Lafortune v. Diebel, 2025 ONSC 474

Court File No.: CV-23-103
Date: 2025/01/22
Ontario Superior Court of Justice

Between:
Paul Lafortune, Applicant
and
Tami Diebel, Respondent

Appearances:
T. Trottier, for the Applicant
Self-represented, for the Respondent

Heard: November 20, 2024

Reasons for Decision
Wilcox

Introduction

[1] The applicant has applied to court for declarations and orders enforcing an agreement between him and the respondent.

[2] The parties co-habited from about 1996, but never married. They separated in 2009. The applicant says that they never reconciled. However, they have continued some form of a relationship.

[3] They purchased two properties. The first, at 26 Sun Valley Way, R.R. #2, Powassan, Ontario (“Sun Valley”) was purchased in 1996 and remains in both names as joint tenants. The second, at 1105 Vanier Street, North Bay, Ontario (“Vanier”) was purchased by the parties in 2008 and sold on July 4, 2017.

[4] The respondent described a relationship, both before and after separation, in which the parties did not entirely integrate their finances, such as with common bank accounts, but were mutually financially supporting as neither could survive financially alone. That was until 2020 when the applicant turned 65, qualified for a pension and, therefore, became financially independent. At times they would both live in the same residence, but at other times they lived apart, either in one of Sun Valley and Vanier or elsewhere.

[5] The respondent said that they have relied on each other, even after the 2009 separation, but also that their relationship is very different from before 2009, in that they do not have “marital relations” although they have “an enduring cohabitation relationship”.

[6] The parties entered into a written Agreement (“the Agreement”) dated June 30, 2017. It was short, and is set out here in full for reference:

The Agreement

THIS IS AN AGREEMENT dated 30 day of June, 2017.

BETWEEN:

TAMI JAYNE ELIZABETH DIEBEL
(hereinafter referred to as “Tami”)

AND:

PAUL JOHN LAFORTUNE
(hereinafter referred to as “Paul”)

WHEREAS Tami and Paul began living together in 1996;

AND WHEREAS Tami and Paul separated in approximately November of 2009;

AND WHEREAS Tami and Paul own two properties together, namely:

1. Parcel 14982 in the Register for Parry Sound North Section, being Lot 6, Plan M428, in the Municipality of Powassan, District of Parry Sound, being PIN 52217-0186, municipally known as 26 Sun Valley Way, R.R. #2, Powassan, Ontario (Sun Valley Property); and

2. Parcel 6-2, Section 36M462, being Part of Lot 6, Plan M462, designated as Part 6 on Plan 36R3355, being PIN 49149-0150 in the City of North Bay, District of Nipissing, municipally known as 1105 Vanier Street, North Bay, Ontario (Vanier Property).

AND WHEREAS Tami has lived in the property being municipally known as 1105 Vanier Street, North Bay, Ontario, since August of 2014 and has paid all expenses including mortgage, taxes, insurance, heat, hydro, water, etc. related to the home since that time;

AND WHEREAS Paul has lived in the property being municipally known as 26 Sun Valley Way, R.R. #2, Powassan, Ontario, since August of 2014 and has paid all expenses including mortgage, taxes, heat, hydro, etc., related to the home since that time;

AND WHEREAS Tami wishes to sell the home municipally known as 1105 Vanier Street, North Bay, Ontario;

NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:

1. Tami shall be permitted to sell the home known municipally as 1104 Vanier Street, North Bay, Ontario.

2. Paul shall execute all documentation necessary to affect the sale of the property.

3. Tami shall continue to be responsible for all costs, expenses and debts related to the property until closing.

4. Tamy shall receive all (100%) of the net sale proceeds.

5. Paul hereby releases all of his right, title and interest he may have now in the property known municipally as 1105 Vanier Street, North Bay, Ontario.

6. In consideration of Tami receiving 100% of the sale proceeds with respect to the property being municipally known as 1105 Vanier Street, North Bay, Ontario, Tami hereby releases all of her right, title and interest in the property being municipally known as 26 Sun Valley Way, R.R. #2, Powassan, Ontario.

7. Paul shall continue to be responsible for all costs, expenses and debts related to the property and will indemnify and save Tami harmless from any and all claims with respect to the property.

8. While Paul has exclusive possession of the property in accordance with this Agreement, Tami will execute or guarantee any mortgage renewal or any mortgage replacement.

9. Tami and Paul will sign any documents necessary to give effect to this Agreement.

TO EVIDENCE THEIR AGREEMENT, TAMI AND PAUL HAVE SIGNED THIS AGREEMENT BEFORE A WITNESS.

DATE: June 3, 2017
“Liam Sangster” “Tami Diebel”
Witness Tami Jayne Elizabeth Deibel

DATE: June 29, 2017
“Brian W. Eckford” “Paul Lafortune”
Witness Paul John Lafortune

[7] Attached were a Certificate of Independent Legal Advice (the Certificate) and the applicant’s waiver of Independent Legal Advice (the Waiver).

[8] The Certificate, by a lawyer, Liam Malcolm Sangster, read as follows:

I, LIAM MALCOLM SANGSTER, hereby confirm that I have been consulted by Tami Jayne Elizabeth Deibel as to the advisability of her execution of the Agreement in form attached hereto and dated the 30 day of June, 2017. (sic)

I am not acting in any way on behalf of the said Paul John Lafortune and am consulted by Tamy Jayne Elizabeth Deibel and have advised her independently of him. I have placed her position and the consequences of her signing the document referred to above fully and plainly before her and she declared that she fully understood the nature and effect of the said document and acknowledged that she is executing the said document freely and voluntarily and as her own act and deed without fear, threat, influence or compulsion of, from or by the said Paul John Lafortune.

“Liam Sangster”
LIAM MALCOLM SANGSTER

[9] On the same page, the respondent had signed the following acknowledgment:

I hereby acknowledge that LIAM MALCOLM SANGSTER fully explained the nature of the document listed above and the effect of my signing it. I confirm that I understand the nature and effect of the document and that I have executed it freely and voluntarily.

“Liam Sangster” “Tami Diebel”
Signature of Solicitor as TAMI JAYNE ELIZABETH DEIBEL
Witness

[10] Vanier was sold on July 4, 2017, to third parties. The respondent received all of the net proceeds, as per the Agreement.

[11] Sun Valley remains in the parties’ names as joint tenants.

The Application

[12] The Application seeks relief including:

a) A declaration that the Applicant, Paul Lafortune, is the sole beneficial owner of 26 Sun Valley Way, R.R. #2, Powassan, Ontario, legally described as:
PCL 14982 SEC NS; LT 6 PL M428 T/W LT 105721; S/T LT 106230; NIPISSING; PIN 52217-0186 (LT) (the “Sun Valley Property”).

b) A declaration that the Respondent, Tami Deibel, holds her interest to the Sun Valley Property in trust, for the benefit of the Applicant;

c) An order to enforce the terms of the Agreement entered into by the Applicant and Respondent, dated the 30th day of June, 2017;

d) An order authorizing the Applicant to execute all documents necessary to effect the transfer of the Sun Valley Property into the Applicant’s sole name, on behalf of the Respondent;

e) An interim, interlocutory and final order restraining the Respondent from encumbering, depreciating, attending at, or in any way dealing with the Sun Valley Property;

f) An order for vacant possession of the Sun Valley Property;

g) An order that the Respondent pay the Applicant occupation rent for her occupation of the Sun Valley Property;

h) Damages as against the Respondent for loss of enjoyment and damage to the Sun Valley Property, such damages to be quantified prior to the hearing of this Application.

[13] In support of his application, the applicant deposed that he had followed the Agreement pursuant to which the respondent had received one hundred percent of the proceeds of the sale of Vanier. She had moved away but, on her return to the area, he had allowed her to move back into Sun Valley in October 2018 on what was to have been a temporary basis, a few months, until she was able to secure her own accommodations. He denied that they had reconciled after their 2009 separation, that they were cohabiting or that they had resumed any form of intimate relationship. However, as of the June 8, 2023, date of his affidavit, she continued to reside there and refused to leave despite his requests. Furthermore, she had refused to sign the documentation to transfer Sun Valley into his name, which he said was in contravention of the Agreement. Consequently, he had begun legal proceedings to enforce the agreement and to have title to Sun Valley transferred into his name alone. That effort had begun in August, 2022, when his lawyer had written to the respondent formally demanding that she transfer title in accordance with the agreement.

[14] The respondent deposed that, in 2014, she was living in Sun Valley and the applicant in Vanier. However, because of the expenses, they switched properties. She moved to Vanier and he to Sun Valley. Then, in 2017, he approached her about selling Vanier because the market for such properties was strong. She apparently agreed, thinking that she would be moving back into Sun Valley, and an offer to purchase was accepted. Only then, she said, did the respondent inform her that she could not move back to Sun Valley. Her son found her a home in Hornepayne, but it would cost more than her half of the net proceeds from Vanier. Therefore, she said, she entered into the Agreement, got the full net proceeds from Vanier, and purchased and moved to the Hornepayne house. However, due to problems that she experienced with that home over the winter, she sold it and, with the applicant’s permission, moved back into Sun Valley. Both were aware that that was for economic reasons.

[15] She described the living arrangements following her move back into Sun Valley. Each has their own space on different floors, with a common living room and kitchen on a third floor. She paid him $500 per month towards the total expenses of $1,100.00 per month including the mortgage, taxes, insurance, and utilities, and she paid for eighty five percent of the groceries. She also did some repairs and was involved with the renewal of the mortgage on Sun Valley.

[16] She also deposed that, in the following years, the two of them spent holidays and birthdays together and entertained family and friends. However, they did not have “marital relations”.

[17] The respondent said that, in late 2019, they had discussed the Agreement and the applicant had said that it was unfair to her. Consequently, he had subsequently signed on July 25, 2019, what she variously calls an IOU or promissory note (the IOU) saying he owed her $10,000.00 which would “be paid upon the sale of his primary residence”, being Sun Valley.

[18] She had then received his lawyer’s letter of August 31, 2022, demanding that she transfer title of Sun Valley to the applicant solely, in accordance with the Agreement.

[19] She replied in writing on September 12, 2022, saying that there had been significant changes since the Agreement was made. Firstly, they had entered back into a common-law relationship in 2018. Secondly, he had agreed that the Agreement was unfair to her and, therefore, had signed the “promissory note” as she called the IOU. She denied that the Agreement required her to transfer title to him. She proposed that she move out subject to certain terms and that he pay her 30 percent of the equity of Sun Valley, including the $10,000.00 in the IOU, until which she would remain on title.

[20] She alleged that the respondent “accepted (her) response” and they resumed a “cooperative relationship”. Nevertheless, his application was issued in June, 2023, commencing these proceedings.

[21] The applicant’s and respondent’s affidavits were dated June 23 and July 14, 2023, respectively, and were somewhat out of date by the time of the hearing. The respondent was cross-examined on her affidavit on July 14, 2023. She, in her factum, went beyond those and indicated that she remains living in Sun Valley in “a cooperative familial relationship” with the respondent.

Submissions

[22] The applicant’s counsel submitted that the applicant had complied with his obligations under the Agreement, that the respondent had obtained all of the benefit it provided for her and that all that remained to be done was for her to transfer the title of Sun Valley to the applicant.

[23] The self-represented respondent has used a number of legal terms in her arguments, but not necessarily accurately. Also, the case potentially raises a number of legal issues which the respondent has not had professional assistance in articulating or in bringing evidence relevant thereto. This decision attempts to identify, organize and respond to the issues that the respondent has raised as reasons not to grant the relief sought by the applicant.

Analysis

[24] I will first look at the respondent’s arguments for not upholding the agreement from a contract law point of view.

[25] There is authority that settlements entered into with the assistance of counsel should be upheld except in the clearest of cases. [1]

[26] The respondent says that she went to the lawyer, Mr. Sangster, with a problem which was that she needed the money to buy the Hornepayne home. Now, she submits that his solution was “very egregious” to her. This is based, at least in part, on her contention that the equity that she gave up in Sun Valley exceeded what she received for Vanier. However, although the net proceeds of sale of Vanier are known, there was no clear evidence as to the equity in Sun Valley at the time to show whether the Agreement was financially equal between the parties, or not.

[27] The respondent was critical of the services that she got from Mr. Sangster regarding the Agreement. She refers to him as applicant’s “recommended real estate lawyer” and opines that the matter was outside of his area of expertise and that she did not get good advice. On this point, I will take judicial notice that Mr. Sangster is well known to this court and that this matter would be within his expertise which extends beyond real estate law and includes family law.

[28] She also stated in submissions that Mr. Sangster was working for both of them. This is contradicted by Mr. Sangster’s Certificate of Independent Legal Advice, made contemporaneously with the Agreement and with the respondent’s acknowledgement regarding his legal advice.

[29] Furthermore, she made reference to her own unnamed lawyer that she said she had used many times for real estate deals and a divorce and another unnamed lawyer who had allegedly said to her at some point that she had other options. Clearly, the respondent had other choices than Mr. Sangster for legal services.

[30] The respondent made the point that the Agreement did not settle all of their affairs, such as the ownership and possession of furniture and household items. Even if that is so, it would not detract from its enforceability. Partial settlements are frequently reached before full settlement or trial of the remaining issues.

[31] The respondent submitted that the Agreement did not require her to transfer title to the applicant as he demands. With respect, I disagree. Such a transfer is implicitly an option – the other being the sale of the property – in her release of all of her right, title and interest in the property.

[32] Her argument that the existence of the mortgage on the property and the question of whether he would qualify for a new one without her, about which there is no evidence, were somehow reasons for not transferring the title holds no merit. As his counsel submitted, all she had to do was to get off of title. The mortgage arrangements were up to the applicant, and the respondent would have legal recourse against him for any losses that she might suffer. Having said that, I note that the respondent, as one of the mortgage owners, is in a position to speak with the mortgage holder about her options.

[33] The respondent also resisted transferring title because she wanted Sun Valley as security for the IOU. The applicant’s counsel submitted that the IOU is unenforceable for lack of consideration. Be that as it might, they are two separate documents and neither makes reference to the other. The enforcement of the Agreement is not contingent on payment of the IOU.

[34] The respondent contends that she signed the Agreement under duress.

[35] There is an important inconsistency in her materials that relate to this argument. In her affidavit she states that, when she asked the applicant where she would live, he told her not to worry, that he would take care of her, and she assumed she would be moving into Sun Valley. However, in her factum, the respondent states that she agreed to sell the Vanier property with the applicant’s assurances that she would reside at Sun Valley. As the evidence is found in the affidavit, not in the factum, based on it I am not persuaded that her assumption is a sufficient basis on which to found duress. Although that would be sufficient to dismiss her contention that she was under duress, I will nevertheless deal further with it.

[36] There are different types of duress. “(D)uress in whatever form is coercion of the will which vitiates consent”. [2] To succeed on the ground of economic duress, which would capture the present situation, the respondent would have to prove, looking at four factors, that her will was coerced and that the pressure exerted was not legitimate. [3]

[37] Turning to the four factors, the first is whether the respondent protested. There is no evidence that she did, at least until the applicant took steps years later to enforce the terms of the Agreement that benefited him. In the interim, she had taken advantage of the terms that benefited her.

[38] The second factor asks whether there was an alternative course open to the respondent. There were no submissions on point. The respondent said that she went to Mr. Sangster for advice. There was no evidence of whether there were any other courses of action considered or suggested by him. Obviously, as one of the co-owners of the properties, the respondent could have refused to sell until the issues of importance to her were addressed. It appears, however, that only now is she raising those issues.

[39] Thirdly, was she independently advised? We have seen that she was, by Mr. Sangster, and that she had dealt with other lawyers at times who she did consult with, or could have, about this matter.

[40] The final question is whether, after entering the Agreement, she took steps to avoid it. As has been seen, she did not, until latterly. Rather, she took advantage of the benefits that it provided to her. Only when the applicant sought what the Agreement provided for him did she balk.

[41] In these circumstances, I find that the respondent has not met the first prong of the test. Therefore, there is no need to consider the second prong. [4] The allegation that she signed the Agreement under duress fails.

[42] Up to this point, I see no reason not to enforce the Agreement.

[43] Next, I will consider the respondent’s position from a family law perspective as she has argued that the parties resumed a common-law relationship in 2018 when she moved back into Sun Valley.

[44] First, it should be noted that the parties were never married. So, there is no automatic sharing of their net family properties under the Family Law Act.

[45] Rather, at its highest, their relationship was one of common-law spouses. That ended with their 2009 separation. Obviously, some form of relationship continued after that until 2017 when Vanier was sold and she moved away to Hornepayne. Further, some form of relationship resumed after she returned from Hornepayne and moved into Sun Valley. How to characterize these post-2009 relationships is open to question. The applicant denies that there was any reconciliation after 2009. The respondent speaks at different times of them cohabiting and of their cohabitation in a common-law relationship, among other descriptions.

[46] The considerations in determining for family law purposes when a couple cohabited and when they separated, at least in the context of a marriage, were detailed in McBennett v. Danis [5]. Assuming that they would also apply to a common-law situation, as to whether the parties cohabited after 2009 is uncertain. There was a lack of independent evidence on point. The applicant denies any post-2009 reconciliation and the respondent’s description of the relationship is equivocal. On balance, it appears to have been some form of interdependent economic relationship with a social component, but not a common-law spousal one.

[47] The Agreement is not labelled explicitly as a family law separation agreement. However, as the preamble refers to the parties’ living together and their separating in 2009, an argument could be made that it was. If it was, the common-law rule is that “the separation agreement is void upon reconciliation, subject to a specific clause in the agreement that would override the common-law or a clause that would be implied from the agreement that the intent of the parties was that transactions carried out under the agreement will remain in place”. [6]

[48] I have already indicated that the evidence in this case does not support a finding of reconciliation in a common-law relationship. Therefore, the Agreement has not been made void under that rule.

Conclusion

[49] In conclusion, I find that the respondent has not shown, from either a contract law or a family law perspective, why the Agreement should not be upheld and enforced. Therefore, I allow the Application and make the declarations and orders requested in sub-paragraphs 1(a-d) thereof. In addition, the respondent shall do nothing to encumber or depreciate the property. She shall have ninety (90) days to provide vacant possession. I make no order for occupation rent nor for damages as there was no evidence produced on point.

Costs

[50] If costs are sought but not agreed upon, the applicant shall have 30 days to serve and file submissions and the respondent shall have 15 days after such service to serve and file a response. Submissions are limited to three (3) pages, double-spaced, plus Bills of Costs.

Wilcox

Released: January 22, 2025

Cited Authorities

[1] Donaghy v. Scotia Capital Inc., 2009 ONCA 40, para. 7
[2] CED Contracts, s. 135
[3] Gordon v. Roebuck (1992), 9 O.R. (3d) 1 (C.A.) and Kawartha Capital Corp. v. 1723766 Ontario Limited, 2020 ONCA 763 at para. 11. In fact, this test appears to have been extended to duress in general. See, for example, Arisoft Inc. v. Ali, 2015 ONSC 7540 and Sluyter Capital Investments Inc. v. 1902408 Ontario Limited, 2021 ONSC 5549 which extend the Gordon test to duress in general.
[4] Kawartha at para. 16
[5] McBennett v. Danis, 2021 ONSC 3610 at para. 54
[6] Sydor v. Sydor [2003] O.J. 3008 (ONCA)