Ontario Superior Court of Justice

Court File No.: FS-20-00020125-0000
Date: 2025-02-18

Parties

Between:
Elena Reshetnikova (Applicant)
and
Wayne Rawlins and Joan Rawlins Singh (Respondents)

Appearances:

• Elena Reshetnikova, Self-Represented (Applicant)
• SA.A. Al-Baalawy, for the Respondent Wayne Rawlins
• Stephanie Tadeo, for the Respondent Joan Rawlins Singh

Heard: June 3, 4, 7, 10, 11, and July 22, and 29, 2024
Before: C. Rhinelander

Reasons for Decision

Overview

[1] The Applicant, Ms. Reshetnikova (“Elena”), and the Respondent, Mr. Rawlins (“Wayne”), were married July 2, 2018, and separated March 30, 2020. The parties resided at 261 Prescott Avenue, Toronto, Ontario M6N3G9 (“Prescott property”), the matrimonial home. This property is solely registered in Wayne’s name. Elena and Wayne each brought a motion for the sale and partition of the property and terms regarding its sale.

[2] The Respondent, Mrs. Rawlins-Singh (“Joan”) is Wayne’s mother. She filed a cross-motion claiming a 100% beneficial interest in the Prescott property.

[3] I have opted to use the first names of the parties, and wish to be respectful, however several members of the Rawlins family testified, and this will ensure completeness and no confusion.

[4] The motions were scheduled for August 17, 2023. The evidence in support of Joan’s claim was largely viva voce and the court would need to make determinations regarding credibility. Pursuant to Rule 14(7) of the Family Law Rules, Brownstone, J. ordered the motions relating to the Prescott property proceed as a trial of an issue with viva voce evidence and cross-examination.

[5] The trial was scheduled to proceed February 21 and 22, 2024. Joan sought and was granted an adjournment for several reasons, and the trial was rescheduled to proceed June 3–4, 2024, and was peremptory on all parties. Elena sought costs against Joan for the adjournment, Wayne did not. Written submissions were received, and the issue of costs was reserved to trial.

[6] The Court heard evidence June 3, 4, 7, 10, 11, and July 22, 2024, followed by submissions on that date and July 29, 2024.

[7] I have not considered or relied on any materials and/or documents filed/uploaded to Case Center that were not admitted into evidence as exhibits at the hearing.

Background

[8] Elena resides in the matrimonial home at 261 Prescott Avenue, Toronto, with her two children. Wayne is the father of the youngest child, S.R. On November 19, 2020, Akbarali, J. granted Elena exclusive possession of the matrimonial home on a without prejudice temporary, temporary basis, effective immediately. On the return of the ex-parte motion, Kraft, J. granted Elena temporary exclusive possession of the Prescott property.

[9] The Prescott property was first purchased by the Rawlins-Singh family March 31, 1993. It was obtained through a power of sale from Paul Segal for $185,000. Joan’s friend, David Duncan, and Wayne were registered on title. A charge in the amount of $180,143.75 was registered in favour of the Royal Bank of Canada.

[10] Title of the Prescott property was transferred to Joan and her husband, Rudolph Singh, on October 9, 1998. The purchase price of the home was noted as $249,000, and a charge in favour of SunLife Trust Co. was registered in the amount of $245,240.62. Joan and Rudolph took possession of the property as tenants in common, with 99% interest to Joan and 1% interest to Rudolph.

[11] On June 13, 2005, title of the Prescott property was transferred back to Wayne but with Kenisha Campbell, a former girlfriend of Michael Singh, another of Joan’s sons. Wayne and Kenisha took title of the home as tenants in common. Wayne’s interest was registered as 99% and Kenisha’s interest was 1%. The “sale price” of the home was noted as $295,000. A charge in the amount of $289,358.12 was registered on title in favour of the Scotia Mortgage Corp.

[12] On February 25, 2020, Wayne bought Kenisha’s interest in the Prescott property, making him the sole registered owner on title.

[13] Joan has resided in the Prescott property from 1993 until Elena obtained exclusive possession in November 2020. Wayne claimed to have lived there from 1993 to 1998, and again from 2014 until March 30, 2020. He has solely maintained the mortgage, property taxes, and insurance from 2014 to the present.

[14] Wayne holds legal title to the Prescott property, also the matrimonial home. Joan claims he holds legal title only for her sole benefit. Wayne has acknowledged his mother has some beneficial interest but not 100%.

Position of Parties

[15] Joan claims she has a 100% beneficial interest in the Prescott property, and Wayne held title solely for her benefit, by way of a resulting and/or constructive trust. Joan never intended for Wayne to have an ownership interest in the property and Wayne made little or no contribution to the property. Wayne’s payment of the mortgage, taxes, and insurance was in lieu of rent.

[16] Wayne does not dispute his mother has an interest in the Prescott property, but it does not exceed 50%. Wayne has not stated what percentage of an interest Joan has in the Prescott property but maintains his interest is not less than 50%.

[17] Elena claims Joan has no interest in the Prescott property, and it is owned solely by Wayne. She argued Joan and Wayne and other family members are colluding to prevent and interfere with her ability to obtain corollary relief, including obtaining an equalization of property.

Issues

[18] The ownership of the Prescott property must be determined first, namely, does Joan Rawlins-Singh have an interest in the Prescott property? If so, what is her interest? If the court finds Joan has a 100% interest in the Prescott property, all other issues are moot.

[19] If the court finds Joan does not have a 100% interest in the Prescott property, should the Court order its partition and sale?

[20] If the court orders the sale of the Prescott property, what terms should be imposed?

[21] Costs of the February trial adjournment.

Summary of the Evidence

(The full summary of the evidence, including the testimony of Joan Rawlins-Singh, Clifton Rawlins, Tristan Rawlins, Wayne Rawlins, and Elena Reshetnikova, is set out in the body of the judgment above. For brevity, the detailed witness evidence is not repeated here but is available in the full text.)

Analysis

Credibility and Reliability

[217] A determination of the issues before this court are largely based on the credibility and reliability of the witnesses. Credibility concerns the veracity of a witness; reliability involves the accuracy of the witness’s testimony. In this case, where relevant to a particular finding, I will address the credibility and reliability of the parties directly.

Issue #1: Does Joan Rawlins-Singh have an interest in the Prescott property? If so, what is her interest?

Resulting Trust

[219] In the leading case of Pecore v. Pecore, 2007 SCC 17, the majority decision written by Rothstein, J. held as follows:

[20] A resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner: see D. W. M. Waters, M. R. Gillen and L. D. Smith, eds., Waters’ Law of Trusts in Canada (3rd ed. 2005), at p. 362. While the trustee almost always has the legal title, in exceptional circumstances it is also possible that the trustee has equitable title: see Waters’ Law of Trusts, at p. 365, noting the case of Carter v. Carter (1969), 70 W.W.R. 237 (B.C.S.C.).

[24] The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts.

[55] Where a gratuitous transfer is being challenged, the trial judge must begin his or her inquiry by determining the proper presumption to apply and then weigh all the evidence relating to the actual intention of the transferor to determine whether the presumption has been rebutted.

[56] The traditional rule is that evidence adduced to show the intention of the transferor at the time of the transfer “ought to be contemporaneous, or nearly so”, to the transaction … The reason that subsequent acts and declarations have been viewed with mistrust by courts is because a transferor could have changed his or her mind subsequent to the transfer and because donors are not allowed to retract gifts. As noted by Huband J.A. in Dreger, at para. 33: “Self-serving statements after the event are too easily fabricated in order to bring about a desired result.”

[220] In my view the presumption of a resulting trust does not apply as I find Joan and Wayne each gave value for the Prescott property and had a common intention to jointly own the property as demonstrated below.

(The court’s detailed findings and reasoning follow in the full text.)

Constructive Trust

[243] A finding of a constructive trust is a remedy that may be available to a claimant if they can successfully prove a claim for unjust enrichment. Kerr v. Baranow, 2011 SCC 10. The doctrine of unjust enrichment seeks to restore a benefit to a party where justice does not permit one to retain it. To establish a right to recovery, a party must prove something was given and received and retained without juristic reason.

(The court’s detailed findings and reasoning follow in the full text.)

Issue #2: Partition and Sale

[252] Wayne and Elena seek the sale of the Prescott property pursuant to section 2 of the Partition Act, RSO 1990, c P.4.

[253] In Dhaliwal v. Dhaliwal, 2020 ONSC 3971 at paragraph 16, Justice Pazaratz summarized the applicable legal principles as follows:

(The court’s summary of the law and application to the facts follows in the full text.)

Issue #3: Terms of Sale

(The court’s detailed orders regarding the sale of the property, including the process for listing, selection of agents, and division of proceeds, are set out in the full text.)

Issue #4: Costs

(The court’s detailed reasons and orders regarding costs, including the costs of the adjournment and the hearing, are set out in the full text.)

Appendices

Appendix “A”: Prescott Property Title Transfers

(See full judgment for detailed table of title transfers, mortgages, and charges.)

Appendix “B”: 1916 Dufferin Street Title Transfers

(See full judgment for detailed table of title transfers, mortgages, and charges.)

Appendix “C”: 342 Harvie Street Title Transfers

(See full judgment for detailed table of title transfers, mortgages, and charges.)

Released: February 18, 2025

Justice C. Rhinelander

For the full reasons, including all evidence and findings, see the official decision.