Reasons on Motion
Introduction
The applicant, Jose Silva, moves for a certificate of pending litigation (“CPL”) to be registered against a residential property (the “house”) once owned by his late son Matthew and his daughter-in-law, the respondent, and now owned by the respondent alone.
For the reasons which follow, the motion is dismissed.
Background
Matthew and the respondent entered into a rent-to-own arrangement with the prior owners of the house, which is located in Norfolk County. They eventually did, on December 2, 2020, purchase the house as joint tenants for a total amount of just over $483,000.00. Of that total, $14,000 was paid through the rent-to-own arrangement, and $2,000.00 was paid by Matthew and the respondent. A total of $35,133.57 was paid in two installments by the applicant: $23,000.00 by way of a cheque for the downpayment and a further $12,133.57 paid on closing. The balance of the purchase price was paid through two mortgages.
Thereafter, Matthew and the respondent lived at the house, made mortgage payments and paid for its upkeep. They made significant renovations to the house. Eventually, on December 28, 2021, they refinanced and replaced the two original mortgages with a single mortgage in the amount of $769,000.00 held by CIBC.
Sadly, Matthew died by suicide on September 22, 2024. He left no will. As Matthew and the respondent owned the house as joint tenants, the respondent became the sole owner of the house. She has since moved to Portugal and listed the house for sale.
It is evident that the applicant and the respondent have a very poor relationship. He blames her for Matthew’s death and for moving his grandson to Portugal. The applicant also complains about the way in which the respondent disposed of some of Matthew’s belongings.
For her part, the respondent claims that the applicant was controlling and abusive of her, of Matthew, and of their son. There is evidence that the Children’s Aid Society noted the adult conflict—including violence against the respondent—between the respondent and the applicant, his wife and his daughter. The Society therefore objected to the child being taken to the applicant’s home where he might be exposed to that conflict. The respondent asserts that the applicant arranged to have the utilities cut off at the house after Matthew’s death and while she was still living in it, and that the applicant’s daughter, Melisa, attempted to impersonate her to access Matthew’s life insurance funds and has been charged criminally in connection with that attempt.[1] The applicant has also taken steps to be the trustee for Matthew’s estate.
In any case, the applicant claims an interest in the house. The basis for this interest is variously described as follows:
In the notice of application, the applicant seeks a declaration that all of Matthew’s assets “are impressed with a resulting trust for the benefit of [Matthew’s estate] or for the benefit of [the applicant].” The grounds for the requested relief include that the respondent made no contribution to the purchase or maintenance of the house and that only the applicant and Matthew provided funds for its purchase. It is asserted that the respondent “holds said assets in trust for the benefit of the estate of [Matthew] or in trust for [the applicant].”
In the notice of motion, the applicant claims that he and Matthew “provided the money for the purchase of the [house]” and that the respondent contributed nothing. It is acknowledged that Matthew attended to the upkeep and carrying costs for the house, but that the “respondent held the [house] in trust for the applicant, for his person and/or for the benefit of the estate of [Matthew].” The notice of motion asserts that the “intent of the respondent and [Matthew] was unanimously to acquire the land in trust.”
In his affidavit, the applicant says that he agreed to provide a $36,725.00 downpayment “towards the purchase of the [house], in consideration of getting paid an equal share of the net sale proceeds from the [house] or full amount of down-payment along with a reasonable rate of interest.” The applicant’s affidavit is silent on who paid for the upkeep and carrying costs of the house after it was purchased.
The applicant’s daughter swore in her affidavit that, at the same time, both she and Matthew were provided with no interest loans from the applicant to assist them in purchasing their respective first homes. She swore that there was a verbal agreement “that these funds would be repaid when we sold our homes.” On cross-examination, the applicant agreed that the loan to Matthew “was to be interest free and it’s – and I – a, a percentage might be put in later on, if I were decided [sic] about it. But we never came up with a number.”
In a letter sent to the respondent shortly after Matthew’s death, the applicant’s solicitor asserted that Matthew and the respondent “both agreed and took a no interest loan of [$23,000] … as a downpayment” on the purchase of the house. The solicitor continues as follows: “The repayment of this no interest loan has yet to be satisfied and, as agreed by all parties, shall be repaid to [the applicant] at earliest of either a lump sum or from the sale proceeds of the [house].” No reference to the existence of any trust is made in the letter, nor to any other interest in the property.
In his factum, the applicant says that the money provided to Matthew and the respondent to purchase the house “was a loan” but also says that it was agreed by Matthew and the respondent that the applicant would “receive either an equal share of the net sale proceeds if the house was ever sold or repayment of the full amount along with a reasonable rate of interest.” It is further asserted that the respondent holds the house in trust for the applicant or for Matthew’s estate.
The respondent denies that she made no contribution to the purchase and maintenance of the house, noting that she was employed during the relevant times.[2] In addition, she says that her understanding was that the money provided by the applicant at the time of the purchase of the house was a gift to Matthew and her. In any case, the respondent says that she cannot maintain the house now and needs to sell it for her benefit and that of her son.
Discussion
Leave to obtain and register a CPL may be granted where the applicant establishes a reasonable claim to an interest in the land in question or raises a triable issue with respect to same. Where such a claim or triable issue is shown, the court may then consider other factors in determining whether the CPL should issue. These factors include, among others, whether the land in question is unique, whether there is an alternative claim for damages, the balance of convenience, whether the CPL appears to be sought for an improper purpose, and any other relevant factor: 2254069 Ontario Inc. v. Kim, 2017 ONSC 5003, at paras. 20–23, 30–31; Desjardins v. Rossi, at paras. 21–22, 28–29; Perruzza v. Spatone, 2010 ONSC 841, at para. 20; Courts of Justice Act, RSO 1990, c C.43, s. 103(6).
As to the threshold question of whether the applicant has shown a triable issue with respect to a claim to an interest in the land, I have concluded that this requirement has been met. Although I am far from satisfied that the applicant’s claim is a strong one, especially given what appears to me to be significant inconsistencies and gaps in the evidence tendered by the applicant (and forceful arguments for the respondent[3]), it seems to me that he has led evidence of a gratuitous payment or payments made for the benefit of Matthew and the respondent at the time that they purchased the house. He has also led evidence, corroborated to some extent by the evidence of his daughter, that these payments were intended to be loans which would be repaid either when the house was sold or earlier.
It is arguable (or triable) then, that the applicant’s actual intention was to loan money to Matthew and the respondent, and that the consequence of that intention was the creation of a resulting trust at the time of the purchase of the house. Equity presumes such a resulting trust because it presumes that transfers are not gifts, they are the result of bargains: Kerr v. Baranow, 2011 SCC 10, at paras. 16–19; Pecore v. Pecore, 2007 SCC 17, at para. 24.
I turn then to the various factors which will determine whether a CPL should issue where the applicant has raised a triable issue.
In this case, it seems to me that relevant factors are as follows:
Before launching this litigation, the applicant made a demand through his solicitor that the alleged no-interest loan of $23,000.00 be repaid by the respondent. He did not claim an interest in the land, he sought to be repaid. In other words, the applicant made it plain that the payment of money—rather than an interest in real property—was an appropriate way of dealing with the alleged debt in this case.[4] A CPL is not intended to secure a claim for damages, it is intended to protect an interest in land: Nabizadeh v. Manifar, 2015 ONSC 5503, at para. 19.
At no point did the applicant take steps to reduce the alleged loan agreement or trust arrangement to writing. In addition, the varying and inconsistent and vague descriptions in the evidence of the nature of the arrangement that the applicant allegedly made with Matthew and the respondent weigh heavily against the credibility of the claim that there was any such arrangement. More specifically, the applicant’s claim that he was entitled to “an equal share of the net sale proceeds from the [house]” is vague (equal to what or to whom?), internally inconsistent with the contemporaneously made claim for the repayment of the amount loaned with or without a “reasonable rate of interest” (and therefore makes little or no sense) and is nowhere corroborated in the evidence.
In this respect, I note that even if a resulting trust is established, it is far from clear to me that the applicant would be entitled to be repaid anything other than what was allegedly loaned (possibly plus interest). In other words, given that he did not pay for the upkeep of the property, or the renovations, or the mortgage after the house was purchased,[5] he may well not be entitled to share in any increase in the value of the home: Ferreira v. Macedo, 2015 ONSC 2656, at paras. 25–28. It would therefore be inequitable to attach a CPL to the whole of the house when only a small percentage of it is affected by the triable issue in this case.
This also affects the balance of convenience. In other words, while I accept that the respondent’s residence in another country is relevant to an assessment of the balance of convenience, that must be weighed against the fact that the respondent is a single mother who needs the money which would be generated by a sale of the house.
Although I accept that the applicant regards the house as a unique property because it was the home in which his late son lived, and which was improved through renovations by Matthew, in the absence of evidence that the applicant actually intends to use the house, this factor carries little weight. At best, the applicant says that he may have some interest in purchasing the house “if the price is right.”
Finally, the evidence suggests that the CPL is sought for an improper purpose, not merely to protect an interest in land. As I have already noted, the applicant harbours a deep dislike for the respondent. Although there is other evidence to which I could point, I refer to the cross-examination of the applicant where counsel for the respondent attempted to get the applicant to quantify how much money he was owed by the respondent. At one point, the applicant estimated the amount at $57,000 but said that there may be other amounts owed. His counsel refused to undertake to supply particulars of the applicant’s damages. The following exchange then occurred, in which the applicant made his motivations clear:
Q. Okay, so you’re feeling like you deserve more than money, is that what you’re saying?
A. The, the—at the end of the day, this whole thing isn’t even about money, you know. It’s about my grandson, that she took it away—ripped out of our hearts and took, to, to a country where he didn’t speak Portuguese. She enrolled him in a school, he doesn’t speak Portuguese. She ripped his house out of him where he was lived most of his, of his time. She took his school away, she took his friends away, his grandparents, his cousins. What do you think it did to that child? She destroyed my grandson’s brain. And trying to say that my grandson’s being destroyed by me, no. She destroyed his brain. My grandson is, is scarred for life because of what she did to him. And she’s gonna pay. She’s gonna pay, because that grandson, I have rights to see him, and I am gonna see him, and I’m going to spend all the money that I want to, to get to the end of it. If she’s—at the end of the day, she did a lot of wrong things through this whole thing, by keeping my son—my grandson away from me after we lost our son. She didn’t care about for my son.
[At this point in his answer the applicant implied that the applicant had some role in Matthew’s death, that she took steps to conceal evidence, and that her report of finding Matthew dead was not credible. He then continued as follows.]
So there’s a lot of things here that is in question. She—you do not go and, and, and destroy somebody’s son, and, and, and make them commit suicide, because he commit suicide because of her, and then run away with, with what’s last from my son. That’s not gonna happen. She’s gonna pay the price here, in this earth, what she did here. Her and her family. They all gonna pay here, because I’m going after every one of them.
Q. Right, so this is about revenge, correct?
A. It’s not revenge, it’s what’s fair, it’s what’s right. You know, what’s—as human beings, there’s, there’s some type of dignity in, in a human, to do some good in this earth, not to do what she did. What she did was evil.
Q. So you want to punish her?
A. She’s gonna pay the price. Whatever by law it is, that I can do it by law, she’s gonna pay for it.
In summary then, the applicant advances an arguable but weak claim for an interest in land based on evidence with obvious credibility and reliability problems, which claim could, if made out, be satisfied by damages in an amount much less than the total value of the house, in a case where the respondent needs to be able to sell the subject property so that she can access the equity in it for the living expenses of her and her son, and where it appears that the entire application is motivated by malice and much less by any alleged interest in land.
Conclusion
In all these circumstances, the CPL should not issue. The motion is therefore dismissed.
The respondent may serve and file brief written submissions respecting costs within seven days of the release of these reasons directed to my attention by email to my judicial assistant at mona.goodwin@ontario.ca and Kitchener.SCJJA@ontario.ca. The applicant may serve and file brief responding submissions within 14 days of the release of the reasons. Reply submissions, if any, may be served and filed within 17 days of the release of the reasons.
I.R. Smith
Released: April 22, 2025
1I note that Melisa refused to answer questions on this topic when she was cross-examined.
2As the respondent notes, even if she made no financial contribution, the law presumes that spouses who purchase properties jointly make an “equal contribution, whether by way of money or money’s worth”: Re Cameron, 2011 ONSC 6471, at paras. 39–40.
3Including (1) that as a joint tenant the house passed to the respondent effectively automatically when Matthew died, at which point Matthew’s interest was extinguished: Cameron, at para. 28–30; Jackson v. Rosenberg, 2024 ONCA 875, at para. 1; and (2) that the courts have approached cautiously efforts to declare matrimonial property to be a trust or loan rather than a gift in the absence of documentary evidence of the alleged trust or loan: Afatmirni v. Sharifi, 2024 ONSC 3471, at paras. 43–46; Barber v. McGee, 2015 ONSC 8054, aff’d 2017 ONCA 558; Ogundipe v. Apata, 2023 ONSC 6647, at paras. 50–53.
4This stands in contrast to the applicant’s affidavit, in which he asserts that “any restitution and/or award for damages would not remedy the sale of the property to a third party.”
5As noted above, in his affidavit, the applicant says nothing about the upkeep and carrying costs of the house after it was purchased. In the notice of motion, it is asserted that Matthew paid for these costs. On cross-examination, the applicant said that he made payments “here” and “there” to Matthew after Matthew and the respondent owned the house, some of which were “given to them from me, or loaned to them to be paid.” Some of these gifts or loans helped them make mortgage payments. However, the applicant said that these payments were not the subject of this application. He said that he knew that Matthew and the respondent would “never be in a position to pay these monies” and that he was “willing to forgive these monies.” I note that the evidence of Melisa respecting such payments to Matthew appear to be pure hearsay.