Court File and Parties
COURT FILE NO.: FS-21-22532 DATE: 20231218 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Constantin Mocanu, Applicant AND: Filma Mocanu and Peter Mocanu, Respondents
BEFORE: W.D. Black J.
COUNSEL: Arkadi Bouchelev, for the Applicant Anthony Di Battista, for the Respondent Peter Mocanu Filma Mocanu, representing herself
HEARD: December 4, 2023 – December 12, 2023
ENDORSEMENT
Overview
1This trial dealt in large part with the applicant Constantin Mocanu (“Constantin”)’s claim for an interest in two properties.
2The first of those properties is located at 5 John Tabor Trail in Scarborough, Ontario (the “Scarborough Property”). The second property, at 21 Willcocks Crescent in Ajax, Ontario (the “Ajax Property”) has been sold, and Constantin claims a share of the remaining proceeds of sale held in a solicitor’s trust account.
3Constantin’s claim, on its face, also seeks retroactive and ongoing spousal support from the respondent Filma Mocanu (“Filma”). Constantin’s counsel asserted that claim during his opening, but during his evidence in cross-examination Constantin emphatically and repeatedly denied that he was seeking spousal support from Filma. He explained that he has a pension and does not need support payments from Filma, and that indeed he had largely supported Filma during their marriage.
4During re-examination, his counsel asked questions clearly intended to rescue and revive this claim, and Constantin said in answer to re-examination questions that he was indeed still claiming spousal support. He said that he had been “twisted up” in cross-examination and had become confused about that claim. I will say more below about credibility issues.
5With respect to the interests he asserts in the Scarborough Property and the Ajax Property, respectively, Constantin’s claim is that Filma, whose grasp of English, he alleges, is superior to his, effectively tricked him into signing over to her his 50% interest in the Scarborough Property. Regarding the Ajax Property, Constantin alleges that he directly or indirectly contributed to the funds used to purchase the Ajax Property, and then provided ongoing financial and other contributions to the cost and maintenance of running the household.
6There is a very fundamental disconnect between the parties concerning the date of separation. Filma (supported by the other respondent, the parties’ eldest son, Peter Mocanu (“Peter”), and by one of their other sons, Constantin Jr., who is not a party), maintains that the date of separation was in April of 2013. She acknowledges that Constantin would thereafter come to the Scarborough Property, and later to the Ajax Property, to which she and two of her three sons moved in 2014, but says that she and Constantin did not live together as husband and wife at any point after April of 2013, and always slept in separate rooms when Constantin stayed overnight.
7Constantin, on the other hand, alleges that the date of separation was July 25, 2020. He says he and Filma and their children lived together as a family throughout their time at the Scarborough Property. He also says that he and Filma and two of their sons lived together as a family at the Ajax Property, following their move there in 2014, until the 2020 date when Constantin acknowledges that a separation occurred (their middle son Hartley remained at the Scarborough Property after the rest of the family’s move to the Ajax Property).
8Constantin’s claim relative to his putative interest in the Scarborough Property and the Ajax Property is primarily in the nature of an equitable claim (based in unjust enrichment or quantum meruit) for a constructive or resulting trust. He pursues an alternative claim based on division of net family property under the Family Law Act (R.S.O. 1990, c. F.3).
9The parties’ very different conceptions of the date of separation potentially impact the Family Law Act claim; if the correct date is in 2013 then the respondents maintain that Constantin’s equalization claim is outside the prescribed limitation period.
What Needs to be Determined
10Determining the issues in this case, therefore, requires an evaluation of the details of Constantin’s purported contributions to both properties, financial and otherwise, and an evaluation of the competing claimed dates of separation. Given the parties’ very disparate versions of numerous events, including but by no means limited to their differing dates of separation, the determination of these matters necessarily involves resolving numerous credibility disputes. There is also the claim by Constantin for spousal support, which, despite Constantine’s adamant disavowal during cross‑examination, remains relief sought in his pleading.
11I have determined that:
(a) Constantin has no valid unjust enrichment or other equitable claim relative to either property, and is not entitled to a remedy in trust;
(b) The date of separation of the parties was in or about April of 2013, and not later than August of 2013;
(c) As a result of that date of separation, Constantin’s claim for equalization payments under the Family Law Act is time-barred;
(d) Constantin has failed to demonstrate an entitlement to spousal support payments from Filma.
12None of the parties comes to the court with “clean hands”. Indeed, all three parties exhibit a willingness to dupe governmental authorities about their capacity, circumstances and/or income. Filma and Peter have also breached orders of this court, knowingly and intentionally, and have concealed those breaches until they were caught and had no choice but to confess.
13As will be evident throughout this decision, I am very troubled by the parties’ casual willingness to mislead government authorities and to receive ill-gotten funds from the public purse. I am also troubled by the respondents’ knowing disregard of orders of this Court. These various instances of unacceptable behaviour sound in my dismissal of Constantin’s equitable claims, but also in my determination that Filma and Peter, although successful in that sense, are not entitled to costs.
The Nature of the Claim
14It is helpful to understand at the outset the nature of Constantin’s claims.
15First, with respect to his purported interest in the Scarborough Property, his first and main claim is that he is entitled to an equitable trust-based interest in the property. He points out that he was on title initially when he and Filma purchased the property, and claims that he made financial and other contributions to the acquisition and maintenance of the home.
16He maintains that he only transferred his 50% interest on title to the Scarborough Property when he was persuaded – he says by Filma – that he would not succeed in his application for ODSP benefits if he showed as an asset a 50% interest in the property.
17Filma’s position is that Constantin never contributed any money to the Scarborough Property, at the time of purchase or subsequently. She says that the plan from the outset was always for her to hold 100% title to the home, and that Constantin was only added to title because the lender required that that be done.
18She says that the transfer of Constantin’s interest back to her was at his behest and insistence, and that in any event, since it restored title to what had been intended at the time of the purchase of the Scarborough Property, it simply put matters back to where they should have been all along.
19Constantin’s alternative position relative to the Scarborough Property is that it was a matrimonial home for purposes of the Family Law Act, and that he is by statutory right entitled to an interest in the property.
20Filma’s position is that whatever Constantin’s entitlement may have been by virtue of the Scarborough Property being designated as a matrimonial home, if the court accepts her date of separation in April of 2013, Constantin’s claim is statue-barred (being beyond the relevant limitation period).
21Constantin’s claim to an interest in the Ajax Property is based on his alleged contribution, to the purchase, from the proceeds of his lawsuit claiming wrongful arrest and detention by the Niagara Regional Police Services, and/or based on equity from the Scarborough Property being used to fund the purchase of the Ajax Property. It is also based on his alleged ongoing financial and other contributions to the household.
22Peter (whose evidence on this score is supported by Filma and Constantin Junior) is adamant that Constantin made no contribution to the Ajax Property whatsoever, and, to the contrary, regularly came by to freeload from the household, staying overnight when it suited him, despite being an unwelcome guest.
Review of Background Facts
A. Initial Meeting of Parties, Marriage, and Births of Children
23The parties met in 1998 at a time when Filma, who comes originally from the Philippines, was working as a nanny. Constantin sponsored Filma in her application to become a landed immigrant in Canada, and they were married in April of 1990.
24Their eldest son Peter was born on September 20, 1990. Their middle son Hartley was born on March 10, 1995, and their youngest son Constantin Jr. was born on December 15, 1996.
B. Problems in Marriage
25Filma alleges that Constantin was emotionally and at times physically abusive throughout their marriage, and that he had addictions to gambling and alcohol. Constantin was charged on at least one occasion with assaulting Filma. The evidence suggests that Constantin may have had other criminal convictions. For the most part I disallowed evidence about the details of those convictions, and I do not propose to place any weight on the fact of criminal convictions, but the convictions do factor into the chronology to some extent, inasmuch as it appears that Constantin was serving sentences for periods of time during which he claims to have been living together with his family.
26Filma’s evidence is that Constantin’s abusive behaviour was such that she and the children left Constantin at times, for example living in a Metro Community Housing shelter for over a year during 1996-1997, but that she was persuaded on that and other occasions that Constantin would make an effort to improve and control his behaviour, and so returned to live with him at various points.
C. Filma’s Date of Separation
27However, her evidence is that ultimately Constantin’s alcohol abuse, gambling and controlling and abusive behaviour did not abate, that in fact there were concerning instances of child abuse, and that by April of 2013, she stopped living in a spousal relationship with Constantin.
28It appears that, notwithstanding Filma’s insistence that she and Constantin would no longer share a bed or otherwise act as husband and wife, Constantin would still stay regularly – though not exclusively – at the Scarborough Property where they were living at the point at which Filma says they separated. As noted above, Constantin would also stay from time to time at the Ajax Property after Filma and two of their three sons moved there.
29It is also evident that Constantin represented at various times and for various purposes that he was residing at other addresses. There are a number of documents spanning the 2013 to 2020 timeframe in which Constantin provided addresses other than the Scarborough Property or the Ajax Property as his residence. It seems likely that some of those addresses were properties at which he did in fact stay at times; other addresses were for places at which it is not clear that he ever stayed. With respect to at least one of those addresses, it appears that Constantin used it as a purported mailing address (the property in question belonged to friends) with a view to receiving ODSP benefits without jeopardizing those payments by having them sent to an address on which he was, or had been, on title.
30This evidence of multiple addresses during the relevant time frame is consistent with my impression of Constantin as something of a “drifter”. It makes it difficult to accept that, as Constantin alleges, he lived consistently and only with his family throughout those years.
31Filma’s testimony was that Constantin would “come and go” both throughout the time before separation, and after. She said she did not typically know where he was when he was not at whichever house she was living at, and was adamant that he never contributed, financially or otherwise, to the family or their household.
32She says that she and the children had long since stopped counting on him for any meaningful contributions to the family. The upshot of the testimony from Filma and her sons conveyed the sense that Constantin was like the proverbial “bad penny”, showing up repeatedly when he was not welcome, but that the disruption arising from attempting to prevent his entry into the home was sufficiently tumultuous and difficult that the family largely put up with his unwanted presence.
33Filma was asked a question about what the difference was after Filma’s purported date of separation, in terms of Constantin’s sojourns at the family homes (the Scarborough Property until 2014 or 2016 – the parties do not agree - and the Ajax Property later on), and his (non)‑contributions to the family. She acknowledged that Constantin continued to come and go, but that after her date of separation, they were never intimate, they filed separate tax returns on which both attested to their status as “separated”, and that it was known to family and friends that they were no longer living as husband and wife.
34It is the case that the parties each filed tax returns from 2013 onwards in which they described themselves as separated, and that in addition Constantin represented himself as separated and single in his application for ODSP benefits. Some documents put the date in April of 2013; others suggest August of 2013.
Conclusion re Date of Separation
35The acknowledged fluidity of Constantin’s attendances and stays at each of the properties, both before and after Filma’s proposed date of separation, makes a precise determination of that date of separation somewhat elusive. That said, Filma’s evidence about the substantive change in the relationship between Constantin and her as of the end of April of 2013 is supported by the evidence of her sons and by various documents. It is also supported by the testimony of Juana Zalichi, a family friend, who said that Constantin told her recently, in circumstances in which Constantin had been drinking, that he and Filma had not been intimate for 15 years. This evidence, for which I find no basis to suppose it is fabricated, is more consistent with Filma’s version of events that with that of Constantin. And, while I have some reservations about Filma’s credibility, I have even more reservations about Constantin’s credibility. As such, while acknowledging that the respondents’ evidence is not entirely unblemished, I accept that on a balance of probabilities Filma’s proposed date of separation is more likely than Constantin’s.
Constantin’s Proposed Date of Separation and Difficulty with his Position
36Constantin’s proposed date of separation – July 25, 2020 – relies on what sounds like violent events on that date. He alleges that on that occasion he confronted Filma about a supposed affair he had just discovered she was having, which led to one or both of Filma and Robert assaulting Constantin, and forcibly kicking him out of the house.
37It appears that the police were called, and attended at the scene (the Ajax Property) but that no charges were laid.
38Part of the difficulty with Constantin’s version of events is that it is not matched by the contemporaneous police report filled out at the time. That report describes the dispute as relating to a disagreement about a case of water (and Peter’s alleged unwillingness to carry it so that Constantin would not have to do so). While the author of the report was not called to testify, and while therefore I do not accept the report for the truth of its contents, I can and do note that what was recorded as reported to the police at the time did not reflect any of what Constantin now alleges. There is also a consistent thread in the materials showing that, to varying degrees throughout the relationship, Constantin was abusive to Filma and his sons, sometimes violently so, such that his claim to have been the victim on July 25, 2020 rings a little hollow.
Details re Claim with respect to Scarborough Property
39In terms of Constantin’s claim to an interest in the Scarborough Property, I note first that the Scarborough Property was purchased in 2005. Filma maintains that it was purchased using only her funds, and that the couple’s intention was therefore that title would be in her name alone.
40However, Filma testified that she was advised by her lawyer that the lender providing mortgage financing for the purchase required that Constantin also be on title.
41It is not unusual for a lender to wish to have additional support and additional recourse for a mortgage loan. It is a little difficult to square the lender’s insistence that Constantin go on title with Filma’s insistence in turn that Constantin never worked and therefore never had an income from which to contribute to household finances.
42Constantin’s evidence is that he did work, at least off and on, over the relevant timeframe, for example in the construction field, and briefly as a building superintendent.
43I accept that he earned at least some income, at least some of the time, and that his income was enough that the bank insisted that he be added to title.
44However, there is in evidence a July 21, 2005 letter from a lawyer, Gerald Kroll, who acted for the Mocanus on the purchase of the Scarborough Property which, apart from reporting generally on the transaction, says: “Title was originally to go in to (sic) the name of Filma Mocanu alone but the mortgagee (Maple Trust Company) required that title to go in both names since your combined incomes were required in order to support the mortgage.”
45The fact that Constantin had at least some income, and that the financier wished therefore to add him to title, does not prove that Constantin made any actual contributions to the household.
46Indeed, apart from Constantin’s protestations that he contributed both financially and by way of maintenance and other work at both properties, there is no evidence to confirm that he did so. That is, there are no records of any payments by Constantin to Filma, or to providers of goods or services, showing any contribution by Constantin to the household at all.
47Moreover, buttressing Filma’s adamant insistence that Constantin made no contributions, the evidence of the parties’ sons is also to the effect that Constantin only ever took from, and never gave to, the household.
Three Main Reasons for Rejecting Constantin’s Claim(s)
48There are ultimately three main reasons why I prefer the evidence presented by the respondents to that presented by Constantin on the issue of the extent of Constantin’s contributions or otherwise to the family’s household and expenses.
A. Problems with Constantin’s Credibility
49First, generally speaking, I do not believe much of what Constantin says. He showed an alarming propensity in his evidence to refuse to acknowledge clear and indisputable facts, and to flip flop in his responses to questions, literally from one moment to the next, apparently depending on his perception at a given moment as to what answer would serve him best.
50For example, there were a number of documents put to Constantin in cross-examination that on their faces bore his signature. When it became evident that a document’s contents were antithetical to Constantin’s perception of his best position, he would deny that the signature in question was his, or deny even knowing about the document at issue, let alone that he had signed it.
51On at least one occasion, no doubt appreciating the problematic impression created by Constantin’s tactic of suddenly disavowing documents ostensibly bearing his signature, Constantin’s counsel quite appropriately spoke with respondents’ counsel and presented an agreement that, notwithstanding Constantin’s initial refusal to acknowledge his signature on a document, the parties agreed that it was indeed Constantin’s signature on that document.
52However, subsequent to that agreement, Constantin continued, in connection with other documents, to deny the genuineness of his signature where it appeared on certain documents.
53In one instance, relative to a set of documents filed by or on behalf of Constantin’s application for ODSP benefits, which application eventually led to Constantin in fact receiving those benefits for a period of years, Constantin initially confirmed his signature on the application. Then, moments later when confronted with contents within the application at odds with positions that he had articulated in his evidence, he purported to form the view that the signature was not his after all.
54The ODSP application and benefits are also problematic for Constantin’s credibility in other ways. In his evidence, he acknowledged that before and during his receipt of ODSP benefits, which he was receiving on the basis of an alleged physical inability to work, Constantin regularly undertook work – in the nature of unskilled labour – for cash.
55Constantin did not report any such income to the CRA and, equally or more concerning, appears to have been performing work, on an ongoing basis, that undermined the very basis of his request for and receipt of the ODSP benefits.
56Moreover, Constantin in his testimony expressed annoyance and purported to be perplexed over criticism in questions to him about this evident deceit. He wondered aloud in his testimony what was “the big deal” about his receiving undeclared cash income for labour at the same time as receiving disability benefits from the public purse.
57I should note that Constantin’s evidence concerning his alleged physical infirmities from time to time was inconsistent, unpersuasive, and not supported by any substantial medical evidence.
58I also find that the impetus for Constantin transferring his notional share of the Scarborough Property was as part of his own scheme to hoodwink his way to receiving ODSP benefits, and not, as he alleges, driven by his unquestioning compliance with a strategy devised and executed by Filma.
59As another example of aspects of Constantin’s evidence undermining his credibility, when confronted with the transcript of counsel’s questioning of him (in December of 2022), Constantin purported to deny that he had attended for questioning, despite the evidence that he had. Again, it was ultimately agreed that Constantin had in fact been questioned, and that the transcript reflected that exercise. However, Constantin’s refusal – again – to acknowledge self-evident facts factors into my unwillingness to put much stock in his testimony.
60Constantin’s counsel argued on his behalf that the problems with Constantin’s testimony, or more precisely the problems with his conduct encompassed in his testimony, relate to Constantin’s imperfect grasp of English, which is not his first language.
61In that regard, Romanian interpreters were present throughout the trial, providing “consecutive translation” when Constantin was in the witness box, and “simultaneous translation” (for Constantin’s benefit) throughout the balance of the evidence and during closing submissions.
62However, during the consecutive translation, there were many instances where Constantin, having been posed a question in English, or asked about writing in English in a document, would begin answering that question in English, before being reminded to await the translation. These exchanges demonstrated, I find, that Constantin has a reasonable understanding of spoken and written English, and the ability to converse in English when he wishes. I am not able to conclude that Constantin is entirely fluent and adept in English, but it is clear that he understands even somewhat sophisticated concepts, and is able to communicate in English about them.
63I do not accept Constantin’s repeated allegation that, because of his inability to grasp or communicate in English, he relied entirely on Filma to communicate to authorities, and to fill out documents on his behalf, and that he was unable to understand what was communicated. Rather, consistent with what I have found about his credibility in other areas, I find that Constantin purports not to understand communications and concepts when he perceives that it suits his interests to assert that lack of understanding. In short, on this issue, once again I do not believe him.
B. Lack of Clean Hands
64Apart from the pronounced problems with his credibility, and turning now to the second factor causing me to substantially discount his evidence, Constantin seeks equitable remedies in relation to the properties in dispute, but comes to court with hands that are far from clean.
65As set out above, it is my impression that Constantin will say anything, at any moment, that he perceives to be in his best interests. He has also shown a consistent pattern of unabashedly bilking the public purse and of concealing cash income from the CRA.
66I find that he has perpetrated verbal and sometimes physical abuse on his wife and sons, and that he has done little or nothing, at least since the very early years of the marriage, to contribute to their well-being.
67In short, I do not accept that he comes to court in good faith, or that he has been fair with the court in acknowledging shortcomings in his evidence. On many issues, I simply do not believe his testimony.
Constantin has failed to Discharge His Onus of Proof
68These concerns about his evidence and honesty are a further problem for him inasmuch as – and this is now the third main reason why I find for the respondents – Constantin, as the applicant, has the onus to prove his case on the balance of probabilities. Constantin’s counsel who, unlike his client, was forthright and appropriate with the court throughout the trial, and who worked well with Constantin’s difficult case, acknowledged that the burden of proof was on Constantin.
69I find that Constantin has fallen well short of satisfying that standard, and that his testimony, unsupported for the most part by any other evidence, and problematic in terms of credibility, does not demonstrate the basis for a claim in unjust enrichment or quantum meruit. He is not entitled, in my view, to the equitable trust-based remedies that he seeks.
Problems with the Respondents’ Evidence
70That is not to say that I find the respondents’ evidence to be flawless.
A. Filma
71In her testimony, Filma acknowledged that it was her invariable habit over the years to report to the CRA only a part of the employment income that she received.
72Like Constantin, she did work for cash that she did not declare on her annual tax returns.
73Early in her testimony, she acknowledged that her unreported employment income (over and above her reported income) was typically in the range of $4,000.00-$6,000.00 annually, and that in addition she did not report income she received by renting out a number of rooms in the Scarborough Property to students in the years after she (and two of her three sons) had moved from there to the Ajax Property. The gross unreported income she received from the Scarborough Property, she testified, was in the range of $1,350.00 per month.
74Later in her testimony, when confronted with a document prepared by an accountant who did work for one of her employers, Filma admitted that in fact, whereas she had reported to the CRA during the period from 2011-2020 annual income ranging from about $28,000.00 to about $43,000.00, her actual income from employment was $96,768.00 per year throughout that period, separate and apart from the unreported rental income. I assume that what the document describes or implies is that employment income must in large part have been paid to Filma as an independent contractor (to avoid the need for T4s), but in any event, Filma agreed that the document was accurate and that she had in fact received annual income of $96,768.00 as the document attests.
75This takes her under-reporting of income from low-level misrepresentation to consistent misrepresentation on a larger scale (seemingly, over the decade at issue in a total amount of about a half a million dollars).
B. Peter
76Perhaps not surprisingly, given the habits of both of his parents regarding undeclared income, Peter Mocanu also testified that his practice was to report only a part of the income that he earned from year to year. In many years, he acknowledged, the income he reported to the CRA was less than half of what he actually earned. Peter purported to under-report his income to shelter it from his father, but also, troublingly, said that he does not report his income for tax purposes because he “wants to keep the money that he makes”. Again, perhaps not surprisingly given the example set by his parents, he seemed to feel no compunction nor remorse about evading taxation.
Respondents’ Knowing Breaches of Court Orders
77Then there is the matter of Filma and Peter’s knowing and deliberate breaches of orders of this court.
78On November 1, 2022, in the face of a motion by Constantin for a CPL on the two properties, Diamond J. wrote, given that there had been no judicial consideration nor disposition of the CPL motion, that “on a continuing interim basis and without prejudice to all parties’ rights, interests, claims and defences in this proceeding, the respondents shall not sell, transfer or encumber their interests in the [Scarborough Property and/or the Ajax Property] (collectively “the properties”) pending further court Order or agreement between the parties.”
79Justice Diamond went on to provide that if the respondents, or either of them, did intend to sell or encumber either or both of the properties prior to trial, then the applicant’s (CPL) motion was to be rescheduled and heard by Diamond J. (who explicitly seized himself of that potential motion).
80Notwithstanding Diamond J.’s endorsement and order, about three weeks later, on November 21, 2022, Filma re-mortgaged the Scarborough Property and thereby obtained $240,000.00. She did so, she acknowledged, without notice to Constantin, and with full knowledge of the fact that she was doing so in specific contravention of Diamond J.’s order.
81In her evidence Filma initially purported to equivocate somewhat, pointing out that she had in fact signed documentation relative to the re-financing and new encumbrance of the Scarborough Property on October 31, 2022, the day before the hearing before Diamond J.
82There are at least two significant problems with that position. First, it is clear from Diamond J.’s endorsement that he was concerned to ensure that any steps to encumber or sell either property would be taken openly and on notice so that the parties could assert their putative rights. There is no suggestion that while in court before Diamond J. on November 1, 2022, Filma advised His Honour that in fact she was in the process of encumbering the Scarborough Property and had signed a document to that end the day before.
83Second, for purposes of the re-financing, Hartley Mocanu – the parties’ middle son – was a co-mortgagor, together with his mother, and he did not sign the documentation in question until November 2, 2022, the day after Diamond J.’s decision. It is self-evident that the completed financing documentation was thus not submitted to the lender until at least November 2, 2022, after and in full knowledge of Diamond J.’s endorsement and order.
84Filma grudgingly acknowledged these facts in cross-examination, and then essentially explained her actions on the basis that she needed the money to pay her legal bills, and did not want the complication associated with what she anticipated would be Constantin’s inevitable opposition and/or attempt to secure a share of the proceeds of refinancing. While she purported to apologize to the court for this contravention of the order, it was fairly clear to me that, had her transgression not been discovered, she would happily have kept it concealed and used the funds clandestinely exacted from the Scarborough Property. Given that she was caught, Filma did return the defalcated funds by the time of trial. While this is of course better than her not having done so, it does not fully address Filma’s willingness to ignore the court order in the first place.
85In a troublingly similar vein, on June 23, 2023, Peter and Filma listed the Ajax Property for sale. They did so, notwithstanding their continued awareness of Diamond J.’s November 1, 2022 order, again without notice to Constantin.
86They also did so notwithstanding a reinforcement of the need for notice about any steps relative to the properties, during an attendance before Kraft J. on that same day. Her Honour saw the parties for a settlement conference that day. I was taken to one paragraph of Kraft J.’s endorsement for that conference, in which she confirmed, in paragraph 4(g) that, on consent, “The endorsement of Diamond J. dated November 1, 2022, paragraph 2 continues to apply to the applicant’s request to return his motion for a CPL against the Ajax property and/or the sale of the Ajax property.”
87Again, it is clear that the intent was that no steps would be taken to sell the Ajax Property without notice to Constantin, and without allowing him the opportunity to revive his CPL motion or otherwise to protect his asserted interest in the property.
88Peter was registered as the 99% owner of the Ajax Property, with Filma holding the remaining 1%. In cross-examination Peter acknowledged that the Ajax Property was listed for sale on the same day as the attendance before Kraft J., and thus on the same day that Her Honour confirmed the ongoing application of Diamond J.’s endorsement and order, and that the listing was without notice to Constantin.
89Peter in fact became quite indignant in his testimony about the clandestine listing for sale of the Ajax Property, purporting to justify it by claiming that the real problem was the failure by Constantin to bring back on his CPL motion. He also complained vociferously about Constantin’s interference with Peter’s ability to collect the full proceeds of sale from the Ajax Property. On this score, just before closing of the sale, Peter and Filma’s hidden effort to sell the Ajax Property was discovered and brought to the court’s attention. Sugunasiri J. made an order allowing the sale to be closed, with half of the net proceeds of sale to be paid out to Peter, and the other half to remain in trust pending the outcome of this trial.
90Whatever technical loopholes Peter and Filma purport to have found in Diamond J.’s endorsement and order, and Kraft J.’s confirmation of the continuing effect of that endorsement and order, it is clear to me that both Diamond J. and Kraft J. explicitly required transparency about any intended encumbrance or sale. It is also evident that Peter and Filma understood the requirement for disclosure, and that they nonetheless proceeded without notice.
91Peter was clear in his evidence that he did so because he needed the money – he testified that the ongoing mortgage payments in an environment of rising interest rates had become prohibitively expensive. Be that as it may, it does not justify the deceitful steps that Peter and Filma took.
Additional Observations re Peter
92I should say that in the case of Peter, although I do not countenance his misrepresentations to the CRA nor his disregard of court orders, I have a little more sympathy for his plight. Accepting as I do that Constantin was an unreliable and abusive father, and again noting that Peter’s parental role models – Constantin and Filma – hardly provided examples of integrity and living a law‑abiding life, it was evident to me that Peter is troubled and emotionally overwrought. At one point in his testimony, while talking about the way his father has treated him throughout his life, Peter broke down in the witness box, in a way that was clearly genuine and heartfelt.
93This does not excuse Peter’s problematic conduct, and I admonish him to desist from misrepresentations to the CRA or other public authorities, and remind him that he is obliged to follow court orders. Nonetheless, I think that there is still hope for Peter to change his ways, particularly when he is out from under the spectre of his father’s legal claim against him.
Discussion of Constantin’s Deposit into Hartley’s Account
94Before turning to the parties’ legal submissions, I should address one perplexing part of the evidence, to which Constantin points as a stand-alone further confirmation of his contribution to the Ajax Property in particular.
95That is, in early 2014, Constantin received a cheque from Mackesy, Smye LLP, the firm that represented him in his claim against the Niagara Police Service, in the amount – net of the law firm’s fees – of $88,135.54.
96There is clear and uncontested evidence that Constantin deposited this entire amount into a bank account of the parties’ middle son Hartley.
97What is hotly contested is the reason why Constantin did so, and what happened with the deposited funds thereafter.
98Constantin’s position is that he provided the funds – via Hartley’s account at Filma’s direction – out of his abiding determination and efforts to support his family (which he maintains was still intact as of early 2014). He also alleges that the funds were then applied to the extent of about $58,000.00 to the down payment for the Ajax Property, and to the remaining extent of about $30,000.00 to renovations done to the Scarborough Property to convert it to rental accommodations.
99Filma (and Peter)’s position is that Constantin was concerned at that point, being in the midst of his application for ODSP benefits, to avoid the appearance that he had any assets. As such, he parked the funds in Hartley’s account, partly on the premise that an ostensible boost in Hartley’s liquid assets would improve Hartley’s credit rating, but on the understanding that amounts could and would be paid back to Constantin, in cash, whenever he demanded.
100Peter testified that, to his knowledge, Hartley did provide cash from his account back to Constantin.
101Hartley did not testify at trial. His absence was explained on the basis that he has recently suffered certain mental health difficulties, that attending to testify would have been stressful for him, and that he was refusing to attend at trial voluntarily.
102The parties confirmed, when this was reported to me, that none of them was seeking to have me compel Hartley’s attendance.
103I should note as well that I heard a motion in this case a few weeks before trial, in which one of the contested issues was whether or not Hartley should be ordered to fulfil undertakings and answer questions refused relative to his affidavit in which he purported to explain what had happened with the funds after Constantin deposited them in Hartley’s account. I ordered Hartley to answer the questions at issue, and expressed my view that Hartley had obfuscated and been intentionally uncooperative during cross-examination on his affidavit.
104At trial, Constantin brought certain evidentiary motions, including one seeking that Hartley not be permitted to testify given his unresponsive and unsatisfactory answers to the questions I had ordered him to answer. That trial motion was not entirely resolved, pending a potential agreement between counsel about aspects of Hartley’s evidence. That motion and the discussions between counsel became academic given Hartley’s refusal to attend at trial and the determination by the parties not to force that issue.
105As such, the court was left without direct evidence from Hartley about the disposition of the money Constantin had deposited into Hartley’s account.
106Frankly, neither side’s explanation of what became of those funds was terribly persuasive, and the whole arrangement seems a little suspicious and sketchy, regardless of whose version one accepts.
107In the circumstances, noting again that the onus is on Constantin to prove his claims, I find that he has failed to do so on the balance of probabilities. I cannot reach a reliable conclusion as to what happened with the $88,135.54, but there is no evidence before me to support Constantin’s contention that the funds went to either the Scarborough Property or the Ajax Property. Moreover, Filma in her evidence showed a source of funds for both the Ajax Property down payment and the cost of renovations to the Scarborough Property, in amounts and at a time consistent with those two events. Accordingly, I do not find that the deposit by Constantin of his settlement funds into Hartley’s bank account changes my conclusions about Constantin’s non-contribution to the properties. I also find that Constantin has not proved on a balance of probabilities his alternative position that Filma’s borrowing against equity in the Scarborough Property to purchase the Ajax Property entitles Constantin to an interest in the Ajax Property. I have rejected Constantin’s claim to an interest in the Scarborough Property, and so there is no basis for a claim that his interest “flowed through” to the Ajax Property.
Discussion of Legal Submissions
108In his closing submissions, Constantin points to cases including the seminal decision of the Supreme Court of Canada in Petkus v. Becker 1980 22 (SCC), [1980] 2 S.C.R. 834, in support of his claim that his alleged contributions to the family and the properties entitle him, based on the doctrine of unjust enrichment, to a beneficial trust interest in those properties.
109The case is clearly authoritative, as are other cases cited by Constantin confirming that constructive trust and resulting trust are remedies available in the context of Family law disputes (McDonald v. McDonald, 1988 8635 (ONSC), Pecore v. Pecore, 2007 SCC 17, 2007 1 S.C.R. 795).
110I also accept that in the context of Family law disputes, while a contribution needs to be linked to a specific property in order to yield a constructive trust, the remedy need not be as rigorously limited in the Family law context as it would be in a commercial context.
111However, the basis for these various equitable causes of action and remedies, from which potential relief flows, is a finding that there has been a contribution, whether financial or by way of sweat equity, or otherwise, to the property or properties at issue (such that it would be unfair to deprive Constantin of an interest in those properties).
112In this case, I find no persuasive evidence, and certainly nothing to show that Constantin has met his onus to prove that he has made any contribution to either the Scarborough Property or the Ajax Property. Indeed, I accept the respondents’ evidence that Constantin has taken from the properties rather than adding value to them.
113In my view, particularly when coupled with Constantin’s far-from-clean hands, these findings disentitle Constantin to the equitable remedies he seeks, and I dismiss his claims for a trust interest in the two properties. It follows that the remaining funds held in trust from the proceeds of sale of the Ajax Property should be paid to the respondents in accordance with their respective ownership interests.
114I need not determine whether or not these considerations would preclude or attenuate Constantin’s alternate claim for an equalization of net family property under the Family Law Act.
115That is because I find, given that I accept Filma’s date of separation to be more consistent with the evidence than Constantin’s proposed date of separation, that this potential claim is time‑barred.
116Section 7(3)(b) of the Family Law Act provides a limitation period of six years from the date of separation (or two years from the date of divorce, which is not relevant here since there is no divorce order yet). Having found that the date of separation was in 2013, the applicant’s claim issued on March 30, 2021, was about two years past the limitation deadline.
117Section 2(8) of the Family Law Act gives the court a discretion to extend this limitation if satisfied that: (a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and (c) no person will suffer substantial prejudice by reason of the delay.
118A number of cases on which Constantin relies have interpreted s.2(8) liberally, consistent with the direction from the Court of Appeal for Ontario in Hutchinson v. Hutchinson (2001), 2001 24060 (ON CA), 11 R.F.L. (5th) 297 (Ont. C.A.). As McGee J. notes in Massai v. Massai, 2012 ONSC 6467, the Court in Hutchinson “made it clear that a spouse should not be deprived of his/her share of matrimonial property rights because of a missed limitation period, except in cases of bad faith, or a willful or reckless disregard for the limitation period”.
119I find that in this case, notwithstanding the tendency, with which I generally agree, to be liberal in construing these provisions, and to err on the side of allowing matters to be addressed on their merits, there is no basis to prevent the operation of the limitation.
120I appreciate that I am viewing the issue from the vantage of having made final findings about the evidence, as opposed to the scenario in a number of these cases where no determination has yet been made about the sufficiency of the grounds for relief and the question is decided on a prima facie basis. I have found that there are significant shortcomings in Constantin’s purported grounds for relief (and indeed have determined to dismiss his claim).
121In addition, focusing on the Court of Appeal’s direction in Hutchinson, I find that Constantin’s claim is brought in bad faith.
122For these reasons, I conclude that the limitation period must operate.
Constantin’s Claim for Spousal Support
123I turn now to Constantin’s claim for spousal support.
124I find that the support claim suffers many of the same shortcomings as Constantin’s property claims. The evidence concerning the parties’ respective incomes over the years is clouded by the fact that both parties have admittedly engaged in off-the-books work for undeclared cash payments.
125In the case of Constantin, the analysis is further clouded by the question of his capacity to work. At times when he alleged to public authorities that he was unable to work, he nonetheless did so. This, combined with the unreliability of his alleged claims of medical impairment, mean that quantifying an imputed income to him is necessarily in the realm of guesswork.
126Once again, Constantin bears the onus to prove his claim for spousal support, and I find that he has failed to do so on a balance of probabilities.
Divorce Granted
127The last substantive claim in Constantin’s application, his claim for a divorce, is on consent, and I grant that relief.
No Order as to Costs
128Normally the respondents, as the successful parties, would be entitled to their costs of the application.
129In this case, however, I have found that the respondents knowingly and intentionally breached orders of this court by encumbering and listing for sale, respectively, the Scarborough Property and the Ajax Property. In each case, knowing of their obligation to disclose their intentions, the respondents instead concealed these steps.
130The court cannot and will not stand for parties flaunting its orders.
131On this basis alone, and leaving aside the respondents’ demonstrated track record of under‑reporting their incomes to the CRA – in the case of Filma by something in the order of half a million dollars over the course of 10 years – I am not prepared to reward the respondents by requiring Constantin to pay their costs.
Conclusion
132In summary then, Constantin’s application is dismissed, and I make no order as to costs.
W.D Black J.
Date: December 18, 2023