I. Introduction

[1] The trial before me proceeded in person over four days, followed by amendments to the pleadings and supplemented by written submissions.

[2] Towards the end of the trial, the plaintiffs brought a motion to amend the statement of claim. The amendments were significant, including substituting the name of the plaintiff Antony David in the place of the plaintiff Maria David. The defendant did not oppose the amendments. Accordingly, leave was granted for the plaintiffs to bring the motion and the amendments were granted on terms. The statement of claim was amended on March 8, 2023; the statement of defence and counterclaim was amended on March 13, 2023. The plaintiffs filed an amended reply and amended statement of defence to counterclaim dated March 31, 2023.

[3] The plaintiffs’ claim and the defendant’s counterclaim involve an investment property and a dispute about each party’s ownership interest. The parties are related to each other either by blood or marriage. Maria David and Antony David are mother and son. Dan Stiuca is the spouse of Ms. David, though they have been separated for over a decade. There is no prospect of reconciliation. A marriage contract between them is at the centre of the litigation (the “Marriage Contract”). Mr. David says there is another document, which he drafted, which governs the rights of the parties.

[4] The property at the centre of the dispute is municipally known as 55 Cleta Drive, Toronto, and legally described as: Part Lot 50, Plan 3507, as in TB597746; Scarborough, City of Toronto, being PIN 06436-0459 LT (the “Property”). Until a week after the statement of claim was issued, Ms. David and Mr. Stiuca were the registered owners of the Property. Mr. Stiuca asserts that he is the legal and beneficial owner of 33 percent of the Property. The plaintiffs assert that he only has an 11 percent interest, commensurate with the amount he contributed to the downpayment.

II. Evidentiary Issues at Trial

[5] The evidence in chief of the witnesses was provided primarily by way of affidavit. I raised the following issues with the affidavits. Both affidavits attached inadmissible evidence as exhibits, which included the affidavits of documents and transcripts of the examination for discovery of the adverse party, among other things. By far, the most problematic affidavits were the first two affidavits of Mr. David which merely adopt the content of his mother’s affidavits as his own. His mother’s affidavit at trial annexes numerous documents which she was not able to prove and would be otherwise inadmissible absent an agreement between the parties or the document being proven.

III. Nature of the Action

[6] The plaintiffs seek damages in the amount of $92,802.49 or such other amount for contributions required to be made by the defendant to the Property, an order declaring that the defendant holds his interest in the Property in either a resulting trust as trustees for the plaintiffs or a constructive trust for the plaintiffs, an order directing the defendant to transfer his interests to the plaintiffs, or alternatively, an order for partition and sale, and damages for lost opportunity for preventing the plaintiffs from using the Property for collateral security.

[7] Mr. Stiuca pleads that one third of the legal ownership, benefits, and entitlements with respect to the Property are his, and two thirds belong to Ms. David. He relies upon the Marriage Contract and denies that Mr. David has any legal or beneficial interest in the Property. He pleads that Mr. David stands in the same shoes as Ms. David and is estopped from claiming any legal or equitable interest in the Property. In the amended statement of defence and counterclaim, Mr. Stiuca denies that he was unjustly enriched by Mr. David and further pleads that Mr. David was not coming to the court with clean hands.

IV. Nature of the Counterclaim

[8] Mr. Stiuca counterclaims for an order for partition, an accounting regarding the Property, an order of replevin, an order directing a reference to an Associate Judge to conduct the sale of the Property, unspecified damages in the amount of $300,000.00, net rental income in the amount of $26,982.63 to the end of 2022, plus any amounts accruing thereafter. Mr. Stiuca also seeks judgment declaring him to be the legal and beneficial owner of an undivided 33 percent interest in the Property, and judgment declaring the charge in favour of Esther Gerstel Inc. to be the sole and complete responsibility of the plaintiffs.

[9] In their reply and amended statement of defence to counterclaim, the plaintiffs plead, among other things, that Mr. David is not bound by the terms of the Marriage Contract. The plaintiffs plead that Mr. Stiuca’s right to replevin as well as his claim for a share of the net income or an accounting are barred by the provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., as amended.

V. Background

[10] Ms. David and Mr. Stiuca married on January 19, 2002, in Toronto. Both had been previously married. Ms. David was a widow with an adult son, Mr. David. Mr. Stiuca divorced on February 15, 2001. He too had a child, an adult daughter, Diana Bucur, who was living in Romania. Mr. Stiuca had emigrated from Bucharest, Romania in 2001.

[11] The parties entered into the Marriage Contract on October 10, 2002. Mr. Stiuca pleads in his Statement of Defence that the Marriage Contract is dated February 1, 2002. In her Reply, Ms. David acknowledges she entered into a marriage contract, and does not deny the February 2002 date. The Marriage Contract indicates that Ms. David was employed with the International Group earning $34,000 a year and Mr. Stiuca was employed with Precision Products Inc., earning $22,000 a year. The document also indicates that Mr. David, 28 years old at the time, was living in the matrimonial home with his girlfriend Sandra, who was 26 years old. The Marriage Contract, discussed below, deals with the division of property upon breakdown of the marriage, as well as the matrimonial home. The matrimonial home was located at 39 Natal Avenue in Toronto and was owned by Ms. David.

[12] The Property was purchased on August 29, 2006, for $289,000.

[13] The Transfer document registered in the Land Registry Office #66 as Instrument No. AT1270641 indicates that on September 29, 2006, the Property was transferred from “Silvana, Sara” to “Stiuca, Dan” and “David, Maria”. The Parcel Register records the Property transfer from Sara Silvana, transferor, to the transferees, Dan Stiuca and Maria David, as tenants in common with Mr. Stiuca having a “33% share of interest” and Ms. David having “67% share of interest”. The consideration for the transfer was noted to be $289,000.

[14] The parties separated on April 1, 2013.

[15] The statement of claim was issued March 14, 2019.

[16] On March 20, 2019, six days after the statement of claim was issued, Ms. David transferred her interest in the Property to Mr. David, for no consideration.

[17] On April 10, 2019, the defendant delivered a statement of defence and counterclaim.

[18] On May 24, 2019, Mr. David granted a charge on the Property to Esther Gerstel Inc. for $105,000. That charge was subsequently discharged on October 10, 2019.

[19] On October 10, 2019, Mr. David granted another charge on the Property to Esther Gerstel Inc. for $400,000, which remains on title.

VI. The Marriage Contract

[20] Both parties take the position that they entered into the Marriage Contract on February 1, 2002. However, the Marriage Contract was not signed until October 10, 2002. The Marriage Contract indicates that it was being entered into pursuant to s. 52 of the Family Law Act, R.S.O. 1990, c. F-3 (the “FLA”). Both parties acknowledged that they received independent legal advice and signed the Certificate of Legal Advice. Neither party challenges the validity or the enforceability of the Marriage Contract.

[21] Article 3 of the of the Marriage Contract identifies the purpose of the Contract and indicates that the parties’ intention was to avoid any rights and obligations relating to property and support. It reads as follows:

Purpose of the Contract

3.1 Each party intends by this agreement:

3.1.1 To avoid any rights and obligations relating to property which arise or which may in future arise at law or in equity from their marriage;

3.1.2 To provide that none of the property of either party will be divided between them except according to ownership; and

3.1.3 To confirm that neither party will have an entitlement to support from the other.

[22] Article 10 of the Agreement indicates that rights of ownership govern the division of property between the parties and property is divided in accordance with ownership. Each party agreed to waive and release all rights under Part I of the FLA, the common laws or other statutes. The relevant provisions read:

Rights of Ownership Govern Property Division

10.1 Each party waives and releases all rights under Part 1 of the Family Law Act and any common laws or other statutes and accordingly each party agrees that:

10.1.1 rights of ownership govern the division of property between the parties, and there shall be no division of property except according to ownership.

[23] Article 12 of the Agreement deals with deemed ownership of property in various circumstances; it stipulates that the rule of law relating to the presumption of resulting or constructive trust shall not apply in regard to ownership between the parties. The relevant provisions state as follows:

Deemed Ownership

12.1 Subject to an appropriate instrument in writing:

12.1.1 the rule of law applying the presumption of resulting trust shall not apply in questions of ownership of property between the parties;

12.1.2 property transferred from one party to the other shall be deemed to be owned by the party to whom the property is transferred;

12.1.3 property held in the name of one party shall be deemed to be owned by that party which shall be and remain the sole and exclusive property of that party so long as the property remains in his or her name;

12.1.4 property held in the names of both parties as joint tenants shall be deemed to be owned by the parties as joint tenants; and

12.1.5 money on deposit in the names of both parties shall be deemed to be in the names of both parties as joint tenants.

[24] Under the Marriage Contract, each party agreed to waive all rights, entitlement, and claims relating to any equitable claims to property by constructive trust, implied or resulting trust, or by any other doctrine in law, in equity or by statute. They also agreed to waive and release any equitable ownership interest in property or the value of property, and agreed to discharge the estate of the other. The relevant provisions read as follows:

No ownership unless legal ownership

13.1 Except as provided by the contract herein, each party:

13.1.1 waives all rights and entitlement and releases and discharges the other and his or her estate from all claims that he or she has on the effective date of this contract or which he or she may later acquire in equity by way of constructive, implied or resulting trust, or by way of any other doctrine in equity, and at law under the Family Law Act or any other statutes or common law and the laws of any jurisdiction to compensation and any interest in property or the value of property owned by the other by reason of:

(a) the transfer of property to the other without any or any adequate payment or other consideration;

(b) work, money or money’s worth contributed to the acquisition, management, maintenance, operation or improvement of the property; or

[25] The Marriage Contract also specifically dealt with the rights of the parties to deal with separate property in Article 14. The relevant section reads as follows:

Right to Deal with Separate Property

14.1 Each party may dispose of or encumber or otherwise deal with his or her property as he or she deems fit, free from any claim by the other, as if he or she were unmarried.

[26] The Marriage Contract also dealt with the matrimonial home. Article 7.1 states:

7.1 Maria will pay all expenses for the matrimonial home. Without limiting the generality of the hereinbefore statement, Maria will be responsible and pay for all realty taxes, insurance, mortgage payments, repairs and renovations. The parties agree to pay in proportion to their income their ordinary and household living expenses. At no time will Dan be obliged to pay any occupation rent or other expenses to Maria while residing in the matrimonial home unless Maria demands same in writing. Maria will be entitled exclusively to any and all rent derived from the matrimonial home.

VII. Synopsis of the Evidence of Witnesses

i. Maria David

[27] Ms. David immigrated to Canada from Romania in 1975. Her husband passed away in 1994. She has one child, Mr. David, who was 20 at the time. She has worked at various administrative jobs with national companies, with a salary of around $35,000 a year.

[28] She and Mr. Stiuca married on January 19, 2002. She and Mr. Stiuca entered into the Marriage Contract in February 2002. She acknowledged signing the Marriage Contract in October 2002.

[29] In May 2006, her son found the Property and brought it to her and Mr. Stiuca’s attention. Her son thought it would be a good investment as a rental property. He approached them about purchasing the Property and they agreed that each of them would invest one third into the Property. She held her son’s interest as bare trustee. Her son was concerned about qualifying for a mortgage because of other properties that he owned.

[30] Each of them was to contribute $11,695.71 towards the closing costs. Ms. David contributed her share, but Mr. Stiuca did not, and his share was made up by her son. She says that on June 1, 2007, Mr. Stiuca acknowledged that he owed Mr. David $8,362.71 for his share of the purchase and carrying costs.

[31] The Property was rented to tenants in 2010 who had used it as an illegal marijuana grow-op. It took $30,000 to clean up the Property. She and Mr. Stiuca were charged as owners of the Property. Mr. David was not charged.

[32] Ms. David has had several bouts of illness. It is evident from her testimony that she was the one who primarily contributed financially to the marriage. She helped Mr. Stiuca when he arrived in Canada, taking care of some of his expenses. She found out, during her third bout of illness, that Mr. Stiuca had a girlfriend. She consulted lawyer Jim Koumarelas and directed the lawyer to send a notice letter to him to leave the matrimonial home within thirty days.

[33] There were some credibility problems with Ms. David. Her evidence was repeatedly contradicted by the documentary evidence. She would then say that the information in the documents was not right. She was confronted with inconsistent evidence at trial and at discovery. For example, she denied that Mr. Stiuca assisted in paying some of the utilities for the matrimonial home. At her examination for discovery, she testified that he paid the bills for electricity, heat, and water. She repeatedly challenged counsel instead of answering the questions, which on its own I did not find to be a refusal to answer the questions or evasiveness, but rather the manner in which she was dealing with and processing what at times were clearly painful events in her life (which were not relevant to the issues to be determined), introduced by her. I found her to be, on the whole, moderately credible.

ii. Antony David

[34] Mr. David’s evidence in chief is problematic. Two of the three affidavits filed for use at the trial do not comply with r. 4.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as they are not confined to the statement of facts within the personal knowledge of Mr. David. Mr. David could not testify as a witness in court to some of the statements of facts and adherence to the rule would have avoided the issue. With respect to his first affidavit, Mr. David indicates that he reviewed the affidavit of Ms. David (no date provided), and he states: “I adopt and affirm the contents of the said affidavit in all respects and swear the contents to be true and binding on me.” As for his second affidavit, Mr. David indicates that he had an opportunity to review the affidavit of Ms. David sworn on March 25, 2022, and he adopted her affidavit.

[35] The only evidence provided by way of affidavit is in the third affidavit, which addresses the issue of funds being taken out of Mr. Stiuca’s account by the bank. Mr. David says that neither he nor his mother directed the bank to take payments from Mr. Stiuca’s account, and the funds were in their account to be withdrawn.

[36] On cross-examination, Mr. David says that the plaintiffs never denied that Mr. Stiuca has an ownership interest in the Property, only that he does not own a third, and his interest is commensurate with the amount he contributed.

[37] Mr. David drafted the Funds Summary for the Property. He says that the document has Mr. Stiuca’s signature on it. He initially testified that he did not recall being there when the document was signed. He said he believes it was just his mother and Mr. Stiuca. After being asked the leading question as to whether he saw his mother sign the document, he responded: “Yes.”

[38] Mr. David testified that Mr. Stiuca is not responsible for the mortgage given by him to Esther Gerstel Inc. He believes the first charge to the Toronto Dominion bank is approximately $165,000. He is not a party to the TD mortgage nor a guarantor on the mortgage. He has not notified TD Bank of the transfer of title. He does not recall notifying Mr. Stiuca of the transfer; he says he might have sent him text messages.

[39] Mr. David never told Mr. Stiuca that he would take over possession of the Property. He told him he would be living there. He says that he advised Mr. Stiuca the Property was in complete disarray and that he would renovate the Property and move in.

[40] He says he gutted the house and no structural work was done. He says he did not obtain a permit because no structural work was being done. He acknowledged that electrical work was done which required a permit.

[41] He explained that he did not produce tax returns because he did not declare any rental income in 2019, because the Property was his principal residence.

[42] I did not find Mr. David to be a credible witness. His testimony was contradictory at times and contradicted the documentary evidence. He gave conflicting evidence about being present when the Funds Summary was signed. During cross-examination, he insisted that it was Mr. Stiuca’s signature that was on the document, though he says he never saw him sign the document. He says that the Property was his principal residence in 2019, hence the reason he did not declare rental income. However, Exhibit “H” to his mother’s affidavit, which he claimed to have adopted, shows rental income for 2019, 2020 and 2021. No explanation was provided by him to explain the obvious discrepancy.

iii. Dan Stiuca

[43] Mr. Stiuca was born in Bucharest in Romania. He emigrated to Canada on November 16, 2001.

[44] He lived in the matrimonial home from November 2001 to May 25, 2013. He is still married to Ms. David although they are separated and there is no chance of reconciliation. While they were together, he regularly paid or contributed toward the payment of the utilities, maintenance, upgrading, and living expenses at the matrimonial home. He is not seeking reimbursement for the amounts paid.

[45] Mr. David lived with them for a few years. He was a major source of conflict during their relationship. Mr. Stiuca claims Mr. David physically threatened him and attempted to provoke him on numerous occasions. Mr. David was involved in the purchase of the Property, but only as Ms. David’s son and as a witness. Mr. David did not qualify for a mortgage. Mr. Stiuca says he would never have agreed to buy a property with Mr. David because of their very poor relationship.

[46] He says his wife and Mr. David wanted to buy a property. Mr. David approached him to purchase the Property with his wife, and after thinking about it, he agreed.

[47] He first learned of the Property on September 29, 2006, when he and his wife signed the contract. He understood that he owned one third of the Property. He was present at the lawyer’s office as well as Ms. David and her son, who was a witness. Mr. Stiuca believes he contributed $3,333 towards the purchase price, which was the amount he was told he had to pay. He did not know the amount of the downpayment. On cross-examination, he says he had no knowledge of Mr. David contributing to the Property. His wife did not disclose her dealings with her son with him.

[48] Both Mr. Stiuca and Ms. David signed a mortgage in favour of TD Bank for $259,150. The purchase was also financed by CMHC. Mr. Stiuca regularly made payments toward the mortgage with TD Bank until 2009.

[49] Mr. David lived at the Property for a period and paid rent. Mr. Stiuca has never seen a lease. He has never seen a rent cheque. He has never received any rental income from the Property. There has been positive rental cash flow since 2006. He has not received any accounting on the Property. He did ask for documents. He has never been told of, nor did he agree to, any renovations at the Property.

[50] In 2010 or 2011, Ms. David and her son entered into a lease agreement at the Property without his involvement. The tenants operated an illegal grow-op which resulted in the tenants, Mr. Stiuca and Ms. David being charged, a City of Toronto by-law infraction notice, and a claim issued regarding the Property.

[51] After they purchased the Property, he did some maintenance and devoted about five and a half to six months to fix it up after the grow-op, at his own expense.

[52] He carried out all the necessary rectification and cleanup work of the Property after the grow-op incident. He visited the Property on a regular basis. He saw no evidence of renovation as Mr. David claimed. He says the claims of renovations are a fabrication. Mr. David and Ms. David refused to allow him to inspect the Property. He claims he knows nothing about a 2018 tenancy.

[53] On April 24, 2013, Mr. Stiuca received a notice to leave the matrimonial home. He had the key until the 25th of May. He was not allowed access to the matrimonial home to obtain his personal possessions. He sent Ms. David a series of text messages to arrange picking up his personal items, but Ms. David did not respond. He saw her in September of that year but again she did not respond to his request. He had his lawyer make the requests.

[54] He was presented with a separation agreement by Ms. David but said that he never signed a separation agreement. On cross-examination, he stated he did not agree with the content.

[55] He had no notice of the transfer of the Property from Ms. David to her son, nor did he agree to or consent to it.

[56] Mr. Stiuca says that on April 5, 2022, he was charged $1237.79 which was taken from his bank account for the mortgage.

[57] As for his credibility, similarly to Ms. David, Mr. Stiuca resisted answering questions, often ignoring the question entirely in his attempt to tell his own story. Overall, I found Mr. Stiuca to be a credible witness, often making admissions against his own interest.

VIII. Expert Evidence

i. Tracey Smith

[58] Ms. Smith is an independent appraiser. She carried out two appraisals of the Property on behalf of the plaintiffs. She testified that the first appraisal completed in March 2018 was a retrospective valuation, prior to the owner completing renovations, and the second in August 2018 after the renovations were completed. She did an onsite inspection in November 2021 and completed an appraisal on November 4, 2021.

[59] On cross-examination, she acknowledged that her professional designation was in commercial real estate and agreed that she had not visited the Property for the renovations. She saw pictures of the Property when it was a grow-op before the renovations. She agreed that her retrospective appraisal to March 2018 and August 2018 was completed based on her inspection of the Property on November 4, 2021. She valued the Property at $1,150,000 as of May 10, 2022.

[60] She agreed that this was an area “in gentrification”, that is, houses were being torn down and built on the lot. She stated: “Yes, that is true, there is a lot of that happening in the area.” She agreed that it is possible that if a person were buying the Property for the purpose of tearing it down, they would not care that it had been a grow-op. She conceded it was possible that the value of the Property is related to the fact that one could tear down the house and build a bigger one. She agreed that depending on the builder and the market, the Property could be severed, torn down and two houses could be built, and one could make lot of money. She had not considered the fact that a grow-op would have zero stigma if this were the highest and best use, which would involve a valuation of the land. She was not asked to do a land valuation on the Property.

ii. Jim Parthenis

[61] Mr. Stiuca commissioned an appraisal report from Jim Parthenis. Mr. Parthenis is the president and CEO of Carrington Appraisal Services which provides certified market-value appraisals for current and retrospective dates, rental analysis appraisals and feasibility studies. Mr. Parthenis appraised the fair market value of the Property at $1,190,000 as of November 15, 2021, with a reasonable exposure time of less than thirty days. Mr. Parthenis was of the view that as of May 2, 2022, the appraised value was $1,455,000.

[62] Mr. Parthenis believed the average of the adjusted rental income for 2006 was the most accurate indicator of the fair market rent at $1445 per month in 2006. He employed the government-regulated rental increases per year to arrive at a monthly rent for 2021 of $1857 per month, assuming the same person rented the Property. The fair market rental rate was significantly higher.

iii. Conclusion re: expert evidence

[63] Each party’s expert used different assumptions to arrive at their conclusions. Both appeared to be impartial in providing their evidence to the court. They were able to agree on certain facts.

[64] Mr. Parthenis says the best use of the Property is as a “tear down”. He acknowledged on cross-examination that he did not provide any information as to what the value of the Property would be as a “tear down”. The experts could not agree on whether a value could be assigned to a property based on a drive by or desk-top appraisal, instead of a range. Ms. Smith was granted access to inspect the Property; Mr. Parthenis was not. The experts also disagreed on whether there was still a stigma on the Property after it was remediated and cleared by the government. Ms. Smith applied a discount. They did agree that the value of the Property was in the land itself. Both agreed the lot is eligible for severance. They agreed the area was “in gentrification”. They agreed the best way to determine the value of the Property is to put it on the market.

IX. Analysis

[65] Mr. Stiuca relies on the Marriage Contract. The plaintiffs rely on the Funds Summary prepared by Mr. David as evidence of the agreement between the parties. While I agree with the plaintiff that Mr. David is not bound by the terms of the Marriage Contract between Mr. Stiuca and Ms. David, he is, however, bound by the legal consequences which flow from that agreement.

[66] And, for the reasons below, I do not find that the Funds Summary is an agreement between Mr. David, Ms. David, and Mr. Stiuca. It is certainly not evidence of any agreement with respect to any of the parties’ ownership interest.

i. Interpreting the domestic (marriage) contract

[67] In general, the court should give effect to the intention of the parties by considering the words they used to determine their reasonable expectations about the meaning of a contractual provision: Resolute FP Canada Inc v. Ontario (Attorney General), 2019 SCC 60, [2019] 4 S.C.R. 394, at para. 74; Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 65. The contract should be read as a whole, and its words given their ordinary meaning in a way that is consistent with the surrounding circumstances or factual matrix known to the parties when the contract was formed: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at p. 47. In B.G. Checo International Ltd. v. British Columbia Hydro and Power Authority, 1993 145 (SCC), [1993] 1 S.C.R. 12, at pp. 23-24, the Supreme Court stated: “It is a cardinal rule of the construction of contracts that the various parts of the contract are to be interpreted in the context of the intentions of the parties as evident from the contract as a whole”.

[68] The same principle of construction of contracts applies to the interpretation of a domestic contract: MacDougall v. MacDougall (2005), 2005 44676 (ON CA), 262 D.L.R. (4th) 120, at paras. 20-22.

[69] The parties entered into the Marriage Contract in accordance with s. 52 of the FLA. The Ontario Court of Appeal has observed that the legislation encourages parties to a marriage or a similar relationship to make their own arrangements as to the treatment of property: Bosch v. Bosch (1991), 1991 7177 (ON CA), 6 O.R. (3d) 168 (C.A.), at p. 174; Gallacher v. Friesen, 2014 ONCA 399, 371 D.L.R. (4th) 522, at para. 21.

[70] In this case, Ms. David and Mr. Stiuca, within a month of being married, embarked on entering into a contract to govern their marriage and any breakdown. Both had independent legal advice. The intent of the Marriage Contract, read as a whole, was that ownership of property would dictate the division of property. The parties wanted their property to be kept separate and free from any claim from the other, or even the other’s estate. They agreed that each party was free to deal with their property as they saw fit. The parties’ intention is also reflected in the fact that with respect to the equalization of net family property, property owned by the party was not to be included in the calculation. Article 8.1 of the Marriage Contract indicates that the parties were financially independent and did not anticipate requiring financial assistance from the other during or in the event of marriage breakdown.

[71] Article 12.1.3 expressly states that “property held in the name of one party shall be deemed to be owned by that party which shall be and remain the sole and exclusive property of that party so long as the property remains in his or her name.” The intention of the parties that ownership should govern the division of property is also reflected in the fact that article 12.1.2 indicates that property that is transferred from one party to the other is deemed to be owned by the party to whom the property is transferred.

[72] The language of the Marriage Contract in this case is not unlike that in the case of Hartstein v. Ricottone, 2016 ONCA 913. The Court of Appeal upheld the judgment of Flynn J., who rejected the appellant’s argument that a trust was created when the properties were transferred to the appellant's former common-law spouse. The facts are somewhat different as the cohabitation agreement in that case made it clear that in the absence of a written agreement, property is owned by the party in whose name it is registered. In this case, there is no trust agreement, but no written agreement is required for a bare trust. The Marriage Contract, however, does indicate that “rights of ownership govern the division of property between the parties”. Mr. Stiuca was a registered owner of the Property.

[73] Based on the plain reading of the Marriage Contract, I find that Mr. Stiuca is the beneficial and legal owner of 33 percent of the Property and is more particularly reflected on the Transfer dated September 29, 2006, reflecting his “33% share of interest”.

ii. Did the parties have some other agreement regarding the ownership of the Property?

[74] The plaintiffs rely on the Funds Summary prepared by Mr. David to support their position that Mr. Stiuca does not have 33-percent interest but rather an 11-percent interest in the Property.

[75] Mr. David testified that he, Ms. David, Mr. Stiuca and Mr. David’s ex-wife contributed towards the deposit. Mr. David does not actually indicate how much he contributed to the deposit. Mr. David testified that he found the Property. He says that he could not put himself on the Property and that the initial discussion was that they would each have a 33-percent interest. He claimed that Mr. Stiuca did not have the full deposit. He says that he drafted the Funds Summary “to make sure it’s accountable to what everybody put towards it”. On cross-examination, Mr. David says the document “actually says right there that 33% each was the deal, which he was supposed to pay which he did not pay”.

[76] Ms. David says the document indicates the percentage between her, Mr. Stiuca and her son. She deposed that on June 1, 2007, Mr. Stiuca acknowledged that he owed Mr. David $8,362.71 for his share of the purchase and carrying costs. The plaintiffs rely on the document reproduced below.

[77] As indicated, Mr. David has given inconsistent evidence regarding this document. Two versions of the document were in fact produced, one marked for identification purposes only, with the word “OK”, no signature, and a series of handwritten notes. It was this version that Mr. Stiuca suggests that he saw, which was also included in Mr. David’s affidavit of documents, not the version with a signature which he contends he only saw shortly before the trial.

[78] Mr. David testified that it was Mr. Stiuca who wrote “OK!” and signed the document that is in evidence. He says that the handwriting at the bottom belongs to his mother. He says that it is the only piece of paper he has that indicates that Mr. Stiuca owns 11 percent. He relies on the statement in the document: “Dan paid $3,333.00 = 0.11532% = 11.532%”. He conceded on cross-examination that the document “does not say own on it”.

[79] Ms. David testified that the document reflected the percentage of Mr. Stiuca’s ownership interest because he contributed $3,333. She was asked in chief about the deal or agreement between them. She responded: “That I would have 66-67%, and Antony paid the rest, I mean most of the money, and Mr. Stiuca that’s what he paid. And he knew that, and he said I don’t want to pay any balance because he was to pay 33%”. She testified that he paid 11 percent.

[80] Ms. David’s evidence and her son’s evidence with respect to the signing of the document is inconsistent. Mr. David initially said he was not present, then present when his mother signed. He was clear that he was not present when Mr. Stiuca signed the document. On the other hand, his mother testified that it was her signature. She was led in chief as she indicated that the document was signed on June 1, 2007. She says that Mr. Stiuca signed the document in front of her. Both versions of events cannot be true.

[81] Mr. Stiuca, for his part, has denied that the signature on the document was his. There is no independent evidence by way of a handwriting expert to verify whose signature it is, and in this contest, I prefer the evidence of Mr. Stiuca. He testified that he never signed this document, wrote “OK” or agreed to the content. There was some dispute about when he first saw the signed version. He disputed the amount of the downpayment in the document but acknowledged it was possible that more than $10,000 was required to close the transaction.

[82] He testified that nobody asked him for more money. I did not find his answers on his examination for discovery as to why Mr. David was not on title to be inconsistent with his answers at the trial. His evidence was consistent that Mr. David did not qualify for a mortgage. His evidence was consistent that Mr. David may have contributed to the Property, though it is not clear to me if on discovery he was being asked about the purchase price, or generally.

[83] Even if the court were to accept that Mr. Stiuca acknowledged that he only contributed 11.532 percent towards the purchase price of the Property, the document does not indicate that the amount of the contribution is commensurate with a corresponding percentage of ownership in the Property. Moreover, the document is alleged to be signed on June 1, 2007, eight months after title to the Property was registered in Mr. Stiuca’s and Ms. David’s names. The document is not signed by Mr. David. The document mentions “Sandra & Tony”, which suggests there are four, and not three, people contributing to the purchase price.

[84] On cross examination, Ms. David indicated that information in the land registry document was wrong. She said: “He is looking for money. He should get what he contributed, not what he wants.”

[85] In my view, this document is not evidence of an agreement between the parties, nor is it evidence of what Mr. Stiuca’s ownership interest in the Property would be. Support for a 33-percent ownership interest is also reflected the draft Separation Agreement. On cross-examination, Ms. David agreed she asked her lawyer to prepare a separation agreement and send it to Mr. Stiuca. She does not know whether Mr. Stiuca signed the agreement. There is no signed document in evidence. Mr. Stiuca says he never signed it. Section 11 of the draft Separation Agreement deals with the Property and indicates, as follows:

55 Cleta Drive, Toronto, Ontario

(1) Prior to the execution of this agreement, the parties were the owners of 55 Cleta Drive, Toronto, Ontario, which the Wife has a 67% ownership interest and the Husband has a 33% ownership interest.

[86] On cross-examination, Ms. David again indicated that “if he was paying the 33%” and insisted that the information was “not right”.

[87] In my view, the Marriage Contract, the Land Transfer document, and the draft Separation Agreement prepared by Ms. David’s lawyer all support Mr. Stiuca’s position regarding the percentage of his ownership interest in the Property.

iii. Was Ms. David a bare trustee for Mr. David?

[88] The plaintiffs ask for an order declaring that Mr. Stiuca holds a share of his interest in the Property as trustee for Mr. David, and that he contributes to his shortfall to the extent of his interest.

[89] The plaintiffs assert that Ms. David held Mr. David’s interest in the Property as a bare trustee for him. Mr. David did not give any evidence on this point. His adoption of the content of Ms. David’s affidavit evidence does not make this his evidence. Mr. Stiuca says that Mr. David did not have any ownership interest in the Property. The plaintiffs assert that Mr. David could not go on title given his other circumstances. Ms. David says that she held a portion of her share in the Property as trustee for Mr. David.

[90] I must reject the plaintiffs’ argument for the reasons below.

[91] While a bare trust may be formed without the requirement of a written document, it would have been of assistance to have some evidence of the agreement between the parties, especially as the evidence before the court suggests otherwise.

[92] At law, a bare trust arises where the trustee holds property “without any duty to perform except to convey it to the beneficiary or beneficiaries upon demand”: Valard Construction Ltd. v. Bird Construction Co., 2018 SCC 8, [2018] 1 S.C.R. 224, at para. 25, citing Donovan W. M. Waters, Mark R. Gillen and Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012), at p. 33. As noted by the Supreme Court of Canada, expanding on the definition by the authors in Waters’ Law of Trusts, “This definition assumes, inter alia, ‘that the beneficiary or beneficiaries are able to call for the property on demand’”.

[93] In Trident Holdings Ltd. v. Danand Investments Ltd. (1988), 1988 194 (ON CA), 64 O.R. (2d) 65 (C.A.), at p. 75, the Ontario Court of Appeal cited the description and explanation of a bare trustee relationship provided in Maurice C. Cullity, “Liability of Beneficiaries — A Rejoinder” (1985-86), 7 E. & T.Q. 35 at p. 36, as follows:

[94] The distinguishing characteristic of the bare trust is that the trustee has no independent powers, discretions, or responsibilities. Their only responsibility is to carry out the instructions of the principals — the beneficiaries. If the trustee does not have to accept instructions, if the trustee has any significant independent powers or responsibilities, the trustee is not a bare trustee. A bare trust or nominee relationship can at times be held to be an agency relationship in which the trustee is acting as an agent of the beneficial owner. This can be the case where there is a bare trustee with no discretion or decision-making power to deal with the real property except by the explicit direction of the beneficial owner and it is ultimately the beneficial owner who is liable for the debts and obligations of the bare trustee: Trident Holdings Ltd., at p. 75.

[95] I would reject the plaintiffs’ assertation for other reasons. Ms. David delegated the task of dealing with the tenants to her son and his then-wife. Since neither she nor Mr. David have produced their tax returns, it is not clear to the court whether she personally profited from what she alleged to be Mr. David’s share or interest in the Property. There seems to have been practical considerations for her and Mr. Stiuca to download the responsibility of being a landlord to her son and daughter-in-law. In Valard Construction Ltd., Brown, J. writing for the majority, explains the fiduciary duties of a trustee, at p. 236, as follows:

First, a trustee must act honestly and with that level of skill and prudence which would be expected of the reasonable person of business administering his or her own affairs. Secondly, a trustee cannot delegate the office to another. And thirdly, a trustee cannot profit personally from its dealings with the trust property or with the beneficiaries of the trust.

[96] Ms. David deposes that they were able to rent the Property in 2006. The funds were paid to Mr. David and his wife, but Ms. David indicates that is because she and Mr. Stiuca were working two jobs, and her son (Mr. David) and his wife had more time to deal with the tenants. She deposed:

The funds were paid to Tony and his then wife Sandra. We agreed to this as the defendant and I were working 2 jobs. Tony had real estate experience. Sandra was in law school and was the president of the condo in which she and Tony lived. They had time to deal with the tenants. They provided me with the funds they collected. I used the funds to pay the mortgage and expenses.

[97] Ms. David suggests that the reason her son was not on title to the Property was because he had other properties and he would not qualify for a mortgage. I do not accept that Ms. David was a bare trustee holding Mr. David’s share in the Property in trust for him. Ms. David’s evidence above indicates that the “we” referenced above relate to Ms. David herself and Mr. Stiuca. The lease agreements tendered as evidence do show rental payments were directed to be made to Mr. David and his wife (Sandra) and later only to Mr. David. However, Mr. David did not hold himself out to be an owner of the Property, but rather the landlord. Neither Ms. David nor Mr. David have provided any supporting evidence of any contribution made by Mr. David to the purchase price, and if so, the extent of his contribution.

[98] In any event, even assuming the court were to accept the plaintiffs’ argument that it was agreed, as pleaded at paragraph 7 of the amended statement of claim, that “Maria and Tony would each own an interest in the Property; that Maria would hold Tony’s interest as a bare Trustee for Tony; and, ‘majority rules’ with regard to all matters relating to the Property”, no evidence of such an agreement was before the court at the trial. The court is left with Mr. Stiuca’s evidence, unchallenged by Mr. David, of their “very poor relationship”, and that he would not have agreed to purchase property with him. I am also inclined to draw an adverse inference from the fact that there is no direct evidence from Mr. David himself on the existence of the bare trust and the parameters of the agreement.

[99] If such an agreement existed between Ms. David and her son, which is not established on the evidence, Ms. David has now transferred her 67-percent ownership interest in the Property to Mr. David for no consideration.

[100] In my view, the plaintiffs have failed to prove, on a balance of probabilities, the existence of a bare trust.

iv. What is the nature, if any, of Mr. David’s investment in the Property?

[101] Mr. David submits that he did not sign the Marriage Contract and is not bound by its terms. He argues that he invested his own funds and contends that he stands on his own separate from Ms. David.

[102] Unfortunately, I did not find Mr. David to be a credible witness. There is no evidence before the court demonstrating Mr. David’s contribution to the Property. He claimed he collapsed RRSPs to do so. There were no tax returns, tax forms or any other information to corroborate his assertions.

[103] I am not satisfied on the evidence, on the balance of probabilities, that Mr. David contributed to the purchase of the Property.

[104] I note that whatever the agreement between Mr. David and his mother, Mr. Stiuca was not privy to the information. Mr. David is now on title to the Property. On March 20, 2019, Ms. David transferred the entirety of her 67-percent ownership interest to Mr. David. There is no consideration noted on the Parcel Register.

v. Can the court consider Mr. David’s claim of a purchase money resulting trust?

[105] In their Closing Submissions, the plaintiffs submit that Mr. David bases his position on a purchase money resulting trust. Mr. Stiuca has objected, in his Closing Submissions, to this issue being raised at the end of trial.

[106] Mr. David relies on Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, and Andrade v. Andrade, 2016 ONCA 368, 131 O.R. (3d) 532. The court cannot grant judgment for a claim not pleaded. The Ontario Court of Appeal explained the basis for this principle in Rodaro v. Royal Bank (2002), 2002 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at para. 60, as follows:

It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings. As Labrosse J.A. said in 460635 Ontario Ltd. v. 1002953 Ontario Inc., 1999 789 (ON CA), [1999] O.J. No. 4071 (Ont. C.A.), at para. 9:

… The parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings. A finding of liability and resulting damages against the defendant on a basis that was not pleaded in the statement of claim cannot stand. It deprives the defendant of the opportunity to address that issue in the evidence at trial….

[107] In Garfin v. Mirkopoulos, 2009 ONCA 421, 250 O.A.C. 168, Sharpe J.A. explained, at para. 19:

Because the appellant did not plead that Mirkopoulos agreed with Crossen that he would pay the appellant's legal fees, Mirkopoulos could not be expected to know that he should be prepared to meet that allegation. The trial judge erred in awarding judgment against him on a ground not pleaded and not litigated at trial.

[108] In my view, as the issue of purchase money resulting trust was not raised in the pleadings it ought to be considered by the court in determining the issues in dispute between the parties which have been tested through the adversarial process.

[109] If I am wrong, as indicated above, I do not find Mr. David has established, on a balance of probabilities, that he contributed towards the deposit or the downpayment for the Property or that he acted as a purchaser. A purchase money resulting trust can be established based on three requirements:

The trustee has title to the property;
The claimant must have “supplied the whole or part of the purchase price when the property was being bought from a third party and transferred into the alleged trustee’s name; and
The claimant must prove that “he acted throughout as a purchaser”: see A.M.K. Investments Ltd. (Trustee of) v. Kraus (1996), 1996 8268 (ON SC), 14 E.T.R. (2d) 218 (Ont. Gen. Div.).

[110] He says he was at the lawyer’s office when the paperwork was signed, but nothing else. The Funds Summary which he prepared, and which he says bears Mr. Stiuca’s signature (an assertion denied by Mr. Stiuca), has a handwritten date of June 1, 2007, which is nine months after the Property was purchased, and nine months after Ms. David and Mr. Stiuca were registered as joint tenants. And, I have already found that Mr. David has not established that he contributed any money towards the deposit or the downpayment for the Property. In this case, the plaintiffs agree that Mr. Stiuca contributed to the downpayment and/or purchase price of the Property. Their complaint is that he did not contribute his share of the deposit. Having contributed to the purchase price of the Property, being a registered owner of the Property, and on the strength of the percentage of his interest noted in the Transfer dated September 20, 2006, and even the draft Separation Agreement dated June 2013, on the evidence, Mr. Stiuca had a 33-percent beneficial ownership of the Property. I am not able to find, on a balance of probabilities, that Mr. Stiuca held any of his share in the Property as a trustee for Mr. David.

vi. Did Mr. David gift funds to Mr. Stiuca?

[111] In the plaintiffs’ Closing Submissions, Mr. David submits that he did not gift the funds to Mr. Stiuca. Mr. David argues that a gift also contradicts the funds statement prepared by him, which he asserts bears Mr. Stiuca’s signature.

[112] The issue of a gift was raised in Ms. David’s affidavit.

[113] As this issue was not pleaded, even after the extensive amendment to the statement of claim towards the end of the trial, it would be unfair to Mr. Stiuca to consider this issue. If I am wrong, I note that Mr. David has not proven that he contributed any monies towards the purchase price, deposit or downpayment or gave or transferred any money to Mr. Stiuca towards Mr. Stiuca’s share of the purchase price. Mr. David did not respond to Mr. Stiuca’s evidence that he would not have agreed to purchase property with him because of their “very poor relationship”. I accept Mr. Stiuca’s evidence that he contributed the amount that he was asked to contribute to the purchase price.

vii. Is a resulting trust and/or remedial constructive trust available to the plaintiffs?

[114] Under the Marriage Contract, Ms. David and Mr. Stiuca agreed that the presumption of resulting trust would not apply to any question of ownership, and the rights of ownership governed the division of property between the parties.

[115] With respect to Mr. David, neither the original nor the amended statement of claim pleaded any cause of action which would invite the court to decide the question of whether there is a claim for unjust enrichment and the availability of a remedial constructive trust; the court must infer from the pleadings and the amendments that Mr. David’s claim is based on unjust enrichment.

[116] The following amendments were also made to the statement of claim:

On or about March 20, 2019 Maria transferred her interest in the Property to Tony. Tony claims ownership of the two thirds of the property interest registered in his name. He also claims Dan continues to hold his interest in the property as a resulting trustee for Tony in such share as the court may decide.
In addition, the plaintiffs claim from Dan repayment for the funds they invested into the property on Dan’s behalf for carrying costs and renovations to the extent the court allows.
It would be unjust to allow Dan to realize the benefit of the contributions to the Property by the plaintiffs without having to compensate and account for them. In this regard Dan holds his share in the Property as a constructive trustee for the plaintiffs to the extent of their contributions to the Property on Dan’s behalf, to the extent the court allows.
~~Alternatively,~~ Tony ~~and Maria~~ say Dan holds his interest in the Property in a resulting trust as resulting trustee for Tony ~~and Maria~~ for the amount by which his registered interest in the Property exceeds the value he contributed to the purchase, renovation, carrying and maintenance of the Property.

[117] As Vella J. recently summarized in Hutton v. Wakely, 2023 ONSC 6964, at para. 44:

A resulting trust arises when title to a property is in one party's name, but that party is either a fiduciary holding it in trust for the transferor or gave no consideration for that property (Pecore, at para. 20). If either situation is established, then it gives rise to a rebuttable presumption of a resulting trust (Pecore, at para. 22). As explained in Pecore, at paras 24-25, a rebuttable presumption of a resulting trust places the onus on the recipient or transferee to prove, on a balance of probabilities, that a gift was intended.

[118] In this case, Mr. Stiuca did provide consideration for the purchase of the Property. The document that Mr. David relies upon to evidence an agreement is drafted on some unknown date and signed, admittedly by his mother, some eight months after the transaction closed and Mr. Stiuca’s legal interest was registered on title. Mr. David has not presented any actual evidence to this court of his contribution to the purchase price, and more specifically, to Mr. Stiuca’s share of the purchase price. He has not proven, on a balance of probabilities, that he provided any funds to Mr. Stiuca to contribute to his share of the purchase price.

[119] As for the plaintiffs’ alternative argument, the plaintiffs acknowledge in their Closing Submissions that a claim for constructive trust flows from unjust enrichment. Ms. David herself is precluded by virtue of the Marriage Contract from seeking a remedial constructive trust. As for Mr. David, I do not find that his argument has merit for the reasons stated previously. The Supreme Court of Canada has noted that a constructive trust is a broad and flexible equitable tool used to determine beneficial entitlement to property: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 50; Pettkus v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834, at pp. 843-44 and 847-48. A claimant must demonstrate a link or causal connection between their contributions and the acquisition, preservation, maintenance or improvement of the disputed property, for the court to impress a constructive trust on a share of the property proportionate to the unjust enrichment: Kerr, at para. 50; Pettkus, at pp. 852-53.

[120] Again, Mr. David has been unable to establish that he contributed any monies towards the purchase of the Property. As for the renovation expenses, based on his own evidence at trial, he undertook the renovation so that he could move into the Property as his principal residence. Based on my findings, Mr. David had no proprietary interest in the Property until 2019, after the statement of claim was issued.

[121] Ms. Smith, Mr. David’s expert, contends that his renovations increase the Property’s value from $585,000 to $640,000. I am not satisfied on the evidence that this is the case as opposed to prevailing market forces. Ms. Smith was provided with photos of what was alleged to be the Property before and after the renovations. It is not clear to the court when those photos were taken, especially in light of the existence of a grow-op on the Property. Mr. Stiuca’s evidence about his own restoration work after the grow-op operation is unchallenged.

[122] I agree with Mr. Stiuca that there was no enrichment (for the reasons above), no corresponding deprivation and a clear juristic reason (the Marriage Contract) to defeat Mr. David’s claims for a beneficial interest in the Property.

[123] Mr. Stiuca’s evidence that he contributed monthly until 2009 is undisputed. Ms. David acknowledged that he stopped contributing in 2009. The renovations are dealt with below, and Mr. David volunteered at the trial that he decided to renovate the Property in 2018 and use it as his principal residence. He did not ask for Mr. Stiuca’s agreement with respect to any of the alleged renovations. He moved into the Property, and now has a 67-percent interest. In the result, I do not find that Mr. David has been correspondingly deprived of any benefits.

[124] As for the lack of juristic reasons, Mr. Stiuca says that the Marriage Contract dealt with the ownership of the Property and specifically excluded a constructive trust; therefore, it provided a juristic reason to deprive Mr. David of his claims. In my view, the Marriage Contract is also significant in two other ways. First, by virtue of the Marriage Contract, Mr. Stiuca is the beneficial and legal owner of one third of the Property. He gave up his right for equalization and support in the event of the breakdown of the marriage. Second, while Ms. David had a right to deal with her share of the Property as she saw fit, it appears that the plaintiffs have indirectly attempted to get around the Marriage Contract, by Ms. David transferring her interest to Mr. David, and him advancing equitable claims that she is not able to by virtue of the Contract. The significant amendments at the trial, some of which the court perhaps would not have allowed as they were tantamount to withdrawals of formal admissions (i.e., substitution of Mr. David’s name for that of his mother), support this observation.

[125] For the reasons above, I would reject both the argument that Mr. Stiuca holds his share of the Property as a resulting trust for the plaintiffs, and his request that any share of the Property owned by Mr. Stiuca be impressed with a constructive trust.

viii. Are the equitable claims advanced by the plaintiffs statute barred?

[126] The Ontario Limitations Act, 2002 applies to equitable claims: McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561, at para. 49; Placzek v. Green, 2009 ONCA 83, 307 D.L.R. (4th) 441. In McConnell, the court held that s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 applies to claims based in unjust enrichment seeking to impose a remedial constructive trust on another person’s real property.

[127] The plaintiffs have not pleaded unjust enrichment. However, Mr. Stiuca has proceeded on the basis that the claim is based on unjust enrichment. Mr. Stiuca, however, has not pursued this issue in his Closing Submissions. It is therefore not clear to the court what position Mr. Stiuca is taking with respect to the triggering date for the commencement of the limitation period.

ix. Are the plaintiffs entitled to recover renovation and other expenses?

[128] The plaintiffs are seeking $104,140 from Mr. Stiuca for his share of the contributions to the Property.

[129] I would deny the claim based on the following reasons. I will address the 2018 renovation expenses separately.

[130] Mr. Stiuca has pleaded a limitation period. The statement of claim was issued in 2019.

[131] In Vu v. Canada (Attorney General), 2021 ONCA 574, 495 C.R.R. (2d) 1, at para. 47, the Court of Appeal noted:

Limitation periods are driven by when the “material facts on which [a cause of action] is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence”: Central Trust Co. v. Rafuse, 1986 29 (SCC), [1986] 2 S.C.R. 147, at p. 224; Grant Thornton LLP v. New Brunswick, 2021 SCC 31, at paras. 29, 42. As noted by this court in Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, 144 O.R. (3d) 385, at para. 41, leave to appeal refused, [2019] S.C.C.A. No. 91: “discoverability means knowledge of the facts that may give rise to the claim. The knowledge required to start the limitation running is more than suspicion and less than perfect knowledge.”

[132] I am satisfied that Ms. David knew or ought to have known she had a claim for any shortfall or failure of Mr. Stiuca to pay or continue to contribute towards the expenses in 2009. Ms. David deposes in her affidavit that Mr. Stiuca made payments of $223 towards care and costs between 2007 and 2009 and stopped making payments after that. Ms. David pleads, for example, in the defence to the counterclaim that Mr. Stiuca never requested an accounting with respect to the Property but claimed that it was provided to him on a regular basis as were requests for his required payments. She alleges that he refused to make his required payments.

[133] To the extent that claims could be established in 2017 and beyond, they are not subject to the two-year limitation period.

[134] Ms. David indicates the following shortfall:

2017: $4,657.48 or $1,552.49 each

2018: $8,486.23 or $2,828.74 each

2019: $1,752.62 or $584.21 each

2020 $$2,180.42 or $726.81 each

2021 $2,385.90 or $7,95.30 each

[135] Neither Ms. David nor Mr. David have produced their tax returns. I note that the 2017 shortfall would have constituted a write-off against not only rental but all income for Ms. David. She has produced no evidence to indicate she did not write this amount off. She was evasive when questioned about the reason for not disclosing her tax returns. I would therefore not allow this amount (or a percentage of it) to be borne by Mr. Stiuca as Ms. David may have reaped a tax benefit for all the shortfalls.

[136] As for the renovation expenses, I would not allow them for the following reasons. The plaintiffs are seeking contribution for alleged renovations of the Property in the amount of $175,000. Both plaintiffs have presented inconsistent evidence as to the costs of the renovations.

[137] In her affidavit, Ms. David deposes, at paragraphs 53-55:

The property was a mess when we took possession of it. The damage was extensive. Pictures of the state of the property are attached as exhibit "AA".
It was necessary to renovate the property.
In all Tony and I put in $170,415.50 to renovate the property. The defendant did not contribute to any of the renovation costs.

[138] In my view, the photos that Ms. David refers to as showing the state of the Property before Mr. David renovated in 2018 are of the aftermath of the grow-op. Ms. Smith, the plaintiffs own expert, refers to reviewing the “pictures” of the grow-op before the renovation. The grow-op was in 2011. Mr. David’s evidence is that it cost $30,052.93 to fix up the Property (2011). Mr. Stiuca says that the renovation is a fabrication. Based on the evidence by Ms. David to support a renovation, there is merit to his argument.

[139] Beyond that, by Mr. David’s own admission the renovation expenses, if they were incurred, happened in 2018. Mr. David did not seek Mr. Stiuca’s input on what contractors to engage. Mr. David did not seek Mr. Stiuca’s input on whether permits were to be obtained. When asked if he was claiming that Mr. Stiuca had to contribute to renovation expenses from 2018, Mr. David responded: “I am not claiming that he had to. I just told him that I was going to renovate the house and move in, and I would like to buy you out. And, he kept saying - and his numbers kept going ridiculously going up and up and up.” He was asked whether he told Mr. Stiuca that he was renovating the Property and expected him to contribute. He could not recall Mr. Stiuca’s response.

[140] Ms. David has provided a series of receipts for Lowes and Rona. These receipts do not indicate which Property they relate to, Mr. David’s typed list of trades, the work to be carried out and the amount. Mr. David’s affidavit does not annex any documents. There are no last names for any of the trades. There are no receipts for any of the work alleged to have been completed although Mr. David insisted on cross-examination that “they are in there - hundred percent.” Mr. David indicated that it may not be part of the particular exhibit that was put before him, but they were produced. No such documentation appears in his affidavit of documents which was also put to him at the trial. Mr. David has not provided counsel for Mr. Stiuca with contact information of the various tradespeople, although he undertook to provide the information for the plumber electrician. At his discovery, he took under advisement allowing Mr. Stiuca’s counsel to inspect the renovation that was completed. This became a refusal. Neither Mr. Stiuca nor his lawyer has therefore been permitted to inspect the alleged renovation.

[141] I am not satisfied, on a balance of probabilities, that Mr. David in fact engaged these individuals and paid them these amounts. I infer from his evidence that he had friends and they did favours for each other. Mr. David did not have any formal agreements with the contractors for the renovations. He testified that: “I am in the field. I understand how this works, and I have friends that owed favours, and we took care of them, and we did it like that. I didn’t need a contract. I built houses once in a while, and I’ve done them before”. At trial, he testified that most of the payments were made by email transfer and some were paid cash. At his examination for discovery, he testified that he did some of the work himself and he also paid others to do the work. He testified at that time that everything was in cash. At trial he attempted to explain that e-transfers were a form of cash. He has not produced any records of the e-transfer payments.

[142] In fact, Mr. David has not provided proof of payment to any of the contractors. The renovation expenses which he typed out amounted to $170,415.50 and the information produced by his mother, which he said on cross-examination shows renovation expenses, only totals $62,627.62. He tried to explain this away by saying that this amount was based on receipts given to his mother. Prior to the commencement of the trial, the typed-up summary was not produced to Mr. Stiuca; it is also undated.

[143] The plaintiffs argue that Mr. David renovated the Property, and Mr. Stiuca received a benefit which is connected to the plaintiffs’ contribution. Both Ms. David and Mr. David confirmed that he moved into the Property in 2018. By his own evidence, Mr. David had decided that he was going to renovate the house and use it as his principal residence. He did not ask for Mr. Stiuca’s permission to change the Property from an investment property to a principal residence. It is not clear whether he deducted the 2018 renovation expenses in his tax returns, or his mother did. Mr. Stiuca’s evidence that he has not received any rental income from the Property is not disputed. He has not been able to claim the benefit of any profit or deductions, if any.

[144] As for the claim by Ms. David to recover the renovation costs from 2011, the parties have not addressed whether this would be subject to a limitation period. Having said that, it appears that both Ms. David and Mr. Stiuca were involved in the renovation/restoration of the Property after the grow-op was uncovered, and given the lack of disclosure to Mr. Stiuca, including providing supporting documents for the all the expenses claimed, in my view it is unfair to demand that Mr. Stiuca be responsible for any of these costs, more than a decade after the fact. The unfairness is underscored by the availability of a tax deduction to Ms. David.

[145] As for the shortfalls claimed, aside from the limitation period, I note that Mr. Stiuca was not provided with any of the information regarding the rent or expenses. Ms. David has not produced any income tax returns to show income reported to the Canada Revenue Agency with respect to the Property. On the evidence, Mr. David changed the Property to his principal residence in mid-2018. He has failed to provide any documentation to Mr. Stiuca about rental income during this period. When she was examined for discovery, Ms. David indicated that Mr. David was paying rent. At trial she testified that he was paying the mortgage. It is not clear which mortgage that is being referred to as Mr. David has now mortgaged the Property.

[146] If the court were to accept that the Property is being rented to Mr. David or someone else, I am inclined to accept Mr. Stiuca’s expert evidence about the appropriate market rental value over the expert retained by Ms. David and Mr. David. The base rate used by Mr. Parthenis to determine the fair market rent in 2006 is consistent with what Ms. David charged for rent at that time. She charged $1,400 and he suggested it was $1,445 per month. In the result, if Mr. David is in fact still using the Property as his principal residence, as opposed to an investment property which was its intended use, I find that the following rental rates set out by the defendant’s expert to be reasonable. The plaintiffs are not acting at arm’s length regarding their motivation for keeping the rent low, if indeed Mr. David is paying rent. In the circumstances, I find the following amounts to reflect the fair market rental rate of the Property from 2017 to 2022:

2017 $1,753

2018 $1,785

2019 $1,817

2020 $1,857

2021 $1,857

2022 $1,879

[147] If the Property is rented, to the extent that the plaintiffs can prove any shortfall after adjustments for expenses and subject to what I have said about the renovation expenses in 2018 and the expenses in 2011, Mr. Stiuca should bear his proportionate share for these expenses as of 2017.

x. Charge in favour of Esther Gerstel Inc.

[148] Mr. David has gone on to encumber the Property. He agrees that the mortgage registered in favour of Esther Gerstel Inc. in the amount of $400,000 does not affect Mr. Stiuca’s interest.

xi. Mr. Stiuca’s ownership interest in the Property

[149] For the reasons stated above, I find that Mr. Stiuca has a 33-percent interest in the Property.

[150] Mr. Stiuca claims for net rents owing from 2006, annually. The plaintiffs say he knew of his rights since 2013 but took no steps for recovery. The plaintiffs say that his action is statute barred.

[151] For the reasons below, I find that Mr. Stiuca’s claims for a share of the net rental income before 2017 were discoverable prior to April 2017, and, as a result, are barred by the two-year limitation period under s. 4 of the Limitations Act, 2002. Mr. Stiuca has not rebutted the presumption under s. 4 and has not relied on discoverability.

[152] Mr. Stiuca’s contention is that he is entitled to a share in the surplus of the rental income. Mr. Stiuca testified that he stopped making payments in 2009 because the rental income was positive. He has also testified that this was an investment property. He was certainly aware that he was entitled to receive some of the profits, if any. Even if there was no actual accounting provided to him, on his own evidence, he stopped making any contribution because of the positive rent payments. He did not receive his portion of the rent proceeds for all these years. I find that Mr. Stiuca knew, or ought to have known, that he had a claim against the plaintiffs for failure to honour the agreement to provide him with his share of the profits from the investment rental Property.

[153] Section 5(1) of the Limitations Act, 2002 provides that a claim is discovered when a person knew or ought to have known of sufficient facts on which to base the claim. Pursuant to s. 5(2), a claimant is presumed to discover his or her claim on the day the act or omission giving rise to the claim occurs, unless the contrary is proven.

[154] As for rental income for the year 2017 and beyond, Mr. Stiuca asserts that his claims for net rental income are continuous and ongoing. I agree. Mr. Stiuca is not barred from pursuing his claims for recovery of net rental income from 2017 onwards. These claims are effectively subject to a rolling limitation period. A failure to perform an obligation scheduled to be performed periodically generally gives rise to a breach and a claim as from the date of each individual breach: Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179, 395 D.L.R. (4th) 679, at para. 24; Smith v. Empire Life Insurance Co. (1996), 1996 8134 (ON SC), 19 C.C.E.L. (2d) 171 (Ont. Gen. Div.), leave to appeal refused, [1996] O.J. No. 3113 (C.A.).

xiii. Is Mr. Stiuca entitled to an accounting?

[155] Mr. Stiuca requests accounting information. The plaintiffs have raised a limitation period.

[156] Mr. Stiuca is an owner of the Property and is therefore entitled to an accounting. I note that Mr. Stiuca did not provide the court with any authority with respect to the limitation period; however, I also note his argument that his claim for income from the Property is ongoing and renews annually. I would agree. However, I would accept the plaintiffs’ argument that at least some of those claims are statute barred. If I am wrong, in light of my finding on the application of the limitation period to claims for rental income before 2017, I find Mr. Stiuca ought to be entitled to an accounting for the income derived and the expenses incurred and/or paid with respect to the Property from January 1, 2017, to the date of this judgment.

xiv. Is Mr. Stiuca entitled to judgment for partition and sale?

[157] Mr. Stiuca is asking for judgment that the Property be sold under the Partition Act, R.S.O. 1990, c. P.4, and that he receives one third of the net proceeds, subject to any adjustments for rents and costs. I am satisfied that this is an appropriate case for partition and sale. Mr. Stiuca claims entitlement to the sale of the Property as a “person interested in land” pursuant to s. 3(1) of the Partition Act.

[158] Section 2 of the Partition Act states that a joint tenant or tenants in common may be compelled to make or suffer partition or sale. The general approach to determining when partition or sale should be granted was laid down in Davis v. Davis, 1953 148 (ON CA), [1954] O.R. 23 (C.A.), where the Court of Appeal stated:

There continues to be a prima facie right of a joint tenant to partition or sale of lands. There is a corresponding obligation on a joint tenant to permit partition or sale, and finally the Court should compel such partition or sale if no sufficient reason appears why such an order should not be made.

[159] The right to partition and sale can only be refused in exceptional circumstances where the opposing party has established that there has been malicious, vexatious, or oppressive conduct: Silva v. Silva (1990), 1990 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at para. 15; Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 48652 (ON CA), 75 O.R. (3d) 478 (C.A.).

[160] There is no evidence of malicious, vexatious, or oppressive conduct on the part of Mr. Stiuca, and in the context of this case, with a breakdown of a marriage and the poor relationship with Mr. David, an order for partition and sale is appropriate in the circumstances.

xv. Is Mr. Stiuca’s claim for recovery of his belongings statute barred?

[161] In his counterclaim, Mr. Stiuca seeks an order of replevin and/or possession of his personal belongings. He says that he was never allowed to return to pick up his personal possessions after May 25, 2013. Mr. Stiuca says some of his belongings include his uniforms and army memorabilia. At the trial he says that he requested his property including in September 2013, and he received no response.

[162] Ms. David pleads that his right to replevin is barred by the provisions of the Limitations Act, 2002.

[163] I am satisfied that the limitation period was not triggered in the circumstances of this case. The limitation period is triggered when a person discovers that they have a claim. There is a rebuttable presumption of two years from when a claim is discovered under s. 4 of the Limitations Act, 2002. A claim is discovered when the elements set out in s. 5 are discovered. Sections 4 and 5 read:

4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

Demand obligations

(3) For the purposes of subclause (1) (a) (i), the day on which injury, loss or damage occurs in relation to a demand obligation is the first day on which there is a failure to perform the obligation, once a demand for the performance is made.

[164] In order to determine if and when the limitation is triggered, the court must decide when all the material facts on which the claim is based were discovered, or ought to have been discovered by the claimant by the exercise of reasonable diligence: Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161 (C.A.); Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75, at para. 22. A claim is discovered when the plaintiff discovers the elements of a claim identified in s. 5(1)(a), or reasonably ought to have discovered them (s. 5(1)(b)): Kaynes v. BP p.l.c., 2021 ONCA 36, 456 D.L.R. (4th) 247, at para. 37.

[165] In Lawless, at para. 28, the Court of Appeal noted that what “a prospective plaintiff must know are the material facts necessary to make a claim” (emphasis in original) and then the limitation period begins to run. The court reiterated that requirement in Vu, at para. 49, indicating: “Knowing enough facts means knowing the ‘material facts’ that are necessary to make the claim: Lawless, supra.

[166] In this case, the plaintiffs cannot point to any refusal by either Ms. David or Mr. David to return Mr. David’s personal belongs. At paragraph 9 of the statement of defence to counterclaim, Ms. David denies that Mr. Stiuca was evicted from the matrimonial home without notice. She pleads that he was provided with the necessary notice and with the opportunity to collect his personal belongings. She further plead that he refused and or neglected to collect his belongings. At paragraph 43 of her affidavit, she deposed: “I did not withhold anything from him. He was free to take all of his belongings with him. He left certain belongings at Natal. His belongings include his army uniform. I thought he abandoned his belongings.”

[167] In her supplementary affidavit, Ms. David further indicated: “Dan did not take any steps to obtain re-entry. As will be pointed out below, he did not take any steps to obtain any of the property he left behind.”

[168] At the trial, Ms. David explained that she was extremely sick. Based on the nature of her illness, it is understandable that she would not have been concerned with Mr. Stiuca’s requests. She also testified that Mr. David emailed Mr. Stiuca to pick up his belongings. Although at the discovery she advised that she had no answer as to why Mr. Stiuca’s belongings were not being returned, Ms. David contends that she has been prepared to return Mr. Stiuca’s belongings and has requested a list. On cross-examination she acknowledged that he left personal belongings at the matrimonial home after he returned the key. She acknowledged that whatever belongings he left are still there. She said it was Mr. Stiuca who “left the goods at my house”. She suggested it was his decision to do so as he was not sure “if his girlfriend would allow him to stay together or not”. She agreed that he should have the property returned. She said: “So, I wasn’t a storage room. He left it. I said, yes you can have it, but Antony sent him an email. What more do you want from me. I was sick.”

[169] In my view, the plaintiff cannot rely on the limitation period in the circumstances. As counsel for Mr. Stiuca pointed out to her, at her examination for discovery Ms. David took under advisement the question of why she had not returned Mr. Stiuca’s property to him. Since it was not answered, it became a refusal. To the extent that Ms. David has always been willing and prepared to return Mr. Stiuca’s property, in my view, he would have no right to advance any claim or ask the court to grant any remedy.

X. Disposition

[170] Based on the reasons above, I make the following disposition:

i. The plaintiff, Ms. David, was not a bare trustee holding a share of the Property, municipally known as 55 Cleta Drive, Toronto, in trust for Mr. David.

ii. The defendant, Mr. Stiuca, is the beneficial and legal owner of 33 percent of the Property municipally known as 55 Cleta Drive.

iii. The plaintiffs’ claims for remedial constructive trust, resulting trust, and purchase money resulting trust are dismissed.

iv. The plaintiffs are solely responsible for the mortgage registered in favour of Esther Gerstel Inc. in the amount of $400,000.

v. The plaintiffs are not entitled to recover renovation costs alleged to have been incurred in 2018 or the expenses in 2011.

vi. The plaintiffs shall provide an accounting for the income derived and the expenses incurred and/or paid with respect to the Property from January 1, 2017, to the date of this judgment.

vii. Subject to paragraph (v), the plaintiffs are entitled to a contribution from the defendant to the extent of his interest, to expenses incurred for the Property, as a rental property, for the year 2017 and beyond.

viii. The defendant shall have judgment for net rental income, if any, from 2017 to the date of judgment.

ix. The defendant is the legal and beneficial owner of an undivided 33-percent interest in the 55 Cleta Drive property, as a tenant in common with the plaintiff, Mr. David.

x. The defendant shall have judgment directing a reference to an Associate Judge to conduct a sale of the 55 Cleta Drive property, and the Property shall be sold under the direction of the Associate Judge who may make all necessary inquiries and accounts to achieve that objective.

xi. The order of replevin is granted, and the plaintiff, Ms. David, shall forthwith deliver to Mr. Stiuca his personal belongings left at the matrimonial home.

xii. To the extent that either party is entitled to a monetary judgment for either a contribution to the expenses of the rental property (vii) or net rental income in the case of the defendant, Mr. Stiuca, that party is entitled to pre-judgment until the date of judgment.

XI. Costs

[171] If the parties are not able to agree on costs, I will consider written submissions based on the following schedule:

i. The defendant/plaintiff by counterclaim shall deliver costs submissions, including a Bill of Costs, Costs Outline, and dockets (or computer-generated dockets) no later than 30 days from the date of these Reasons.

ii. The plaintiffs/defendants by counterclaim shall deliver their responding submissions and supporting materials within 30 days thereafter.

iii. Reply submissions, if necessary, shall be delivered no later than five days thereafter.

[172] The costs submissions, excluding the Costs Outline, Bill of Costs and any supporting case law, must be no longer than five pages, double-spaced.

[173] Any authority referred to may be hyperlinked to a free online source for decisions.

[174] The costs submissions should also be provided in Word format and emailed to Ms. Diamante. All submissions and supporting materials on costs must also be uploaded to Caselines to the trial bundle.

A.P. Ramsay J.

Released: January 4, 2024

APPENDIX A

I. Partition Act, R.S.O. 1990, c. P.4, ss. 2, 3(1)

Who may be compelled to make partition or sale

All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.

Who may bring action or make application for partition

3 (1). Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.

II. Statute of Frauds, R.S.O. 1990, c. S.19, s. 9

Declarations or creations of trusts of land to be in writing

Subject to section 10, all declarations or creations of trusts or confidences of any lands, tenements or hereditaments shall be manifested and proved by a writing signed by the party who is by law enabled to declare such trust, or by his or her last will in writing, or else they are void and of no effect.

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANTONY DAVID and MARIA DAVID

Plaintiffs

– and –

DAN STIUCA

Defendant

REASONS FOR JUDGMENT