Rai v. Rai, 2025 ONSC 3026

CITATION: Rai v. Rai, 2025 ONSC 3026
COURT FILE NO.: FS-19-11511
DATE: 20250521

Superior Court of Justice - Ontario

RE:
HARDAT RAI, Applicant
AND
KEMKUMARIE RAI, Respondent

BEFORE: HOOD J.

COUNSEL:
Guy Hunter, for the Applicant
Ella Aiaseh, for the Respondent

HEARD: May 21, 2024

REASONS FOR DECISION

Overview

1The parties married in 1975 and divorced in December 1999 in Florida. As part of their separation and divorce, they entered into a Separation and Marital Settlement Agreement (Separation Agreement) dated December 2, 1999. The Separation Agreement was ratified and confirmed by the Florida court on December 8, 1999.

2In September 2016 the plaintiff and former husband issued a proceeding in Ontario against the defendant and former wife alleging misappropriation of joint property and a constructive and resulting trust in relation to a property in Scarborough, Ontario located at 177 Morningview Trail and an accounting of all accounts held personally by the defendant or jointly with the plaintiff from 1986.

3The proceeding was commenced under the Civil Rules as a Statement of Claim. The defendant filed a Statement of Defence. Nothing happened for approximately two years until December 2018 when the matter came before the Civil Practice Court for the purposes of scheduling the defendant’s motion for summary judgment to dismiss the claim. Rather than scheduling the motion, the judge managing the Civil Practice Court thought that since the parties had at one time been married and had thereafter separated that the matter should be traversed to be dealt with by the “Family Court of the Superior Court of Justice” despite there being no separate Family Court in Toronto.

4The plaintiff then, at the same time, commenced proceedings in Florida against the defendant based upon the Florida divorce judgment from 1999. This claim was dismissed by a Florida court in March 2021 and the dismissal was upheld on appeal in February 2022.

5The parties then returned to Ontario to continue with the within proceeding. On April 27, 2023 it came before a judge on the family team, who determined, in my view correctly, that it was a regular civil claim for damages with no specific family law claims that warranted it being heard under the Family Law Rules. It was traversed back the civil stream and the defendant’s summary judgment motion was set for October 24, 2023.

6The parties were not ready to proceed on October 24, 2023 having just competed their cross-examinations and it was adjourned to Civil Practice Court in November 2023 to reschedule their motion date. At that attendance, while acknowledging that the proceeding was a civil matter and not a family one, the Civil Practice Court judge traversed the matter back to the family list so that it could be heard earlier than mid-2025, being the first available date for a long summary judgment motion on the civil list. The motion was then set for February 13, 2024 on the family list.

7It could not proceed on February 13, 2024 due to personal issues for one of the counsel involved. It was then adjourned to May 21, 2024 and heard by me on that date.

8The parties have interchangeably used plaintiff or applicant and defendant or respondent throughout the process. I will refer to the parties as the plaintiff and defendant. They have also filed numerous affidavits and factums. The plaintiff actually filed two factums one of 26 pages and the other of 60 pages, including schedules. The plaintiff’s confirmation of motion was 6 pages and was filled with argument and contained a list of material that he would “rely primarily on” and a longer list of material that he “may rely on” for the purposes of the motion.

9The plaintiff and defendant uploaded a multitude of documents to Case Center consisting of 1,399 pages and 1,269 pages respectively. Often Case Center references given to me during argument failed to match what was being referred to and uploaded to Case Center. As it turned out much of what was uploaded by the plaintiff to Case Center for the summary judgment motion before me had nothing to do with this motion but had to do with earlier motions dealing with disclosure and questioning. Many of the documents, particularly those from the plaintiff, were incorrectly dated, or were uploaded multiple times.

10The affidavits that I have reviewed and considered for this motion are as follows:

(a) the defendant’s affidavit of April 3, 2023;

(b) the affidavit of Laleta Oryema (the plaintiff’s sister) of April 13, 2023;

(c) the plaintiff’s affidavit of April 17, 2023;

(d) the plaintiff’s supplementary affidavit of April 17, 2023;

(e) the defendant’s affidavit of April 20, 2023;

(f) the affidavit of Jainarine Samaroo (the plaintiff’s cousin) of April 25, 2023;

(g) the plaintiff’s supplementary affidavit of October 6, 2023;

(h) the defendant’s affidavit of December 21, 2023; and

(i) the plaintiff’s affidavit of January 22, 2024.

Summary Judgment Principles

11Summary judgment is available where there is no genuine issue for trial: Hyrniak v. Mauldin, 2014 SCC 7, 366 D.L.R. (4^th), at para. 34.

12The court will find that there is no genuine issue requiring a trial when it is able to reach a fair and just determination on the merits. The motions judge should determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the fact-finding powers in Rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: Hyrniak, at paras. 49 and 66.

13The standard for a “fair and just determination” is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. The evidence need not be equivalent to that at trial but must be such that the judge is confident that she can fairly resolve the dispute: Hyrniak, at paras. 50 and 57.

14On a summary judgment motion, the court is entitled to assume that the parties have advanced their best case and that the record contains all of the evidence the parties would present at trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 20124 ONSC 1200, 2014 ONSC 1200, [2014] O.J. No. 851, at para. 33.

15While summary judgment can operate as a timely, fair, and cost-effective means of adjudicating a civil dispute, it has its limits. Not all civil disputes are amenable to a final adjudication on the merits by summary judgment. In certain cases, adjudication exclusively on a written record poses a risk of substantive unfairness. Great care must be taken to “ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial”: Baywood Homes Partnerships v. Haditaghi, 2014 ONSC 450, 120 O.R. (3d) 438, at para. 44; see also Cook v. Joyce, 2017 ONCA 49, 275 A.C.W.S. (3d) 399, at para. 91.

Decision/Pleadings/Jurisdiction

16In my opinion I am able to decide this matter on a summary judgment motion. The defendant’s motion dismissing the plaintiff’s claim, in its entirety, is granted.

17The Statement of Claim alleges that both parties reside in Florida, that they had numerous joint accounts which were managed by the defendant, and that the defendant purchased 177 Morningview Trail using joint funds, with the plaintiff having a life lease in this property, but that the defendant put the property into her name alone and improperly excluded him from it. The Claim further alleges that the defendant took other funds from the joint accounts and used these funds as hers alone. He alleged that this was fraudulent and in breach of her fiduciary duty to him.

18In the Statement of Defence the defendant admitted that the parties resided in Florida and alleged that the Florida courts retained jurisdiction over all claims with the exception of those relating to 177 Morningview Trail. With respect to this property the defendant alleged that she used her funds to purchase the property, not joint funds, that the plaintiff occupied it pursuant to an occupancy agreement and that the plaintiff abandoned the property in August 2014. The defendant also alleged that Florida was the most convenient forum for the plaintiff’s claims.

19While I agree with the defendant that the Florida courts likely retained jurisdiction over all of the claims made by the plaintiff, other than with respect to 177 Morningview Trail, I am prepared to decide all of the issues alleged by the plaintiff, including the misappropriation of joint accounts and his claim for an accounting.

Reasons on Misappropriation of Joint Property

20As pled and admitted, the parties married in 1975, divorced in 1999 and the divorce proceedings were finalized in December 1999 in Florida. There is no disagreement over the fact that the parties entered into a comprehensive Separation Agreement in December 1999 whereby they, among other things, divided all of their bank accounts and savings accounts, their commercial properties and fully released each other from any and all claims that they had against each other. They also agreed that they had made full financial disclosure to each other of their then current financial situation. They further agreed that the Florida courts would have jurisdiction for the purposes of any enforcement of the Separation Agreement.

21Following execution of the Separation Agreement the parties entered into a final judgment in Florida on December 8, 1999. The judgment stated that the parties had entered into a Separation Agreement which divided all of their joint assets and debts. The Florida court also retained jurisdiction over “any unexecuted division of property herein”.

22The plaintiff in his supplementary affidavit of April 17, 2023 alleged that the Separation Agreement was false and that his signature on it was forged. There was no evidence in support of this. The Florida court in December 1999 had clearly held otherwise. The Florida court acknowledged the validity of the Separation Agreement and in the preamble to the judgment the Florida court also stated that it heard the testimony of the husband before confirming the Separation Agreement and ordering the plaintiff and defendant to comply with it.

23The plaintiff in his supplementary affidavit of April 17, 2023 also stated that he wished to challenge the validity of the Florida Separation Agreement. He further stated that the Separation Agreement was part of a pattern of fraud by the defendant. If he wanted to challenge this Agreement, he ought to have done so in the Florida courts. However, he never did so.

24According to the defendant what he did instead was to bring a motion in Florida to enforce certain terms of the Florida Separation Agreement and when unsuccessful on this motion bring an appeal in Florida, which was also unsuccessful. None of this was denied or challenged by the plaintiff. What this makes clear is that the plaintiff takes no consistent position but puts forward whatever argument he believes will help him in that moment. He was a party searching throughout for a tenable position and in my view without success.

25The plaintiff contends that he cannot properly respond to the defendant’s motion without further disclosure from her. He initially said that he required the defendant’s personal bank statements going back to 2006. He then said that he required her bank statements and investment portfolios going back to 2013. He then said that this was too broad, and it should start from September 2016 when the claim was issued. In the same affidavit he then said he would require disclosure from 1999 in order to equalize the claims as between him and the defendant. At no time however, did he actually bring a disclosure motion or seek a court order ordering the defendant to produce documentation.

26Similarly, the plaintiff argued that the defendant’s motion to dismiss his claim was pre-mature because there had been no discovery. There is no requirement that a summary judgment motion only take place following discovery. However, there were in fact both discoveries and cross-examinations. The plaintiff has had years to marshal any necessary evidence. He has simply failed to do so.

27In his first affidavit of April 17, 2023, the plaintiff also states that to make his case he would have to call witnesses from Scotiabank to provide evidence of how and when funds were transferred by the defendant from their joint accounts to her accounts alone. He mentioned a Sila Rosario from Scotiabank “who need (sic) to be a witness at trial.” He further stated that “Also, important would be Alan Mulveney.”

28However, none of these individuals provided any evidence in support of the plaintiff’s allegation. The plaintiff did not provide evidence that they were unwilling to sign an affidavit in support of his position. Nor did he attempt or even suggest to examine these individuals as witnesses in aid of a pending motion pursuant to r. 39.03. His failure to do so is telling.

29The plaintiff cannot say that there are witnesses who could support his bald allegations that the defendant had taken money from him by converting funds in a joint account to her account alone and then not present this evidence.

30The defendant denies the existence of any joint accounts following their Florida divorce in 1999. It was not for the defendant to prove a negative that there were no joint accounts and that she did not take funds from non-existent joint accounts but for the plaintiff to prove a positive and that she did take funds.

31The defendant admits that there were joint private mortgages held during their marriage but says that following separation and divorce they were transferred into her name alone. This was done, according to her, with the consent of the plaintiff and that he executed any necessary documentation as required. The defendant had this documentation as part of the material in support of her position.

32The plaintiff does not deny these transfers but argues that he still had an interest in these mortgages, as they were transferred without any consideration and were subject to a resulting trust.

33A resulting trust arises when a party holds title to a property but is under an obligation to return it to the true title owner because of the fact he gave no value for the property. Where there is a gratuitous transfer of ownership, the law presumes that the grantor intends to create a trust, rather than make a gift.

34In my view there is no resulting trust. There is no evidence that the plaintiff gratuitously transferred his interest in the mortgages. On the transfer documentation the defendant is clearly indicated to be the beneficial owner of the mortgages. This is on the transfers themselves and the acknowledgement and directions as signed by the plaintiff. This was a continuation of the unraveling of their relationship as part of their separation and divorce and the Separation Agreement.

Reasons on 177 Morningview Trail

35As mentioned previously, the plaintiff has also alleged in his Claim that the defendant purchased 177 Morningview Trail in 2007 using joint funds, that he was to have a life lease in this property but that the defendant put the property in her name alone and improperly excluded him from this property.

36The defendant says that the property was actually purchased in July 2006, which it was based upon the closing documents provided, that it was purchased with her funds alone, that the plaintiff occupied the property pursuant to an occupancy agreement and that he abandoned the property in August 2014.

37The plaintiff alleges that the occupancy agreement was to protect his then spouse’s ability to live in 177 Morningview Trail if he was not there. That is not what the occupancy agreement says. It would have been easy to have the agreement say that, but it does not. Rather, it specifically says that if the plaintiff did not reside in the property for 60 consecutive days that the occupancy agreement was null and void, and the license of occupancy was revoked.

38The plaintiff while acknowledging that he was unable to pay the $15,000 deposit for the property and that the deposit money was the defendant’s, also stated that the property was to revert to him when he paid back the $15,000 to the defendant.

39There is however no evidence that this was the agreement between him and the defendant. It would have been easy to also include this in the occupancy agreement or to have the real estate lawyer draft an agreement to that effect. Nor is there any evidence that the plaintiff in fact paid back the $15,000 to the defendant. All there is, is his bald allegation that he did so. He claims that a cheque for the sale of a property located at 3 Perfitt Crescent, Ajax and made payable to him, the defendant and two others in the amount of $231,702.63, included this $15,000 repayment for 177 Morningview Trail. There is no evidence of this, such as a letter or confirming email. All there is, is a cheque which related to the sale of another property.

40He also alleges, presumably as an alternative claim, that the funds used by the defendant to buy 177 Morningview Trail came from the defendant cashing a jointly held GIC in the amount of $360,000. He alleges that she used some of these proceeds to buy 177 Morningview Trail and then kept the rest. If the GIC was in fact jointly held between him and the defendant then the plaintiff should have been able to produce evidence in support of this allegation. He did not do so but argued once again that the defendant should produce this documentation. The defendant however denies this allegation and points out that even if she had the obligation to produce documentation of jointly held assets that she cannot as this never happened. Again, the plaintiff has an obligation to put forward evidence in support of his position. Presumably he would be in no different position at a trial. There is no suggestion from the plaintiff that he would somehow be able to produce anything in support of this allegation at trial but for some reason is unable to do so in response to a summary judgment motion.

41The plaintiff further claims, as another alternative, that the aforementioned agreement to transfer the property at 177 Morningview Trail back to him when he paid back the $15,000 deposit occurred after its purchase, rather than at the time of purchase, and that this is the reason it was not part of the occupancy agreement.

42The plaintiff argues that this is a triable issue requiring a credibility assessment which could only be made following viva voce evidence. I do not agree. The plaintiff has an obligation to put his best foot forward. In support of his position is his uncorroborated affidavit evidence of a subsequent agreement. In support of the defendant’s contrary position is an existing agreement of purchase and sale executed by the plaintiff, followed by an occupancy agreement again executed by the plaintiff which acknowledges that the $15,000 came from the defendant, that the plaintiff was assigning the agreement of purchase and sale to the defendant, and an executed direction from the plaintiff and his wife to transfer the property outright to the defendant. The plaintiff has provided no credible basis as to why there would be a subsequent agreement nor the consideration that the defendant received for entering into this alleged agreement after the fact.

43The plaintiff professes to be a sophisticated businessman, travelling the world, carrying out business transactions. Surely, if this was the case he would protect himself through an agreement in writing, especially considering there was an existing written agreement, and a direction signed by him, which proved otherwise. I do not require the parties to give evidence in the witness box before me, with nothing else being provided by the plaintiff, to come to a conclusion as to whose evidence I accept. I accept the defendant’s evidence, which is supported by contemporaneous documentation over the bald assertions of the plaintiff.

44All of the documentary evidence supports the defendant’s position that she is the owner of this property. The only way to get around this is for the plaintiff to argue that there was a subsequent agreement to transfer the property to him. However, other than his say so there is no evidence in support. Having produced nothing to date, I am allowed to assume that there would be no further evidence at trial, other than what he has already stated in his affidavits. The defendant says there was no such agreement. The onus is on the plaintiff to satisfy the court that there was. He has failed to do so. And the evidence that has been produced suggests otherwise.

45The plaintiff has had years to obtain evidence in support of his position that the property at 177 Morningview Trail is really his, contrary to all of the title documents. He has obtained nothing from the lawyers involved. He has obtained nothing from Scotiabank to show that his money, as opposed to the defendant’s money, was used to purchase the property. Instead he has made claims that the defendant has failed to make proper disclosure in order to prove that the purchase funds were hers. The onus is on him as plaintiff to prove his case on a balance of probabilities. There is no requirement on the defendant to prove that the money used to purchase 177 Morningview Trail was not his. Rather, it is his onus to prove that the money used to purchase 177 Morningview Trail was his.

46The plaintiff has nothing in writing in support of the alleged agreement with the defendant that this property was meant to be his, despite the transfer being to her, his acknowledgment that the defendant paid the deposit and the existence of the occupancy agreement. He relies on a purported verbal agreement between him and the defendant.

47However, under the Statute of Frauds, RSO 1990, Chapter s.19, s.1(1) only agreements in writing are capable of creating an interest in real property. The plaintiff is unable to point to any agreement in writing with respect to the 177 Morningview Trail property.

48The onus is upon the plaintiff to put his best foot forward. The court is entitled to assume that the record contains all of the evidence that the parties would present at a trial. The plaintiff has had years to collect evidence, before, prior to and subsequent to the issuance of his claim. He has not done so and continues to advance the argument that others, such as the bank and the defendant have the documents to prove his case.

49The affidavits from the non-parties do not assist the plaintiff. The affidavit of his sister reaches conclusions without support. It is replete with statements that she assumed something, that she thought something happened or that she guessed.

50The plaintiff also submitted an affidavit from his cousin who had carried out some repairs to 177 Morningview Trail. He gave evidence about the changing of the locks. The cousin was unable to say whether the locks were changed in 2014 or 2015 or during what month. The affidavit added nothing in relation to the summary judgment motion as the defendant had already admitted in her pleading that she changed the locks in 2014 after the plaintiff had vacated the property.

51The plaintiff also makes an alternative allegation in his affidavit of April 17, 2023 that in July 2009 he entered into another agreement with the defendant, that despite the divorce and Separation Agreement and subsequent judgment stating that the marital home in Florida was eventually to be sold and the proceeds divided equally, that he was to receive 177 Morningview Trail and that the defendant was to receive the Florida property.

52This allegation is again unsupported by any corroborating evidence. There is nothing in writing to support this. There is no consideration for this alleged agreement. It is also contrary to his other allegation that he already had an existing interest in 177 Morningview Trail from its initial purchase.

53The plaintiff also alleges that his new wife was part of this alleged agreement and that they together were to be the real owners of 177 Morningview Trail despite all of the real estate documentation showing otherwise. There was however no affidavit from her. If one is to put their best foot forward the only conclusion to reach, was that she could not support the plaintiff’s alternative story and was not prepared to swear an affidavit in support of this.

54The plaintiff in his affidavit of October 6, 2023 then advanced for the first time another differing allegation - that the defendant promised to transfer 177 Morningview Trail to him in November 2006 after she had just purchased the property in June 2006 and after he had signed the occupancy agreement and direction as to title, in return for him giving her the entire proceeds of sale from the sale of 3 Perfitt Crescent, Ajax.

55This too is denied by the defendant and the documentation provided by her shows that she was the registered owner of 3 Perfitt Crescent along with two of the parties’ children. She and the children would have been the recipients of the entire sale proceeds in any event and there was no basis for this alleged agreement to be made in the first place.

56The plaintiff again had no documentation to corroborate this new allegation. It is also contrary to his other earlier allegation that the sale proceeds of 3 Perfitt Crescent included the repayment of the $15,000 deposit for 177 Morningview Trail.

57The plaintiff’s allegations with respect to 3 Perfitt Crescent, are nothing more than a red herring. Even if the plaintiff was able to establish that he had an interest in this property of any sort when purchased, there is no evidence that the sale proceeds from this property were taken by the defendant or were used by her to purchase 177 Morningview, as the plaintiff alleges. In fact, from a timing perspective it was not possible.

58The purchase of 177 Morningview Trail took place prior to the sale of 3 Perfitt Crescent. How the sale of 3 Perfitt Crescent could possibly result in a trust claim of any form in the 177 Morningview Trail property was never adequately explained by the plaintiff.

59The defendant has provided documentation showing that the sale proceeds of 3 Perfitt Crescent went into a GIC with a maturity date of December 21, 2007 well past the purchase of 177 Morningview Trail. The funds in the GIC were eventually transferred out to another bank account held by the parties’ children.

60I am satisfied on the material presented that the defendant is entitled to summary judgment dismissing the plaintiff’s claim that he has any interest in 177 Morningview Trail of any sort whatsoever and declaring that she is the 100% beneficial owner of this property.

61The determination of this summary judgment motion was made more difficult by the plaintiff. He filed numerous affidavits, changing his story and constantly advancing new arguments and allegations when it became clear or at least looked likely that his earlier arguments and allegations would not be successful. Rather than producing documentation and evidence in support of his own position he argued that it was the defendant’s obligation to not only provide documentation and evidence in support of her position but to provide it in support of his, because he could not. In my view the plaintiff sought to obfuscate, in order to delay the motion and to delay the eventual dismissal of his claim.

Costs

62Being the successful party the defendant is presumptively entitled to costs of the entire action including the summary judgment motion itself. The defendant has already uploaded her Bill of Costs to Case Center, and the plaintiff has uploaded a Costs Outline. If the parties are unable to agree upon the issue of costs, the defendant is to deliver her cost submissions consisting of no more than five typed double-spaced pages along with any offers and caselaw to the plaintiff within 30 days of today’s date and to upload the submissions to Case Center with proper hyperlinks. The plaintiff is to deliver his responding submissions, subject to the same directions 30 days thereafter. Any reply submissions from the defendant are to consist of no more than 2 typed double-spaced pages and are to be delivered 15 days thereafter. If the parties reach an agreement on costs, they are to advise my assistant of the fact of the agreement at maria.kolliopoulos@ontario.ca. All cost submissions are also to be provided to my assistant at the same email address.