Huson v Kirby, 2023 ONSC 3190

COURT FILE NO.: FC935/20 DATE: 2023/05/30

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jonathan Arthur Huson, Applicant AND: Jenny Lee Kirby, Hugh Cruikshank and Carolyn Cruikshank, Respondents

BEFORE: T. PRICE J.

COUNSEL: Applicant, in Person Matthew Dupre, Agent for the Respondents (per limited scope retainer)

HEARD: April 11, 2023

Endorsement

Background

[1] On June 23, 2022, Jenny-Lee Kirby (hereinafter, Ms. Kirby), who was at the time the only Respondent, brought a summary judgment motion returnable November 23, 2022. In it, she sought to have the claim of the Applicant, Johnathan Huson (hereinafter, Mr. Huson) dismissed.

[2] The motion could not proceed on November 23, 2022 for a number of reasons, including it not having been confirmed by Ms. Kirby’s agent, Mr. Huson’s affidavit being unsworn, and Ms. Kirby’s agent having filed Reply materials which could not be located in either the electronic court file or Caselines. As a result, the motion was adjourned to December 21, 2022.

[3] On that date, Justice Korpan did not hear the motion. It appears that she was informed that, in addition to Ms. Kirby, there were two other owners registered on title to the property against which Mr. Huson was claiming an equitable interest. According to Justice Korpan’s endorsement, Mr. Huson informed her that he did not wish to involve the two other owners in the litigation. Justice Korpan wrote that, if he wished to not include them, he would “have to take steps to not proceed against the property but for a monetary award only and would need to do so before the motion could be heard.” In the result, the motion was adjourned to February 16, 2023.

[4] The motion could not proceed on that date as Mr. Dupre, the lawyer appearing as agent for Ms. Kirby, was involved in a trial. The motion was, accordingly, adjourned to February 21, 2023.

[5] On February 21, 2023, the motion again could not proceed because the two additional property owners had yet to be added as parties. Mr. Huson had filed a Form 14B motion seeking to add them as parties, which had yet to be considered. I noted at that time that a Form 14B motion was not likely the correct method to add a party. In the result, I adjourned the summary judgment motion to March 6, 2023 to be spoken to.

[6] I also directed Mr. Huson to file a sworn copy of the affidavit upon which he was relying in response to the summary judgment motion. He had filed an unsworn copy of his affidavit for the appearance on November 23, 2022. Mr. Huson later filed a copy of that affidavit, sworn March 1, 2023, without the “Exhibits” attached to the original, unsworn, version of the affidavit. Between the sworn and unsworn affidavits, I was satisfied that Mr. Huson had placed some evidence before the court in response to the summary judgment motion. That noted, at no time were any of the so-called “Exhibits” to his affidavit commissioned.

[7] The matter was again before me on March 6, 2023. My endorsement from that day was released the next day. The two additional property owners, Robert Hugh Cruickshank and Carolyn Cruickshank, who are the aunt and uncle of Ms. Kirby, were added as parties Respondent with their verbal consent, provided to the court by Mr. Dupre, who also appeared as their agent. I ordered Mr. Dupre to file Mr. and Mrs. Cruickshank’s written consent to being added as parties. Mr. Huson was ordered to file a “Fresh as Amended” Application, naming the Cruickshanks as additional Respondents. He was also ordered to serve the “Fresh as Amended” Application on Mr. Dupre, who agreed to be served on behalf of both Ms. Kirby and the Cruickshanks. The motion for summary judgment was then adjourned to April 11, 2023 for argument.

[8] On that date, I heard the motion, having been satisfied that my orders of March 7, 2023 had been complied with. The Cruikshanks filed no materials on the motion. No direct relief was claimed against them.

Relief Sought by Mr. Huson in his Pleadings

Original Application

[9] In his original application against only Ms. Kirby, Mr. Huson sought a declaration that she held in trust for him by way of a resulting trust or constructive trust a one-half interest in the property known municipally as 56 Marmora St., London, Ontario.

[10] In order to crystallize his claimed equitable interest in the property, Mr. Huson also requested an order that it be listed for sale, together with a number of ancillary orders effectively giving him total control of the sale.

[11] He also sought orders requiring Ms. Kirby to return some tools to him, that Ms. Kirby preserve and be restrained from depleting her property, and that her assets be frozen.

[12] Lastly, Mr. Huson requested an order that Ms. Kirby indemnify him for one-half the value of a number of debts that he claimed were jointly incurred during the parties’ relationship. The debts included a chequing account overdraft, two Visa credit cards and a further unspecified credit card, all of which were said to be only in Mr. Huson’s name.

Fresh as Amended Application

[13] In the Fresh as Amended Application, which included both Ms. Kirby and the Cruickshanks as parties Respondent, Mr. Huson sought the following orders against Ms. Kirby:

1. that Ms. Kirby be punished for violating various sections of the Criminal Code;
2. that the parties be divorced;
3. that Ms. Kirby return his tools or pay him “reparation” for their value;
4. that “the matrimonial home,” meaning 56 Marmora St., London, be sold;
5. that Ms. Kirby “repay” him “$43,000 in damages due to investments into the property Ms. Kirby has unjustly retained;”
6. that Ms. Kirby pay him the rental proceeds derived from an apartment located inside the residence at 56 Marmora St., for which Mr. Huson claimed to have paid all carrying costs while Ms. Kirby retained the rental proceeds;
7. that Ms. Kirby pay him damages for “mental and emotional and financial torture;” and
8. that Ms. Kirby not deplete her property.

[14] Only claim #5 would have affected the Cruikshanks. They advised, through Mr. Dupre, that their position was aligned with that of Ms. Kirby.

[15] Furthermore, Mr. Huson sought orders that Ms. Kirby be punished for violating various sections of the Criminal Code, and that the parties be divorced on the basis of adultery and physical and mental cruelty. Ms. Kirby and Mr. Huson were never married to each other.

Ms. Kirby’s Answer

[16] When the motion for summary judgment was finally heard, Ms. Kirby had only filed an Answer to the original application. In it, she denied all of Mr. Huson’s claims, especially that he was entitled to any interest in the property located at 56 Marmora St.

[17] She further denied that the parties had any joint debts and that Mr. Huson had incurred any debt on behalf of the parties.

[18] She also denied having in her possession any tools belonging to Mr. Huson, claiming that he had left 56 Marmora St. taking with him a number of personal items, including his tools, when he moved out.

[19] Lastly, she claimed a restraining order against Mr. Huson on the basis that he had harassed her and some of her work and personal colleagues, making inappropriate claims of sexual relationships between them and Ms. Kirby. This issue was not addressed on the motion.

Disclosure Orders

Justice Tobin

[20] On April 12, 2021, following the case conference, Justice Tobin made a disclosure order. All productions were to be made on or before June 11, 2021.

[21] Ms. Kirby was ordered to produce:

1. evidence of the value of the residence located at 56 Marmora St. at three specific dates, one each in 2018, 2019 and 2021;
2. bank statements for her chequing and savings accounts at CIBC for the period between January 1, 2018 and December 31, 2019;
3. proof of the debts disclosed in her financial statement; and
4. evidence of her purchase of the property at 56 Marmora St. and of the financing of the purchase.

[22] Mr. Huson was required to produce:

1. evidence demonstrating that he owned the claimed tools, said to have a value of approximately $10,000, and that they were left at Marmora Street following the parties’ separation;
2. bank statements and itemized receipts for all alleged joint debts for which he sought partial indemnification;
3. records from his financial institutions of all e-transfers paid to Ms. Kirby between December 2014 and February 2019, including dates and times of such transfers;
4. records of all cash payments he claimed to have paid to Ms. Kirby between December 2014 and February 2019;
5. records, including itemized receipts, for all expenses incurred on home improvements for the Marmora Street property; and
6. evidence demonstrating that home improvement products purchased during the parties’ relationship were used at the Marmora Street residence.

Justice Campbell

[23] On July 13, 2021, Justice Campbell ordered Mr. Huson to provide, by September 1, 2020 (likely 2021):

1. the disclosure ordered by Justice Tobin on April 12, 2021;
2. records, including receipts, for all amounts expended to improve the property at 56 Marmora St.; and
3. records for payments towards utilities and other expenses for the property in the period between December 2014 and February 2019.

Dispute About Productions

[24] In their materials, both parties claimed that the other did not comply with the production orders. It appears that, apart from whatever motion placed the issue of production before Justice Campbell on July 13, 2021, neither party brought any other motion to address any alleged failure to comply with a production order.

Productions Filed in the Court Record

[25] Neither party was required to file their productions in the court record, which is now maintained electronically.

[26] Located in the court’s electronic record, however, is a 322-page assembly of documents entitled “Applicant’s Productions,” which Mr. Huson filed on September 1, 2021.

[27] This assembly of documents (hereinafter, “the Applicant’s Productions) was not referred to in Mr. Huson’s Confirmation for the original motion date of November 23, 2022. However, from a review of filed Confirmations, I see that, in a Confirmation filed by him for the court appearance on December 21, 2022, it was listed amongst materials to which the presiding judge (Justice Korpan) was to have been referred. Mr. Huson appears not to have filed any other Confirmations thereafter including, particularly, for the date that the summary judgment motion was argued on April 11, 2023.

[28] None of the materials in the “Applicant’s Productions” were sworn or explained in Mr. Huson’s affidavit. The electronic volume contained a large number of text messages, several pages of unsworn commentary, presumably written by Mr. Huson, photographs - many of tools, some bank records, numerous pages of data entered into charts entitled “Quicken”, a list of tools, and invoices for the purchases of “Snap-On Tools” made between 2009 and 2017. Other miscellaneous documents were also included. Many of the documents in the “Applicant’s Productions” are covered in handwriting. (The information about the tools shall be referred to more specifically, below, when Mr. Huson’s claim for the return of his tools is discussed.)

Order

[29] For the reasons that follow,

1. Mr. Huson’s claims against Ms. Kirby are dismissed.
2. Ms. Kirby or her agent, Mr. Dupre, may serve and file written submissions on costs, not exceeding three pages, plus an itemized bill of costs, directed to me, through the Family Court Trial Coordinator at London, by 4:30 PM on June 9, 2023.
3. Mr. Huson may serve and file his written response to any submissions made by Ms. Kirby or Mr. Dupre on her behalf, not exceeding three pages, directed to me, through the Family Court Trial Coordinator at London, by 4:30 PM on June 21, 2023.
4. Because Ms. Kirby is the successful party and is, pursuant to Family Law Rule 24(1), presumptively entitled to costs, if no submissions for costs are received from either Ms. Kirby or Mr. Dupre on her behalf by 4:30 PM on June 9, 2023, costs will be deemed to have been settled and there shall be no order as to costs.
5. Ms. Kirby’s claim for a restraining order is adjourned to October 10, 2023 at 9:30 a.m. to be spoken to via Zoom.

Affidavit Evidence on the Motion

Ms. Kirby

[30] Ms. Kirby filed an affidavit sworn June 7, 2022 in support of the summary judgment motion. In it, she alleged that Mr. Huson is a “vexatious litigant with no cause of action against me.” She also claimed that he had not fully complied with the disclosure orders and, to the extent that he had tried, some of what he had provided was “illegible.”

[31] Ms. Kirby’s substantive evidence in support of her motion is as follows:

a. The parties cohabited in her home located at 56 Marmora St., London between “approximately 2014/2015 until 2018/2019.” b. On January 10, 2019, the parties got into a disagreement. She told Mr. Huson to remove his belongings and leave the property by the end of the weekend of January 11-13, 2019. c. When she returned to the property on January 13, 2019, Mr. Huson was gone, having left behind many of his personal belongings. She denied removing, selling, destroying, hiding or otherwise relocating any of his belongings at that time. d. Because Mr. Huson was temporarily residing in his car after his departure, she felt sorry for him and allowed him to return to stay in the house for an additional six weeks while she stayed with her parents. She also gave him a 2002 Ford Explorer and $3,000.00 to allow him to start over. She said that she did so because she wanted him “gone for good.” e. Upon her return to the house at the end of that six-week period, Mr. Huson was again gone, still having left behind many of his personal belongings. She relocated them to the basement. f. On or about October 31, 2019, Mr. Huson gave her a list of his belongings that he wished to have returned. The list did not include any tools. She gave him the items that he did request by January 2020. After that, she had no further contact with Mr. Huson until served with his application. g. In response to Mr. Huson’s claim to an interest in 56 Marmora St., she deposed that the house was originally purchased by her previous boyfriend and that she had resided there since 2011, having contributed financially to it since that time. h. Following her separation from her former boyfriend, he transferred the house into her name on June 29, 2016. Her aunt and uncle, Mr. and Mrs. Cruickshank, were also added as parties because they were co-signers on her mortgage. i. There were no discussions between her and Mr. Huson about his name being added to the title to the property. He did not attend any meetings about the transfer of the home into her name or about how she would be financing the acquisition of the residence. j. Because there had been a dispute with her former boyfriend about her claim to a share of ownership of the home, before Mr. Huson moved into the house “in November 2015”, she asked him to pay $500.00 per month in rent, plus to share the cost of groceries and other bills, or to sign a domestic contract indicating that he was to have no entitlement to the house. She wanted to avoid any problem about home ownership similar to that she had gone through with her former boyfriend. She also wanted compensation from Mr. Huson to cover his expenses if he was to live with her. k. While Mr. Huson did not sign the contract, he began to pay the requested rent each month. That eventually ended when he stopped paying anything to her. l. Mr. Huson did not invest significant time or money into the “family home” and there was no understanding between them that he was entitled to any equity in the property. m. Furthermore, Mr. Huson overstated how much he contributed to the residence by his labours. He started and left several projects unfinished. The projects that he did finish were unlikely to have improved the property value. n. Amongst Mr. Huson’s “supposed ‘improvements’” were having paid for the installation of a new rental water heater for which she now pays the rental fee, using a plumbing snake in an effort to unclog a drain, resulting in her having to call a plumber to complete the job, unsuccessfully trying to fix the ductwork in the residence, and having mowed the grass and shoveled snow, which he had labelled “landscaping.” o. Included amongst the disclosure that he did provide to her were some “black-and-white photos that are indecipherable.” p. Despite having been ordered to provide evidence of having spent almost $5,000.00 on supplies for home improvements, $7,000.00 in cash payments, and $24,000 on household expenses, Mr. Huson failed to do so. q. Her bank statements (which were not produced on the motion) indicated that Mr. Huson e-transferred her $13,268.00 between November 2015 and January 2019. This equated to payments of $340.21 per month over a 39-month period, an amount far less than the $500.00 per month in rent that he had agreed to pay. r. Mr. Huson consistently struggled with his finances. He was fired from several jobs in 2017-2018. If he incurred debt during this period, it was on his own behalf. s. The parties never had any joint accounts or debts, so there was no basis for Mr. Huson to seek indemnification for almost $13,000.00 in debt he claimed to have accrued on behalf of both parties. Mr. Huson failed to provide bank statements and itemized receipts for the alleged joint debts. t. As for Mr. Huson’s claim that he left tools valued at over $10,000 in the residence when he departed, she never sold, gave away or threw out any of his belongings, including tools. She had no specific knowledge of the whereabouts of certain “Snap-On” wrenches, nor did she have the ability to identify what specific tools he claimed to have left behind or had taken with him. As before, Mr. Huson failed to comply with the order that he provide proof that he left tools at the residence.

Mr. Huson’s Responding Affidavit

[32] In his responding affidavit, Mr. Huson asserted that Ms. Kirby is in receipt of “all available bank statements” from three different accounts at three different financial institutions, all of which he claimed were “found in my productions manual.” None were produced on the motion.

[33] He claimed that his “accountability” stopped at him having demonstrated that he had e-transferred money to Ms. Kirby from an account at CIBC.

[34] In turn, he claimed that Ms. Kirby refused to disclose her bank records to back up his claims of having transferred funds to her. On that point, I note that the order of Justice Tobin required only that Ms. Kirby produce bank statements for one specific chequing account and another specific savings account, both with CIBC, for the period from January 1, 2018 to December 31, 2018, inclusive. Justice Tobin further noted in his endorsement that, beyond those records and some other disclosure not including banking records, Mr. Huson told him that “he requires nothing further.”

[35] He referred to two Requests to Admit served on Ms. Kirby in January and April 2022, neither which was presented on the motion.

[36] He deposed to the following events.

a. Ms. Kirby invited him to live with her at the Marmora Street property “under the guise of a homeowner interested in pursuing another property purchase.” b. Ms. Kirby began to be financially enriched beginning in January 2015 because there were text messages where she was “shown… to be committing to the search for joint property that compelled us to save jointly for that goal…” c. He had provided “proof” to Ms. Kirby’s former solicitor that he had left his residence in Otterville to pursue a joint property purchase with Ms. Kirby. d. While Ms. Kirby averaged the amount that he provided to her over a period of 39 months, his bank records indicate that, prior to November 2015, which was the earliest date relied upon by Ms. Kirby, she had received an additional $5,250.00 in e-transfers. Some of the e-transfers did not go into her chequing account. Instead, Ms. Kirby deposited the e-transfers into another account, withdrew the cash at an ATM, and then deposited the cash into her chequing accounts. He produced no evidence to support the assertion of cash diversion or a second bank account. e. He provided a number of different totals of money that had been e-transferred to Ms. Kirby over various periods beginning in March 2015 and ending on December 31, 2016, all of which were “demonstrated in my productions manual, both in original CIBC bank record form and curated Quicken data.” No explanation was provided about the “Quicken data” or how it was “curated.” f. The first 18 months of the time that he and Ms. Kirby cohabited constituted the period during which Ms. Kirby “received the most enrichment” and where he “suffered enough of a loss” to be “trap[ped]…financially.” g. In summary, beginning in January 2015, he was paying Ms. Kirby a minimum of $500.00 per month, many such payments having been provided in the form of e-transfers, with Ms. Kirby taking an additional $600.00 per month in rental income from the apartment inside 52 Marmora Street that he renovated in early 2015. h. His “efforts and… e-transfers alone” were sufficient to allow the rent to be covered, as well as the mortgage and property taxes owing on Marmora Street to the time the parties separated. i. The amounts that he paid to Ms. Kirby, together with the rent from the apartment, allowed Ms. Kirby to survive financially between September 2015 and February 2019. j. He acknowledged Ms. Kirby having provided him with $3,000.00 and a Ford Explorer when their relationship ended, although the vehicle was provided later than promised, without proof of ownership and no bill of sale. He received the $3,000.00 three days late, together with a demand that he agree, in writing, to not commence legal action against her.

[37] Mr. Huson appended to his affidavit a series of documents which he called “Exhibits” although, as already noted, none were sworn as such or commissioned.

[38] The so-called “Exhibit A” included a number of text messages pertaining to the “renovations required to the upstairs apartment” and photographs said to be of the work that he had undertaken. The remainder of the appended documents consist of a series of text messages. One series, dated March 23, 2015, has Ms. Kirby, after deflecting the question, eventually responding to Mr. Huson asking her if she would move to Otterville by writing “half-way remember.” Mr. Huson cites this exchange as evidence that Ms. Kirby intended to join him in purchasing a property “halfway” between London and Otterville.

[39] The so-called “Exhibit B” consisted of three pages of text messages between the parties in June 2017. They are said to “outline Ms. Kirby coercing” Mr. Huson to make a consumer proposal under the Bankruptcy and Insolvency Act.

[40] In one of them, Ms. Kirby wrote, in reference to Mr. Huson’s indebtedness, “your debt is my debt because we are in this together. I can help make the payments but I need to know the full scope of where we sit.”

[41] In another, Ms. Kirby responded to Mr. Huson’s assertion that he “pay[s] out to debt more than what you pay to the house, and I can’t get ahead,” by telling him that he should consider bankruptcy and starting over with a fresh slate, something she had to do. She then wrote that, by the following summer (2018) her “credit will be perfect… and in a couple of years we can use the equity in the house for a down payment.”

[42] The so-called “Exhibit C” consisted of a series of text messages and emails relating to the parties’ breaking up and the terms negotiated between them for Mr. Huson to leave the property.

[43] The so-called “Exhibit D” consisted of five pages of text messages and other documents relating to when the parties first began to cohabit, an unpaid utility bill, and the repair of a tire by Mr. Huson. Included amongst the pages is an “Extended Warranty Certificate” dated July 2018 for the cleaning of furnace ducts at 56 Marmora St. On the Certificate, Mr. Huson is described as the “homeowner.” The certificate was issued by a business called “Canadian Air Specialists Incorporated.”

Ms. Kirby’s Reply

[44] In her reply affidavit sworn November 18, 2022, Ms. Kirby again referred to disclosure issues, deposing that she had received “Quicken data” forms prepared by Mr. Huson but only a few original bank statements.

[45] She challenged the accuracy and legitimacy of the “Quicken data” forms, claiming that they did not match her bank statements, which she, again, did not produce.

[46] She also disputed an assertion allegedly made by Mr. Huson in a specific paragraph of his affidavit which, in fact, he did not make. Ms. Kirby deposed that the “first payment” she received from Mr. Huson was on November 23, 2015, in the amount of $400 for rent. Mr. Huson had deposed that his first e-transfer to Ms. Huson occurred in March 2015. He did not mention rent. It seems that the real dispute was not about what the first transfer was intended to cover but when it was made.

[47] Ms. Kirby further denied having a second bank account during the parties’ relationship. She also disputed the amounts that Mr. Huson deposed to having transferred to her in the periods between June and December 2016 and July and December 2016.

[48] Lastly, she reiterated that Mr. Huson did not pay her the full amount that he owed her for “rent and other expenses over 48 months,” and that he actually underpaid her.

Additional Materials filed by Mr. Huson

[49] Mr. Huson filed an affidavit sworn December 8, 2022, which post-dated the Reply affidavit of Ms. Kirby. There were some additional statements made in this affidavit relating to disputes over disclosure and Mr. Huson’s claims with respect to the work that he performed in preparing the upstairs apartment at 56 Marmora St. for rent.

[50] Mr. Dupre objected to the document being utilized on the motion. Much of the affidavit repeats what Mr. Huson deposed to in his responding affidavit, already referred to.

[51] I did not have regard to this affidavit because to have done so would have been to allow Mr. Huson to file additional evidence beyond that permitted by Rule 14(20) of the Family Law Rules. Mr. Huson did not contest Ms. Kirby’s objection to the use of this additional affidavit, nor did he make a specific request that I rely upon the evidence in this additional affidavit.

[52] Additionally, Mr. Huson filed a Request to Admit dated March 2, 2023. Apart from the fact that many of the “facts” which Mr. Huson was asking Ms. Kirby to admit were actually more in the nature of submissions or argument, this document was filed after the motion was unable to proceed on February 16, 2023 and again on February 21, 2023. In my view, by that time it was far too late for Mr. Huson to file new documents in an effort to prove his case. The facts upon which the motion was based were set out in the affidavits of the parties properly filed for the motion, the last of which were that of Ms. Kirby, sworn November 18, 2022, and the corrected, sworn affidavit of Mr. Huson from November 2022, finally sworn March 1, 2023.

Submissions on behalf of Ms. Kirby

[53] Mr. Dupre submitted that there were only two issues arising from the claims of Mr. Huson.

[54] The first related to Ms. Kirby’s alleged promise, contract, or express or implied trust which were claimed to have granted Mr. Huson an equitable interest in the property at 56 Marmora St., London, Ontario.

[55] He firstly submitted, without supporting authority, that any agreement which would have afforded Mr. Huson an equitable claim to an interest in Ms. Kirby’s real estate at 56 Marmora Street was not memorialized in writing and is, as a result, unenforceable pursuant to section 4 of the Statute of Frauds.

[56] He next responded to Mr. Huson’s claim for unjust enrichment by referring to the Court of Appeal decision in Peters v. Swayze, 2018 ONCA 189. He said that the circumstances in that case which led the Court of Appeal to uphold a judgment of Justice R. John Harper that there was no unjust enrichment and, as a result, no joint family venture, applied equally to this case.

[57] He pointed to admissions contained in Mr. Huson’s affidavit that he had agreed to pay $500.00 per month in rent and said that, in those circumstances, wherever he paid more than $500.00 in any month, he was merely contributing to additional costs such as groceries.

[58] He further pointed to the absence of any quantification by Mr. Huson of what Ms. Kirby owed him.

[59] He said that Mr. Huson had failed to put his best foot forward in responding to Ms. Kirby’s motion.

[60] He submitted that the action has been driven by the resentment and hurt suffered by Mr. Huson as a result of the parties’ relationship ending, which is not a basis for the repayment of monies paid during the relationship, nor for a claim of unjust enrichment.

[61] When asked about a possible quantum meruit claim for work done by Mr. Huson in the apartment, Mr. Dupre responded that Mr. Huson had produced no evidence of his expenditures nor said anything about how he would value the work he had done.

Submissions of Mr. Huson

[62] Mr. Huson submitted that he “believed” that he was the beneficiary of a constructive trust, pointing to what he said were “several trust agreements found in text messages” between him and Ms. Kirby which supported his claim for unjust enrichment.

[63] He pointed to the documents comprising the so-called “Exhibit B” to his affidavit as evidence that Ms. Kirby relied on the money he was providing to her.

[64] He argued that he could have purchased a home in Otterville from his parents but did not do so, choosing, instead, to move in with Ms. Kirby because she told him that he had equity in the property. None of this was set out in his evidence.

[65] He challenged assertions that he had not produced all of his records pursuant to the orders of Justices Tobin and Campbell.

[66] He submitted that Ms. Kirby’s acknowledgement that the parties were in a “common-law relationship from approximately 2014/2015 until 2018/2019” should be sufficient to allow the matter to proceed to a trial, where the trial court could review whether the parties were engaged in a joint family venture.

[67] He submitted that a constructive trust was created when, having forgone the Otterville property, he worked on the property at Marmora Street. He indicated that the texts which were filed made clear that he would not have moved in with Ms. Kirby if he was not going to obtain an interest in the house on Marmora Street.

[68] It was during submissions that he differentiated between money that he provided to Ms. Kirby and its intended use and the means by which he was said to have obtained an interest in the property on Marmora Street.

[69] He said that the money which he gave to Ms. Kirby was to be utilized toward the purchase of another property in the future, whereas his claim for an interest in the Marmora Street property is based on discussions found in text messages between the parties which are located in his “Applicant’s Productions” manual.

[70] He claimed that anything that he paid to Ms. Kirby over $500.00 per month was to be used towards the future property purchase, a claim neither pleaded nor asserted in his affidavit.

[71] He further submitted that a sum of approximately $7,000.00 that he paid to Ms. Kirby was to be used to pay the mortgage on Marmora Street. He did not specify whether the alleged $7,000.00 consisted of rent or other payments.

[72] In respect of the claim for work done on the residence, he asserted in submissions that he broke up and removed a concrete sidewalk, did yard work, insulated the basement, and that he persuaded his uncle to do some HVAC work. Apart from a reference to insulation in the basement, these other efforts were not in evidence.

[73] He said the fact that tenants of the upstairs apartment contacted him to complain about rental issues established that he had an interest in the property. He said that he invested time, equity and money in Marmora Street in the reasonable belief that he had a share of the property.

Ms. Kirby’s Reply Submissions

[74] Mr. Dupre replied that, if Mr. Huson was going to rely upon having suffered a deprivation to establish unjust enrichment, he had to also establish that Ms. Kirby had gained something from that deprivation and that he needed to quantify her gain. He said that would be hard to do because Mr. Huson was simply paying day-to-day expenses while residing with Ms. Kirby.

[75] He said that the parties may have had plans, but those plans clearly changed when the relationship soured. He asserted that Mr. Huson cannot simply pull a trust remedy out of thin air.

Law – Summary Judgment Motions

[76] Family Law Rule 16 pertains to summary judgment motions in family law matters. It provides, in part, as follows:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

DIVORCE CLAIM

(3) In a case that includes a divorce claim, the procedure provided in rule 36 (divorce) for an uncontested divorce may be used, or the divorce claim may be split from the rest of the case under subrule 12 (6).

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

(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.

[77] I found the following words of Justice L. Richetti in Cormpilas v. 1490565 Ontario Limited, [2022] O.J. No. 69, to be pertinent to the questions of how to approach motions for summary judgment and what can raise a genuine issue requiring a trial:

191 The approach for summary judgment motions was summarized by Corbett J. in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 33 and 34:

As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:

1. The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;

2. On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;

The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a "full appreciation" of a case necessary to grant judgment. Obviously, greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court's appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.

192 As stated by Corbett, J., the fundamental question is whether the summary judgment process, in the circumstances of a given case, will permit the court to make a fair and just determination of the issues before the court. The question is not whether the procedure on the motion would be as exhaustive as a trial, but rather whether the evidentiary record and the process gives the judge confidence to find the necessary facts and apply the relevant legal principles to decide the issues in a fair and just manner: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 50.

193 In Hryniak, Karakastanis J. considered the interrelationship between r. 20.04 (2) (a) and r. 20.04 (2.1) at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure under rule 20.04(2) (a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04 (2.1) and (2.2). She may, at her discretion, use those powers provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

(Emphasis added)

194 Mere allegations, bald statements or assertions of belief, even under oath, on a summary judgment motion does not raise a genuine issue requiring a trial.

195 Alleging that further or new evidence will or may be available at trial generally does not create a genuine issue for trial. The parties have an obligation to "put their best foot forward" and, unless there are clear, cogent and compelling reasons, the motion's judge is entitled to accept that the summary judgment motion evidence is the evidence that would be called at trial.

Discussion

[78] As a starting point, I find that, despite the provisions of Rule 16(2) of the Family Law Rules, a motion for summary judgment is available in this case, notwithstanding Mr. Huson’s claim for a divorce. The reason is simple. The parties were never married, so Mr. Huson’s claim for a divorce is groundless and can be dismissed summarily.

[79] With that resolved, I am able to consider whether summary judgment should be granted in favour of Ms. Kirby with respect to all or any of the other claims made by Mr. Huson.

[80] Rule 16(4) requires a moving party who seeks an order by way of summary judgment to “serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.”

[81] Similarly, Rule 16(4.1) requires the party responding to the motion for summary judgment to “set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.” This subrule further provides that “the party responding to the motion may not rest on mere allegations or denials.”

[82] As Rule 16 indicates, each party was also entitled to rely on “other evidence” in addition to affidavits.

[83] Rule 14(17), which applies to motions, generally, and therefore, in my view, to summary judgment motions as well, sets out how “evidence on a motion may be given”, including “an affidavit or other admissible evidence in writing.” The other two methods permitted do not apply to this case.

[84] When asked if he had read Rule 16 before he responded to Ms. Kirby’s motion, Mr. Huson said that he had not done so.

[85] Ms. Kirby relied only on affidavit evidence, having produced no “other evidence” in support of her claim that there is no genuine issue requiring a trial.

[86] In his affidavits, as I have already noted, Mr. Huson appended documents which he called “Exhibits” although they were not sworn as such. Being unsworn, I am not bound to admit them or to give them any weight. (J.N. v. C.G., [2023] O.J. No. 561 at para. 11 (Ont. C.A.))

[87] Additionally, in response to the disclosure orders of Justices Tobin and Campbell dated April 12 and July 13, 2021, respectively, Mr. Huson filed with the court, on September 1, 2021, a 322-page electronic volume of documents entitled “Applicant’s Productions.” Because Mr. Huson did not file a confirmation for the motion, I was not asked to review these records for the summary judgment motion. I did, however, out of an abundance of caution and fairness to Mr. Huson, take the time to look through the “Applicant’s Productions.”

[88] In order to succeed on her motion, Ms. Kirby must establish that “there is no genuine issue requiring a trial of a claim or defence.” The evidentiary burden with respect to supporting his claim, at least to the extent of raising a genuine issue requiring a trial, lies upon Mr. Huson.

[89] Ms. Kirby complained that Mr. Huson had failed to comply with orders requiring that he provide full financial disclosure. In her case, however, the complaint focused on the alleged failure of Mr. Huson to have provided documents from financial institutions which would have supported his claims against her, his electronic volume of documents notwithstanding.

[90] Mr. Huson similarly complained that Ms. Kirby failed to provide full financial disclosure. He complained that she possessed financial records which would have corroborated his claims about having provided funds to her which were dedicated to either the future purchase of a new residence or paid in reduction of the mortgage on Marmora Street.

[91] The issue of the failure of a party to a motion for summary judgment to have complied with its disclosure obligations was addressed by the Court of Appeal in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONCA 878, [2014] O.J. No. 5815. At paragraph 4, the Court of Appeal noted that if one party is complaining that the other failed to comply with its disclosure obligations, the complaining party ought to have addressed the failure by taking steps to compel production. As the court wrote, having not done so, the complaining party “did not meet their obligation to put their best foot forward on the motion.”

[92] Thus, it can be concluded and I find that Mr. Huson did not put his best foot forward in defence of the motion when he did not seek to compel the production by Ms. Kirby of the banking records that he said would have corroborated his financial claims. Accordingly, he can only rely on his own documents.

Analysis of Mr. Huson’s Claims

1. That Ms. Kirby be punished for violating various sections of the Criminal Code

[93] A civil action in the Family Court is not the appropriate forum for a determination of whether someone committed a criminal offence, much less that they be “punished” for having done so.

[94] I find that this claim lacks any legal foundation. As a result, Mr. Huson cannot and did not raise a genuine issue requiring a trial of this issue.

2. That the parties be divorced

[95] As I have already noted, the parties were never married. This claim fails on that basis alone.

3. That Ms. Kirby return Mr. Huson’s tools left at 56 Marmora Street or that she pay him “reparation” for their value

[96] As I have noted, the assembly of “Applicant’s Productions” included a number of invoices from Snap-On Tools, mostly lacking descriptions of the items purchased. They were identified, instead, by product numbers. The transaction dates run from October 27, 2009 to June 21, 2017.

[97] The name of the customer listed on each of the invoices is Johnathon McMurchy, whose address was listed as 217 Main St. W., Otterville, Ont.

[98] Also included with the “Snap-On Tools” invoices was a synopsis, apparently from “Snap-On Tools,” of purchases by Johnathon McMurchy for each of the years 2009 through 2017, showing totaling $5,300.28.

[99] Included in the unsworn “Applicant’s Productions” manual is what appears to be an invoice dated October 2, 2020 in the amount of $7,700.95. As before, the person who obtained the quote was Jonathon McMurchy, of 217 Main St. W., Otterville, Ontario. A handwritten note on that document indicates that it is a “quote” for a replacement “box,” which I understood from the submissions to be a toolbox.

[100] According to the original Application issued in 2020, the identified Applicant was Jonathon Huson. At the time of its issuance on October 20, 2020, Mr. Huson was residing in Tillsonburg Ontario.

[101] The Fresh as Amended Application lists the applicant as Jonathan Arthur Huson, residing at 7 Mill St. W., Otterville, Ontario.

[102] Nothing in the materials connected Mr. Huson to 217 Main St. W., Otterville, Ontario, nor did Mr. Huson, at any point in his materials, sworn or unsworn, explain whether there is a connection between his claim to missing tools and those apparently purchased from “Snap-On Tools” by Mr. McMurchy.

[103] Also located in the unsworn “Applicant’s Productions” manual were photographs of a number of tools which appear to have been taken from the Snap-on Tools website, plus a number of other photographs of tools seemingly privately listed for sale online, together with a third series of photographs of tools - some having been taken when the parties were clearly in a relationship - many of which appeared to have been laid out on a concrete floor for photographic purposes. Also included were a number of photos of “Snap-On Tool” chests.

[104] Accompanying the photographs are five typewritten pages, all unsworn, describing the various tools and their significance, plus a text exchange dated May 14, 2017 relating to “Johnny’s tools.”

[105] In her original affidavit sworn June 7, 2022, Ms. Kirby deposed that on or about October 31, 2019, Mr. Huson provided her with a list of his belongings that he wished to have back from the residence, the list not having included any tools.

[106] She also deposed that she never sold, gave away or threw out any of Mr. Huson’s belongings, including any tools, after he vacated the property in January 2019. She deposed to being unable to identify “what specific tools were left behind or taken any of these times” and denied any “specific knowledge of the whereabouts of the “Snap-On” wrenches.

[107] She further deposed that Mr. Huson sold his toolbox during the parties’ relationship, which led her to question whether the wrenches were left in the house.

[108] She also noted that Mr. Huson had been ordered to provide “proof that he left the claimed tools” at the residence after separation and had failed to do so.

[109] In his order dated April 12, 2021, Justice Tobin ordered Mr. Huson to produce” evidence demonstrating that he owned the claimed tools, said to have a value of approximately $10,000, and that they were left at Marmora Street following the parties’ separation.”

[110] In his affidavit dated November 14, 2022 (ultimately sworn on March 1, 2023) filed in response to the motion, on this issue, Mr. Huson wrote that ,“All claims made in my motion have been demonstrated in my productions manual…”

[111] Through his “Applicant’s Productions” manual, Mr. Huson did provide a series of photographs of tools. The values of some of those tools are set out on the invoices from “Snap-On Tools.” Other tools, apparently for sale over the internet, also include an asking price, which one could reasonably conclude establishes the highest value that the vendor of each such tool hoped to receive on a sale.

[112] Generously, they may be taken together to be Mr. Huson’s effort to establish the value of the tools for which he seeks payment.

[113] However, they do not constitute “other evidence” since they are not sworn, nor explained by anything deposed to by Mr. Huson in his affidavit of November 14, 2022. They also fail to establish what tools, if any, Mr. Huson allegedly left at 56 Marmora Street when he vacated the premises on either occasion.

[114] I find that a mere reference by Mr. Huson in his affidavit to his “Applicant’s Productions” manual did not mean that its contents were also sworn to. Its contents, therefore, were not “other evidence” for the purposes of the motion.

[115] Furthermore, nowhere in any of the materials that he filed for the summary judgment motion does Mr. Huson explain why he never mentioned the tools in the list of items that he wanted from 56 Marmora Street that he gave to Ms. Kirby shortly after he first vacated the premises.

[116] The issue of whether or not tools were left at 56 Marmora St. by Mr. Huson when he departed in January 2020 would have involved an assessment of the credibility of both Mr. Huson and Ms. Kirby on this point.

[117] In Gebara v. The Economical Insurance Group, 2017 ONSC 801, [2017] O.J. No. 458, the Plaintiff sought summary judgment against his insurer for the value of a number of items that he claimed were lost in a fire. Justice A. Doyle dismissed the motion on the basis that she was unable to “make findings of fact on the material issues of dispute as there is contradictory evidence regarding the existence of the items and whether they were lost in the fire.” Furthermore, Justice Doyle found that she could not, on the evidence before her, quantify the loss of the specific items. She held that there were genuine issues requiring a trial.

[118] In that case, the Plaintiff was denied summary judgment because his evidence was deficient.

[119] In this instance, it is not Ms. Kirby, the Respondent, who is making a claim which is contested. It is Mr. Huson, the Applicant. I take from the decision of Justice Doyle that a person seeking summary judgment who cannot satisfactorily address contradictory evidence regarding the existence, whereabouts and value of items for which payment is sought should be denied summary judgment.

[120] By parity of reasoning, I find that a person resisting a claim for summary judgment who produces no admissible evidence addressing the existence, ownership, whereabouts and value of items for which he seeks payment fails to raise a genuine issue requiring a trial about those items.

[121] Even if I were to cast the most positive light on the evidence of Mr. Huson and were to find that there were tools located at 56 Marmora St. at some point, Mr. Huson still failed to respond by properly leading evidence about those tools, as Justice Tobin ordered him to do over two years ago.

[122] He also did not deny the allegation that he had sold the Snap-on toolbox during the relationship, failed to explain the significance of a text message dated in 2017 which referred to missing tools some 2.5 years before he vacated 56 Marmora Street, and failed to establish the value of each of the tools he claimed he had left in the premises.

[123] Taking all of the evidentiary failures in respect of this claim together, I find that Mr. Huson has not raised a genuine issue requiring a trial with respect to his claim for the value of tools allegedly left at the residence of Ms. Kirby when the parties separated, and conclude that this claim, like the others, must be dismissed.

4. That 56 Marmora Street be sold

[124] In this claim, Mr. Huson refers to this property as “the matrimonial home.” It was not, for the reasons noted under claim #2.

[125] It is not clear that Mr. Huson understood that, by filing a Fresh as Amended Application, he was to assert all claims he wanted the court to consider, including those that had been asserted in the previous pleading.

[126] However, in the expanded recitation of his claims, while referring to some sections of the Criminal Code, Mr. Huson wrote that “Ms. Kirby, as a partner in a joint family venture, with Mr. Huson, received unjust enrichment.”

[127] Taken together, the claim as pleaded appears, in substance, to reiterate Mr. Huson’s claim in the original Application that Ms. Kirby held in trust for him by way of a resulting trust or constructive trust a one-half interest in the property and that, in order to crystallize his claimed equitable interest, it be listed for sale.

[128] Mr. Dupre’s submission about the unenforceability of any oral agreement supporting a claim by Ms. Huson to an equitable interest in the real property at 56 Marmora Street, London is answered by the following statement of Justice I.F. Leach at paragraphs 34 and 36 in Rolston v. Rolston, [2016] O.J. No. 2518:

34 …In Canada, the view which has won the repeated support of the Supreme Court of Canada is that such unwritten agreements relating to land will be enforced if a claimant can demonstrate acts of part performance "unequivocally, and in their own nature, referable to some such agreement as that alleged". See, for example: McNeil v. Corbett (1907), 1907 SCC 45, 39 S.C.R. 608; Deglman v. Guaranty Trust Co., 1954 SCC 2, [1954] S.C.R. 725; Brownscombe v. Public Trustee (Administrator of Vercamert Estate), 1969 SCC 86, [1969] S.C.R. 658; and Thompson v. Guaranty Trust Co., 1973 SCC 161, [1974] S.C.R. 1023….

36 However, in my view, the doctrines of part performance and proprietary estoppel are but two manifestations of the court's wider equitable jurisdiction, (repeatedly confirmed and refined by the Supreme Court of Canada), to grant relief pursuant to the modern principle of "unjust enrichment"; i.e., in circumstances where a claimant is able to prove enrichment of another party, and a corresponding deprivation of the claimant, with no juristic reason for the enrichment. In such circumstances, a successful claimant may be entitled to a monetary remedy or a proprietary remedy, including imposition of a constructive trust. See, for example: Pettkus v. Becker, 1980 SCC 22, [1980] 2 S.C.R. 834; Sorochan v. Sorochan, 1986 SCC 23, [1986] 2 S.C.R. 38; Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 SCC 34, [1989] 2 S.C.R. 574; Peter v. Beblow, 1993 SCC 126, [1993] 1 S.C.R. 980; and Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269.

[129] I therefore reject Mr. Dupre’s argument about the applicability of the Statute of Frauds in this case, based on the pleadings and evidence.

[130] The Supreme Court of Canada set out the principles regarding claims of unjust enrichment arising from a joint family venture in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269. Those principles included:

1. the claimant being required to establish three elements: an enrichment of the defendant by the plaintiff, a corresponding deprivation of the plaintiff, and the absence of a juristic reason for the enrichment;
2. in most cases, a monetary award will be sufficient to remedy an established unjust enrichment, although a proprietary remedy may be required where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property, and that a monetary award would be insufficient;
3. the determination of whether parties were engaged in a joint family venture is a question of fact;
4. in undertaking its assessment of a claim of joint family venture, a court must have regard to all of the relevant circumstances, including factors relating to mutual effort, economic integration, actual intent and priority of the family;
5. the more extensive the integration of the couple's finances, economic interests and economic well-being, the more likely it is that they have engaged in a joint family venture; and
6. the actual intentions of the parties, either express or inferred from their conduct, must be given considerable weight.

Was Ms. Kirby enriched by Mr. Huson during the relationship?

[131] There is no doubt that Ms. Kirby was monetarily enriched by Mr. Huson during their relationship. Both parties agree that Mr. Huson was to pay rent of $500.00 per month to Ms. Kirby for residing in the property at 56 Marmora St. Accordingly, each payment towards rent made by Mr. Huson undoubtedly enriched Ms. Kirby because it provided her with funds she might not otherwise have received.

[132] Mr. Huson further submitted that Ms. Kirby was enriched by work that he undertook at the property for which he received no compensation. The lack of a requirement to pay for the services rendered by Mr. Huson would have enriched Ms. Kirby by removing the need for her to pay someone else to provide those services.

[133] I am satisfied that the evidence establishes that Ms. Kirby was monetarily enriched by Mr. Huson during the relationship.

Was Mr. Huson correspondingly deprived as a result of the enrichment of Ms. Kirby?

[134] While there can be no doubt that Mr. Huson was deprived of the use of his money each time he made a payment to Ms. Kirby, that deprivation would have occurred wherever Mr. Huson might have been required to pay rent or whenever he was required to purchase groceries, which is the purpose for which the parties agreed that he was making some of the payments he made to Ms. Kirby.

[135] Leaving aside the rationalization, however, that the deprivation would have occurred in any event, I find that Mr. Huson was deprived of the use of his funds whenever he made payments to Ms. Kirby.

[136] I also find that Mr. Huson was deprived of either payment or time when he undertook work at the property at 56 Marmora St. and received no payment for his efforts from Ms. Kirby.

Was there a juristic reason for the enrichment of Ms. Kirby?

[137] As I have already noted, regardless of where he resided, Mr. Huson would have been required to pay rent, or a mortgage if he had purchased property, and to purchase groceries.

[138] I find that an obligation to pay rent, even in circumstances where parties are in a relationship, provides a juristic reason for the enrichment of one of the parties to that relationship. I further find that, even for parties in a relationship, where they have agreed to divide the cost of groceries, the payment by the one party to the other in furtherance of that agreement provides a juristic reason for the recipient to have been enriched by receipt of the funds, which in essence constitutes a reimbursement for the cost of groceries purchased.

[139] As to the rent, it was the evidence of Mr. Huson that he and Ms. Kirby cohabited at 56 Marmora St. beginning in January 2015, and that he began to pay rent to Ms. Kirby as of March 2015.

[140] His evidence on the issue of payment focuses, however, only on payments that he made to Ms. Kirby:

a. between March 2015 and November 2015 ($6,150.00) b. in March 2015 ($2,050.00, without indicating whether this some was included in the earlier figure) c. between March 2015 and June 29, 2016 ($9,040.00) d. between July 1, 2016 and December 31, 2016 ($4,090.00)

[141] In his affidavit, Mr. Huson claimed that it was “during the first 18 months of living together that Ms. Kirby… received the most enrichment and where I suffered enough of a loss to trap me financially.”

[142] Taking Mr. Huson’s claim that he paid no rent for the first two months of their cohabitation, in a period of 16 months he would have paid $8,000.00 in rent to Ms. Kirby. The figure which comes closest to that amount is the $9,040.00 that Mr. Huson claims to have paid Ms. Kirby in the 16 months between March 2015 and June 29, 2016. The difference is $1,040.00.

[143] I find that the difference can be accounted for by two possibilities. One is that Ms. Kirby expected to be paid rent from the inception of their cohabitation in January 2015, which would have added a further $1,000.00 to the amount that ought to have been paid by Mr. Huson for rent, reducing to $40.00 the difference between what ought to have been paid for rent and the amount that he claims was paid over that period.

[144] The second is that, if Mr. Huson was only required to pay rent commencing in March 2015, but was required to pay 50% of the cost of groceries, the $1,040.00 difference over that 16 month equates to $65.00 per month, an amount that seems low as a 50% contribution to the cost of groceries consumed by two adults in a month.

[145] As for Mr. Huson’s claim that he e-transferred an additional $5,250.00 to Ms. Kirby prior to November 2015, there is evidence from both parties that he may have moved in as early as January 2015. If he did, rent for the first 10 months of that year would have mounted to $5,000.00, which is very close to the amount that Mr. Huson claims he paid to Ms. Kirby. Any excess could well have gone to other expenses, such as groceries.

[146] Consequently, on the evidence adduced on the motion, I find that, while Ms. Kirby was enriched by the payments she received from Mr. Huson for rent and as a contribution to groceries, and that he was, correspondingly, deprived of the use of his funds because of such payments, there was a juristic reason for Ms. Kirby to have been enriched. Accordingly, I find that Ms. Kirby was not unjustly enriched by the payments made to her by Mr. Huson.

[147] In Peters v. Swayze, 2018 ONCA 189, the decision relied upon by Ms. Kirby to resist the claims made by Mr. Huson, the Court of Appeal found that at no time did the parties have joint bank accounts or joint savings. The Court of Appeal further held that the person making the claim of joint family venture bears the onus of establishing that it exists as a matter of fact. In that case, the claimant was never on title to the residence nor financially liable for the mortgage registered against it. She did not pay for capital repairs insurance or property taxes. The amount that was paid by the claimant was for rent for herself and her daughter resided in the residence.

[148] Significantly, the court found that, when unjust enrichment was not found, the trial judge was not required to consider whether a joint family venture existed. Notwithstanding, the trial judge in that case had done so, and he found that the parties had kept their finances separate, did not pool their resources, integrate their financial lives or demonstrate an intention to join their finances. He found that they had lived separately in the home.

[149] In this case there is no evidence that the parties ever pooled their monies, other than for the purchase of groceries. There is no evidence that they merged their finances, integrated their financial lives or demonstrated an intention to trying their finances.

[150] The parties had no children, although Mr. Huson did, in his written materials, try to claim that the family pets were akin to children and, because they cared for the family pets, such care constituted evidence of a joint family venture. I reject that claim.

[151] In addition to the aforementioned reasons for rejecting Mr. Huson’s claim that the property at 56 Marmora St. be sold, I feel compelled to comment on the shifting nature of the reason why he claimed a constructive trust interest in the property such that it should be sold to ensure that he was repaid his equitable share.

[152] In his original claim, Mr. Huson pleaded that, between January 2016 and June 29, 2016, he paid Ms. Kirby approximately $1,200.00 per month “for both household expenses and to save from when the home was transferred into the parties’ names.”

[153] He further pleaded that “the parties attended meetings together regarding the transfer of the home from [Ms. Kirby’s former boyfriend] into both of their names jointly” but that “at the last minute, [Ms. Kirby] signed the paperwork behind [his] back with her uncle as the primary borrower.”

[154] This matter is neither pleaded in the Fresh as Amended Application nor is it referred to in the affidavit filed by Mr. Huson on the motion for summary judgment.

[155] In his submissions on the summary judgment motion, Mr. Huson revealed that his claim that the property be sold arose not from monetary contributions that he made in reduction of the mortgage on 56 Marmora St. but because any funds that he provided to Ms. Kirby in excess of $500.00 per month were to be used to purchase another residence at sometime in the future. However, he contradicted that by also saying that approximately $7,000.00 that he provided to Ms. Kirby was used to reduce the mortgage on Marmora Street.

[156] He failed to explain why he would have relied on Ms. Kirby to hold the money to be used toward the purchase of another property on his behalf, as opposed to placing it in a bank account. He also provided no detail of them having agreed to such an arrangement.

[157] Furthermore, he provided no details to support either that there was an agreement that Ms. Kirby would hold money towards the purchase of the future property elsewhere nor that he was providing her with money specifically earmarked to reduce the mortgage on Marmora Street.

[158] While it may be the case that Mr. Huson was making both claims - that $7,000.00 paid to Ms. Kirby was used in reduction of the mortgage on Marmora Street, and that other monies he paid to her were to be utilized in future to purchase a different property elsewhere - that point was not made clear by Mr. Huson.

[159] In all of the circumstances, I find that Mr. Huson has not raised a triable issue as to an entitlement to an interest in the property at 56 Marmora St. as a result of payments that he made to Ms. Kirby during their cohabitation.

[160] As previously noted, Mr. Huson also claimed an entitlement to an interest in 56 Marmora St. because of work and effort that he put into the property over the period of time that he and Ms. Kirby cohabited.

[161] In addition to work done on the rental unit, which will be discussed separately, those efforts included, according to the affidavit of Ms. Kirby, the installation of a new rental water heater for which she now pays the rental fee, using a plumbing snake in an effort to unclog a drain, unsuccessfully trying to fix the ductwork in the residence, and having mowed the grass and shoveled snow.

[162] I find that the work undertaken by Mr. Huson as described by Ms. Kirby, which Mr. Huson did not deny in his affidavit, does not rise to the level of requiring payment by Ms. Kirby. The parties were in a relationship and they were cohabiting.

[163] I also find that it would not be usual or expected that one party to a relationship would seek to be paid for ordinary maintenance claims about the residence in which they cohabit, even if the property was owned by only one of the parties.

[164] I further find that using a plumbing snake in an effort to unclog a drain, attempting to fix ductwork, mowing grass and shoveling snow are the types of work about a residence that one of the two parties to a relationship might undertake to maintain the building in which they reside in the normal course of their relationship.

[165] Mr. Huson provided no rationale for having agreed to install a hot water heater in the property nor for having put it in his name. As Ms. Kirby noted, she is now liable for the monthly payment. I find that Mr. Huson’s act of having agreed to have the hot water heater installed and placed in his name does not provide him with a claim for any interest in the property at Marmora Street.

[166] This leaves the work undertaken by Mr. Huson in repairing the rental unit located in the property and preparing it for rental.

[167] Although not filed on the motion, Mr. Huson did produce in his disclosure package a Quicken spreadsheet covering the period between February 3, 2015 and December 22, 2018. According to the entries, a number of retail purchases were recorded as having occurred over that period, from a number of different vendors. Each of the entries was categorized as having been incurred in relation to “Home: Home Improvement.” The total of all of the entries amounted to $4,787.28. A small minority of them are highlighted, all without explanation.

[168] None of the entries were supported by invoices. As I have already noted, both Justices Tobin and Campbell previously ordered Mr. Huson to produce receipts for the amount he claims to have spent in relation to maintaining the property at 56 Marmora St. I take these orders to have included any amount that Mr. Huson would have spent purchasing items to repair or upgrade the apartment. No such receipts were produced on the motion nor are they included in the “Applicant’s Productions” manual.

[169] Accordingly, I find that Mr. Huson has not raised a genuine issue requiring a trial with respect to any amount that he claims he spent in the acquisition of goods or materials to improve or prepare for rental the apartment located at 56 Marmora St.

[170] That leaves the issue of Mr. Huson’s labour in respect of renovations to the apartment.

[171] In his original application, Mr. Huson claimed that he spent the first two weeks of March 2015 cleaning the upstairs apartment after it was vacated by the previous tenant, and the last two weeks of that month doing repairs and renovations on the apartment. By the time that he filed the Fresh as Amended Application, the time claimed to have been spent by Mr. Huson in improving the upstairs apartment expanded to cover a period “between January 2015 and May 2015.”

[172] In neither instance did Mr. Huson specify the number of hours that he dedicated either to cleaning the apartment or to doing general repairs and renovations.

[173] Instead, Mr. Huson, without time records, claimed that he devoted between 117 and 120 hours working on the residence over the period that he resided there, which he claimed was four years. If, as Mr. Huson first asserted, he spent most of the month of March 2015 cleaning and repairing the upstairs apartment, at 25 hours per week, he would have, in that month alone, have expended 100 hour of labour, leaving few hours for him to have done the other things he claimed to have done over the 4 years the parties cohabited while not exceeding his own estimate of 120 hours. Having given no details about how much time he expended cleaning and repairing the apartment, Mr. Huson has provided no foundational evidence for a court to assess what, if anything, he might be owed for his efforts.

[174] Given the absence of invoices or receipts for expenses claimed to have been incurred by Mr. Huson in maintaining and repairing the property at 56 Marmora St., and the absence of any time records to support his claim of time expended in that regard, I find that Mr. Huson has not raised a genuine issue requiring a trial in respect of these issues, and those claims will be dismissed.

5. That Ms. Kirby repay $43,000 in damages due to investments into the property that she has unjustly retained

[175] To the extent that this claim exists independent of the amount paid by Mr. Huson and discussed in the previous section, he has produced no evidence of “investments” into the Marmora Street property.

[176] At no point in his affidavit did Mr. Huson even refer to having incurred damages or to having paid or invested in the Marmora Street property the sum of $43,000. He has also failed to provide particulars of the amount that he claims.

[177] To the extent that any of these funds were encompassed by payments previously discussed in these reasons, those payments are encompassed by my findings made earlier.

[178] As a result, I find that Mr. Huson has not established that there is a genuine issue requiring a trial with respect to this claim, and it is dismissed.

6. That Mr. Huson be paid the rental proceeds derived from the apartment located inside the residence at 56 Marmora St., for which he claimed to have paid all carrying costs

[179] This claim has been discussed in the context of Mr. Huson’s claim for an equitable interest in the property based on his labour repairing the apartment. At no point in his affidavit does Mr. Huson make the claim that he does in his Fresh as Amended Application – that he paid “all carrying costs” for the apartment, nor does he describe or define of what those “carrying costs” consisted.

[180] As a result, I find that Mr. Huson has not raised a genuine issue requiring a trial of this claim and it is dismissed.

7. That Ms. Kirby pay damages for “mental and emotional and financial torture”

[181] This claim is devoid of any particulars, and Mr. Huson provided none in his affidavit for the summary judgment motion. As a result, I find that he has not raised a genuine issue requiring a trial of this claim and it is dismissed.

8. That Ms. Kirby not deplete her property

[182] Given my findings as to the absence of a genuine issue requiring a trial in respect of any of Mr. Huson’s other claims, there can be and is no genuine issue requiring a trial with respect to this claim against Ms. Kirby. It, like the others, is dismissed.

“Justice T. Price” Justice T. Price Date: May 30, 2023