Court File and Parties

COURT FILE NO.: FS-21-00169-00 DATE: 2024-01-24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Crystal Mansfield Applicant

N. Rea, for the Applicant

• and -

Michael Kolinski Respondent

L. Perera, for the Respondent

HEARD: May 9, 2023, at Thunder Bay, Ontario written submissions completed on July 14, 2023

Madam Justice T. J. Nieckarz

Reasons for Judgment

Overview

1The parties were in a common law relationship that began in September 2012. They separated on December 27, 2020. There are no children of their relationship.

2On September 30, 2016, they purchased a home together. They are registered as joint tenants, and both parties are mortgagors. They continued to live in the jointly owned home together until the Applicant moved out in March 2021. The Respondent has lived there since.

3The Applicant, Ms. Mansfield, seeks the immediate sale of the jointly owned home, an equal division of the net sale proceeds, and occupation rent.

4The Respondent, Mr. Kolinski, says that he provided the down payment for the home in the amount of $27,785.99, in addition to a $1,000.00 deposit. He takes the position that an equal division of the net sale proceeds will result in an unjust enrichment to the Applicant. He seeks credit in the amount of $27,785.99 either in the form of a preferential share of the net sale proceeds or as a credit against any amount he offers for the purchase of the Applicant’s interest in the home. He also pleads declarations of constructive and/or resulting trust, and an order requiring the Applicant pay the sum of $5,820 on account of monies that are unaccounted for with respect to the joint line of credit.

5The Applicant, Ms. Mansfield, says that she paid all the expenses for the home from approximately September 2017 until the date of separation. Mr. Kolinski became unable to work, and his ability to contribute to the expenses of the home was reduced accordingly. She says that the home should be sold, and the net sale proceeds divided equally given that her contributions to the expenses significantly exceeded Mr. Kolinski’s initial contribution to the down payment. Alternatively, she should receive an unequal division on account of her greater contributions during the relationship.

6For the following reasons I find:

a. Unless the parties can agree within 14 days of the date of release of this decision on terms for Mr. Kolinski to purchase Ms. Mansfield’s interest in the Home (as hereinafter defined), the Home shall be listed for sale and sold. b. The net sale proceeds after payment of mortgage, real estate commissions, legal fees, other encumbrances, and the joint line of credit, shall be divided equally. c. There shall be no occupation rent or accounting for rental income allegedly received by Mr. Kolinski.

Factual Background:

The evidence and evidentiary issues:

7The evidence at trial consisted of affidavits of the parties that were supplemented by brief viva voce evidence-in-chief, cross-examination, and a Statement of Agreed Facts. An affidavit was also filed from Trevor Tyson. Closing submissions were completed in writing.

8At the commencement of the trial the Applicant sought to admit further evidence that had not been disclosed to the Respondent’s counsel until either the evening before, or the morning of trial. The evidence consisted of documents that are alleged to verify certain expenses paid by the Applicant during the relationship in the form of credit card and other statements. There were also bank statements with respect to an inheritance. The Applicant stated that combined with other evidence already contained in her affidavits, the statements prove that she used the money for the joint expenses of the parties. This evidence is relevant to the unjust enrichment claim.

9The Respondent objected to the late disclosure. The proceeding had been commenced in 2021, the parties had gone through an unsuccessful judicial dispute resolution proceeding that required disclosure of all evidence, had this trial booked for some time, and there was no good explanation for the delay.

10I advised counsel that the options I was considering were:

a. If the Applicant felt that the documents were crucial to her claim, adjourn the trial to give the Respondent an opportunity to review the documents and obtain any responding evidence of his own, with costs against the Applicant; or b. If the Applicant did not feel that the documents were crucial to her claim, proceed with the trial but without the documents. The parties would have an opportunity to supplement their affidavits with brief evidence-in-chief, subject to cross-examination.

The Applicant chose to proceed without the documents.

Facts giving rise to the claims:

11When the parties began living together Mr. Kolinski moved into Ms. Mansfield’s home. Mr. Kolinski also had a home, which he rented out after moving in with Ms. Mansfield. The parties decided to sell their respective homes and purchase one together. There was no suggestion by either party that their economic relationship during this period of time was relevant to the issues in dispute.

12On September 30, 2016, the parties purchased the home on 792 John Street Road, Thunder Bay, Ontario (the “Home”), as joint tenants.

13The Home was purchased for $232,900. It is undisputed that the down payment, legal fees, and other closing costs were paid entirely by Mr. Kolinski. Mr. Kolinski’s home had sold, but Ms. Mansfield’s home had not. It is also undisputed that even after Ms. Mansfield’s home was sold in December 2016, she did not give Mr. Kolinski any money for her share of the down payment. Both parties were to be responsible for the joint mortgage.

14Mr. Kolinski’s evidence is that when the Home was purchased it was agreed that he would receive his down payment back when the Home was sold, with the balance of the equity divided equally. The parties did not intend to live in the home long-term, but rather renovate and sell it in approximately five years. Mr. Kolinski testified that he viewed the down payment as an investment and did not intend to gift one-half of it to Ms. Mansfield. He says that the only reason he agreed to include Ms. Mansfield’s name on title and the mortgage is because she agreed to return his down payment to him off the top of any sale proceeds when the house was sold. Ms. Mansfield denies there was any such discussion.

15Ms. Mansfield’s initial evidence was that for the first approximately 11 months, the parties contributed equally toward the mortgage payments, while she paid for gas, property taxes, insurance, cable, water, hydro, and other bills associated with the Home. In cross-examination she acknowledged that Mr. Kolinski paid the mortgage of $1,042.96 per month, while she paid everything else during this period. I note that Ms. Mansfield’s summary of expenses she paid, that is attached to her affidavit, does not show mortgage payments made by her until November 2017. Mr. Kolinski’s evidence is that he paid all expenses for the home from October 2016 to November 2017.

16In or about June 2017, Mr. Kolinski was in an accident that left him with nerve damage and unable to work. Ms. Mansfield says that because of this, she began to pay all the household expenses, including the mortgage as of November 2017.

17Mr. Kolinski’s evidence is that in or around November 2017 he asked Ms. Mansfield to pay the mortgage from her account for a while because his funds were depleted. He was to contribute money as he was able.

18Mr. Kolinski acknowledges that between November 2017 and March 2018, the mortgage payments came from Ms. Mansfield’s account. He says he made cash payments to her to assist with the mortgage and household expenses. He has attached some bank statements, but it is impossible to ascertain whether an ATM withdrawal was in fact a payment to Ms. Mansfield or what it was intended for.

19Approximately two years after Mr. Kolinski’s accident, Ms. Mansfield’s mother passed away leaving her an inheritance. Ms. Mansfield says that the majority of her inheritance went towards payment of joint expenses of the parties given that she was responsible for payment of all expenses with little contribution from Mr. Kolinski. Given the evidentiary issues that arose at the outset of the trial, I have no evidence as to how much this was or how it was spent.

20Ms. Mansfield’s evidence was that between August 2018 and March 2020, a friend of the parties (Trevor Tyson) also lived in the home and paid $1,000 per month in rent. Ms. Mansfield says that she received $16,500 from Mr. Tyson, which she applied to the carrying costs of the home. Mr. Tyson’s affidavit says that he lived with the parties for two years from March 2018 to March 2020, and paid a total of $24,000 in rent. Mr. Kolinski says that Ms. Mansfield received all the rent money. Mr. Tyson could not say who he paid it to. He gave it to whoever happened to be around when he was paying. In cross-examination Ms. Mansfield acknowledged that Mr. Tyson’s evidence as to the duration of his tenancy may be correct, but she remained firm in her evidence that she only received $16,500 of the rent payments.

21Mr. Kolinski’s affidavit sworn May 8, 2023, acknowledges that during this period from March 2018 to March 2020, his finances were “completely depleted”. Despite this, his evidence is that he contributed to the household expenses in cash. There is some reference to other insurance monies, but whether these were regular payments or a lump sum that were “depleted”, and what they were used for, I have no evidence of.

22Ms. Mansfield alleges that Mr. Kolinski caused the sum of $18,714.80 to be charged to her credit card. She had agreed that he could use the card for Home and medical expenses, but she expected to receive the insurance reimbursement for the medical expenses. Of the $18,714.80, she estimates that $5,199 was related to the Home, with the balance being either Mr. Kolinski’s medical or personal expenses. Ms. Mansfield says that Mr. Kolinski only made two payments towards these credit card expenses (she does not say how much), and he did not share any of the insurance reimbursement.

23Ms. Mansfield’s evidence is that she also paid for most of the renovations done to the Home prior to the parties securing the joint line of credit. She acknowledges that Mr. Kolinski paid for some but says that she paid most of them. She has not quantified the amount she says she paid, or provided any evidence as to the value these contributions may have added to the Home.

24Ms. Mansfield acknowledges that Mr. Kolinski also performed some renovations to her previous home that he lived in, and to her mother’s home. She paid him some money for renovations to her home and her mother’s home.

25In addition to renovations on Ms. Mansfield’s former home that he says she benefited from, Mr. Kolinski’s evidence is that he performed extensive renovations throughout the whole Home between December 2019 and March 2021, including the bathroom, kitchen, basement, and other items. He estimates 250 to 300 hours of labour. He performed many of the renovations post-separation. His evidence is that the materials for the renovations were purchased using funds from the joint line of credit, and he did all the work. He acknowledges that the costs may have been charged to Ms. Mansfield’s credit card initially, but those charges were paid for from the joint line of credit. He denies that Ms. Mansfield paid anything on account of renovations. He provided no evidence as to the impact of this work on the value of the Home.

26Ms. Mansfield says that she eventually had to leave the Home due to Mr. Kolinski’s anger and violence. She testified that he became “extremely aggressive” but did not specify what this meant. She concluded that it was no longer healthy for her to remain at the Home, and felt she had no alternative but to leave.

27Mr. Kolinski disputes this. His evidence is that the relationship ended at his request due to Ms. Mansfield’s “toxic lifestyle”. He acknowledges that the period leading up to separation was not good and the parties had their differences. He says it was due to Ms. Mansfield’s addiction related behaviours, including when he “looked into the accounts”, money had been taken and used for drugs and alcohol. He decided to separate and moved into the basement. He denies any violent or aggressive behaviour and says they were relatively civil towards each other, even discussing co-parenting their dog. His evidence is that he was surprised on February 27, 2021, when he received a text message from Ms. Mansfield advising that she had found a place of her own and was moving out effective the beginning of March.

28Post-separation the expenses for the Home have been paid as follows:

a. Ms. Mansfield and Mr. Kolinski each paid one-half the mortgage, taxes, and insurance payments for the Home until January 2023; b. In May 2021, Mr. Kolinski took over payment of all utilities. c. As of January 2023, Mr. Kolinski assumed responsibility for all payments for the Home, including the mortgage.

29After Ms. Mansfield left, she believes that Mr. Kolinski had his cousin living in the Home as a tenant. She saw, and other people saw, the cousin’s vehicle at the Home, daily. She seeks an accounting for the rent received.

30Mr. Kolinski denies that he had a tenant. His evidence is that his cousin does not live with him but does visit him often as they are close.

31As of February 2023, the home was appraised at $316,000.00. As of May 2023, there was approximately $209,000 left owing on the mortgage.

32Mr. Kolinski’s oral evidence at trial was that post-separation, the parties reached an agreement with their realtor that is reflective of their original intention when they purchased the Home. He says the agreement was that they would share the net equity in the Home after he received his initial $30,000 down payment back. Ms. Mansfield disagrees, and the realtor did not testify or provide affidavit evidence.

33Ms. Mansfield says that if Mr. Kolinski is entitled to be reimbursed for the down payment and/or his renovations, she is entitled to be reimbursed for his half of all expenses paid by her for the Home during the relationship. Ms. Mansfield argues that any equity Mr. Kolinski built through his down payment, and any renovations completed by him does not come close to what his half of the household bills would have been.

34Based on her banking and other records, Ms. Mansfield’s estimates as to the expenses paid by her are as follows:

a. $23,086 for utilities; b. $5,391 for insurance; c. $46,183 for mortgage payments; and d. $13,732 for property taxes.

These are expenses paid by her from January 2017. These do not include the credit card charges or renovations. Mr. Kolinski’s share of the household expenses is $44,196. Mr. Kolinski argues that Ms. Mansfield has not provided proof of the total amount spent by her, and the amount is not accurate given his payment of expenses until November 2017 and contributions thereafter.

35During this same period Ms. Mansfield’s evidence is that she transferred to Mr. Kolinski $9,130.88 and he transferred to her the sum of $5,160. In re-examination Ms. Mansfield testified that these money transfers had nothing to do with the Home. This was money the parties would transfer to each other to purchase substances.

36Mr. Kolinski also gave Ms. Mansfield $10,000 from his personal injury settlement. She testified that he was supposed to give her $20,000 but she never received the second payment. Mr. Kolinski says this was his money, and Ms. Mansfield was not involved in his claims against his insurer and had no claim against these funds. Ms. Mansfield believed otherwise. No documents were provided to clarify.

37Mr. Kolinski’s evidence was that the $10,000 he paid to Ms. Mansfield was to help her with the mortgage, bills, and anything they needed for the Home. In addition, he says he e-transferred to her $8,453.70 between July 2019 and August 2021. Contrary to Ms. Mansfield’s evidence as to the intent behind the monetary transfers, Mr. Kolinski says that this money was for reimbursement for household expenses.

38Mr. Kolinski’s oral evidence is that even after he was injured, he continued to pay for his share of the expenses. The mortgage was paid from Ms. Mansfield’s account, but he continued to provide her with money. Even when he had no income at all, he had equity from the sale of his previous home that was used to fund his contribution to the household. Other than the cash payments I have already referred to, no further evidence is provided as to the amount of payments made.

39Ms. Mansfield acknowledges that some of the money used to pay the household expenses came from the parties’ joint line of credit. There is approximately $34,400 owing on the joint line of credit. With respect to the disputed amounts, Ms. Mansfield’s evidence in cross-examination was that the entire $5,570 in charges she made to the joint line of credit from August 2020 to December 2020 were for expenses pertaining to the Home. Mr. Kolinski denies this and argues that this amount should be Ms. Mansfield’s responsibility alone.

Issues:

40The issues as framed by the parties are:

a. Whether Ms. Mansfield is unjustly enriched as a result of Mr. Kolinski’s monetary contributions to the home, and whether he should be credited for the down payment on the home? Was the down payment a gift? b. Whether the division of the jointly held line of credit should be equal? c. Whether the Applicant is entitled to occupation rent and an accounting for rent post-separation? d. Should the Home be sold? If so, on what terms?

Analysis – Law and Discussion:

Unjust Enrichment or Resulting Trust?

41While Mr. Kolinski has pleaded unjust enrichment and resulting trust, this case was argued primarily on the basis of unjust enrichment with some elements of resulting trust mixed into those arguments. The Respondent’s primary position is that the Applicant will be unjustly enriched should the equity in the Home be divided equally without consideration for the down payment made solely by him. He seeks a monetary remedy as opposed to the constructive trust that was pleaded.

42In support of his position, the Respondent relies on various cases, but primarily the decision of Heeney J., in Kamermans v. Gabor, [2018] O.J. No. 4570, 2018 ONSC 5241 (“Kamermans”).

43In Kamermans, the respondent contributed the entire down payment toward the purchase of the home in which the parties lived as common law spouses. His evidence was that it was his intention to receive a refund of the down payment in the event of a separation. The applicant denied any such discussion. As with the case at hand, the issue to be determined was whether the respondent should be repaid the down payment from the net sale proceeds of a jointly owned home before the balance was divided equally.

44In Kamermans, as with this case, the respondent relied on unjust enrichment and resulting trust principles. But in both the Kamermans case and with respect to Mr. Kolinski’s claims, there is no allegation that the intention was for the other party to hold their entire interest in trust for him so that he is the sole owner. The claim is for repayment of the down payment before proceeds are divided.

45For this reason, and because in Kamermans resulting trust had not been pleaded, Heeney J., found at paragraphs 30 and 31, that the case must be analyzed and decided as a claim of unjust enrichment and constructive trust, and not as a claim for resulting trust. Citing the Supreme Court of Canada decision in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 23 and 82, Heeney J., concluded that unjust enrichment and constructive trust was a more flexible, and preferable method of “responding to the inequities brought about by the breakdown of a common law relationship…”.

46The challenge facing me in this case is that resulting trust has been pleaded, although the relief sought, and arguments of the parties focus on unjust enrichment with resulting trust principles mixed in. These concepts are often intertwined in some caselaw given that they are frequently offered as alternative arguments, but the analysis of each is quite different. As a result of the intertwining of these concepts, as opposed to arguments on an alternative basis, I was uncertain as to the correct legal analysis to adopt.

47In MacIntyre v. Winter, 2021 ONCA 516, 158 O.R. (3d) 321, the claim was for repayment of down payment monies was based on resulting trust. The property had been sold, and similar to Mr. Kolinski’s claim, the appellant did not seek all of the net sale proceeds. Recognizing the joint contribution made to the equity realized from the property over and above his down payment made on this and a prior property (that was invested into this property), the appellant only sought to recover the amount of his initial contributions.

48The unjust enrichment analysis adopted by the parties is an attractive method of analyzing and deciding the claims of the parties given that:

a. Despite the pleadings, in argument Mr. Kolinski seeks only the return of his down payment and not beneficial ownership of Ms. Mansfield’s interest. b. Kerr v. Baranow suggests that unjust enrichment provides more flexibility to deal with cases such as this. c. More importantly, Ms. Mansfield may have approached the case somewhat differently if the case and relief sought was purely resulting trust and therefore fairness issues arise. She has not pleaded the relief of unjust enrichment and constructive trust as defences to a resulting trust claim. Whether this is because of how the case has been approached by the parties, I am uncertain. I do not know the approach adopted by the parties throughout the proceeding. Also, while she makes some references in her arguments to defending a resulting trust claim, she approaches the case primarily on the basis of a mutual conferral of benefits that negates any unjust enrichment or any necessity for relief for unjust enrichment.

49Based on the claims made, I am concerned as to whether the correct analysis should be approached based on a resulting trust claim by Mr. Kolinski with an unjust enrichment claim on the part of Ms. Mansfield. Ms. Mansfield, however, did not plead unjust enrichment/constructive trust. Possibly for the reasons stated above she did not see the need, even though she makes the argument in her submissions that a resulting trust or preferential share of equity in the Home will create an unjust enrichment in favour of Mr. Kolinski. I have considered the analysis both from a resulting trust with competing unjust enrichment claims, and that which was argued by the parties, and concluded that the result is the same. Regardless of which way I approach the claim of Mr. Kolinski, my conclusion is that the most equitable result is for the parties to divide the accumulated equity in the home equally.

Unjust Enrichment:

50The doctrine of unjust enrichment provides for the restoring of a benefit that justice does not permit one to retain: Kerr v. Baranow, at para. 31.

51In Kerr v. Baranow, the Supreme Court of Canada reiterated that there are two stages in the analysis of unjust enrichment claims:

a. Establishing the claim; and b. If unjust enrichment is found, determining the remedy, either monetary or proprietary.

52To establish the unjust enrichment claim, the three elements that must be proven by Mr. Kolinski are:

a. The enrichment element requires him to establish that he gave something of benefit to Ms. Mansfield, which she retained; b. The corresponding deprivation element requires him to establish that Ms. Mansfield was not only enriched, but that the enrichment corresponds to a deprivation suffered by him; and, c. The absence of juristic reason element requires him to establish that there is no reason in law or justice for the retention by Ms. Mansfield of the benefit in issue, such that the benefit is unjust in the circumstances.

Kerr v. Baranow, at paras. 36-41.

53With respect to the first element, I find that Ms. Mansfield was enriched when Mr. Kolinski paid the full down payment for the purchase of the Home. There is no dispute that these funds belonged to Mr. Kolinski and Ms. Mansfield had no claim to them. Given that title was taken as joint tenants, she instantly became the beneficiary of the equity created by the down payment.

54Mr. Kolinski was correspondingly deprived of an amount equal to one-half of the down payment when Ms. Mansfield became the joint owner of the home and entitled to one-half the equity that was created by virtue of Mr. Kolinski’s down payment.

55The third element is that the benefit and corresponding detriment must have occurred without a juristic reason, meaning that there is no reason in law or justice for Ms. Mansfield’s retention of the benefit conferred on her by Mr. Kolinski.

56Juristic reasons to deny recovery may include (but not be limited to) the intention to make a gift, a contract, or a disposition of law.

57The parties have raised the issue of whether there was a gift. I am satisfied that there is no evidence that Mr. Kolinski intended to make a gift of one-half the down payment funds.

58With respect to the intention of Mr. Kolinski to make a gift, he has testified that he always expected to receive this money back as an “investment” when the Home was purchased. The intention was to purchase the Home, renovate it, and sell it for a profit. He was to receive his money that he put down, and the parties would use the remaining money for the purchase of a new home. Based on the evidence before me, I have no reason to doubt that this would have been his intention. I find there is no evidence of intention to make a gift.

59In considering the juristic reason stage of the analysis, the court may also take into consideration the legitimate expectation of the parties and moral and policy-based arguments about whether the enrichment is unjust: Kerr v. Baranow, at para. 44. This allows for a more flexible, broader consideration of “intent” than that associated with the donative intent required for a gift.

60With respect to the reasonable expectations of the parties, Mr. Kolinski argues that there was a verbal agreement between parties, made at the time of purchase of the Home, for repayment to him of his down payment. He argues that this establishes there was no gift. I find that there is insufficient evidence to conclude that there was. There is little more than ‘he said, she said’ with respect to this issue, with each party adopting versions of events that best suit their case. Mr. Kolinski says there was an agreement at the time the Home was purchased, while Ms. Mansfield says there was no discussion at all. What is undisputed is that there was no written agreement.

61The evidence with respect to the conversation the parties are alleged to have had with the realtor after separation is also not persuasive as whether there was or was not an expectation that the equity arising from the down payment would belong solely to Mr. Kolinski. I take from that text conversation that Ms. Mansfield was only willing to agree to a reimbursement of Mr. Kolinski’s down payment if she received credit for her mortgage payments made. This is consistent with her position in this proceeding. It is not proof of any agreement or expectation for the reimbursement of the down payment. If anything, Ms. Kolinski’s contributions to the Home similarly, by itself, the lack of such agreement does not establish a juristic reason for the retention of the benefit by Ms. Mansfield.

62In this case, Ms. Mansfield also argues that there is a mutual conferral of benefits; she received equity in the Home from Mr. Kolinski’s down payment, but he received much more by her payments of the household bills after his accident. A mutual conferral of benefits may be considered at the juristic reason stage only if the provision of reciprocal benefits constitutes relevant evidence of the existence (or non-existence) of a juristic reason for the enrichment. The fact that the parties have conferred benefits on each other may provide relevant evidence of their reasonable expectations. Otherwise, it is best considered at the defence and/or remedy stage of the analysis. This recognizes that the mutual conferral of benefits by the parties, by itself, will not deprive a party of an unjust enrichment claim, but rather, the benefits received by the claimant of the unjust enrichment may be used to reduce the award to which they are entitled: Kerr v. Baranow, at paras. 101, 104, 109.

63In this case, I find that there is no juristic reason for the enrichment and corresponding deprivation, and therefore there was an unjust enrichment of Ms. Mansfield, and suffered by Mr. Kolinski, when Ms. Mansfield became the beneficiary of one-half the equity in the Home created solely by Mr. Kolinski’s down payment.

Remedy:

64Once the claim is established, the appropriate remedy must be determined; monetary or proprietary. The object of the remedy is to have the party who has been unjustly enriched “repay or reverse the unjust enrichment”: Kerr v. Baranow, at para. 46.

65Monetary awards are the preferred remedy and must be considered before a proprietary remedy is considered. A proprietary award such as a constructive trust should only be considered if a monetary award is insufficient or inappropriate.

66The primary relief sought by Mr. Kolinski is monetary in the form of repayment of his down payment as either a credit against his purchase of Ms. Mansfield’s interest in the Home or from net sale proceeds.

67The appropriate method of calculating the monetary remedy for an unjust enrichment claim must be determined. Quantification of a monetary remedy may be performed on either a value received, or value survived basis. Value received refers to the value that a person has received from the other person's contributions, while value survived refers to the value that the other person has retained as a result of those contributions.

68When the contributions of both parties over time have resulted in an accumulation of wealth and following the breakdown of the relationship one party retains a disproportionate share of the assets that are the product of their joint efforts, the relationship may be characterized as a “joint family venture”. As Cromwell J., noted in Kerr v. Baranow, at para. 7:

7…[W]here both parties have worked together for the common good, with each making extensive, but different, contributions to the welfare of the other and, as a result, have accumulated assets, the money remedy for unjust enrichment should reflect that reality.

69For damages to be quantified on a joint family venture basis, a claimant must show two things: first, a joint family venture; and second, a link between the claimant’s contribution to the venture and the accumulation of assets or wealth: Farkas v. Bedic, 2016 ONCA 82, at para. 35, citing Kerr v. Baranow, at para. 87. This is not intended to be a line-by-line bookkeeping exercise. In Kerr v. Baranow, at para. 48, Justice Cromwell recognized the challenge associated with the parties and the court trying to “create, retroactively, a notional ledger to record and value every service rendered by each party to the other”. This applies equally to monetary contributions made over time.

70At para. 81 of Kerr v. Baranow, Cromwell J., noted that:

[81]…The wealth created during the period of cohabitation will be treated as the fruit of their domestic and financial relationship, though not necessarily by the parties in equal measure. Since the spouses are domestic and financial partners, there is no need for “duelling quantum meruits”. In such cases, the unjust enrichment is understood to arise because the party who leaves the relationship with a disproportionate share of the wealth is denying to the claimant a reasonable share of the wealth accumulated in the course of the relationship through their joint efforts. The monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the claimant to the accumulation of the wealth.”

71To determine whether the parties have been engaged in a joint family venture, the circumstances of each relationship must be considered. The court is required to consider all relevant circumstances, including factors relating to mutual effort, economic integration, actual intent, and priority of the family. The court applies these factors to determine whether the parties formed a true partnership, working jointly towards important mutual goals: Farkas v. Bedic, at para. 36, citing Kerr v. Baranow, at para. 89.

72Generally, when considering a remedy based on joint family venture, it is appropriate to look to all the family assets rather than just one of them to determine the value of a claimant’s contributions to the family venture: Kerr v. Baranow, at para. 68. Having said this, courts have considered the joint family venture concept with respect to one asset alone: Kamermans, at para. 55.

73Overall, the remedy should match, as best as possible, the extent of the enrichment unjustly retained: Kerr v. Baranow, at para. 73.

74Mr. Kolinski’s submissions do not specify the basis on which he seeks a remedy. While his argument and the amount sought lends itself to a value received approach, he relies on the result in Kamermans, which determined the case based on joint family venture. Fortunately, in this case the result is the same regardless of the analysis conducted.

75I find that the equity accumulated in the Home was accumulated because of the joint efforts of the parties as follows:

a. Mr. Kolinski paid the down payment of $27,785.99 and deposit of $1,000. b. From the date of purchase until the second bi-weekly mortgage payment required in November 2017, Ms. Kolinski paid the mortgage. This totalled $15,044.33. c. I accept Ms. Mansfield’s evidence that she was paying the expenses for the Home, other than the mortgage, from the date of purchase until November 2017. Mr. Kolinski’s bank accounts statements attached to his affidavit show no such expenses, while Ms. Mansfield’s do. Her bank account statements, and her summaries reveal monthly expenses such as property taxes, insurance, water bills, Reliance home water heater, gas, cable, and hydro. Most months these expenses are roughly equal to the monthly mortgage payment (noting they fluctuate month to month). d. From January 2017 to December 2020, I am satisfied that Ms. Mansfield paid $88,382 on account of joint household expenses. While not all bank statements were provided for this period, I am satisfied based on all of the evidence that these were expenses paid by her. I have only one statement for the period prior to January 2017 showing an additional approximately $450 in utility expenses. e. The tenant paid approximately $24,000 in rent, although he does not say who he paid it to. I find that he paid at least $16,500 to Ms. Mansfield. I further find that it is likely that both parties received some of the rent from the tenant. The tenant’s evidence is that he paid it to whichever of the parties was around. He doesn’t recall who exactly he made each payment to. If the rent had been paid exclusively to Ms. Mansfield, presumably that would have been easier for the tenant to recall.

76Based on the foregoing findings, even deducting from what Ms. Mansfield paid the $10,000 Mr. Kolinski paid her from his insurance settlement, and even if I were to attribute the full $24,000 in rent to her (which is likely unfair based on Mr. Tyson’s evidence), Ms. Mansfield’s contributions, not including any extra amounts paid from her inheritance for which there was no evidence, exceed Mr. Kolinski’s. The parties come closer to equal contributions if one factors in the charges made to the joint line of credit by Ms. Mansfield in 2020. It is impossible for me to know what those charges were for based on the evidence I have. I find that they were charges made during the relationship. I see no basis for making an order requiring Ms. Mansfield to be solely responsible for those amounts. I would feel differently if they were charges incurred post-separation and unrelated to joint expenses.

77With respect to the other cash transfers that occurred over time, each party transferred money to the other, whether it was for household expenses or otherwise is impossible for me to determine based on the evidence before me. It is likely that some of the money was for household expenses of some nature. Whatever the money was for Mr. Kolinski’s transfers do not exceed Ms. Mansfield’s.

78With respect to the credit card charges to Ms. Mansfield’s account, I accept that Mr. Kolinski made charges. What those charges were for, what was reimbursed with cash or other payments, and what was paid from the joint line of credit towards the credit card is impossible for me to reconcile based on the evidence I have. I do accept that Mr. Kolinski charged more than what Ms. Mansfield received back, but I do not have sufficient evidence to be able to assign a dollar amount to his unpaid charges. The fact that the parties did not see fit to reconcile these, or the joint line of credit charges during the relationship is further indicative of the joint approach they took to their finances.

79With respect to the renovations, I find that the parties contributed jointly to the material costs either from their own funds, or the joint line of credit. I have no basis for knowing how Mr. Kolinski arrived at the estimated 250-300 hours spent. I accept that he likely spent a considerable number of hours renovating the home. I do not know what those efforts were worth or what they added to the value of the property. I do know that post-separation Ms. Mansfield has continued to make payments for a home that she still owns, but was no longer living in. She did this until January 2023. While she will benefit from any reduction in the principal amount of the mortgage, she will not recover the interest, taxes, and insurance payments she made for a home that she has not lived in since March 2021. I do appreciate that Mr. Kolinski has made all the payments for the home since January 2023, but he has also had the benefit of living there and chose to do so while Ms. Mansfield’s preference was to have the home sold.

80Overall, based on the foregoing, I find that even though Mr. Kolinski’s initial down payment on the home enriched Ms. Mansfield to his detriment, over the duration of the period of ownership of the Home the contributions of the parties have at the very least, been equal, but more likely been that Ms. Mansfield has made a slightly greater contribution. In these circumstances, it would not be appropriate to award a monetary remedy to Mr. Kolinski for the initial unjust enrichment. The unjust enrichment was remedied during the relationship of the parties with the contributions made by Ms. Mansfield, such that the most equitable result is for the parties to share in the accumulated equity of the home.

Resulting Trust:

81The claim was pleaded as a resulting trust claim, even though it was argued as unjust enrichment, but with some resulting trust arguments intertwined. While I would have found a resulting trust in favour of Mr. Kolinski, I would have also found a competing unjust enrichment claim on the part of Ms. Mansfield with a remedy designed to ensure the parties share the equity in the property jointly. Again, this reflects their joint contributions over the duration of ownership.

82Resulting trusts in a domestic relationship traditionally arise in two types of situations:

a. The gratuitous transfer of property from one partner to the other; or b. The joint contribution by two partners to the acquisition of property, title to which is in the name of only one of them.

83In this case, Mr. Kolinski has satisfied the onus on him to demonstrate that he made a gratuitous transfer of a one-half interest in the Home to Ms. Mansfield when he alone paid for the property, but title was transferred into their joint names. As a result, a rebuttable presumption of resulting trust arises: Andrade v. Andrade, 2016 ONCA 368, at para. 59; Pecore v. Pecore, 2007 SCC 17, [2007] 1 SCR 795, at para. 24.

84Having satisfied this onus, unless Ms. Mansfield can rebut the presumption of resulting trust, then Mr. Kolinski becomes be the beneficial owner of Ms. Mansfield’s one-half legal interest in the Home. Ms. Mansfield will hold her one-half interest in trust for Mr. Kolinski.

85To rebut the presumption of resulting trust Ms. Mansfield must demonstrate on a balance of probabilities that Mr. Kolinski did not intend for her to hold her interest in the Home in trust for him, but rather a gift was intended at the time of the transfer. This requires clear, convincing, and cogent evidence: Pecore v. Pecore, at para. 24; McIntyre v. Winter, 2021 ONCA 516, at paras. 24 – 28.

86In determining whether the transfer was intended to be a gift, it is the intention of the transferor (Mr. Kolinski) that is relevant, and not the intention of both parties: Pecore v. Pecore, at paras. 43-44; Kerr v. Baranow, at para. 18; McIntyre v. Winter, at para. 24.

87I have already made a finding that there was no intention for a gift. That finding is equally applicable to the resulting trust analysis.

88Based on the findings I have already made I find that permitting Mr. Kolinski to retain a full legal and beneficial interest in the Home will result in an unjust enrichment. The appropriate remedy would be a monetary remedy unless Ms. Mansfield could demonstrate that as a co-mortgagor her interests are best protected if she is also on title. I would have required further submissions in this regard.

Occupation Rent:

89Ms. Mansfield has claimed occupation rent. Mr. Kolinski opposes the request.

90A claim for occupation rent by one spouse against the other will be granted in exceptional cases: Ombac v. George, 2015 ONSC 1983, at para. 33.

91The relevant factors in determining whether to award occupation rent include: the timing of the claim, the duration of the occupancy, the inability of the non-resident spouse to realize her equity in the property, any reasonable credits to be set off against occupation rent, and any other competing claims in the litigation: Griffiths v. Zambosco, 2001 ONCA 24097, at para. 49.

92This list was expanded upon in Higgins v. Higgins, 2001 ONSC 28223 to include other factors such as the conduct of the spouses, whether the non-occupying spouse moved for sale, whether the occupying spouse paid the mortgage and other carrying costs for the home, the presence of children in the home, and whether the occupying spouse has increased the selling value of the property.

93I find that occupation rent is not appropriate on the circumstances of this case. In so finding, I have considered:

a. I do not have sufficient evidence to conclude that Mr. Kolinski’s conduct forced Ms. Mansfield to leave the Home. Ms. Mansfield was not specific in her evidence that Mr. Kolinski’s anger and aggression forced her to leave. She did not specify what conduct constituted “anger and aggression”. Mr. Kolinski has denied such behaviour. While I have no doubt that the situation in the Home was unpleasant as the relationship was breaking down, I cannot conclude anything more than that. While this was an argument advanced by Ms. Mansfield, given the lack of evidence it was not determinative of the occupation rent issue. b. Ms. Mansfield did bring her application seeking a sale of the home in September 2021. It was Mr. Kolinski’s claims with respect to the down payment that have delayed the sale of the Home. c. While these issues were being resolved, Ms. Mansfield has spent money paying mortgage, taxes, and insurance for the Home. She did so until January 2023. d. Having said this, Mr. Kolinski has assumed sole responsibility for all expenses for the Home, including the mortgage since January 2023 that he is not receiving additional credit for in the sharing of the equity in the Home. e. Mr. Kolinski has performed renovations on the Home for which he receives no additional credit in the sharing of the equity in the Home. f. All these factors, including Ms. Mansfield’s contributions post-separation have been factored into the unjust enrichment analysis in determining that the most equitable result in an equal sharing of the accumulated equity to the date of sale (or transfer). g. The evidence is insufficient to satisfy me that Mr. Kolinski has had a tenant living in the Home. The fact that Ms. Mansfield periodically saw Mr. Kolinski’s cousin’s car in the driveway does not prove a tenancy. He was not subpoenaed to give evidence at trial. Furthermore, what other people told Ms. Mansfield they saw is inadmissible hearsay that I cannot rely on in determining this issue. Neither occupation rent nor an accounting for rent is justified based on the evidence I have. h. Even if an occupation rent claim could be established, the evidence I have as to an appropriate amount is insufficient. A list of homes and their rents with little more than that, does not assist.

Sale of the Home:

94The Partition Act, R.S.O. 1990, c. P.4, s. 2 provides that all parties having an interest in land, whether it is legal or equitable, may suffer partition or sale of the land.

95Section 3(1) of the Partition Act gives a person who has an interest in land the right to bring an action or application for the partition or sale of such land under the directions of the court.

96The only discretion a court has, to refuse a sale is if there has been malicious, vexatious, or oppressive conduct on the part of the party requesting the sale: Osborne v. Myette, 2004 ONSC 7501, at para. 11.

97There has been no such conduct and no basis to refuse Ms. Mansfield’s request for a sale.

98Mr. Kolinski would like to remain in the Home and asks that a sale be delayed. He seeks the following orders:

a. That the property not be listed for sale until an order of this Court is granted. b. That the listing price shall be set by the parties, in conjunction with a mutually acceptable realtor who is knowledgeable of property values in the area where the property is situated. If the parties cannot agree on a listing agent, either party may apply to the Court for an Order confirming the listing agent. c. If they cannot agree on a listing price, the parties shall share the cost of another certified appraisal. d. Mr. Kolinski shall make an offer before the house is listed. e. The listing agreement shall provide for a listing for a period of not less than 90 days. f. Mr. Kolinski may submit further offers after the Home is listed if he wishes. g. Both parties shall be notified forthwith by the realtor of all offers to purchase that are made. h. An offer for at least the amount of the listing price may be accepted but shall not be less than the listing price. i. Both parties shall cooperate in all matters related to the sale. j. Mr. Kolinski shall fully cooperate with all showings, make the home available on notice for showings, and shall maintain the home in a good and marketable condition. k. Proceeds of sale shall be divided as determined as per court order.

99Ms. Mansfield seeks the following orders:

a. Immediate listing for sale on a Multiple Listing Service (MLS) with a realtor; b. The parties shall jointly select a realtor; c. The Home shall be listed at a price recommended by the realtor; d. The parties shall not refuse a reasonable offer and shall fully cooperate with all aspects of the sale, including the signing of any necessary documents; and e. The parties shall maintain the Home in a suitable condition for showing.

100There is no reason to delay the sale and require a further order of the Court before listing the Home. The parties have had enough court involvement and any order pertaining to the sale should be crafted to minimize further involvement. I understand that Mr. Kolinski would like to purchase Ms. Mansfield’s interest in the Home. There will be a short period of time for him to make an acceptable offer to purchase, failing which the Home shall be listed. Mr. Kolinski will thereafter be free to make offers if he chooses, but once an agent is involved that will require the payment of commissions.

Order:

101It is ordered that:

a. Within 14 days of the release of this decision, the Home shall be listed for sale on a Multiple Listing Service (MLS) with a mutually agreeable realtor, at a price recommended by that realtor. b. Mr. Kolinski shall have the option prior to the listing, and at any time prior to the sale of the Home, to make an offer for the purchase of Ms. Mansfield’s interest. The terms of said offer shall require a closing date not later than 30 days following acceptance of the offer and shall be conditional upon Mr. Kolinski assuming responsibility for the mortgage and joint line of credit. Ms. Mansfield’s one-half share of the outstanding balance on the joint line of credit shall be factored into the amount Mr. Kolinski owes her on account of her interest in the Home. c. Once the Home is listed for sale, the parties shall not refuse a reasonable offer and shall fully cooperate with all aspects of the sale, including showings, maintaining the Home in a suitable condition for showing, and the signing of any necessary documents. d. Upon the sale of the Home, the joint line of credit shall be paid from the net sale proceeds. Any remaining proceeds shall be divided equally between the parties. e. If Ms. Mansfield has any personal belongings remaining in the Home, she shall make mutually agreeable arrangements to retrieve them prior to the closing of the sale, or prior to the closing of Mr. Kolinski’s purchase of her interest in the Home. f. Pending sale, and for so long as he continues to live there, Mr. Kolinski shall continue to be responsible for payment of all expenses pertaining to the Home, save and except any capital improvements required and mutually agreed upon, and Ms. Mansfield shall not be entitled to payment of occupation rent. In the event of default by Mr. Kolinski of payment of expenses pertaining to the Home during his occupancy, they shall be paid from his share of the net sale proceeds. g. Further directions of the Court may be sought in the event of any issues arising out of the sale of the Home.

102If the parties cannot agree on costs, written submissions shall be made as follows, failing which costs shall be deemed to have been resolved:

a. The party claiming costs shall deliver their submissions no later than February 26th, 2024, limited to five pages (double spaced), which limit shall not include a Bill of Costs, dockets, offers to settle, and relevant caselaw. b. The responding party shall deliver their submissions no later than March 22nd, 2024, limited to five pages (double spaced), which limit shall not include a Bill of Costs, dockets, offers to settle, and relevant caselaw. c. Any reply shall be limited to two pages (double spaced) and delivered no later than April 5th.