Miguel Angel Delgado Sanchez v. Nora Belen Tello-Sotomarino

Court File and Parties

COURT FILE NO.: FS-21- 00025003 DATE: 20240911

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: MIGUEL ANGEL DELGADO SANCHEZ, Applicant AND: NORA BELEN TELLO-SOTOMARINO, Respondent

BEFORE: C. Horkins J.

COUNSEL: Alla Koren, for the Applicant Gabrielle Pop-Lazic, for the Respondent

HEARD at Toronto: July 16, 2024

Reasons for Decision

Overview

[1] This is a summary judgment motion under rule 16 of the Family Law Rules, O. Reg. 114/99 (“FLR”).

[2] The Applicant Miguel Angel Delgado Sanchez (“Miguel”) and the respondent Nora Belen Tello-Sotomarino (“Belen”) were married on February 1, 1989. They separated on June 6, 2001, and were divorced on August 13, 2014. They have one child, Kiara, who is 29 years old.

[3] On July 15, 1999, the parties jointly purchased a property located at 136 Virginia Avenue in Toronto (“home or Virginia Ave”). This was the matrimonial home. The family lived in this home until the parties separated on June 6, 2001. On this day Miguel moved out and Belen remained in the home with their child.

[4] When they separated in June 2001, they did not seek legal advice. There was no written agreement, and no application was issued (until Miguel issued the one in question in 2021). Miguel paid Belen child support until 2008. After Miguel moved out of the home Belen paid all the home expenses including the mortgage payments.

[5] On July 10, 2003, Miguel purchased and moved into a condominium unit on Bay Street (“Bay Street condo”). Title was registered in his sole name. Miguel obtained a mortgage to purchase this condominium.

[6] On August 20, 2003, the parties signed documents to transfer title to Virginia Ave into Belen’s sole name. The legal documents were prepared by a lawyer, John Wenus. The parties attended at his office to sign the documents. He was the same lawyer that Miguel used in July 2003 to purchase his Bay Street condo.

[7] Miguel has no recollection of attending the law office on August 20, 2003, to sign documents. Initially Miguel denied that his signature was on the transfer documents. He said that someone else must have attended the meeting with Mr. Wenus pretending to be him. He said that his signature was forged and that Belen and Mr. Wenus were part of the fraud.

[8] On this summary judgment motion, Miguel admits that it is his signature on the transfer documents. He still has no recollection of meeting with Mr. Wenus to sign the transfer documents.

[9] Miguel says that in 2003 Belen spoke to him about her plan to assume the mortgage on the home and he did not object. He says he had no idea that she was intent on transferring title on the home to her alone. Miguel states that Belen fraudulently transferred the title into her name.

[10] This application was issued on August 13, 2021, and amended in November 2022. The application was amended to add John Wenus as a respondent. Miguel pleaded that Mr. Wenus “knowingly participated in completing the fraudulent transfer of the matrimonial home from the parties jointly to the wife alone” or alternatively that he “allowed himself to be duped by the wife and was negligent in allowing himself to become part of her fraud contrary to his professional obligations.” Miguel dismissed his application against Mr. Wenus after the questioning.

[11] Miguel seeks a declaration that he has an interest in Virginia Ave, an order declaring that the August 2003 transfer of title is null and void, an order that he remains the owner of Virginia Ave, an order for the sale of Virginia Ave, occupation rent from Belen and other miscellaneous relief.

[12] Belen brings this motion for summary judgment. She seeks an order dismissing all claims against her and an order that the applicant’s claims made against Virginia Ave be declared statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c.24, Sch.B. and the Real Property Limitation Act, R.S.O. 1990, c. L.15 (“RPLA”).

[13] Miguel relies on s. 28 of the RPLA to bring this application. It is his position that his right to claim an interest in Virginia Ave was deprived by a concealed fraud and this fraud was not discovered until 2020 and could not be discovered with reasonable diligence before this date. In summary, Miguel states that he never consented to the transfer of title to Virginia Ave to Belen, that she committed a fraud in transferring this home to her name and concealed this fraud from him.

[14] It is Belen’s position that the title transfer of Virginia Ave to her sole name in August 2003 was done with Miguel’s knowledge and consent. She denies the allegations of fraud against her. On this motion she states that the essential elements of a civil fraud have not been pleaded. Further it is her position that Miguel has not established on the evidence that there is a genuine issue requiring a trial.

Legal Framework

[15] Rule 16 allows the Court to make an order for summary judgment without a trial on all or part of any claim made or any defence presented in the case.

[16] On a motion for summary judgment, where there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly: R.16(6).

[17] On a motion for summary judgment, the court must also consider Rule 2(2) and (3) of the FLRs which direct that the primary objective of the rules is to enable the court to deal with cases “justly”, which includes: ensuring that the process is fair to all parties; saving time and expense; dealing with the case in ways that are appropriate to its importance and complexity; and, giving appropriate resources to the case while taking account of the need to give resources to other cases: see Jassa v. Davidson, 2014 ONCJ 698, at paras. 40 and 42.

[18] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, the Supreme Court of Canada discussed the test for summary judgment under Rule 20.04(2)(a) of the Rules of Civil Procedure, which is also applicable to summary judgment motions in the family law context. The Court directed as follows:

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

[19] The Court further directed judges as follows, at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[20] If there appears to be a genuine issue requiring a trial based on the record before the court, the court should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

Fraud and the Limitation Period

[21] Miguel pleads that Belen “committed fraud several times”.

[22] As stated in Bruno Appliance and Furniture Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, at para. 21, “there are four elements of the tort of civil fraud: (1) a false representation made by the defendant; (2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness); (3) the false representation caused the plaintiff to act; and (4) the plaintiff's actions resulted in a loss”.

[23] It is agreed that Miguel’s application was issued well after the expiration of the 10-year limitation period in the RPLA, s. 4, that provides as follows:

4 No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

[24] It is Miguel’s position that Belen concealed the fraud from him. In cases where there is a “concealed fraud” the RPLA, s. 28, delays the start of the limitation period as follows:

28 In every case of a concealed fraud, the right of a person to bring an action for the recovery of any land or rent of which the person or any person through whom that person claims may have been deprived by the fraud shall be deemed to have first accrued at and not before the time at which the fraud was or with reasonable diligence might have been first known or discovered.

[25] To trigger s. 28 on this summary judgment motion, there must be a genuine issue requiring a trial: specifically did Belen fraudulently transfer title to Virginia Ave to her sole name and was this fraud concealed from Miguel, as set out in this section.

[26] In Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295, at paras. 52-54 the court discussed the equitable doctrine of fraudulent concealment:

52 Fraudulent concealment is an equitable doctrine that prevents limitation periods from being used “as an instrument of injustice” (M. (K.), at pp. 58-59). Where the defendant fraudulently conceals the existence of a cause of action, the limitation period is suspended until the plaintiff discovers the fraud or ought reasonably to have discovered the fraud (Guerin v. R., [1984] 2 S.C.R. 335 (S.C.C.), at p. 390). It is a form of “equitable fraud” (Guerin, at p. 390; M. (K.), at pp. 56-57), which is not confined to the parameters of the common law action for fraud (M. (K.), at p. 57). As Lord Evershed, M.R. explained in Kitchen v. Royal Air Force Assn., [1958] 2 All E.R. 241 (Eng. C.A.), at p. 249, cited in M. (K.), at pp. 56-57:

It is now clear ... that the word “fraud” in s. 26(b) of the Limitation Act, 1939, is by no means limited to common law fraud or deceit. Equally, it is clear, having regard to the decision in Beaman v. A.R.T.S., Ltd., [1949] 1 All E.R. 465, that no degree of moral turpitude is necessary to establish fraud within the section. What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define two hundred years ago, and I certainly shall not attempt to do so now, but it is, I think, clear that the phrase covers conduct which, having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards the other. [Emphasis added in M. (K.).]

53 While it is therefore clear that equitable fraud can be established in cases where a special relationship subsists between the parties, Lord Evershed, M.R. did not limit its establishment to such circumstances, nor did he purport to define exhaustively the circumstances in which it would or would not apply (see T.P. v. A.P., 1988 ABCA 352, 92 A.R. 122, at para. 10). Indeed, he expressly refused to do so: “[w]hat is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define two hundred years ago, and I certainly shall not attempt to do so now” (Kitchen, at p. 249, emphasis added).

54 When, then, does fraudulent concealment arise so as to delay the running of a limitation period? Recalling that it is a form of equitable fraud, it becomes readily apparent that what matters is not whether there is a special relationship between the parties, but whether it would be, for any reason, unconscionable for the defendant to rely on the advantage gained by having concealed the existence of a cause of action. This was the Court’s point in Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] S.C.R. 678 (S.C.C.), at para. 39:

[Equitable fraud] “... refers to transactions falling short of deceit but where the Court is of the opinion that it is unconscientious for a person to avail himself of the advantage obtained” (p. 37). Fraud in the “wider sense” of a ground for equitable relief “is so infinite in its varieties that the Courts have not attempted to define it”, but “all kinds of unfair dealing and unconscionable conduct in matters of contract come within its ken” [Emphasis added.]

It follows that the concern which drives the application of the doctrine of equitable fraud is not limited to the unconscionability of taking advantage of a special relationship with the plaintiff. Nor is the doctrine’s application limited, as my colleague suggests, to cases where there is something “tantamount to or commensurate with” a special relationship between the plaintiff and the defendant (paras. 171 and 173-74). While a special relationship is a means by which a defendant might conceal the existence of a cause of action, equitable fraud may also be established by pointing to other forms of unconscionable behaviour, such as (for example) “some abuse of a confidential position, some intentional imposition, or some deliberate concealment of facts” (M. (K.), at p. 57, citing Halsbury’s Laws of England (4th ed. 1979), vol. 28, para. 919). In short, the inquiry is not into the relationship within which the conduct occurred, but into the unconscionability of the conduct itself.

The Pleadings

[27] In his Amended Application, Miguel pleads the following material facts.

[28] When they separated their child was young and they agreed Belen would “remain in the [Virginia Ave] home with [the child] to maintain stability”. They “agreed to return to the question of dividing [Virginia Ave]” when the child reached the age of 25 to 27 or completed her education. On separation they discussed ownership of [Virginia Ave] and “agreed to leave it undisturbed”.

[29] They made “mirror wills” in the year “2003 and again and 2010, whereby they would each inherit the other’s property on the understanding that all the equity in [Virginia Ave] belonging to the deceased former spouse would be held in trust for [the child] by the survivor”.

[30] Miguel pleads that Belen’s conduct was “fraudulent” and that she “committed fraud several times”. On this motion, Belen argues that the application does not plead the four elements of fraud. Reading the application generously, the following is pleaded, starting with the transfer of title:

• On separation they agreed that Belen and the child would remain in Virginia Ave and that they would return to their question of dividing this home when the child was 25 to 27 years old.
• On separation they discussed ownership of Virginia Ave and agreed to leave it undisturbed.
• They made mirror wills whereby each would inherit the other’s property on the understanding that all the equity in Virginia Ave belonging to the deceased former spouse would be held in trust for the child by the survivor spouse.
• Miguel has no explanation for how Belen achieved the transfer of title to her name. Unless the lawyer was involved, she would have required a look alike with Miguel’s identification to transfer the title.
• He pleads that she forged his signature on the transfer documents (however, he now admits that it is his signature).
• Belen dissuaded him from using his equity in the home when he had financial problems and never told him that he no longer was on title.
• Belen was able to accomplish her goals because she had access to all of Miguel’s personal information and he trusted her implicitly even after separation to manage all his financial affairs. She had access to his passcodes, blank cheques, and other documents.

[31] The pleading that Belen committed other frauds is less clear. Miguel alleges that Belen forged his signature on repeated occasions: the affidavit for divorce, when submitting his taxes, signing his cheques, and instructing various financial institutions by forging his signature.

[32] Miguel pleads that Belen “[transferred] the property from the joint names of the parties to her own name in the year 2003 with the assistance of counsel” and “she remortgaged in 2008 the matrimonial home representing that she was not a spouse or that the husband had released his rights pursuant to a separation agreement” and she “obtained a divorce by forging the husband's signature on the divorce affidavit in the year 2014”.

[33] Aside from the loss of his interest in Virginia Ave, there are no losses pleaded in the application. Specifically, there is no allegation that Miguel suffered a loss when his signature was allegedly forged on documents other than the transfer of title document.

[34] Miguel pleads that “he has no explanation for how the wife achieved these steps except to say that she has gone to great lengths to perpetrate this fraud”.

[35] He pleads that in 2020 he “accidentally came to learn that the wife is taking the position [Virginia Ave] belongs only to her. When the husband began to investigate this issue, he learned for the first time that the wife had committed fraud several times.”

[36] On this motion Miguel admits that it is his signature on the transfer documents and so it follows that he is no longer alleging that Belen forged his signature for the transfer of title. He does not allege that Belen fraudulently misrepresented what was taking place at the meeting. And he has no recollection of the meeting. Miguel’s admission removes the foundation for pleading that the transfer was a fraud.

Analysis – Is There a Genuine Issue Requiring a Trial?

[37] This question must be answered without using the fact-finding powers that are available to the court on a summary judgment motion. At this stage the court should not be assessing credibility, weighing the evidence, or finding the facts. Instead, the court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial.

[38] Miguel has sworn two affidavits in the application and has been questioned. He swore an affidavit dated August 6, 2021, in support of his 14B motion to obtain a certificate of pending litigation. This motion was dismissed by Justice Faieta on August 20, 2021. He was then questioned by Belen’s counsel on May 6, 2022, and by Mr. Wenus’ counsel on September 26, 2023. After this questioning Miguel swore a second affidavit dated July 2, 2024.

[39] Belen was questioned by Miguel’s counsel on June 7 and 13, 2022. She has filed one affidavit sworn June 18, 2024.

[40] The parties were questioned extensively, and the transcripts of the questioning have been filed. As well John Wenus was questioned. As noted, Miguel dismissed his application against Mr. Wenus after the questioning.

[41] There is no genuine issue requiring a trial for two reasons. First, Miguel’s pleading is defective. Miguel pleads that Belen committed fraud “several times” but the pleading does not set out a concise statement of the material facts on which he relies to prove the essential elements of a civil fraud. Given the admission that the signature was not forged, there are no particulars to support that allegation of a fraud that he says was concealed.

[42] Even if the Application is not deficient, the evidence on this motion does not show that there is a genuine issue requiring a trial on either key issue: that Belen committed fraud and fraudulently concealed such conduct. Miguel’s evidence is not consistent and varies considerably when his affidavits and answers to questions are reviewed.

[43] The evidence provided is reviewed below.

Before Separation

[44] The parties were married in Peru on February 1, 1989. Miguel has a law degree from Peru although he never practiced law in that country.

[45] Belen completed high school in Peru and then took a secretarial course in Spanish and English. She does not have an accounting background but took some basic accounting courses in her secretarial program.

[46] The parties moved to Canada in 1991. Belen found a job as a data entry clerk and now works for the same employer as a customer service representative. When Miguel came to Canada, he did not pursue any further education. His English skills were not as good as Belen’s. However, Miguel became a jeweller and opened his own store at Yonge and Bloor in 1993. Belen describes him as creative and a good salesperson. For several years Miguel did well in his store.

[47] Miguel says that Belen has “always been in charge of all [his] financial affairs” since arriving in Canada and has “managed all of his finances”. However, the evidence does not show this level of control and involvement.

[48] Miguel was asked when questioned if he “authorized” Belen to “manage [his] financial affairs. He replied, “she was only helping me”.

[49] During the marriage and for awhile after separation, Belen helped Miguel with his paperwork. This consisted of the following tasks: gathering monthly invoices and expenses, paying the GST and PST for his store, and dropping off his paperwork to the accountant who took care of their income tax returns. Belen signed some cheques, letters, and documents on behalf of Miguel but only with his knowledge and approval. She helped him answer inquiries from the accountant and helped once when he was changing his bank account.

[50] Belen did not have access to Miguel’s bank accounts. At his request, she paid bills for him if he was travelling. When Miguel was away, he left Belen blank cheques that he signed before leaving and she used these cheques to pay bills. Sometimes he gave her cash to pay his bills. Miguel travelled frequently and often went back to Peru. Miguel went to the bank on his own and those who worked at the branch knew him.

[51] On July 15, 1999, Miguel and Belen purchased Virginia Ave for $286,000. Their down payment included a gift of approximately $83,651.77 from Miguel’s mother and $16,348.23 from the parties’ joint bank account. The balance was funded with a $185,900 mortgage. In 2003, when Virginia Ave was transferred to Belen, $172,161 was owed on the mortgage.

[52] The parties retained Mr. Wenus for the purchase of Virginia Ave. Miguel recalls meeting with Mr. Wenus but cannot recall what was discussed. However, he can recall signing the purchase documents. Belen was with Miguel when they met with Mr. Wenus. He relied upon her to translate English.

[53] Miguel retained Mr. Wenus on other occasions that are noted below. It is his evidence that Belen was always with him when he met with Mr. Wenus, and she translated the English to Spanish as needed.

Separation and Events Prior to Title Transfer

[54] The parties separated on June 6, 2001. At this point their child was six years old.

[55] In Miguel’s 14B motion affidavit he states that at the time of separation they discussed the home and what would happen to this property:

… when Belen and I originally discussed the terms of our separation, we did discuss the issue of [Virginia Ave]. We had extensive discussions about this issue and agreed that I will not force the sale of the home because we wanted our daughter to complete her education and continue to have the stability of this home while she does so. We explicitly agreed that the home will be divided equally when Kiara reaches the age of 25 to 27 years. We did not discuss the manner in which division would occur, but I contemplated the possibility that Belen would buy out my interest, or the home would be sold and proceeds divided equally. That is why in subsequent years when I experienced extreme financial hardship, all the discussion pertained to remortgaging the home, rather than selling it.

[56] In the affidavit sworn for the summary judgment motion he states:

The original agreement made orally and informally between us when I left the home in the year 2001 was that we would leave the [Virginia Ave] title undisturbed because we intended to leave this property to our daughter Kiara. We discussed and agreed that we would divide the equity when Kiara reaches the age of 25 to 27 years or completes her education.

[57] Miguel was questioned about this agreement concerning the home. His answers were far less specific than what he stated in his affidavits.

[58] When questioned he said the agreement was that Belen would stay in the home until the child finished university or reached the age of adulthood. He acknowledged that this was all he could recall about this agreement and that it was “difficult to remember” as follows:

Q. Let me ask you first what your agreement was with [Belen] about the house A. so it's really… it's really difficult to remember but I told her that.. to stay in the house until my daughter… reaches the age of adulthood Q. That was the agreement? A. Asking me now? Q. I'm asking you what the agreement was? A. So the agreement was that they stay and live in the house until [the child] finishes university or reaches the age of majority adulthood Q. And that was it? Anything else? A. I don't remember anything else. No I don't remember.

[59] There is no evidence from Belen about what was discussed about Virginia Ave, if anything, at the time of separation. Belen was not questioned about Miguel’s evidence that they had an oral agreement concerning the home.

[60] When Belen was questioned, she explained that problems in the marriage had been building and on June 6, 2001, Miguel voluntarily moved out. Miguel paid child support but there is no evidence about how they arrived at the amount and as noted, neither sought legal advice.

[61] After separation, Belen paid the monthly mortgage payments for Virginia Ave from her bank account. While Miguel said in questioning that he continued to make contributions to the home, his two affidavits do not mention this, and no proof of any contribution was provided. Belen acknowledges that initially he gave her some money but not after September 2001.

[62] Belen did not know if she could afford to stay in the house. She renovated the basement of the home at her expense, so she could rent the basement and supplement her income. She did not rent the basement after 2007.

[63] Belen did not pursue claims against Miguel for support or a division of his business. The business was never valued. When they separated, he had been operating his jewellery store for 10 years and was doing “pretty good”. Similarly, he did not pursue any claims against her. Their separation was amicable.

[64] Miguel paid some child support but there was no child support order or any agreement in writing. He says that initially he paid $1400 a month for child support and then it was reduced after Belen started to rent out the basement. On average he paid Belen $600 a month, until 2008 when he stopped paying child support.

[65] On June 17, 2002, the parties returned to see Mr. Wenus to have wills prepared and signed. These wills were eventually signed. Miguel remembers going to his office to sign his will. He agrees that his signature is on the will. He did not review the will before he signed it. Their wills were revised in 2015. Neither will made any reference to the agreement Miguel alleges they had regarding Virginia Ave. The wills refer to property with no specific reference to Virginia Ave.

[66] On July 10, 2003, Miguel purchased his Bay Street condo. Once again, he retained Mr. John Wenus as his real estate lawyer for this purchase. He went to Mr. Wenus’ office with Belen. He signed the necessary documents, including documents for a mortgage to buy the condo. Miguel recalls meeting with Mr. Wenus on this occasion. Miguel took out a mortgage from Scotia Mortgage Corporation to buy the condo.

Transfer of Title on the Home to Belen

[67] Miguel admits that in 2003, Belen spoke to him about her plan to assume the mortgage on Virginia Ave because it was coming up for renewal. He did not object to this plan, but says he had no idea that she was also planning to transfer title to Virginia Ave into her sole name.

[68] The mortgage on Virginia Ave was to be renewed either in 2003 or 2004. Belen had been paying the mortgage payments for two years. She spoke to the bank about the mortgage renewal. She cannot recall if she spoke to Miguel before or after going to the bank. She learned from the bank that title on the home had to be in her name before she could change the mortgage.

[69] Belen spoke to Miguel and recalls telling him “Miguel like you know, like you keep saying, this house is mine. I've been paying for the past two years so why don't we put the papers together? And he said yes” and “that's when we went to the office of Mr. Wenus and I started the process of changing the documents”.

[70] Belen was asked why Miguel thought it was fair to give his share of the home to her:

Q … what was your understanding about why Miguel thought that it was fair to give you his share in the house? A At that time… he was already.. His business was 10 years into it so he was doing pretty good. He has just bought his condominium in July of 2003 which was pretty much a month before we changed the house to my name you know. And I was already paying for the house at that time and you know like I never asked for any you know we never went to any lawyers for any separation agreements for anything you know. Like the mortgage still had… this was the very first term of the mortgage so there was still a lot of stuff to be paid…. He never said no. Q. He didn't need the house anymore? A Nothing ..nothing.. nothing from that apartment was mine. I never ..nothing from his business he gave to me either you know. No ..no spousal support. I didn't ask anything. At that time he was doing pretty pretty good. And I never asked for anything at that time, so my assumption is that he was OK with changing the house to my name just for all those reasons…. …I never asked for anything else and I was paying already for the mortgage and I was going to continue to pay for the mortgage. Q Ok but you already told me that you always accepted that the money that came from Peru was Miguel’s money. So did you have any conversation at that point about his money that was sitting in the house? A No we never.. I don't think we had that conversation. I just said it came with the territory. I'm saying let's put the house to my name. He never said anything at that time, so I assumed that he was okay with giving me this because I wasn't claiming anything else for anything else.

[71] On August 20, 2003, a few weeks after Miguel purchased his Bay Street condominium, the parties returned to Mr. Wenus’ office and signed documents to transfer Miguel’s 50% interest in the home to Belen. At the time of this transfer, Belen says that Miguel’s business was doing well. There is no evidence to the contrary.

[72] Miguel remembers meeting with Mr. Wenus in July 2003 to purchase his Bay Street condo, but he does not recall meeting with Mr. Wenus a few weeks later to sign the title transfer documents.

[73] During the August 20, 2003, meeting with Mr. Wenus, Belen recalls that Mr. Wenus asked Miguel if he understood that the transfer was for “love and affection” and that Miguel said yes. And Mr. Wenus said to Miguel “are you sure?” And Miguel said “yeah yeah”.

[74] Belen does not recall Mr. Wenus telling them to get independent legal advice. Further Mr. Wenus did not say for example “the transfer is you know in lieu of child support or in lieu of spousal support or in lieu of whatever work you did for him? He didn't say any of that?” Belen replied, “No that for sure he didn't say”.

[75] Miguel’s recollection about the events in 2003 leading up to the title transfer is very limited.

[76] In this first affidavit, Miguel stated that the signature on the transfer deed was not his and he suggested that someone else represented him when the transfer document was signed in Mr. Wenus’ office.

[77] In the second affidavit dated July 2, 2024, Miguel agreed that Belen did speak to him about the plan for her to assume the mortgage in 2003. It was coming up for renewal and he did not object to her assuming the mortgage. But he says he had no idea that she was also intent on transferring the title from both their names to her sole name.

[78] Miguel was questioned by counsel for Belen and Mr. Wenus. Miguel has no recollection of attending the office of Mr. Wenus in 2003 to sign the transfer document.

Q. So you went to his office in 2003 when you bought the Bay street condo and I just want to confirm that you don't recall going back to his the office in 2003 A. To say the truth, it's very difficult to remember very difficult Q. So you don't have any recollection of attending at Mr. Wenus’ office to sign this 2003 transfer? A. No it’s very difficult to remember, very difficult

[79] Miguel also testified that the signature on the transfer document is “one hundred percent not mine”. It is Miguel’s evidence that Belen forged his signature on many documents. After questioning, Miguel conceded that it is his signature on the 2003 transfer documents.

[80] Mr. Wenus was questioned and the claim against him has since been dismissed. Most of his file from the 2003 title transfer was damaged in a flood in his storage area. His independent recollection of the parties is limited. He recalls their names and the various services that he provided. He does not recall the meeting with the parties on August 20, 2003, or any events leading up to his retainer.

Events After the Title Transfer

[81] In his Application, Miguel states that after 2003 the parties had several occasions to discuss ownership of Virginia Ave. Further, he pleads that on “several occasions” he approached Belen seeking to draw some of his equity in Virginia Ave. However, only one occasion is mentioned in the Application, and it took place in 2014.

[82] The evidence is that on two occasions Belen loaned Miguel money when he needed help. He paid this money back to Belen. In 2007, she loaned him $50,000 (using her line of credit) and in 2014 she loaned him $10,000 USD. Belen states that Miguel never asked for money from the equity in Virginia Ave. It is her evidence that he always knew that the house was in her name.

[83] In 2007, Miguel bought a second condominium on Yonge Statement (“Yonge Street condo”). He used this condominium to operate his jewelry business. After he sold his Bay Street condo in January 2013, he worked and lived in the Yonge Street condo. Miguel did not hire Mr. Wenus to purchase the Yonge Street condo. He hired a different lawyer. At the time of this purchase, Miguel took out a mortgage on the Yonge Street condo.

[84] In 2008, Belen added a line of credit to her mortgage. Among the documents that the bank asked her to sign was a statement that she had a Separation Agreement with Miguel. In fact, she did not have a Separation Agreement. When questioned about this, Belen explained that she did not pay attention to this clause and simply signed what the bank asked her to sign. She knew that she was paying for the mortgage on her own and did not think much of this clause even though she knew that they did not sign a Separation Agreement.

[85] Miguel has a son from another relationship. In 2011, the mother of this child was seeking child support from Miguel in court. At Miguel’s request, Belen contacted Miguel’s accountant to collect the paperwork that Miguel’s lawyer needed. Belen then sent this paperwork to Miguel’s lawyer. This was the extent of her involvement. Miguel swore a financial statement in this child support dispute on June 28, 2011. In part 3 of this financial statement, he listed his assets. This included his Bay Street condo and the Yonge Street condo. He did not list the 50% interest in Virginia Ave that he says he owns.

[86] In Miguel’s Application against Belen, he did not disclose the above financial statement and refused to provide an undertaking to produce it during questioning. Nevertheless, Belen obtained a copy.

[87] The following evidence is in Miguel’s first affidavit.

[88] Miguel’s says that in 2013 he encountered financial difficulties and was forced to sell his Bay Street condo because he could not pay the mortgage. Questioning revealed that it was sold on January 8, 2013. Miguel used a lawyer that the real estate agent found for him. In 2013, after the Bay Street condo was sold, Miguel bought a property in Peru.

[89] In 2014, Miguel had an accident and was unable to work for the rest of that year. Just before the accident, Belen loaned him $10,000 US which he repaid together with interest.

[90] Miguel states that in the years 2012 to 2014, he spoke with Belen several times hoping that she would allow him to draw part of his equity in Virginia Ave so he could attempt to financially recover. It is his evidence that she refused. He says that she told him that they had agreed to leave the house to their daughter. At no time did she tell him or suggest that he no longer had an interest in Virginia Ave.

[91] When Belen presented him with the Divorce Application in 2014, he states that he raised the issue of Virginia Ave with her again. He says that Belen insisted that the divorce would have no impact on the home and that they should leave everything as is. She did not tell him that he no longer had an interest in Virginia Ave.

[92] Miguel’s second affidavit was sworn on July 2, 2024, after he was questioned. In Miguel’s second affidavit he states that since 2001 they have had various opportunities to discuss ownership of Virginia Ave and did so several times. In this affidavit, he discusses two occasions, one in 2007 and another in 2014.

[93] His evidence about 2007 is as follow:

In the year 2007 Belen engaged in some manipulations of our financial affairs when she purportedly advanced $50,000 to me on July 29 2007 which she then represented to the bank as a gift. In fact, this was a line of credit she took out so that she could advance funds to me. I repaid the balance on that line of credit in full with cheques that Belen wrote to herself from my account.

[94] His affidavit does not state that in 2007 they discussed his ownership interest in Virginia Ave or that he asked to use his equity in the home. Furthermore, the above excerpt from his affidavit does not support his statement that Belen “engaged in some manipulations of our financial affairs”.

[95] During questioning, Miguel was asked about what happened in 2007. He said there was a recession. He did not have money and wanted some equity from Virginia Ave. They spoke about this at her house with no one else present. When asked what they discussed he said just that he had bought the store and that there was a recession and he needed money. He said that Belen told him that he was hardworking and next year would be better. He was questioned as follows:

Q. How were you proposing to get access to your equity in 2007? A. I proposed that she give me some money and then I would return it… so I asked her for some money that I was going to pay back I told her I will pay back to maintain a good relationship. Q And at that time you said you would pay her back the money? A .Yes that I …for the money from …from the equity of the house Q so why would you pay it back if it was your equity A so the… to ensure that there is no debt on the house

[96] Before asking Belen for the money, he did not try to get a mortgage or a line of credit. Belen loaned him $50,000 that she took from her line of credit. The bank draft for the money, records that this was a loan for his new store. While there was a document that called this a gift, it was a loan because Miguel paid the money back.

[97] During questioning, Miguel said that he asked Belen again for money in 2012. Miguel’s evidence about whether they discussed the home on this occasion is conflicting.

Q. And what was the discussion about the house on Virginia Ave. in 2012? A Well there was no discussion. She didn't send me anything. [Emphasis added]

[98] A few questions later Miguel changed his evidence. He answered:

Q. So you were asking Belen for a loan in 2012? A. Yes I was asking her to ...to help me Q. So you didn't discuss the house at that point in time. A. Yes we did talk about the house. I was asking her to lend me some money from the equity so I wouldn't lose the apartment but she always said no no no you are going to put the house at risk

[99] Miguel went on to say that he never applied for a loan or a mortgage using his equity in Virginia Ave because of his agreement with Belen. At this point in his questioning, he described their agreement about Virginia Ave as follows: that the “house is not be in danger ever” and that “we never touch the house”. Miguel was then questioned about this answer:

Q Well Mr. Delgado when I asked you what your agreement was 10 minutes ago you didn't say anything about that A so I didn't mention that that in June 2001 when according to her we separated the agreement was that she will live in our house with my daughter and we will not touch the house until she becomes an adult and finishes university.

[100] Miguel then elaborated and said that the agreement when the child left the house was “sell it and divide it 50/50 as it should be”. Despite this alleged agreement, Miguel agrees that they never spoke about who would pay the property taxes for Virginia Ave and he was never asked to sign documents when Belen “remortgaged” the home in 2008. He claims that he paid for everything in the house after 2001 but provided no proof, and he provided no evidence that he ever paid money toward the mortgage after they separated.

[101] In 2014, Miguel asked Belen to again loan him money. The evidence about this loan in his first affidavit is very brief: “Just prior to the accident in 2014, Belen agreed to loan me $10,000 USD, which loan I repaid together with the interest Belen charged me at $100 monthly.” The accident happened in June 2014.

[102] There is no mention in this first affidavit that they spoke about Virginia Ave and using his alleged equity.

[103] When Miguel was questioned on May 6, 2022, he was asked if they discussed Virginia Ave in 2014:

Q. So was there an occasion in 2014 when you discussed the house? A. No because with… the house was something we did not touch. We didn't talk about the house because I knew the house was hers and mine. Q So I'm going to ask you to read paragraph 12 in your pleading and the second sentence of that where it says “the husband had approached the wife on several occasions seeking …seeking to draw some of his equity in the matrimonial home to assist him with his financial needs.” So are you saying that that is an incorrect statement now Mr. Delgado? A. It's correct what it says here is what I said. It's correct. Q OK so you did discuss the house? A We always talked about the house. But we did not quarrel about it.

[104] When Miguel was questioned on September 26, 2023, he said that in 2014 he went back to see Mr. Wenus “to do a consolidation and to help [him] get a mortgage” on his “Yonge Street” property.

[105] This meeting with Mr. Wenus is not mentioned in Miguel’s first affidavit. Miguel was obtaining a mortgage on the Yonge Street property with Home Trust and Belen was helping him. He went to Mr. Wenus’ office alone. The questioning below is about what happened:

Q so then you go to his office you just said alone A at first yes because I wanted to get a mortgage against the house Q which house? A Virginia and he said to me yes Q OK you went to Mr. Wenus’ office to ask for a mortgage on Virginia Ave. and he said yes? A I don't remember when… so I'm saying that Belen gave me the documents or she sent them everything that was needed and then I went. And i said i wanted money on the house to pay that and he said to me yes. And then Belen appeared. Q OK so slow down. So you're speaking English now to Mr. Wenus? A Yes a little bit much better than before Q OK so you tell Mr. Wenus in 2014 I want a mortgage on the Virginia Ave. property and he says yes? A Yes Q And what happened? A And as we were talking Belen came and they went to a side of the office and started talking and she…Wenus said “if you don't put the money into the equity of the house then you won't have anything in the future for your daughter”. And so he said “it would be better to take out a mortgage on the house” and they convinced me and I said yes and then they began talking about something else and if I remember correctly about cohabitation and they were mixing everything up.

[106] Having spoken about this 2014 meeting with Mr. Wenus during questioning, Miguel included this evidence in his second affidavit. He describes the accident, fracturing his elbow and being unable to work for an extended period of time and went on to say:

It was during that time that I once again approached Belen with a request to draw some equity from the matrimonial home and we had the same discussions as always. She insisted that we needed to preserve the equity for Kiara but never even hinted at the fact that I was no longer on title. I experienced such extreme financial hardship that at one point I was forced to sleep on the floor of my store. In the year 2014 when I approached Belen with a request to draw some equity in the matrimonial home, she offered the same explanation and resistance but advanced a loan to me of $10,000 USD on which she charged me interest of $100 a month but which I repaid.

[107] In this second affidavit he describes his meeting with Mr Wenus in 2014 as follow:

I approached our real estate lawyer, Mr. Wenus because I wanted to obtain a mortgage against the matrimonial home and he advised that he was able to help me. However when I attended at his office Belen appeared at Mr. Wenus’ office while I was there… and suddenly I was no longer able to draw from the equity in the matrimonial home. Mr. Wenus and Belen and convinced me that we should leave equity in the matrimonial home for Kiara.

[108] His affidavit states that he had broken his arm and was in extreme financial difficulty. He was living in his store and “did not have money for food or anything”. Belen came to see him a few times. Around this time, she presented him with the divorce application, and he admits that he signed it.

[109] During these occasions when Miguel and Belen met in 2014, Miguel was asked if they discussed Virginia Ave. He was questioned about the day he met Belen and signed the divorce application:

Q. So you didn't discuss the house at that point? A. I didn't have money for food. I didn't have anything. So I wasn't even thinking about the house. Q So was there an occasion in 2014 when you discussed the house? A. No because the house was something we did not touch. So we didn't talk about the house because I knew the house was hers and mine.

[110] In summary, Miguel’s evidence that he and Belen discussed Virginia Ave and that he asked to use his equity in the home is not consistent.

New Wills

[111] In 2015 Belen contacted Mr. Wenus. She wanted to have a cohabitation agreement with her boyfriend who was living with her in the home. At the same time, Belen and Miguel had Mr. Wenus prepare new wills.

[112] It is Miguel’s position that they made mirror wills and that this supports his understanding that he owned half of the home. Their 2003 wills were the same. Each designated the other as executrix and the child as sole beneficiary.

[113] Miguel’s September 23, 2015, will is not a mirror will. It does not make any reference to Virginia Ave. At the time his estate included his jewelry business, the Yonge Street condo, a property in Peru, and his alleged interest in Virginia Ave. Kiara and his son from another marriage are the beneficiaries of his estate. The will he signed split these assets equally between his two children.

[114] The two wills that Miguel signed do not support his position that he owned half of the equity in the home and that the home be left to their daughter.

[115] During the 2015 meeting, Belen spoke to Mr. Wenus about preparing a cohabitation agreement with her boyfriend. Miguel was present as she gave Mr. Wenus instructions on what to put in the cohabitation agreement.

[116] Belen states “I wasn't hiding anything” from Miguel. She does not know if Miguel was listening to the instructions that she gave Mr. Wenus. Mr. Wenus made notes in his file: “the real property is registered in the name of Nora Belen Tello”… “and the house is to remain with Ms. Tello upon separation” referring to the boyfriend.

[117] Belen had told her boyfriend when he moved into the home “if something were to happen to me this house has to be… go to… [the child] and eventually I'm going to come and make you sign something and he was okay with it”.

2019

[118] Miguel was asked in questioning if there were any other occasions when he and Belen discussed the ownership of Virginia Ave or when he asked to access his equity in the home. He testified about one last occasion in the summer of 2019. On this occasion his daughter called him to find out what she had to do to get a sticker to park on the street. Miguel was surprised because there were three parking spots in front of the house. His daughter explained that Belen’s boyfriend was using two parking spots. Miguel does not refer to this 2019 occasion in his application.

[119] In his first affidavit Miguel states:

I could not understand why she needed the permit given that the matrimonial home has three parking spots. Belen occupies the home with Kiara and with Belen’s boyfriend. They each have a vehicle. There is no reason why Kiara should not have a parking spot. In response to my inquiries, Kiara advise me and I believe it to be true that Belen's boyfriend was occupying 2 parking spots. This is when I became concerned and told Kiara that this is her house and she should be entitled to a parking spot. Half of the home was still mine and therefore I felt that I could insist that at least one of the parking spots be made available for Kiara. In response to this conversation, Kiara spoke to her mother and returned to me by saying that her mother insisted that I do not own the home but that her mother insists that she “earned” this home. That is when I began to make inquiries. Therefore, in or about August of 2020 I caused a search to be conducted in respective title to the matrimonial home. I discovered for the first time that title had been transferred from the joint names of the applicant and me into Belen’s name alone on August 18, 2003. [Emphasis added]

[120] Miguel was questioned about what happened in the summer of 2019. He said that he went to the home to meet his daughter. When he arrived, he saw that the garage door was damaged. It looked like someone had hit the door with a car. Miguel thought his daughter was responsible and he told her he would pay for the damage. He then learned that Belen was responsible for this damage.

[121] His evidence during questioning changed. He described a discussion with his daughter and learning directly from Belen for the first time that the home was not his:

And I told my daughter “I have a surprise for you” and I gave her a hug and I said “this is your house. My house is yours. The house. My house”. [Belen] approached me and said “that’s not true. It’s not your house. It’s my house.” And that was the first time in 20 years that I discovered that the house is not mine.

[122] Belen’s evidence is that the friendship she had with Miguel started to breakdown in 2019 after the parking spot disagreement. She stated the following:

So he came to the house and we had that argument, and he started saying why you know Kiara cannot park in the driveway and that's when I said you know, well you know, it's we switch cars… because our driveway is one that goes down so you have to park behind the other car and it's not side by side. So I said whoever has to leave earlier the next day is the person that has to park at the top of the driveway, anyhow there was a disagreement on that and that's how this started. Q And the disagreement was because Miguel felt that Kiara should have her own parking spot at the house instead of your boyfriend Luke having one? A Yes I think that's how he felt yes. Q. OK and did Miguel at that time also attempt to talk to you about financial issues that pertain to your separation? For example, you know wanting to talk to you about dividing the house or any of that? A In 2019? Q 2019 yeah A Are you talking about like right after this issue with the parking? Q Yes A No Q OK so had he been asking you at that point to sort of address any other financial issues? A No

[123] There is evidence that the parties texted each other in October 2019. Belen was questioned about some texts between her and Miguel.

[124] On October 5, 2019, Miguel sent Belen a text thanking her for helping him with the alarm in his store that had gone off.

[125] On October 8, 2019, Miguel texted Belen again and stated:

Hello [Belen], there is more than four weeks since we talked and I ask you to think and communicate me your decision. Remember that I'm not asking anything for me. I'm asking you about Kiara’s rights about the house in which you live. Also remember that I have never asked you for anything. I have never put any conditions in the house of yours. Apparently if you don't give Kiara a spot to park her car, it makes me think that you are not going to give her what she has rights to. I would like to talk to you. [Emphasis added]

[126] Miguel’s October 8, 2019, text makes no reference to his evidence on this motion, specifically that during this parking issue he learned for the first time that he was not an owner of the Virginia Ave home. Rather this text focuses on Kiara’s right to the house. He clearly states that he “is not asking anything for me. I'm asking you about Kiara’s rights about the house in which you live. Also remember that I have never asked you for anything. I have never put any conditions in the house of yours.”

[127] Belen says that on November 26, they had a conversation at the home. Kiara was present. He arrived with some papers that he wanted Belen to sign. He wanted her to agree to put the house in Kiara’s name. Belen said, “if you were asking me to put half of the house in Kiara’s name…that’s not going to happen”. When asked why, Belen stated:

Because she's still a kid. Because if she gets married, there are implications about the house. So I don't, I didn't want to do that. If I die tonight, that house is Kiara’s. She gets everything, but while I’m still alive, no.

[128] There are no texts, emails, or anything in writing, that document Miguel’s understanding about his alleged ownership/equity in Virginia Ave or his allegation that he learned in 2019 for the first time that the home was not his. Instead, his above text reveals his understanding that the Virginia Ave home belonged to Belen.

Miguel’s Properties and Mortgages

[129] Miguel has solely owned two properties in Toronto during the relevant time frame: his Bay Street and Yonge Street condominiums. There is also evidence that he owns a property in Peru. When he was questioned, he explained that on several occasions he mortgaged his properties. Miguel has not provided any of the credit applications that would have been provided to the lenders. Such documents would require Miguel to disclose his assets including the alleged 50% ownership interest in Virginia Ave.

Alleged Forging of Miguel’s Signature

[130] Miguel retained Dr. Shabnam Preet Kaur to examine the signatures on numerous documents. He compared Miguel’s signature with signatures Miguel says are not his. The 2003 title transfer documents were not examined, and the report does not explain why that is so. The report attaches many documents with signatures but the 2003 transfer documents are not included.

[131] Miguel says that he could not obtain a handwriting analysis of the transfer documents because of the “poor quality” of the documents. He now admits that his signature is on the transfer documents.

[132] The expert states that it is “highly probable (second level of certainty)” that the writer of the signature on the affidavit of divorce and a RBC cheque dated December 28, 2007 (amount $327.74) was not the same hand as the writer on comparison documents belonging to Miguel. Belen’s handwriting was never examined, and the report does not make any comments about whose handwriting appears on the affidavit and the single cheque.

[133] Belen was asked about the RBC cheque. Concerning the signature on this cheque she answered “this is not my signature. Definitely, it's not…. No no I never signed checks. And as you saw on the letters that I admitted to my signatures, I wrote his name. I never signed any documents of this type.” This was a cheque in payment towards the $50,000 that she loaned Miguel.

Evidence Regarding Allegation of Forged Signature

[134] In June 2014 Miguel states that Belen forged his signature on the Affidavit for Divorce. He states in his first affidavit:

When Belen presented me with the Divorce Application, I raised the issue of the matrimonial home with her again. Consistently with her previous statements, Belen insisted that the divorce would have no impact on the house and that we should leave everything as is. She certainly did not say or attempt to say that I no longer had any interest in this home. The signature on this document is not mine The handwriting on the document is Belen’s I note that the document is signed under oath, notably in the presence of a commissioner, apparently at the courthouse counter. However, aside from the fact the signature does not match my own (compare to the Application for example), I am certain that I never attended at the courthouse to sign anything. I have no idea who attended in my place and what form of identification was produced to the court staff. I only know that I was not that person.

[135] In Miguel’s second affidavit he elaborates on his evidence that his signature on the Divorce Application was forged. He states that Belen suggested that they proceed with a divorce, and he agreed. He allowed her to make all the arrangements. At the time he was recovering from his fractured elbow and was experiencing devastation and depression. He never considered obtaining legal advice to understand the impact of divorce on his property claims. He states “I did not think I had any property claims because I've remained under the impression that the only property that could be subject to division was the jointly owned matrimonial home. I knew enough to know that a jointly owned property would not be affected by the divorce.” Belen prepared the application for divorce and brought it to Miguel to sign. He clearly remembers signing the document, but he says that he never signed the affidavit for divorce which he later obtained from the court.

[136] Belen explained that she went to the courthouse and spoke to someone, perhaps a clerk, to get help with filling out the forms. Belen did not have any legal advice. She then filled out the “papers for the divorce” but it was Miguel who signed the affidavit. They met at the courthouse and Belen is “pretty sure that he read it” before he signed. They may have “read it together”. Miguel “signed those papers in front of the clerk with me”.

[137] Belen denies that Miguel signed the documents at his store. She stated when questioned:

Q if Miguel remembers that you drop by and said oh quickly you need to sign because I'm parked illegally here are the documents sign them that never happened? A No because the documents as part of the presentation of all these forms it clearly says in there that you are supposed to sign in front of a clerk

[138] The day before Belen had sent Miguel a text confirming that they would “meet for the divorce at 11:20 by the building door 393 university. Osgoode subway station is the closest I think”. Miguel was very late. It is Belen’s evidence that he did show up and he signed the document.

[139] Miguel states that Belen forged his signature on several occasions, but even his own expert does not support this allegation.

Summary and Conclusion

[140] The record on this motion does not establish that there is a genuine issue requiring a trial. I can reach a fair and just determination on the merits on this motion for summary judgment. Extensive evidence has been provided through affidavits and questioning. This evidence allows the court to fairly and justly adjudicate the dispute on this motion. Deciding the issues on this motion is a proportionate, more expeditious and less expensive means to achieve a just result.

[141] After separation, neither party sought independent legal advice. When they separated, they had a very limited oral agreement. Miguel agreed to pay child support but stopped paying this support in 2008.

[142] They did not equalize the net family property. Belen kept Virginia Ave and assumed responsibility for the mortgage, taxes, and other house expenses. Miguel gave her some money, but not after September 2001. Belen paid to renovate the basement because she needed rent money to help her pay for the home expenses. Miguel kept his jewelry business that was never appraised. He was able to buy two condominiums for himself. His business was doing well at the time of separation. In summary, Miguel kept his business and whatever cash he had, and Belen kept Virginia Ave.

[143] To rely on s. 28 of the RPLA there must be a fraud and it must be fraudulently concealed. There is no evidence that Belen committed fraud “several times” and, no evidence that she committed a fraud in transferring the property to her name. Miguel admits that he signed the title transfer documents. As a result, there is no factual foundation for the alleged forging of his signature that Miguel says was fraudulently concealed.

[144] Miguel’s evidence about the alleged Virginia Ave agreement and any subsequent discussions he had with Belen, is very inconsistent as noted in the above review of the evidence. Further there is evidence that does not support the existence of the alleged agreement (such as Miguel’s text in 2019, his wills and his financial statement in another family dispute).

[145] There is no evidence that Belen’s alleged fraud resulted in a loss for Miguel. No effort was made on this motion to show what loss (if any) Miguel has suffered. There is no evidence that Belen profited from the alleged frauds. There is no evidence about what equalization payment would have been owed and by whom, assuming the parties had pursued such a claim after separation. There is also no evidence to show what child support Miguel should have paid or whether either party would have been entitled to spousal support.

[146] The lack of certain evidence does not help Miguel. It is a fact that he mortgaged his various properties several times. He was asked to produce all loan applications and documents given to prospective lenders. Clearly a 50% ownership in Virginia Ave would be relevant and helpful in Miguel’s efforts to secure loans. These documents were not provided. It is reasonable to assume that this 50% interest, if true, would have been disclosed to the lenders.

[147] In 2019, Miguel says he learned for the first time that he was no longer an owner of Virginia Ave. If true, this would have been a shock to Miguel and yet he does not mention this revelation in a single text, email, or document. This silence is telling.

[148] The parties exchanged texts in the fall of 2019. These texts reveal a very different understanding from Miguel about Virginia Ave: that the home was Belen’s, that Miguel was not asking her for “anything for [him]” and he was concerned about Kiara’s rights to the house.

[149] Belen’s request to assume the mortgage and title of the home made sense, while Miguel kept his business. She was the one that paid the mortgage and taxes and has done so for many years. This is consistent with her evidence that title to the Virginia Ave home was transferred to her alone.

[150] In summary, this Application is statute barred. Miguel relies on s. 28 of the RPLA for relief from the limitation period. To do so there must be a “concealed fraud”. The court fairly determines on the evidence that the relief under s. 28 of the RPLA is not triggered. Specifically, the evidence does not show that a fraud was committed when title to Virginia Ave was transferred to Belen or that such alleged fraud was concealed.

Orders

[151] I make the following orders:

(1) The applicant’s claims against the property municipally located at 136 Virginia Avenue, Toronto, Ontario, M4C 2T4 are statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c.24, Sch.B. and Real Property Limitation Act, R.S.O. 1990, c. L.15.

(2) The applicant’s Application dated August 13, 2021, is dismissed.

(3) If the parties cannot agree on costs of this motion and the Application, the respondent shall serve and file her cost submissions and bill of costs by September 20, 2024, and the applicant shall serve and file his reply submission by September 27, 2024. Late cost submissions shall not be accepted. Submissions shall be limited to 6 pages in addition to a bill of costs and any offer to settle attached.

C. Horkins J. DATE: September 11, 2024