Ontario Superior Court of Justice

Court File No.: FS-19-48
Date: 2025-04-28

Between

Vern Darchie Douglas
Applicant
Nelson E. Cavalheiro, for the Applicant

-and-

Marlene Francis
Respondent
Antal Bakaity, for the Respondent

Heard: November 27-29, 2024

Reasons for Judgment
Wilkinson

Introduction

[1] This matter proceeded by way of a trial. The Respondent, Marlene Francis, is the titled owner of the home where the parties lived during their lengthy cohabitation, located at 55 Timbertop Crescent in Brampton, Ontario. The Applicant, Vern Douglas, asserts that Ms. Francis has been unjustly enriched by his financial and other contributions towards the property. He seeks financial compensation, or in the alternative, a constructive trust in the property. This three-bedroom home was originally purchased by Ms. Francis and her sister, Monique Brissett, but Ms. Brissett never lived in the home.

Background

[2] The parties and Ms. Francis’ two daughters from a previous relationship moved into the home in 2004. At that time, the parties had been dating since the early 1990s, although Mr. Douglas was married to another person for much of their relationship. The evidence regarding the precise separation date of the parties was unclear. However, there is no dispute that Mr. Douglas had moved out of the home by June 2018.

[3] Mr. Douglas claims that Ms. Francis has been unjustly enriched by payments he claims he made to her to assist with the initial purchase of the property, and ongoing payments that he says were intended to contribute to the mortgage on the property. Mr. Douglas also performed some renovations at the home, which he says have unjustly enriched Ms. Francis as the titled owner of the home.

[4] Ms. Francis denies that she has been unjustly enriched by Mr. Douglas’ financial contributions and efforts to renovate the property. She disputes Mr. Douglas’ entitlement to a constructive trust in the property.

[5] There was no written agreement between the parties setting out the details of the financial arrangements between them during the course of their cohabitation.

[6] Ms. Francis’ sister originally purchased the property with her husband, with an $8,000 deposit. The home was not yet built. Unfortunately, the couple was facing both financial and marital difficulties. Ms. Brissett asked Ms. Francis, who works as a registered nurse, if she would go on title to the home, to permit the deal to still close.

[7] The parties provided conflicting evidence as to who paid the $8,000 deposit. Mr. Douglas testified that he paid the $8,000 deposit by cashing out an RRSP for $5,000 and providing the additional $3,000 to Ms. Brissett some time later. Ms. Francis testified that she paid the $8,000 deposit for the property by providing a $4,000 cheque to Ms. Brissett’s husband, and re-paying the remaining $4,000 to him over the next two years.

[8] On May 10, 2004, Ms. Francis and Ms. Brissett signed an Agreement of Purchase and Sale to purchase the property for $234,000, with a closing date of October 15, 2004. Ms. Brissett later reconciled with her husband, and chose not to move into the property, but agreed to remain on title with Ms. Francis.

[9] The mortgage on the property was in Ms. Francis’ name alone, as were the property tax statements. There is no dispute that Ms. Francis was the person who was responsible for ensuring that all the payments for the home were properly made, including the mortgage, property insurance, home insurance and utilities.

[10] Thirteen years after the property was purchased, the title to the property was transferred solely to Ms. Francis in 2017.

[11] The parties do not agree as to the extent of Mr. Douglas’ initial financial contribution towards a down payment for the mortgage, and the nature of his ongoing financial payments to Ms. Francis. Mr. Douglas takes the position that payments to Ms. Francis were intended to be contributions to the mortgage. Ms. Francis takes the position that these payments simply covered Mr. Douglas’ room and board expenses.

[12] Mr. Douglas also takes the position that he has completed numerous projects at the home which have increased the value of the home, and that Ms. Francis has been unjustly enriched by his efforts.

[13] When determining if Ms. Francis was unjustly enriched by Mr. Douglas’ financial and other contributions to the home, the following issues shall be considered:

1. Did Mr. Douglas contribute $8,000 towards the purchase of the home?
2. Did Mr. Douglas contribute to the mortgage on an ongoing basis?
3. Did Mr. Douglas contribute towards food costs and other household expenses during the parties’ cohabitation?
4. Did Mr. Douglas conduct repairs/renovations to the home, and if so, what is the value of his labour?
5. If Ms. Francis has been unjustly enriched, what is the remedy owed to Mr. Douglas for his contributions?
6. Were the parties engaged in a joint family venture?

[14] For the reasons that follow, I find that Mr. Douglas is entitled to $18,000 to be paid to him by Ms. Francis, in compensation for the renovations and other repairs performed at 55 Timbertop Crescent.

The Law

[15] The party claiming that another party has been unjustly enriched must establish three elements (Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 36-37):

1. An enrichment;
2. A corresponding deprivation; and
3. The absence of a juristic reason for the enrichment.

[16] To establish that Ms. Francis has been unjustly enriched by his contributions, Mr. Douglas must show that he gave something to Ms. Francis which she received and retained. The benefit must be tangible, have enriched Ms. Francis, and is capable of being restored to Mr. Douglas in specie or by money (Kerr, at para. 38).

[17] There is a two-step process to determine the lack of a juristic reason for Ms. Francis’ retention of a benefit given to her by Mr. Douglas. The first step is a consideration of the established categories of juristic reasons to deny recovery, such as the terms of a contract, the intention to make a gift, or other equitable or statutory obligations. If there is no juristic reason from an established category, then Mr. Douglas has made out a prima facie case under the first part of the test (Kerr, at para. 38).

[18] The prima facie case established by an Applicant is rebuttable where the Respondent can show there is another reason to deny recovery. The burden of proof is therefore shifted to the Respondent to show the reason why the enrichment should be retained. The court shall look to all of the circumstances of the transaction when determining if there is a reason to deny recovery, including in particular the reasonable expectation of the parties, and public policy considerations (Kerr, at para. 38).

[19] If Mr. Douglas establishes a claim for unjust enrichment, he may be entitled to either a monetary or proprietary award (Kerr, at para. 46). There are various ways to determine the value of a monetary award owed to an Applicant, including awarding the Applicant compensation for the monetary value received by the Respondent for unpaid services provided by the Applicant (Kerr, at para. 49).

[20] Where the joint efforts of the parties are linked to the accumulation of wealth, there can be an unjust enrichment if one party is left with a disproportionate share of the jointly earned assets. In these circumstances, the unjust enrichment may be most realistically characterized as a “joint family venture” (Kerr, at para. 60).

[21] Whether there was a joint family venture is a question of fact that may be assessed by considering all relevant circumstances between the parties, including mutual effort, economic integration, actual intent, and priority of family (Kerr, at para. 100).

[22] If a monetary award is inappropriate or insufficient, a proprietary award may be required where the Applicant can demonstrate a causal connection between his contributions and the acquisition, preservation, maintenance or improvement of the property. In this circumstance the Applicant can be granted a share of the property proportionate to the unjust enrichment as a constructive trust (Kerr, at para. 50).

Issue #1 – Did Mr. Douglas contribute $8,000 towards the purchase of the home?

[23] Mr. Douglas testified that he gave Ms. Francis $5,000 to give to her sister as a down payment on the house, and that the additional $3,000 was paid later by him. Mr. Douglas testified that he was able to make the withdrawal from the RRSP because the money was going towards the purchase of a house. Mr. Douglas provided a receipt slip dated February 17, 2004 showing that a $5,000 RRSP had been cashed in. However, he also produced a copy of his RRSP statement dated February 25, 2004, which confirms that $5,000 was then placed in a RRSP that was locked in for one year, with a maturity date of March 1, 2005.

[24] Mr. Douglas did not provide any documentation confirming that $5,000 was withdrawn from the locked in RRSP. He testified that he was unable to obtain this documentation from the bank given the passage of time.

[25] Ms. Francis testified that she was the person who paid the $8,000 down payment, and that she paid $9,782.54 in closing costs when the sale closed. Ms. Francis provided a copy of the Royal Bank receipt confirming the quantum of the closing costs. Ms. Francis testified that she was also unable to produce documentation confirming the $8,000 payment given the passage of time.

[26] Although neither party provided sufficient documentation to prove the position they are each advancing, Mr. Douglas has the burden of proof to establish that Ms. Francis was unjustly enriched by his financial contribution to the purchase of the home. He has not done so.

[27] I find the evidence of Ms. Francis to be overall more credible than the evidence of Mr. Douglas, who appeared to have little knowledge or awareness about the expenses related to the property, and how those expenses were paid. I find it unlikely that Mr. Douglas invested his full RRSP savings into the property, as he claims, given his lack of engagement with the financial viability and management of the property.

[28] I find that it is more probable that Ms. Francis repaid the $8,000 to Ms. Brissett’s husband, as it was her name that went on the title to the property along with Ms. Brissett. In addition, I accept Ms. Francis’ evidence that she paid $9,782.54 in closing costs which is reflected in the Royal Bank receipt produced by her.

[29] Mr. Douglas therefore failed to establish that Ms. Francis has been unjustly enriched regarding this issue.

Issue #2 – Did Mr. Douglas contribute to the mortgage on an ongoing basis?

Position of Mr. Douglas

[30] Mr. Douglas submits that the cash payments he regularly made to Ms. Francis were intended to be contributions to the mortgage. He argues that Ms. Francis will unjustly profit from his financial contributions if they are deemed to be only contributions for room and board as opposed to contributions to the mortgage.

[31] When the parties first moved into the home in October 2004, Mr. Douglas stated that he was paying Ms. Francis $400 cash every two weeks, but then he got a job and started to pay her $500 cash every two weeks.

[32] Mr. Douglas provided bank statements retroactive to May 2011. He was not able to produce any bank statements prior to that date. The bank statements show various withdrawals each month, which Mr. Douglas identified as payments that he gave to Ms. Francis towards the mortgage. He testified that the maximum amount Ms. Francis received from him per month was $1,000.

[33] The bank statements show a fairly consistent pattern of withdrawals in the range of $500 being made every two weeks, although there are certainly interruptions in that payment schedule, with some payments made for lower amounts, or sometimes not at all. Mr. Douglas testified that when he was out of work, or when he was not working because he was feeling unwell, the payments from him to Ms. Francis were for amounts lower than $500. He also testified that he gave Ms. Francis the Employment Insurance cheques he received when he was out of work.

[34] Mr. Douglas also testified that there was at least one period of two months when he was living in Jamaica, during which time he did not make payments to Ms. Francis. However, he stated that during this time Ms. Francis had his bank card, and she had access to his bank account.

[35] The evidence is unclear as to when the romantic relationship between the parties ended, but it is clear that the relationship was over by January 2017. Despite the end of the relationship, the parties continued to both live in the home, and Mr. Douglas continued to make payments to Ms. Francis, although generally at lesser amounts than he was paying before the parties separated. Mr. Douglas stated that May 10, 2018 was the last payment he made to Ms. Francis towards the mortgage, as Ms. Francis asked him to leave the home in June 2018. The bank statements produced confirm withdrawals totaling over $58,000 that Mr. Douglas says he paid to Ms. Francis during the time he lived in the home.

[36] Mr. Douglas submits that between May 2016 and June 2018 when he moved out of the house, his payments to Ms. Francis averaged $885.45 per month. Mr. Douglas argues that these payments represent more than half of the $1,600 per month that Ms. Francis testified she paid for mortgage and property tax payments during this period.

[37] Mr. Douglas submits that Ms. Francis’ failure to declare monies paid by him to her as rental income on her taxes undermines her claim that the payments received by her from Mr. Douglas were for room and board.

Position of Ms. Francis

[38] Ms. Francis testified that at the time that Mr. Douglas moved out of the home, she was making payments of $750 bi-weekly, which included her mortgage and property taxes. She provided documentation that her property taxes in 2018 were $3,795.44, and that there was $90,807.18 remaining on her mortgage as of October 19, 2018. She also provided a statement confirming that her home insurance cost $2,473.20 as of September 16, 2019. Ms. Francis testified that she paid for all these expenses for the home, as well as utilities, which averaged $350 per month.

[39] Ms. Francis testified that when Mr. Douglas first moved into the home with her, he paid her $400 every two weeks, which included all his expenses, including rent, food, soaps, and other living expenses, including clothing when he was not working. She stated that in approximately 2015 Mr. Douglas began paying $500 every two weeks.

[40] Ms. Francis also testified that she wasn’t aware that she was required to declare rental income on her taxes.

Analysis

[41] I accept Mr. Douglas’ evidence that he made regular payments to Ms. Francis throughout most of the time that the parties lived together. However, Mr. Douglas has failed to establish on a balance of probabilities that these payments were designated exclusively for the mortgage. There are numerous expenses involved in running a household, and the mortgage is just one portion of those expenses, which also includes property taxes, home insurance, and utilities.

[42] I accept the evidence of Ms. Francis that she was paying approximately $30,000 each year for these operating costs, for which she was solely responsible to ensure payments were made on time. When Mr. Douglas was out of work and unable to contribute to the household expenses, Ms. Francis still had the obligation and responsibility to make sure that all the bills were paid.

[43] Mr. Douglas has established that he provided regular payments to Ms. Francis, which generally ranged between $800 and $1,000 per month from 2011 to May 10, 2018. I accept Mr. Douglas’ evidence that he made financial payments to Ms. Francis prior to this point, but I do not have sufficient evidence before me to make any findings as to the quantum of those payments. The bank statements provided by Mr. Douglas indicate withdrawals totaling $38,640 between July 2012 and May 2016, and an additional $19,480 between June 2016 and May 2018, for a total payment of $58,120 made by Mr. Douglas to Ms. Francis over the six-year period.

[44] Real estate agent Mr. McCarthy provided evidence that he was unable to determine the rental cost of a single room in Brampton during the time the parties lived together, but that he was able to determine the rental cost for a comparable three-bedroom home in Brampton, which was $1,800 per month. He then determined that the cost to rent one room was approximately one third of this amount, which is $600 per month.

[45] I accept Mr. McCarthy’s evidence that a comparable home in Brampton would have cost $1,800 per month to rent. However, I do not accept his evidence that the value of Mr. Douglas’ rental payments to Ms. Francis would have amounted to one third of that amount for the use of one bedroom by Mr. Douglas for the following reasons:

a) Mr. Douglas had the full use of the house. He therefore was receiving a value greater than just renting one room; and
b) Mr. Douglas lived at the property from 2004 to 2018. I was given no evidence as to the changing value in rental payments during this time frame.

[46] Mr. Douglas has successfully established that for many of the months that he resided at the home, he paid $1,000 per month to live there, which is more than half of the $1,600 monthly mortgage cost. However, the mortgage was not the only housing expense paid by Ms. Francis while Mr. Douglas lived with her.

[47] For a maximum price of $1,000 per month, and often less, Mr. Douglas had the full use of a three-bedroom home in Brampton for some fourteen years. He has not established that he had a corresponding deprivation as a result of the regular payments he made to Ms. Francis. It is true that he has no equity to show for the payments that he has made, but such is the case for all individuals who rent the places where they live.

[48] On the evidence before me, I am satisfied that Mr. Douglas received value for the monetary payments made to Ms. Francis, in that he had access to the full home and property, even during periods when he was unemployed and unable to make financial contributions to Ms. Francis.

[49] I find that the payments made by Mr. Douglas did not exceed what he would have had to pay if he was living somewhere else. This finding is supported by Mr. Douglas’ evidence that he is presently paying $2,100 per month in living expenses, which far surpasses the financial contributions he was making to Ms. Francis during the parties’ cohabitation. Accordingly, Mr. Douglas has not established that he has experienced a deprivation resulting from the regular payments he made to Ms. Francis. Mr. Douglas has therefore not satisfied his burden to establish that Ms. Francis has been unjustly enriched by the payments he made to her.

Issue #3 – Did Mr. Douglas contribute towards food costs and other household expenses during the parties’ cohabitation?

[50] The parties’ evidence regarding payment of car insurance was somewhat muddled. Mr. Douglas testified that he stopped paying for his car insurance when one of Ms. Francis’ daughters was involved in a motor vehicle collision with his car, and the premiums went up to a level that he could no longer afford. I was not given the date when the car was damaged. Ms. Francis testified that she had been paying for her daughter’s car insurance since 2011. Mr. Douglas produced documentation to confirm that he was paying for his own car insurance by October 5, 2016. Mr. Douglas also provided documentation of an automobile insurance policy from 2018 which listed him as the primary insured, and Ms. Francis and her two daughters as additional insureds.

[51] Ms. Francis confirmed that Mr. Douglas obtained his own automobile insurance policy in 2017. She did not address in her evidence why she and her daughters were still listed on his auto policy in 2018.

[52] I find that Mr. Douglas paid intermittent amounts to contribute to the grocery expenses for the family during the course of the parties’ cohabitation. I also accept that the parties were listed together on automobile insurance policies. The evidence was not sufficiently clear to permit me to determine which party paid for the automobile coverage at different points in time in their relationship.

[53] I further accept that the parties included each other on their insurance coverage for their respective places of employment. However, there was no evidence before me to suggest that it cost either party any additional sum to include the other on the insurance policies provided by their employment.

[54] I therefore find that throughout their cohabitation the parties shared grocery expenses and automobile insurance costs, with Ms. Francis paying a larger share of the overall costs.

Issue #4 – Did Mr. Douglas conduct repairs/renovations to the home, and if so, what is the value of his labour?

[55] Mr. Douglas testified that he cut the lawn at the home, and also paid for some repairs in the home, such as changing light fixtures in the home, and repairing a water leak that required him to purchase drywall.

[56] Mr. Douglas testified that he also completed larger renovation projects at the home, including ripping out carpet and installing hardwood flooring in the upstairs of the home with some assistance from his brother-in-law and from Ms. Francis. He stated that both he and Ms. Francis paid for the materials.

[57] He also extended the driveway to accommodate a second vehicle, which involved digging and then laying brick down. Mr. Douglas said he paid for the gravel which was placed under the bricks.

[58] Mr. Douglas also stated that he and his brother did some framing in the basement to create a living space for one of Ms. Francis’ daughters.

[59] Mr. Douglas testified that Ms. Francis did not pay him anything for his labour or materials for these projects, but did not give evidence as to the length of time it took him to complete each of these projects.

[60] Ms. Francis does not dispute that Mr. Douglas installed some hardwood in the home, expanded the driveway, and completed some framing in the basement, although she claimed that the framing in the basement was not installed correctly, which required her to hire contractors to repair. Ms. Francis agrees that she did not pay Mr. Douglas for his work on these projects, as she claims his labour made up for the periods of time he was not working, and therefore not contributing to the operating costs of the home. She acknowledges that his labour had value.

[61] Ms. Francis also testified that Mr. Douglas paid for the patio stones used to widen the driveway, and that she paid for the electrical fixtures that Mr. Douglas installed. There was no specific evidence about the cost of the patio stones.

[62] Ms. Francis also provided evidence regarding the renovations that she paid for at the home, including re-flooring the downstairs, putting in new cupboards in the kitchen, and renovating the bathroom. She provides receipts totaling $19,695.90, all of which are in her name. She testified that these renovations started when Mr. Douglas was living at the house, but that he did not contribute to the cost of these renovations.

[63] Ms. Francis also provided an additional invoice for $12,600 from an individual identified as “Gee” dated June 3, 2018, which relates to removal and cleanup costs, replacing wood spindles on the staircase, a gas line for the kitchen stove, and installation of tile and hardwood in the kitchen and main floor. This invoice was generated around the time that Mr. Douglas left the home.

[64] Ms. Francis testified that Mr. Douglas did not complete the framing in the basement, and that she brought someone else in to finish the work.

[65] I accept the evidence of Mr. Douglas that he performed renovations and some lawn care at the property. The home was purchased for $234,000 in 2004. I accept the expert evidence of real estate agent Donal McCarthy that in August of 2017, the value of the home was between $600,000 and $670,000. By that time, the parties had ceased their common law relationship.

[66] I find that Mr. Douglas’ contributions to the renovations at the home contributed to the increase in value of the home. Mr. Douglas has therefore established that his labour has unjustly enriched Ms. Francis, who is the titled owner of the property.

Issue #5 – What is the remedy owed to Mr. Douglas?

[67] The first remedy to consider is always a monetary award, and it should be viewed as the "default" remedy. A proprietary award (i.e. a constructive trust) may be considered only if a monetary award is inappropriate or insufficient to remedy the unjust enrichment. In most cases, a monetary award will be sufficient to remedy the unjust enrichment (Kerr v. Baranow, 2011 SCC 10, at para. 47; Moore v. Sweet, 2018 SCC 52, at paras. 89-90).

[68] I was not provided with specific evidence as to the value of the work performed by Mr. Douglas, or the length of time that he devoted to various renovation projects at the home. I accept the evidence of Ms. Francis that some of the renovations were performed during periods when Mr. Douglas was not working, but I also accept Mr. Douglas’ evidence that some of the renovations were completed when he came home from work.

[69] I have accepted Ms. Francis’ evidence that the payments to her from Mr. Douglas were essentially payments for room and board. If a tenant at a property spends time and money improving the property for which only the owner of the property receives the financial benefit, it is appropriate that the tenant be compensated for these contributions. There is no juristic reason for Ms. Francis to be the beneficiary of free labour by Mr. Douglas.

[70] There is no evidence before me that it took Mr. Douglas a substantial amount of time in months or years to complete these projects, and I have not been provided with specific calculations as to the value of Mr. Douglas’ financial and sweat equity contributions to the renovations. I note that Ms. Francis paid $8,980 for renovations to her kitchen, and $8,500 for various renovation tasks to be performed, including installation of hardwood, installing tile, cleanup, and painting the main hallway. These invoices total just under $18,000. I find that the type of work described in these invoices is analogous to the efforts Mr. Douglas made to better the property.

[71] Mr. Douglas is therefore awarded $18,000 as compensation for the labour he provided to improve the property for the benefit of Ms. Francis.

[72] Courts should not allow claimants to rely on his or her own failure to provide an independent valuation for the property in question as a reason for requesting a proprietary remedy, over a monetary remedy: Hutsul v. Kostikov, 2021 ONSC 2028, at para. 61. In this case, Mr. Douglas has failed to provide an estimate of the value of his labour at the property.

[73] Having made a financial award to Mr. Douglas, there is no need to consider his claim in the alternative for a constructive trust in the property.

Issue #6 – Were the parties engaged in a joint family venture?

[74] The fact that the parties may have interacted as a family does not establish that there was an intention between the parties to share all resources and assets. Ms. Francis was the only one to put her name on the mortgage and take financial responsibility to ensure that all the appropriate payments were made to maintain the house financially.

[75] I accept Mr. Douglas’ evidence that he sometimes paid for groceries for the home, but he has not established that he consistently paid for all the groceries for the family. Mr. Douglas would have had to pay for his own food if he was living elsewhere. Mr. Douglas has not established on a balance of probabilities that he suffered a deprivation by contributing to the grocery expenses for the family when he lived with Ms. Francis.

[76] I accept that the parties included each other on their insurance coverage for their respective places of employment. However, there is no evidence that it cost either party any additional sum to include the other on the insurance policies provided by their employment. I also accept that the parties were listed together on automobile insurance policies. The evidence was not sufficiently clear to permit me to determine which party paid for the automobile coverage at different points in time in their relationship.

[77] The parties never filed joint tax returns, and did not co-mingle their funds.

[78] Mr. Douglas has not provided sufficient evidence to establish on a balance of probabilities that the parties intended for their assets and wealth to be blended, or that they were engaged in a joint family venture.

Conclusion

[79] Mr. Douglas has not proven on a balance of probabilities that he and Ms. Francis had an agreement for him to receive a beneficial interest in the property as a result of financial contributions made by him. It is certainly possible that Mr. Douglas believed that the parties had an agreement that he was to have a beneficial ownership in the home, but there is no evidence before me that the same understanding was shared by Ms. Francis.

[80] Mr. Douglas has not satisfied his onus of establishing that he contributed $8,000 to the purchase of the property, or that Ms. Francis has been unjustly enriched by the payments he regularly made to her between the years 2012 and 2018.

[81] Mr. Douglas has also not established on a balance of probabilities that the parties were engaged in a joint family venture during their period of cohabitation.

[82] Mr. Douglas has successfully established on a balance of probabilities that Ms. Francis has been unjustly enriched by the money and time he spent renovating the home. He is awarded $18,000 in compensation, to be paid by Ms. Francis within 45 days.

Costs

[83] The parties are encouraged to agree upon costs. Ms. Francis was predominantly successful in this litigation, but it may well be that there are Offers to Settle involved that impact her entitlement to a cost award, or the scale of costs to which she is entitled.

[84] Each party is permitted to prepare a cost submission no longer than three pages double-spaced, excluding Offers to Settle or Bills of Costs. Costs submissions are to be emailed to scj.csj.general.brampton@ontario.ca by May 9, 2025. If I do not receive cost submissions by that date, I make no order as to costs.

Wilkinson

Released: April 28, 2025