CITATION: Recoskie v. Lucchitti, 2026 ONSC 1743
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shelley Barbara Recoskie
Applicant
– and –
Antonio Lucchitti
Respondent
Debora Lyons, for the Applicant
James Bennett and Andrew Rogerson, for the Respondent
HEARD virtually at Parry Sound:
May 27-31, June 3-6, July 2, 2024, October 21-23, 2024; January 16, April 7, 10-11, July 2-4, November 18-19, 2025
REASONS ON APPLICATION
A.D. KURKE J.
Overview
1At issue in this application is entitlement to the proceeds of sale of the property municipally known as 37 Watkins Lane, McKellar, Ontario.
2The parties were in a domestic relationship when they bought the land in issue and built on it a substantial home (the “Build”). Technically, the property was owned by 1844476 Ontario Limited, a corporation created purely to save the parties HST on the Build. After the relationship between the parties ended in July 2019, the applicant lived at the Build and made some further improvements before it was ultimately sold in 2021, for approximately $1.4 million, which money is now being held in trust. Both parties claim entitlement to some of the proceeds of sale.
3Over the course of hearings conducted over some 18 months, this court received evidence from many witnesses, but mainly from the parties. Thousands of pages of records, reports, receipts, and other documentation have been put before the court to justify each party’s claim to proceeds of the sale of the Build. In that sea of documentation and commercial minutiae, it is easy to lose track of the fundamental truth of this case. The parties were in a common law relationship when they did the Build. This is a case in family court, and not a commercial venture.
4The difficulties in this family case are significant. This application is essentially an historical exercise in which the parties’ acts and thoughts concerning the investment of their emotions, money, labour, and time, which each contributed to build a life together, must be reconstructed after a significant period of estrangement and viewed through the distorting mirror of bitterness, regret and self-interest. Their relationship survives now only as a touchstone to assess the credibility and reliability of the parties concerning their claims against the proceeds of sale.
5Moreover, the terms of analysis are in dispute. The respondent argued that the money that went into the Build came, for the most part, from his funds. The land on which the Build was constructed is mostly his by way of purchase money resulting trust. Even if money for the Build came from or through joint accounts, the money in those accounts was, for the most part, his, and as the couple were not married, there is a presumption against joint ownership of the money in those accounts. In addition, he contributed substantial funds from a line of credit in his name alone.
6The applicant argued that the matter should be analyzed as involving an unjust enrichment, in that an analysis along the lines proposed by the respondent would result in the respondent being unjustly enriched by the applicant’s funds and other contributions. For she provided the respondent with substantial amounts of money in cash, at his urging, for investment during the course of their relationship. It is her money that the respondent used as his own. That money came from a career that she lost during the course of the Build, as her role in this venture was acting as on-site general contractor on a project that left no room for her own business advancement. The applicant urges on the court the remedy of assessing the Build as a joint family venture, with account taken of legal and equitable issues that call into question the respondent’s sole ownership of money contributed to the Build.
7By the order of Richard J. of April 15, 2024, the legal fiction of corporate ownership has appropriately been dropped and the issue falls to be determined based on the respective contributions of the parties, as well as any offsetting, additional, or other adjustments claimed by them. In my view, for reasons that I will explain below, this order invites, among other things, an analysis on the principles set out in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, as a claim of unjust enrichment and constructive trust. This is “the more flexible and appropriate lens through which to view” some of the property and financial disputes in this domestic situation, and a preferable method of responding to inequities brought about by the breakdown of this couple’s common law relationship: Kerr, at paras. 23, 82.
8In what follows, I generally agree with the applicant’s proposed terms of analysis. A constructive trust analysis allows the court to take account of the shared history of the parties, the contributions in money to the Build and to each other, their labour on the project, foregone personal advancements, the expectations of the parties, and the intermingling of funds and exchange of personal benefits. This seems to me to be appropriate given the breadth of scope in the April 15, 2024 order of Richard J. However, various other individual issues arise along the way that themselves will play a part in the proper resolution of the dispute, including the major factual issue of the applicant’s claimed cash contributions, which the respondent denies.
The facts
9The parties provided as evidence testimony, multiple affidavits, responses to requests to admit, and records too voluminous to summarize. Testimony went through reply and sur-reply, which allowed the parties to bore down practically to the quantum level. Summaries of vendor or contractor receipts, bills, and accounts, reams of bank statements, account statements, tax records, and photographs, constitute thousands of pages of documentation that overwhelm the ability of a single judge to digest and reproduce. On top of that, complaints of non-disclosure amaze, for it can scarcely be believed that there could be further detail left unaccounted for without explanation in that sea of paper. Given everything that was disclosed, I have not generally reacted to the parties’ many claims about failure to disclose, except where and for reasons noted in this decision. The task of dealing with all this necessarily requires a selective and panoptic view, in order not to lose sight of the forest for the trees.
The parties’ relationship
10At the commencement of this hearing the applicant was 60 years old and living in Nobel, Ontario, with her daughter Natasha and Natasha’s three children.
11The applicant has suffered numerous accidents and head injuries. An accident in 2010 caused her to suffer a concussion, not her first. She was thereafter struck by a vehicle in 2016 in a parking lot in Quebec and again hit her head. These injuries have caused her cognitive issues. That said, I found her grasp of the evidence of this case to be comprehensive and thorough where she has the aid of receipts and records to assist her. Her inability to recollect an ancient credit account of her own, and her attribution of it to the respondent, and her claim that cheques provided to the respondent to repay a loan were in fact evidence of money invested, remind me, however, to be cautious before simply accepting her evidence without some care. There are issues of reliability moreso than of credibility in the applicant’s evidence.
12The respondent was the applicant’s high school sweetheart. They dated in the early 1980s but broke up and married other people. The applicant had four children with a first husband but occasionally kept in contact with the respondent. The applicant was divorced from her spouse in 2001; the respondent separated somewhat later from his own. The applicant and the respondent met and linked romantically between 2000 and 2008. During this period the respondent helped as a contact in Toronto for the applicant’s children and helped them get employment with Leon’s, where he was working in managerial positions. When the applicant discovered that the respondent had been involved romantically during the same period with another woman, she ended contact with him. The respondent denied any “relationship” with the applicant until 2009.
13The parties got back together in June 2009, when the respondent was manager of the Newmarket Leon’s store. According to the applicant, it was when the respondent contacted the applicant and satisfied her that he was single. The respondent states that he asked her out for coffee. From the applicant’s perspective, their relationship picked up “like no time had passed.” She was in love with the respondent and explained that she “would do anything for him.” The respondent describes the relationship differently. In his view, “We were engaged in an on and off romantic relationship, and a business venture” in relation to building a bed and breakfast.
14In his affidavit, the respondent claims that the parties always maintained separate principal residences and “did not cohabitate and never called the same place ‘home’”. He describes the applicant as occasionally sleeping over at his place. She had children at home to take care of. However, in his testimony, the respondent agreed that the applicant did stay at his 5 Princefield Place, Brampton, residence for periods of time up through 2012, though only to spend the night. I find with the applicant that the parties celebrated birthdays, vacations, graduations, holidays, and family births together. The respondent emphasized that the applicant never had her mail delivered to 5 Princefield. The applicant explained that she maintained her own address at 55 Worthview Drive in Woodbridge as her mailing address since she still owned the property and saw no need to change it.
15The facts of the couple’s relationship favour the applicant’s version of events. The respondent’s evidence has plainly been affected by his current state of mind. I find that the respondent’s evidence is more strategic than sincere and looks to minimizing the applicant’s financial claims from every possible angle. I found this attitude a constant throughout his evidence, which has caused cracks and inconsistencies in his positioning. In contrast to the reliability issues in the applicant’s evidence, with the respondent it is more a matter of credibility. While I will have more to say about this as I go along, here I will simply say that the large sums of credit advanced to the applicant by the respondent for her work purposes, large loans that he focused on constantly throughout the trial, and their joint bank accounts, amply demonstrate the falsity of the respondent’s denial of the depth of their relationship.
16From June 2009 to August 2011, the applicant was living at 55 Worthview Drive and the respondent in his house at 5 Princefield Place. According to the applicant, they saw each other five nights per week which became every night. The respondent would pick up the applicant to come to his home. The applicant rented out the Worthview house to her daughter Natasha in August 2011 in a “rent to own” transaction and moved in with the respondent at 5 Princefield with her belongings. The respondent asserts that the applicant moved in only in the spring of 2012 and moved out in the fall the same year.
17At 5 Princefield, the applicant did laundry, housekeeping, dinner preparation, and provided manual labour around the respondent’s home. She also gardened, shoveled snow, and did some house painting. In her words, she was “all in.” She paid many expenses for the respondent, including insurance on his vehicles, the respondent’s ATVs and his property insurance. According to the applicant, the relationship was difficult at times, as the respondent was emotionally abusive towards her, leading to her suicide attempt in 2010 because she felt that she could do nothing right in his eyes. The respondent denies any abusive conduct towards the applicant. He helped her through this episode, and the couple stayed together. The respondent offered evidence that normal household chores were shared equally. It is noticeable that the respondent acknowledges that the applicant lived in his home and did chores with him there.
18The applicant described a closer relationship between her and the respondent and her children and friends than between the respondent and his own family. The respondent’s relationship with his children appeared strained in the circumstances of this case. The respondent denied that the applicant had a good relationship with his children. The applicant hosted many celebrations involving her family at 5 Princefield, including her daughter Natasha’s wedding shower in 2011. The parties supported each other through the deaths of the respondent’s father and brother and the applicant’s mother and a grandson. They spent their holidays with the applicant’s children. They were known as “Gramma” and “Papa” to the applicant’s grandchildren.
19The respondent worked at Leon’s for decades, and managed stores in Newmarket, West Toronto, Whitby, Danforth, Richmond Hill, Vaughan, and Scarborough, before becoming an area supervisor. The respondent was asked to leave that employment in 2022 and did so. No reason was given to him.
20Although he was evasive in answering, the respondent eventually acknowledged that he had put the applicant on his benefits at work. On this point, I note that the respondent’s discursive manner of answering question veered frequently into evasiveness throughout his testimony. It appeared that the respondent was not guided by the truth in his evidence, but rather by a constant assessment of the best way to present his evidence so that it appeared plausible even when it was not.
21The applicant was a Mary Kay salesperson. She began with that business in 2002, became a director, became Mary Kay’s top salesperson in Canada ten times, and was anointed Mary Kay’s “Queen of Canada,” apparently a grand recognition for outstanding performance. The job allowed her to work from home. She broke the North American record for sales. That success brought with it money, trips, cars, and diamonds. As the respondent stated, “it is common ground that [the applicant] was one of the best salespeople Mary Kay had at the time.”
22In terms of earnings, the applicant had a team of 500 working under her, and on her evidence she was making at times between $12,000 and $20,000 per month from commissions. The money flowed into her business account, “New Age Sales and Marketing.” Selling Mary Kay products on her own brought her an additional $10,000 to $15,000 more, mostly in cash, which she did not deposit, given costs associated with cash transactions. The vast bulk of the applicant’s sales were for cash. Although the applicant did not file tax returns at this hearing, I am satisfied that she was earning very large sums from this position, given her acknowledged success at it.
23The applicant would invite the respondent to some Mary Kay events outside of Toronto once or twice a year, paying for flights and accommodations. The respondent took the applicant to Italy to visit his family. The respondent gave evidence that he paid incidental expenses on these trips, such as meals that were not included in the events. This seems more than what mere business partners with benefits would do.
24According to the applicant, the parties referred to each other as husband and wife in social settings. The respondent called the applicant his wife in birthday and Christmas cards. The applicant was listed as the respondent’s spouse on his health and dental benefits at work. They spoke of their future and retirement together. To further that dream, and at the respondent’s suggestion, the applicant gave him money, in cash, to invest, drawn from her Mary Kay earnings. When the Build was under construction, the respondent left the applicant a birthday card on her nightstand at 5 Princefield, telling her that for her gift he was paying for the roof for the Build. So states the applicant. The respondent denies the card or the gift. The applicant left that card at 5 Princefield after the relationship ended in July 2019; I expect that it no longer exists. However, I accept the applicant’s evidence about this card; the details that she gives of it, in the context of the other evidence in the case, convince me that it is probably accurate.
25The respondent’s evidence about the relationship is contradictory. At times, he appeared to deny any significant relationship between the two. He stated that he used the term “wife” for the applicant as a joke, just as the applicant referred to the respondent as her business partner. He most often introduced her as his business partner. He noted that they paid taxes separately, accounted for debt separately, and did not live together for a period of three years. There were periods of separation in 2012 and 2016. It is clear from the respondent’s evidence that the description of him as a business partner on some occasion by the applicant had rankled, as he testified, “because I thought we were in a relationship”. In his trial evidence, he acknowledged the relationship but testified that he felt at times that such things as the applicant’s extended absences and Mary Kay award trips where he was not invited made him question it.
26I am satisfied that the respondent at times deliberately downplayed his relationship with the applicant as nothing more than “business partners with benefits.” I reject this characterization as a disingenuous after-the-fact strategy to weaken the applicant’s claims to the proceeds of sale of the Build, justified likely in his mind by a joking comment made by the applicant at some function. I find that the respondent did indeed think that he was in a common law relationship, and that he was slow to admit it in order to invalidate the repercussions of acknowledging it.
27The facts assist. The respondent acknowledged that he permitted the applicant between 2009 and 2014 to charge at least $86,093 in charges from “Mary Kay” to his PC Financial Mastercard, and that the applicant paid him back. He also described giving the applicant a $30,000 loan and a $20,000 bank draft from one of his accounts. In February 2010 the applicant began making small payments towards the interest on this “loan” and repaid it entirely in 2011. In my view, the fact that the respondent permitted such charging to his credit card by the applicant, and made a $50,000 in loans to her, that were paid back, tells strongly against his claims to be barely more than the applicant’s business partner on the Build. Rather, I view these loans of $110,000 or more as substantial evidence confirming that the parties’ relationship was serious and intended by the respondent to be long-term, as described by the applicant. I am unable to accept that the respondent would front so much money to someone to whom he was not personally very close.
28There is a red herring in the case. Although the applicant claims to have been giving large sums of cash money to the respondent for investment, it appears that some of the money now claimed by her, a relatively small total, was in fact being paid by cheque to pay interest on the applicant’s Mary Kay debt on the respondent’s line of credit. In 2010 the applicant was writing many cheques to the respondent in small amounts of $100. Many of these indicated on the memo line that the money was for “interest”, or to pay back a “loan” or for “Mary Kay” or “MK”. This money may relate to the $20,000 advanced by the respondent to the applicant for her business. Claims by the applicant that she was giving money this way to the respondent for investment are not tenable in the context of the “re” lines on the checks, which suggest loan repayment. I consider the applicant’s evidence in this regard as unreliable. She believes that these cheques, now some 15 years in the past, represent investment money, but the cheques belie that claim.
29But contrary to assertions by the respondent, I do not view these cheques as telling against the applicant giving large sums of cash to the respondent. It is hardly surprising that she kept her business affairs separate from her personal affairs. Paying back a business debt by cheque does not make giving the respondent cash for investment less likely. Throughout the trial the applicant expressed frustration that cash she had provided to the respondent was left unaccounted for. The cheques that repaid interest on the respondent’s credit card and that came from the applicant’s business account, do not cause me to doubt that the applicant gave large sums of cash to the respondent for investment.
30Nor am I troubled that the applicant made the repayment cheques payable from her business account to RBC 5160, which became the parties’ joint account. RBC 5160 had been at one time the respondent’s sole account, and the applicant’s business kept its own accounts. As the respondent noted, the “applicant is a sophisticated and successful businessperson and salesperson”. She would understood the difference between her business account and the couple’s joint account. If her business repayments incidentally went into the shared personal account, that did not detract from the fact that she repaid the loans and carried the interest charges.
31It is undeniable that sometimes the applicant’s memory failed her. Thus it was that she attributed a CIBC VISA card to the respondent that was in fact her own card. The respondent was able to demonstrate this because he had taken copies of the applicant’s documents that she had left at his home after their separation and before they were retrieved by the applicant’s children, because he thought “they might become important in the litigation.” These records were not disclosed prior to trial but were conveniently produced by the respondent to embarrass the applicant in her evidence at this trial. And so, entries of payments made by the applicant allegedly to the respondent’s VISA card are actually transfers of money by the applicant to her own credit card, though she did not introduce them to claim them for the Build. The applicant seemed to have this card from June 2009 to October 2010. At one point it had a $38,000 balance that the applicant paid off; the respondent claims that it was his loan to the applicant that allowed her to pay off this debt. Again, while the applicant’s reliability suffers from inaccuracy at times, this late disclosure game played by the respondent detracts significantly from his credibility.
32In general, I often rely on and give effect to important claims that the applicant has made in this proceeding: about cash money that she gave to the respondent over the course of time, about the personal efforts that she put into the Build and their effects on her ability to continue her own business, about the power structure within her relationship with the respondent and on the Build, and about her understandings from the respondent concerning the nature of bank accounts RBC 5160 and RBC 8619 and CIBC 0137, among other things. As I have said, while there are reliability issues about tangential aspects of the applicant’s evidence, I was nevertheless very impressed by her testimony. She seemed almost compulsively focused at discovering the truth of things and had an accountant’s obsession with uncovering the trail of money and tracing it to its source, when that was possible. The applicant maintained this focus in chief and when pressed in cross-examination. Unlike the evidence offered by the respondent, I never had the sense that the applicant was trying to hide the truth or alter it to make herself or her position look better.
33I am satisfied that the respondent assisted the applicant by fronting her credit to pay for Mary Kay products during or shortly after a difficult period in the applicant’s life, for which the applicant repaid him and paid the interest charges, and that the applicant repaid the respondent for the use of his Master Card in paying for Mary Kay products. The amounts are not insignificant: a cheque from April 19, 2011 was in the amount of $8,958.69. Another repayment that month was in the amount of $756.63.
34In 2011, the applicant wrote two cheques for deposit to some account, one of $9,000 and another for $9,600. The applicant believed those monies were paid into the RBC 5160 account, but there are no records to prove it. Various other cheques were paid to the respondent to pay down his line of credit for money that he had loaned the applicant, and these could have been written on that account.
35Between 2009 and 2012, the applicant testified that she was giving the respondent large amounts of cash, amounting to many tens of thousands of dollars, from Mary Kay earnings to invest in their future, at his suggestion. She trusted the respondent, and, not surprisingly, did not seek or receive receipts for this money, or examine bank account statements to trace the funds. She would leave bundled cash in the kitchen at 5 Princefield for him to invest for her. For his part, the respondent absolutely denies having received any cash from the applicant: “I never got cash from Shelley, no.” The truth of the applicant’s claim falls to be determined on the credibility of the parties’ evidence, and for reasons that will become clear, I accept, to some extent, this claim of the applicant. I believe that she gave very large sums of cash to the respondent, but I am unable to determine how much, given lack of detail in the applicant’s evidence about this fact. The applicant’s sense of deep commitment to the respondent perfectly accounts for the absence of any paper proof of her claims and defies any efforts to quantify the contributions. Do spouses in committed relationships exchange receipts?
36The respondent testified that he took the applicant to his bank to see a financial adviser, because he was very knowledgeable in investing. That day, apparently January 27 or 28, 2011, he added the applicant’s name to his personal account RBC 5160, a personal account of his since the 1990s. The respondent claims not to have known that the applicant had been added to this account until 2020, after they had broken up. For some reason, he had meant to add her and his brother to his safety deposit box, a box he never used, and his brother to his bank account. He postulated that the applicant somehow got added on this occasion to his account, unintentionally. And for some reason, his statements stopped coming around the same time, so he did not notice that the applicant had been added. I do not believe this claim by the respondent. Among other reasons, he was far too careful with his money and his accounts, and he himself used this account too often during the time period that the applicant was also attached to it, to rest in ignorance that the applicant’s name was on this account and his brother’s apparently was not. The implausible coincidences of a pointless safety deposit box, his intention to add his brother to RBC 5160 and the cessation of his bank statements from a significant account of his are simply not credible.
37There were plenty of difficult times in the applicant’s relationship with the respondent. One night in October 2012 the applicant returned home late from work and the respondent told her to “go back to Mary Kay.” He was kicking her out. The applicant rented a van and moved back home to 55 Worthview, which “destroyed” her. For his part, the respondent testified that he sensed instinctively that something was going on with the applicant, so he told her to leave. But he claimed that he loved her, was faithful to her, and never disrespected her. This evidence, which I believe expresses the respondent’s feelings at the time, tells against the respondent’s claim elsewhere in his testimony that his relationship with the applicant was less than spousal, that they were just business partners, and that they were only going to start their new life together once they sold their own homes, the Build was finished, and they were living there together. Such internal inconsistency also derogates from the respondent’s credibility and reliability.
38I find that the respondent was in fact committed to the applicant from early in their renewed relationship. For, on the applicant’s evidence, which I accept, the day following his ejection of the applicant from what had become her home, the respondent called her and sent her texts to come back. Time passed before the applicant was willing to return to the respondent, but to use her expression, he “love bombed” her and insisted that their problems were in the past. She was overwhelmed by his expressions of adoration and his agreement to treat her respectfully, and she returned to 5 Princefield in January or February 2013. She was “all in…1,000%, I’m in this for life.” So far as the applicant was concerned, they were a common law couple and she considered herself the respondent’s spouse. The respondent gave her an engagement ring.
39For her part, the applicant gave the respondent a lot of cash money between 2009 and October 2012. She gave him mostly cash to invest for her, because he was really good at investments. She trusted him “explicitly.” But she does not know where all her money went for these investments. The parties opened a joint investment account, RBC 8619, in December 2013 once they had gotten back together. The applicant was listed as the primary account holder, and she paid the taxes owing on it. The applicant did not know the whereabouts of the money she had given the respondent, but she viewed that joint account as a reason to trust the respondent. Also important was the fact that the respondent had already added her to his account RBC 5160 in January 2011.
40It may be that records for the RBC account 5160 would show where money from the applicant had gone. Unfortunately, the applicant only sought records for that account after the parties separated in July 2019. The bank’s retention period is seven years, so the applicant could only get records from August 2012 forward. The respondent was able to produce for this proceeding records between 2007 and March 2010 but claimed to not have statements from April 2010 on. As I will explain, I have concerns about the credibility of that claim, given what I find to be the respondent’s careful control and oversight of his accounts and other financial records.
The Build, Tosh, and the land purchase
41According to the applicant, the Build came about after she and the respondent talked about their retirement together. The applicant had wanted to travel, but the respondent wanted to build a home for their retirement. After the respondent convinced her that they could construct a home for some $450- to $500,000, money which he had, the applicant went along with the respondent’s ideas, and they ultimately decided to buy land and build a custom house. The applicant believed much of the money was in RBC 8619, their joint investment account. In addition, the respondent assured her that they had money in investments, that he had over one million dollars, and houses that he could sell off.
42In April 2011, the couple made an offer on a vacant eight-and-a-half-acre lot on Lake Manitouwabing in McKellar, Ontario in their own names. When the offer was accepted, HST became due. As the respondent stated, “We then decided to buy the vacant land under a new corporation, 1844476 Ontario Limited…in order to save the HST”. The articles of incorporation were dated February 28, 2011. The applicant was the sole director. The final purchase price, with legal fees, came to some $160,000. A cheque for some $153,000 was paid on top of the $5,000 downpayment. Title to the land was taken in the name of the corporation. But according to the applicant, in order to get the tax advantage, there had to be a business purpose that would satisfy the Canada Revenue Agency (CRA). The applicant testified that, after discussion with the respondent, who was part of the decision to incorporate, she therefore told the CRA that it was to be a bed and breakfast, to which she attached the name “Tosh”, a portmanteau for “Tony and Shelly,” the parties’ first names.
43The respondent claimed that all but $5,000 of the money that paid for the land on which the Build was constructed was his money, so in the final accounting he claims the value of the land as his own. The applicant disputes this claim and argues that the respondent deposited huge sums of her cash into his accounts, and that therefore the land purchase money was her contribution. I will discuss this issue in more detail below.
44Because of the corporate involvement, the parties were entitled to a refund of money earmarked for HST. The applicant prepared an Authorization and Direction dated May 5, 2011 to the parties’ real estate lawyer Stephen Holmes, on behalf of Tosh, the titulary purchaser of the lot. This document directed the lawyer to repay an amount totaling $20,887.16 (after $2,637.04 was taken off to satisfy the lawyer’s account) to the respondent, since the funds to purchase the property had come from the respondent’s personal account. This was done. The applicant stated that it was done at the direction of the respondent, although the respondent denies this. I find that the respondent generally got his way in the relationship, and that it was he who directed the applicant to prepare this document.
Life on the Build
45For all practical purposes, the parties started with a bare lot and constructed the Build on the McKellar property until it was sold in 2021, yielding money that is now being held pending order of this court. Onto this frame the parties have overlaid disputed detail concerning individual contributions to various aspects, the quality of the respondent’s workmanship, costs driven up because of the respondent’s misbehaviour, and other such things. But during the years of the Build the parties put up with such things and continued to work towards their common goal of having a home that they would retire into and receive family. As this was a shared goal, I do not follow the applicant into calculating as “overages” those aspects of work performed by the respondent that she claims later needed correction.
46I do not intend to relate in detail the course of the work on the Build. A summary overview will suffice.
47The respondent started right away assembling materials for the dock, with barrels brought up from Brampton. The parties put a 2004 trailer at the Build in 2012 for which the applicant had paid $6,500 cash on Kijiji. Although the respondent claims that they each paid $3,000 towards it, I do not accept the respondent’s claim. I find the applicant the more credible of the two, and I generally unhesitatingly accept her word against the respondent’s on disputed points, for reasons that I give throughout this decision. The trailer was used for camping and provided lodging when one or the other was up working on the Build. By the time the applicant disposed of it after the couple separated in July 2019, I am satisfied that it had little remaining value, and the applicant’s claim to have sold it for $500 is reasonable.
48In 2012 to 2013 a septic system was installed at McKellar, for which the applicant paid Walter Benn, a friend of the applicant’s brother-in-law George Schamehorn, $47,000 cash, since he required cash payment. Similarly, Mr. Schamehorn would also only do work for cash for excavation work that he did, quite apparently to avoid showing an income to the CRA and during his divorce proceedings. The applicant had cash coming in from Mary Kay sales. Architectural drawings in that time period cost about another $5,000, paid from the applicant’s account. The applicant contributed some $97,000 to the Build in 2013. That same year, the respondent contributed $7,202.
49The applicant kept records of the Build, for business purposes. Concerning HST, she got audited twice, necessitating keeping track of that category of claim, and continually using the services of an accountant. She kept separate folders for the different vendors on the Build. Importantly for the evidence in this case, the applicant later performed tracing of the funds through various accounts and to vendors or other expenses after the litigation commenced, using the extensive disclosure of records made by the parties. Accordingly, the applicant is now able to assign payments as hers, as “joint” payments, and as payments from the respondent, such as those made from his line of credit: CIBC 0137.
50As the Build continued, the applicant devoted herself to it and was distracted by it. Accordingly, her Mary Kay income declined. As the applicant put it, she became like the general contractor on the job. On the other hand, the respondent had his career as a supervisor at Leon’s to carry on with, and he did so. He advanced in management and was put in charge of several stores. The applicant describes extensive labour provided by her, her family and friends to the Build and for the builders. She estimates that labour to amount notionally to more than $96,000 in value. In my view, account must also be recognized of the disastrous effect on the applicant’s career at Mary Kay that resulted from her efforts and time at the Build.
51But the respondent also devoted many weekends and vacations to the Build, doing a lot of work himself. His own quantification of time was offered only in response to the applicant’s claims, as a sort of quantum meruit tit for tat. It also was significant. The difference is that the applicant spent for more time and personal labour on the Build than did the respondent, whose continuing formal employment at Leon’s limited the time that he could spend there to his days off on weekends, holidays, or vacation.
52In 2013, work proceeded. The discovery of rock where the foundation had to be dug required blasting. The initial builder, George Cameron, was paid some $96,000 to construct the shell of the house.
53From 2013 until the house was sold, problems developed on the Build. There were issues of construction that did not meet the standards of the Building Code: septic, propane issues, deck issues, outside siding issues, window and floor sealing issues, garage door issues. In fact, the property was never properly completed to the point of occupancy permit before it was sold in 2021. A permit only issued in 2023.
54George Cameron left the Build after being paid that $96,000. There was a falling out relating to snow removal and the proper manner of overwintering the yet unfinished basement. Frost had caused the floor to heave, and Mr. Cameron “washed his hands” of the problem that he felt the respondent was responsible for. “Gates Consulting” took over to prepare re-engineered plans to remediate structural issues, and some $6,300 was paid to Mr. Gates. From there, some $206,909 was paid to Josiah Lee and his company “Above and Beyond”, to continue the work as primary contractor. Josiah Lee recalled that the respondent was not on site. He recalled raised-voice arguments that he had with the respondent in which the applicant would not interfere in the respondent’s conversation with Mr. Lee. The respondent denied raising his voice with Mr. Lee or other workers on site. The contractors did not agree.
55In fact, on Mr. Cameron’s evidence, problems were much more significant than the cost of snow removal and damage to the structure of the Build because of overwintering problems attributable to the respondent. The respondent believed that he acted reasonably throughout. “Above and Beyond” therefore finished the shell of the Build. In a 2015 Christmas card, according to the applicant, the respondent made her a gift of the roof of the Build, with a drawing of a roof and the truss bill from Washago. The respondent denies this card and any such gift. The applicant testified that she left the card behind in a bedside table in July 2019 when the relationship ended and she had to leave 5 Princefield. I accept the applicant’s evidence on this point. Her details paint a compelling picture of the circumstances.
56The applicant’s Mary Kay business fell off because of health issues and her devotion to the Build. The respondent testified that the applicant chose to quit Mary Kay in 2015 because she was treated badly by her superior in that company and felt ignored.
57In 2016 the applicant became involved with All Communications Networks, recruiting and training people to sell electricity and gas contracts. The work involved her spending a significant amount of time in Alberta. Fires in Fort McMurray affected her work, and she was unable to succeed in it in the long term. The respondent describes what I interpret as his jealousy and distrust over the applicant’s extended stay in Alberta. When he taxed her with not telling him the truth about things in Alberta, the applicant told him that she was going to buy him a truck out there. At this trial, the respondent testified that they didn’t need the truck anyway. Be that as it may, it appears that the respondent did use it and the applicant paid for it and its insurance up until they separated. On separation, the respondent had to remove belongings from the truck before the applicant ended up taking it. The respondent passed up no opportunity to cheapen the applicant’s contribution to their relationship, even when his conduct belied his claims.
58The applicant again lived with the respondent at 5 Princefield from 2016 when she was not in Alberta until the Spring of 2017. They spent large amounts of time working at the Build on insulation and drywall, held a family wedding reception there, and got the utilities working. The applicant stayed for periods of time at the Build, returning to 5 Princefield in October 2017 until Spring 2018. The parties held many events for family and friends at the Build, including an ice fishing derby in 2017 and 2018, a “summer Olympics”, a rehearsal party for the applicant’s son’s wedding in 2017, and hosted gatherings there at Christmas, Easter, and birthdays.
59The applicant moved into the Build in May 2018 to recover from what she called a “nervous breakdown” caused by personal and family issues. By that point, according to the applicant, the house was livable. Flooring was not installed on the main floor, fireplaces were not hooked up, and the kitchen was not assembled, but otherwise, the applicant considered it “mostly done”. The applicant and the respondent spent Christmas and holidays and fishing derbies there as soon as they had running water and a roof, as early as 2016 or 2017. The applicant testified that the respondent came up two days every week and on holidays. For his part, the respondent denied spending more than seven to nine days at the Build at a time. He continued to live at 5 Princefield and to work at Leon’s.
60The applicant felt like a project manager or foreperson while she lived at the Build. She was the “go to” person on the project and made herself available to tradespeople and to “do stuff”. She claims to have managed most of the Build except when she was sick.
61The respondent worked on the house on days off. He framed the garage, but with used lumber. The porch he constructed sank because it was not properly supported. He did pipework and trim and some plumbing – badly, according to the applicant. Things were not in accordance with the Building Code. The parties argued a lot, often over money, once the applicant had no more. When it came time to pay for eavestroughs from MacMillan Construction, the respondent would not allow the applicant to take money from RBC 8619, though it was a joint account. She had to find the money elsewhere. In the Spring of 2019, the respondent received a promotion at work that limited his available time to work on the Build.
Separation and work on the Build post-separation
62Everything in the relationship came crashing down July 7, 2019. The respondent and the applicant appeared to have been drifting apart in the time leading up to that date. The applicant testified that she was “done” with the relationship. The respondent was not coming up to the Build, where the applicant was. The insurance had to be paid on the truck.
63That day, at 5 Princefield the couple discussed ending the relationship. The applicant wanted the respondent to take over the insurance on the truck that she had bought him, and which was in her name, or she would have to take the truck. The applicant told the respondent to take over payments on his own phone, which she had taken care of to that point. She demanded that they “divide the house.” The respondent said that he could not afford to buy her out and that she had no claim on 5 Princefield. Police were called, and the applicant was told to leave. She ended up taking the truck, after the respondent took his possessions from it. Her sons went back there afterwards to collect their mother’s belongings. The applicant had to leave a lot of things behind, including valuable jewellery and some cards in her bedside table. I do not accept the respondent’s claim that she retrieved her belongings at that time.
64In the applicant’s “contributions” binder, she sets out many payments that she made during the course of the relationship with the respondent to his CIBC Visa card. The respondent testified on the trial that, after the applicant left 5 Princefield following the couple’s separation, he took copies of the applicant’s personal credit card statements before turning over the applicant’s records to her sons. As he stated, “something told me to keep copies…to protect” himself financially. He claimed to have rediscovered them only at trial after receiving the applicant’s documentation that she had paid money to his credit card. It turns out that the credit card belonged to the applicant. The applicant acknowledged her error and testified that the account was open between 2009 and 2010, but that she did not know its number, and did not recollect it until its production by the respondent, given concussions that she had suffered. It apparently was not used to fund the Build but rather was used to fund other purchases. What is significant to me about this evidence is that it serves as further proof of how careful the respondent is relating to financial records and ensuring that he had them and that he maintained them. The story firms up the applicant’s evidence of multiple file cabinets in the respondent’s basement in which he maintained his various records.
65In July 2019, shortly after the couple split up, the applicant got an appraisal of the Build by realtor Dan Payerl of Century 21, at $880,000. In his testimony, Mr. Payerl explained that at the time, the kitchen had not been completed. He assessed the Build as 93% complete. A woodstove was improperly installed. Some exterior work needed to be completed, including decks, dormers and siding, and there were a lot of things on the lot that made it unsightly.
66The applicant went to live at the Build. She sold the trailer for $500 and lived in the Build. Post separation, the applicant, who continued living at the Build until it was sold, felt compelled to put in remedial and finishing work. As the titulary president of Tosh, she felt that she had a duty to comply with the Building Code and the CRA. She would be responsible for any failures to comply. There were issues with plumbing and drywall, seven decks to be brought up to Code requirements, HVAC work, propane hookups, siding to be completed, interior trim and door locks, bathtubs to be properly supported, woodstove issues, and driveway grading, among other things. The garage floor had to be levelled and the concrete pad poured. The propane line had been installed improperly and had to be redone. Parging had to be completed. Roof peaks had to be completed.
67The respondent drove up days after the break-up to pick up his tools, and stayed in the house, uninvited, for many weekends. The respondent ended up charged with criminal harassment and breaching bail. The applicant continued to spend money on the Build, to bring it up to Code, and sent correspondence to the respondent through counsel in efforts to settle the matter, without response. The applicant engaged “Jefferson’s Workshop” and its owner Jeff Ketchabaw to work towards acquiring an occupancy permit when the respondent reported her to authorities for living at the Build without one. The respondent contributed nothing more to the Build except for some utility payments. The applicant claims to have contributed some $479,014.12 post-separation.
68Mr. Ketchabaw described doing siding for gable ends and dormers and attending to inspection issues with respect to the Building Code: ICF concerns, support for a chimney, shortening the span of decks, stairways, and preparing the garage for the slab to be poured. Building inspector Chris Bordeleau described 15 deficiencies that he had noted in the Build that had to be corrected. There were joist problems with the decks, including incorrect building materials, issues with caulking the siding to prevent water getting in, and issues with the size of the septic system, among other things. After the Build sold, work continued on it. Mr. Bordeleau testified that an occupancy permit was granted June 23, 2023.
69Post-separation, the applicant, no longer making large sums from Mary Kay, considered actually marketing the Build as a bed and breakfast. From the time of their breakup forward, the applicant lived and worked on site to bring the house up to Code to get an occupancy permit, or to ready it for sale. She did this with her own funds, drawn from her investments. The respondent was on bail not to communicate with the applicant, so she could not discuss his potential contributions to the Build at this point with him.
70Alarmingly, after the couple separated, the applicant found herself removed from RBC 5160, a joint account, which kept her from having access to records of the account. After separation the respondent transferred from that account $16,853.25 as a personal withdrawal and claimed that it was to pay “Dynamic”, a vendor that did HVAC work on the Build in 2015; no receipt has been provided, and the dated claim appears most unlikely. Likewise, the applicant found that she was frozen out of the corporation’s bank account, from a branch in Brampton, where the respondent lives. This required the applicant to get a master licence (at a cost of $813.60) with which to open a different business account for Tosh, which still had to run as a business.
71The applicant cleared the garage so that a concrete floor could be poured, after removing from it many items that belonged to the respondent, who did not manage to retrieve much of his personal property until shortly before the sale of the Build closed in the summer of 2021. She had the decks and stairs redone to get them “up to Code”. Fire doors and garage doors had to be dealt with. Roof decorations and siding were completed, the electrical system inspected, and the grounds levelled. The structure had to be parged.
72The applicant never got to run a bed and breakfast. In November 2020, the court made an order, ultimately on consent, to have the Build sold and directed that the applicant organize the sale. Once the property was ordered sold, the applicant paid to remove construction garbage outside the house. The bulk of any post-separation work by her was completed by that point.
73In January 2021, the property was appraised at $1.2 million, again by Dan Payerl. Mr. Payerl testified that it was mainly the market that had changed. Property was selling quickly during the COVID pandemic; it was “a very hectic and chaotic time.” Things were rapidly changing. Mr. Payerl recalls a lot of “junk” around the property: leftover ICF remnants, boats, bikes, items covered with tarps. Some improvements had been made, but Mr. Payerl still felt that the property was 93% complete; it needed a fine kitchen. It was the pandemic that really ignited property values.
74The parties had agreed that the Build would not be listed until June 2021, to allow the applicant’s grandchildren to finish out the school year in it. The property was listed for $1,495,000 on June 4, 2021. Mr. Payerl felt that the applicant had done “a terrific job” cleaning up the grounds, increasing the curb appeal. The garage had been decluttered. An offer came in for $1,400,000 plus HST of $182,000 after two weeks on the market, which was likely discussed with the parties and their lawyers and agreed to. The applicant had to clear up some Building Code violations before closing. The agent, Mr. Payerl, told the applicant that that was a “really good” offer. That money, less disbursements, has been in the Oldham law firm’s trust account since the sale.
75The applicant would claim that it was her efforts post-separation that accounted for the increase in the value of the Build, but it has to be remembered that the COVID pandemic had a huge effect on the value of recreational property in attractive locations at the time the Build sold, as testified to by Mr. Payerl.
76The respondent was evasive about his view of the listing price for the house. He felt that he should have been involved in the sale process, but he testified that he said nothing about the listing price, so “I guess I accepted it.” But he now claims to have thought that the house was listed for $1.4 million. Whatever the listing price, the Build sold for what the respondent thought its listing price had been. He took no action to prevent the deal from closing once the deal was made. There is no evidence before the court that the sale price was not appropriate and reasonable.
77The respondent testified that he believed that he owned half the property. He and the applicant “had discussed all along that this was ‘our’ property”. The only things that they had together “were the property and their contributions to the property.” I interpret this to mean, and find, that whatever the respondent’s claims at trial about money that he said the applicant agreed to put into the project through the sale of her own house, while the Build was going up he felt that he owned half of it and the applicant owned half of it.
Some particular factual issues
The Tosh corporation
78I have set out above the circumstances in which the Tosh corporation was created, and for what purpose. It is worth pausing here to set out some issues that arise with respect to that corporation and the evidence of the parties.
79The corporation never had an income and was never run as a business. It had no real share structure. The respondent was added as a shareholder between 2015 and 2018, but apparently only in tax filing declarations and not in fact. So far as the applicant was concerned, she owned 100% of the corporation when it was incorporated. Between 2015 and 2018, she owned 51% to the respondent’s 49% of “shares”, though none appear ever to have been issued anyway. In her tax filings after the parties’ separation, the applicant went back to being 100% owner of the corporation. No minutes were kept of board meetings. The corporation was a shell dreamed up by the parties to avoid paying HST on the Build.
80The corporate documents do not appear to have been legally prepared or even properly done, and no thought was given to the share structure of Tosh, as it is clear that the parties incorporated Tosh only for the tax break. The applicant apparently did the paperwork and initially chose to assert that she owned 100% of the corporation because her name was on all of the paperwork. But the applicant’s changes to the claimed shareholdings, as reported to CRA, reflected events in the couple’s relationship. By 2015, it had become “51%/49%”, with the applicant claiming a slight controlling interest for herself; for all intents and purposes, the fictional share structure described that the parties owned essentially an equal share of the corporation and the Build, its asset. After the couple separated in 2019, the applicant claimed 100% again on her tax return. She explained that she claimed 100% when she realized that she was responsible to CRA for corporate debts and liabilities.
81In his original affidavit on this trial, shortly after explaining that “we decided to buy the land under a new corporation,” the respondent claims to have overpaid for the land destined for the Build because “I was not aware that we were going to purchase the land via a corporation, yet the applicant incorporated the corporation on February 28, 2011.” On the last day of evidence in the case, the respondent again claimed to know nothing about the incorporation of Tosh. I find this to be a clumsy but deliberate attempt by the respondent to imply dishonest scheming by the applicant without his knowledge. But the respondent had also provided the evidence that “we decided to buy the land under a new corporation.” I have no doubt, and find, that the respondent was well aware of the creation of Tosh and its purpose. He was shortly afterwards also to be the beneficiary of a $20,000 refund from the parties’ lawyer in relation to the purchase of the land for the Build because of the existence of the corporation.
82How could the respondent not know about the sham incorporation whose only purpose was to save the parties HST? Because of that corporation, he at least received repayment from the couple’s lawyer of money that had been provided to pay HST on the purchase of the land on which the Build was to be constructed. His claim of ignorance, as in other places in his evidence, is simply not believable and detracts from his credibility. As to the respondent’s complaint about the applicant’s dishonesty because he received no shares in Tosh, neither did the applicant. For there were no shares.
83In the end result, the variable share structure put forward on occasion by the applicant makes no financial difference in the circumstances of this case, as it was agreed prior to trial that the corporate ownership of Tosh would have no bearing in determining the issues. As I shall explain, however, it does assist in demonstrating a different point, involving the intention of the parties.
Joint bank accounts: whose money?
84A central issue in this case may factually be dealt with here. As the Build grew, it was funded in various ways: by payments by the parties from their own or joint bank accounts, by credit card, by line of credit, or by cash. It is disputed whether their joint accounts represent truly joint funds or are to be assessed by the contribution of each into those accounts, given their unmarried status. The difference is significant, as it will significantly affect the attribution of funds paid towards the Build, as coming from one or the other party, or both jointly.
85In common law relationships there is a rebuttable presumption of resulting trust where one party transfers property to another for no consideration: Pecore v. Pecore, 2007 SCC 17, at para. 24; Falsetto v. Falsetto, 2024 ONCA 149, at para. 17. Equity presumes that money provided for no consideration is held by the recipient by way of resulting trust rather than as a gift; it presumes “bargains, not gifts”: Galla v. Galla, 2015 ONSC 37. This rule is extended to joint bank accounts of unmarried spouses by the Family Law Act, R.S.O. 1990, c. F.3, s. 14(b). There is a presumption that the money in accounts jointly held by non-married persons is not, in fact, joint; rather, it belongs to the party that deposited it; however, that presumption is rebuttable: see, e.g., Hutton v. Wakely, 2023 ONSC 6964, at paras. 46-48.
86For the purpose of this case, while the parties were together and engaged in the Build, they possessed three joint accounts: RBC 5160, RBC 8619, and BMO 3301. The last of these was in fact in the name of the Tosh corporation, but there can be no doubt that it was a joint account. Money passed through these accounts to the Build. From where did it come?
RBC 5160 and RBC 8619
87Although they each also had separate accounts, the unmarried parties held two joint accounts at the Royal Bank: RBC 5160 and RBC 8619, though on the applicant’s evidence the respondent controlled them. In my view, funds used on the Build by the parties from RBC 5160 and RBC 8619 must be considered to have been jointly paid by them in equal share.
88The applicant testified that she provided a lot of Mary Kay money to the respondent in cash for the purpose of investing for her. She left bundles of money over a long period of time at their residence for him to invest for her. The applicant has sought to quantify the amount, but I am not convinced that such an undertaking can be successful, or the amounts put forth reliable after all this time and without paperwork or receipts. Both parties agree that the applicant was very successful in her Mary Kay work when they renewed their relationship as adults.
89The respondent denies having received this money in cash from the applicant and argues that the court should be wary about accepting the applicant’s claims to have paid the money because claims about untraceable cash, for which no paper trail of verification exists, may disguise attempts at fraud. But I do not find there to have been any dishonesty here, at least by the applicant. Although I would not be satisfied of the applicant’s cash contributions to the criminal standard, that burden is not at play here.
90I accept the applicant’s evidence and find that she probably, on the balance of probabilities, gave the respondent large sums of cash to invest for their future together, even though the applicant never saw any return of principal or interest from these investments. The applicant convincingly postulated, in her evidence, that her cash money was deposited by the respondent into accounts of his own, or was used to pay back loans by which he had purchased Leon’s stock or was itself used to purchase stock. From there, money belonging to the applicant found its way into joint accounts and onto the Build.
91I find that I cannot trust much about the evidence offered by the respondent for reasons given throughout this decision. But to highlight one reason: on two occasions during this trial the respondent produced records that he had not produced to the applicant in the disclosure process. He claimed either to have not realized the relevance of the documents, in the case of the applicant’s credit card records that he had kept for himself in case he needed them some day, or to have just recently found records about another issue, relating to the origin of funds to purchase the land for the Build. During the trial, I rejected the respondent’s evidence on this latter point and ordered significant costs against him. I warned him at the time that my findings would have an effect on my credibility assessments in the case, and they do.
92The respondent had had account RBC 5160 at least since 1994. The applicant was apparently added to that account on January 27, 2011. The respondent described it as an account that he used for his personal needs and for expenses related to the Build. The respondent has denied intentionally adding the applicant’s name to his account 5160, and to have been unaware that she had access to that account as an accountholder.
93I cannot accept this claim by the respondent, who is a jealous guardian of what was his and what he could lay claim to. That the applicant’s name could be added to the respondent’s account unintentionally when the couple went to the bank to purchase a safe deposit box or meet with an investment advisor, as the respondent suggests, is surprising and hard to accept. That the applicant’s name should remain on that account for many years with the respondent oblivious to that fact is something impossible to credit.
94It is nevertheless a telling admission by the respondent, in the context of the applicant’s claim about cash given by her to the respondent for him to invest for her, that he testified he brought the applicant to meet his bank advisor to talk about investing on that day in January 2011. I find that this is evidence that corroborates the applicant’s claims about providing large amounts of cash to the respondent for investment. However, that evidence was offered by the respondent for a different purpose. For, according to the respondent, it was on that occasion that the applicant’s name got added to RBC 5160 without his knowledge: “her name got added to my account by mistake.” The respondent claims that he was not aware of that mistake until 2020, long after the parties separated.
95I find instead that adding the applicant’s name to this account, just before they began to invest money and time in the Build, was a deliberate choice by the respondent and evidenced intentions on his part that the applicant know his commitment to her in their relationship, and that she share the money that he chose to put into this account, much of which would derive from her cash anyway. In any event, the applicant gave evidence that she did not withdraw funds from RBC 5160 without the respondent’s permission. The respondent had a donative intent that was evidenced by adding the applicant’s name to his pre-existing account. He thus gave proof of his attachment to the applicant but controlled her access to the funds. I find that the respondent, by doing this, also recognized the large sums of cash money that the applicant had provided to him to invest for her.
96The parties opened up RBC 8619 as a joint “investment” account in December 2013 after the respondent convinced the applicant to get back together after the respondent had ended their relationship. The respondent apparently indicated on the opening documentation that the applicant was his common law spouse and was also associated to RBC 5160. The respondent describes substantial deposit of funds into RBC 8619. Into this account the respondent deposited Leon’s stock that he had acquired over time as an employee, of a value of more than $160,000. It appears that he was aware that the applicant was not depositing money into this joint account, but the money in the account was used for the Build. The respondent claims that his use of that account on the Build was to be repaid by the applicant through the sale of her house; he was also to sell his. Neither of them sold their houses for this purpose, and I do not accept that explanation. I find that at the time the money was deposited, the respondent’s affection for the applicant and recognition of cash money that she had given him caused him to make choices and decisions that subsequent events now cause him to regret and seek to obscure.
97According to the respondent, the money in that account was solely his by resulting trust, regardless of the fact that it was a joint account. The applicant countered this assertion in her evidence, testifying to the cash money she gave the respondent to invest for her, and that through the respondent’s regular manipulations of money among his accounts some of it found its way directly, or after transfer through other accounts, into the Leon’s stock that the respondent acquired and deposited into RBC 8619. Accordingly, the money in RBC 8619 should be considered truly joint, as “our money was intermingled and somehow or another, when it went into the joint investment account, it came from our sources”. Asked in cross-examination whether she protested at the time about money being moved in and out of this account by the respondent, she answered that she did not, because she trusted him. I accept this evidence.
98The RBC 8619 account was joint from the time it was opened. The applicant was even issued investment income tax forms for RBC 8619, which she gave to her accountant to deal with. The respondent also used funds from RBC 5160 to pay for various expenses of his own, including loan and mortgage payments on his several properties, and support for his former spouse and children. The applicant wrote cheques to the respondent, some of which he deposited into the RBC 5160 account. The applicant testified that she thought that the respondent was investing the money that she provided. The respondent provided evidence that he himself transferred money from RBC 8619 into RBC 5160, which he claimed to have thought was his sole account. The respondent suggests that repayments to him by the applicant of Mary Kay loans from the respondent into RBC 5160 tell against her joint ownership of that account. But the respondent himself transferred money from other accounts of his own, and from RBC 8619, into the same account. That fact is neutral.
99The respondent asserts that he owned all the funds in both of these accounts solely, as essentially the sole contributor of funds within those accounts, on the basis of the presumption of resulting trust. But I have found that over time, the applicant gave the respondent tens of thousands of dollars of cash money from her Mary Kay business to invest in their future together. Because no records of amounts were kept, or receipts given, I find that the amount of money that the applicant provided to the respondent in this fashion is unable to be quantified. However, I find that the sums were substantial and deserve equitable recognition. Undeniably, records from the accounts between 2010 and 2012 would have been helpful in elucidating the issue.
100However, the use of the RBC 5160 account during the period of time in the parties’ relationship when the applicant claims to have been giving the respondent large sums of Mary Kay cash earnings is hard to follow because there are no bank records available for March 15, 2010 through to August 2012. The applicant denies having had ready access to statements at the time. She first sought the records after the parties’ July 2019 separation. The respondent denies having any records for that period. The explanation by both is the same: neither party has had any access through the bank to records that are so old from the time of separation or the time that this application was launched, as the bank kept records for only seven years.
101However, given what I find to be the respondent’s keen attention to his accounts and the monies flowing in and out of them, and the detailed care with which he husbanded his capital, his careful guardianship of financial records, given his ongoing matrimonial litigation with his wife during the period of time in question, given the respondent’s production to the applicant of records from RBC 5160 from sometime in 2007 up until March 2010, given that the respondent made a point of making copies of the applicant’s private financial records when she left 5 Princefield in July 2019, and given the respondent’s ability to discover long lost records at this trial when it served his own purposes, I do not accept the respondent’s claim that he does not have already in his possession the bank records from March 2010 to August 2012, maintained from the period when the applicant’s money would have found its way into the respondent’s accounts. I can only conclude instead that the respondent probably has or had those records and has deliberately kept them from the applicant and the court, because of the damaging information that they contain.
102The respondent claims to have discovered, only in around October or November 2020, that the applicant’s name was on account RBC 5160. The respondent testified that he had the bank manager remove the applicant’s name from that account without any need for the applicant’s signature, which he asserts somehow proves “that the applicant could have had her name placed on the account without much difficulty.” This is not self-evidently so, as I have some difficulty imagining that a bank will just add someone’s name to an account in a different customer’s name without some paperwork or proof of consent from the accountholder. I rather find that as the primary accountholder, the respondent was able to add the applicant’s name to the account in 2011, and to have it easily removed in 2020.
103To prove his ignorance of the applicant being an accountholder of RBC 5160, the respondent pointed to the fact that he deposited the settlement cheque from his matrimonial litigation with Rosella Lucchitti into RBC 5160, and claimed, “I certainly never intended this deposit, being my previous marriage settlement, to be shared whatsoever with the applicant.” This is, however, again not self-evidently true, and rings particularly false in the context of the respondent’s trial affidavit, where the respondent revealed that he first tried to deposit the cheque into the Tosh account but decided against that only because the bank was going to put a hold on it, and so deposited it into RBC 5160 instead. For he cannot deny knowing that the applicant was also attached to the Tosh account. As in so many other places, the respondent’s credibility is strangled by his inconsistent claims.
104Tab 3 of Exhibit 5 is a transit receipt recording the transfer of $145,000 from RBC 5160 to RBC 8619 on February 26, 2014. This money appears to be related to the money that the respondent used to pay off his mortgage on 5 Princefield. The applicant testified that she moved this money at the respondent’s direction, and her name is on the transit document. The respondent withdrew $15,100 from RBC 8619 the same day and deposited it into a sole account of his own. The respondent offered testimony that the bank must have put the applicant’s name on the transit document because hers was the first of their names on the account. I reject that explanation as another desperate effort by the respondent to feign ignorance, and I am satisfied that this evidence offers confirmation that the respondent was well aware of the applicant being on the RBC 5160 account, that he was aware of the transfer, and that the respondent directed the applicant in the use of funds from that account.
105Accordingly, although the respondent denied knowing that the applicant had been added to RBC 5160 until his removal of her from his account in November 2020, I reject his evidence on this point as self-serving, and completely implausible in the context of the respondent’s careful control of his funds. The respondent is very careful in his dealings with money, and it is simply inconceivable that the applicant’s name would be added to his account by accident or stay on that account by his inattention from 2011 until 2020, long after they separated. The respondent’s denial is as difficult to credit as his claimed ignorance of the incorporation of Tosh. Rather, by adding her name to an account through which large sums passed to fund the Build, I find that the respondent was acknowledging that they would be partners in life and in the Build.
106A further proof that the respondent deliberately added the applicant’s name to RBC 5160 is the acknowledged fact that the parties opened a further account in their joint names, RBC 8619. This second account renders even less likely the respondent’s claims that the applicant was added by accident to RBC 5160. He added her to his personal account and additionally opened RBC 8619 as an investment account also in her name to recognize their relationship and the huge amount of cash that she was providing to him.
107I find that the respondent’s denial that he deliberately added the applicant’s name to RBC 5160 and of the fact that the applicant provided him large amounts of cash is a false reconstruction after the breakdown of their relationship and the commencement of this application. Cash payments are notoriously difficult to prove, and the respondent’s most frequent evidentiary gambits at this trial include bare denial and claims of ignorance: see, e.g., Hafizy v. The Queen, 2012 TCC 56, at paras. 7-9.
Conclusion on RBC 5160 and RBC 8619
108I have found that the respondent received many thousands of dollars in cash contributions from the applicant and mingled them into his various accounts. In my view, the only equitable way to construe RBC 5160 (from January 2011) and RBC 8619 is as joint accounts holding inextricably mixed funds of both the applicant and the respondent. The respondent’s decision that the applicant’s name be on both these accounts, the parties’ joint enterprise in the Build, the many thousands of dollars in cash handed over to the respondent by the applicant for investment, and the parties’ apparent long-term commitment to each other when the applicant was joined in these accounts require a finding that the presumption of resulting trust for RBC 5160 and RBC 8619 has been rebutted in the particular circumstances of this case. It would be inequitable on these facts to permit the presumption to stand. I therefore conclude that money paid from the parties’ joint accounts towards the Build should be considered joint money, even though the parties were not married.
BMO 3301
109In my view, funds used on the Build by the parties from BMO 3301 must be considered to have been jointly paid by them in equal share.
110The Tosh corporate BMO 3301 account, opened by the parties in 2013 at the Bank of Montreal (“BMO 3301”) was opened in the name of the corporation, but used by the parties for the Build. Attribution of funds in the corporate Tosh account is also an issue in this trial. Family Law Act s. 14(a) would apply a resulting trust to funds put into this account by the parties, “in the absence of evidence to the contrary.”
111The respondent in his evidence claims to have contributed $77,790.91 to the corporate BMO 3301 account by cheque from his Simplii Financial account 9748 in payments on October 16, 2013 and August 21, 2014. The applicant has admitted that the respondent provided cheques totaling this amount but calls into question the origin of the funds used by the respondent. The applicant contributed $53,271.32 to the same account. The respondent argues that payments to the Build from the BMO 3301 account should be allocated 59% to his side of the ledger, and 41% to the applicant’s, based on the proportion of seed money investments. On the other hand, the applicant often attributes 100% of contributions from this account to herself in her summaries of contributions by the parties by account, based on her view that the respondent has not shown that his contribution to BMO 3301 was his own money and did not derive from the large sums of cash that she provided to him.
112But I do not entirely accept the calculation for this account of either of the parties. The money spent on the Build from the BMO 3301 account, like that from the RBC 5160 and RBC 8619 joint accounts, was, as a matter of fact, jointly provided by the parties, whose joint account this was, for all intents and purposes. The applicant’s reckoning, that the respondent has not proven that his money was the source of his contribution to the BMO 3301 account, is legally untenable, as the respondent provided funds from an account of his own. And the respondent’s own reckoning might be appropriate if I accepted that money paid by the parties did not include, directly or indirectly, a substantial amount of money that the applicant had paid the respondent in cash, and that must be considered to have probably formed part of his contribution to the BMO 3301 account.
113While I am unable to quantify the applicant’s cash contributions to the respondent’s accounts, for the reasons I have given above for finding that money in RBC 5160 and RBC 8619 was jointly owned by the parties, I find that the applicant has provided evidence to the contrary, and that equity demands that contributions to the Build from BMO 3301 must be considered jointly made by the parties, regardless of the apparent unequal contribution by the parties into the BMO 3301 account. Each of the parties put in enough money to get the account going, and it was intended by each that the money in the corporate account, like the “Tosh” name itself, reflects their equal interest in it.
Conclusion on RBC 5160, RBC 8619 and BMO 3301
114Regardless that most of the money that flowed into these accounts appears to derive from the respondent’s sole funds or accounts, I find that: each of these accounts represents a joint account owned by both the parties, and that the corporate identity of Tosh, the titulary holder of BMO 3301 must be ignored. The presumption of resulting trust in favour of the respondent in the circumstances of joint accounts of this unmarried couple is rebutted for RBC 5160, RBC 8619, and BMO 3301 in the circumstances of this case. Accordingly, funds that went to the Build from these accounts will be deemed to be joint funds, equally attributable to each of the parties.
Who paid for the land?
115The applicant paid $5,000 as a deposit on the agreement of purchase and sale for the property for the Build. The respondent made payment by a cheque for $56,525 drawn on the RBC 5160 account on April 26, 2011. That account had been in both parties’ names since January 27, 2011. The respondent paid a further $120,000 by cheque from his personal account CIBC 6782. Together this was $176,525 towards the purchase of the land. It appears that the respondent paid all but $5,000 of the downpayment from bank accounts jointly or solely in his name. But the source of the money in those accounts is disputed. The respondent made substantial deposits into the CIBC 6782 account around that time, and it is the source of the funds for those deposits that the applicant calls into question.
116In the respondent’s submission, after the refund from the lawyer of the money that was to have gone to HST, some $155,000 of the purchase money for the land, virtually the entire price, should be credited to him as deriving from his accounts, and $5,000 to the applicant, an amount that she had paid by cheque. The respondent argues that the applicant acknowledged this in her direction to their lawyer. However, the applicant claimed in her evidence that their “money was intermingled”, and “the personal account was joint”, so the repayment instruction was for deposit to them both into RBC 5160.
117The respondent also argues that documentation prepared by the applicant in 2014 sets out an accounting of the contributions by each to the Build to that point and lists the respondent as paying $153,000.80 for the land and another $2,637 for legal fees. The respondent argues that this is proof that the applicant is now being dishonest in claiming greater contributions to the purchase of the land. I disagree. It proves only, and I find, that at that time, the applicant had not yet come to understand that the respondent had diverted money that she had given him to invest for her, so she believed that the source of the purchase money was the respondent. She now knows that cash she gave the respondent was not accounted for anywhere by him and was being put forward by him as his own.
118I find, on the applicant’s evidence, that the applicant had started giving the respondent large sums of cash to invest for her long before the purchase of the Build land. Into what account or accounts the respondent put that money is unknown to the applicant. Moreover, the respondent regularly transferred money between accounts and could have removed the applicant’s money from the RBC 5160 account, and put it, for example, into the 6782 account. Bank records are not available for the all-important early years of the parties’ relationship. Given the applicant’s significant contributions to the couple’s holdings, into whatever account the respondent put them. As I have explained, I find that from the date that the applicant was added to the RBC 5160 account, the presumption of resulting trust is rebutted and its funds were jointly hers. That is true for the date of the purchase of the property for the Build in April 2011.
119To explain that all the money in the accounts was his own, in his trial affidavit the respondent gave evidence of a significant employment income leading up to 2011. He did not, however, explain that that income had been supporting a family and been subject to various family law claims that were discussed in evidence at this trial. The respondent, contrary to his claims at this trial, either did not have substantial savings going into his relationship with the applicant or deliberately misled another court to believe that fact.
120The respondent offered various potential sources of the money that he had put into the purchase of the land, while the applicant gave evidence in reply that the sources testified to by the respondent during his case could not lie behind the money that he used to pay for the property. The suggestions by the respondent are belied by his filings in his matrimonial dispute. I am not satisfied on the respondent’s evidence that the money that was used to purchase the property was linked to a $181,934 inheritance from his relative Gaetano Mascetta, which had to be paid around to several beneficiaries and was gone from the account by May 2008; or to a matured GIC in the amount of around $123-125,000, which was gone by 2006, long before the property was purchased in April 2011; or to $91,972 in a GIC linked to another relative Raffaele Mascetta, that did not mature until December 17, 2012, more than a year after the property was purchased. The respondent alternatively attributed that $91,236 from an RSP to the purchase of Leon’s stocks, adding a further layer of confusion.
121In addition, the respondent filed in his prior matrimonial proceeding a bank letter on the 6782 account from December 8, 2011 that warned that the account had been dormant for 12 months. What of the deposits allegedly made by the respondent to that account to purchase the land in April 2011? In other filings in the respondent’s matrimonial dispute from the same time period he claims to be impecunious. His claims to this court about being flush with capital for the purposes of the land for the Build may not stand up to close scrutiny. It is not surprising that the respondent has again proved inconsistent in his evidence, but the result is that his claims for the origin of funds to pay for the property fail to convince.
122The respondent’s various proposals carry no weight. The respondent’s evidence in this regard appears to be that of a man making desperate efforts to explain what should not be difficult to explain. I find that the respondent’s extravagant claims can not, in large part, be trusted. Important productions of new evidence by the respondent at this trial illustrate this point.
123As I have already explained, the respondent claimed during his evidence at trial that one source of the funds for the purchase of the land for the Build were GICs that the applicant had received from an uncle. The applicant had hotly disputed that the payment for the land came from the respondent’s own money since long before the trial started, but the respondent suddenly claimed to find documentation to prove the source of the funds during his own evidence at trial. Although the respondent testified that he had never been asked before about the origin of the money paid for the lot and was not aware that the source of the funds was an issue in this case, I reject that claim as untenable. I find that the respondent made a tactical choice not to disclose that documentation earlier, and that his evidence was not candid on this issue. I find that he was attempting to weaken the applicant’s claims about cash given to the respondent for investments, by this eleventh hour discovery and the disingenuous rhetorical effect of its recent finding.
124I accept that the applicant provided large sums of cash to the respondent, and that he deposited those funds into various accounts, before the land for the Build was purchased. I have given my reasons for holding that my findings about this money, in the context of other evidence, permit me to find that the applicant has rebutted the presumption of resulting trust in bank accounts held jointly by the parties or by Tosh, their corporation, and into which the parties’ money went. However, while I am highly suspicious about the source of money in the respondent’s CIBC 6782 account, it remained the respondent’s sole account, and that is an undisputable legal fact. The contribution from the CIBC 6782 account must be attributed to the respondent alone; there is no mere rebuttable presumption here.
125Accordingly, I find that of the approximately $160,000 purchase price for the property, some $33,250 is to be attributed to the applicant ($5,000 + $28,250, half the investment from RBC 5160). The rest, some $126,750 is attributed to the respondent. The refunded money appears to have gone back into the parties’ joint account, and therefore was distributed back to them equally, to be put back into the Build.
The gift of a roof
126The applicant gave evidence about payments for roof truss expenses for a roof that the respondent told the applicant was a “gift” for her in a 2015 Christmas card. Should it be considered a gift in the final reckoning?
127In fact, the trusses for the roof, from Washago Timber Mart, came to $78,937.72 after refunds. In the applicant’s evidence, she described the drawing of the roof made by the respondent on the Christmas card and was adamant that the gift included only the Washago component and not any other parts of the roof. The roof was therefore capable of being truly a gift from the respondent to the applicant, as he paid for all its component parts.
128I accept the applicant’s evidence about the card and the fact that it asserted that the roof was to be a Christmas present for the applicant by the respondent. The applicant kept the card in a nightstand at 5 Princefield, and lost access to it when the couple separated in July 2019 and the applicant had to leave that house.
129A gift is the voluntary transfer of property to another without consideration or expectation of remuneration: Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, at pp. 991-92. To prove a gift requires generally proof of three elements: an intention to donate, an acceptance, and a sufficient act of delivery: Reisman v. Reisman, 2014 ONCA 109, at para. 53. To determine whether a transfer was intended as a gift, it is the actual intention of the grantor that is relevant, and not the intention of both parties: Pecore v. Pecore, 2007 SCC 17, at paras. 43-44; MacIntyre v. Winter, 2021 ONCA 516, at para. 24. Where a gratuitous transfer is challenged, “the trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention”: Kerr, at para. 18.
130On a balance of probabilities, I accept the applicant’s evidence about this gift and do find that the roof of the Build was a true gift from the respondent to the applicant, and a valuable one. The applicant’s evidence about this gift, the occasion of it, and how she came to leave the card in a nightstand in the bedroom at 5 Princefield when she had to leave that residence in July 2019, is compelling, and I accept it over the respondent’s bare denial.
131I find that the card, given during the traditional season of giving, evidenced a donative intent and an act of delivery, and that the applicant’s keeping it represented an acceptance: Reisman v. Reisman, 2014 ONCA 109, at para. 53. The money spent at Washago will be considered on the applicant’s side of the balance sheet.
HST and corporate tax issues
132Both parties complain that the other received an unfair advantage in the distribution of refunds from the corporation.
133From 2018 through 2023, Tosh received some $138,000.00 in HST refunds. Of that money, the respondent insisted that some $59,000 be used to pay off the truck that the applicant had purchased for him in Alberta. However, the truck was always in the applicant’s name, and she ultimately ended up with it after the couple separated. Some HST was returned to the applicant for money she put into the Build post-separation.
134The applicant claimed that the respondent got a lot of the HST money and spent it on himself or his personal assets. The respondent was credited with $90,450 from HST (Exhibit 5, Tab 9), while the applicant was forced by Revenue Canada to pay back nearly $21,000 in HST, for which she asserts that the respondent owes her half. I am not satisfied about the repayment.
135The respondent claims that he never saw any HST refunds from the Build or tax refunds from Tosh. It is his claim that the applicant received these and placed them into the account of a holding company she controlled or into her personal accounts. Once again, the respondent’s claims here are belied by the repayment of more than $20,000 earmarked for HST on the purchase of the property for the Build, and his insistence on paying off the truck that he was using as his own at the time. I do not intend to trace HST or tax refunds received by the parties except to state that I am not satisfied that any HST or tax refunds received by the applicant or respondent before their separation were not from that point invested back into the Build, except what the respondent insisted on using to pay off the truck, a truck that she ultimately gained possession of. I will not track and account for HST or tax refunds received by the parties except to state that I am not satisfied that any HST or tax refunds received by the applicant or respondent before their separation were not from that point invested back into the Build, except what the respondent insisted on using to pay off the truck, a truck that she ultimately gained possession of. I will not track and account for HST payments in any further detail. And any attempt to assign HST value as an adjustment to either party is to build a highway over a sinkhole.
136In my accounting of contributions by the parties, I have at least on one occasion attributed one half of amounts spent by the applicant on the Build after the parties separated, as I was satisfied that the money derived from HST funds that had their origin in the period that the parties were together. In that case, each party would be entitled to one half of the HST refunds.
137Following separation, the applicant had to open account CIBC 2413 for Tosh after the BMO 3301 account was frozen. Significant HST refund monies were deposited by the government into that account in 2022 and 2023. This was long after the parties had separated, and I am satisfied that those amounts relate to monies invested in the Build by the applicant, who continued to reside there and work at improving the Build. If she received those funds back, they were for expenses that were hers anyway.
138For the most part then, unless otherwise indicated, I consider HST refunds to have been money to which the applicant was generally entitled (for amounts in 2022 or 2023), or paid out at the direction of the respondent, or re-invested in the Build, and sufficiently accounted for.
139The respondent also complained that $182,000 in HST was paid on the closing of the sale of the Build, which the applicant kept. I am satisfied, however, on the applicant’s evidence, that she made efforts to ensure that this money was paid to CRA, and that it was.
Deficiencies and overages
140The applicant’s Exhibit 4 is a volume of what she terms “deficiencies and overages.” Here she includes such things as money thrown away: by what she felt to be additional costs associated with the respondent driving away the first builder, a lawsuit launched against the Tosh company by a plumbing outfit, unnecessary costs for wall bracing caused by the respondent’s poor choices, an engineering report required by the Township because of the respondent’s alleged mistakes in insulating the basement of the Build over a winter, billing for new builders, and problems with windows and plumbing and payment for related issues.
141Exhibit 7 on the trial contains photographs of various finishing work that the applicant had to do to finish closing on the house. The respondent had used metal packing bars as railing spindles on decks in the Build; that was not proper. Railings were not properly attached. Decks were the wrong dimensions, did not accord with engineered plans, and were not properly supported. Garage doors were not installed “square”. Galvanized nails were not used as they should have been. Propane lines that the respondent installed leaked. The Mattawa Bay Conservation Authority Inspector required that the septic be emptied.
142Post-separation, the property was landscaped, the decks were fixed and the railings done with proper wood spindles. The concrete garage floor was poured. The yards were cleaned, and the respondent’s boats were removed. The respondent’s belongings were moved into a storage unit when he did not come to get them.
143It is my view that such funds as were spent by the parties to complete projects anticipated on the Build, even where caused by the respondent’s bad choices or poor workmanship, will just be accounted for and attributed in the usual way, by who spent what. Problems caused by the respondent, so long as the parties were jointly working on the Build, should be attributable to both parties. It is not the purpose of this trial to sit in judgment about the quality of the work performed on the Build.
Evidence of Caitlyn Wilson
144Caitlyn Wilson of Rose Tax and Accounting Service prepared a reconciliation of contributions to the Build on behalf of the respondent. She had access to some of the parties’ bank account, credit card, investment, mutual fund, and lines of credit statements. In preparing her reconciliation, Ms. Wilson had information and documentation from the respondent and consulted with him and his counsel. The applicant was invited at the end to “demonstrate how [Ms. Wilson’s] accounting was incorrect.” The applicant does not appear to have taken the respondent up on this offer.
145The utility of this reconciliation is severely limited by several factors. In the absence of documentation, she would ask the respondent for information and sometimes base her attributions on his answers, which could simply involve claims that “that money went to the Build.” Moreover, Ms. Wilson did not have access to my findings that the applicant is a true joint owner of funds contributed to the Build from joint accounts RBC 5160, RBC 8619, and from the corporate account BMO 3301, as I have discussed elsewhere in this decision. Similarly, Ms. Wilson could not be aware I would accept that the respondent made a gift to the applicant of the value he spent on components for the roof of the Build, leading to the contributions for those components to be attributed to the applicant.
146Not surprisingly, a substantial amount of the applicant’s contributions to the Build, from Ms. Wilson’s perspective, were “unverified.” That is to be expected when she did not have access to all of the applicant’s knowledge and input. The respondent blames the applicant for failing to offer her corrections on Ms. Wilson’s work, or to supplement it as needs be with documentation that she controlled.
147I find that the applicant had no duty to take the time necessary to correct Ms. Wilson’s work. Very often, Ms. Wilson appears to have proceeded on the respondent’s word about the respondent’s money being used on the Build. At this trial, I have found that the respondent’s credibility is hard-pressed to sustain factual findings.
148In sum, Ms. Wilson’s evidence has been of little assistance in making determinations in this case.
Contributions to the Build
149As the Build was proceeding, the applicant kept records of vendors and HST amounts for accounting purposes for Tosh. It was after separation, in anticipation of this litigation, that she re-assembled her records to set out what she and the respondent could be shown to have contributed to the Build. According to the applicant, the respective contributions to the Build by the parties may be calculated by tallying monies paid to various vendors/suppliers/organizations or for various business expenses. The applicant assembled quantities of documentation: vendor or service provider receipts, bank and credit statements, and any other record available to her by which she might trace the origin of funds used to pay for aspects of the Build. Many of these records were written by hand. She tabulated the results into what she called “cheat sheets” for each vendor or service supplier and summarized the results (Exhibits 1-3).
150The applicant’s “cheat sheets” are annotated with commentary from the applicant that she adopted into her evidence along with the three volumes of materials (receipts, credit and bank statements, and other such things) that have been included to support her cheat sheet conclusions. She also gave evidence about interpreting the cheat sheets: When funds used on the Build came from a joint account, the applicant attributed the funds either 50% to each of the applicant and the respondent. When funds came from the respondent’s or applicant’s sole funds, the applicant attributed 100% of the paid funds to that party. Unfortunately, it was also her habit to attribute as 100% her own contribution any money deriving from the Tosh BMO 3301 account. For reasons I have explained above, I attribute 50% of money spent from RBC 5160, RBC 8619, and BMO 3301 equally to each of the parties.
151The efforts put in by the applicant to produce these “cheat sheets,” as she termed them, was prodigious. On occasion the applicant included handwritten receipts which represent unofficial receipts made at the time or after the fact, but I never got the sense in the materials filed that the applicant was fabricating false extensive receipts in bad faith. The three volumes of accounts stand, in my view, as a very useful guide to monies invested in the Build by the parties. The parties called into question what percentage of payments from accounts RBC 5160, RBC 8619, and BMO 3301 should be attributed to each party, and I have dealt with those issues already. But in general, the applicant can not be called unfair in her attribution of funds to the respondent when such attribution is called for.
152The first volume contains 30 tabs (Exhibit 1), arranged roughly in alphabetical order. The tabs contain such receipts and invoices as the applicant possessed as she prepared for trial. Each tab commences with an annotated chart, purporting to trace the origin of the funds used to pay for the individual items listed in the tab back to which party paid cash for it or paid for it from funds drawn on which account. Thus, tab 1 relates to payments made to “Above and Beyond”. The applicant described payments made between accounts RBC 5160 and RBC 8619, which amounts were attributed half to her and half to the respondent, as she considered these to be true joint accounts, as I have now also found. The applicant’s total on this account was just over $7,000. The applicant recorded the vast bulk of the money paid on that account (some $199,000) as coming from the respondent. Bank statements showing the transfer of funds or payments are also included.
153The volume Exhibit 2 contains tabs 31 to 43 and Exhibit 3 tabs 44 to 77. The applicant believed that she included all vendors and builders’ invoices that went into the Build. In fact, the respondent produced some others, but I accept that anything that was left out by the applicant was not done deliberately or in bad faith.
154In my survey of totals and issues with totals I have generally not delved into payments made from private accounts of either party. Much of the disputed values is occasioned by the attribution of funds from RBC 5160, RBC 8619, and BMO 3301.
155It is true that the applicant’s records are sometimes incomplete, and that “receipts” often include hand-written documentation to record payments in cash or for which no receipts were offered or were lost. There is endless scope for chastising the applicant, or, for that matter, the respondent, for poor and incomplete record-keeping. Sometimes vendors or tradespeople just do not provide receipts. I prefer to apply common sense to the assessment of these records, and to attempt an overview of payments made by the parties to the Build, or attributable to one or the other for the Build. In doing this work, I do not delve deeply into minutiae but rather take a panoptic view. Where disagreements need to be resolved, I make what I hope are common sense judgements to arrive at sensible conclusions.
156I begin with the applicant’s calculations. I will then move on to corrections to those calculations by the respondent or from materials in the case. I then produce a corrected tally of expenses on the Build. In what follows, the column “Appl.” represents contributions attributable to the applicant. The column “Resp.” indicates those attributable to the respondent.
Vendor $Total Appl. $Total Resp.
Above and Beyond Contractors 7,155.54 199,753.73
Adams Brothers 18,739.94 14,590.96
Appliance Man 197.75
Attorney General 115.00
Aztec Electrical 67.80
Banking expenses 4,340.14
Barill Engineering 1,180.20
Bell Canada 29,966.95
Benn Walters 47,185.00
Bookkeeping 1844476 Ont. Ltd. 34,900.00
Greg Boothby Excavation 22,662.14
Breen’s Lumber 10,116.88 8,049.32
Budget Propane 10,909.32 8,908.78
George Cameron Contracting 45,870.86 12,470.11
Campbell’s Drywall 21,358.00 21,358.00
Canada Post 117.26 134.47
Carr Aggregates 388.52 3,468.04
Casual Labour 96,314.25
18c. Century 21 1,130.00
Concord Equipment 621.29 207.00
Cooperators Insurance 14,420.16
Costco 868.90
CRS Rental 735.86 735.86
Door Doctor 14.12 2,219.89
Duck Lake Plumbing 653.08
Dynamic Environmental 10,000.00
Electrical Safety Authority 344.65 786.48
Emco 841.89 841.91
Gates Consulting 6,302.83
Gray’s Paint 1,019.26 205.66
Great Northern Insulation 10,990.24 10,990.24
Home Depot 16,427.84 5,910.18
Home Hardware 2,741.02 547.80
32d. Hwy 124 Storall 1,274.71
Hydro One 6,143.10 4,952.55
Ideal Supply 3,203.39 5,913.52
Incorporators Accountants 6,545.11 2,034.00
Jefferson’s Workshop 22,108.41
Kijiji 6,000.00
Kroft Conolift 644.10
Light Haus 2,639.06
Little Landscaping 5,557.62 5,260.00
Lowes 19,078.06 19,131.68
MacMillan Construction 9,006.40 6,000.00
McCallum HVAC 1,073.50
McKellar Township 19,068.08 1,704.11
Mountainside Design 5,384.60
Muskoka Ready Mix 17,163.82 7,653.09
Napolean Home Comfort 119.33
Near North Supply 936.32
North Bay Mattawa Conservation 200.00 735.00
Office Supplies 4,150.00
Oldham Law 43,184.38
1886443 Ontario Limited 60.00
Parker Fred Wood 1,080.00
PDC Barristers 197.75
Plumwall Bracing 1,910.00
Redneck Concrete 4,023.93
Reliance Home Comfort 3,026.79
Rona 7,061.08 39,207.17
Roofmart 11,420.47
Roofworx 14,690.00
Ross Windows 22,259.99 22,259.99
Safe & Sound Locksmith 497.90
Sarjeant Concrete 13,349.54
Savage Commodity Tax 2,456.34
George Schamerhorn 15,745.00
Sierra Equipment 169.21 143.36
Simcoe Block 35,184.54
Soil Engineers 1,336.23
Stanley Steel 49.44 3,096.98
Timberwolf Concrete 1,325.49
Triple J Accountant 5,017.20 610.20
Trujillo Electrical 148,753.38
United Lumber 139.77
Washago Timber Mart 78,937.72
Watson Building 1,892.41 1,892.41
The respondent’s and other corrections
157The respondent often did not agree with the applicant’s accounting, based on his own records or claims against the applicant’s method of accounting. Often, the respondent claimed to be responsible for payments of money made from the couple’s joint accounts. For reasons given elsewhere in this decision, however, I have found that the applicant was entitled to credit for half the contribution amounts from RBC 5160 and RBC 8619, as well as from BMO 3301, all truly “joint accounts”. Payment from BMO 3301 necessarily involves a correction to the applicant’s own initial accounting, as she had claimed entitlement to 100% of contributions from that account after the parties separated, having decided that she now owned 100% of Tosh. She is entitled only to half.
158I have considered the respondent’s corrections for most amounts that I could find within the thousands of pages of records introduced into evidence by the parties. It is my view that exactitude is not possible in the environment of the almost limitless documentation filed by the parties. Nevertheless, there will follow my brief assessments of the applicant’s accounting in the context of the respondent’s corrections or submissions.
159However, while I sometimes will discuss below, in reference to line items on the applicant’s chart, my view of evidence offered by the respondent that calls into question evidence of the applicant, I attach here first my view of the evidence of George Schamerhorn, number 65 on the applicant’s chart, a witness called specifically by the respondent to attack claims by the applicant. I also discuss the applicant’s claim for money owed to Juan Trujillo, which required fuller consideration.
The evidence of George Schamerhorn
160The respondent called George Schamerhorn as a witness to call into question various payments that the applicant claimed to have made to him. Mr. Schamerhorn (“Mr. S.”) was the applicant’s brother-in-law. He and the applicant’s sister have been separated since 2022 and he was in a significant family law dispute with her. He retired from Tembec in 2009, but operated his own business, in his own name, since 1996, doing mechanical repair, and buying and selling equipment. Mr. S. agreed that he was raised on doing business for cash. He carried a lot of cash on his person, to limit trips to the bank.
161When the parties bought the property for the Build, Mr. S. had heavy equipment and could help. He claimed that he did not do that work as a business to earn money. Rather he lived off a pension and what he withdrew from RRSPs. He has a lot of equipment in his yard but claimed that he did not use the machines for work, but rather to clean his driveway and plow his yard. However, sometimes he “helped” people. Payments he received were just to cover costs.
162The applicant had provided evidence that she paid Mr. S. a total of $15,745 in cash for tree clearing and excavating and assorted smaller jobs around the Build. Not surprisingly, when payments were only made to him in cash, receipts relating to his work seem rather to be scribbled notes from various dates, with the briefest of descriptions of the work that was done:
a. July 31, 2013 from Tosh Inc, $6295 for “tree clearing”;
b. August 31, 2013, $1830 cash for “labour”;
c. December 3, 2013, a total of $5,080 for the use of various machines and the supply of loads of sand;
d. July 13, 2019, $1,020 for “casual labour” involving work inside the house;
e. August 10, 2019, $520 for “casual labour” to fix items in the house “to Code”; and
f. Aug/Sep 2020, $900 for “casual labour”, again involving getting things up to Code.
163The applicant recalled in her evidence that Mr. S. did excavation work. If the “receipts” indicate “tree clearing”, the explanation probably lay in the clearing of trees as a first step before excavation.
164Mr. S. admitted that the applicant paid him cash. However, Mr. S. did not remember the applicant paying him such amounts of cash as the applicant claimed, or anything to do with the receipts, which were not in his writing. And he could not remember what the payments were for. He claimed that he did not accept pay for what he did. People just paid him cash to cover his expenses or costs. He had no idea what the items on the receipts might be. He did not sign them. He did not know what “Code” on the receipts meant. He did remember bringing his excavator there “a couple times, but that’s it.”
165He denied supplying any loads of sand. He denied the “casual labour” that involved plumbing issues, as “I’m not a licensed plumber,” and he would not know what “Code” required. He had no idea what “spreading gravel” might mean.
166Mr. S. testified that he helped the respondent clear the land for several days, perhaps many days, but not 30 days all at once. He testified that the respondent was there perhaps 50% of the time that Mr. S. was there. The respondent gave Mr. S. cash.
167With respect to the July 31, 2013 receipt for $6,295, Mr. S. agreed that he cleared the land before the house was built. It took “a couple of weeks,” and Mr. S. used a chainsaw, a tractor, and a woodchipper. The respondent cut the trees into firewood. However, with respect to the December 3, 2013 receipt, Mr. S. claimed that he was simply repaid his expenses for the use of machines and floating things over to the site.
168Mr. S. did remember helping the applicant with water on the basement floor after she and the respondent had split up. He did not remember being given $900 for the work, but he would have taken his excavator.
169In terms of pay, Mr. S. claimed that the respondent gave him a woodchipper that he had bought, when they were done using it. It was the respondent who paid him cash if anyone did. But he said that he did not remember what the cash was for. He agreed that a receipt on a hunting trip was something he was involved in, and that the respondent had given him cash for hunting trip expenses and to move a loader.
170But he did not charge anything, because he was just “helping out”. He claimed that people were “very generous” with his costs and expenses. But it was possible that he was given cash by the applicant but just did not remember: “Anything is possible, so yes.”
171I do not accept the evidence of Mr. S. I found him evasive as a witness. He refused to acknowledge payment by the applicant of any money for work. He instead claimed that it was the respondent who paid him things or gave him payment in kind. I find that his evidence was overwhelmingly tainted by a bias against the applicant as the sister of his ex-spouse. Moreover, his evidence about only being paid his costs or expenses is clearly an attempt to reduce his income, to defeat the tax man when he was together with his spouse, and after separation likely as a means of owing less support. Of course, he himself did not offer receipts.
172In short, I find that Mr. S. was a dishonest witness, and I reject his denials of payment. I accept the evidence of the applicant that she paid Mr. S. in cash for tree clearing, excavation, and “casual labour”. The receipts were more memoranda to herself about what she had paid. In the circumstances, since Mr. S. wanted to ensure deniability of payment, that was the best that the applicant could do.
The account of Juan Trujillo
173Among expenses that the applicant lists for the build is $148,753.38 in electrical work that was performed entirely by her son-in-law Juan Trujillo, a licenced electrician. He did the electrical work on the house on his own time between 2015 and 2019, by himself or with the respondent’s assistance. The applicant only put the expense through in 2019, after the parties separated, and claims to have paid Mr. Trujillo for it by putting her daughter Natasha on title to her house at 1 Pineridge, the applicant’s current address.
174This came about in the following way. Natasha and Mr. Trujillo separated in the Spring of 2020 after 10 years of marriage and three children together. He was involved with Natasha when he learned that the applicant and respondent were going to build on a property and needed an electrician. Both parties asked Mr. Trujillo to help, and he agreed to help them. He worked every weekend throughout the years of the Build and attended when the electrical inspector was there. Mr. Trujillo explained that “it was not a small job.”
175Mr. Trujillo completed the electrical system on the Build and his work passed all inspections except one. The one electrical inspection that did not pass was in relation to a basement pump for water from the lake. Mr. Trujillo did not install that pump; he believed that the respondent did. A circuit breaker was required to avoid electrocution of swimmers using the lake. Mr. Trujillo took a day off work in 2018 to install a breaker, and the pump passed.
176Mr. Trujillo did other work outside of electrical work, such as moving wood with the respondent, for which he was never compensated. He and the respondent got on well, and Mr. Trujillo thought of the respondent as a friend.
177During the period that he did the electrical work on the Build, Mr. Trujillo was not paid, although the applicant helped him out with gas. He normally billed at $32-36 per hour for electrical work during that period of time. He would visit with the applicant’s grandchildren, who would use and enjoy the dock. Mr. Trujillo understood from the respondent as he was doing the work that his compensation was to have been the ability to use and enjoy the property with his family when it was finished. Accordingly, he never issued invoices and did the work on his own time. The record of work and “invoice” of August 30, 2019 at Exh. 3, Tab 72 was not created by him, though he agreed with its quantities. But the separation of the parties ended his opportunity to enjoy the cottage with his family.
178The applicant told Mr. Trujillo that the respondent refused to allow Mr. Trujillo on the property after the separation, and Mr. Trujillo was insulted. In Mr. Trujillo’s view the respondent acted this way because he and the respondent stopped being friends at that point, given the family dynamics. For his part, the respondent claimed that he treated Mr. Trujillo like a son.
179In that environment, the applicant approached Mr. Trujillo and told him that she thought it was fair that he get compensated for his work and his lost time with his children. Mr. Trujillo responded that the applicant should “give it to Natasha.” The Worthview house was sold, and the proceeds used to buy the Pineridge house, on which the applicant put Natasha on title.
180In my view, it is not appropriate to credit the applicant with the value of Mr. Trujillo’s labour. At the time that Mr. Trujillo did the work, he did it out of family spirit, working on a project with a man who was, for all intents and purposes, in the position of being a “stepfather-in-law”. Mr. Trujillo did not expect payment, just the use of the property with Natasha and their family. Mr. Trujillo did not prepare the bill for his work, the applicant did. I have no evidence about the value of Natasha’s share in the new house, or what she had paid towards owning Worthview.
Notes on corrections to the applicant’s attributions
181As to other items on the chart, I include corrections, clarifications, or comments if any are necessary. I have sometimes not dealt with trivial amounts:
182Item 1, Above and Beyond: The respondent would claim the entirety of the contributions, but the applicant’s joint claim to funds in RBC 8619 and RBC 5160 mean that $7,155.34 should be attributed to her. I will refer to this explanation going forward as “the RBC joint account explanation”.
183Item 2, Adams Brothers: As I have explained, I also have attributed joint ownership to funds in the BMO 3301 corporate account. Based on the applicant’s tracing, she contributed $12,514.19 from the BMO account, as did the respondent. But he also contributed $7,811.58 from CIBC 0137. The respondent attacks the applicant’s expense of $491.55 on September 19, 2020, asserting that the need for this service was caused by the applicant and her family living at the Build and using the septic system after the parties separated. I am satisfied that it was a problem with the septic system’s installation that required that service, so the applicant can claim the payment. Accordingly, $13,005.75 is attributed to the applicant, and $20,325.77 to the respondent.
184Item 3, Appliance Man: Disallowed, as relating to a household dryer repair at the Build from September/October 2020, more than a year after the couple separated, and while the applicant was living at the Build.
185Item 6, Banking expenses: The respondent argues that no credit should be given the applicant for banking fees for the corporation, particularly after the parties separated. He argues that the house should have been sold in 2019. He questions the amount for a master licence. The applicant explains that the master licence was necessary once the applicant’s access to the corporate bank account was frozen. The corporation remained an issue that required servicing until the trial management conference with Richard J. made the corporation irrelevant. The applicant is entitled to her banking fees until 2024 and for the master licence, totalling $4,340.14.
186Item 8, Bell Canada: Running cellular service through one’s business is an accepted expense. While the respondent opposes the applicant’s claim, she was also paying for his cell service. However, I disallow any expenses past July 2019 for this field and adjust the total to $20,884.45.
187Item 9, Walter Benn (Ben Walters? The parties do not agree on this man’s name): The respondent submits that the applicant’s claim of paying this man cash should not be accepted.
a. The respondent argues that the court should draw an adverse inference against the applicant because she could have called Walter Benn as a witness but chose not to do so. He argues that an inference may and should be drawn by the court against a party who has a witness available to provide evidence of facts but does not call the witness, without explanation: Sabanegh v. Habaybeh, 2010 ONSC 6572, [2010] O.J. No. 5158 (Sup. Ct.), at paras. 67-75.
b. Mr. Benn had been issued a summons in March 2024. The applicant claims in her evidence and filed materials to have paid Mr. Benn $47,185 in cash for the work that he performed, as he demanded payment in cash. The respondent claims to have spoken with Benn, who denies having been paid for the scope of work claimed by the applicant.
c. But there is no dispute in the evidence before the court .Walter Benn did not testify, and his alleged claim to the respondent that he was not paid as claimed by the applicant is, at best, inadmissible hearsay. This is not a situation in which only the applicant could have called Benn. The respondent claims to have had access to him and to have spoken with him. In the circumstances of this case, in which the applicant has provided testimony, and provided a record in support of her testimony in her filed materials, I accept the assertion of the applicant that she paid Mr. Benn $47,185 in cash. It was open to the respondent to call this witness to dispute the applicant’s prima facie case, but he chose not to do so, though claiming to dispute the applicant’s facts. It is against him that an inference could be drawn: Sabanagh, at para. 74, though I need not do so.
d. The applicant is entitled to her $47,185 claim.
188Item 10, Bookkeeping: The respondent objects to bookkeeping fees past separation, arguing that the Build should have been sold, instead of accruing bookkeeping expenses when the activity of the corporation should have ended. I do not accept that the Build was immediately ready for sale, and bookkeeping for the corporation, the titular owner of the Build, continued until the case conference with Richard J. and her order making corporate ownership irrelevant. Tax issues also continued and required accounting services. The applicant is entitled to the bookkeeping expenses.
189Item 11, Greg Boothby Excavation: the parties agree.
190Item 12, Breen’s Lumber: The applicant’s contribution is justified by the RBC joint account explanation. The respondent complains that $5,646.61 was spent by the applicant post-separation and could have been used for anything. I am satisfied that the post-separation lumber bought in August 2019 was used to fund some of the corrections that the applicant made in finishing the property, which should be seen as justified expenses.
191Item 13, Budget Propane. The bulk of the applicant’s payments were made after separation. She is entitled to $33.90 for December 2016 (made from joint funds), $1,530.52 for April 2019, and a credit for $2,364.57, an amount credited for overpayment on the sale of the Build. This total of $3,928.99 is to be credited to the applicant. Her total for the respondent is correct.
192Item 14, George Cameron. The respondent correctly argues that much of what was paid to George Cameron came from the BMO 3301 account, and should be divided, instead of attributed solely to the applicant, as in her calculation. Also, Cameron, in his evidence, denied that he was ever paid $2,275.26 on 19 January 2015, as claimed by the applicant. I am satisfied by the arguments and materials filed by the respondent that the applicant has not proven a $2,275.26 cash payment that she allegedly made to George Cameron Contracting for its invoice #201376. The service described by that invoice was bound up in remedial work that had to be done to the basement of the Build and approved before it could be done, and I am not satisfied that the work was ever done or that payment made. Adding in contributions from the parties’ sole accounts, $32,360.60 will be attributed to the applicant and $23,705.11 to the respondent.
193Item 15, Campbell’s Drywall: The respondent contests the applicant’s amounts, but she succeeds on the RBC joint account explanation.
194Item 17, Carr Aggregates: I agree with the extra expenses claimed by the respondent of some $410, making the applicant’s share $388.52 and the respondent’s $3,878.15.
195Item 18, Casual Labour: I am unable to attribute any money value to the applicant for work performed by her friends and family on the Build. In such circumstances, where no one was actually paid, the record-keeping and amounts are uncertain and seem haphazard. Nor am I comfortable attributing random quantum meruit amounts to applicant or respondent for their personal labour. In my view, this chart appropriately records only actual money paid towards the Build by the parties.
196Item 18c, Century 21 Dan Payerl: The respondent argues that the order of Koke J. of November 13, 2020 directed applicant’s counsel to have Mr. Payerl update his earlier appraisal of the property from 2019 and that the parties would share the cost. Therefore, the respondent should be attributed $282.50, half the cost of the 2021 appraisal prepared by Mr. Payerl. But the respondent never paid it. And the order of Koke J. did not direct that only the applicant should be responsible for the 2019 appraisal that also costs $565. The applicant is entitled to have $1,130, the cost of the two appraisals, attributed to her.
197Item 19, Concord store Equipment: Although the respondent would redistribute the allocations, the applicant succeeds on the RBC joint account explanation.
198Item 20, Co-operators insurance: the respondent argues that no post-separation charges should be counted, as the Build should have been sold in 2019. As I do not find that the applicant was unreasonably responsible for delay in the sale of the Build, I do not agree. The applicant is entitled to her claim of $14,420.16 to insure the Build until it sold.
199Item 21, Costco: I accept both parties’ individual claims for this vendor. The applicant is credited $868.90, and the respondent $1,344.66, based on their itemized descriptions of their contributions.
200Item 22, CRS rental: The respondent claims the entirety of this contribution, but the applicant succeeds on the RBC joint account explanation.
201Item 23, Door Doctor: I accept the respondent’s slightly altered allocation. The applicant paid $14.12 and the respondent $2,234.01.
202Item 24, Duck Lake Plumbing: I accept this post-separation expense by the applicant as related to completing necessary work in the Build relating to pre-separation installation.
203Item 25, Dynamic Environmental: Both parties claim to have made cash payments to this supplier. I accept that the applicant paid $10,000 for this work in 2015. I am unable to accept the validity of the respondent’s claim for a $16,000 payment post-separation on this account, so many years after the work.
204Item 26, Electrical Safety Authority: the respondent would attribute slightly less to the applicant, but she succeeds on the RBC joint account explanation.
205Item 27, Emco: The respondent claims the entirety of this contribution, but the applicant succeeds on the RBC joint account explanation.
206Item 28, Gates Consulting: the parties agree that $6,302.83 is to be attributed to the respondent.
207Item 29, Gray’s Paint: I agree with the respondent that the applicant claims an extra cash payment on August 26, 2017, but she still succeeds with respect to the RBC joint account explanation. The applicant is attributed $607.94, and the respondent $205.66.
208Item 30, Great Northern Insulation Contracting Ltd.: The respondent claims the entirety of this contribution, but the applicant succeeds on the RBC joint account explanation.
209Item 31, Home Depot: The records offered by both parties for Home Depot expenses are less than perfect. The respondent’s greater complaint is that $8,905.15 of the applicant’s claimed amount was incurred post July 2019 and relate to supplies about which the respondent had no say. I am satisfied that most of the applicant’s claimed expenses went to the Build, which she was improving post-separation. The applicant will be attributed $15,000, and the respondent $5,910.18.
210Item 32, Home Hardware: I am satisfied that the applicant should be attributed her contributions of $2,741.02 and the respondent his of $1,764.74, made up of his expenses and his portion of what was paid from joint RBC accounts.
211Item 32d, Hwy 124 Storall: the order of Cornell J. provided for the applicant to be reimbursed for any storage fees for the respondent’s possessions. This claim stands.
212Item 33, Hydro One: As I find that the applicant was continuing to work on the Build while she was living there after the couple split up, she can claim for what she paid in Hydro, as essential to keep the pumps working. Her accounting stands.
213Item 34, Ideal Supply: the respondent would attribute almost nothing to the applicant for these electrical supplies, but she succeeds on the RBC joint account explanation.
214Item 35, Incorporators Accountants: the respondent does not challenge the applicant’s accounting of $6,545.11 paid by the applicant, and $2,034.00 by the respondent.
215Item 36, Jefferson’s Workshop: the respondent challenges the applicant’s claim of $22,108.41 paid by the applicant for finishing work on the Build. In my view, this work was necessary to finish the Build as originally configured. The respondent points out that the applicant paid for this work from CRA refunds to which the respondent was also entitled. The parties will each be credited with $11,054.20.
216Item 38, Kroft Conolift: The applicant’s attribution of $644.10 to the respondent is not apparently disputed.
217Item 39, Lighthaus: the respondent does not dispute the applicant’s $2,639.06 contribution to the Build.
218Item 40, Little Landscaping: Based on joint ownership of funds in the RBC accounts and the corporate BMO 3301 account, the applicant contributed $5,057.62 to the Build on this account, and the respondent $4,630 while the couple was together. I disallow the applicant’s claim for snowplowing for the 2020 winter season. Road repair was a necessary expense in September 2020, and the applicant is credited with that expense.
219Item 41, Lowes: As in the case of other large-scale hardware suppliers, the parties’ claims are not ideally supported and are hotly contested. I accept the applicant’s claims of her cash payments as going to the Build and observe that many other amounts were paid from joint RBC accounts. The parties will be allocated payments as per the applicant’s accounting.
220Item 42, MacMillan Construction: the respondent and applicant agree.
221Item 43, McCallum HVAC: the parties agree.
222Item 44, McKellar Township: The respondent is entitled to be credited $1,915.14 of the money paid to the Township, as he is entitled to 50% credit for monies paid from the corporate 3301 account. The applicant’s credited amount becomes $18,857.05. The taxes paid from the proceeds of sale of the Build will not be allocated to one or the other, as both parties were responsible to pay property taxes until the property sold, regardless that the applicant was residing at the Build.
223Item 45, Mountainside Design: the parties agree.
224Item 46, Muskoka Ready Mix: The respondent is correct that the applicant failed to attribute to the respondent his portion of amounts paid through account 3301. However, the applicant will be credited with the September 2020 expense for concrete for the garage floor, a reasonable and necessary expense. The applicant will be attributed $9,923.52, and the respondent $14,894.26.
225Item 47, Napolean Home Comfort: the parties agree.
226Item 48, Near North Supply: the parties agree.
227Item 49, North Bay – Mattawa Conservation Authority: the parties agree.
228Item 50, Office Supplies: the applicant will be credited with this amount for keeping the Build moving and dealing with audits.
229Item 51, Oldham Law: This firm represented the applicant at the commencement of this proceeding. I am not satisfied that expenses paid to this law firm are for anything other than the applicant’s family law legal fees. They are not an expense to be attributed to the Build.
230Item 53, Parker Fred Wood: the applicant’s claim of $1,080.00 for firewood after the parties had separated is disallowed.
231Item 55, Plumwall Bracing: The respondent will be credited $1,910.00, as representing the amount he paid this supplier, less the amount he was given by someone else to purchase from him the braces in question.
232Item 56, Redneck Concrete: the parties agree.
233Item 57, Reliance Home Comfort: It was not unreasonable to maintain a rental hot water tank in the Build even after the parties separated. The applicant will be credited the amount she claims.
234Item 58, Rona: For reasons I have set out throughout this decision, I find that the respondent is a very unreliable reporter about his entitlements. His claims that he should be credited with some $60,000 instead of the $39,000 accepted by the applicant, based only on proof of payment to Rona, without any receipts, is insufficient to establish the larger amount as relating to the Build. The applicant’s accounting will be used.
235Item 59, Roofmart: the parties agree on the amount.
236Item 60, Roofworx: the parties agree on the amount.
237Item 61, Ross Windows: The respondent claims the entirety of this contribution, but the applicant succeeds on the RBC joint account explanation.
238Item 62, Safe & Sound Locksmith: the applicant will be credited with amounts for locks and repair of locks made necessary shortly after the parties separated.
239Item 63, Sarjeant Concrete: the applicant’s accounting is accepted, as the respondent does not account for an amount credited back to him after payment.
240Item 64, Savage Commodity Tax: the applicant’s claim for attribution to the Build of expenses relating to HST audits of Tosh in August 2022 and September 2023, after the Build had been sold, must be accepted. Although the Build had been sold, Tosh’s potential tax liabilities remained.
241Item 65, George Schamerhorn: For reasons set out elsewhere, I accept the applicant’s evidence, and reject that of Mr. Schamerhorn, with respect to amounts that she paid him. I accept also the respondent’s claim to have paid $1,500 to this man in relation to work on the Build, as Mr. Schamerhorn did confirm that the respondent had made a payment to him.
242Item 66, Sierra Equipment: The respondent would claim the bulk of payments, but three were made from joint RBC accounts. However, the respondent does correct an error by the applicant. $81.81 will be attributed to the applicant, and $150.76 to the respondent.
243Item 67, Simcoe Block: based on the applicant’s entitlement to half of the contributions from BMO 3301, the applicant is attributed $14,235.96, and the respondent $20,948.61.
244Item 68, Soil Engineers: the parties agree.
245Item 69, Stanley Steel: the respondent has accounted for an additional bill. He will be credited $3,981.80, and the applicant $50 for a payment from a joint RBC account.
246Item 70, Timberwolf Concrete: The respondent submits that $1,325.49 paid to Timberwolf Concrete to pave the floor in the garage is not a necessary expense and was paid after the parties separated. However, the applicant’s evidence, which I accept, is that this expense was part of the original quote agreed to with the first contractor, and therefore an approved expense to be carried out. She gets credit for this expense, as in the case of Muskoka Ready Mix.
247Item 71, Triple J Accountant: This was an accounting firm that prepared tax filings for the parties and Tosh. Although the applicant continued their services after the Build sold, she is entitled only to payments made through 2021. The applicant is credited $2,983.20 and the respondent $610.20.
248Item 72, Trujillo Electrical: As discussed above, Mr. Trujillo never presented a bill for his extensive electrical work, and the applicant’s “payment” of her daughter Natasha for Mr. Trujillo’s work is both too remote and incapable of evaluation. The claim is disallowed.
249Item 73, United Lumber: the parties agree.
250Item 74, Washago Timber Mart: This was the subject of the respondent’s 2015 Christmas gift to the applicant, and she will accordingly be credited with the $78,937.72 that the respondent paid for trusses from this source.
251Item 75, Watson Building Supplies: The respondent claims the entirety of this contribution, but the applicant succeeds on the RBC joint account explanation.
252In what follows, I incorporate corrections that I have discussed above into the applicant’s table to produce a comprehensive list of accepted contributions to the Build attributable to each of the parties.
Vendor $Total Appl. $Total Resp.
(1) Above and Beyond Contractors 7,155.54 199,753.73
(2) Adams Brothers 13,005.75 20,325.77
(3) Appliance Man N/A
(4) Attorney General 115.00
(5) Aztec Electrical 67.80
(6) Banking expenses 4,340.14
(7) Barill Engineering 1,180.20
(8) Bell Canada 20,884.45
(9) Walter Benn 47,185.00
(10) Bookkeeping 1844476 Ont. Ltd. 34,900.00
(11) Greg Boothby Excavation 22,662.14
(12) Breen’s Lumber 10,116.88 8,049.32
(13) Budget Propane 3,928.99 8,908.78
(14) George Cameron Contracting 32,360.60 23,705.11
(15) Campbell’s Drywall 21,358.00 21,358.00
(16) Canada Post 117.26 134.47
(17) Carr Aggregates 388.52 3,878.15
(18) Casual Labour N/A
(18c) Century 21 1,130.00
(19) Concord Equipment 621.29 207.00
(20) Cooperators Insurance 14,420.16
(21) Costco 868.90 1,344.66
(22) CRS Rental 735.86 735.86
(23) Door Doctor 14.12 2,234.01
(24) Duck Lake Plumbing 653.08
(25) Dynamic Environmental 10,000.00
(26) Electrical Safety Authority 344.65 786.48
(27) Emco 841.89 841.91
(28) Gates Consulting 6,302.83
(29) Gray’s Paint 607.94 205.66
(30) Great Northern Insulation 10,990.24 10,990.24
(31) Home Depot 15,000.00 5,910.18
(32) Home Hardware 2,741.02 1,764.74
(32d) Hwy 124 Storall 1,274.71
(33) Hydro One 6,143.10 4,952.55
(34) Ideal Supply 3,203.39 5,913.52
(35) Incorporators Accountants 6,545.11 2,034.00
(36) Jefferson’s Workshop 11,054.20 11,054.20
(37) Kijiji (trailer) 6,000.00
(38) Kroft Conolift 644.10
(39) Lighthaus 2,639.06
(40) Little Landscaping 5,057.62 4,630.00
(41) Lowes 19,078.06 19,131.68
(42) MacMillan Construction 9,006.40 6,000.00
(43) McCallum HVAC 1,073.50
(44) McKellar Township 18,857.05 1,915.14
(45) Mountainside Design 5,384.60
(46) Muskoka Ready Mix 9,923.52 14,894.26
(47) Napolean Home Comfort 119.33
(48) Near North Supply 936.32
(49) North Bay Mattawa Conservation 200.00 735.00
(50) Office Supplies 4,150.00
(51) Oldham Law N/A
(52) 1886443 Ontario Limited 60.00
(53) Parker Fred Wood N/A
(54) PDC Barristers 197.75
(55) Plumwall Bracing 1,910.00
(56) Redneck Concrete 4,023.93
(57) Reliance Home Comfort 3,026.79
(58) Rona 7,061.08 39,207.17
(59) Roofmart 11,420.47
(60) Roofworx 14,690.00
(61) Ross Windows 22,259.99 22,259.99
(62) Safe & Sound Locksmith 497.90
(63) Sarjeant Concrete 13,349.54
(64) Savage Commodity Tax 2,456.34
(65) George Schamerhorn 15,745.00 1,500.00
(66) Sierra Equipment 81.81 150.76
(67) Simcoe Block 14,235.96 20,948.61
(68) Soil Engineers 1,336.23
(69) Stanley Steel 50.00 3,981.80
(70) Timberwolf Concrete 1,325.49
(71) Triple J Accountant 2,983.20 610.20
(72) Trujillo Electrical N/A
(73) United Lumber 139.77
(74) Washago Timber Mart 78,937.72 (gifted by respondent)
(75) Watson Building 1,892.41 1,892.41
253The applicant’s total investment into the Build becomes $515,466.43, and the respondent’s $552,672.37. When amounts for the purchase of the property under the Build are accounted for ($33,250 for the applicant and $126,750 for the respondent), the applicant’s total comes to $548,716.43. The respondent’s total is $679,422.37.
Potential adjustments relating to the distribution to the respondent of funds held in trust
Is the applicant liable to pay interest on the respondent’s line of credit?
254In 2014, the respondent opened a line of credit against 5 Princefield for use on the Build. This was the respondent’s account, and not the applicant’s.
255According to the respondent, it had been their joint plan to open that line of credit and that he and the applicant would sell their homes to pay it off. The respondent claimed that at the time they had very little money to pay for the expenses on the Build, and this was the only option. I do not accept the respondent’s evidence. He had just used other funds from the parties’ joint account to pay off his mortgage at 5 Princefield. He was not short of cash, and there were other options. The applicant, as acknowledged by the respondent in his evidence, had arranged a “rent-to-own” deal on her house for her daughter Natasha. The applicant had no plans to sell her property to pay off CIBC 0137, and in fact had urged the respondent against this course of action. As so often, the respondent did what he wanted and ignored the applicant’s input.
256After RBC 5160 became a joint account in January 2011, the applicant made a $145,000 payment from that account to joint account RBC 8619 at the respondent’s direction. The respondent used the money towards paying out his mortgage on 5 Princefield. Once his mortgage was paid off with a payment of some $153,000 on October 3, 2014, the respondent opened line of credit CIBC 0137 on November 13, 2014, against title to the 5 Princefield home, allegedly to be used to consolidate and keep track of payments made for the Build. Cheques drawn on CIBC 0137 were used for the Build and the account was used to pay off credit amounts paid by the respondent. On the respondent’s evidence, some $420,000 went through that account to the Build, though the applicant disputes the attribution of all those amounts to the Build.
257The applicant, who was acting as a sort of general contractor on the Build, also had ready access to CIBC 0137, although the account was not in her name. The applicant on one occasion in 2015 contacted CIBC to attempt to raise the credit limit on CIBC 0137 but appears to have been refused. She states that she made the call at the respondent’s request, as he was too busy. I am inclined to believe her. So far as the respondent is concerned, the applicant should be entirely responsible for the unpaid interest charges accruing on CIBC 0137. This is so even though the respondent for years deducted those charges as a business expense against income from renting out space at 5 Princefield, and, I find on the balance of probabilities, himself directed the applicant in her use of that account, which he had opened against her advice.
258According to the applicant, whose evidence I accept as the only rational way to explain the applicant’s use of this account, the respondent often had her sign cheques from his CIBC 0137 line of credit using his signature. This makes sense, as the applicant was generally on site at the Build, directing the progress of the work. The respondent denies the applicant’s evidence about this, and, at para. 208 of his affidavit on this proceeding, sets out a list of cheques paid from that account, and for what. In the body of that paragraph the respondent asserts that the applicant would regularly sign his name on cheques. In fact, in the chart appended to his affidavit he states that the applicant “forged” his name on many cheques: 9, 10, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 38, 39, 40, 45, 46, 49, 50, and 51.
259However, I note that the period during which the applicant would have forged the respondent’s signature extends from January 16, 2015 (cheque 9) up through February 24, 2016 (cheque 51). Interspersed among the “forged” cheques are (apparently electronic) bill payments and e-transfers made by the respondent: May 26, 2016; August 20, August 21, August 24, 2015; October 5, October 14, October 16, 2015; January 29, 2016; and February 26, 2016. The respondent himself signed cheques as well during the period of the “forged” signatures: cheques 11, 41, 42, 43, 44, 47, and 48. I reject the respondent’s claims that he found out after the applicant had signed for him that she had done so and told her that what she was doing was wrong. He knew what she was doing and had told her to do it.
260The respondent claims no knowledge of what happened with cheque 31, $10,000 paid to the applicant, and for which the applicant has provided no justification, because she could not trace the funds because of the absence of clues on the cheque. There is another cheque for $1,725 paid to the applicant. The respondent speculates, without proof, that this $11,725 was invested in the newly privatized Hydro One. Next to cheque 38, the respondent has written “I was not aware that the Applicant had written and signed this cheque at the time”. He notes a further $1,000 cheque (51) payable to the applicant for a gift for the applicant’s (grand)daughter, and another was for a wedding; the respondent comments, “I knew of none of this.”
261Once again, however, this court must not lose track of the fact that this is a family law case, and that the parties were in a relationship during the course of the Build until July 2019. I have no doubt that the respondent authorized payments to the applicant for her use as his spouse, and for gifts to her family. In fact, the applicant denies that the $1,000 cheque was ever cashed, and tried to determine where the $10,000 went, but could not. And the applicant denies that all the impugned signatures are hers, though she does not deny signing for the respondent. I have no doubt that the respondent had the applicant sign the cheques on his behalf, as a convenience in their relationship and their work on the Build, and that he approved her use of the funds. The respondent’s claims of ignorance about this issue, as so often with respect to his evidence of ignorance at this trial, must be rejected.
262It came as a surprise, in sur-reply, that the respondent testified that he had chosen, during the course of the trial, to take his claims of the applicant’s alleged forgeries of his signature relating to this line of credit to police, for their investigation. In my view, that effort represents a shocking attempt by the respondent to pressure the applicant into an unfavourable settlement, or to bring unfair extraneous pressures to bear on her. While the respondent has given many reasons already at this trial to discount the weight of his testimony, this conduct demonstrates that the respondent is prepared to do and say anything to succeed in this case.
263I reject the respondent’s claims about the applicant’s unauthorized use of this line of credit. I note that the respondent does not clearly disavow knowledge of the bulk of cheques allegedly forged by the applicant. Nor could he. His regular use of the account himself, the facts that most of the cheques signed for the respondent by the applicant were used on the Build, and that the cheques signed for the respondent by the applicant total more than $150,000, a significant amount, confirm for me that the respondent was not only aware that the applicant had signed for him, but that she did so at his direction and approval. He could have stopped the applicant’s use of this account at any time but did not do so. I find that the respondent’s claims of “forgery” of his signature and ignorance of the applicant’s use of some cheques for reasons other than the Build are after-the-fact attempts to blacken the applicant’s character and disavow his intent at the time of the issuance of the cheques: that the parties be equal partners in the Build and in life. I find, on a balance of probabilities, that the applicant had the respondent’s direction or permission for all funds that she withdrew from CIBC 0137, even for the amounts not clearly associated to the Build.
264The respondent argues that the applicant should be responsible for interest charged him on the line of credit from which he drew funds for the Build. The bulk of interest on that line of credit has been carried by the respondent, though some $35,274.71 was paid by the applicant as demanded at one point by the respondent. By the beginning of 2024, more than $140,000 in interest had accrued on that account. The interest rate was high, and the respondent has been carrying the interest charges over several years, from even before the parties separated. The respondent had sought the applicant’s consent to release some monies from the proceeds of sale of the Build to pay back the line of credit, but the applicant refused to consent to the release of funds.
265I decline to hold the applicant responsible for interest charges on the respondent’s line of credit, for several reasons:
a. I find that it was the respondent who chose to use money from the line of credit for the Build, rather than from liquid funds available in other accounts. He took funds from joint accounts, RBC 5160 and/or RBC 8619, to pay off the mortgage on 5 Princefield, and then opened an interest-bearing line of credit against that property. It was the respondent’s choice to attract interest on borrowed funds rather than to use liquid assets for the Build;
b. The line of credit was used for the Build only between November 2014 and April 2016. After that, money was used again from RBC 8619, the joint investment account. Indeed, according to the applicant, RBC 8619 was the account that the parties agreed would fund the Build. It is difficult to justify the respondent resorting to a line of credit when he had other liquid funds available to him, as I find that he had;
c. I accept the applicant’s evidence that the respondent directed her use of the line of credit. Her use of that account was not independent of the respondent. I find that she affixed the respondent’s signature to cheques at his direction. That the applicant asked the bank to raise the credit limit on that account (and was refused) does not change my view in the context of the rest of the evidence in this case. This was not a joint line of credit for which each party should be responsible for interest that accumulated upon their own withdrawals from it: see, ee.g., Zadegan v. Zadegan, [2002] O.J. No. 2980 (Sup. Ct.), at paras. 1-3; Dalgleish v. Dalgleish, [2003] O.J. No. 2918 (Sup. Ct.), at para. 64(7);
d. I reject the respondent’s evidence that there was ever an agreement between the parties that the applicant would sell her house to repay the respondent’s line of credit. The applicant’s contributions to the Build came mainly from her own contributions, joint accounts and her personal labour;
e. Moreover, the respondent claimed the interest charges on that line of credit as tax deductions against rent that he collected for years from the use of storage space in his home at 5 Princefield. The respondent has already sought and received some reimbursement for these funds through the tax system; I am not satisfied that amounts allegedly owing by the applicant have been sufficiently shown by the respondent, and I cannot in any way accept his calculations, given his evidence and conduct concerning the applicant’s use of this account;
f. The respondent argues that the applicant’s refusal to consent to the release of funds held in trust to pay off the outstanding line of credit has resulted in increased interest accruing that the applicant should therefore be responsible for. I do not agree. The applicant had no duty to consent to the release of disputed proceeds in this highly adversarial litigation. Just so, the respondent did not consent to the applicant using funds from that account to pay off a tax debt relating to Tosh from 2017. Indeed, the respondent had a duty to mitigate his losses by bringing a motion for release of funds to pay off that line of credit, if he believed that he had a right to them. For whatever reason, he chose not to do so until this trial was well underway, when I refused to permit such a motion to go forward, as untimely.
266For these reasons, the respondent’s claim that the applicant should be responsible for the interest on his line of credit CIBC 0137 is dismissed.
Occupation Rent
267The respondent claims occupation rent from the applicant from the date he was excluded from the Build until the closing date on that property in August 2021. The couple separated in July 2019, and it appears that the respondent’s access to the Build was limited from that point, after the intervention of Peel Regional police. Criminal charges were laid against the respondent in September 2019, based on the applicant’s allegations. Conditions of bail constrained the respondent from visiting the Build, though bail courts regularly make exceptions for the retrieval of personal belongings, and did so in this case.
268The respondent brought no application to sell the Build pursuant to the Partition and Sale Act. The applicant’s inability to serve him with materials relating to the application before this court necessitated an order for substituted service made by Gordon J. on September 3, 2020. So far as I can tell, the respondent’s first indication that he wanted the Build sold was in his Answer filed November 4, 2020. The respondent moved for the sale of the Build, and a consent order was made for its sale. In July 2021, a month before closing, the respondent still had to move to collect his personal property before the deal closed. I find that no delay in the sale of the Build was occasioned by the applicant between the parties’ separation and the sale of the Build. COVID 19, the domestic situation, and the outstanding charges occasioned much of the delay.
269Occupation rent for a matrimonial home, as defined in s. 18 of the Family Law Act, R.S.O. 1990, c. F.3, can be ordered pursuant to s. 24(1)(c), if it is reasonable and equitable to do so. Although not a “matrimonial home”, I will assess the circumstances in light of the law in that context. In Griffiths v. Zambosco, 2001 CanLII 24097 (ON CA), [2001] O.J. No. 2096, at paras. 49-50, the Ontario Court of Appeal noted that factors to consider vary with the circumstances of different cases, but often include such elements as the following for the trial judge to weigh in a family law context:
a. The timing of the claim for occupation rent;
b. The duration of the occupancy;
c. The inability of the non-resident spouse to realize on their equity in the property;
d. Any reasonable credits to be set off against occupation rent; and
e. Any other competing claims in the litigation.
270A claim for occupation rent may be set off against a competing claim for expenses that accrued during the period of sole occupancy by a joint tenant. Such things might include such expenses as property taxes, mortgage payments, fees, and utilities: Erb v. Erb, 2003 CanLII 2112 (ON SC), [2003] O.J. No. 1527 (Sup. Ct.), at paras. 73-74; McColl v. McColl, 1995 CanLII 7343 (ON CTGD), [1995] O.J. No. 1516 (O.C.G.D.), at paras. 60-64; Doyle v. De Sousa, [2023] ONSC 3163, at para. 36.
271In the circumstances of this case, I take into account the following, among other things:
a. The applicant did not unreasonably delay bringing the application that spurred the respondent on to seek to sell the Build. The process of serving the respondent with the application took some considerable time;
b. The claim for occupation rent arose only shortly before the property was listed and sold;
c. The respondent gave no notice of a desire to sell the Build until November 2020, more than a year after the parties separated. The intervention of the COVID 19 pandemic delayed all court functions, and the applicant cannot be held responsible for this moreso than the respondent. The pandemic slowed the court system down;
d. The applicant made substantial contributions to the Build after separation, to work towards an occupancy permit, complete various aspects of it, and ready it for sale;
e. From that time until the Build sold, it appears that the delay was not excessive, given the COVID 19 pandemic and other factors that delayed the progress of the application;
f. The applicant paid for upkeep, and various utility costs post-separation, so that the Build was not compromised and she could continue to work on improving the property;
g. The respondent only made efforts to acquire his personal property from the Build shortly before closing. He was evidently satisfied at the time with the pace of the sale and closing;
h. In the APS for the Build was a condition that the seller had to clear the property of garbage and equipment at their own expense. It was the applicant who paid $1,400 to haul away wood and lumber prior to closing on August 5, 2021. She devoted many hours of her own labour also to the task of cleaning up debris from the site or face the possibility of a $50,000 holdback. I have attributed to her nothing for the value of labour from her friends and family in the Build or the clean-up; and
i. The Build did not have an occupancy permit before its sale and it is questionable whether it could lawfully have been rented on the market in any event.
272In these circumstances, I am of the view that it would not be reasonable and equitable to require the applicant to pay occupation rent. I have also found, given the extensive work for which the applicant was responsible when she was living at the Build after separation, and given the need not to compromise the structure, that she is also entitled to claim many of her carrying costs/utilities for the Build.
The respondent’s lost personalty
273The respondent is seeking $20,000 compensation for property that was left by him at the Build and destroyed “due to the applicant’s commissions and omissions,” and the applicant’s alleged unwillingness to allow the respondent to attend in the house and retrieve his property, listed at para. 394 of his main trial affidavit. He claims that items that were left for him in garage or storage were either not his or were ruined before he could collect them.
274However, the applicant’s evidence was that the respondent’s property was damaged through his own carelessness in not retrieving it when he had the opportunity to do so in the period between July 2019 and July 2021, from the garage of the Build, or from storage.
275Given the contradictory evidence, and the length of time that much of the respondent’s property was left by him in whatever condition, I find that it is not possible to draw any conclusions about who is responsible for the loss. It is at least agreed that the respondent had the keys to the motorized items, which would have been the most valuable, and that there was little that the applicant could do easily to move them. In that circumstance, it was up to the respondent to retrieve those items. In particular, he should have arranged with a third party to collect valuables long before August 2020, when the applicant had to remove one of his boats from the garage to allow for the concrete floor to be poured.
276I am also not satisfied of the value of the respondent’s losses. The items he claims for are merely listed at the end of his trial affidavit, with no description of age, when they arrived on the property, condition, value, ownership, or any other circumstances. It was for the respondent to prove these issues, and I am not satisfied.
277I cannot find that the applicant probably is responsible for the respondent’s losses with respect to his personal property, or what those losses amount to. The request for compensation or adjustment on this ground is dismissed.
Conclusion on the respondent’s claimed adjustments to funds held in trust
278I conclude that the respondent has not proved that he is entitled to any adjustments with respect to the money held in trust from the proceeds of sale of the Build.
Unjust enrichment, constructive trust, and joint family venture
279To this point, I have set out the parties’ money investments into the Build and determined that the money that they contributed to the Build from accounts RBC 5160, RBC 8619, and BMO 3301, must be considered to have been jointly contributed by them, even though they were unmarried. I have sought to account for a specific gift, the roof of the Build, passing from the respondent to the applicant, and various other discrete money issues.
280I have concluded that the applicant can be credited with having paid $548,716.43 towards the Build, and the respondent $679,422.37. I have further determined that the respondent is not entitled to any adjustments based on money claims that he had made against the applicant.
281But what of adjustments that the applicant claims? The applicant still claims that the respondent has been unjustly enriched by her labour on the Build and by her willingness to sacrifice her career at Mary Kay to further the parties’ project. The respondent responds by pointing to his own significant labour on the Build as offsetting the applicant’s claims.
282In my view, the applicant’s claim can be assessed through an analysis of whether the respondent has been unjustly enriched by the applicant’s labour.
Unjust enrichment and constructive trust
283The law of unjust enrichment responds to the reality that unmarried domestic arrangements can also create partnerships, and that the law needs to be able to correct the disproportionate retention of assets acquired through joint efforts with another person: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 85. A constructive trust is a remedy for unjust enrichment. Unjust enrichment involves the “notion of restoring a benefit which justice does not permit one to retain”: Kerr, at para. 31; Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762, at p. 788. The required injustice can include a benefit conferred by mistake, under compulsion, out of necessity, as a result of ineffective transaction, or at the defendant’s request: Peel, at p. 789.
284In applying unjust enrichment principles, courts must be alive to the special circumstances that arise in family law cases, and sensitive to the particular factual and social context in which the principles are called upon to operate: Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, at p. 997; Kerr, at paras. 33-34.
285An applicant must establish a sufficiently substantial and direct link, causal connection, or nexus, between his or her contributions and the acquisition, preservation, maintenance, or improvement of the disputed property: Kerr, at paras. 50-51.
286As described in Kerr, at para. 30, the law of unjust enrichment has been “the primary vehicle to address claims of inequitable distribution of assets on the breakdown of a domestic relationship.” To be successful in a claim for unjust enrichment, an applicant needs to establish three elements (Kerr, paras. 32-40):
a. An enrichment of or a benefit to the respondent;
b. A corresponding deprivation of the applicant; and
c. The absence of a juristic reason for the enrichment.
287The enrichment and deprivation are purely economic in nature. The applicant must show that he or she gave something to the respondent that the respondent received and retained, and that is capable of being restored. It can be a positive benefit or a benefit that spares the respondent an expense. The benefit in the first step must correspond to a deprivation that the applicant has suffered. Labour performed by a party in lieu of money can also be considered a deprivation: Kerr, at paras. 37-39. The third element requires a showing that the benefit and detriment have occurred without juristic reason, that is, that there is no reason in law or justice for the respondent to retain the benefit: Kerr, at para. 40.
288The absence of juristic reason means that “there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention ‘unjust’ in the circumstances of the case”: Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834, at p. 848. Juristic reason can mean an intention to make a gift, a contract, or a disposition of law. It can also include the legitimate expectation of the parties, such as by ordering their affairs by contract: Kerr, at para. 41; Peel, at p. 803.
289The intention to make a gift is a juristic reason to deny recovery: Kerr, at para. 41. In the case of a true gift, the juristic reason for the enrichment is that the gift was intended to confer on the recipient a benefit by the economic imposition on the grantor of a corresponding deprivation. That is what gifts are.
290To determine whether a transfer was intended as a gift, it is the actual intention of the grantor that is relevant, and not the intention of both parties: Pecore v. Pecore, 2007 SCC 17, at paras. 43-44; MacIntyre v. Winter, 2021 ONCA 516, at para. 24. Where a gratuitous transfer is challenged, “the trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention”: Kerr, at para. 18.
291An applicant must first show no juristic reason from categories established at common law (such as gift or contract) in order to make out a prima facie case for “no juristic reason”, but the respondent can then rebut that case by showing another reason to deny recovery, such as the reasonable expectations of the parties, or public policy considerations. The test is flexible and will hinge on the situation before the court: Kerr, at paras. 40-44; Garland v. Consumers’ Gas Co., [1998] 3. S.C.R. 112, at paras. 44-46.
Has there been an unjust enrichment?
292After considering the parties’ various contributions to the Build, as I have determined them to be, I have allocated $548,716.43 to the applicant, and $679,422.37 to the respondent. In terms of money contributed, the respondent’s contribution exceeds the applicant’s by some $130,000.
293In my view, however, those allocations do not take into account the applicant’s labour on this project, which I find to have been substantially greater than that put into the Build by the respondent. There can be no comparison. The respondent did put a lot of labour into the Build, when he could take time away from his full-time job at Leon’s on weekends and vacation. The applicant spent many months of time living at the Build, and it cost her. From the pinnacle of success at Mary Kay, the applicant lost that career and suffered in terms of her mental health.
294In my view, the applicant’s personal efforts on the Build, from first to last, represent a significant enrichment of the respondent, in that he now claims to be entitled to a substantially larger share of the proceeds of sale of the Build than the applicant. Evidently, this represents a corresponding deprivation to the applicant, whose efforts have cost her her career and potentially a significant portion of the value of the Build.
295Is there a juristic reason for this enrichment and deprivation? It is difficult to envisage one. The respondent claims the mutual devotion by both parties to the work of the Build should mean that the parties’ contributions of labour set off against one another. But I find that the applicant’s contribution of personal labour was necessarily much more extensive and involved much more than the physical labour performed by the respondent. She was akin to the general contractor on the Build, pulling all the pieces together and serving as the “go to” person on site. Her presence on the site deprived her of her own career, with no compensation allocated for this loss. She had no contractual duty to provide that service, and I find that she had no intention of sacrificing her security to make the respondent richer.
296For his part, although the respondent devoted time to labour on the Build, he maintained his life in Brampton and his career at Leon’s. His work on the Build was dictated by weekends and vacation time. The value realized from the sale of the Build could not have been achieved without the applicant’s extraordinary contribution.
297Accordingly, I find that all three legal elements have been made out by the applicant. The respondent will benefit from an unjust enrichment unless a constructive trust is created over a portion of the money to which the respondent would otherwise be entitled from the proceeds of sale of the Build.
Joint family venture
298The principal remedy for unjust enrichment is a monetary reward, the only option in this case in any event. Calculation of the award can be complicated. In a relationship, it can be difficult to determine what benefits each of the parties has conferred on the other. There is the further issue of whether the reward should represent a “fee for service” approach or a “value survived” basis, that is, by reference to the increase in the couple’s wealth: Kerr, at paras. 47-49. Where there is a relationship that can be described as a “joint family venture”, and those joint efforts are linked to the accumulation of wealth, it is more appropriate to look to the “value survived” approach: Kerr, at paras. 47-49, 59-69, 80, 85; Reiter v. Hollub, 2017 ONCA 186, at para. 7. Such an approach looks to allocate the benefits of the joint creation of wealth.
299Joint family venture is to be considered at the remedy stage of an unjust enrichment analysis, once an enrichment, a corresponding deprivation, and the absence of a juristic reason have been found. Where there is no unjust enrichment, there will be no joint family venture: Peters v. Swayze, 2018 ONCA 189, at paras. 8-11.
300In order to determine whether an unjust enrichment would arise from the wealth generated by a joint family venture it is first necessary to determine whether the parties have been engaged in a joint family venture: Kerr, at para. 87. The Supreme Court in Kerr (at para. 89) isolated four main headings of factors to consider in determining whether there was a joint family venture:
a. mutual effort;
b. economic integration;
c. actual intent; and
d. priority of the family.
In making these determinations, a court should look to “how the parties actually lived their lives, not on their ex post facto assertions” (Kerr, at para. 88).
Mutual effort
301This factor looks to whether the parties worked collaboratively towards common goals, including the pooling of effort and teamwork: Kerr, at para. 90. Joint contributions can include effort and resources such as capital or income. In addition, unpaid labour and the taking on of responsibilities outside of the workplace, can be one party’s contribution that frees the other party up for income in the workforce: Kerr, at para. 91.
302In the circumstances of this case, the common goal was the Build, which was the single most important common goal of the parties. The applicant, who had wanted to travel, yielded to the respondent’s goal of building a place in “cottage country” to which they could retire together. The applicant had experience in building homes with her ex-spouse. While she would have preferred something prefabricated, she again yielded to the respondent’s idea of a large home that they designed.
303During the time that the parties worked on the Build, the respondent continued to advance in his career at Leon’s. He managed several stores and ultimately was promoted to management of a division of stores. I am satisfied that the respondent spent many weekends and holidays in putting in personal labour on the Build. I am not convinced about the approximately 4000 hours of unspecified personal labour that the respondent claims to have devoted to the Build between 2011 and 2019. For reasons explained throughout, I find the respondent to be an untrustworthy reporter, and proof of the number of his own hours worked on the Build hinges mainly on his word.
304The applicant’s focus was, I find, larger. She really was the general contractor of the Build. She acted as go-between involving trades and contractors, was regularly present on site, handled the business of the Build, performed labour in the structure, and cut cheques, as well. The reason that she wrote so many cheques for the Build from the respondent’s line of credit CIBC 0137 is that she was present on site, managing the flow of work, and making sure that tradespeople were paid. All of this necessarily took a toll on her career at Mary Kay. While she had been near the pinnacle of the Mary Kay pyramid when she became involved again with the respondent as an adult, that career suffered as she applied herself to the Build. Her income disappeared. She became depressed and at one point suicidal.
305The respondent’s assessment in his testimony, that the applicant’s Mary Kay work fell off because of nepotism on the part of someone higher up the pyramid does not detract from the applicant’s evidence. The applicant’s changed focus may well have caused her colleagues to lose sight of her. I find it probable that it was because of the applicant’s devotion to the Build that her Mary Kay career failed. The economic loss to the applicant was significant. And the respondent condoned and encouraged it. As I have found, the respondent added the applicant to one bank account, opened another with her, and directed her, as on-site building manager, to use money from his line of credit for the purpose of the Build. He counted on her to be present at the Build while he advanced in his career at Leon’s. The applicant’s unpaid and continuous work at the Build far outpaced the respondent’s own personal contributions of labour and must be considered as part of her contribution.
306And it was not only the applicant’s work. While I am hesitant to grant the applicant compensation from the proceeds of sale of the Build for the work performed by Juan Trujillo, that work would not have been done were it not for the fact of Mr. Trujillo’s family relationship with the applicant, and through her, to the respondent. The applicant’s success at acquiring Mr. Trujillo’s labour for the Build demonstrates the single-minded focus of the applicant’s efforts at completing the Build.
307Another aspect of the applicant’s claims can usefully be considered here. In her evidence at trial the applicant called into question aspects of the work performed by the respondent at the house. To him she attributed poor care in insulating and heating the basement over the first winter after building commenced, which she claimed caused cost overages to repair damage that resulted. Railing on porches had to be replaced because the respondent used improper materials. Flooring and steps and porches were badly fabricated. The respondent caused defects in the piping and wiring that had to be corrected.
308The respondent hotly contests these claims of poor workmanship and asks that if the work he had undertaken was as badly done as the applicant claimed, how could she have chosen to live in the Build after their break-up? And indeed, there was no occupancy permit, and the respondent made every effort to evict the applicant from the Build. I find that the respondent took those steps out of spite, but all of this is beside the point. Insofar as this was a joint project, I have found that the costs of repairs to the work done by the respondent fall into the category of legitimate contributions for the Build, as the applicant must be deemed to have accepted joint responsibility for any defective work done by her partner in this venture.
309There was clearly mutual effort involved in the Build.
Economic Integration
310This factor involves the economic interdependence of the parties. The more extensively intertwined the parties’ economic interests, the more likely is the existence of a joint family venture.
311The applicant provided a lot of money to the respondent in cash for the purpose of investing for her. The applicant has not adequately quantified the amount, but I find that the applicant was making very large sums of money from her Mary Kay work when the parties renewed their relationship as adults. I have accepted the applicant’s evidence that she gave the respondent large sums of cash to invest for their future together, and the applicant never saw any return of principal or interest from these investments. I have therefore found that money paid from the parties’ joint accounts should be considered joint money, even though they were not married. I find that the respondent received a lot of money from the applicant and treated it as his own. I find that the respondent added the applicant to account RBC 5160 and opened with her RBC 8619 to evidence his intention that the applicant also owned the money in those accounts. While he thought differently after he and the applicant broke up, the act of joining with her in those accounts shows that at the time, he intended and accepted that their finances were intermingled. So too did the applicant.
312With respect to monies paid from the corporate BMO 3301 account. I have found that the applicant’s cash contributions justify treating the money in BMO as jointly and evenly owned, regardless of the apparent origin of the funds. Even the respondent agrees that the funds in that account had been intermingled by the parties, though he claimed a larger share.
313In the circumstances of this case, while the parties maintained various accounts independently of the other, their financial interconnectedness was undeniable. The parties maintained jointly accounts RBC 5160 and RBC 8619 to pay for the Build. The respondent claims that some $420,000 passed through RBC 8619 to the Build. Much additional money found its way through RBC 5160 as well. In addition, BMO 3301, the Tosh account, operated for the Build as a joint account. So much for finances directly connected to the Build.
314In an effort to show that cheques the applicant had written the respondent were simply repaying interest on amounts that the applicant had borrowed from him and were not monies for investment, the respondent demonstrated aspects of that interconnectedness. The applicant used the respondent’s credit to make significant payments towards Mary Kay products from early on in their relationship. In addition, based on a high balance on the applicant’s CIBC Visa card in 2009 or 2010, the respondent anchored his claim that he had loaned her some $50,000. The applicant described that she used his credit because the respondent liked to get the benefit from the use of his credit card for large purchases. The respondent permitted this drag on his credit to remain until the applicant paid off the respondent’s very large credit card debt. This is not something that a work colleague would permit to someone who was merely a co-worker. The respondent’s use of his credit cards to carry a substantial business debt by the applicant signals real closeness.
315The respondent has also complained that it would “make no sense” for the applicant to pay him back for loans he made to her with cheques to him deposited into RBC 5160 if it was a true joint account. But these repayments, for Mary Kay products, were drawn from the applicant’s business account, which were intended to record monies relating to her business. In that respect, she is a separate person from the holder of RBC 5160 jointly with the respondent. The parties’ joint usage of this account from 2011 until their separation demonstrates quite clearly financial interdependence.
316When the applicant was living with the respondent at his home at 5 Princefield, she contributed to the couple’s living expenses. She paid his 407 ETR bills, phone bills and carrying charges, fees for internet service, and for a contract for him to get better gas and electricity rates. The applicant made payments for the respondent on the truck that she bought for him in Alberta. The applicant paid for the respondent’s vehicle insurance at times, for his three ATVs, for the Build, and for that truck.
317There was here significant economic integration, particularly with respect to accounts that were used to pay for the Build, but also in the personal sphere.
Actual intent
318After the first blush of love has faded, even rekindled or reborn love, and what was once recognized as a project undertaken for joint happiness has been liquidated and its proceeds have become the subject-matter of litigation, it can be a struggle to recover the intent of the parties when they were together working towards a common goal.
319According to the respondent in his trial affidavit, it was agreed between the parties “at all times” that the proceeds of any sale of the Build would be split according to what the parties contributed. The respondent claims to have told the applicant that “if things didn’t work out, we would just sell it and get our money back.” He claimed that the applicant was going to make up her share of the expense of the Build by selling her house at 55 Worthview and using the proceeds to pay off the line of credit. I find that this evidence is an after-the-fact reconstruction by the respondent, for whom the blush has definitely long fallen from the rose.
320As I have explained, the respondent was content to use on the Build money from the couple’s joint accounts, which the respondent, at least, knew contained the large amount of cash that the applicant had provided to him. I have heard no evidence that would convince me that the applicant ever took any steps to sell 55 Worthview during the time of her relationship with the respondent. Instead, she provided it as a home to her daughter. It is hard to credit that the respondent would allow that home to remain in the applicant’s hands, while the amount owing on his line of credit continued to increase, if there really was an understanding that it was to be sold to fund the Build.
321Unfortunately for the respondent, and as often in this case, his affidavit claims are belied by his testimony. When asked about protecting his interest in the Build after the parties separated, the respondent stated that at the time the property was sold, “my belief was that I owned half the property.” The respondent also testified that if he died, he never intended to leave the applicant more than her half of the Build. This evidence does not accord at all with the claims that he makes in his affidavit evidence of being paid out in proportion to monies invested in the Build.
322It is in this context that the respondent gifted the applicant the roofing on the Build as a Christmas present. That gift was not quantified at the time. It did not need to be. Symbolically, there could be no clearer indications that the respondent intended McKellar and the parties’ contributions to it to be jointly held in equal measure. There was no intent on the respondent’s part that there be an exact accounting for the Build. Although the couple had their differences, it was the respondent who “love bombed” the applicant after he broke up with her in October 2012, so that she finally moved back into his home early in 2013. Married or not, he treated her as a spouse, and assumed that their joint asset, the Build, belonged to both in equal measure.
323Likewise on the applicant’s part, the variable share structure of Tosh defines her intent. After the couple incorporated Tosh, the applicant initially claimed control of 100% of its shares, but this rapidly modulated to 51% of its shares, with the respondent controlling the other 49%. In corporate tax filings between 2015 and 2019, the applicant claimed this same share ownership distribution. On its face, if shares had actually existed, this would give the applicant bare corporate control. More significantly, however, leaving aside the issue of control, the distribution of the non-existent shares in the applicant’s filings would make her and the respondent more-or-less equal owners of Tosh and its asset, the Build. It was only after the two separated that the applicant once again claimed entitlement to 100% of the Tosh shares in her corporate tax filings, an amount that indicated her desire to own all of it, and her bitterness at the breakdown in the relationship. But the nearly 50-50 share structure that she put forward for the bulk of the parties’ relationship demonstrates her intent.
324On the evidence in this case, I find that the parties’ intentions during the course of their relationship and the Build were that they would share equally the value that they jointly created.
Priority of the family
325This category looks to whether and to what extent the parties prioritized the “family” in the decision-making. This involves determining whether one or the other party made financial sacrifices or suffered a detriment to his or her career for the sake of the family unit. This can involve one of the parties devoting him or herself to the family and neglecting or devoting less of their energies to their career: Kerr, at para. 98.
326Again, the focus of the relationship of the parties in this case was the Build. The parties did not have children with each other at home who needed attention, and the applicant’s claims that she kept house for the respondent are countered by his assertions of being independent in that regard. But what of the Build?
327As I have considered already, it was the applicant whose valuable career at Mary Kay suffered from the Build. While she worked endlessly on the Build to the exclusion of her career, the respondent spent many weekends and days off also working on the Build, but he never, during the time that the couple remained together, sacrificed the advancement of his career.
328The applicant’s contributions to the Build therefore prioritized her family relationship with the respondent over her personal goals. But making the respondent happy had always been her focus. In retirement, she would have preferred traveling, but the respondent wanted to settle in one place and build a house. The applicant would have preferred something prefabricated, but she bowed to the respondent’s wish to design their home. When she spent time in Alberta, the applicant bought the respondent a truck that she continued to pay for until the couple split up. The applicant’s focus was ever on the respondent and making him happy.
329As for the respondent, money had for him been a driving force. The applicant’s evidence paints a compelling image of the respondent curling up on the couch of an evening to stroll electronically through his bank accounts. When he put the applicant’s name on his personal account (RBC 5160), opened a joint account in both their names (RBC 8619), put seed money into the Tosh account jointly with the applicant, or gave the applicant his permission to sign checks on his line of credit (CIBC 0137), as he did, those were his acknowledgements of her devotion to their family unit. So too was his 2015 Christmas card gifting the applicant with a roof for the Build, literally the roof over their heads.
330The applicant clearly prioritized the family in the circumstances of this case and the Build.
Conclusion on “joint family venture”
331On all of the evidence in this case, the Build was for these parties a joint family venture. To this venture they both contributed money and personal labour, but the applicant’s labour carried much broader consequences for her. That labour cost the applicant her career at Mary Kay, though that was a choice that the applicant made, which represented part of her contribution to this jointly owned property. The Build got built, and the respondent was able to continue to advance in his career.
332I find that it was the intention of the parties to jointly benefit from value of the Build. I further find that any financial shortfall by the applicant in the purchase of the property for the Build or the construction of the Build is well and sufficiently compensated for by the additional personal labour that she contributed to it.
333Through her contributions of money and personal labour and personal sacrifice, I find that the applicant has proven her entitlement to 50% of the proceeds of sale of the Build, even though the respondent’s financial contributions exceeded those attributable to the applicant by some $130,000. All factors in the assessment weigh in favour of such a finding, but especially the clear intent of the parties concerning such a conclusion during the course of the joint family venture.
Conclusion
334For the above reasons, the money held in trust from the proceeds of sale of the Build will be distributed equally to the applicant and to the respondent. Such distribution must await this court’s determination of the issue of costs.
335Regarding costs, the parties will file written submissions of no more than 8 double-spaced pages with the court within 30 days. I understand that there is a prior costs award that was ordered against the respondent, for $1,500, still outstanding, that the respondent was seeking to be vacated. I decline to vacate that award, even if I had the jurisdiction to do so. The applicant may include it for consideration in her claim at this time.
The Honourable Mr. Justice A.D. Kurke
Released: March 23, 2026
CITATION: Recoskie v. Lucchitti, 2026 ONSC 1743
COURT FILE NO.: FS-20-023
DATE: 2026-03-23
ONTARIO
SUPERIOR COURT OF JUSTICE
Shelley Barbara Recoskie
Applicant
– and –
Antonio Lucchitti
Respondent
REASONS ON APPLICATION
A.D. Kurke J.
Released: March 23, 2026