was made on the Greenlees Drive home in November 2014 and closed on December 14, 2014. The parties did not move into the home until February 5, 2015. The mother explained that the home required extensive updating.

[114] A quote was provided by Coral Services in the amount of $29,380 for the completion of renovations as per the scope of the parties. The quote does not set out if the quote was only for labour and for labour and materials. The father claimed the quote was for labour and materials. The purpose of the quote was to provide to the mortgage company to build into the mortgage as a holdback. This was confirmed by way of the real estate trust ledger statement dated December 15, 2014, from Angela Farrow. The father was the only person responsible for the mortgage payments.

[115] The mother’s evidence is that as soon as the offer was accepted, she started purchasing items for the renovation at Greenlees Drive. She spelled out in evidence her responsibilities with respect to the renovation, including her tasks of hiring workers for demolition, hiring workers to complete the actual work and her actual involvement in the renovation.

[116] The mother testified that she was responsible for hiring Jacob Birchall. She swore she hired Andrew Barber and then ultimately, he was asked to leave prior to the completion of his work. She also claimed responsibility for the hiring of Don Nizman.

[117] Jacob Birchall did not testify in this trial. Don Nizman did not testify in this trial. Andrew Barber did not testify in this trial.

[118] The mother provided evidence of negotiating a price for the flooring with Greg Gaylord of Gaylord Hardwood Flooring. The mother paid for the flooring and was reimbursed by the father for the purchase.

[119] The mother provided a summary of her Greenlees renovation expenses which totalled $15,726.49. She offered no receipts for such claims on her summary. She acknowledged reimbursement from the father for the sum of $10,220.00. In testimony the mother added other expenses that were not reimbursed to her including payments she made to Leons®. She provided no evidence to substantiate this position.

[120] The father testified that the costs of the renovation ($15,000) were paid from various sources and that neither party had the receipts to substantiate their positions. The father does acknowledge that the mother is out of pocket the sum of $3,000.00 for such costs and that he was responsible for paying the rest of the renovation costs.

[121] During the renovation, the mother claimed to meet the workers in the morning at the Greenlees property and do some of the work herself at the property. She further claimed at some point after the interior renovation was completed to build raised flower beds, purchase mulch, and paint the lower level of the Greenlees Drive property. The father’s evidence is that he too was attending at the Greenlees Drive home during the renovation and he too was completing required tasks around the Greenlees Drive property.

[122] The father acknowledged that the mother refurbished laminate counter tops and painted the children’s playroom/gym. He testified that the hired labourers completed the other work done on the house.

[123] The mother made an argument that she “saved” the father the difference between the $29,380 (Coral Services quote) and the actual cost of the renovation of $15,000.00. However, the father had the sum of $29,380.00 built into the mortgage. Therefore, he was still responsible for the quoted cost of the renovation.

[124] The parties did not have a joint account at the time they moved into Greenlees Drive. The only joint account the parties shared was with respect to the Stone Street property.

[125] The mother’s evidence is that once the parties moved to Greenlees Drive she performed the “pink” jobs, and the father performed the “blue” jobs. The mother did not directly contribute to the Greenlees Drive house costs. She did pay for child and house-related expenses such as groceries, clothing, and household supplies.

[126] The net equity in the Greenlees Drive property, as calculated by the Applicant, was $104,650.00 at the date of separation. The net equity in the home was derived by way of a mortgage paydown and an increase in market value.

[127] The parties enjoyed a mutually beneficial arrangement while living in the Greenlees Drive property. The financial evidence associated with the renovation and other contributions is unreliable.

[128] Like the treatment as set out above of the $8,000.00 payment made by the father, the mother’s $3,000.00 out of pocket contribution to the Greenlees Drive (part of her estimated $15,000 in total expenses) constitutes a one-time payment that was made that did not constitute a payment in a shared expense arrangement. I do not accept either party’s evidence with respect to the particulars of the amount outstanding but have arrived at the sum of $3,000.00 as testified to as the approximate amount by way of the father’s testimony.

What is the quantification of (and remedy in respect of) the mother’s unjust enrichment/constructive trust, if any?

[129] The $3,000.00 representing the out-of-pocket expenses owing from the father to the mother made to the father in November 24 to January 2015 shall be returned to the mother with interest payable as of January 2015 pursuant to the Courts of Justice Act.

Does the father owe to the mother Section 7 expenses in the amount of $2,172.58?

[130] The mother claims that in 2019 she paid $968.50 for gymnastics expenses for both children. She further asserts that for the years 2019 to 2022, she paid $3,100.00 for the children to participate in hockey. Receipts provided by the mother in evidence confirm the total amount paid for the children to participate in gymnastics and hockey was $2,900.00 and not $3,100.00.

[131] The mother takes the position that the father has not made any contribution to these expenses, that they are properly special and extra-ordinary expenses, and that the mother’s share of such expenses is 46.6% and the father’s share is 53.4%.

[132] The father’s position is that the mother enrolled the children in gymnastics and hockey without consultation and without consent from the father and therefore he has not reimbursed the mother for such expenses. The mother’s evidence was that she requested payment from the father, but he advised that he could not afford the expenses.

[133] The maternal grandmother, Cathy Regier, provided evidence that she assisted the mother with payment for the children’s expenses. She assisted with hockey expenses and gymnastics expenses by paying for one of the registrations. The contribution from the maternal grandmother was not quantified. The evidence is unclear with respect to the maternal grandmother paying for one of the registrations - is that one hockey registration, one gymnastics registration or one of each registration?

[134] The mother has not substantiated what gymnastics or hockey expenses she actually paid for, if she did have consent from the father for the children’s enrolment or if the expenses are legitimate special and extraordinary expenses.

[135] I find on the totality of the evidence that the father does not owe the mother the sum of $2,172.58 for section 7 expenses. The mother’s claim is dismissed.

Costs re Parenting

[136] The issue of the costs with respect to the parenting issues associated with this matter were an issue for determination at this trial. The evidence provided with respect to costs was not differentiated by the Respondent, the Respondent filed one Bill of Costs. I was not prepared to review the Respondent’s Bill of Costs which may reference Offers to Settle and/or settlement positions beyond the parenting issues at this time. Evidence was heard at the trial with respect to the parenting costs only.

[137] The parties shall file their cost submissions with respect to the parenting issues (only) to this court no later than fourteen (14) days following the release of this decision. The submissions shall not be greater than five (5) pages in length, double spaced, and the text shall be in 12-point font. The parties shall ensure that their Bill of Costs and Offers to Settle are provided.

Costs re: Trial

[138] As a result of the mixed result of this matter, the parties shall attempt to resolve the issues of costs with respect to this trial. In the event the parties are unable to resolve the issue, the Applicant shall file her cost submissions with respect to the trial no later than fourteen (14) days following the release of this decision. The Respondent shall file his cost submissions with respect to the trial no later than twenty-one days following the release of this decision. The submissions shall not be greater than five pages in length, double spaced and the text shall be in 12-point font. The parties shall ensure that their Bill of Costs and Offers to Settle are provided.

VII. Endorsement

[139] Counsel for both parties presented their respective client’s case in a manner that was thoughtful and well organized, and their efforts were noted.

Order to go as follows:

1. The mother shall pay to the father the sum of $8,000.00 plus interest (as of April 2012).

2. The father shall pay to the mother the sum of $3,000.00 plus interest (as of January 2015)

3. The mother’s claim for section 7 expenses payable by the father in the amount of $2,172.58 is dismissed.

4. The parties shall file their cost submissions with respect to the parenting issues (only) to this court no later than fourteen (14) days following the release of this decision. The submissions shall not be greater than five (5) pages in length, double spaced, and the text shall be in 12-point font. The parties shall ensure that their Bill of Costs and Offers to Settle are provided.

5. The parties shall attempt to resolve the issues of costs with respect to this trial. In the event the parties are unable to resolve the issue, the Applicant shall file her cost submissions with respect to the trial no later than fourteen (14) days following the release of this decision. The Respondent shall file his cost submissions with respect to the trial no later than twenty-one days following the release of this decision. The submissions shall not be greater than five pages in length, double spaced and the text shall be in 12-point font. The parties shall ensure that their Bill of Costs and Offers to Settle are provided.

Madam Justice Tami L. Waters Released: May 16, 2023