Court File and Appearances

Court File No.: FC-24-077
Date: 2025-03-06
Superior Court of Justice – Ontario

Re: Cathy Sheila Frank, Applicant
And: James Scott Bradley Martin, Respondent

Before: Barbara A. MacFarlane

Counsel:
Elli Cohen, for the Applicant
Isaac Paonessa, for the Respondent

Heard: 2024-12-04

Endorsement

Overview

[1] The parties were in a common-law relationship for approximately twenty-six (26) years. During that time, they purchased a home jointly and at times worked together. Both were practising medical doctors for much of their relationship. Approximately 5 years after their retirement, the parties separated but have remained living in the home. The Applicant seeks the listing and sale of the home, as well as spousal support. The Respondent denies the Applicant’s entitlement to spousal support and, on a cross-motion, seeks a resulting trust on the jointly held property, with a vesting order.

Decision

[2] For the reasons articulated below, I am satisfied that the Applicant holds joint ownership in the Property, which shall be listed for sale according to the terms specified. Furthermore, the Applicant has demonstrated a prima facie entitlement to interim spousal support. Considering the established long-term common-law spousal relationship, I am satisfied that the parties' intention was to hold the Property as joint owners. Consequently, the Respondent’s motion is dismissed.

Background Facts

[3] Both parties were licensed medical doctors and initially met during the Respondent’s advanced medical training when the Applicant was a lab technician (the Applicant subsequently obtained a medical degree). The parties are no longer licensed to practice medicine.

[4] After dating for approximately three years, the parties began cohabitating in or about 1997 but did not marry during their 26-year relationship. There are no children of the relationship. Both parties have children from previous relationships, but at least two of the Applicant’s three children were teenagers when the cohabitation began.

[5] The parties retired together, but five years later separated on June 15, 2023. At the time of separation, the Respondent was 74 years old, and the Applicant was 66 years old, indicating they retired at approximately 69 and 61 respectively.

[6] The Respondent was a licensed medical doctor since 1976 and worked as a family doctor for several years until he completed a fellowship as an Obstetrician and Gynecologist working in fertility medicine at the University Hospital, where he continued working. In 2000, the Respondent opened a private fertility clinic, Southern Ontario Fertility Clinic Inc. (“SOFT Inc.”) and he remains the sole shareholder of the corporation. He sold his business at retirement but retains the corporation as a holding company for investment purposes.

[7] The Applicant was a lab technician at University Hospital since approximately 1979. In 1994, the Applicant went to medical school in Hamilton, moving her three children with her. She obtained her medical degree in 1997. The parties agree that it was a joint decision to live together, and that the Applicant would move to London, Ontario with her children to complete a five-year residency in Obstetrics and Gynecology at the University of Western Ontario. The Applicant moved into the Respondent’s condominium.

[8] The Applicant worked in private practice in Obstetrics and Gynecology from 2000 until 2010, referring some of her patients to the Respondent’s fertility clinic. Starting in 2006 there were restrictions imposed on the Applicant’s medical licence due to an ongoing investigation by the College of Physician and Surgeons (“CPSO”). There was also litigation. Ultimately, she resigned from her position at St. Thomas General Hospital.

[9] In 2010, and until retirement, the Applicant worked at SOFT Inc. as a physician but also did administrative tasks for the company, retaining her OHIP billings as her income. In 2012, the Applicant suffered a fractured pelvis and other injuries, requiring surgical procedures and periods of time away from work for recovery. The injuries led to long term issues, and the Applicant’s income was reduced. The Applicant admits that being in a relationship with the Respondent did not slow down her career, but she would not admit that she was financially independent. She earned approximately $350,000 annually at one point.

[10] In 2006, the parties moved to the property located at 31177 Fingal Line, Fingal, ON (the “Property”), which was closer to the Applicant’s clinic. The parties jointly searched for the Property. In addition to the residence, having large acreage permitted them to have farm animals, a barn (with an apartment), an airplane hangar/shed and workshop. The parties agree that the Property was intended to be their “forever home”.

[11] The Property was purchased as “joint tenants”, which was understood to give right of survivorship to each other.

[12] The Applicant contributed $50,000 toward the downpayment for the Property. The Respondent paid for bridge financing, until he sold his condominium and used the proceeds of the sale to fund the Property. The balance of the funding for the purchase was through a joint mortgage, paid from a joint bank account.

[13] An appraisal obtained by the Respondent puts the value of the Property at $1,550,000 as of 2024.

[14] The Respondent paid most of the expenses for the Property, including the mortgage, property taxes and insurance. The Applicant contributed to other expenses, including paying for groceries, furniture, household items, and other expenses for the Property.

[15] The parties shared the household responsibilities, with the Applicant largely responsible for indoor domestic tasks, but also contributing to seasonal maintenance, planting, weeding, and caring for the animals. The Respondent was largely responsible for the outside home maintenance, including lawn maintenance and caring for the animals. The Applicant was significantly involved in the renovation projects to the Property, arranging the home to suit their needs.

[16] The parties travelled together extensively, most of which was funded by the Respondent. The Respondent agrees that he would pay the “lion’s share” of expenses during their relationship. The Applicant says that during her working years she supported her three children, repaid her significant educational loans, and paid legal fees relating to the CPSO issues.

[17] It was agreed that the parties jointly engage in tax planning, including income splitting from the Respondent’s corporation. The parties planned their financial retirement jointly through the Respondent’s financial advisors. They specifically delayed Canada Pension payments until age 70 and “locked-in” the Applicant’s retirement pension. The Applicant’s position is that she has been financially dependent on the Respondent since 2010 and continuing into their retirement.

[18] The parties each filed financial statements.

[19] The Applicant’s annual income reported in her Financial Statement is $65,338.92.

[20] The Respondent’s annual income reported in his Financial Statement is $287,851.68.

Issues

[21] The Applicant seeks spousal support and a listing of the Property for sale under the Partition Act.

[22] The Respondent seeks a declaration that the Applicant holds her interest in the Property in trust for him and that the joint property should vest to him under s.100 of the Courts of Justice Act, or Rule 28 of the Family Law Rules. Alternatively, the Respondent seeks the right of first refusal to purchase the Property and seeks an unequal distribution of the proceeds of the Property, in accordance with his resulting trust claim or other equitable relief.

[23] The issues to determine on this motion are as follows:

a. Whether the Applicant held her interest in the joint property in trust for the Respondent on the basis of a resulting trust and, if so, should it vest to him?
b. Whether the Property should be listed for sale and, if so, on what terms?
c. Whether the Applicant is entitled to interim spousal support and, if so, at what amount?

Analysis

[24] The Property is held as joint tenants, creating a presumption of equal ownership. The Applicant seeks to list the property for sale and seeks spousal support, based on her financial disadvantage since the breakdown of their long-term spousal relationship.

[25] The Respondent claims an unequal share of, or full title to, the Property based on a resulting trust and seeks a vesting order. If granted, this would prevent the Applicant from selling the Property and would reduce her interest, if any, in the Property. The Respondent denies the Applicant is entitled to spousal support on the basis that she has significant assets and sufficient income to meet her needs.

Trusts in a Spousal Relationship

[26] The Respondent argues that his unequal financial contributions to the Property unjustly enriched the Applicant. He points to payments for a bridge financing loan, closing costs, a larger down payment, mortgage loan installments, property taxes, and home insurance.

[27] The Applicant opposes the Respondent's claims, asserting entitlement to a fifty percent (50%) legal or beneficial interest in the Property, thereby precluding an unequal trust. She bases her claim on her financial and non-financial contributions to the domestic partnership, which benefited the Respondent. She contends that the Respondent's financial contributions at the time of purchase were not intended as a gift, considering their long-standing relationship and lifestyle.

[28] As established in Pecore v. Pecore, 2007 SCC 17, a resulting trust is founded on the obligation to return property to the original title holder. This obligation arises when the current title holder acts as a fiduciary or has provided no consideration for the property. While legal title is typically held by the trustee, equitable title may also be held in exceptional circumstances.

[29] There is a rebuttable presumption of resulting trust that generally applies to gratuitous transfers; because equity presumes bargains, not gifts: Pecore, at para. 24. However, as noted by Cory, J., this presumption depends on the relationship between the transferor and the transferee. In certain relationships, such as between spouses or parent and child, the presumption of a resulting trust does not arise. Instead, there will be a presumption of advancement: Pecore, at paras. 27-28.

[30] The “judge will commence the inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention”: Pecore at para. 44; Chechui v. Nieman, 2017 ONCA 669, para 59.

[31] Kerr v. Baranow, 2011 SCC 10 is a leading case regarding trust claims in domestic relationships. The crucial element in both situations is the "gratuitous" nature of the transaction. The absence of an exchange of value leads the law to presume that a gift was not intended.

[32] The common law of unjust enrichment recognizes that some unmarried domestic arrangements may justify remedies when one party disproportionately retains assets acquired through joint efforts. Such sharing, however, is not presumed, nor is it presumed that jointly acquired wealth will be equally shared. Cohabitation alone does not entitle one party to another's property or other relief. However, where there are joint efforts, demonstrated by the nature of the parties' relationship and dealings, that led to wealth accumulation, unjust enrichment law should provide a remedy. It is an equitable remedy. The circumstances of the relationship should be considered, focusing on how they actually lived their lives rather than how they should have lived their lives: Kerr, at paras. 85-87.

[33] Relevant factors to consider in domestic relationships include the parties’ mutual effort, their economic integration, their actual intentions, and their prioritization of the family: Kerr, at para. 89.

[34] There is no dispute that there was a disproportionate share in the downpayment for the purchase of the Property. The Applicant paid $50,000 and the Respondent paid $100,000 toward the downpayment. The Respondent paid the additional expenses relating to the transfer of the Property at the time of purchase. The Respondent subsequently paid for the mortgage, taxes and insurance.

[35] At the time of the purchase of the Property, however, the evidence does not support that the Respondent’s higher financial contributions to the Property were intended to be a gift. The conduct of the parties shows that there was an intention that the Property be held jointly with an equal sharing. In this case, it is compelling that the parties were in a long-term domestic relationship by the time they purchased the Property. As explained in more detail below, they had, and continued, to manage their financial affairs in the same manner prior to purchasing the Property, with the Respondent disproportionately paying for the lifestyle they enjoyed together.

[36] It is undisputed that they regularly sought financial advice together as a couple, engaged in income splitting and other tax planning strategies, including financial planning for retirement. The parties shared their lives and wealth during their relationship. The Respondent was the higher income earner both before and after retirement. He holds significant assets, substantially higher than the Applicant. The Respondent accepts that he paid the “lion’s share” of their expenses throughout.

[37] While the Respondent paid for the Property’s direct expenses, the Applicant contributed to other jointly beneficial expenses and provided domestic services, as well as enhancements to the Property. The Applicant's contributions included purchasing groceries, home furnishings, managing renovations, performing most of the domestic chores, and jointly caring for the Property and their animals.

[38] This conduct, in my view, supports a finding that the parties operated under shared, perhaps unspoken, understandings or assumptions about their future together, before and after they purchased the Property.

[39] Both parties collaborated on finding their "forever home" and jointly determined that this Property would suit their requirements for their future together. The Property was purchased as joint tenants. The mortgage and associated bank account was held jointly. At no time during the acquisition of the Property, nor in the ensuing 18 years, was an agreement made to provide for an unequal share.

[40] The parties' chosen financial management style satisfies me that the Respondent did not intend his higher monetary contributions to the Property to be a gift, rather than joint tenants, at the time of purchase or after.

[41] On the evidence I am satisfied that the Applicant was not unjustly enriched by the Respondent’s unequal contributions to the Property. I find that the actual intention of the parties was to purchase the Property jointly for their future, and indeed they lived on the Property for 18-years, during which time the Applicant provided benefits to the Respondent.

[42] Finally, I find no juristic reason to impose a resulting trust in these circumstances. The Respondent did not assert a claim for an unequal share in the joint tenancy, even when opportunities arose, such as refinancing. He declared his intention only after this Application was initiated.

[43] The Respondent's claim of 'unclean hands,' grounded in the Applicant's refusal to provide her son's contact details concerning alleged rental arrears, is not persuasive within this family dispute. The Applicant's credibility, as challenged by the Respondent, does not support a finding of 'unclean hands.' For example, the Applicant maintaining they were married, despite its legal inaccuracy, appears to reflect a long-held personal belief after 26 years, that they were spouses. It does not demonstrate an intention to mislead the Court.

[44] I decline to grant the equitable relief of resulting trust for an unequal distribution of the Property. In the circumstances, there will be no vesting order.

Joint Property is to be Listed for Sale

[45] A joint tenant has a presumptive right to the partition or sale of the property: Partition Act, RSO 1990, c P.4, ss. 2-3; Couvillon v. Douglas Coughler, 2023 ONSC 4745, paras 23-24. The court has very little discretion to deny a sale of property. The resisting party must demonstrate sufficient reasons for the refusal, by establishing malicious, vexatious, or oppressive conduct: Couvillon, at para. 24, relying on Silva v. Silva and Greenbanktree Power Corp. v. Coinamatic Canada Inc..

[46] The Respondent opposes the sale of the Property, but has led no evidence of malicious, vexatious, or oppressive conduct. His central contention is that a forced sale would cause him oppressive hardship on the basis that it requires him to leave the home he loves. However, this assertion is insufficient to overcome the presumptive right to sell.

[47] The Respondent has the financial resources to find alternative housing. His estimated value of the Property is $1,550,000.00 and the Property is unencumbered, with significant equity available to be shared by the parties. Additionally, he draws a significant income from his investments. While the sale of his "forever home" will undoubtedly be emotionally challenging, it does not meet the legal threshold for denying the sale.

[48] I find that the Property should be listed for sale on the open market. A single appraisal, obtained by only one party, is insufficient to establish fair market value. Listing the Property is the most reliable method for determining its true fair market value: Buttar v. Buttar, 2013 ONCA 517. I decline to decide the valuation of the Property in the circumstances.

[49] In accordance with the Partition Act, consent of the Respondent to list, effect and close the sale of the Property is dispensed with. However, there is an expectation that the parties will work cooperatively in the sale of the Property in accordance with the terms set out below, failing which, the Applicant will list, effect and close the sale of the Property.

[50] Although this court may require the parties to participate in the sale of the home on the open market, it does not have jurisdiction under the Partition Act to grant the Respondent a right of first refusal: Brienza v. Brienza, 2014 ONSC 6942, paras 37-38. I decline to make such an Order in favour of either party. However, either party is permitted to purchase the Property for fair market value once the Property is listed for sale, and no reasonable offer from the party should be refused, relying on the advice of a reasonable realtor.

There is an Entitlement to Spousal Support

[51] It is undisputed that the parties were spouses within the meaning of section 29 of the Family Law Act, RSO 1990, c F.3. It was a long-term domestic relationship where the parties cohabitated for approximately 26 years.

[52] The court may make an order for interim or final spousal support pursuant to sections 33 and 34 of the Family Law Act. Section 33(8) and (9) set out factors and considerations when determining entitlement to spousal support.

[53] The Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa, Department of Justice Canada, April 2016) themselves also provide considerations in determining issues of spousal support.

[54] The entitlement to spousal support may arise from a contractual, compensatory, or non-compensatory basis: Bracklow v. Bracklow, para 37. In this case, there are no contractual obligations but there may be compensatory or non-compensatory entitlement.

[55] Based on the evidence, I am not persuaded, on an interim basis, that the Applicant has a prima facie compensatory claim for spousal support. While her evidence is that she did not pursue her first choice of residency due to the Respondent’s unwillingness to relocate, there is evidence that it did not impact her ability to earn income or acquire pension investments.

[56] However, I find that the Applicant has shown a prima facie right to spousal support on a non-compensatory basis. In Bracklow, at para. 49, non-compensatory support was noted to be an obligation to support beyond any contractual or compensatory basis, as marriage is a “joint endeavour” and “socio-economic partnership”.

[57] The objective of spousal support after a lengthy relationship is to provide the recipient with a reasonable standard of living, assessed in relation to the standard of living they enjoyed during the relationship. This principle was established by the Supreme Court of Canada in Moge v. Moge, p. 870:

As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.

[58] On an interim basis, the court should not be required to do an in-depth analysis of the parties’ circumstances. A support order should consider the needs and abilities of the parties and permit the applicant to continue living at the same standard of living he or she enjoyed prior to separation if the payor’s ability to pay warrants it: Giglio v. Giglio, 2015 ONSC 8039, para 32.

[59] In my view, this case aligns with the principles articulated in Bracklow. While the early years of their relationship may have had less of a dependent nature, it is evident that the Respondent covered much of the Applicant’s needs and standard of living. Additionally, both parties arranged their finances to accord with a mutual benefit, and notably arranged financial planning for their retirement. At the time of the breakdown of the spousal domestic relationship, both parties were retired and had given up their licence to practice medicine. The Applicant is now in a state of economic disadvantage or hardship, comparatively speaking.

[60] Case law is clear that on a motion for temporary spousal support, the claimant is not required to prove entitlement on the balance of probabilities, as would be the case at trial: Madill v. Madill, 2018 ONSC 7164, para 21, citing Lamb v. Watt, 2017 ONSC 5838, para 20.

[61] Based on the length of the domestic relationship, the age of the parties, the Applicant’s disadvantage on retirement with a deferral of her pension plans, the Applicant’s needs, and the Respondent’s financial ability to pay, I find that the Applicant has provided sufficient evidence for a basis for an interim entitlement to spousal support.

Amount of Spousal Support Payable

[62] Section 33(9) of the Family Law Act provides an expansive list of considerations in determining the amount and duration of support, including but not limited to the length of cohabitation, the impact of responsibilities assumed during cohabitation on a spouse’s earning capacity, and any housekeeping, childcare, or other domestic service performed by the spouse in lieu of remunerative employment.

[63] On this motion for interim support, I reject the Respondent’s contention that the Applicant should be self-sufficient. As noted in Fisher v. Fisher, 2008 ONCA 11, para 53:

Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation. See Linton v. Linton, 1 O.R. (3d) 1, [1990] O.J. No. 2267 (C.A.), at pp. 27-28 O.R. Thus, a determination of self-sufficiency requires consideration of the parties' present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase a party's means, the parties' likely post-separation circumstances (including the impact of equalization of their property), the duration of their cohabitation and any other relevant factors.

[64] It is apparent that there is a significant difference in the Applicant’s standard of living due to the breakdown of the marriage. Additionally, the Applicant is no longer licenced to practice medicine, is over the age of 65 and has not been working.

[65] I find that the Respondent has sufficient means to pay spousal support given his post-retirement annual income and significant investments. On an interim basis I find that the Respondent must pay spousal support on the lower end of the estimated spousal support based on the Spousal Support Guidelines. The amount payable by the Respondent to the Applicant is $6,029.00 per month.

[66] I decline to make an order for security for the spousal support amount because it is on an interim basis and there remains an unencumbered property.

Costs

[67] The Applicant filed a Bill of Costs. The parties have not provided their written submissions for costs. The parties are encouraged to come to an agreement on costs but if they are unable to do so, the parties may submit no more than two pages, plus Bills of Costs. The Applicant will file her submissions by March 27, 2025 and the Respondent will file his submissions by April 17, 2025.

Conclusion

[68] For the reasons stated above, it is ordered that:

1. The Applicant, Cathy Sheila Frank, and the Respondent, James Scott Bradley Martin, shall sign all paperwork and documents necessary to list and sell the home without delay, and shall further adhere to the following terms:

   (a) Each may engage their own realtor to work cooperatively to list the property for sale, if the parties are unable to reach an agreement on a mutual realtor within 10 days of this Order;

   (b) The marketing and sale of the property shall be arranged by the chosen realtor(s), acting reasonably;

   (c) The parties shall each retain the services of a real estate conveyancing lawyer of their choice to represent them separately in respect of the sale of the property, if they are unable to agree on jointly retaining a real estate conveyancing lawyer within 10 days of this Order;

   (d) The property shall be listed forthwith at a price recommended by the chosen realtor(s) acting reasonably and sold in a commercially reasonable manner including being listed with the Multiple Listing Service on the open market and each party shall promptly execute all documentation to effect same;

   (e) The parties shall pay out all realtor fees and all associated costs of disposition with respect to the property out of the proceeds of the sale on consent, and failing which the Respondent's consent is dispensed with for closing;

   (f) The parties shall co-operate in permitting full access to the property by OREA registered and licensed real estate agents and/or brokers via a lock box;

   (g) The parties shall cooperate with and follow all recommendations by the chosen realtor, which shall include but not be limited to:

   i. Listing price;
   ii. Staging;
   iii. Attendance of a photographer to list the property with the Multiple Listing Service website;
   iv. Maintaining the property at all times in a clean, tidy, and marketable condition;
   v. Executing any and all documentation necessary to ensure the ongoing commercially reasonable marketing and sale of the home including Listing Agreements, Offers to Purchase, Agreements of Purchase and Sale and any and all closing documentation following thereon;
   vi. Vacating the property (including with any and all other occupants or tenants of the properties) at the time of any showing and for open houses;
   vii. Facilitating open house showings;
   viii. Placement of a “For Sale” sign, etcetera on the property.

   (h) The proceeds of the sale, subject to the usual adjustments less encumbrances going to title or conveyancing, and less the commissions and legal fees disbursed from the proceeds, will be held in trust by the Applicant’s legal counsel, pending distribution between the parties.

2. On an interim basis the Respondent will pay the Applicant spousal support in the amount of $6,029.00 per month.

Justice Barbara A. MacFarlane
Date: March 6, 2025