Court File and Parties

COURT FILE NO.: FS-22-00032977 DATE: 20240619

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Evette Joseph Applicant – and – Lamin Jabbi Respondent

Counsel: Cherry E. Isaacs-Reynolds, for the Applicant Mercedes Ibghi, for the Respondent

HEARD: June 18, 2024

Papageorgiou

Overview

[1] The Respondent brings a motion for summary judgment to dismiss the Applicant’s case as being statute barred and otherwise too late.

[2] The Applicant and Respondent had been married and separated in 2006.

[3] At the time they separated they lived at 211 Westmount Ave.

[4] In 2010 there was an uncontested divorce, which was stated to be a joint application. In the affidavit filed by the Respondent (who was the Applicant in that proceeding), he stated that the parties had agreed that the Applicant could continue to reside in premises at 211 Westmount Ave in Toronto until their children finish post-secondary education. It also noted that it was only a claim for divorce and that there was no claim for child support, custody access, spousal support or for equalization, although the materials noted that the parties had agreed to joint custody.

[5] As part of these materials, the Respondent set out in his affidavit that his income was $99,123 at that time and agreed that the amount of child support payable was $1,394. However, it was also agreed that the amount of child support actually being paid was $1,815 and that he would pay this by paying the mortgage of $1,815.

[6] The Applicant and children resided in 211 Westmount until 2021 when the Respondent advised the Applicant that she had to move out as he wanted to sell it. At that point the children had been adults for some time, but the youngest child did not finish university until 2022.

[7] The Respondent entered into an agreement of purchase and sale which closed in September 2023 for $1,300,000 and the funds are being held in the trust account of the Respondent’s solicitor.

[8] The Applicant then brought these proceedings.

[9] She claims that she is unsophisticated while the Respondent is, that they agreed when they separated that they would not deal with the issue of the division of 211 Westmount which she says was their matrimonial home, until the children finished university. She said she relied upon this when they attended at court to obtain the uncontested divorce. She says that at the time of their divorce, their son was 15 years old and had some challenges. She tried to create a stable environment for the children and as such, was very much in agreement with the Respondent’s suggestion that they deal with the matter of the home later.

[10] She says that when she began this proceeding it was primarily to assert her interest in 211 Westmount through her claim for a constructive trust. However, the Respondent’s response to her Application and his depletion of her equity in 211 Westmount over the years has convinced her that she should instead request an extension of time to request equalization, retroactive child support and retroactive spousal support as she feels she was tricked into signing divorce papers when the Respondent had no intention of following through.

Decision

[11] For the reasons that follow, I dismiss the Applicant’s claims for equalization, retroactive child support and retroactive spousal support.

[12] However, I do not dismiss the claim for a constructive trust over the proceeds of sale of 211 Westmount. In my view, the Applicant has raised a genuine issue in that regard that requires a trial.

Issues

• Issue 1: Is there a genuine issue as to whether the Respondent held 211 Westmount in trust for the Applicant as to 50 %?
• Issue 2: Is there a genuine issue as to whether the Applicant’s claim to a constructive trust is statute barred?
• Issue 3: Should the Court extend the limitation period for the Applicant to bring her equalization claim?
• Issue 4: Is there a genuine issue as to whether the Applicant has a claim for retroactive child support?
• Issue 5: Is there a genuine issue as to whether the Applicant has a claim for retroactive spousal support?

Analysis

[13] Before addressing the issues, it is important to set out a brief recitation of the summary judgment test as follows.

[14] Under r. 16(6) of the Family Law Rules, the court “shall make a final order” if there is no genuine issue requiring a trial. Pursuant to r. 16(6.1) the court may exercise special fact-finding powers in determining whether there is a genuine issue unless it is the interest of justice that these powers be exercised at a trial.

[15] Rule 16(6) is a codification of the summary judgment principles articulated by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, explained:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[16] In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party cannot rest solely on allegations in a pleading. Each side must “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9. Furthermore, “a summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial”: Diao v. Zhao, 2017 ONSC 5511, at para. 18.

Issue 1: Is there a genuine issue as to whether the Respondent held 211 Westmount in trust for the Applicant as to 50 %?

[17] There is a clear credibility issue as to what the parties agreed regarding 211 Westmount which cannot be resolved on this paper record, notwithstanding the uncontested divorce.

[18] I note that the affidavit filed by the Respondent in support of the uncontested divorce does refer to 211 Westmount as the parties’ “joint property”. The Applicant attended with the Respondent to obtain the joint divorce and so she would have seen this. This is some support for the Applicant’s position.

[19] Further, after the divorce, she says that the Respondent continually referred to the property as “our property” and continued to tell her that half of it belonged to her and that is why it was important that she contribute to the mortgage.

[20] Additionally, the Applicant has found a financial statement filed by the Respondent in family law proceedings involving his separation from his second wife in 2019. In that document, the Respondent declares that 211 Westmount was being “held in trust for ex-spouse in lieu of monthly child support payments as per agreement.” Although his counsel argues that this is nothing more than a statement that child support was being paid by permitting her to live in the house, that is not what this document says. It explicitly says that he was holding the property in trust for her. It’s unclear what the purpose of setting this out on his financial statement would be if it was only about the child support he had to pay. Child support he has to pay would be reflected elsewhere on his financial statement.

[21] There are also concerns about the Respondent’s credibility because it is admitted that he and the Applicant executed a separation agreement in 2019, backdated to 2006, related to 211 Westmount which separation agreement set out that the “matrimonial home” (211 Westmount) would be held in trust for the Applicant’s children and transferred to them when they grow up. The purpose of this backdated separation agreement was related to his divorce proceedings with his second wife.

[22] Although the Respondent baldly says that 211 Westmount was equalized in his second divorce, there are no back up documents before me that demonstrate this.

[23] Regarding her contributions, the Applicant has also given evidence that 211 Westmount was purchased with family savings and that they both shared in the household expenses while they were married including the mortgage. She says that they agreed that she would not be put on title because she had significant credit card debts and that the property was taken in the Respondent’s name to facilitate mortgage financing. She attended at the lawyer’s office to give her content as a spouse towards the purchase of a matrimonial home and they firmly agreed that she would share in the equity. She says that the lawyer also explained to her that her name was not on title simply for financing reasons.

[24] She also gave evidence that even though the Applicant said he would pay the mortgage in lieu of child support, he did not keep his word and insisted that she contribute to the mortgage after the separation.

[25] The Applicant says that the Respondent initially told her that she had to pay $800 per month to pay the mortgage, property taxes and insurance and that he would attend each month to obtain the cash from her. Sometimes when his finances were difficult, he would ask her for more and she did so willingly.

[26] The Respondent implies that their agreement always required the Applicant to contribute rent. His affidavit filed on this motion says that their agreement at the time of separation was that she would contribute “about $1,000 to $1100 per month for the use of the property.” This is his characterization but it is not hers and this shows that she did contribute financially to the property albeit the characterization of why would need to be determined. It is not possible to do so on this record.

[27] She says that the Applicant kept taking equity out of the house and then had difficulty adhering to the agreement and insisted that she give him money towards the mortgage. In that regard, when they purchased the home, the mortgage was only $300,000 and she has provided evidence of the ongoing increases in the mortgage which she says he did without any disclosure to her. She received no benefit of these increases. She says that by the time the property was sold the mortgage had increased to $665,000 with monthly payments of $3,271.67. She says that what the Respondent has done in this regard is to deplete equity that she was entitled to.

[28] She also continued to maintain the property so its value could be enhanced. She maintained the yard, cleaned and salted the sidewalks and driveways every year, cut the lawn, contributed to the physical maintenance of the outer building and garage areas, and addressed problems with pest control. She contributed to general incidental repairs and maintenance fixing things like a leaking tap, broken doorknobs, resealing windows, and general indoor maintenance. When the roof was replaced, she contributed $700. She also financially contributed to the renovation of the basement apartment.

[29] She says she contributed to paying utilities for the entire home including water, hydro and gas.

[30] On one occasion the Applicant gave the Respondent her $3,000 tax refund because he said the bank was going to take the house. In 2022 she received a Notice of Sale in respect of the property which was addressed to her as the spouse of the Respondent.

[31] The Applicant was also listed as an owner by the property insurer during the marriage and continued to be referenced as an owner afterwards. When the insurance was cancelled for non-payment, she dealt with the insurer.

[32] I am satisfied that she has made out a genuine issue that requires a trial.

[33] It is not in the interests of justice that this be determined using expanded powers. There have been no cross examinations. The resolution of this issue would not be a mini trial, but a full-blown trial.

Issue 2: Is there a genuine issue as to whether the Applicant’s claim to a constructive trust is statute barred?

[34] There is a genuine issue as to whether the Applicant’s claim to a constructive trust is statute barred.

[35] Pursuant to the Real Property Limitations Act, R.S.O. 1990, c. L.15, the limitation period in respect of a right to bring an action expires within ten years after the time at which the right to bring the action first accrued to the person making it or bringing it.

[36] The Respondent argues that the limitation period began to run in 2010 when the Applicant alleges they entered into the agreement.

[37] However, the Applicant’s evidence is that up until November 2021, the Applicant had no knowledge that the Respondent was denying that she held a beneficial interest in the property. Their agreement according to her, is that they would wait until the children were grown up to address the issue of the home.

[38] She says that in 2021 that the Respondent called to inform her he was selling the property. She did not disagree but told him she was entitled to 50 %. At that point, he told her that she only deserved 10 % and later he told her she was entitled to nothing and was a tenant only.

[39] When the Respondent told her his position, she commenced a proceeding in 2022, first before the Superior Court for a constructive trust and later in November 2022 brought a family law proceeding for claims against 211 Westmount.

[40] I agree that based upon the Applicant’s evidence, if accepted, her claim only accrued when the Respondent advised her that he had resiled from their alleged agreement.

[41] In the alternative, it was only discoverable in or around November 2021: See Pioneer Corp. v. Godfrey, 2019 SCC 42 and Brown v. Meunier, 2023 ONCA 223 where the courts have held that the doctrine of discoverability applies to real property claims.

[42] Thus, there is a genuine issue as to whether this claim is statute barred.

Issue 3: Should the Court extend the limitation period for the Applicant to bring her equalization claim?

[43] No.

[44] Pursuant to s. 7(3) of the Family Law Act an application for relief under ss 5(1), (2) and (3) must be brought within two years of when the marriage is terminated by divorce or judgment of nullity. These provisions address equalization claims.

[45] Section 2(8) provides that the Court may extend any time prescribed by the Act if satisfied that there are apparent grounds for the relief, relief is unavailable because of delay that has been incurred in good faith, and no person will suffer substantial prejudice.

[46] In my view, given the Applicant’s evidence that she and the Respondent negotiated their separation such that she would be permitted to live in the property with the children while the Respondent paid the mortgage, with property issues related to 211 Westmount to be addressed later, there is no basis for a court to extend the limitation period for her equalization claim. If she successfully proves this agreement, then the remedy will be her entitlement to the 50 % interest in the property as the parties agreed. The agreement she alleges did not entitle her to both an interest in the property as well as an equalization claim. The fact that she alleges that the Respondent resiled from their alleged agreement does not change this.

[47] If the Applicant is unable to prove this agreement, then there would be no basis to extend the limitation period because without this agreement, there is no explanation for her delay.

[48] I add that an equalization calculation would require information about the parties’ assets at the time the marriage commenced in 1992 and what the parties had at separation in 2006.

[49] At the time of separation (2006) and the subsequent divorce (2010), neither party had legal advice and they did not exchange financial disclosure. The parties’ actual financial situation at the time is unknown and due to the length of time that has passed, financial records dating back to 1992 and 2006 may no longer be available or it will certainly as a practical matter be difficult to obtain. This would result in substantial prejudice. Additionally, there is no evidence of any significant assets other than 211 Westmount, which will be dealt with in her claim for a constructive trust.

[50] Thus, I reject the Applicant’s request to extend the limitation period in respect of her equalization claim.

[51] If there are issues as to the Respondent’s improper registration of mortgages which drained the equity, this can be dealt with in her claim for a constructive trust over the proceeds, by claiming a larger share as she has already done.

Issue 4: Is there a genuine issue as to whether the Applicant has a claim for retroactive child support?

[52] No. It is too late.

[53] In D.B.S. v. S.R.G., 2006 SCC 37, the Supreme Court of Canada held that in determining whether to make a retroactive award, a court should strive for a holistic view of the matter and decide each case on the basis of its particular facts, balancing the payor’s interest in certainty with the need for fairness to the child. The payor’s interest in certainty will be reasonable up until the date on which the recipient signaled a desire to review and adjust child support. Whether or not retroactive support will be ordered will depend on whether the recipient spouse gave “effective notice” that more support was being requested. The court went on to hold that a retroactive award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of an intention to seek an adjustment. In the analysis, the court should consider the reason for the recipient parent’s delay in seeking child support, the conduct of the payor parent, the past and present circumstances of the child, including the child’s needs at the time the support should have been paid, and whether the retroactive award might entail hardship.

[54] Further, although a support recipient can bring an application for retroactive support, it must be brought while the child is still eligible for support: D.B.S. v. S.R.G., 2006 SCC 37 at para 86. The Court in that case stated:

An adult, i.e., one who is over the age of majority and is not dependent, is not the type of person for whom Parliament envisioned child support orders being made. This is true, whether or not this adult should have received greater amounts of child support earlier in his/her life. Child support is for children of the marriage, not adults who used to have that status.

Reason for the delay

[55] The Applicant has not set out a reason for the delay other than her upset at the position the Respondent took in respect of 211 Westmount after she commenced her Application claiming a constructive trust.

[56] Again, on the Applicant’s own evidence, the parties agreed that the Respondent would pay $1815 on the mortgage on 211 Westmount and that this would satisfy his child support obligations. This is also what the materials filed on the uncontested divorce said. There is no evidence before me that he failed to pay this amount and the reason for the request appears not to have anything to do with the quantum of child support but the Applicant’s upset with the Respondent over his position on the property.

Hardship on the Respondent

[57] It would be unfair to the Respondent to go back and revisit and adjust all the payments he made in the past. As set out in D.B.S. the payor’s interests should be balanced with the payee’s. The payor’s interests will be reasonable up until the date on which the recipient signaled a desire to review and adjust child support. Whether or not retroactive support will be ordered will depend on whether the recipient spouse gave “effective notice” that more support was being requested. It is not appropriate for the court to go too far into the past.

[58] In this case, there was no notice until the Applicant was seeking additional child support retroactively until she amended her Application in 2024. This was 12 years after the eldest became financially independent and 2 years after the youngest completed his post-secondary education.

[59] The Respondent is the sole caregiver for his three other younger children aged 14, 12 and 10 whom still reside fulltime with him. He has organized his current financial affairs around the agreement he had with the Applicant in respect of child support. He does not receive any child support from these children’s mother and a retroactive award will impact his ability to care for his current children, who are actually children.

Conduct of the Payor

[60] There is no evidence that the Respondent hid his income; his income is published every year on the Sunshine List. The Applicant has never made, and still has not made, any request for the Respondent’s income information. There is no evidence that he intimidated the Applicant to dissuade her from bringing an Application for increased support. There is no evidence that the Respondent misled the Applicant into believing that his child support obligations were being met when he knew they were not.

Past and Present Circumstances of the Children

[61] The children are currently 28 and 33 years old respectively. The 28-year-old finished university in 2022.

[62] Awarding retroactive support at this point, will not address the purpose of child support which is to support children; a retroactive award is a poor substitute for past obligations not met which is why the payee parent must promptly advise the payor of effective notice of a claim for increased retroactive support.

[63] And in any event, there is no information before me that the children suffered any hardship. The Applicant has not provided any evidence regarding drastic changes to the children’s lifestyle after separation or any hardships they faced that were not addressed because of the amount of the child support. The children continued to enjoy a similar lifestyle post separation. They remained in the same home, attended the same private school and participated in the same extracurricular activities. Although the Applicant says she paid for the private school, she could have requested contribution and did not in a timely way.

[64] The Applicant was required to put her best foot forward in response to this motion. There is no genuine issue that the Applicant would ever be entitled to a retroactive child support award in all the circumstances on the basis of the materials before me. I dismiss this claim.

Issue 5: Is there a genuine issue as to whether the Applicant has a claim for retroactive spousal support?

[65] In Kerr v. Baranow, 2011 SCC 10, after the release of the SSAG, the Supreme Court of Canada ruled that the retroactive child support analysis of D.B.S. v. S.R.G., 2006 SCC 37, with some modifications, should be applied to the determination of retroactive spousal support. The D.B.S. factors are:

(a) the reasonable excuse for any delay in seeking support by the recipient; (b) the presence or absence of blameworthy conduct by the payor; (c) the circumstances of the support recipient; and (d) any hardship to the payor occasioned by a retroactive award.

[66] As with the Applicant’s claim to equalization and retroactive child support, she has not provided any reasonable excuse for delay in seeking support, or any blameworthy conduct related to a claim to spousal support. The same considerations regarding hardship also exist here.

[67] With respect to the circumstances of the support recipient, the Applicant did not provide any evidence of her past or present financial situation, efforts she made to become self-sufficient, or better her financial situation or evidence that she is struggling from financial hardship.

Conclusion

[68] I dismiss all claims except for the Applicant’s claim for a constructive trust over the proceeds of sale of 211 Westmount.

[69] I am directing that the parties exchange additional Requests for Information within 15 days.

[70] I am directing that the parties attend a settlement conference on October 11, 2024 at 2:00 p.m.

[71] I award no costs as success was divided.

Papageorgiou J. Released: June 19, 2024

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Evette Joseph Applicant – and – Lamin Jabbi Respondent

REASONS FOR JUDGMENT Papageorgiou J. Released: June 19, 2024