Court File and Parties

Court File No.: CV-23-80478 Date: 2025-08-14 Ontario Superior Court of Justice

Between:

CRISTINA MARIA DE MIRANDA and PAUL EDWARD KING – Plaintiffs

– and –

JAMES VINCENT KING, as trustee for the estate of ANNE MARGARET KING – Defendant

Counsel:

• R. Wellenreiter, for the Plaintiffs
• M. Jantzi, for the Defendant

Heard: August 5, 2025

Before: M. Bordin J.

Reasons for Judgment

Background and Parties

[1] The plaintiffs, Cristina Maria De Miranda ("Cristina") and Paul Edward King ("Paul") are spouses. The defendant trustee, James Vincent King ("Jim") and Paul are brothers. Anne Margaret King ("Anne") was their mother.

[2] On March 9, 2007, Anne and Cristina purchased a house in Hamilton (the "Hamilton Property"). Anne contributed $110,000 of the $335,000 purchase price. Anne and Cristina went on title as joint tenants. Cristina's share of the purchase price was paid by a loan secured by a mortgage. The plaintiffs paid the maintenance, renovation, and remediation costs of the Hamilton Property.

[3] In 2012, the plaintiffs refinanced the Hamilton Property for their sole benefit. They used the funds to purchase a property in Costa Rica. The plaintiffs say they needed this money because they delayed their purchase of a property in Costa Rica in 2007 to buy the Hamilton Property. This does not make sense as Cristina's portion of the purchase price of the Hamilton Property was funded completely by a mortgage.

[4] In 2017, Anne moved out of the Hamilton Property and into a condo in London which was purchased by the plaintiffs. Anne paid her living expenses and the condo fees. The plaintiffs purchased the condo, in part, as a long-term investment. The plaintiffs began renting the Hamilton Property in 2018, and continue to do so, earning substantial income. There is no evidence that Anne could not live independently at that time.

[5] Anne severed the joint tenancy on January 21, 2022. She died on April 21, 2023. Jim is Anne's trustee.

[6] In 2023, the plaintiffs brought an action for a declaration that they are the beneficial owners of Anne's interest in the Hamilton Property. The defendant brought a crossclaim for partition and sale of the Hamilton Property.

[7] Discoveries have been completed. One undertaking remains outstanding.

Summary Judgment Motions

[8] The defendant now seeks summary judgment on the partition and sale of the Hamilton Property. The plaintiffs also move for summary judgment on their claims for sole beneficial ownership of the Hamilton Property. In doing so, they rely on the doctrine of part performance to defeat the Statute of Frauds, proprietary and promissory estoppel, resulting trust, and unjust enrichment. Many of the applicable legal principles are set out in the plaintiff's factum.

[9] To grant summary judgment, I must be satisfied that there is no genuine issue requiring a trial. The court's powers are set out in rr. 20.04(2) (2.1) and (2.2) of the Ontario Rules of Civil Procedure, R.S.O. 1990, Reg 194.

Legal Framework for Summary Judgment

[10] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, set out the guiding principles on a summary judgment motion, at para. 49:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[11] There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute, and is a timely, affordable, and proportionate procedure, under r. 20.04(2)(a): Hryniak, at para. 66.

[12] The evidence need not be equivalent to that at trial but must be such that the judge is confident that he or she can fairly resolve the dispute: Hryniak, at para. 57.

[13] The court should first determine if there is a genuine issue requiring a trial based only on the evidence before it, without using the fact-finding powers.

[14] If there appears to be a genuine issue requiring a trial, the court should then determine if the need for a trial can be avoided by using the powers under rr. 20.04(2.1) and (2.2). The court may, at its discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result, and will serve the goals of timeliness, affordability, and proportionality considering the litigation as a whole: Hryniak, at para. 66. What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure: Hryniak, at para. 59.

[15] Each side on a summary judgment motion must "put their best foot forward" to establish that there are no, or that there are material issues requiring a trial: Hryniak, at paras. 57, 66; Cuthbert v. TD Canada Trust, 2010 ONSC 830, at para. 12; Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11, citing Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., 28 OR (3d) 423, at p. 434; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26, aff'd 2014 ONCA 878, leave to appeal dismissed, [2015] S.C.C.A. No. 36341.

[16] The moving party bears the burden of establishing that there is no genuine issue requiring a trial. Only after the moving party has discharged its evidentiary burden does the burden shift to the responding party to establish there are issues requiring a trial: Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 30, leave to appeal refused, [2017] S.C.C.A. No. 37245; Rescon Financial Corporation v. New Era Development (2011) Inc., 2018 ONCA 530, at para. 21.

[17] There was no cross-examination on the affidavits tendered by the parties. Even if, as is the case here, the defendant puts forward little evidence, the party moving for summary judgment must still establish that there is no genuine issue for trial.

Partition and Sale

[18] There is no dispute that a joint tenant, or tenant-in-common, has a prima facie right to partition and sale. The onus is on the party resisting the sale to demonstrate that the property should not be sold. The court has limited discretion to refuse relief. To deny a sale, the court must be satisfied that the party seeking the sale is acting in a malicious, vexatious, or oppressive fashion. See Inniss v. Blackett, 2022 ONCA 166, at para. 23; Garfella Apartments Inc. v. Chouduri, 2010 ONSC 3413, 102 O.R. (3d) 624 (Div. Ct.), at para. 13; Brienza v. Brienza, 2014 ONSC 6942, at para. 25.

[19] The plaintiffs assert that they are the beneficial owners, and that Anne has no interest in the Hamilton Property. If that is true, then Anne's estate has no right to partition and sale. See Blackhall v. Jardine, [1958] O.W.N. 457 (Ont. C.A.), and Emberley v. Hans, 1991 CarswellOnt 420 (Ont. Gen. Div), at paras. 10 and 11. The Defendant conceded this point.

[20] In the second paragraph of her affidavit Cristina states that the plaintiff's evidence demonstrates that the matter needs to go to trial if the plaintiff's motion for summary judgment is not accepted. For reasons I will explain, that is the appropriate outcome on these motions for summary judgment.

The Alleged Agreement

[21] The plaintiffs assert that they reached the following alleged agreement with Anne in 2007 (the "Alleged Agreement"):

a. Paul and Cristina would purchase a home for Anne to reside in.

b. Anne would contribute $110,000.00.

c. Paul and Cristina would pay all expenses related to the property, including the mortgage, property taxes, insurance, and maintenance costs.

d. Anne would have no financial obligations other than her personal utilities and daily living expenses.

e. If Anne became unable to live independently, Paul and Cristina would pay for her assisted living or long-term care.

[22] The plaintiffs also assert that, although it was not part of the Alleged Agreement, all three agreed prior to closing that Anne would be registered on title as a joint tenant with Cristina and that Anne would hold her interest in trust for Paul and Cristina as beneficial owners.

Evidentiary Issues

[23] There are numerous reasons why, on this record, summary judgment in favour of the plaintiffs is not appropriate. There are several outstanding factual and evidentiary issues. These are just some of them.

[24] Notwithstanding that Cristina did not participate in the discussions with Anne regarding the Alleged Agreement, the plaintiffs' limited evidence about those discussions and the terms of the Alleged Agreement comes from Cristina's affidavit sworn March 20, 2025 ("Cristina's affidavit"). It is not contained in Paul's affidavit. Paul's affidavit simply adopts the contents of Cristina's affidavit.

[25] Christina's affidavit contains very few details of the formation of the Alleged Agreement.

[26] Paul's evidence at discoveries, referred to by the defendant in submissions, was vague and equivocal as to when the discussions about the Alleged Agreement took place and the terms of any agreement reached. At his discovery, Paul said that he and Cristina secured a property for themselves, and Anne came to Canada in March 2007 to visit them and further discuss her moving to Canada. He also said that he and Anne discussed Anne moving to Canada in January 2007. He acknowledged that there were multiple conversations that gave rise the Alleged Agreement. He also said that he still had to find a suitable property at the time of the discussions.

[27] The evidence is that Cristina put in an offer to purchase the Hamilton Property in January 2007. Cristina and Anne acquired the Hamilton Property on March 9, 2007.

[28] Cristina's affidavit refers to Anne's understanding of things, without providing a basis to support the allegation. Cristina does not indicate if the information came from Anne, from Paul, or whether she had direct knowledge. For example, see paras. 25 and 32 of Cristina's affidavit.

[29] Cristina's affidavit also refers to facts concerning Anne without referencing the source of her information. Cristina does not indicate if the information came from Anne, from Paul, or whether she had direct knowledge. For example, see paras. 18, 21, and 37.

[30] Cristina asserts that Anne understood that she held her interest in trust for Cristina and Paul. There is no basis in the evidence for that this was Anne's alleged understanding. There is no evidence of what discussions took place about a trust and its meaning. Cristina refers to things said by the lawyer on the closing of the purchase of the Hamilton Property. This evidence is hearsay. There is no evidence from the lawyer on this crucial point.

[31] Although the parties had a lawyer for the purchase of the Hamilton Property, there is no documentation of the alleged trust arrangement. There is nothing from the lawyer confirming that Anne held her interest in trust, or that she explained that to Anne.

[32] By contrast, the year after the purchase, Anne loaned $44,000 to the plaintiffs. The plaintiffs have tendered documentary evidence of the loan. There is no explanation for why the trust agreement was not similarly reduced to writing, especially since it concerned a larger amount of money and property.

[33] The plaintiffs advance various motives to Anne and Jim for why the joint tenancy was severed. Anne had a lawyer for the severance. There is no evidence from the lawyer as to the reasons for, or advice given, on the severance.

[34] The plaintiffs tendered an expert report from Larry Joslin. However, Mr. Joslin has not provided an affidavit. Instead, the report is attached to Cristina's affidavit. As such it is hearsay. Further, some of the facts asserted in the report are not supported by the affidavit evidence.

Hearsay and Credibility Concerns

[35] Given that Anne is deceased, and her evidence is no longer available, the credibility of the parties is central. In this context, hearsay evidence is particularly problematic. The evidence of what Anne said is hearsay as it is being tendered for the truth of its contents – i.e., that she entered into a verbal agreement. The plaintiffs did not advance a traditional exception to the hearsay rule to admit the evidence for the truth of its contents. It may be admissible under the principled approach if it is necessary and reliable. The evidence tendered does not allow me to determine if the hearsay evidence is sufficiently reliable to overcome the hearsay dangers it presents. The lack of details makes it impossible to determine whether there are adequate substitutes for testing the statement's truth and accuracy (procedural reliability), or whether the circumstances surrounding the making of the statement render it inherently trustworthy (substantive reliability).

[36] There are other evidentiary gaps, including precisely who lived at the Hamilton Property and the amount of the mortgage on the Hamilton Property when it was acquired. Most of the details of the financial dealings of the plaintiffs with respect to the Hamilton Property are not in evidence. The same is true for the London condo.

[37] The plaintiffs assert the agreement, and their entitlement to relief, is supported by their subsequent conduct and the subsequent conduct of Anne. On the evidence before me, the conduct identified in some cases has no bearing on the terms of the Alleged Agreement and is not relevant to the terms of the Agreement or Anne's conduct. There is insufficient evidence before me to make the necessary findings of fact to support the plaintiffs' position about the amount of money they expended in upholding the Alleged Agreement. This has a direct impact on the plaintiffs' claims, particularly their claim for unjust enrichment.

Conclusion

[38] The plaintiffs were beneficent and provided substantial assistance to Anne between 2007 and her death. There may have been some kind of agreement between them. However, I cannot determine on the evidence on this motion whether there was an agreement, as alleged by the plaintiffs, that they are the beneficial owners of the Hamilton Property. That remains a live issue. The issues raised by the plaintiffs and the defendant require a trial for determination. As a result, an order for partition and sale is not appropriate.

[39] Both motions for summary judgment are dismissed. Given that the materials filed pertained to both motions, and both parties were unsuccessful, neither party shall be entitled to any costs from the other party arising out of the motions for summary judgment.

M. Bordin J.

Released: August 14, 2025