Court File and Parties
COURT FILE NO.: FS-23-00037993-0000 DATE: 2024-05-06
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ELICIA DEL ROCIO SALGADO, Applicant – and – SIMON BOLIVAR LOOR SABANDO, Respondent
Counsel: Elena Mazinani and Ash Mazinani, for the Applicant Simon Bolivar Loor Sabando, respondent, self represented and acting in person
HEARD: March 21, 2024
Before: Leiper, J.
Reasons for Judgment on an Uncontested Trial
Introduction
1This uncontested trial was heard on March 21, 2024. I requested further submissions in writing from counsel for the Applicant. Counsel delivered a factum responding to that request on April 26, 2024.
2The Applicant and Respondent began living together on February 1, 2014. They separated on July 31, 2023, although as of the trial date, they were both still living at their home, which is located at 203 Habitant Drive, Toronto.
3The Applicant seeks an order for the sale of the home with a division of the proceeds in accordance with the parties’ ownership share. She also seeks an order that 50% of the restaurant business interest the parties created together be declared owned by her by virtue of a resulting trust. She seeks orders for temporary and permanent spousal support from the date of separation pursuant to s. 33(1) of the Family Law Act R.S.O. 1990, c. F.3. Finally, the Applicant seeks her costs of this application, and pre-judgment and post-judgment interest pursuant to the Courts of Justice Act R.S.O. 1990, c. C.43.
Background
4The Applicant, Elicia Salgado is 67 years of age. She has a high school degree. Her current source of income is from the Canada Pension Plan. Up until 2017, she worked as a cleaner at the Toronto Eaton Centre.
5The Respondent, Simon Loor Sabando, is 61 years of age. He is a trained plumber. He attended Seneca College.
6The parties met in October of 2013 and began living together in February of 2014.
7On July 3, 2015, the parties purchased their home at 203 Habitant Drive for $425,0000 as tenants in common. The Applicant owns 99% and the Respondent owns 1%. At the time of their purchase they took out a loan, secured by a mortgage against title in favour of the Effort Trust Company in the amount of $391,680.
8In December of 2017, the parties started a business together: they purchased the Tenoch Restaurant at 933 St. Clair Ave. W. in Toronto (“Tenoch”). The Applicant retired from her cleaning position to help operate Tenoch. Although the restaurant is held by a company in which the Respondent is the sole shareholder, the couple funded the purchase jointly with $40,000 from their joint savings and available credit.
9The Applicant managed the restaurant schedules, placed orders, tracked inventory, ensured health and safety regulatory compliance, and managed the opening and closing of Tenoch. The Respondent was responsible for the financial aspects, including collecting revenues and paying staff salaries. During their joint operation of the restaurant, the Applicant did not receive any salary.
10In April of 2022, the parties refinanced the home and received an advance of $600,000 which they used to discharge the original mortgage, a private mortgage, the vehicle loan for the Respondent and various other debts. The remainder in cash was $123,241.64 which they divided 50/50. The Applicant used her half to renovate the home. The Respondent did not disclose to her his use of his proceeds.
11After the parties separated, the Applicant served the Respondent with her Application Record seeking the relief described above. On September 14, 2023, the Respondent told the Applicant that he did not intend to respond. He has filed no material nor any financial statement. He has not participated in these proceedings.
12I accept the sworn evidence of the Applicant and make findings as requested and detailed below.
Analysis
Spousal Support
13The Applicant’s material establishes that she is a “spouse” for the purpose of entitlement to spousal support. The parties have cohabited continuously for more than three years: Family Law Act, s. 29; Kelly v Kelly, 2016 ONSC 6476 at para 18.
14The Applicant is entitled to spousal support based on several factors which are relevant and arising from s. 33(9) of the Family Law Act: these include the length of the relationship, the mutual contribution to the success of Tenoch, and the Applicant’s decision to leave her paid employment to work, unpaid at Tenoch. She is 67 years of age now and needs support. The Respondent has kept Tenoch for his sole benefit and according to the evidence on this trial, he has the means to pay support.
15I find that the Applicant has established that she is entitled to support on a compensatory and non-compensatory basis. She should be compensated for her work contributing to the success of the business. She should also be supported in accordance with her needs, including her age and stage in life.
16Having accepted the Applicant’s affidavit evidence, I find that the Respondent can pay spousal support based on the profitability of the restaurant. Since her duties included monitoring sales, the Applicant would be aware of the revenue generated from Tenoch. She has described Tenoch as “profitable.”
17The Applicant’s materials mention a second restaurant owned by the Respondent, the Pupuseria Salvadoreña & Authentic Mexican Foods located at 2459 Finch Ave West, in Toronto. The Applicant did not provide evidence that she participated in operating the Pupuseria restaurant or was involved in its purchase. I find there is no evidentiary basis to include the Pupuseria in this order.
18The Applicant states that the gross income from Tenoch is approximately $400,000 per year and she estimates that the Respondent’s income is $200,000 per year. She asks that this amount of income to be imputed to the Respondent for the purposes of spousal support.
19The Applicant has attached the printout from the Divorce MATE software which provides mid-level spousal support payments in a scenario where the Respondent earns $200,000 annually and no income is attributed to the Respondent of $2625.00 monthly. The Respondent is in receipt of Canada Pension Plan income. I accept this evidence and impute annual income to the Respondent of $200,000. Given the Applicant’s claims for compensatory and non-compensatory support, I find that mid-level spousal support is reasonable and make the order that she requests.
Resulting Trust Claim to 50% Share in Tenoch
20Section 10 of the FLA grants the Court discretion to determine ownership of a particular property, as follows:
Determination of questions of title between spouses
10 (1) A person may apply to the court for the determination of a question between that person and his or her spouse or former spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties under section 5, and the court may,
(a) declare the ownership or right to possession;
(b) if the property has been disposed of, order payment in compensation for the interest of either party;
(c) order that the property be partitioned or sold for the purpose of realizing the interests in it; and
(d) order that either or both spouses give security, including a charge on property, for the performance of an obligation imposed by the order,
and may make ancillary orders or give ancillary directions. R.S.O. 1990, c. F.3, s. 10 (1).
21The Ontario Court of Appeal in Andrade v. Andrade, 2016 ONCA 368 at paragraph 58, stated that one of the “classic resulting trust situations” is “where a person advances a contribution to the purchase price of property without taking legal title”. This creates a presumption of resulting trust that can only be refuted by showing that the monies were provided as a gift. See Pecore v. Pecore, 2007 SCC 17, at paragraph 24.
22The evidence is uncontested that the Applicant, together with the Respondent, financed and worked to make Tenoch a success. On the dissolution of their relationship, the Respondent shut out the Applicant from the enterprise. This amounts to a “purchase money” resulting trust in favour of the Applicant.
23I make an order declaring that the Applicant is entitled to a 50% ownership interest in the Tenoch restaurant and the income earned from the business.
Order for Partition and Sale
24The Applicant seeks an order for the sale of the home and to have the proceeds divided in accordance with the ownership share of the parties, that is 99% of the proceeds to the Applicant and 1% of the proceeds to the Respondent.
25The authority of the court to order partition and sale arises from the Partition Act, R.S.O. 1990, c. P.4. ss. 2 and 3, as well as s. 10 of the FLA, above. The sale should be given effect unless the moving party conducting themselves in relation to the sale in a “malicious, vexatious, or oppressive” manner toward the responding party: see Kamil v. Bouchir, 2024 ONSC 1298 at para. 28.
26The parties are no longer in a relationship. The Applicant seeks to sell the home. There is no evidence of any potential oppressive or malicious impact on the Respondent.
27I make the order requested. The net proceeds shall be divided as requested, 99% to the Applicant and 1% to the Respondent.
Orders
28I order that the Respondent pay retroactive spousal support from the date of separation to the date of this judgment in the amount of $2,625 monthly for that period. I order pre-judgment interest on the retroactive spousal support from the date of separation to the date of this judgment.
29I order that the Respondent shall pay mid-range spousal support monthly of $2625 beginning on May 1, 2024.
30I order the property at 306 Habitant Drive, Toronto be sold, that the Applicant is to have sole authority to list and prepare the property for sale and that the net proceeds shall be divided 99% to the Applicant and 1% to the Respondent.
31Finally, I order that the Respondent holds 50% of the Tenoch Restaurant in trust in favour of the Applicant.
32The Respondent seeks her costs of the Application. Counsel may provide their bill of costs and brief submissions as to costs (maximum 3 pages) by May 15, 2024.
Leiper, J.
Date Released: May 6, 2024