COURT FILE NO.: CV-22-2498-00 DATE: 2023 08 10
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sukhminder Kaur Sidhu Applicant/Respondent on Cross-Application
Latania Dyer, for the Applicant/Respondent on Cross-Application
- and -
Parminder Sidhu and Amandeep Sidhu Respondents/Cross-Applicants
Prabhjot Badesh, for the Respondents/Cross-Applicants
HEARD: June 13-15, 26-27, 2023
REASONS FOR JUDGMENT
MANDHANE J.
INTRODUCTION
[1] I am asked to consider how the equitable remedy of unjust enrichment applies to a multi-generational family living together in a shared residence and pooling funds to meet their household obligations. The Applicant/Cross-Respondent, Sukhminder Kaur Sidhu, is the matriarch of the family, while the Respondents/Cross-Applicants, Parminder Sidhu and Amandeep Sidhu, are her eldest son and daughter-in-law, respectively.
[2] On August 31, 2022, Sukhminder brought an application for partition and sale of the property at 55 Canarvan Court in Brampton, Ontario (the “Property”). Amandeep and Parminder brought a cross-application claiming unjust enrichment and a 50% interest in the Property.
[3] On consent and pursuant to the order of Shaw J., the Property was sold on August 26, 2023, for $1,185,000, with the net proceeds of sale totaling $753,233. Each party has received $100,000 from the proceeds of sale and the remaining proceeds are being held in trust (“the proceeds”). The parties cannot agree on the proper distribution of the proceeds.
[4] Amandeep and Parminder say that they are entitled to 50% of the proceeds based on their contributions to the mortgage payments and house maintenance costs. They say that the parties were involved in a “joint family venture” such that they are entitled to a monetary remedy on a “valued survived” basis.
[5] Sukhminder says that that she is entitled to 100% of the proceeds of sale. To the extent that Amandeep and Parminder made financial contributions to the home, Sukhminder says that these were in the nature of rent. Sukhminder says that I should deny the equitable relief sought because Amandeep obtained her 1% interest in the Property through a fraudulent means and therefore does not have clean hands. If the cross-applicants are successful in their unjust enrichment claim, Sukhminder says that they are only entitled to a monetary remedy that should be calculated on a “value received” basis such that they are do not partake in the increased value of the home between 2004 and 2022. Finally, Sukhminder also asks me to fine that Amandeep holds her 1% interest in the property as a resulting trust in her favour.
[6] As will be discussed below, I find that the parties both benefited from pooling their resources to meet their day-to-day needs. Sukhminder benefited from Parminder’s role as house manager and was able to live in the Property at a minimal cost after falling ill in 2014. Parminder and Amandeep benefited from the arrangement as well. By living with Sukhmnder, they were able to save money that would have otherwise been spent on occupational rent and business expenses.
[7] On the facts of the multi-generational family before me, I find that both parties’ benefited from the joint living situation throughout the duration of their relationship. Both parties knowingly and intentionally organized their affairs to meet their own unique needs. In short, there was a meeting of the minds at to the essential bargain that lay at the heart of the parties’ joint-living situation. That Parminder and Amandeep would provide consideration for their use of the Property pending a future inheritance. The parties never intended that the Parminder and Amandeep would acquire the Property during Sukhminder’s lifetime. There was no unjust enrichment on the facts before me.
FACTUAL OVERVIEW
Purchase of the Property
[8] On July 2, 2004, Sukhminder purchased the Property for $374,884 and was the sole title holder. She paid $255,538 towards the down payment and had a CIBC mortgage of $125,000. At the time, Sukhminder was a widow and was working full-time at a factory. She testified that she used the funds from the sale of her matrimonial home to pay for the down payment on the Property. She was earning a good living such that she was able to cover the minimal mortgage payments.
[9] After purchase, Sukhminder moved into the Property with her three unmarried sons, Parminder, Manjinder, and Harminder.
Parminder marries Amandeep
[10] On July 24, 2004, Parminder got married to Amandeep, who moved into the Property and starting lived there with Parminder, Sukhminder, Manjinder, and Harminder. I accept Amandeep’s evidence that “after marriage, it is common practice in South Asian culture for the woman to move into the family home of the husband and reside with the parents of the husband.”
[11] Parminder was a licensed real estate agent and Amandeep was a home stager. They ran their business, Adeas Marketing Group (“AMG”), out of the den of the Property. Amandeep and Parminder were the sole directors and officers of AMG, as well as its sole shareholders.
[12] Parminder and Amandeep eventually had two children who also lived in the Property.
Sukhminder transfers ownership interest to Amandeep
[13] In July 2008, Sukhminder wanted to take equity out of the Property to help pay for Manjinder’s upcoming wedding. According to the financial documentation, on or around July 4, 2008, Sukhminder transferred a 1% interest in the Property to Amandeep for consideration of $2.00. At the same time, all previous mortgages were discharged, the Property was refinanced, and a new TD mortgage in the amount of $190,000 was registered on title, with both Sukhminder and Amandeep being listed as Chargors. Afterwards, Sukhminder received $45,817 into her bank account which she used to pay for Manjinder’s wedding.
[14] For the purposes of the transfer, Sukhminder was represented by real estate lawyer Shinder Singh Kelley, while Amandeep was represented by Rameshwer Sangha. Sukhminder recalled attending at Kelley Law Office with her Harminder. There are numerous documents that bear her signature. At trial, Sangha testified that all documentation related to the transfer that required Sukhminder’s signature was sent to Kelley Law Office unsigned and returned to him after it was signed by Sukhminder. He said that he and Mr. Kelley followed this process to the ensure that each party to the transfer was receiving independent legal advice. After the transfer was complete, Sangha testified that he represented both Sukhminder and Amandeep to register the transfer on title to the Property and obtain the TD Mortgage. Sangha prepared a reporting letter on July 4, 2008, that he sent to both Sukhminder and Amandeep which summarized the details regarding the discharge of the previous mortgages and registration of the new mortgage with TD Bank.
[15] Immediately after their marriage, Manjinder and Supinder moved into the property.
The parties’ contributions to the household
[16] The parties agree that, at all material times, Parminder acted as the de facto house manager. He was solely responsible for managing the family’s pooled resources to meet their day-to-day needs and obligations. Parminder managed the basement tenancy and received about $850 per month in rent. He was responsible for maintaining the property in a state of good repair.
[17] Parminder also managed the “family bank account,” into which monthly contributions were made by Sukhminder and each married son living in the Property at the time. The funds in the family account were used for communal expenses such as the mortgage, insurance, repairs, maintenance, groceries, personal car insurance payments, phone, internet, and so on. A review of the banking records shows that, in the later years, the family account was also used to make purchases at retail stores like Toys R Us, the Gap, and Costco.
Family breakdown
[18] Sometime in 2015, after getting into an argument with Parminder, Harminder moved out of the Property. That same year, the parties began arguing about the Property. In response to their threat to move out on stop making payments, Parminder says that Sukhminder promised him that she would only retain a $250,000 interest in the Property if they stayed. Sukhminder denies making such a promise. Parminder and Amandeep began renovating the house in 2016 but stopped midway, again, due to financial disagreements.
[19] In or around 2020, the situation in the household was untenable. The parties barely spoke to one another, and when they did, they argued. Matters came to a head in 2022 when Sukhminder proposed that Harminder move back into the House. Parminder and Amandeep would not agree. When Sukhminder asked Parminder and Amandeep to vacate the Property, they refused and claimed that they had a 50% interest in it.
ISSUES
[20] The issues I must decide are as follows:
- Was Sukhminder unjustly enriched through Parminder and Amandeep’s contributions to the Property?
- Did the 2008 transfer of title to Amandeep create a resulting trust in Sukhminder’s favour?
SHORT CONCLUSION
[21] Sukhminder was not unjustly enriched through Parminder and Amandeep’s contributions to the Property.
[22] Amandeep holds her 1% interest in the Property as a resulting trust in Sukhminder’s favour.
ANALYSIS
Was Sukhminder unjustly enriched through Parminder and Amandeep’s contributions to the Property?
[23] The test for unjust enrichment requires me to consider the following:
(1) whether Sukhminder was an enriched; (2) whether there was a corresponding deprivation to the Parminder and Amandeep; and (3) whether there was a juristic reason for the benefit and corresponding detriment: Moore v. Sweet, 2018 SCC 52 , [2018] 3 S.C.R. 303 at paras. 35 to 59 , 63, and 83; Kerr v. Baranow, 2011 SCC 10 , [2011] 1 SCR 269 (S.C.C.) at paras. 30-31 . The question is largely economic at the first and second stage, while the third stage engages relevant legal and policy issues: Moore v. Sweet , at para. 41 .
[24] The requirement to show an enrichment and a corresponding deprivation are closely related, being “the same thing from different perspectives” and “essentially two sides of the same coin”: Moore v. Sweet , at para. 41 . The Supreme Court of Canada has been clear that the acid test is whether the defendant becomes richer in circumstances where the plaintiff becomes poorer: Moore v. Sweet , at para. 44 . The concept of “loss” therefore captures a benefit that was never in the plaintiff’s possession but that the court finds would have accrued for their benefit had it not been received by the defendant instead: Citadel General Assurance Co. v. Lloyds Bank Canada , [1997] 3 S.C.R. 805, at para. 30 .
[25] Parminder and Amandeep estimate that they paid 70% of the carrying costs for the Property between 2004 and 2014, and that they paid 100% of the costs between 2015 and 2020. In terms of quantum, Parminder and Amandeep estimate that they contributed $439,578 to the Property via housekeeping, renovations and repairs, and via contributions to the family account. To quantify their claim, I deal with each of these categories in turn.
Housekeeping
[26] Amandeep claims that she provided in-kind support through cooking and cleaning which she says was worth $20,000. While there is some evidence to support a finding that Amandeep helped with cooking and cleaning, there was no evidence to support a claim for $20,000. There was simply no evidentiary foundation put forward regarding the amount of time spent on these tasks or the properly hourly wage at which to value them. I am also skeptical about whether these tasks were for the benefit of Sukhminder versus for the benefit pf Amandeep’s own husband and children. As such, I refuse to find that Sukhminder benefited from Amandeep’s housekeeping.
Renovations
[27] Parminder and Amandeep say they contributed $29,396 towards renovations and maintenance. Appendix A is a table summarizing their evidence. While the Parminder testified that he paid for some of the items with cash, there are no receipts or accounting ledgers because Parminder says that he either completed the work himself or “missed the deadline” to submit the accompanying receipts to the court.
[28] Sukhminder admits that Parminder replaced a toilet, re-stained the stairs, installed hardwood flooring, replaced the blinds, painted the basement, repaired the furnace, installed light fixtures, did light landscaping, replaced the back fence, and paid for pest removal. However, she claimed that the work was shoddy and did increase the Property value. The photos attached to her affidavit show incomplete work and a home that is generally in disrepair.
[29] I am concerned that there is almost no evidentiary foundation to support the amounts being claimed by Parminder and Amandeep for renovations and maintenance. There are no receipts or contemporary record keeping. On a balance of probabilities, Parminder and Amandeep have not satisfied me that Sukhminder was unjustly enriched by their contributions towards maintenance and repairs to the house. As will be discussed below, I find it much more likely that Parminder and Amandeep paid for these expenses via the family account rather than personally.
Contributions to the family account
[30] Overall, I accept that Parminder and Amandeep contributed $348,726 to the family account during the relevant time period. For the purposes of deciding whether Sukhminder was unjustly enriched, I am prepared to consider all of Parminder and Amandeep’s contributions to the family account regardless of whether they originated from their personal or corporate accounts. This is because it is undisputed that these funds were used for the benefit of the household regardless of their source.
[31] Appendix C summarizes Parminder and Amandeep’s testimony regarding their contributions to the family account. In support of their contributions between 2007 and 2022, they rely on corresponding cheques and/or banking documents. With regards to their contributions for 2004 through 2007, Parminder testified that these amounts were estimates based on his contributions in the following years. While I accept that Parminder and Amandeep were making contributions to the household in the early days, they have not satisfied me on a balance of probabilities that their contributions approached $20,000 each year. During this time period, Sukhminder was working full-time and the family was using her bank card for day-to-day expenses, while Parminder had just gotten married and was starting his business. Given this context, as a conservative estimate, I find that Parminder and Amandeep contributed $2,500 towards the household from July and December 2004, and $10,000 per year for 2005, 2006, and 2007. I am also willing to accept their estimate regarding their contributions between January and February 2013 because it represents the amount due on the mortgage only.
[32] The parties acknowledge that, based on the record before me, there is no way of knowing exactly how much money was pooled in the family account over the course of the parties’ relationship. Therefore, it is impossible to know how much Parminder and Amandeep contributed as a proportion of the total amount that was pooled. This is because Parminder did not keep any records regarding transactions into and out of the family account. Supinder and Manjinder both testified that when Supinder asked Parminder to see the books, he refused. While there are bank records for some of the years, they only provide a partial picture of how the family account operated in practice.
[33] Suffice it to say, Parminder and Amandeep were never the sole contributors to family expenses throughout the relevant time period. What I know is that Sukhminder and Manjinder both contributed to the family account while living in the Property. Appendix B outlines Sukhminder’s testimony regarding her contributions. Based on the incomplete financial records before me, the testimony of the parties, and the reasonable inferences available to me, I find that Sukhminder was paying most of the property-related costs in the early years of Parminder and Amandeep’s marriage (from 2004 until about 2007), that she continued to be a significant contributor until she was diagnosed with cancer (between 2007 and 2014), and that she continued to pay the monthly Property insurance after she stopped working (between 2014 and 2022). In total I estimate that her contributions totaled at least $100,000. [1]
[34] On the facts before me, I find that Parminder and Amandeep did not suffer a deprivation equal to the amount that they deposited into the family account. This is because they benefited from the pooling of resources. They were able to keep their living costs low, run their business at minimal cost, claim valuable corporate tax credits, and likely save a significant amount of money in the process. I also draw the reasonable inference that their childcare costs were low or nonexistent on account of Sukhminder’s in-kind care. This is not to say that Sukhminder didn’t benefit from the arrangement, because she did as well. She was able to rely on Parminder to maintain the Property, and continued living in the Property despite contributing minimally to the family account after she fell ill and stopped working. While not quantifiable, it was clear from her testimony that she derived pleasure from watching her grandchildren grow up in the Property.
[35] To accurately account for the benefits that Parminder and Amandeep received on account of their relationship with Sukhminder, I would reduce the amount of their Parminder and Amandeep’s claim as follows. First, I would account for the rent that Parminder collected for the basement apartment, which both parties agreed was $850 per month. Given that these funds were never transferred to Sukhminder or deposited in the family account, I assume they were retained by Parminder. Between 2004 and 2022, I find that Parminder would have collected rent equivalent to at least $183,600 ($10,200 per year for 18 years).
[36] Second, since neither Parminder nor Amandeep paid occupation rent despite occupying the den, two bedrooms, and the common areas, I am prepared to impute a benefit from living rent free in the Property that was equal to at least $183,600 (and likely much more).
[37] Third, Parminder and Amandeep were obviously claiming some of their contributions to the family account as business expenses for tax purposes. This is an obvious explanation for why the majority of their deposits into the family account originated from the AMG corporate account. Given Amandeep and Parminder’s refusal to provide disclosure regarding the corporation, I am prepared to value the benefit that accrued to their corporation at $145,196, which is the total amount of money that flowed from AMG into the family account.
[38] Therefore, while Parminder and Amandeep contributed $348,726 to the family account, I find that they were not deprived in any way. I arrive at this conclusion by taking their total contribution to the family account of $348,726, subtracting $183,600 for the basement rent, subtracting $183,600 for their personal rent, and subtracting $145,196 for benefits that accrued to their corporation.
[39] Overall, I find that Amandeep and Parminder benefited from the multi-generational living arrangement such there was no unjust enrichment to Sukhminder. Having so found, I need not go on to consider the remaining prongs of the unjust enrichment test.
Did the 2008 transfer of title to Amandeep create a resulting trust in Sukhminder’s favour?
[40] Sukhminder claims that the 2008 transfer of title to Amandeep created a resulting trust in her favour. Sukhminder says that she was completely unaware that Amandeep was added on title in 2008 and accuses Parminder and Amandeep of fraudulently transferring an interest in the Property to Amandeep and registering a fraudulent writ against the property to withdraw funds against it. Sukhminder says that she only learned that Amandeep had a 1% interest in the property in 2022 when she consulted a lawyer in relation to this matter.
[41] Amandeep says that she was added to title as a 1% owner because Sukhminder did not have the requisite income to obtain mortgage financing herself and because Parminder had bad credit. Amandeep says that Sukhminder received all the equity that was removed from the house, except the amounts that were used to paydown the consolidated debts.
[42] In my view, the financial records support Amandeep’s version of events, namely, that Amandeep was added on title to the Property to ensure that Sukhminder could obtain a second mortgage to pay for Manjinder’s wedding. I note that Sukhminder received $45,817 into her bank account for that purpose, and that the remaining funds were used to pay down consolidated debts. Moreover, there are numerous legal documents with Sukhminder’s signature which she admitted to signing. I also accept Mr. Sangha’s evidence at trial that Sukhminder received independent legal advice from Mr. Kelley about the transfer. The fact that Sukhminder may not have appreciated the implications of the transfer does not necessarily mean that Amandeep engaged in wrongdoing.
[43] That all being said, based on the entirety of the evidence, I agree with Sukhminder that Amandeep was holding her 1% interest in the Property as a resulting trust in favour of Sukhminder: Patterson v Patrick Estate, 2018 ONSC 6884, paras. 41-45 . Amandeep did not pay adequate consideration for her share of the Property and, even on her own evidence, only went on title to facilitate Sukhminder obtaining a second mortgage: Pecore v. Pecore, 2007 SCC 17 at para 20 . Neither party intended for Amandeep to have a beneficial interest in the property or to be legally responsible for the mortgage: Andrade v. Andrade, 2016 ONCA 368 , para. 62 . Throughout, Amandeep held her 1% interest in the property for Sukhminder’s benefit.
ORDER
[44] Amandeep holds her 1% interest in the Property for the benefit of Sukhminder.
[45] Because Sukhminder was successful on the cross-application, she is presumptively entitled to costs. The parties shall endeavour to agree on the matter of costs. If they are unable to do so, both parties shall email my assistant at Ryan.Chan2@ontario.ca with their costs submissions (maximum 3 pages, double-spaced, 12-point font), Bill of Costs, and any relevant offers to settle, on or before August 25, 2023.
Mandhane J.
Released: August 10, 2023
Appendix A: Parminder and Amandeep’s claimed contributions to renovations
| Item | Amount | Payment method |
|---|---|---|
| Paint/Toilets/Vanity | $3,239.47 | None |
| Quartz Countertops | $3,000.00 | Cash |
| Stairs staining | $2,000.00 | Cash |
| Contractor/Labour | $2,500.00 | Cash |
| Appliances | $7,000.00 | Cash |
| Reno Materials | $434.14 | |
| Central Vac repair | $162.41 | |
| Hardwood | $1,186.32 | |
| Blinds | $2,500.00 | Cash |
| Fence (Side) | $1,100.00 | Cash |
| Fence (Back, Right) | $700.00 | |
| Fence (Back) | $1,500.00 | |
| Racoon removal | $813.60 | |
| Patio level | $200.00 | Cash |
| Chimney repair | $500.00 | Cash |
| Roof repair | $500.00 | Cash |
| Roof + vent repair | $300.00 | Cash |
| Plumbing pipe burst | $300.00 | Cash |
| Furnace | $1,600.00 | |
| A/C repair | $100.00 | Cash |
| Basement paint | $300.00 | |
| Den flooring | $200.00 | Cash |
| Light fixtures | $500.00 | |
| Landscaping ($200 x 10 yrs) | $2,000.00 | Cash |
| Total | $29,396.47 |
Appendix B: Sukhminder’s claimed contributions to the family account
| Date range | Amount | Supporting banking records |
|---|---|---|
| July to December 2004 | None | |
| 2005 | None | |
| 2006 | None | |
| January 2007 | None | |
| February 2007 to August 2007 | $5712 | Corresponding cheques and banking records |
| September 2007 to December 2007 | $3256 | Corresponding cheques and banking records |
| 2008 | $9768 | Corresponding cheques and banking records |
| 2009 | $9768 | Corresponding cheques and banking records |
| January to September 2010 | $7326 | Corresponding cheques and banking records |
| October to December 2010 | $3462 | Corresponding cheques and banking records |
| 2011 | $13,848 | Corresponding cheques and banking records |
| 2012 | $13,848 | Corresponding cheques and banking records |
| 2013 | $13,848 | Corresponding cheques and banking records |
| January to June 2014 | $6924 | Corresponding cheques and banking records |
| June to December 2014 | $0 | |
| 2015 | $0 | |
| 2016 | $0 | |
| 2017 | $0 | |
| 2018 | $0 | |
| 2019 | $0 | |
| 2020 | $0 | |
| 2021 | $0 | |
| 2004-2022 | $77,992 |
Appendix C: Parminder and Amandeep’s claimed contributions to the family account
| Date range | Amount | Supporting banking records |
|---|---|---|
| July to December 2004 | $3,500 | None |
| 2005 | $20,000 | None |
| 2006 | $25,000 | None |
| 2007 | $25,000 | None |
| 2008 | $20,440 | Corresponding cheques |
| 2009 | $24,620 | Corresponding cheques |
| 2010 | $21,012.54 | Corresponding cheques, and banking records, receipts |
| 2011 | $26,140.00 | Corresponding cheques |
| 2012 | $27,500 | Corresponding cheques |
| January to February, 2013 | $4,725 | None |
| March to December 2013 | $19,685 | Bank statements |
| 2014 | $15,458 | Bank statements |
| 2015 | $16,391.62 | Bank statements |
| 2016 | $20,837.44 | Bank statements |
| 2017 | $20,870.28 | Bank statements |
| 2018 | $18,659.45 | Bank statements |
| 2019 | $18,255.00 | Bank statements |
| 2020 | $24,933.57 | Bank statements |
| 2021 | $19,778.22 | Bank statements |
| 2022 | $16,919.88 | Bank statements |
| 2004-2022 | $389,726 |
COURT FILE NO.: CV-22-2498-00 DATE: 2023 08 10 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Sukhminder Sidhu Applicant/ Respondent by Cross-Application - and - Parminder Sidhu and Amandeep Sidhu Respondent/ Applicants by Cross-Applicant REASONS FOR JUDGMENT Mandhane J. Released: August 10, 2023
[1] Between 2004 and 2007, Sukhminder testified that she allowed Parminder and Amandeep to use her debit card for household expenses and that she was responsible for paying the home insurance of $214 per month. Despite there being no record of Sukhminder’s contributions between 2004 and 2007, considering her role in the family and pattern of contributing during the relevant time, I find that she was contributing at least $10,000 each year between 2004 and 2007. Between February 2007 and August 2007, Sukhminder wrote cheques to Parminder for $500 monthly, and she was also responsible for paying the home insurance of $214 per month, for a total of $714 per month.
Between September 2007 and September 2010, Sukhminder wrote cheques to Parminder for $600 per month, and was also responsible for paying home insurance of $214 per month, for a total of $814 per month.
Between October 2010 to May 2014, Sukhminder wrote cheques to Parminder for $940 monthly (which included $340/month for her personal car insurance) and also paid $214 for home insurance, for a total contribution to the Property of $1154 per month.
From June 2014 through 2020, Sukhminder says that she stopped writing cheques to Parminder because she was unemployed but says that she kept making the monthly house insurance payments of $214 per month.