COURT FILE NOS.: CV-20-00005058-00ES & CV-20-00005116-00ES
DATE: 20240830
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF VASILIKI CARREIRA (ALSO KNOWN AS ‘BESSIE CARREIRA’ AND AS ‘VASILIKI KOUTSOVASILIS’), DECEASED
BETWEEN:
ALEXANDRA KOUTSOVASILIS
Applicant
– and –
PAUL CARREIRA, in his personal capacity and in his capacity as ESTATE TRUSTEE OF THE ESTATE OF VASILIKI CARREIRA (ALSO KNOWN AS ‘BESSIE CARREIRA’ AND AS ‘VASILIKI KOUTSOVASILIS’)
Respondent
Daniel M. Paperny and Matthew A, Rendely, for the Applicant
Pia Hundal and Gila Gabay, for the Respondent
HEARD: February 26, 27, 28, 29 and March 1 and 19, 2024
REASONS FOR JUDGMENT
A.A. SANFILIPPO J.
Overview
[1] Vasiliki Carreira died on April 16, 2019, at 53 years of age, after a lengthy illness. She was born Vasiliki Koutsovasilis, but she was known to family and friends as “Bessie”. She was survived by her husband, the Respondent, Paul Carreira, and their children Alexandrea, Julia and Andreas who ranged in age from 16 to 22 at the time of their mother’s death. Bessie was also survived by her mother, the Applicant Alexandra Koutsovasilis, and by her father, John (Ioannis) Koutsovasilis and her brother Peter Koutsovasilis.
[2] Bessie grew up as a first generation Canadian with her parents and Peter in a Bloor Street West storefront building so prevalent in the main arteries in Toronto’s Bloor Annex, wherein her parents used the first floor for commercial purposes and made the upper floor apartment their family home. Bessie married a fellow college student, Theodoros Papadopoulos in 1988 and then divorced five years later, only to return to resume living with her parents and Peter at the Bloor Street property.
[3] In 1994, Bessie and her mother, Alexandra, took title as joint tenants to a residential property known municipally as 406 Marybay Crescent, Richmond Hill, Ontario (the “Property”). Upon its purchase, Bessie moved into the main floor of the Property and leased a self-contained apartment in the basement to pay the carrying costs. About two years later, Bessie and Paul married, Paul moved into the Property with Bessie and their children were born and raised there. To Bessie, Paul and their now-adult children, the Property is the only house they have ever known as a family home. Alexandra never resided in the Property.
[4] After Bessie’s death, Alexandra brought an Application for a declaration that she is the sole owner of the Property and for an order that Paul and her grandchildren vacate the Property and pay her occupation rent from the date of Bessie’s death. Within months, Paul brought an Application for a declaration that Bessie’s estate (the “Estate”) is the sole owner of the Property.
[5] The focus of this six-day trial was the contested ownership of the Property between Alexandra and the Estate of her deceased daughter. Alexandra contended that she bought the Property as a real estate investment, paid for it entirely, caused Bessie to be named as a joint owner solely for estate planning purposes, and permitted Bessie and her family to reside in the Property for 25 years as an act of parental generosity. Bessie was not here to testify to the circumstances of the purchase of the Property. Paul set out to establish that Bessie purchased the Property, and that Bessie added Alexandra to the title to facilitate mortgage financing. Alexandra’s case relied largely on recollection of events that occurred some three decades ago. Paul’s case relied on the evidence of others, as he was not involved in the purchase of the Property.
[6] For the reasons that follow, I find that neither Alexandra nor Paul established that Alexandra and Bessie’s registered ownership of the Property as joint tenants was subject to any trust. I find, as well, that Bessie died owning her interest in the Property as a matrimonial home, with the result that the joint tenancy is deemed to have been severed immediately before Bessie’s death, in accordance with s. 26(1) of the Family Law Act, R.S.O. 1990, c. F.3. The Property is thereby held in title by Alexandra and by Bessie’s Estate as tenants in common, each owner of an equal 50% interest. I find that neither party established an entitlement to any payments from the other, and I dismiss Alexandra’s claim for occupation rent.
[7] For brevity and clarity, I will respectfully refer to the parties in these Reasons by their first names, in the same manner used by the parties at trial and in written submissions.
I. UNDISPUTED FACTS
[8] Many of the facts material to my determination were not in dispute. These agreed-upon, or admitted facts frame my analysis of the central facts in dispute: who paid for the Property and what amounts, if any, did they pay arising out of the ownership of the Property. I will set out the undisputed facts that assist in framing the background for my analysis.
A. Family Background
[9] Alexandra, now 83 years of age, immigrated to Canada and is married to John, who did not testify at trial and was barely mentioned. She has been retired for 23 years after working as a packaging machine operator for 36 years.
[10] Bessie was born in 1965 and Peter in 1969. In 1971, Alexandra and John bought their first property in Canada, known municipally as 701 Bloor Street West, Toronto (the “Bloor Street Property”). The income earned monthly from the main floor storefront use helped to pay the property’s carrying costs and the family resided in the upper-floor apartment.
[11] Bessie attended college, where in 1984 she met Theodoros Papadopoulos. They were married in June 1988, both at 23 years of age. In April 1987, Bessie and Theodoros bought a condominium known municipally as 45 Huntingdale Boulevard, Unit 502, Scarborough, Ontario (the “Huntingdale Condo”). As recent college graduates not yet established in their careers, Bessie and Theodoros’ purchase of the Huntingdale Condo was assisted by funds provided by their parents and by their parents’ guarantee of their mortgage.
[12] In 1993, Bessie and Theodoros separated and eventually divorced. On June 16, 1993, as part of their separation of net family assets, Bessie and Theodoros divided equally the net sale proceeds from the sale of the Huntingdale Condo in the amount of $69,572.66 (the “Condo Net Sale Proceeds”). Bessie returned to reside with her parents and brother at the Bloor Street Property.
[13] On February 28, 1994, Bessie and Alexandra jointly took title as joint tenants to the Property, a bungalow in a residential area in Richmond Hill.[^1] The purchase price of $192,900.00 was satisfied by a down payment of approximately $48,225.00 and a mortgage obtained from the Bank of Montreal and registered on February 28, 1994, in the amount of $144,675.00 (the “BMO Mortgage”), signed by both Bessie and Alexandra as co-mortgagors. Upon acquisition of the Property, Bessie moved into its main floor. The apartment in the basement was already leased, the tenants were assumed, and the rent was applied toward payment of the Property’s carrying costs.
[14] On October 13, 1996, Bessie married Paul, who moved into the Property. Alexandrea was born in 1997 followed by Julia in 1998. Shortly after, the tenants in the basement apartment left and Paul converted the space to meet the needs of their expanding family. The BMO Mortgage was paid off on December 1, 2001, and Bessie and Paul’s third child, Andreas, was born in 2002.
[15] Bessie and Paul never paid rent to Alexandra for their use of the Property, nor did Alexandra ask them to do so. Bessie and Paul paid for the property taxes, utilities, and property insurance for the Property from the time that the tenants moved out.
[16] The five-year term of the BMO Mortgage matured on April 1, 1999. The principal amount of $37,206.78 remained outstanding. The BMO Mortgage was extended for a two-year term and the last payment on the BMO Mortgage was made on December 1, 2001. The BMO Mortgage was discharged from title on January 16, 2003.
[17] In December 2017, Bessie was diagnosed with stage 4 cancer. Bessie executed a last will and testament on May 25, 2018 (the “Will”), which names Paul as Bessie’s estate trustee and as the sole residuary beneficiary of her Estate. On April 2, 2019, Bessie was admitted to palliative care at Sunnybrook Hospital. On April 16, 2019, Bessie died at 53 years of age.
B. The Emergence of the Dispute Regarding the Property
[18] Paul and Alexandra both testified that before Bessie’s illness progressed to palliative care, they had no conflict. A rift occurred when Bessie was admitted to Sunnybrook Hospital. Paul showed that Alexandra disagreed with Paul acting as Bessie’s substitute decision maker and with the end-of-life treatment provided to Bessie in hospital. The resulting conflict escalated to hospital security removing Alexandra from Sunnybrook on two occasions due to confrontations with Paul and his children. Alexandrea testified that her dealings with her grandmother during her mother’s last days descended into chaos. Soon after losing her mother, Alexandrea lost any relationship with her grandmother.
[19] On September 10, 2019, Paul’s lawyer wrote to Alexandra to request her cooperation in transferring Alexandra’s interest in the Property to Bessie’s Estate. Paul’s request was based on his position that the Property was purchased by Bessie and that Alexandra’s name was registered on title to the Property only to facilitate its financing.
[20] Alexandra’s lawyers promptly rejected Paul’s claims. On December 6, 2019, Alexandra asserted that she was the beneficial owner of the Property, explaining that Bessie was registered as a joint tenant on the Property only for the purposes of estate planning. Alexandra alleged that she intended that the Property would pass to Bessie upon Alexandra’s death, but since Bessie predeceased her, Alexandra demanded that her son-in-law and grandchildren vacate the Property. Alexandra alleged that she paid the down payment and all mortgage payments on the Property as well as certain renovations with the intention that it would be her investment property. Alexandra claimed sole title to the Property based on the right of survivorship, and on the basis that Bessie held her legal interest in the Property in resulting trust for Alexandra.
[21] The strained family dynamic worsened. Alexandra would drive from Bloor Annex to Richmond Hill, park near the Property and surveil the family, including by peering over the backyard fence or viewing the Property from her parked car. Alexandra claimed that she was entitled to monitor the status of the Property because she was the owner and was inspecting the Property from a distance. Alexandrea testified that she felt stalked. Paul reported Alexandra’s conduct to the police. The hostility between Alexandra and Bessie’s family escalated to conflict over the placement of flowers and remembrances at Bessie’s gravesite. Litigation ensued.
II. PROCEDURAL BACKGROUND
[22] On March 11, 2020, Alexandra commenced an application in court file number CV-20-00005058-00ES against Paul in his personal capacity and as estate trustee for the Estate (“Alexandra’s Application”). Alexandra claimed a declaration that she is the sole beneficial owner of the Property, and that Bessie held title to the Property as a joint tenant in resulting trust for Alexandra or, alternatively, by constructive trust. Alexandra also claimed occupation rent payable by Paul from the date of Bessie’s death.
[23] On June 2, 2020, Paul initiated a probate application for the issuance to him of a Certificate of Appointment of Estate Trustee with a Will (“CAET”) for Bessie’s Estate (the “Probate Application”). A CAET was issued to Paul on June 25, 2020. In his affidavit sworn in support of the Probate Application, Paul deposed that the Estate owned real estate with a value net of encumbrances of $502,500.00. This represented a 50% interest in the Property based on a comparative market analysis of the Property that Paul obtained.
[24] On July 8, 2020, Paul initiated an application against Alexandra in court file number CV-20-00005116-00ES (“Paul’s Application”). Paul claimed a declaration that the Estate is the sole beneficial owner of the Property, and that Alexandra holds title to the Property as a joint tenant in resulting trust for the Estate or, alternatively, through a constructive trust.
[25] By Order Giving Directions issued on August 13, 2020 (the “August 2020 Order”), Dietrich J. ordered that Alexandra’s Application and Paul’s Application be consolidated and heard at the same time or immediately after each other (the “Consolidated Application”) and listed the issues to be adjudicated. By Order issued September 16, 2022, Dietrich J. ordered that the Consolidated Application be converted into and treated as an Action for the purposes of the adjudication of the issues set out in the August 2020 Order.
III. ISSUES
[26] The issues to be determined at trial were listed in paragraphs 2(a)-(f), inclusive, of the August 2020 Order, confirmed in paragraph 1 of the September 2022 Order and affirmed by the parties in their Report to Trial Judge.[^2] Distilled to their most concise restatement, this trial raised the following issues for determination:
(a) Who is the beneficial owner of the Property?
(b) What payments, if any, are owed between Alexandra and Paul?
[27] I will begin my analysis by determining who is the beneficial owner of the Property.
IV. THE PARTIES’ POSITIONS ON PROPERTY OWNERSHIP
[28] The parties’ competing claims to the Property relied primarily on the same legal principles. They are mirror images. Alexandra claims that Bessie held her joint tenancy interest in the Property in resulting trust or constructive trust for Alexandra. Paul claims that Alexandra holds her joint tenancy interest in the Property in resulting trust or constructive trust for Bessie, and now the Estate.
[29] The parties’ symmetrical claims in resulting trust are impacted in different ways by 26(1) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), which provides as follows:
If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person and not with the other spouse, the joint tenancy shall be deemed to have been severed immediately before the time of death.
[30] Paul contended that if Bessie was not entitled to full beneficial ownership of the Property based on resulting trust, the Estate is entitled to a 50% legal interest in the Property on the basis of s. 26(1) of the FLA on the following grounds: (a) at the time of Bessie’s death she owned an interest in the Property as a joint tenant with a third person, namely Alexandra; and (b) the Property was used by Paul and Bessie as a matrimonial home. Based on s. 26(1) of the FLA, Paul contended that the joint tenancy “shall be deemed to have been severed immediately before the time of death” of Bessie, with the result that the Estate and Alexandra own the Property in equal 50% shares as tenants in common.
[31] If applicable, s. 26(1) of the FLA is the impediment to Alexandra simply receiving title to the Property through operation of the right of survivorship. Since the Property was held in registered title by Alexandra and Bessie in joint tenancy, and because neither Alexandra nor Bessie severed the joint tenancy, at the time of Bessie’s death Bessie’s interest in the Property would, absent application of s. 26(1), transfer to Alexandra by operation of the right of survivorship. As explained by the Court of Appeal, “[t]hrough the right of survivorship, the interest of a co-owner in a joint tenancy will pass equally to all of the other co-owners upon his or her death.”[^3] Alexandra, as the sole surviving joint tenant would, absent the application of s. 26(1) of the FLA, be the sole owner of the Property.
[32] Alexandra submitted that s. 26(1) of the FLA has no application in this case on four grounds: (a) lack of procedural fairness in Paul’s failure to plead this relief; (b) Paul’s failure to make an election under s. 6(1) of the FLA; (c) the Property was not a matrimonial home; and (d) Bessie held her registered interest in trust for the benefit of Alexandra.
[33] The analysis of the parties’ positions regarding s. 26(1) of the FLA shows that for this provision to confer a 50% interest to Bessie’s Estate as a tenant in common of the Property, Paul must show, amongst other things, that at the time of Bessie’s death she owned an interest in the Property unaffected by any trust claim by Alexandra. Conversely, Alexandra can avoid the application of s. 26(1) of the FLA and take full title to the Property pursuant to the right of survivorship, by proving that Bessie did not own an interest in the Property at the time of her death, but rather that Bessie’s legal interest was subject to Alexandra’s claim in resulting trust, following the holding in Kent v. Kent[^4].
[34] I will begin my analysis by determining the parties’ competing claims in resulting trust.
V. THE CLAIMS IN RESULTING TRUST
[35] The well-established principles for a determination of a resulting trust are set out in Pecore v. Pecore.[^5] The Supreme Court explained that equity recognizes a distinction between legal and beneficial ownership, the beneficial owner of property being “the real owner of the property even though it is in someone else’s name”.[^6] A resulting trust arises where the property is in one party’s name, but impressed with an obligation to return the property either because the holder is a fiduciary or because the transferee gave no value for the property.[^7] The Supreme Court explained that “the underlying notion of the resulting trust is that it is imposed “to return property to the person who gave it and is entitled to it beneficially, from someone else who has title to it. Thus, the beneficial interest ‘results’ (jumps back) to the true owner”.[^8]
[36] To determine whether the transfer of property was made for no value, the actual intention of the transferor at the time of the transfer is the governing consideration.[^9] Where a gratuitous transfer is made, there is a rebuttable presumption that the transferor intended to create a trust rather than to make a gift, on the principle that “equity presumes bargains and not gifts”.[^10] The onus is on the person receiving the transfer to demonstrate that a gift was intended, failing which the transferee holds the property in trust for the transferor.[^11]
[37] The Supreme Court explained that “[t]he purchase money resulting trust is a species of gratuitous transfer resulting trust, where a person advances a contribution to the purchase price of property without taking legal title.”[^12] A purchase money resulting trust presumptively arises when a transferor advances funds to contribute to the purchase price of a property, but legal title to that property is taken in the name of another, unrelated person.[^13] Despite the apparent limitation that the presumption of resulting trust arises between “unrelated” persons, the courts have applied the presumption where funds are advanced between a parent and an adult child, particularly in matrimonial claims.[^14] The Court of Appeal justified this with reference to Pecore, where the Supreme Court abolished the presumption of advancement between parents and adult children and put in place the presumption of resulting trust.[^15]
[38] The principle underlying resulting trust is that “contributions to the acquisition of a property, which were not reflected in the legal title, could nonetheless give rise to a property interest”.[^16] Accordingly, the first step in the resulting trust analysis – the analytical starting point - is the determination of whether the party claiming the resulting trust has established that a financial contribution was made.[^17]
[39] Here, the question of who paid for the Property was highly contested and is at the core of the competing claims between Alexandra and the Estate. Alexandra claimed that she paid the entirety of the cost of the Property, and Paul claimed that Bessie paid the entirety of the cost of the Property. This means that Alexandra has the burden, on a balance of probabilities,[^18] of establishing that she paid for her share of the Property (to defeat the Estate’s claim in resulting trust) and that she paid for Bessie’s share of the Property (to advance Alexandra’s claim in resulting trust against Bessie). Conversely, Paul has the burden of establishing that Bessie paid for her share of the Property (to defeat Alexandra’s claim in resulting trust) and that Bessie paid for Alexandra’s share of the Property (to advance the Estate’s claim in resulting trust against Alexandra).
[40] I will turn to an analysis of who paid for the Property.
A. Evidence on Payment of the Property
(a) Alexandra Koutsovasilis
[41] Alexandra testified that in 1994 she decided to purchase an investment property with a rental income, and “looked north” to find a property with a large backyard. She swore that she selected the Property as a suitable investment, and was content that Bessie could live there and manage the Property. Alexandra testified that she added Bessie to the legal title as a joint tenant for estate planning purposes, so that Bessie would take the Property by right of survivorship upon Alexandra’s death. Alexandra was adamant that she did not intend that Bessie’s Estate would have any entitlement to the Property if Bessie predeceased Alexandra.
[42] Alexandra did not tender any documentary evidence in support of her testimony that in 1994 she, alone, paid the down payment of approximately $48,225.00 for the $192,900.00 purchase of the Property. In particular, Alexandra did not produce any cheque or transfer for the payment of the down payment, any bank statement establishing the source of the down payment or any ledger statement or statement of account showing that she, alone, paid the down payment.
[43] Alexandra testified that she funded the down payment of the Property using two sources: first, Alexandra testified that she earned $36,000.00 per year in her factory position in 1994, as increased annually in the years following. Alexandra did not produce any documentary evidence to verify her level of income in 1994.
[44] Second, Alexandra testified that in 1993, on Bessie and Theodoros’ sale of the Huntingdale Condo, Bessie paid Alexandra the amount of $30,000.00 from her share of the Condo Net Sale Proceeds, and that this money was available for Alexandra to use in the purchase of the Property and, correspondingly, was unavailable to Bessie. Alexandra deposed that Bessie and Theodoros divided the Condo Net Sale Proceeds by each receiving the amounts that had been provided to them by their parents (Bessie, $30,000.00; Theodoros, $15,000.00) and then dividing the remainder equally.[^19] At trial, Alexandra acknowledged that Bessie and Theodoros each received 50% of the Condo Net Sale Proceeds: $34,786.33 each. Alexandra testified that Bessie repaid her the amount of $30,000.00 from the Condo Net Sale Proceeds, in recognition that Alexandra provided $30,000.00 to Bessie in 1987 as a loan.
[45] Alexandra was a co-mortgagor of the BMO Mortgage that supported the acquisition of the Property through borrowing of $144,670.00. Alexandra did not tender any documentary evidence in support of her testimony that she, alone, paid the monthly payment due under the BMO Mortgage ($1,013.33) for the period from 1994 to 1999. Alexandra did not produce any bank statements showing the payment of the monthly mortgage payments, any cancelled cheques, or any documents to establish the source of funds used to pay the monthly mortgage payments on the BMO Mortgage from 1994 to 1999.
[46] Alexandra submitted that a comparative means analysis of her financial resources in 1994 to 1999 compared to Bessie’s is sufficient to establish, on a balance of probabilities, that she paid the entire down payment and all the BMO Mortgage payments in its first five-year term. Alexandra relied on her steady income from 1994 to 1999 and her relationship as an account holder with the BMO branch that administered the BMO Mortgage. Alexandra testified that Bessie did not have savings or sufficient income to contribute to the BMO Mortgage payments, but rather paid the carrying costs from the monthly rent received from the tenant of the basement suite from 1994 to 1996.
[47] The five-year term of the BMO Mortgage matured on April 1, 1999. The principal amount of the BMO Mortgage was $144,675.00 on February 28, 1994, and the amount of $37,206.78 remained outstanding on April 1, 1999, meaning that $107,468.22 plus interest was paid in the first five-year term of the BMO Mortgage. Alexandra’s claim that she, alone, paid the amount of $107,468.22 plus interest was based solely on her testimony without any corroborating documentation.
[48] This is different than the payment of the BMO Mortgage in the period from April 1, 1999, to December 1, 2001 (the “Mortgage Extension Period”). Alexandra produced a Mortgage Account Breakdown Statement that showed that the remaining balance of the BMO Mortgage was paid in monthly payments of $1,127.70 in the Mortgage Extension Period. Alexandra testified that she made these payments by monthly withdrawal from her BMO bank account. Alexandra supported this with production of a Mortgage Loan Ledger that showed repayment of the BMO Mortgage during the Mortgage Extension Period. The parties agreed that the last payment on the BMO Mortgage was on December 1, 2001, and that the BMO Mortgage was discharged from title on January 16, 2003.
[49] In support of her testimony that she paid the amount of $37,206.78 during the Mortgage Extension Period, Alexandra relied on the evidence of Mr. Iqbal Singh Haer, a senior branch manager of BMO’s First Canadian Place branch. Mr. Haer confirmed, without objection, the authenticity of the Mortgage Loan Ledger and the Mortgage Account Breakdown Statement (the “BMO Extension Statements”), in accordance with s. 33(3) of the Evidence Act.[^20] Mr. Haer testified that the BMO customer identified on the BMO Extension Statements is Alexandra although both Alexandra and Bessie were mortgagees under the BMO Mortgage.
[50] Mr. Haer conceded that the BMO Extension Statements do not show the source, or remitter of the payment. However, Mr. Haer testified that no one but Alexandra would have been able to pay the BMO Mortgage during the Mortgage Extension Period based on the BMO Extension Statements.
(b) Paul Carreira
[51] Paul was not present when the Property was purchased, and testified to his presumption or understanding that Bessie added Alexandra to title to the Property only to facilitate mortgage financing as she was then only 28 years of age with modest employment history. Paul did not tender any documentary evidence in support of his belief that in 1994 Bessie, alone, paid the down payment of approximately $48,225.00 for the $192,900.00 purchase of the Property. Like Alexandra, Paul did not produce any cheque or transfer for the payment of the down payment or any bank statement establishing the source of the down payment or any ledger statement or statement of account showing that she, alone, paid the down payment.
[52] Unlike Alexandra, Paul had no direct evidence of who paid the down payment because he was not involved in the purchase of the Property. Paul submitted, however, that Bessie had the financial means to pay the down payment from two sources. First, Paul proved that Bessie was employed and working in Markham at the time of the purchase of the Property. Second, Paul relied on Bessie’s receipt of her share of the net family equalization in separation from Theodoros, to pay the down payment. Paul established that on the closing of the sale of the Huntingdale Condo on July 20, 1993, Bessie and Theodoros received the Condo Net Sale Proceeds of $69,572.66.[^21] Paul relied on the testimony of Theodoros that Bessie received at least one-half of this amount, or at least $34,786.33. Paul testified to his belief that Bessie applied these funds toward satisfaction of the Property’s downpayment of $48,225.00.
[53] Paul conceded that he did not know who paid the BMO Mortgage, or the Property’s carrying costs in the period from the acquisition of the Property in February 1994 to his marriage to Bessie in October 1996. Paul testified, however, that he and Bessie paid the BMO Mortgage in the from 1996 to 1999 and understood or presumed that Bessie had paid the BMO Mortgage from its inception.
[54] Paul did not tender any documentary evidence in support of his testimony that he and Bessie paid the monthly payment due under the BMO Mortgage ($1,013.33) for the period from 1996 to 1999 to the exclusion of any contribution by Alexandra. Paul did not produce any bank statements showing the payment of the monthly mortgage payments, any cancelled cheques, or any documents to establish the source of funds used to pay the monthly mortgage payments on the BMO Mortgage.
[55] Paul showed, through production of income tax returns from 1996 to 2001, that he and Bessie had the financial means throughout these years to pay the carrying costs of the Property, maintenance, and upkeep and to contribute to the BMO Mortgage. There was no disagreement between Alexandra and Paul that Paul and Bessie paid the utilities and property taxes throughout the time that they lived in the Property. This was assisted in the years from 1994 to 1998 or 1999 through the rental income from the tenant in the basement apartment, and thereafter by Bessie and Paul from their income.
[56] Paul deposed that by approximately 2001, there was approximately $35,000.00 left on the BMO Mortgage, and that Alexandra and her husband, John, “offered to pay the balance as a gift to Bessie and me.”[^22] Paul deposed that this repayment is shown by the Mortgage Account Breakdown Statement produced by Alexandra that shows that $37,206.78 remained owing on the BMO Mortgage at the maturity of its five-year term on April 1, 1999, and was completely paid by December 1, 2001.
[57] Paul was cross-examined on a Spreadsheet that he produced in this proceeding in support of his testimony that he and Bessie contributed to the payment of the BMO Mortgage during the Mortgage Extension Period of April 1, 1999, to December 1, 2001 (the “Impugned Spreadsheet”). The Impugned Spreadsheet is a collection or summary of data without the source documentation that purported to establish that Paul paid three monthly mortgage payments (September, October, and November 2001) from his TD Bank account. Paul’s counsel withdrew this Impugned Spreadsheet for the purposes of trial, although Paul stated that it shows that he made three payments in the Mortgage Extension Period.
(c) Peter Koutsovasilis
[58] Alexandra relied on the evidence of her son, Peter, to corroborate her evidence on material points. Peter testified that he resided at the Bloor Street Property in the period leading to 1994. Peter stated that he accompanied his mother and Bessie to inspect the Huntingdale Condo in 1993. He stated that at that time Bessie was working for the Wynford Group but did not have any savings. Peter swore that Alexandra agreed to loan Bessie $30,000.00 towards the purchase of the Huntingdale Condo. Peter testified that he recalled this from discussions “at the kitchen table.”
[59] Peter stated that after Bessie separated from Theodoros and returned to live at the Bloor Street Property, Bessie received one-half of the Condo Net Sale Proceeds of $69,572.66. Peter recalled that Bessie paid $30,000.00 to Alexandra. Peter recalled further that his mother then decided to purchase real estate for investment purposes, and that he accompanied her to inspect the Property. Peter stated that he learned, again from discussions “at the kitchen table”, that his mother paid for the down payment for the Property, and its mortgage payments. Peter testified that his mother took title to the Property with Bessie as part of her estate plan to leave the Property to Bessie upon his mother’s death. Peter explained that this was to make Bessie “feel a little better” considering her divorce. Peter said that there were no documents put in place either for the alleged loan from Alexandra to Bessie or the terms of ownership for the Property because the family respected, loved, and trusted each other.
[60] Peter testified that in January 1997, he took title to a property known municipally as 7 Maralim Road, Richmond Hill, Ontario (the “7 Maralim Property”). Peter stated that Alexandra bought this property for investment purposes, and paid the down payment and the mortgage, which was provided by BMO. Peter swore that he took title in his name because he was able to obtain a favourable mortgage interest rate by reason of his employment with BMO. When the BMO Mortgage on the 7 Maralim Property was discharged on May 2001, Peter conveyed title to the 7 Maralim Property to Alexandra.
[61] Peter stated that Alexandra leased the 7 Maralim Property until 2001, at which time Peter moved into this property and lived there with his family, rent free, until about 2012. During this time, Peter paid for the property taxes and utilities only. On March 11, 2005, Alexandra bought another property, known municipally as 11 Maralim Road, Richmond Hill, Ontario (the “11 Maralim Property”).
[62] Alexandra tendered the evidence of her investment in the 7 Maralim Property with Peter in support of her submission that it is similar evidence to her investment in the Property with Bessie, providing her adult child free rent while Alexandra maintained beneficial ownership of the real estate.
(d) Theodoros Papadopoulos
[63] Theodoros testified that he met Bessie in 1984, they married in 1988 and divorced some five years later. Theodoros testified that the down payment for the Huntingdale Condo was a gift from his parents and Bessie’s parents. Theodoros swore that both his mother, Irene Papadopoulos, and Alexandra made clear to him and to Bessie that the amounts that they provided, $30,000.00 by Alexandra and $15,000.00 by Irene, were gifts. Theodoros stated that as recent college graduates, they did not have money for the down payment, and that he and Bessie would pay the mortgage, which was guaranteed by their mothers.
[64] Theodoros testified that when the Huntingdale Condo was sold in 1993, he and Bessie divided equally the Condo Net Sale Proceeds. Theodoros did not speak to any necessity to reconcile or to repay a parental loan to either Alexandra or Irene. When pressed in cross-examination about the precise division of the Condo Net Sale Proceeds with Bessie, Theodoros testified that the funds were either split equally or Bessie received more than 50% ($34,786.33), but not less.
(e) The Forensic Accounting Expert Evidence
[65] Alexandra tendered the expert opinion evidence of David Michael Oswald, an expert in the field of forensic accounting and computer forensics who was admitted to testify on the veracity of the banking records and the veracity of the Impugned Spreadsheet. Alexandra also proposed that Mr. Oswald’s permissible scope of testimony include the provision of opinions on the veracity of the parties’ pleaded claims, but I declined to admit Mr. Oswald for this purpose because the weighing of evidence and determination of the viability of pleaded claims is not within the role of the expert but rather the court.
[66] Paul tendered the expert opinion evidence of Alessandra Leggio, an expert in forensic accounting, forensic investigation, and fund tracing who was admitted to provide an analysis and critique of the limited opinion evidence that Mr. Oswald as was permitted to provide.
[67] Mr. Oswald testified that the data recorded in the Impugned Spreadsheet was unreliable because the source documents in support of its contents were not produced or available. This was not contentious because Ms. Leggio agreed that the impugned Spreadsheet was not reliable and, in any event, Paul’s counsel did not tender this document into evidence at trial. Mr. Oswald testified that the BMO Mortgage records relied on by Alexandra regarding the Mortgage Extension Period were verifiable and authentic, but this was established by Mr. Haer, the custodian of the BMO records.
[68] Ms. Leggio stated, and Mr. Oswald conceded that the evidence presented by the parties does not allow for the tracing of the payments made at the time of the 1994 acquisition of the Property or during the five-year term of the BMO Mortgage. Regarding the Mortgage Extension Period, Ms. Leggio testified that the banking records produced by Alexandra do not show the source of the mortgage payments but rather only that the BMO Mortgage was paid, and that there was insufficient evidence to trace the payments for the Property to the payor. She testified that the tracing of the payments would require both the bank account statements from which the payments were made and the Mortgage Loan Ledger showing the payments. Mr. Oswald agreed that the bank records for the Mortgage Extension Period do not show the source of the payment.
[69] Both experts stated that Paul and Bessie’s income, as set out in their income tax returns, showed that they have sufficient after-tax income in the years 1996 to 2001 to contribute toward payment of the BMO Mortgage. Mr. Oswald testified that Alexandra could have managed the BMO Mortgage payments during its five-year term presuming acceptance of Alexandra’s evidence that she earned $19.20 per hour, with an estimated annual gross income from 1994-1999 in the amount of $34,099.00. This is consistent with Alexandra’s evidence that she earned about $36,000.00 annually.
[70] The expert evidence of Mr. Oswald and Ms. Leggio did not diverge on the material points that the parties did not produce sufficient banking records to allow for attribution of Property payments, and that the only available banking records were for the Mortgage Extension Period, and they did not show the source of payments. The experts’ evidence was also consistent that if I accept the parties’ evidence of their income levels from 1994 to 2001, they each had sufficient funds to contribute to payment of the BMO Mortgage.
B. Analysis of Alexandra’s Evidence on Payment of the Property
(a) Were the Huntingdale Condo Funds a Gift to Bessie or a Loan?
[71] The cornerstone of Alexandra’s case regarding the payment on acquisition of the Property in 1994 was that Alexandra had the financial means to pay the down payment and the BMO Mortgage and Bessie did not. Alexandra and Peter both say that the proceeds received by Bessie from the sale of the Huntingdale Condo ($34,786.33) were applied to payment of the down payment ($48,225.00). Alexandra contended that this constitutes her contribution to the down payment, as the funds were returned to her by Bessie in repayment of a loan, and Paul maintained that these funds represent Bessie’s contribution to the down payment. This calls for a determination of whether the funds provided by Alexandra and John to Bessie for use in the purchase of the Huntingdale Condo were a gift from Alexandra to Bessie or a loan.
[72] The Court of Appeal has explained that there are objective indicators that can assist in determining whether an advancement is a gift or loan, as follows:
A gift is a transfer in which the absence of an expectation of repayment tends to be reflected in the absence of security, recording, payments or efforts to collect payments. A loan often involves a formal, recorded transfer in which terms are set out and in which repayment is made or sought. In evaluating whether the presumption of resulting trust has been rebutted, a trial judge will naturally look at such indicia.[^23]
[73] In assessing these factors, the Court of Appeal stated that “[e]ven though the burden is on the party claiming a gift to prove it, it is quite appropriate for a trial judge to notice the failure of the party who would be in control of documents and records of a loan to produce such documents.”[^24] In the trial decision, Fitzpatrick J. helpfully set out several factors to look at when determining whether a transfer was a gift or a loan.[^25] With reference to these factors, the evidence shows here that there are no contemporaneous documents that evidence a loan from Alexandra to Bessie; there is no repayment term; there is no security for the alleged loan; there is no evidence of any demand for repayment of the loan during the time that Bessie and Theodoros owned the Huntingdale Condo; and, there was no evidence of repayment of these funds by Bessie to Alexandra. Alexandra’s intention regarding the provision of these funds to Bessie must be assessed at the time of transfer, in 1987 upon Bessie’s marriage to Theodoros, and not now. I find from these factors that in 1987 Alexandra had an intention to join with Theodoros’s mother in making a gift to Bessie and Theodoros, in the “absence of an expectation of repayment” and thereby support the characterization of the $30,000.00 advance as a gift rather than a loan.
[74] Together with my assessment of these factors, I accept Theodoros’ evidence that the $30,000.00 provided by Alexandra to Bessie for use in the Huntingdale Condo purchase were a gift and not a loan. Theodoros is an independent witness, in that he has no interest in the outcome of this trial. He provided his evidence in a responsive and forthright manner. It is plausible that he would recall the circumstances of his first purchase of property upon marriage. I found Theodoros to be a truthful, sincere, and reliable witness. I prefer Theodoros’ characterization of the provision of these funds as a gift over Alexandra’s evidence that she intended that these funds constitute a loan.
[75] In consideration of all admissible evidence, and on my acceptance of Theodoros’ evidence, I conclude that the provision of $30,000.00 by Alexandra to Bessie in 1987 to assist Bessie and Theodoros with the acquisition of the Huntingdale Condo was not a loan but rather a gift by Alexandra, either alone or together with John, to Bessie. Paul, on behalf of the Estate, had the burden of proof that these funds were a gift and not a loan, and discharged this burden, on a balance of probabilities. The receipt by Bessie of $30,000.00 from the sale of the Huntingdale Condo in 1993 therefore belonged to Bessie, without obligation of repayment to Alexandra. I do not accept Alexandra’s evidence that Bessie repaid these funds to Alexandra.
[76] On these determinations I conclude that Bessie did not transfer $30,000.00 to Alexandra upon the sale of the Huntingdale Condo and that Bessie had these funds available to contribute to the down payment on the purchase of the Property. Alexandra failed to establish that Bessie did not have funds available to her to apply toward her payment for the Property.
(b) Did Alexandra Pay all the Payments in the Five-Year Term of the BMO Mortgage?
[77] Alexandra’s evidence that she paid the entirety of the payments under the BMO Mortgage rests on her credibility. Section 13 of the Evidence Act requires that to succeed in an action by or against an estate, the claimant’s evidence must be “corroborated by some other material evidence.” To determine whether evidence is corroborated, the court will “look to see whether it fits in with other statements or circumstances relating the particular matter; the better it fits in the more one is inclined to believe it.”[^26]
[78] The Court of Appeal has instructed that the corroboration required by s. 13 of the Evidence Act can be either direct or circumstantial, can be either a single source of evidence or several considered together, but must be independent of the claimant’s evidence and must show that their evidence on a material issue is true.[^27] It must be evidence that “appreciably helps the judicial mind to believe one or more of the material statements or facts deposed to.”[^28]
[79] Since there are no corroborative documents regarding payment of the BMO Mortgage during its first five-year term, 1994-1999, Alexandra relies on Peter’s evidence to corroborate her evidence. This requires an assessment of the credibility, reliability and plausibility of Alexandra’s and Peter’s evidence. To do so, I am guided by the principles set out in the case law for the assessment of witness testimony. The Supreme Court instructed that “credibility must always be the product of the judge or jury’s view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter”.[^29] In considering the plausibility of witness testimony, the British Columbia Court of Appeal explained that: “In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”[^30] To be credible, a witness’ evidence must be consistent, logical, and plausible.[^31] The credibility and reliability of a witness’ evidence is affected by inconsistencies, including with prior statements,[^32] and by whether the witness had a motive to fabricate evidence.[^33]
[80] In application of these principles, I had significant concern about the credibility, reliability, and plausibility of Alexandra’s evidence. I will explain why.
[81] First, Alexandra testified that her decision to purchase the Property in 1994 was prompted by her intention to buy an investment property. From 1971 to 1994, Alexandra had only owned the Bloor Street Property. She swore that her search for an investment property took her from the Bloor Annex to Richmond Hill because she wanted to “look north” to a property with big backyard that backed onto an open space. Peter and Theodoros testified that Bessie was working at the time, and Martha Tavio, Bessie’s friend, testified that in 1994 Bessie was working in Markham, Ontario. I do not find Alexandra’s explanation for selection of the location of the Property to be plausible. I find it more plausible that the location of the Property was selected for proximity to Bessie’s workplace. I also do not find plausible Alexandra’s testimony that her interest in the Property was as an investment rather than being motivated by Bessie’s needs.
[82] Second, Alexandra testified that she placed Bessie on title as a joint tenant solely for estate planning purposes, so that the Property would pass by right of survivorship to Bessie upon Alexandra’s death. I do not accept that this evidence is a product of Alexandra’s recollection. I do not accept as plausible that in 1994, as a 52-year-old factory worker whose 28-year-old daughter had just returned home from a marital separation, that estate planning was foremost in Alexandra’s mind. Or that the purchase of property to support her estate plan involved recovering from her daughter the only money that Bessie had received in net family property equalization from the dissolution of her marriage. Furthermore, there is no evidence of a will or advice from a lawyer as would be expected if Alexandra was engaged in estate planning. Alexandra’s evidence of estate planning lacks credibility.
[83] Third, Alexandra’s explanation of her estate plan, wherein the Property would pass to Bessie but only if she survived Alexandra, was not credible or plausible when considered in the context of Bessie’s lengthy terminal illness. Alexandra’s alleged estate plan depended upon Bessie surviving her. But yet Alexandra did not take any steps to modify or vary her estate plan when it became foreseeable to Alexandra that Bessie would predecease her. Alexandra’s alleged estate plan had the effect of taking possession of the only property known to her deceased daughter’s husband and children, but Alexandra did not explain her estate plan for the distribution of her other three properties: the Bloor Street Property, the 7 Maralim Property, and the 11 Maralim Property.
[84] Fourth, Alexandra had no evidence that is contemporaneous to the purchase of the Property. I do not accept her counsel’s submission that Alexandra’s recollection of what happened in 1994 and in the period from 1994 to 1999 is contemporaneous. The evidence would be contemporaneous if Alexandra’s evidence was memorialized or recorded at that time, and not simply recalled some thirty years later. The Supreme Court cautioned that subsequent acts or declarations “have been viewed with mistrust by courts” because a transferor could have changed their mind and because “self-serving statements after the event are too easily fabricated in order to bring about a desired result.”[^34]
[85] Fifth, Alexandra displayed a reluctance to admit the inconsistencies in her testimony or the prior inconsistent statements made in pre-trial examination. For example, at trial Alexandra testified that she knew that Bessie did not have any savings at the time of the purchase of the Property. In her pre-trial examination, Alexandra stated that she did not know whether Bessie had any savings or an RRSP at that time and that she did not ask Bessie.
[86] Sixth, Alexandra’s evidence was shown to be wrong on material points. Alexandra deposed that she funded the building of the garage on the Property but produced no receipts for this expense. Paul produced a receipt showing that he funded the construction of the garage. Alexandra’s evidence on this issue was not credible.
[87] Seventh, in cross-examination, Alexandra continued to insist on her version of events even when confronted with irrefutable evidence to the contrary, choosing instead to become argumentative, defensive, and dismissive. Even accounting for Alexandra’s provision of evidence through a translator, Alexandra equivocated in answering questions that were unsupportive of her position. Two examples of this are representative. First, when Alexandra was examined on a video recording showing that she parked her car near the Property and walked to the backyard fence of the Property to view Paul and his family, Alexandra was evasive and reluctant to concede that the video portrayed her when this was obviously so. Second, Alexandra was cross-examined on the Sunnybrook Hospital clinical notes regarding the period that Bessie was hospitalized in palliative care. The clinical notes record that Alexandra was angry and upset that Paul was Bessie’s substitute decision maker and that Alexandra was denied control of Bessie’s end of life treatment. When questioned on the restrictions imposed on her access to Bessie and that she was escorted out of the hospital by security after raising her voice with Paul, Alexandra stated that this was orchestrated by Paul and denied any understanding of why she was removed by the hospital security. I do not accept this evidence.
[88] Considering the totality of her testimony, I do not find Alexandra’s evidence to be credible, plausible, or reliable. I do not accept Alexandra’s evidence except where supported by the evidence of witnesses whose testimony I have accepted.
[89] Even if I had accepted Alexandra’s testimony on all material points, it nonetheless cannot establish her claim unless corroborated. In advancing a claim against Bessie’s Estate that is rooted in events that occurred prior to Bessie’s death, Alexandra cannot rely only on her own evidence to establish her claim. The documentary evidence tendered by Alexandra to corroborate her claims was limited to the BMO Extension Period. And Alexandra’s evidence cannot be corroborated by Peter because I do not accept Peter’s evidence. I will explain why.
[90] Peter’s evidence mimicked his mother’s evidence, at times precisely, causing doubt regarding its independence. Examples of this include Peter’s reference to Alexandra in 1994 as a “real estate investor” with interest in “estate planning”. This did not accord with common sense when considered in the context of Peter’s observation of his family in 1994 as a 25-year-old. In the decades leading to 1994, Alexandra owned only the Bloor Street Property. She had no history of real estate investment. And there was no evidence that, in 1994, Alexandra had consulted with any lawyer or financial planner about estate planning. Another example is Peter’s support of his mother’s testimony that Bessie had no savings in 1994 even though he conceded that Bessie was working at that time and that he had no knowledge of the amount of her salary or her finances and had never seen any of her banking records.
[91] Peter did not explain the source of his knowledge that only Alexandra paid the BMO Mortgage, or how he could come to this understanding apart from being told by Alexandra. Similarly, Peter did not explain how he came to know, or could know whether the money that Bessie received on the sale of the Huntingdale Condo was paid to Alexandra or used to purchase the Property apart from being told by Alexandra.
[92] I also do not accept that Alexandra’s conduct in Peter’s purchase of the 7 Maralim Property in 1997 lends credence to establishing the process or parameters for Alexandra’s acquisition of the Property three years earlier in 1994. These are different transactions, at different times, in different circumstances with different participants. I do not accept that Alexandra’s generosity in extending free rent for some 12 years to Peter as the proxy for her ownership of property to obtain an employee-discounted mortgage rate from his employer establishes that Alexandra paid for the Property.
[93] For these reasons, I have concerns with the credibility, reliability, and plausibility of Peter’s evidence, and have given it little weight.
[94] Without corroboration through documents and with my rejection of Peter’s evidence, Alexandra’s position that she paid the entirety of the BMO Mortgage payments in its five-year term from 1994 to 1999 rested on her uncorroborated testimony. I do not accept Alexandra’s evidence on these material points.
[95] I am prepared to accept Alexandra’s evidence that she had the financial means to contribute to the payment of the monthly payments owed under the BMO Mortgage because there is no dispute that she was employed steadily throughout this time, and because she had saved enough money to provide Bessie with a gift of $30,000.00. I accept as plausible Alexandra’s evidence that her factory position paid at least $19.00 per hour or about $36,000.00 per year. I accept the evidence of Mr. Oswald and Ms. Leggio that this income level would have produced money to pay toward the BMO Mortgage. I also accept that, as co-mortgagor, Alexandra had a legal obligation to pay the BMO Mortgage.
(c) Did Alexandra Pay the Amount Needed to Discharge the BMO Mortgage?
[96] Alexandra relied on the BMO Extension Statements to corroborate her evidence that she paid the amount of $37,206.78 that remained outstanding in 1999 at the maturity of the BMO Mortgage and was paid during the Mortgage Extension Period. Mr. Haer proved the veracity and authenticity of these banking documents. To the extent necessary, this evidence is supported by the testimony of Mr. Oswald.
[97] Mr. Haer conceded that the BMO Extension Statements do not show the source, or remitter of the payment. However, Mr. Haer testified that no one but Alexandra would have been able to pay the BMO Mortgage during the Mortgage Extension Period based on the BMO Extension Statements. The BMO Mortgage was administered by the same BMO branch were Alexandra maintained her bank accounts. I do not accept Ms. Leggio’s opinion that without bank account statements, Alexandra cannot prove payment of the BMO Mortgage during the Mortgage Extension Period. I accept Mr. Haer’s evidence as credible and reliable, and supportive of Alexandra’s claim that she paid the amount of $37,206.78 that was due during the Mortgage Extension Period.
C. Analysis of Paul’s Evidence on Payment of the Property
(a) Paul’s Evidence Regarding the Purchase in 1994
[98] Paul does not have any direct evidence regarding the circumstances of the purchase of the Property by Bessie and Alexandra on February 28, 1994, because Paul was not involved in any way. Paul testified that he understood or presumed, that when Bessie and Alexandra purchased the Property, Alexandra was added to title only to assist Bessie, then 28 years of age, to qualify for the BMO Mortgage. Paul testified that “Bessie made the down payment” and that “Alexandra was on the BMO Mortgage because Bessie wanted a guarantor”. This evidence is relevant because it tends to increase or decrease the probability of a fact at issue: in this case, the payment and ownership of the Property.[^35]
[99] However, this evidence constitutes hearsay because it “is an out-of-court statement tendered for the truth of its contents.”[^36] To the extent that Paul is testifying on these points to what Bessie told him or what he understood from discussions with Bessie, this evidence is presumptively inadmissible because in the absence of the out-of-court declarant, Bessie, there is no opportunity for Alexandra to contemporaneously cross-examine the declarant, making it difficult to assess the truth of the statements.[^37]
[100] Hearsay may be admitted into evidence if it comes within certain categorical exceptions.[^38] Hearsay can exceptionally be admitted into evidence under the principled exception when the tendering party establishes, on a balance of probabilities, that the twin criteria of necessity and reliability are established.[^39] Even when the trial judge, acting as an evidentiary gatekeeper for the purpose of determination of threshold admissibility, is satisfied that the hearsay evidence is necessary and reliable, the trial judge has the discretion to exclude the hearsay evidence if its prejudicial effect outweighs its probative value.[^40]
[101] I considered whether Paul’s hearsay evidence of matters alleged to have been spoken by Bessie should be admitted under the principled exception. The first requirement for threshold admissibility, necessity, is met because the declarant of the out of court statement, Bessie, is unavailable to testify because she is deceased.[^41]
[102] This leaves the requirement of threshold reliability, which is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.”[^42] Paul’s hearsay evidence was admitted based on threshold reliability, subject to my determination of its ultimate reliability.
[103] Paul sought to prove the ultimate reliability of his hearsay evidence through corroboration by the testimony of Martha Tavio, Alona Haik, and Anthony Liounis. I assessed their evidence as follows:
(a) Martha Tavio was a close friend of Bessie from 1991 to Bessie’s death in 2019. Martha testified that Bessie was working “somewhere in Markham” in 1994 when the Property was purchased, and that Bessie applied whatever money she received from the dissolution of her marriage with Theodoros to the acquisition of the Property. I accept Martha’s evidence of her observations of Bessie’s work location in 1994 and her observations of Bessie’s transition from her marriage with Theodoros as reliable. However, I do not accept Martha’s hearsay evidence that Bessie told her that Bessie and Paul paid all the mortgage payments as proof of these payments because the evidence is not reliable. Martha stated that this discussion took place on one occasion in January 2002 upon Bessie proclaiming that “the house is mine”, without sufficient context, detail, or corroboration to be plausible or reliable.
(b) Alona Haik was Bessie’s long-time friend. Alona deposed that she had always understood that the Property belonged to Bessie and Paul, and that Bessie did not tell her that Alexandra was a co-owner of the Property. This hearsay evidence is inadmissible because it is not reliable. Alona was not in a position to know how title to the Property was held.
(c) Anthony Liounis, one of Bessie’s cousins, deposed that he always believed that the Property belonged to Paul and Bessie and never understood that Alexandra had any ownership interest. In cross-examination, Anthony conceded that he did not have any direct evidence on how the Property was paid for, or of any gifts or loans between Bessie and Alexandra. I do not accept this hearsay evidence because it is not reliable.
[104] Paul’s hearsay testimony of his understanding of Bessie’s statements about her acquisition of the Property in 1994 is not corroborated by the evidence of Martha, Alona and Anthony, which is inadmissible hearsay, and does not satisfy the requirements necessary for ultimate reliability. Paul sought to corroborate the substantive reliability of his hearsay evidence with the hearsay evidence of others that was no more reliable than his own evidence. In consideration of the factors set out in Gutierrez v. Gutierrez for assessment of the threshold reliability of hearsay statements, I find that Paul failed to establish the threshold reliability of his hearsay evidence of Bessie’s intentions and role in the acquisition of the Property in 1994.[^43]
(b) Did Paul and Bessie Pay all the Payments in the Five-year Term of the BMO Mortgage?
[105] Paul testified that he and Bessie paid the property taxes, utilities, carrying costs and maintenance costs for the Property throughout the time that they lived there. I saw no disagreement on this.
[106] Paul provided direct testimony that he and Bessie paid the BMO Mortgage in the years after their marriage leading to the maturity of the BMO Mortgage in 1999. The primary evidence that Paul tendered to support this testimony were his income tax returns for the years from 1996 to 2001 and Bessie’s income tax returns from 1997. I accept that these income tax returns establish that Paul and Bessie had the financial means to contribute to the payment of the BMO Mortgage.
[107] Paul’s position that he and Bessie also paid Alexandra’s share of the BMO Mortgage rested not on what Paul proved at trial, but rather on what Alexandra did not prove. Paul submitted that an adverse inference should be drawn that since Alexandra did not produce her income tax returns for the years from 1994 to 2019, Alexandra did not have the income to pay the monthly mortgage payments on the BMO Mortgage. I decline to do so because it is uncontested that Alexandra steadily maintained her position of full-time employment during this time, was able to save large amounts of money, and the forensic accounting experts concur that at her professed amount of income, Alexandra would have been financially able to contribute to the payments on the BMO Mortgage. Further, Alexandra had enough income that she was able to purchase the 7 Maralim Property in January 1997.
[108] I accept Paul’s evidence that he and Bessie had the financial means to contribute to the payment of the BMO Mortgage during its five-year term, in addition to paying for the property taxes, utilities, carrying costs and maintenance costs for the Property.
(c) Did Paul and Bessie Pay the Amount Needed to Discharge the BMO Mortgage?
[109] Paul provided inconsistent evidence regarding the payment of the BMO Mortgage during the Mortgage Extension Period. Paul’s testimony that Alexandra and her husband, John, offered to pay the balance of the BMO Mortgage to him and Bessie as a gift, represented by the $37,206.78 said to be outstanding on maturity on the Mortgage Account Breakdown Statement, is inconsistent with the entries on the Impugned Spreadsheet that purport to show that Paul made three payments to BMO during the Mortgage Extension Period.
[110] I do not put any weight on the Impugned Spreadsheet. Paul did not tender the Impugned Spreadsheet into evidence, but rather it was relied on by Alexandra to challenge Paul’s credibility. The Impugned Spreadsheet was produced by Paul at a pre-trial stage, was shown to be incorrect and unreliable, and was withdrawn by Paul’s counsel. The Impugned Spreadsheet was revived by Alexandra and given profile at trial as part of Alexandra’s submission that Paul was not a credible witness.
[111] I assessed the credibility, plausibility, and reliability of Paul’s evidence on the totality of the evidence at trial. I was concerned by Paul’s sworn declaration in the Probate Application that the Estate owned real property valued at $502,500.00, which is based on a 50% interest in the Property derived from a comparative property assessment of $1,050,000.00 when, on the same day, Paul swore an affidavit in this Consolidated Proceeding that the Estate owns 100% of the Property. I accept, however, his explanation that this discrepancy was based on the tenancy in common interest derived from s, 26(1) of the FLA as opposed to the pleaded position in the Consolidated Proceeding. I am also mindful that Paul executed these affidavits with legal advice.
[112] The Impugned Spreadsheet showed that Paul was mistaken in his accounting of payments for the Property. However, I accept that this accounting proposed to set out a reconciliation of payments of a mortgage that was discharged more than two decades ago, without supporting records, and is incorrect. I have also noted other inconsistencies in Paul’s testimony compared to his pre-trial examination.
[113] I approach the reliability of Paul’s evidence cautiously by reason of mistakes shown in Paul’s recall of the detail of the Property’s ownership over decades, and Paul is not an independent witness as he and his family are directly affected by this litigation. However, Paul was an accurate historian regarding steps taken to maintain and update the Property and their expense, and, in my assessment, answered questions in a direct and responsive manner, even when contrary to his interests. I found Paul to be a sincere and credible witness.
[114] I find that Paul and Bessie did not pay the $37,206.78 due on the BMO Mortgage during the Mortgage Extension Period, on Paul’s understanding that Alexandra and John would pay this amount as a gift to Paul and Bessie.
D. Resulting Trust Analysis
[115] As explained earlier, a claim in resulting trust involves returning beneficial title to a grantor when the grantee received the title without contribution. As explained by the Supreme Court in Pecore, this is “the obligation to return [the Property] to the original title owner” when the party received title for no value.[^44] Or, in the case of a purchase money resulting trust, to return title to the contributing party “where a person advances a contribution to the purchase price without taking legal title.”[^45] As succinctly stated by the Court of Appeal, “[e]xcept where title is taken in the name of a minor child, where property is acquired with one person’s money and title is put in the name of another, there is a presumption of resulting trust.”[^46]
[116] The parties’ symmetrical claims in resulting trust were launched from extreme, opposite ends of the factual spectrum. Alexandra sought to prove that Bessie paid nothing toward the Property and Alexandra paid everything, with the result that Bessie’s Estate holds her titled 50% interest in resulting trust for Alexandra. Paul, for Bessie’s Estate, sought to prove that Alexandra paid nothing toward the Property and that Bessie and he paid everything, with the result that Alexandra holds her 50% titled interest in resulting trust for Bessie’s Estate.
[117] Besides sharing the same theory, the parties shared the same factual inadequacy: a scarcity of evidence showing payment. This shortfall in evidence was particularly acute in this case because Bessie is deceased.
[118] The relevant time for determination of contribution toward the Property, and the intention of the party making the contribution, is at the time of the contribution.[^47] On the evidence that I have accepted, I find that in 1994, Alexandra and Bessie set out to locate a property that met Bessie’s need to be independent and close to her employment in Markham while providing Alexandra with an investment opportunity. I have found that Bessie received $34,786.33 on separation from Theodoros and that this amount was available to Bessie in the purchase of the Property. I accept that Alexandra made a financial contribution to the purchase of the Property because Bessie did not have enough money to purchase the Property alone, considering that the amount of the down payment was more than she received in her marital separation.
[119] I reject Alexandra’s evidence that she only intended to confer a right of survivorship on Bessie in the event that Alexandra should predecease Bessie. This evidence was provided at a trial that took place 30 years after the acquisition of the Property and comes squarely within the Supreme Court’s caution against evidence that is self-serving or the product of a change in intention caused by changed circumstances.[^48] In 1994, Alexandra was purchasing property together with her 28-year-old daughter to assist her in starting a new chapter post-separation. I do not accept that Alexandra gave any thought at that time to recovery of the Property in the event of Bessie’s death, after Bessie lived in the Property as a matrimonial home. I find that Alexandra did not have this intention in 1994, but only came to it 25 years later upon Bessie’s death.
[120] I reject Paul’s evidence that Alexandra did not contribute to the down payment and was placed on title to the Property solely as a co-signer as this evidence is unreliable hearsay, uncorroborated by any other witness whose testimony I have accepted, uncorroborated by any document, and because it is inconsistent with Alexandra’s capacity in the BMO Mortgage as co-mortgagor.
[121] I find that both Bessie and Alexandra financially contributed to the acquisition of the Property. I find that neither Bessie nor Alexandra made a contribution to the other’s purchase of the Property in 1994. They took legal title as equal joint tenants because that is what they were. I am supported in the finding that the parties purchased the Property together by their contractual commitment to the BMO Mortgage as co-mortgagors, both personally liable to BMO on their covenant to repay the amount of the mortgage. Paul did not prove that Bessie made a contribution on behalf of Alexandra. And Alexandra did not prove that she made a contribution on behalf of Bessie.
[122] The conduct of the parties in payment of the BMO Mortgage during its five-year term can be considered to ascertain their intention in 1994, but this evidence is scarce. Alexandra had no documents or accepted witness testimony to corroborate her testimony that she, alone, paid the BMO Mortgage during its five-year term. The same is the case for Paul. However, all agree, and I find that all but $37,206.78 was paid during this time: to be specific, $107,468.22 plus interest was repaid.
[123] I find that Alexandra, and Paul and Bessie had sufficient financial means to contribute to the BMO Mortgage during its five-year term, and that each did so. I do not accept Paul’s submission that by not declaring the Property on her income tax return, Alexandra conceded the lack of an ownership interest because Alexandra was not receiving any rental income that needed to be declared.
[124] Paul failed to establish, on a balance of probabilities (more likely than not) his claim that he and Bessie paid the entirety of the mortgage payments from 1994 to 1999 ($107,468.22 plus interest). Paul did not show the transfer of any funds from Bessie to Alexandra, or payments for the Property made by Bessie on behalf of Alexandra. Similarly, Alexandra failed to establish, on a balance of probabilities her claim that she, alone, paid the entirety of the mortgage payments from 1994 to 1999. The parties’ evidence on these points was not corroborated by documentary evidence or by any witness testimony that I accepted.
[125] I turn now to the payment of the BMO Mortgage during the Mortgage Extension Period. I accept Mr. Haer’s evidence as credible and reliable, and supportive of Alexandra’s claim that she paid the amount of $37,206.78 that was due during the Mortgage Extension Period. I accept Alexandra’s corroborated evidence that she paid the BMO Mortgage the amount of $37,206.78 during the Mortgage Extension Period. The court is not required to believe or disbelieve a witness’ testimony in its entirety, and may believe none, part, or all of a witness’ evidence or attach different weight to different parts of a witness’ evidence.[^49] I accept this portion of Alexandra’s evidence as I did her evidence on her income in the years from 1994 to 2001.
[126] I reject Alexandra’s submission that since she has proven that she paid $37,206.78 during the Mortgage Extension Period of 1999-2001, I should infer that Alexandra paid Bessie’s share of the BMO Mortgage during its five-year term from 1994-1999. In my determination, Alexandra’s provision of the payments necessary to discharge the BMO Mortgage during its extension period does not establish, on a balance of probabilities, that Alexandra made all of Bessie’s share of the mortgage payments during the five-year term of the BMO Mortgage.
[127] Considering my finding that Alexandra and Bessie owned the Property since 1994 as joint tenants devoid of any trust obligation, Alexandra’s payment of $37,206.78 is one-half ($18,603.39) attributable to her share of the BMO Mortgage as co-mortgagor, and one-half ($18,603.39) to Bessie’s account as co-mortgagor. Paul claimed that Alexandra’s payment of $37,206.78 was a gift and does not give rise to a presumption of resulting trust but, considering my finding of joint ownership since the Property’s acquisition in 1994, the issue is the role of Alexandra’s payment of $18,603.39 on Bessie’s account to discharge the BMO Mortgage.
[128] Alexandra submitted that this payment was made further to Alexandra’s sole ownership of the Property and was not a gift. Alexandra contended that this payment supported a proprietary interest on the basis of a purchase money resulting trust.
[129] A purchase money resulting trust can arise where a party contributes directly to the purchase price or to the mortgage.[^50] However, I find that Alexandra’s payment of $18,603.39 on account of Bessie’s obligation as a co-mortgagor does not give rise to a purchase money resulting trust because Alexandra already had an equal interest in the Property at the time of the payment to BMO. The presumption in a purchase money resulting trust is that the person who advanced the money intended to assume a beneficial interest in proportion to their contribution to the property.[^51] This presumption is rebuttable if it is established that the person who contributed the purchase money did not intend to acquire a beneficial interest in the property.[^52] Paul had the onus of rebutting this presumption.[^53] I find that he did so.
[130] I accept Paul’s evidence that Alexandra proposed to pay the amount remaining on the BMO Mortgage as a gift to Paul and Bessie in that Alexandra did so with no intention to change the beneficial ownership in the Property. I find this evidence to be credible and plausible considering that Paul and Bessie had paid for, and were at that time continuing to pay for the property taxes, utilities, carrying costs and maintenance costs for the Property. Furthermore, Alexandra made this payment in 2001, and did not state for over two decades that her intention in doing so was to obtain greater beneficial ownership in the Property. I find that Alexandra’s evidence that she paid the amount remaining due on the BMO Mortgage during the Mortgage Extension Period because she was the sole owner of the Property is the product of changed circumstances and does not reflect Alexandra’s intention in 2001.
E. Conclusion – Neither Party Established a Resulting Trust
[131] For these reasons, I have determined that neither Alexandra nor Paul established that Alexandra and Bessie’s registered ownership of the Property as joint tenants is subject to a resulting trust. I turn now to the impact of this determination on the operation of s. 26(1) of the FLA.
VI. THE IMPACT OF SECTION 26(1) OF THE FAMILY LAW ACT
[132] As explained earlier, Paul contended that if Bessie was not entitled to full beneficial ownership of the Property based on resulting trust, the Estate is entitled to a 50% legal interest in the Property on the basis of s. 26(1) of the FLA. For ease of reference, I will restate s. 26(1):
If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person and not with the other spouse, the joint tenancy shall be deemed to have been severed immediately before the time of death.
[133] Paul contended that Bessie died owning an interest in the Property, which I have accepted, and that the Property was a matrimonial home. Paul thereby seeks a determination that the joint tenancy shall be deemed to have been severed immediately before Bessie’s death.
[134] Alexandra submitted that s. 26(1) of the FLA has no application in this case on four grounds: (a) lack of procedural fairness in Paul’s failure to plead this relief; (b) Paul’s failure to make an election under s. 6(1) of the FLA; (c) the Property was not a matrimonial home; and (d) Bessie held her registered interest in trust for the benefit of Alexandra. This fourth ground asserted by Alexandra has now been determined. I will address the other grounds raised by Alexandra in order.
(a) Inapplicability of s. 26(1) Through Lack of Procedural Fairness
[135] In her opening submissions, Alexandra submitted that Paul “must be estopped from seeking any relief under the FLA because he did not seek any such relief in his notice of application.” Alexandra contended that she was denied procedural fairness resulting from lack of notice that Paul intended to rely on s. 26(1) of the FLA.
[136] This submission was easily met by Paul, whose Notice of Application specifically pleaded, in paragraph 19, that he relied upon ss. 19, 24 and 26 of the FLA. Indeed, Alexandra’s Notice of Application anticipated Paul’s reliance on s. 26(1) and pleaded to this expected position in advance of Paul placing s. 26(1) into issue.[^54] Alexandra’s lawyer argued the inapplicability of s. 26(1) of the FLA through correspondence with Paul’s lawyer even before Paul relied on this provision.[^55] Furthermore, Dietrich J.’s Endorsement of August 13, 2020, recorded that, in resisting Alexandra’s claim for interim occupation rent, Paul relied on s. 26(1) of the FLA as part of his submission that the Estate is entitled to at least a 50% interest in the Property as tenants in common.
[137] In closing submissions, Alexandra withdrew her position that Paul’s reliance on s. 26(1) of the FLA was procedurally unfair.
(b) Inapplicability of s. 26(1) Through Failure to Make an Election
[138] In closing submissions, Alexandra raised, for the first time, that Paul cannot rely on s. 26(1) of the FLA because he did not make an election under s. 6(1) of the FLA to take his entitlement under s. 5(2) of the FLA. Alexandra submitted that since Paul sought and obtained a CAET wherein he listed himself as the sole beneficiary of the residue of the Estate, he cannot make a claim under the FLA for equalization of net family property, making s. 26(1) of the FLA inapplicable.
[139] I do not accept this submission. In Fulton v. Fulton,[^56] the Court of Appeal held that when the criteria for the application of s. 26(1) of the FLA are satisfied, s. 26(1) severs the joint tenancy as a change in the nature of property ownership the instant before the spouse’s death. This change in property ownership occurs regardless of whether the surviving spouse made an election under s. 6(1) of the FLA, because any election is based on the status of the property ownership as a tenancy in common.
[140] In Fulton, a father and his wife from a second marriage lived in a matrimonial home that was owned in joint tenancy by the father and his son. On the father’s death, the son argued, successfully at first instance, that s. 26(1) of the FLA must be applied notionally, meaning that half the value of the property would be added to his deceased father’s assets for the purpose of calculating the surviving spouse’s net property equalization. The Application Judge accepted this position, found that s. 26(1) of the FLA is to be applied notionally for purposes of calculation of equalization under the FLA, and thereby granted the son full ownership of the property by right of survivorship.
[141] The Court of Appeal reversed. The Court of Appeal held that s. 26(1) of the FLA must be interpreted literally and not notionally. Section 6(1) creates two options for the surviving spouse upon the property’s ownership changing from a joint tenancy to a tenancy in common. The Court recognized that a literal application of s. 26(1) will always impact the surviving joint tenant because it will sever the joint tenancy immediately before death rather than cause the property to be transferred to the surviving joint tenant, but that this “is the nature of a blanket provision.”[^57]
[142] The Court of Appeal concluded that the required literal interpretation of s. 26(1) has the effect of severing the joint tenancy “for all purposes immediately before death”, holding as follows:
Accordingly, we see no alternative but to conclude that s. 26(1) was intended to apply literally, namely, where a spouse dies while a joint tenant with a person not his or her spouse in the matrimonial home, to sever the tenancy for all purposes immediately before death.[^58]
[143] Based on these principles, I reject Alexandra’s submission that the operation of s. 26(1) is contingent on Paul making an election under s. 6(1) of the FLA, and that in the absence of an election, s. 26(1) is inapplicable. Considering my finding that Bessie owned the legal and beneficial interest in the Property as a joint tenant, if the Property was a matrimonial home, the joint tenancy ownership of the Property by Alexandra and Bessie would be severed immediately upon Bessie’s death and would become a tenancy in common.
(c) Was the Property a Matrimonial Home?
[144] Section 26(1) of the FLA leaves the common law right of survivorship intact between the deceased spouse and a third person when the property is not a matrimonial home.[^59] “Matrimonial home” is defined in s. 18(1) of the FLA as follows: “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”
[145] I saw no contest that the Property was “ordinarily occupied” by Bessie and Paul as their family residence at the time of Bessie’s death. At that moment, Bessie and Paul had resided in the Property for the 23 years of their marriage. After the brief time in which the basement apartment was leased, no one other than Bessie and Paul and their family had use, possession, or control of the Property for the entire period of its ownership. Paul and Bessie’s children were raised in the Property. Alexandra, as co-owner, never resided in the Property. I find that Paul established that the Property was occupied by him and Bessie as their family residence at the time of Bessie’s death. I explained earlier my finding that Bessie had an ownership interest in the Property as joint tenant with a third person, Alexandra, at the time of her death. The Property is thereby a matrimonial home for the purposes of s. 26(1) of the FLA.
[146] In reaching this decision, I have applied the principles set out by the Court of Appeal in Kent, the authority so heavily relied on by Alexandra. My decision differs in result because I have found that Bessie had an ownership interest in the Property as joint tenant with a third person at the time of her death whereas the Court found in Kent that the deceased spouse held title in the property as a trustee. Applying the principles set out in Kent to the facts as I have found them, s. 26(1) of the FLA is applicable to Paul’s claim on behalf of Bessie’s Estate.
(d) Conclusion – The Joint Tenancy was Severed on Bessie’s Death
[147] For these reasons, I have determined that since the Property was a matrimonial home owned at the time of Bessie’s death in joint tenancy by Bessie and a third person, Alexandra, the joint tenancy was severed immediately before Bessie’s death. The Property is thereby held in title by Alexandra and by Bessie’s Estate as tenants in common, each owner of an equal 50% interest.
VII. THE CLAIMS IN CONSTRUCTIVE TRUST
[148] Both parties pleaded a proprietary interest in the Property on the basis of constructive trust. Paul claimed a constructive trust based on unjust enrichment arising from his payment of carrying costs and expenses in maintenance and improvement of the Property. Alexandra’s claim in constructive trust was not fully developed in argument. Based on my findings regarding Alexandra’s payments for the Property, including my determination that her payment of $18,603.39 on Bessie’s account as co-mortgagor does not give rise to any proprietary remedy as a purchase money resulting trust, I do not see any factual basis for Alexandra to advance a claim in unjust enrichment for a proprietary remedy of constructive trust. In fairness to Alexandra, I will nonetheless take into consideration Alexandra’s payment of $18,603.39 on Bessie’s account as a factor in my assessment of the unjust enrichment claim advanced by Paul.
(a) The Remedy of Constructive Trust
[149] The Supreme Court explained that a constructive trust is an equitable remedy by which one person is required to hold property for the benefit of another, regardless of any intention to do so.[^60] The Supreme Court instructed that a constructive trust is a remedy which,
Is imposed without reference to intention to create a trust, and its purpose is to remedy a result otherwise unjust. It is a broad and flexible equitable tool which permits courts to gauge all the circumstances of the case, including respective contributions of the parties, and to determine beneficial entitlement.[^61]
[150] As a remedy, a proper equitable basis must be established before a property will be impressed with a remedial constructive trust.[^62] Paul has based his claim for a constructive trust on the cause of action of unjust enrichment. A claim in unjust enrichment may provide the basis for the remedy of constructive trust where the claimant can establish that a monetary award is insufficient and there is a connection between the contributions made by the claimant and the property in dispute.[^63]
(b) Paul’s Claim in Unjust Enrichment
[151] To establish a claim in unjust enrichment, a party must prove three elements: (i) that the party receiving the benefit was enriched; (ii) that the party granting the benefit suffered a corresponding deprivation; and (iii) that the enrichment of one party and the deprivation of the other occurred in the absence of a juristic reason.[^64] These elements are to be applied flexibly to identify circumstances where justice and fairness requires that one party restore a benefit to another.[^65]
[152] The Supreme Court has instructed that a “straightforward economic approach” can be taken to the first two elements of the test for unjust enrichment.[^66] Here, Paul submitted that Alexandra was enriched in two ways: first, through Paul and Bessie’s ongoing payment of utilities, property taxes and property insurance for over 23 years (collectively, the “Property Carrying Costs”); second, through Paul and Bessie’s payment of the cost of construction improvements and maintenance of the Property (collectively, the “Property Improvements”).
[153] Paul showed that the Property Carrying Costs for the six-year period from July 31, 2013, to December 30, 2019, totaled $26,727.82. Paul submitted that statements were not available for the years preceding 2013 but stated that they would be in the same range. Alexandra agreed that Paul and Bessie paid the Property Carrying Costs from the time that the tenants moved out of the basement suite to the date of Bessie’s death.[^67]
[154] I accept that Paul and Bessie paid the Property Carrying Costs throughout their time of occupancy of the Property until Bessie’s death. I find, as uncontradicted, that Paul has paid the Property Carrying Costs after Bessie’s death to the date of trial except for Alexandra’s payment of the property taxes after Bessie’s death arising from her direction to the City of Richmond Hill to direct the property tax bills to her.[^68]
[155] Paul established, through his testimony and production of invoices, that he has incurred $79,152.44 in expenses for the Property Improvements in the period from 1999 to 2018. These Property Improvements include the following: construction of a garage; replacement of the kitchen cabinets; replacement of the front door; a new roof; a new patio deck; a swimming pool; new windows; a new furnace; and new hardwood floors.
[156] Alexandra challenged the Property Improvements on three grounds: first, that she paid for certain of the expenses, such as the garage. I prefer Paul’s evidence over Alexandra’s evidence on the issue of payment of the Property Improvements because Alexandra did not tender any supporting documents to show payment of the Property Improvements and Paul produced documentary proof that he and Bessie paid for the Property Improvements. Second, Alexandra stated that she did not consent to the Property Improvements. I am not persuaded by this submission because certain of the Property Improvements (roof replacement, window replacement, and furnace replacement) were not discretionary but rather had to be completed to maintain the viability of the Property. Third, Alexandra submitted that certain of the Property Improvements added no value to the Property.
[157] In support of her third submission, Alexandra relied on a property inspection report jointly commissioned by the parties and prepared on October 30, 2020, by Stephen Love (the “Inspection Report”), to submit that the costs of the deck and the pool ought to be removed from Paul’s claim for Property Improvements because the deck requires replacement and because Paul has since removed the pool. Alexandra submitted that the costs of the pool and the deck total $26,850.37, and that once this amount is deducted from Paul’s claim of $79,152.44 in Property Improvements, the net allowable claim is no greater than $52,302.07. I do not accept this submission. Through the Inspection Report, Mr. Love suggested “not investing any more money into maintenance [of the rear deck] but rather budget for a deck upgrade.” I do not accept that this means that the costs of the rear deck were wasted. And I do not accept that the cost for the pool was wasted because at some point it was no longer of working quality. I accept Paul’s evidence that the cost of the Property Improvements totals $79,152.44, and that these costs were incurred by Paul and Bessie.
[158] On these findings, I accept that Alexandra, as co-owner of the Property, was enriched by Paul and Bessie’s payment of the Property Carrying Costs and the Property Improvements, satisfying the first part of the three-part test to establish unjust enrichment. To prove the second element of the three-part test, Paul must establish that he and Bessie suffered a corresponding deprivation. He did not, for the following reasons.
[159] First, Paul and Bessie lived in the Property rent-free for 23 years from their marriage in 1996 to Bessie’s death in 2019, and thereby without any compensation to Alexandra in her capacity as co-owner. I find that Alexandra consented to the occupation of the Property by Paul and Bessie and their family until Bessie’s death, thereby providing a corresponding benefit to Paul and Bessie for their payment of the Property Carrying Costs and the Property Improvements. Furthermore, Paul and Bessie directly benefited from the services obtained by their payment of the Property Carrying Costs, and they enjoyed the use of the amenities that resulted from the Property Improvements. As termed by the Supreme Court, the monetary values of the enrichment and the detriment that transferred seamlessly and unremarkably between Alexandra and Bessie and Paul for over two decades are “the same thing from different perspectives”.[^69]
[160] Second, Bessie’s Estate will share in any capital appreciation in the value of the Property resulting from the payment of the Property Carrying Costs and the Property Improvements.
[161] Third, Paul and Bessie benefited from Alexandra’s payment of $37,206.78 in payment of the BMO Mortgage during the Mortgage Extension Period, of which $18,603.39 was on Bessie’s account as co-mortgagor.
[162] On these findings, I conclude that the first two elements of the three-part test for unjust enrichment are closely related when considered by a straightforward economic analysis. The monetary extent of Paul’s deprivation is matched by the enrichment provided by Alexandra.
[163] Having concluded that Paul did not establish that Alexandra was enriched by a monetary payment made by Paul and Bessie, it is not necessary to determine whether Paul proved the third part of the three-part test: specifically, whether there was a juristic reason for any party’s enrichment to the corresponding detriment of the other. For completeness of analysis, I will explain why, had it been necessary, I would have found that there was a juristic reason for the enrichment and deprivation in the circumstances of this case.
[164] A party claiming unjust enrichment must show that there is no justification in law or in equity for the enrichment. This is because unjust enrichment is concerned with providing a remedy for transfers of benefits that occur without any legal or equitable basis.[^70] The analysis of a juristic reason proceeds in two stages: first, the party claiming unjust enrichment must show that the other party’s “retention of the benefit … cannot be justified on the basis of any “established categories” of juristic reasons: a contract, a disposition of law, a donative intent, and any other valid common law, equitable or statutory obligation.”[^71] If this burden is discharged, the onus then shifts to the second stage, which requires that the party receiving the benefit show why the enrichment should be retained, requiring analysis of two factors: the parties’ reasonable expectations and public policy.[^72]
[165] Here, I saw Paul and Bessie’s payment of the Property Carrying Costs and the Property Improvements as part of their equitable obligation to Alexandra in consideration of Alexandra’s consent to their exclusive use of the Property. Similarly, Alexandra’s payment of $18,603.39 to BMO on Bessie’s account was in consideration of Paul and Bessie’s payment of the Property Carrying Costs and the Property Improvements. If I am mistaken in these findings, I provide one further conclusion. I have no doubt that in the 25 years of uneventful co-ownership of the Property by Alexandra and Bessie, neither Alexandra, Bessie nor Paul had any reasonable expectation that there would someday be a reconciliation of the Property Carrying Costs, the Property Improvements, the waived rent and the amount of $18,603.39 paid to BMO on Bessie’s account to ascertain whether one of the parties had been enriched to the detriment of the other. In my view, it would be inconsistent with the parties’ lived experience, on the facts as I have found them, to sustain a claim in unjust enrichment. Accordingly, had I determined that one of the parties had been unjustly enriched to the corresponding detriment of the other, I would have found that there was a juristic reason for the unjust enrichment.
[166] On these findings, Paul did not establish a claim in unjust enrichment. Alexandra did not receive a monetary benefit in circumstances where it would be “against all conscience” for her to retain the benefit.
[167] And finally, for completeness of analysis, had I found that Paul had established a claim in unjust enrichment, I would have granted a monetary remedy but, in the exercise of my discretion, I would not have granted a remedial constructive trust against the Property. Paul did not establish that a monetary award is an insufficient remedy, particularly considering that any proportionate alteration to the parties’ co-ownership interest in the Property arising from a constructive trust remedy to an established unjust enrichment claim would have been modest. Even had I found that the proprietary remedy of constructive trust was appropriate, it would be imposed only to the extent of Paul’s “proportionate contribution (direct or indirect) to the acquisition, preservation, maintenance or improvement of the property”.[^73] The parties stipulated that the Property had an appraised fair market value in October 2020 of $1,050,000.00, meaning that the percentage of any entitlement through constructive trust would not have materially changed their equal, joint ownership.[^74]
(c) Conclusion – The Claims for a Constructive Trust
[168] On the basis of these reasons, neither Paul nor Alexandra established a claim in equity, here a claim in unjust enrichment, as was required to establish a proprietary remedy of constructive trust. Their claims for constructive trust are dismissed.
VIII. WHAT PAYMENTS, IF ANY, ARE OWED BETWEEN THE PARTIES?
[169] I have already determined that neither party established any entitlement to a payment based on unjust enrichment. I turn now to Alexandra’s claim for occupation rent.
(a) Alexandra’s Claim for Occupation Rent
[170] Alexandra claimed occupation rent in the amount of $141,140.66. Alexandra derived this amount by applying a monthly occupation rent of $2,470.95 per month over the 58 months from Bessie’s death to the date of trial, reduced by two months in consideration of s. 26(2) of the FLA.[^75] Paul disputes that Alexandra is entitled to any occupation rent. At trial, Paul agreed that the value of monthly occupation rent may be quantified at $2,470.95, if the Court determines that Alexandra is entitled to occupation rent. This concession spared the trial time that would have been required to hear Paul’s objection to Alexandra’s late service of an expert report on the valuation of occupation rent, the possibility of a trial adjournment to allow for Paul to deliver a responding report, and submissions on expert valuation evidence.
[171] A claim for occupation rent is a discretionary remedy available to balance competing equities.[^76] In estates law and family law, occupation rent has application where there is co-ownership of property and co-owners have an equal right to the totality of the property.[^77] But, an equal co-owner of property is not entitled to occupation rent as a matter of right.[^78] Rather, the Court of Appeal has instructed that “[t]he decision whether to attribute occupation rent is a discretionary determination for the trial judge to be exercised where the trial judge considers it to be ‘reasonable and equitable to do so’”.[^79]
[172] Alexandra relied on two cases in support of her claim for occupation rent: Lima v. Ventura (Estate of)[^80] and Calmusky v. Calmusky.[^81] Both decisions address claims for occupation rent incident upon the death of the property owner by beneficiaries who claimed an interest in the property against a beneficiary occupying the property. The courts based their decisions on the principle that occupation rent is an equitable remedy that is available to the court in appropriate circumstances to achieve fairness between the parties. In Lima, the court was satisfied on the equities that the beneficiary in possession of the property pay the other two beneficiaries an amount equal to two-thirds of occupation rent for the time that the property was owned by the estate. In Calmusky, the court held that the equities did not support an award of occupation rent, finding that there was no reasonable expectation that the beneficiary in possession would pay rent and that the estate was not detrimentally affected by the rent-free occupation. These cases, and others, highlight that the determination of occupation rent is specific to the equities presented by the facts of each case and that the relevant factors will vary from case to case.[^82]
[173] In considering Alexandra’s claim for occupation rent, I have taken into consideration the following factors. First, the parties had a 25-year history of Bessie residing in the Property without payment of rent to Alexandra, including 23 years with her family. From the Property purchase in 1994 to Bessie’s death in 2019, Alexandra never asked for payment of rent, and none was paid. Alexandra deposed that “it gave me a great deal of happiness to provide for [Bessie] by allowing her to live at the Property rent-free, both before and after her marriage to Paul.”[^83] This was never changed through communication from Alexandra to Paul, even after Bessie’s death, until a letter sent by Alexandra’s lawyer to Paul’s lawyer on May 11, 2020: thirteen months after Bessie’s death.[^84] I conclude from this that the parties’ reasonable expectation, based on their lived experience over most of the occupation period, was that the occupation of the Property by Alexandra’s daughter, son-in-law and grandchildren would be without compensation. I agree with the holding made by Karakatsanis J., as she then was, in Dagarsho Holdings Ltd. v. Bluestone, that the presumption that a person in possession of property should pay rent can be rebutted by evidence that the parties intended that the occupation be without compensation.[^85]
[174] Second, Alexandra sought and obtained the August 2020 Order, issued by Dietrich J., that provided, in paragraph 3, that Paul, in his personal capacity and as estate trustee, is “prohibited from selling, transferring, encumbering, dissipating, dispensing of or dealing with the Property in any way, without further court order or agreement of the parties.” In Tarantino v. Galvano, Kristjanson J. held that it would be wrong to compel a party to pay occupation rent during the time that the party was prevented from selling or dealing with the house.[^86] I apply this same reasoning here, particularly because Alexandra was denied her claim for interim occupancy rent at the same hearing where she pursued and obtained an order for the interim preservation of the Property.
[175] Third, Alexandra has not been denied any increase in the equity of the Property during the time of its occupation by Paul and his family after Bessie’s death and has benefited from the ongoing payment by Paul of carrying costs. I recognize that Alexandra took steps to wrest control from Paul of the payment of realty taxes on the Property after Bessie’s death through direct contact to the municipality. It was unnecessary for Alexandra to do so when Paul and Bessie had long held the realty taxes in good standing. As Alexandra volunteered these realty tax payments of her own volition, I will treat them as gratuitous payments by Alexandra.
[176] Fourth, the quantification of occupation rent agreed upon by the parties, $2,470.95 per month, might represent reasonable market-valued rent for a comparable bungalow in the Property’s location. However, its use in fixing the amount of occupation rent in this case would fail to take into consideration the contribution that Paul has made in unaccounted and unrecognized ongoing maintenance and upkeep of the Property during the time that the occupation rent is sought.
[177] Fifth, Alexandra’s claim for occupation rent is overstated. Alexandra’s claim for $141,140.66 presumes that she is the sole owner of the Property. I have found that she is not. As equal co-owner, Alexandra’s claim would be 50% of this amount, specifically, $70,570.33. Furthermore, Alexandra’s claim for 56 months of occupation rent, calculated from two months after Bessie’s death on April 16, 2019, does not take into consideration that Alexandra did not notify Paul of her claim for occupation rent until her lawyer’s letter of May 11, 2020. This reduces the quantification of Alexandra’s claim for occupation rent because, in the circumstances of this case, Alexandra’s claim could not fairly begin until Paul was notified of Alexandra’s change of her agreement to forgo compensation for occupation.
[178] On my analysis of these factors, I conclude that an order for occupation rent in the amount claimed by Alexandra is not required to render justice between the parties and is therefore denied.
(b) Conclusion – Amounts Owed Between the Parties
[179] Neither party established a claim in unjust enrichment sufficient to give rise to either a monetary remedy or a proprietary remedy. Alexandra did not establish entitlement to a claim for occupation rent. As a result, no amounts are payable between the parties.
IX. DISPOSITION
[180] On the basis of these reasons, I order:
(a) A declaration shall issue that title to the property municipally known as 406 Marybay Crescent, Richmond Hill, Ontario L4C 2X4 (formerly 408 Marybay Crescent) and with legal description PT LT 36 PL 4841 RICHMOND HILL AS IN R635134; S/T INTEREST IN R558327 ; S/T RH10461 RICHMOND HILL (PIN: 03184-0018 (LT)) (the “Property”) is held by Alexandra Koutsovasilis and Paul Carreira in his capacity as Estate Trustee of the Estate of Vasiliki Carreira (also known as “Bessie Carreira” and as “Vasiliki Koutsovasilis”) as tenants in common, each to an equal 50% interest.
(b) The parties’ claims for monetary payments in unjust enrichment, and Alexandra Kousovasilis’ claim for occupation rent are dismissed, with the result that no amounts are payable between the parties.
(c) The issue of costs shall be determined in writing, unless resolved by agreement.
[181] The lawyers for the parties may deliver to the Court Registrar and to the Estates List Trial Coordinator a form of draft Judgment, after agreeing on its form and content and filing on Case Center, comprising the disposition set out in these Reasons for Judgment. In the event of disagreement, any party may request the scheduling of a Case Conference to settle the form of Judgment.
X. COSTS
[182] The parties are encouraged to agree on the issue of costs. If the parties cannot agree on the issue of costs, any party seeking costs may, by September 27, 2024, deliver by email to the Court Registrar and to the Estates List Trial Coordinator, after service and filing on Case Center, written costs submission of no more than eight (8) pages, plus a Bill of Costs. Any party against whom costs is sought may, by October 18, 2024, deliver by email to the Court Registrar and to the Estates List Trial Coordinator after service and filing on Case Center, responding cost submissions of the same length. If no party delivers any written cost submissions by October 18, 2024, I will deem the issue of costs to have been settled.
A.A. Sanfilippo J.
Released: August 30, 2024
COURT FILE NO.: CV-20-00005058-00ES & CV-20-00005116-00ES
DATE: 20240830
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF VASILIKI CARREIRA (ALSO KNOWN AS ‘BESSIE CARREIRA’ AND AS ‘VASILIKI KOUTSOVASILIS’), DECEASED
BETWEEN:
ALEXANDRA KOUTSOVASILIS
Applicant
– and –
PAUL CARREIRA, in his personal capacity and in his capacity as ESTATE TRUSTEE OF THE ESTATE OF VASILIKI CARREIRA (ALSO KNOWN AS ‘BESSIE CARREIRA’ AND AS ‘VASILIKI KOUTSOVASILIS’)
Respondent
REASONS FOR JUDGMENT
A.A. Sanfilippo J.
Released: August 30, 2024
[^1]: The Property is known municipally as 406 Marybay Crescent, although formerly known as 408 Marybay Crescent, Richmond Hill, Ontario, and has legal description PT LT 36 PL 4841 RICHMOND HILL AS IN R635134; S/T INTEREST IN R558327; S/T RH10461 RICHMOND HILL (PIN: 03184-0018 (LT)).
[^2]: The issues were listed in the August 2020 Order as follows: “(a) The Applicant affirms and the Respondent denies that the Applicant is the sole beneficial owner of the [Property] … which was held jointly between the Applicant and her daughter, [Bessie] … prior to the Deceased’s death …; (b) the Applicant affirms and the Respondent denies that the [Estate] … has no interest in the Property and that the Property is not an asset of the Estate; (c) The Applicant affirms and the Respondent denies that any interest which the Estate or the Deceased may have in the Property is held in trust for the Applicant whether held by a trust, resulting trust or constructive trust interest in favour of the Applicant; (d) The Applicant affirms and the Respondent denies that the Applicant is entitled to occupation rent payable by the Respondent; (e) The Respondent affirms and the Applicant denies that the Respondent and/or the Estate are the sole beneficial owner(s) of the Property …; (f) The Respondent affirms and the Applicant denies that any interest which the Estate or the Deceased may have in the Property is held in trust for the Respondent and/or the Estate whether held by a trust, resulting trust or constructive trust in favour of the Respondent and/or the Estate …”
[^3]: Hansen Estate v. Hansen, 2012 ONCA 112, 109 O.R. (3d) 241, at para. 31.
[^4]: 2020 ONCA 390, 150 O.R. (3d) 705 (“Kent OCA”).
[^5]: 2007 SCC 17, [2007] 1 S.C.R. 795.
[^6]: Pecore, at para. 4.
[^7]: Pecore, at para. 20.
[^8]: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 16.
[^9]: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at para. 2.
[^10]: Kerr, at para. 19, citing Pecore, at para. 24. See also, Belokon v. Kyrgyz Republic, 2016 ONCA 981, 136 O.R. (3d) 39, at para. 56.
[^11]: Kerr, at para. 19, citing Pecore, at para. 24.
[^12]: Nishi, at para. 21.
[^13]: Nishi, at para. 1.
[^14]: Studzinski v. Studzinski, 2020 ONSC 2540, at paras. 153-54; Bao v. Mok, 2019 ONSC 915, at paras. 66-73; Prtenjaca et al. v. Wells-Prtenjaca et al., 2022 ONSC 438, 77 E.T.R. (4th) 302; Lee v. Starinovich, 2013 BCSC 1557, at paras. 72-73.
[^15]: Andrade v. Andrade, 2016 ONCA 368, 131 O.R. (3d) 532, at para. 59; Pecore, at para. 36.
[^16]: Kerr, at para. 2.
[^17]: Andrade, at paras. 40-56.
[^18]: Continental Insurance Co. v. Dalton Cartage Co., 1982 CanLII 13 (SCC), [1982] 1 S.C.R. 164, at p. 171: “The question in all civil cases is what evidence with what weight that is accorded to it will move the court to conclude that proof on a balance of probabilities has been established.”
[^19]: Trial Exhibit 2, Affidavit of Alexandra sworn November 3, 2020, at paras. 14-16.
[^20]: Evidence Act, R.S.O. 1990, c. E.23.
[^21]: Trial Exhibit 13, Letter dated July 20, 1993.
[^22]: Trial Record, Affidavit of Paul Carreira sworn June 2, 2020, at paras. 35-36.
[^23]: Barber v. Magee, 2017 ONCA 558, 139 O.R. (3d) 78 (Barber OCA), at para. 4.
[^24]: Barber OCA, at para. 5.
[^25]: Barber v. Magee, 2015 ONSC 8054, at para. 42 (Barber OSCJ).
[^26]: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at p. 830, citing Director of Public Prosecutions v. Kilbourne, [1973] 1 All E.R. 440, at p. 456.
[^27]: Riordan v. Mellon (2000), 2000 CanLII 5739 (ON CA), 48 O.R. (3d) 641 (C.A.), at para. 29.
[^28]: Nikolic Estate v. Nikolic, 2024 ONSC 873, at paras. 30-31; Smallman v. Moore, 1948 CanLII 4 (SCC), [1948] S.C.R. 295, at p. 302, referring to McKean v. Black (1921), 1921 CanLII 576 (SCC), 62 S.C.R. 290, at p. 208; Brown v. Rotenburg, 1946 CanLII 332 (ON CA), [1946] 4 D.L.R. 139 (Ont. C.A.), at p. 148.
[^29]: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 248.
[^30]: Faryna v. Chorny (1951), 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 357, per O’Halloran J.A. See also the criteria set out in ID Inc. v. Toronto Wholesale Produce Association, 2023 ONSC 4770, 48 B.L.R. (6th) 185, at paras. 149-50 and in Caroti v. Vuletic, 2022 ONSC 4695, 38 B.L.R. (6th) 1, at para. 436.
[^31]: Borrelli v. Chan, 2018 ONSC 1429, 58 C.B.R. (6th) 1, at paras. 186-187, aff’d 2019 ONCA 525, 147 O.R. (3d) 145, leave to appeal to SCC denied, 38733 (9 January 2020), citing Faryna, at p. 357.
[^32]: R. v. Williams, 2018 ONCA 138, at para. 33, relying on R. v. M. (A.), 2014 ONCA 769, at paras. 12-14.
[^33]: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 56.
[^34]: Pecore, at para. 56, quoting Huband, J.A. in Dreger (Litigation Guardian of) v. Dreger (1994), 1994 CanLII 16643 (MB CA), 97 Man. R. (2d) 39 (C.A.), at para. 33.
[^35]: R. v. Schneider, 2022 SCC 34, 474 D.L.R. (4th) 1, at para. 45: “judges determine relevance by asking whether, in light of all the other evidence, the at-issue evidence logically tends to make a fact in issue more or less likely.” Also, at para. 36: “Judges must consider: (a) whether the evidence is relevant; (b) whether it is subject to an exclusionary rule; and (c) whether to exercise their discretion to exclude the evidence.”
[^36]: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 1 and 20; R. v. MacKinnon, 2022 ONCA 811, at para. 27.
[^37]: Schneider, at para. 47: “Hearsay evidence has three components: (1) a statement (or action) made outside of court by a declarant; (2) which a party seeks to adduce in court for the truth of its content; (3) without the ability of the other party to contemporaneously cross-examine the declarant (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 35; R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, at pp. 661-62; see also R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 924).” Also, Bradshaw, at para. 19.
[^38]: Khelawon, at para. 2 and at para. 42: “It has long been recognized that a rigid application of the exclusionary rule would result in the unwarranted loss of much valuable evidence.”
[^39]: Khelawon, at para. 47; Bradshaw, at para. 23; MacKinnon, at para. 38.
[^40]: Khelawon, at para. 49; Bradshaw, at para. 24.
[^41]: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 34; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 57, leave to appeal refused 2012 CanLII 22174. See also Brisco Estate v. Canadian Premier Life, 2012 ONCA 854, 113 O.R. (3d) 161, at para. 52.
[^42]: Khelawon, at para. 49; Bradshaw, at para. 26; MacKinnon, at para. 54; R. v. McMorris, 2020 ONCA 844, 398 C.C.C. (3d) 179, at para. 26.
[^43]: Gutierrez v. Gutierrez, 2015 BCSC 185, at para. 34.
[^44]: Pecore, at para. 20.
[^45]: Nishi, at para. 21.
[^46]: Andrade, at para. 59.
[^47]: Bradshaw v. Hougassian, 2024 ONCA 425, at para. 11, citing Nishi, at paras. 2, 30, 41; Pecore, at para. 59; Andrade, at para. 63.
[^48]: Pecore, at para. 56; Andrade, at para. 63.
[^49]: R. v. R. (D.), 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291, at para. 93: “Moreover, there is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. Indeed, the contrary proposition seems indisputable: a trier of fact may believe a witness’s testimony in whole, in part, or not at all.”
[^50]: Andrade, at para. 58, applying Nishi, at para. 21.
[^51]: Nishi, at para. 29.
[^52]: Nishi, at para. 37; Bradshaw, at para. 19.
[^53]: Bradshaw, at paras. 19-21.
[^54]: Trial Exhibit 1, Alexandra’s Notice of Application, court file number CV-20-00005058-00ES, at paras. 2(vv)-2(xx), inclusive: “vv. The Respondent intends to rely on section 26(1) of the Family Law Act in arguing that because the Property was a matrimonial home of the Respondent and the Deceased, the joint tenancy between the Deceased and the Applicant is deemed to be severed immediately prior to the Date of Death.”
[^55]: Trial Exhibit 1, Tab 1: Letter dated December 6, 2019, Exhibit “H” to the Affidavit of Alexandra Koutsovasilis dated April 27, 2020.
[^56]: (1994), 1994 CanLII 1632 (ON CA), 17 O.R. (3d) 641(C.A.).
[^57]: Fulton, at paras. 10 and 11.
[^58]: Fulton, at para. 13.
[^59]: Cimetta v. Cimetta Estate (1989), 1989 CanLII 4402 (ON SC), 68 O.R. (2d) 251 (H.C.J.), at para. 14.
[^60]: Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R. 303, at para. 32.
[^61]: Moore, at para. 90, quoting from Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834, at pp. 843-844.
[^62]: Moore, at para. 33.
[^63]: Moore, at para. 33, relying on Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, at p. 997; Kerr, at paras. 50-51.
[^64]: Moore, at para. 37; Peter, at p. 987; Kerr, at para. 32; Pettkus, at p. 848; Garland v. Consumers Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, para. 30.
[^65]: Moore, at para. 38.
[^66]: Peter, at p. 990.
[^67]: Agreed Statement of Facts, Exhibit 5, para. 30.
[^68]: Agreed Statement of Facts, Exhibit 5, para. 35.
[^69]: Moore, at para. 41, quoting from Professional Institute of the Public Service of Canada v. Canada (Attorney General), 2012 SCC 71, [2012]3 S.C.R. 660, at para. 151.
[^70]: Garland, at para. 41; Peter, at p. 990.
[^71]: Moore, at para. 57, citing Garland at para. 44, and Kerr at para. 41.
[^72]: Moore, at para. 58, applying Garland, at paras. 45-46, and Kerr, at para. 43.
[^73]: Moore, at para. 91, citing Kerr, at para. 51; Peter, at pp. 997-998.
[^74]: Agreed Statement of Facts, Exhibit 5, para. 37.
[^75]: Family Law Act, s. 26(2): “…a spouse who has no interest in a matrimonial home but is occupying it at the time of the other spouse’s death, whether under an order for exclusive possession or otherwise, is entitled to retain possession against the spouse’s estate, rent free, for sixty days after the spouse’s death.”
[^76]: Jasiobedzki v. Jasiobedzka, 2023 ONCA 482, 92 R.F.L. (8th) 253, at para. 15.
[^77]: Ng v. Tang, 2022 ONSC 1448, at para. 42.
[^78]: Jasiobedzki, at para. 15.
[^79]: Jasiobedzki, at para. 15, quoting Griffiths v. Zambosco (2001), 2001 CanLII 24097 (ON CA), 54 O.R.(3d) 397 (C.A.), at para. 49.
[^80]: 2020 ONSC 3278, 58 E.T.R. (4th) 232.
[^81]: 2020 ONSC 1506, 60 E.T.R. (4th) 117.
[^82]: Griffiths, at para. 49.
[^83]: Exhibit 1, Trial Record, affidavit of Alexandra Koutsovasilis sworn April 27, 2020, at para. 14.
[^84]: Exhibit 1, Trial Record, affidavit of Paul Carreira sworn June 2, 2020, exhibit “O”, letter dated May 11, 2020: “Therefore our client demands that, pending final resolution of this matter or court order, your client agree to pay our client occupational rent in the amount of $2,500 per month in lieu of your client’s use and enjoyment of our client’s Property (the “Occupational Rent”).
[^85]: (2004), 2004 CanLII 11271 (ON SC), 23 R.P.R. (4th) 80 (S.C.), at para. 26, aff’d (2005), 37 R.P.R. (4th) 53 (C.A.).
[^86]: 2017 ONSC 3535, 139 O.R. (3d) 438, at para. 148, aff’d 2019 ONCA 699, at para. 6.