CITATION: Saing v. Saing, 2026 ONSC 3088

COURT FILE NO.: CV-20-00644620-0000

CV-24-00715795-00ES

CV-25-00753081-0000

DATE: 20260528

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Court File No. CV-20-00644620-0000

KONTHEAR SAING and GEORGE PANAYOTOU

Applicants

– and –

SOKLY SAING and PHARY SAING and THE PUBLIC GUARDIAN AND TRUSTEE

Respondents

Acting on their own behalf

Michael Mangal, for the Respondent, Sokly Saing

Rebecca Suggitt, for The Public Guardian and Trustee

AND BETWEEN:

APPLICATION UNDER THE Partition and Sale Act, R.S.O. 1990, c.P.4, AND UNDER section 42 of the Substitute Decisions Act

PHARY SAING, by her Litigation Guardian, THE PUBLIC GUARDIAN AND TRUSTEE

Applicants

-and-

Court File No. CV-24-00715795-00ES

Rebecca Suggitt for The Public Guardian and Trustee

KONTHEAR SAING, GEORGE PANAYOTOU, SOKLY SAING AND VOTHY SAING

Respondents

AND BETWEEN:

SOKLY SAING

Applicant

-and-

KONTHEAR SAING, GEORGE PANAYOTOU and PHARY SAING, by her Litigation Guardian, THE PUBLIC GUARDIAN AND TRUSTEE

Respondents

Michael Mangal, for the Respondent, Sokly Saing

Konthear Saing, George Panayotou, and Vothy Saing, acting on their own behalf

Court File No.: CV-25-00753081-0000

Michael Mangal, for the Applicant

Rebecca Suggitt for The Public Guardian and Trustee

Konthear Saing and George Panayotou, acting on their own behalf

HEARD: April 14, 2026

C. Gilmore, J.

JUDGMENT ON APPLICATIONS

Introduction

1There are three Applications related to this dispute. Sokly Saing’s (“Sokly”) Application (CV-25-00753081-000), Phary Saing’s (“Phary”) Application (CV-24-00715795-00ES) and Konthear Saing’s (“Connie”) Application (CV-20-00644620-0000). Sokly’s Application, for Partition and Sale, was transferred to the Estates List on December 15, 2025, and the three Applications were ordered to be heard together.

2On that same date George Panayotou (“George”) was added as an Applicant to Connie’s Application and as a Respondent to Phary and Sokly’s Applications. Phary by her Litigation Guardian, the Public Guardian and Trustee (“the PGT”) was added as a Respondent to Sokly’s Application.

3The PGT was appointed as Phary’s Guardian of Property and Litigation Guardian on December 30, 2022.

4Phary, Connie, and Vothy Saing (“Vothy”) are sisters. Sokly is their brother. They have another sister namely Pharin Saing (“Pharin”) (jointly “the siblings”) who is not a party to these Applications but has provided an affidavit in one of the Applications. George is Connie’s spouse. I have used the parties’ first names in this judgment given that all of the parties except two have the last name “Saing.”

5This dispute relates to claims involving a property located at 553 Heddle Crescent, Newmarket (“Heddle”). Title to Heddle is currently held by Sokly and Connie as tenants in common.

6In the PGT’s Application on behalf of Phary, the PGT seeks a declaration that Phary is the sole beneficial owner of Heddle based on a Purchase Money Resulting Trust (“PMRT”). The PGT also seeks repayment from Sokly and Connie of various amounts they have taken from the equity in Heddle, occupation rent from Connie and George, and orders that Connie, Sokly and Vothy must disclose and disgorge any assets they have wrongfully received from Phary inclusive of interest and profits. In summary, the PGT seeks a declaration that Phary is the sole owner of Heddle, and that a vesting order and order for possession should issue. The PGT’s position is that when Heddle was purchased in 1998, Connie and Sokly used Phary’s funds without her clear understanding of how title was being taken. Because of her cognitive limitations, Phary did not have the capacity to understand the arrangement between Connie and Sokly.

7The PGT seeks repayment of a $15,000-20,000 loan which Connie borrowed from Phary in 2011 to buy a car. Connie deposed that she repaid $6,400 of the loan in cash to Phary’s savings (which were also held in the form of cash). Connie deposed that the balance of the loan was repaid by paying Phary’s phone bills and other purchases.

8The PGT also seeks repayment of the $109,000 which Connie withdrew from the line of credit registered against Heddle. It is not disputed that these funds were used by Connie for her own benefit.

9The PGT seeks occupation rent from Connie and George as a result of their exclusive use of Heddle for over 70 months. The PGT claims $140,000 based on market rent of $3,100 and the net of mortgage, insurance and hot water rental payments made by Connie and George during that period.

10The PGT seeks repayment by Sokly of $145,000 to Phary. In 2003, Sokly refinanced Heddle and used $50,000 to buy a new home for $230,000. He later sold that home for $900,000. The $145,000 sought by the PGT represents 21.6% of the $900,000 sale proceeds.

11Sokly claims that he is the sole legal and beneficial owner of Heddle although he concedes that Phary lent him $70,000 to pay down the mortgage on Heddle shortly after it was bought. He agrees to repay Phary the $70,000 but without interest or any consideration of the increased value of Heddle since its purchase.

12Connie originally claimed that she and Phary were the only beneficial owners of Heddle and that Sokly is holding legal title in trust for them. Connie did not state what percentage of beneficial interest she and Phary owned. Connie later changed this position (as will be detailed below) and now submits that she is the sole owner of Heddle.

13Vothy has not filed a Notice of Appearance or any materials in these proceedings, sworn or otherwise. Her informal position is that she did not manage Phary’s money. Based on disclosure provided by Vothy, the PGT has not pursued further claims against her.

Background and Property Histories

14The siblings emigrated to Canada from Cambodia with their mother Soy Say in January 1983. Soy Say died in December 2019. The family originally settled in Ottawa, but Pharin moved to Toronto and Phary soon followed and moved in with Pharin. Phary and Pharin worked together at Dortec (an automotive manufacturer) from 1989 to 1999. Phary paid Pharin $250 per month for rent.

15Phary worked at Brown Window and Door from September 2003 to January 2006. After 2006 Phary worked with Connie and George at George’s cleaning company. As of March 2020, she received pandemic related benefits. Phary currently receives Ontario Works financial assistance of $733 per month.

London Green

16In 1995, Pharin arranged for the purchase of a house at 25 London Green Court, Toronto (“London Green”). The property was purchased for $85,000 with a mortgage of $55,275. Both title and the mortgage were placed in Phary’s name. After London Green was bought Soy Say, Sokly, Vothy and Connie moved from Ottawa into London Green with Phary. Connie and Vothy moved out of London Green in 1997.

17Connie’s evidence was that Phary made a deposit of $5,000 for the purchase of London Green. On closing Phary paid the balance of $24,725 from her savings and took a mortgage of $55,275. Neither Connie nor Sokly dispute that Phary was the owner of London Green or that Phary and Soy Say paid the expenses for London Green. Sokly’s evidence on examination was that London Green was Phary’s property alone.

18Connie and Pharin’s position is that Pharin and her husband gave Phary a gift of $50,000 to help the family. Phary used $35,000 of that money to pay down the London Green mortgage and kept the remaining $15,000. In February 2022, Pharin swore an affidavit in which she deposed that she and her husband gave Phary the $50,000 to help both Phary and the family.

19London Green was sold on October 16, 1998. The mortgage had been paid down to $10,282. The sale proceeds totaled $75,767. The parties agree that $70,000 from the London Green sale proceeds was used to pay down the Heddle mortgage after Heddle was purchased. However, they disagree as to whose money was used to make the payment. Sokly’s evidence was that the $70,000 was loaned to him from Phary. He agrees to pay it back to Phary on the sale of Heddle but without interest.

20For the first five years of this litigation, Connie agreed that the $70,000 from London Green was Phary’s money. In December 2025, Connie changed her position and now claims that the $50,000 gift from Pharin to purchase London Green was for the “family” and that some portion of that gift now belongs to her. Connie’s most recent position is that it is implausible that London Green was purchased for Phary’s exclusive use and ownership as the family simply did not operate that way. Rather, the more acceptable and reasonable explanation is that the $50,000 gift from Pharin was intended as a contribution to benefit the entire family. Connie’s position now appears to be that the beneficial ownership of Heddle should therefore be distributed amongst family members. However, it is unclear which family members and in what proportion. No other family member has claimed an interest in the $50,000 gift from Pharin.

21Pharin’s evidence in her 2022 affidavit is that she gifted Phary $50,000 for the purchase of London Green in order to help “Phary and the rest of the family.” As described above, Connie has latched onto this statement as meaning that the gift was intended to benefit the entire family and cannot be attributed solely to Phary.

22Vothy’s evidence was that she was not aware of Pharin making a gift of $50,000 to Phary to purchase London Green. She went to the lawyer’s office with Phary to sign the documents for the purchase of London Green and she would have known about such a gift. It is Vothy’s position that Phary alone paid for the down payment and closing costs for London Green and that the sale proceeds of $70,000 were owned solely by Phary which were then used to pay down the mortgage on Heddle. Vothy submits that Connie paid nothing towards the purchase of Heddle. Sokly suggested that Heddle should be purchased as it was close to Phary’s work. As Sokly could not qualify for a mortgage on his own, he needed Connie to co-sign the mortgage. Vothy was unaware until this litigation that Connie was a co-owner of Heddle.

Heddle

23On September 23,1998, Heddle was purchased for $200,995 with deposits totaling $10,500 and a further $43,125.40 paid on closing. A mortgage of $157,000 was placed in Connie and Sokly’s name. Connie and Sokly took title to Heddle as joint tenants. There is a dispute as to who paid the deposits and amounts on closing ($53,625.40). Connie’s original evidence was that Phary paid those amounts. Now, Connie’s position is that Phary’s contribution on closing was consideration in relation to a family arrangement whereby Connie and Sokly undertook to provide care to Phary.

24Pharin, the parties’ sister but a non-party in this litigation swore an affidavit in February 2022 in which she deposed that it was common knowledge within the family that the initial investment for Heddle came from Phary.

25Sokly claims he paid the deposits and closing costs for Heddle and that he is the sole rightful owner of Heddle. In his Application he claims that Connie’s interest in Heddle is subject to resulting or constructive trust in his favour, that Connie should pay occupation rent to him, that Connie repay the line of credit and any unauthorized funds withdrawn from the joint account and that Heddle be sold with all sale proceeds paid to him.

26Sokly deposed in three separate affidavits that the closing costs for Heddle came from his wife’s parents and his own savings. However, Sokly has never provided any evidence of amounts given to him by his in-laws. On cross-examination, Sokly conceded that he may have “misremembered” that the money came from his in-laws and that it was possible that Phary contributed to the downpayment for Heddle but not the full amount. The only evidence proffered by Sokly regarding his alleged sole interest in Heddle is an amendment to the Agreement of Purchase and Sale dated August 30, 1998, in which he is listed as the sole purchaser and a cheque to the real estate solicitor in the amount of $43,854.93. However, Connie’s evidence was that the cheque came from an account that she and Sokly owned jointly but the money belonged to Phary.

27Sokly insists that Connie’s name was added to the title of Heddle for the sole purpose of obtaining financing as Sokly could not qualify on his own. He submits that Connie had not even seen Heddle before it was purchased.

28Sokly has not provided any evidence of his financial circumstances prior to the purchase of Heddle. Pharin’s evidence was that between 1995 and 1998 she helped her brother out with basic purchases such as clothing and shoes because he could not afford those items himself. Her position is that Sokly did not have the financial means in 1998 to purchase Heddle.

29Sokly agrees that in 2003 he refinanced the mortgage on Heddle in order to buy a new house. Since Connie was registered on title, Sokly required her to co-sign. Sokly claims that Connie willingly did so as he had been supporting her for several years. Sokly notes that he could have sold Heddle at this point but chose not to as many family members relied on Heddle as their home. Sokly claims that in exchange for allowing the family to live at Heddle, Connie agreed to collect rent from other family members and ensure that the bills were paid.

30Connie and Sokly opened a joint account which was to be used for the payment of mortgage expenses for Heddle. Sokly claims that in July 2018, Connie made an unauthorized withdrawal of $10,000 from the joint account and deposited the funds in her own account. Sokly alleges that Connie made various other withdrawals from the joint line of credit which he did not authorize but has never particularized.

31Sokly claims that Connie’s exclusive use of Heddle since 2020 has prevented other family members from using Heddle as intended. As such, he requires Heddle to be sold and seeks occupation rent from Connie.

32Various family members have lived at and contributed to Heddle over the years. Like many families, there were frequent exchanges of cash between them with little documentation or record keeping. By agreement, family members who lived at Heddle contributed a fixed amount each month towards expenses. Sokly collected those funds when he lived there from 1998 to 2003. Connie collected them thereafter. In 2018 and 2019, Connie and George did not make a fixed monthly contribution. Instead, they paid for repairs and renovations which remain incomplete.

33Sokly made contributions to the monthly expenses of Heddle of $16,582 between 1998 and 2004 when he lived there plus a further $9,000 for expenses when he moved back in in 2016. He contributed to some renovations in the amount of $1,180 in 2016. When Sokly moved out in 2003 he removed $50,036 from a refinanced mortgage on Heddle. He used these funds to assist in purchasing a new home.

34Sokly has admitted that Phary loaned him $70,000 to pay down the Heddle mortgage. He also claims to have filed Phary’s taxes and covered her expenses when she was unemployed. However, Sokly has no records of this. Sokly agrees that Phary should be repaid the $70,000 loaned to him by Phary from the sale proceeds of Heddle.

35Phary’s position is that she contributed the downpayment and closing costs for Heddle ($53,625) plus a contribution from the London Green sale proceeds ($70,000) which was used to pay down the Heddle mortgage shortly after closing. In addition, she contributed $120,000-$145,000 towards Heddle’s carrying costs between 1998 to 2020, $2,500 for new appliances in 2023, a lump sum contribution of $20,000 made to Connie for household expenses in 2011 and a $6,000 contribution towards renovations at Heddle in 2018. In total Phary claims a contribution of $272,215 towards the purchase and maintenance of Heddle. Connie’s position is that Phary’s monthly contributions over 27 plus years that Heddle had been owned, averaged out to about $710 per month.

36Connie claimed that she contributed $82,200 towards Heddle between September 1998 and July 2020 being $57,000 in monthly expenses from September 1998 to July 2020, $5,000 for furniture and appliances in 2003 and $20,000 since 2018 for new appliances and repairs. Connie provides no details of these contributions or how they were calculated. Connie also claims that she paid for the “excess” of monthly expenses that were not covered by other family members between 2004 and 2018. The “excess” amount was over $30,000 according to Connie. However, Connie provided no receipts or information as to how she calculated the excess. When pressed on examination as to how she arrived at this number, she could not provide an adequate answer. Connie claims to have spent a further $90,711.04 in carrying costs for Heddle since the litigation began in 2020 but has provided no receipts.

37Connie’s position as submitted during this hearing was that Phary is entitled to the amount that Phary advanced towards the closing costs of Heddle, being $54,354.93. The remaining costs related to a mortgage in Connie and Sokly’s name for which Phary was not responsible. Further, Connie suggests that any funds remitted to her by Phary for household expenses became Connie’s money once they were deposited into her account. Any post closing contributions by Phary (the $70,000 contribution from the London Green sale proceeds) should not factor into the calculation of Phary’s beneficial interest in Heddle because the beneficial ownership of London Green was “distributed between multiple family members and needs to be recalculated.” As such, if the court finds that Phary is entitled to a beneficial interest in Heddle, it should not be more than 26%, being her percentage share based on the closing costs contributed in the amount of $54,354.93.

38Further, Connie denies that the line of credit in the amount of $108,593 should be repaid to Phary. The line of credit has never been in Phary’s name and she has never made a payment on it. Connie has borne the responsibility of the entire debt and liability without assistance from Phary. Further, Connie claims that the line of credit was necessary in order to finance Phary’s “overconsumption.” Connie submits that assuming her ownership interest remains intact, the line of credit balance should be deducted from her share on a sale.

39Connie does not deny that she borrowed $15,000-$20,000 from Phary to buy a car. However, this loan was repaid by way of cash instalments and the payment of Phary’s phone bill from 2013. It is unreasonable for the PGT to claim the sum of $30,518.57 which includes compound interest.

40Connie and George produced receipts showing that in 2022 they spent $56,391.12 on materials for repairs and renovations. Connie claims they have spent a further $5,000 to $10,000 since then but have not produced receipts. Connie and George have not provided details as to the nature of the work done. Sokly claims that the renovations are incomplete and have caused a loss to Heddle.

41In June 2020, Connie severed the joint tenancy and Sokly and Connie became tenants in common. Since August 2020 George and Connie have lived alone at Heddle. In August 2020, Phary moved in with Vothy. In January 2024, she moved in with Sokly where she continues to live. Connie denies that Phary was “ousted” from Heddle in 2020. Rather, it was Connie who reported Phary missing to the police and preserved her belongings and bedroom. In any event, Phary has stated she wishes to return to live with Connie which is inconsistent with her having been ousted by the very person with whom she seeks to reside.

42When Sokly sought to sell Heddle in 2020, Connie brought an Application in her own name and as Litigation Guardian for Phary. In Connie’s Application she sought a declaration that she and Phary were the only beneficial owners of Heddle and that Sokly has no interest in Heddle. Connie has never identified what percentage ownership she claims for herself or for Phary. Connie insists that Heddle should not be sold and that she and George will continue to occupy Heddle exclusively. Connie’s position has changed again and she now claims that she is the sole beneficial owner of Heddle.

43Sokly was served with Connie’s Application on August 9, 2020. On August 11, 2020, Vothy picked up Phary for a planned overnight visit but she never returned. Both Justice Vermette and Justice Akbarali expressed concerns in their endorsements about what had happened behind the scenes which resulted in Phary leaving Heddle. Connie suggests that Sokly and Vothy aligned against her and have used Phary to further their own agenda in this litigation.

44Connie claims that she and Sokly came to an agreement that they would jointly own Heddle in exchange for caring for Phary. However, Connie claims that Sokly breached that agreement by failing to care for Phary and has therefore forfeited his interest in Heddle. In text messages exchanged between Connie and Sokly, they confirmed the terms of the oral agreement and reference Phary having paid $125,000 to buy Heddle. The $125,000 amount roughly equals the closing costs of $53,624 plus the $70,000 contribution from the London Green sale proceeds.

45Pharin has sworn an affidavit in which she deposed that it was well known within the family that Phary paid for the initial investment in Heddle. She was a hard worker and accumulated significant savings as a factory worker. Phary’s hard work and savings were also confirmed in Justice Vermette’s judgment on the contested guardianship in 2022.

46Commencing in March 2020 when George and Connie began to exclusively occupy Heddle, they have paid all of the monthly carrying costs including mortgage, property taxes, mortgage insurance, home insurance, water heater rental, the home equity line of credit, and their own hydro and natural gas. Those expenses total approximately $2,266 per month.

47As of February 2024, Heddle was valued between $970,000-$990,000. As of September 2025, the mortgage balance was $39,792.92 and the line of credit balance was $108,593.68.

Phary’s Vulnerability

48It is conceded that Phary has had cognitive limitations since childhood. Phary is 59 years old, unmarried and without children. She cannot read or write in her native Khmer or in English. Phary has never lived alone or been responsible for her own affairs. The capacity assessor’s report noted that Phary is “passive and highly dependent on others” and that she was “not able to problem solve something as simple as asking for help.” Connie points out that in the course of the capacity assessment, Phary denied having any financial interest or investment in Heddle. Further, the capacity assessor noted that Phary was “not a reliable historian.”

49The capacity assessor found that Phary has no comprehension of the concepts of legal and beneficial ownership. As such, Connie’s position is that Phary could not have formed the intention to retain a beneficial interest in Heddle.

50The PGT was appointed Phary’s Guardian of Property on December 30, 2022, after a highly contested guardianship proceeding in which Connie, Sokly and Vothy all sought to be appointed her Guardian of Property. Phary is able to make her own personal care decisions. It is also agreed that Phary’s cognitive limitations leave her subject to undue influence. The PGT is Phary’s Litigation Guardian in these proceedings.

51Connie claims to have been Phary’s caregiver from 1998 to 2000 and the de facto manager of her finances as Phary is not able to manage household expenses on her own. Connie agrees that Phary is vulnerable and can be persuaded to give up her rights in exchange for vague promises. Connie has deposed that she and Sokly agreed to take care of Phary when “she [Phary] gave them $125,000 to purchase Heddle.”

52Connie claims that she was responsible for arranging transportation for Phary for shopping and medical appointments. She also taught Phary how to take the bus and ensured her safety.

53Phary worked for Connie and George’s cleaning company from 2007 to 2020. Phary was reliant on Connie and George for her wages, her transportation to jobs and the extra on-site training and supervision needed for Phary to complete the cleaning tasks. Connie’s evidence was that Phary earned 26% of every cleaning job she did.

54The PGT submits that over the 22 years that Phary lived at Heddle, Connie and Sokly acted in a fiduciary capacity towards her. It is conceded that Phary could not have managed the payment of household expenses for Heddle on her own. The PGT’s position is that Connie and Sokly abused their control over Phary to pay down the Heddle mortgage, keep her off title and take interest free loans from her. Connie and George now enjoy the benefit of living at Heddle while Phary now lives with Sokly and receives Ontario Works.

55During the course of the 2021 capacity assessment. Phary reported to the assessor that she wished to return to live at Heddle but would not do so as long as George was there. She is frightened of George. Phary would like to live at Heddle with Connie alone.

56Connie and George remain at Heddle. They have refused to sell and use the proceeds for Phary’s support pending this hearing. Rather, they have pursued their claim for sole beneficial ownership in Heddle.

Issues and Analysis

Purchase Money Resulting Trust

57A PMRT arises when a person advances funds to the purchase price of a property, but does not take legal title to that property. The presumption in law is that the other parties intended that the person who advanced funds would hold a beneficial interest in proportion to that person’s contribution. This principle is set out in Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at para. 1.

58However, the Court of Appeal in Lalli v. Lalli, 2026 ONCA 123 emphasized that there must first be an assessment of the evidence of the transferor’s intent before the presumption set out in Nishi operates. The court held at para 39 of Lalli that:

39The presumption of resulting trust only arises on a third scenario: where the evidence led by the plaintiff is “unpersuasive”, “neutral, truly equivocal, non-existent or uninformative” of the transferor’s objective intentions at the time of the transaction: Pecore, at para. 23; Bosanac, at para. 110; Saylor, at para. 24; Wu v. Sun, 2010 BCCA 455, 91 R.F.L. (6th) 24, at para. 18; Sidney N. Lederman, Michelle K. Fuerst, & Hamish C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis Canada, 2022) at § 4.51. It is only where there is an absence of evidence of the transferor’s actual intentions – most commonly where the transferor is deceased or otherwise unable to give evidence – that there is any need for the presumption: Pecore, at paras. 5, 44; Andrade, at para. 61. In such scenarios, the presumption follows logically: absent a living transferor, the transferee is the party best situated to “bring evidence about the circumstances of the transfer”: Pecore, at para. 26. However, where there is clear evidence of actual intentions, no presumption is necessary.

59In the case at bar there is objective evidence that Phary intended to have an interest in Heddle. It is therefore Connie and Sokly’s burden to prove that she did not have such an intention. I find that Sokly and Connie have not met this burden. They took title to Heddle for convenience and in light of Phary’s diminished capacity as she did not have a Guardian or an Attorney for Property. Taking the position that they are now the owners of Heddle is disingenuous and in conflict with the evidence presented.

60In Bradshaw v. Hougassian, 2024 ONCA 425, 173 O.R. (3d) 63, the Court of Appeal dealt with an Estate’s case in which the judge hearing the Application granted a 26% interest in a house in Cambridge to the Estate of the deceased based on her contribution of $10,000 to the purchase price in 1980. The Respondent son argued that the funds were a loan which he had fully paid off. The judge found that there had been a PMRT.

61The Court of Appeal reiterated at para. 11 that the doctrine of PMRT must focus on the intention of the parties at the time the purchase monies are advanced. The person advancing the funds need not “act like a purchaser”, only that their intentions and conduct make it clear that the funds were not advanced as gift or loan (para. 13).

62The trial judge in Bradshaw applied the principles in Nishi and placed the onus on the deceased’s son to establish that the funds advanced were a loan. The Court of Appeal found that the trial judge correctly considered all of the evidence including the fact that the deceased did not pay all of the expenses associated with the property during the time that she lived there and did not include the property in her list of assets when she filed for bankruptcy in 2006. The Court found these facts potentially relevant but not determinative of the deceased’s intentions at the time of advancing the funds (para. 22). The Court also found that at the time the funds were advanced it would not have made sense for the deceased to have loaned money to her son who already had considerable savings at that time (para. 23).

63In Andrade v. Andrade, 2016 ONCA 368, 131 O.R. (3d) 532, the mother purchased a home in Toronto in 1974. She borrowed money for a deposit and financed the rest with two mortgages. The home was placed in the name of her oldest son Henry who was 19 at the time and her second daughter Maria Jesus as joint tenants. On the mother’s direction the home was transferred for $2.00 from Henry and Maria Jesus to Henry and another son Joseph, as joint tenants. No matter which children were living at the home, the mother paid for all of the expenses from a bank account into which the earnings of the children residing at the home were paid.

64The Estate Trustee argued that the mother was the beneficial owner of the home. The trial judge disagreed and found that the mother had put no money of her own into the home. The Court of Appeal allowed the appeal and found that money contributed to the mother by the children was a gift which they made towards the contribution of the expenses of the home. As well, the mother had her own sources of income which she used to contribute to household expenses.

65The Court of Appeal focused on the mother’s intention at the time of purchase. The mother considered herself the owner of the house and her adult children went on title because she could not qualify for a mortgage. The Court of Appeal concluded at para. 97 that although the house was in the name of two of her children the intention was not to give them an interest in the house to the exclusion of the other children. The trial judgment was set aside, and the Estate of the mother was declared the beneficial owner of the home.

66In Andrade, the mother contributed virtually none of her own funds to the purchase. She borrowed the downpayment and the rest of the purchase price by way of mortgages. The money that her children contributed to her for expenses was not determinative with respect to beneficial ownership.

67Connie relies on Andrade and argues that being on the mortgage and making contributions is not enough to find a PMRT but still counts towards intention. George (who made submissions on behalf of Connie) pointed out that the children in Andrade did not pay the mortgage whereas in the case at bar, Connie contributed to the mortgage.

68I do not agree with Connie that Andrade assists her position. In the case at bar, there is evidence that the downpayment for Heddle and funds from London Green belonged to Phary and were her direct contributions to Heddle. As such, the facts in this case with respect to the purchase monies are more definitive than in Andrade where the mother had no money of her own to contribute to the purchase price.

69There is no evidence that Connie made any contribution to the purchase of either Heddle or London Green. The fact that Connie’s name was on the mortgage and that she thereby assumed some risk in relation to Heddle is insufficient to rebut the presumption of a PMRT. I further find that there was no intention on the part of Sokly to gift a beneficial interest in Heddle to Connie because of the banking requirement that she go on title and on the mortgage.

70Neither Phary nor Sokly have alleged that the downpayment for Heddle was a gift from Phary. Further, it is clear from Phary’s cognitive limitations that she could not have formed the required intention to make a legal gift.

71As for the downpayment on Heddle being a loan, there is insufficient evidence of intention including any terms related to interest or a repayment schedule.

72Phary’s intention with respect to Heddle is clear. She intended to make it her home and lived there for two decades until she left in 2020 because of family conflict. She also contributed to household expenses throughout. Connie and Sokly never lived at Heddle on a continuous basis. In particular Sokly came and went as he pleased and eventually left permanently to set up a home for his own family. Connie came and went as well but has lived at Heddle continuously and exclusively since 2020.

73Both Connie and Sokly advance an argument that their contributions to expenses to Heddle can ground a claim for a PMRT. I do not agree. In May v. Alsousi et al., 2025 ONSC 795, 176 O.R. (3d) 761, the Respondents argued that mortgage payments should be considered with respect to their beneficial interest in the subject property. The Court determined at para. 38 that such payments could not give rise to a PMRT because the relevant time for assessment of a PMRT is at the time of acquisition. The contributions in question were made years after the purchase and did not establish a PMRT.

74I further find that the contributions to renovations made by Connie and George do not ground a claim for a beneficial interest in Heddle. There was no expert evidence that those renovations (if even completed) increased the value of the property.

75Sokly argues that the funds to purchase London Green came in large part from a “family gift” made by Pharin and therefore the sale proceeds used to pay down the Heddle mortgage ($70,000) cannot be solely attributed to Phary. Connie now also adopts this argument, changing her initial position on this issue. Connie argues that since Phary did not solely contribute to the down payment for London Green, she cannot be credited with the sales proceeds used to pay down the mortgage on Heddle and that the PMRT does not apply. Sokly in cross-examination did not dispute that the proceeds from London Green were used to pay down the Heddle mortgage but that it was a “loan” from Phary which he agrees to pay back on the sale of Heddle. When asked about whether he would pay Phary interest on the loan, his answers were inconsistent ranging from paying her “double”, to “extra” to nothing at all for interest.

76Neither of these positions are reasonable. While Connie claims that the $70,000 contributed from the sales proceeds of London Green to pay down the mortgage on Heddle was intended to benefit the entire family, she has failed to clarify exactly who is to benefit from this and in what proportion. If it was intended to be a gift for the entire family, why was it given to Phary alone and not proportionally divided between the siblings?

77As for Sokly’s position, it is also not reasonable. In order for a loan to be valid, money must be advanced on terms to which both parties agree, which must be sufficiently certain (such as the amount of the loan and terms of repayment) and there must be an intention to create a loan. Without Phary’s knowledge that the funds were advanced to Sokly as a loan, there can be no loan. Further, this completely side-steps the requirement that the loan has terms to which Phary agreed. There is no such evidence.

78Finally, and most importantly, I find that Phary did not have the capacity to enter into a loan arrangement with her brother on her own. The capacity assessment specifically spoke to Phary’s inability to grasp financial transactions.

79The loan is not therefore legally tenable as it lacks the required legal elements including the capacity to enter into such a financial arrangement.

80Sokly claims that the closing costs and downpayment came from money that he received from his in-laws and therefore were not paid by Phary. In cross-examination, Sokly could provide no evidence that this was the case and said that he may have “misremembered” what happened. While Sokly’s credibility will be dealt with in more detail below, I find that his position that the closing costs were paid by him is untenable and unsupported.

81In summary, I find that there is insufficient evidence to support any claim that Phary intended to gift or lend her contributions to the mortgage and purchase of Heddle. A PMRT has been made out. Further, the contributions made by other family members towards household expenses for Heddle were simply that; contributions towards the cost of living at Heddle similar to contributions they would have to make to live anywhere else and which cannot ground a rebuttal to the claim for a resulting trust.

82Given Phary’s total contributions to Heddle in the amount of $124,354.99 ($54,354.93 + $70,000) her contribution to Heddle’s purchase amounts to 61.87%. She is entitled to receive this amount from the sale proceeds on the grounds of a PMRT having been made out.

83A question remains as to whether the entire beneficial ownership of Heddle was held in trust for Phary or only the share pertaining to her actual contributions. In this case, it is not clear that Phary would have qualified for the financing and been able to hold title to Heddle on her own given her financial circumstances. What is more likely is that the plan to have Sokly and Connie take title to Heddle and the mortgage was the only realistic option. That is, without the assistance of Sokly and Connie, it is likely that Heddle could not have been purchased at all. Therefore, the remaining 38.13% interest in Heddle is to be divided between Sokly and Connie subject to the deductions and adjustments set out below.

84I note that in the context of a PMRT the presumption is that the person who advanced the purchase money intended to assume the beneficial interest in the property in proportion to his or her contribution to the purchase price (see Waters’ Law of Trusts in Canada, 5^th edition, at p. 401.)

Sokly’s Withdrawal of $50,036.11 from the Heddle Mortgage

85The PGT seeks to have Sokly disgorge profits on the withdrawal of $50,036.11 from the Heddle mortgage. The PGT’s position is that the equity in Heddle would not have been available but for the $70,000 which Phary contributed to pay down the Heddle mortgage. The PGT’s position is that Sokly took money from Heddle, for which title was held in trust for Phary by Sokly and Connie.

86The result of Sokly’s refinancing of Heddle was that he was able to purchase another property (34 Spruce Grove in Newmarket or “Spruce Grove”) for $230,000. Accordingly, the mortgage payments on Heddle increased and were paid by others as Sokly did not live at Heddle again until he sold Spruce Grove in 2016 for $900,000. Sokly admitted on cross-examination that he made a profit when he sold Spruce Grove. After Spruce Grove, Sokly bought another home in Bradford at 201 Rutherford Road which he conceded that he also sold for a profit.

87The PGT calculates Sokly’s return on his initial investment at $145,792. The calculation is based on the mortgage contribution of $50,036.11 to the purchase price of $230,000 being 21.76% of the purchase price. The total profit was $670,000 ($900,000 - $230,000) and 21.76% of the profit would be $145,792.

88Sokly’s position is that as he was sole owner of Heddle, he had the right to increase the mortgage for his own purposes.

89The PGT argues that as Sokly was holding his share of title to Heddle in trust for Phary, he had a fiduciary obligation to act for Phary’s benefit. In Angeloni v. Estate of Francesco Angeloni, 2021 ONSC 3084, 333 A.C.W.S. (3d) 607, the Court ordered damages for breach of fiduciary duty. In that case, the wife was in a long-term care facility and suffered from dementia. Her husband sold their jointly owned home using a Power of Attorney in his favour and placed all of the proceeds in a joint investment account with his niece who was his Power of Attorney. On his death his niece distributed all of the proceeds in accordance with her uncle’s will, none of which were left to the wife.

90The trial judge held that the husband, as the wife’s Power of Attorney had a fiduciary duty to act for the benefit of his wife. The husband was found to have breached that duty when he transferred the joint house sale proceeds into an account in his name alone. The court adverted to the principles of restitution and deterrence in determining how such breaches should be dealt with (paras. 45-46). The court required the husband’s estate to repay to the wife’s estate (the wife had died in the interim) one-half of the sale proceeds plus accumulated interest.

91While the remedy is an equitable one, it is reasonable to focus on the gain obtained by the breach rather than the loss suffered. As such, disgorgement plus related interest has been used as an equitable remedy in such circumstances (see Strother v. 3464920 Canada Inc., 2007 SCC 24, [2007] 2 S.C.R. 177, at para. 77).

92I find that requiring Sokly to disgorge the profit earned on the mortgage withdrawal in the amount of $145,792 is proportionate to the amount removed and the profit earned and is a satisfactory remedy for his breach of fiduciary duty. As I have already found that Sokly contributed nothing to the purchase price or mortgage for Heddle, it would be inequitable for him to profit from removing funds from the Heddle mortgage.

93Therefore, the sum of $145,792 shall be deducted from Sokly’s share of Heddle (19.05%) and paid to Phary.

Connie’s Withdrawals from the Heddle Line of Credit

94It is undisputed that Connie alone withdrew money from the Line of Credit (“LOC”) secured against Heddle. In 2004, the balance of the LOC registered against Heddle was $60,000. Connie could not provide any evidence as to how that balance arose.

95Connie claims that the LOC was used to pay for household expenses which benefitted her and Phary. However, other than one dental bill of approximately $800 which she paid for Phary, she could not produce any evidence that withdrawals from the LOC benefitted anyone other than her and George. When asked on cross-examination if any money withdrawn from the LOC was for Phary’s benefit her response was, “I don’t know. Maybe. I don’t know. I can’t say…”. And when asked if any of the funds from the LOC were used to pay expenses for Heddle, she responded, “I can’t say that either.”

96In July 2016 Connie transferred $2,000 from the LOC to the joint account she held with Sokly and in September 2009 she transferred $23,000 from the LOC to the same account. Connie was unable to say whether those funds were transferred to her personal account or what they were used for.

97Connie’s position is that she used the LOC to make ends meet as she was responsible for caring for her mother and sister. She has made all payments on the LOC without assistance from any other family member. Connie produced what information she could with respect to the LOC, but it was impossible for her to trace expenditures due to the comingling of funds. In any event Connie agrees to pay the LOC from her share of the sale proceeds of Heddle which she submits should more than cover the LOC.

98The PGT submits, and I agree, that because Connie held title to Heddle in trust for Phary, the only remedy in relation to the LOC is a restitutionary one whereby Phary is made whole. As such, the balance of the LOC as of the date of sale is to be paid out of Connie’s share of sale proceeds.

The 2011 Car Loan

99Connie admitted in cross-examination that in 2011 she borrowed between $15,000-20,000 from Phary to buy a new vehicle. In cross-examination she deposed that she paid Phary back by way of $400 monthly instalments for about a year. Thereafter she paid Phary back by paying her phone bill and various other expenses. Connie could not remember the exact monthly amounts of Phary’s expenses that were “set off” against the car loan. She also could not remember when it was paid off in full.

100By way of an undertaking, Connie produced a chart in April 2022 showing that she re-paid $6,400 of the loan between March 1, 2011, and June 1, 2012. She gave evidence that the full amount has been paid back and that Phary now owes her money for all the caregiving she has provided to Phary over the years. I note that Connie has never brought a claim for compensation for any assistance that she may have provided to Phary.

101The PGT submits that Phary must be made whole and the loan repaid. The PGT relies on T.W.D. v. P.W.S.D., E.M.W. and M.E.J.D., 2004 BCSC 497, [2004] B.C.T.C. 497, at paras. 18 and 24 for the proposition that interest on the loan should be charged at 1% above prime compounded semi-annually on the principal amount to the date of judgment. As such, Connie would owe Phary $30,518.57.

102The evidence on the loan is thin at best. There is no documentary evidence and Connie’s own evidence consists of a chart of payments prepared by her and/or George which lasted one year and then simply a position that she paid for various expenses for Phary which should be sufficient to make up the difference. None of the evidence is corroborated with documents showing amounts of payment.

103While Connie has not made a claim for compensation for caring for Phary, it is clear that Phary benefitted from living with Connie. I accept Connie’s evidence that she would drive Phary to appointments, pay for items for her when they went shopping, and buy her clothing and other essentials. Phary, who did not drive, benefitted from Connie having a car which was often used to take Phary where she needed to go.

104In summary, it is clear that Phary (knowingly or not) lent money to Connie to buy a car from which she indirectly benefitted since Phary could not drive. I accept Connie’s evidence that at least $6,400 of the loan was paid back. As it is impossible to determine whether the loan was entirely paid off or what benefits Phary received in lieu of payments, equitable principles must prevail and Connie shall not be required to repay any portion of the car loan.

105Neither party raised any limitation period issues with respect to the car loan which may well have been relevant, however, I have dismissed the claim on other grounds.

Occupation Rent

106The PGT seeks occupation rent for Phary payable by Connie and George from the date of Connie and George’s exclusive occupation of Heddle in August 2020. Connie and George have refused to vacate or sell Heddle despite originally acknowledging that Phary may have a beneficial interest in it. Phary has indicated that she would like to move back to Heddle if George was not there. By retaining exclusive occupancy of Heddle, the PGT’s position is that Phary has been denied the benefit of living there. The PGT submits that Phary has also been deprived of rental income and sale proceeds.

107Sokly agrees with the PGT’s position and calculations with respect to Heddle. However, his position is that the occupation rent is owed to him because he is the sole owner of Heddle.

108Occupation rent is an equitable remedy which arises out of unjust enrichment to the party occupying the property. Entitlement arises where those entitled to occupy the property have been ousted and those occupying the property do so to the detriment of the beneficial owner (see Dagarsho Holdings Inc. v. Bluestone (2004), 132 A.C.W.S. (3d) 380, 23 R.P.R. (4th) 80 (Ont. S.C.), at para 26). It is generally accepted that those occupying the property should receive credit for mortgage and insurance payments paid.

109The PGT obtained an opinion of market rent for Heddle dated February 21, 2024. The letter of opinion sets the market rent at $3,100 plus utilities as of February 21, 2024. The Letter of Opinion is not expert evidence. Further, there is no evidence of what the market rent would have been from August 2020 to February 21, 2024, the balance of 2024, 2025 or 2026.

110Based on evidence obtained during cross-examination, the PGT submits that Connie and George paid monthly expenses for Heddle of $1,038.77 which includes the mortgage, property taxes, mortgage insurance, home insurance and water heater rental. Connie and George also made payments on the LOC and for their own utilities but these are not credited to them for the purpose of calculating occupation rent.

111The PGT therefore submits that Connie and George owe occupation rent of $2,062 per month since August 2020 or a total of $140,163.64.

112There are several reasons why I decline to order occupation rent in this case. First, the evidence of market rent is inadequate and is not expert evidence. While Connie and George did not provide their own evidence of market rents, the evidence provided by the PGT is insufficient to ground their claim.

113In Korsch v. Hildebrandt et al., 2023 ONSC 2513, 2023 A.C.W.S. 1665, the Estate Trustee sought occupation rent from her brother, sister-in-law and niece who continued to occupy the subject property long after the Estate Trustee had requested that they vacate. The occupation rent was calculated based on the affidavit of a real estate agent who provided market rental rates for the property for similar houses in the applicable years. The trial judge calculated the occupation rent based on the rent for the relevant years.

114In the case at bar, there is no affidavit nor any evidence of occupation rent for the periods not covered by the letter. The letter states that rental prices in that neighbourhood have been stable for the last two years based on a Comparative Market Analysis which was attached to the letter. Assuming that untested statement is reliable, the rent of $3100 per month would apply to the period of February 21, 2022 to February 21, 2024. There is no evidence of what the market rent would have been from August 2020 to February 20, 2022 or for the period of February 21, 2024 to present.

115In addition, there is the issue that Connie remains on title to the Heddle. Based on the findings in this judgment, she retains a 19.05% interest in the property. Even if there was sufficient expert evidence of the appropriate market rent, Phary’s share would be 61.87% or $1917.97 per month. Deducting the payments made by Connie and George would leave $879.20 per month owed to Phary. Given that there is no evidence of market rents outside the two-year window set out in the realtor’s letter, the maximum occupation rent (if owed) would be $21,100.08.

116However, there is a further problem with respect to occupation rent. It is unclear to this court whether or not Phary was “ousted” from Heddle. Connie’s position is that in 2020, Sokly wanted to sell Heddle and evict everyone who was living there. This prompted Connie to commence her Application in July 2020. Sokly was served with the Application on August 9, 2020. According to Connie, Vothy came to Heddle on August 11, 2020 and picked up Phary. Phary has never returned. When Phary attempted to retrieve her personal property, Connie had changed the door code and insisted that the police be present when Phary and Vothy attended to collect Phary’s personal property.

117In her guardianship decision, Justice Vermette raised concerns about the lack of response from Sokly with respect to the removal of Phary after she had lived at Heddle for 22 years. Connie’s position is that Sokly and Vothy conspired to remove Phary in the hopes that she would support Sokly’s position in the Guardianship litigation. Phary has not worked since she was removed from Heddle and is currently living on social assistance.

118Sokly denies that the timing of Phary’s exit from Heddle had anything to do with him being served with Connie’s Application for Guardianship. Sokly denied that it was his intention to have Phary live with him permanently but that is what transpired.

119In Vothy’s affidavit sworn January 28, 2022, Vothy deposed that after their mother died, Connie and George became aggressive with Phary and were often critical of her. She deposed that both Connie and George are alcoholics and when they drink, they are abusive towards Phary. Phary called Vothy almost every day and would describe these incidents to Vothy in detail. Vothy submitted that Phary was afraid of Connie and called Vothy after a particularly violent outburst by Connie in August 2020 where Connie was throwing things at Phary. Phary never returned. Vothy deposed that had Phary asked to go back to Heddle she would have taken Phary back, but Phary never asked to return. It should be noted that Vothy’s evidence in this regard comes solely from Phary who is not a good historian according to the capacity assessor.

120Finally, Phary’s evidence is that she wants to return to Heddle to live with Connie so long as George is not there. It would be odd for Phary to want to return to Heddle to live with the individual whom Vothy insists was abusive towards her.

121Based on the available evidence it is therefore unclear as to whether Phary left Heddle of her own accord, whether she left because of her fear of Connie and George or whether Sokly or Vothy took Phary (willingly or not) and are using Phary as leverage in this litigation.

122As a result, this Court is uncertain as to whether Phary was actually “ousted” from Heddle or whether she wanted to leave and live with Vothy and/or Sokly. Given the contradictory evidence of ouster, the fact that Connie retains an interest in Heddle, and the unreliable evidence of market rent, I decline to order that Connie and George pay occupation rent.

123I dismiss Sokly’s claim for occupation rent to be paid to him as he has provided no evidence of market rents or any calculation of what he claims to be owed. He claims to rely on the PGT’s evidence which I have also rejected.

The Alleged Unauthorized Withdrawal by Connie

124Sokly alleges that Connie transferred $10,000 from their joint account to her personal account on July 26, 2018, without his authorization. Sokly claims repayment of this amount from Connie.

125Connie claims this was a gift to her from Sokly as he made a profit on his house when he sold it in 2018 and he wanted to help Connie out. This does not line up with other evidence which recorded the sale of Spruce Grove in 2016, not 2018.

126In any event, there is no corroborating documentation with respect to the withdrawal being a gift or a loan. Further, there is no documentation confirming that Sokly complained to either the bank or Connie at the time of the transfer. As it was a joint account with full access by either party, there is insufficient evidence to conclude that the transfer was wrongful or unauthorized. The claim is dismissed.

Credibility

127This is a case in which some of the parties have changed their evidence in ways which make it difficult to accept their evidence as reliable.

128Starting with Sokly, his position during the Guardianship proceeding in 2022 was that none of the money for the downpayment and closing costs came from Phary. He insisted that all of those funds came from his wife’s parents. However, in a text message sent to Connie on June 14, 2020, Sokly acknowledged that Phary gave them $125,000 to purchase Heddle. This amount works out roughly to the amount for the downpayment, closing costs and the $70,000 paid down on the Heddle mortgage after closing.

129During this proceeding, Sokly asked the court not to rely on that text as it was not true. In his examination on April 11, 2022, Sokly goes further and stated that only after this litigation commenced did he take the position that his wife’s parents paid the down payment and closing costs. He confirmed at that same examination that he had no documents to support this position. He confirmed that at the time Heddle was purchased he was working at manual labour jobs earning $10 per hour. He could produce no documents to show that he had any savings or sufficient income to purchase Heddle.

130Sokly insists that he is the sole owner of Heddle and that he paid all of the expenses for Heddle from 1999 to 2003. When various bills were presented to him which had clearly been paid by Connie, Sokly deposed that he gave Connie the money for those bills. He later deposed that he was not sure and that Connie may have paid for some of the bills.

131As discussed earlier in these reasons, while Sokly reluctantly acknowledges that Phary paid $70,000 towards the Heddle mortgage after closing, he views this as a loan which he will repay to Phary after the sale of Heddle. He does not offer to pay any interest on the loan, nor does he address the issue of Phary lacking the capacity to make such a loan.

132In short, I find that Sokly’s evidence is unreliable and self-serving. When confronted with the 2022 text message which contradicted his position about the down payment, he simply said that the text message was not true. While baldly stating that his in-laws paid for the downpayment and closing costs, he could not produce any evidence to corroborate this.

133Connie’s change of position in this litigation is also problematic. When she advanced her Application for Guardianship of Phary, her position was that she and Phary were the owners of Heddle based on Phary’s contributions. As of December 2025, Connie has changed her position now claiming that the gift from Pharin of $50,000 was a gift to the entire family and therefore the proceeds from London Green were intended to benefit the family. She takes the position that Phary has no interest in Heddle at all and that she is entitled to sole ownership. Alternatively, she concedes that Phary’s interest would be her contribution to the downpayment and closing costs or 26% of the value of Heddle. These positions are advanced notwithstanding the June 14, 2020, text to Sokly in which she confirms Phary’s contribution to Heddle of $125,000.

134Similar to George, Connie’s evidence is unreliable and self-serving. She wants to remain at Heddle with George. She refutes both Phary’s and Sokly’s claims without any corroboration.

135Connie’s evidence must be rejected based on the doctrine of equitable estoppel. As per Bowlby v. Oliver, 2025 ONSC 5669, 2025 A.C.W.S. 4713, at para. 63, equitable principles prevent a litigant from relying on facts as true for one purpose and then later saying the same facts are not true to suit a different purpose. In her Guardianship Application, Connie took the position that Phary had contributed to the purchase of Heddle and that she and Phary were the rightful owners. In December 2025 that position changed and Connie now submits that the gift from Pharin was intended for the family and that therefore other family members have an interest in Heddle although she does not state who or what proportional interest.

136Both Connie and Sokly agreed that Phary had contributed approximately $125,000 to Heddle in their text exchange of June 2022. They have now denied that this is case as it appears that the new position better suits their purpose.

137In Sokly’s case, his failure to produce even a scintilla of evidence to corroborate his claim that the downpayment came from his in-laws and the evidence from Connie that Sokly was earning very little income at the time of the Heddle purchase, permit this court to draw an adverse inference. That is, the lack of corroboration and the previous findings with respect to Sokly permit this Court to draw the conclusion that Sokly has failed to prove that he made any contribution whatsoever to the purchase of Heddle.

138Finally, section 14 of the Evidence Act, R.S.O. 1990, c.E.23 does not permit Sokly and Connie to rely on their own evidence in a claim against Phary who is incapable. Their evidence must be corroborated by some other material evidence in order to be accepted. As already discussed above, Sokly and Connie have failed to corroborate their assertions that they contributed to the purchase of Heddle or that they should retain anything other than a small interest in it after that of Phary has been considered.

139Given all of the above, I find that neither Sokly nor Connie’s evidence can be relied upon especially where it is uncorroborated or where it contradicts a previous earlier position.

Orders and Costs

140Given all of the above, I make the following orders:

a. Title to Heddle shall immediately vest in Phary.

b. The PGT, or its designate, shall arrange for the listing and sale of Heddle.

c. The Agreement of Purchase and Sale and choice of agent shall be negotiated by the PGT as Phary’s Guardian of Property.

d. George and Connie must vacate Heddle within 30 days of the closing date. Connie and George are to pay all expenses in relation to Heddle until the date they vacate. Neither Connie nor Sokly may increase the mortgage or LOC on Heddle pending sale or place any new encumbrance on Heddle. If any property tax, mortgage or LOC payments remain outstanding on the date of sale, they shall be paid from Connie’s share of sale proceeds,

e. George and Connie are ordered to cooperate with respect to inspections of the property by realtors or others engaged by the PGT, pending sale.

f. The PGT, in its discretion, may determine if certain improvements are required to be made to Heddle prior to sale. The cost of those improvements are to be reimbursed to the PGT from the gross sale proceeds.

g. Once sold, and after the payment of real estate commission, legal fees, renovations (if required) and the LOC, the net sale proceeds shall be divided as follows:

i. Phary is to receive 61.87% payable to the PGT in trust for Phary plus the other amounts set out below.

ii. 19.06% to Sokly. From Sokly’s share, he shall pay to the PGT in trust for Phary the sum of $145,792. In the event there are insufficient funds from Sokly’s share to pay $145,792, he shall pay the balance personally to the PGT in trust for Phary within 90 days of the date of sale.

iii. 19.06% to Connie. From Connie’s share, she shall pay the full amount owing on the LOC plus $40,000 in costs as set out below. In the event there are insufficient funds to pay the costs after payment of the LOC from her share, Connie shall pay the balance personally to the PGT in trust for Phary within 90 days of the date of sale.

iv. Once all funds from the sale proceeds have been disbursed, the PGT shall use the funds available for Phary’s care and needs and Phary shall provide input as to where she wishes to live. If she chooses to remain with Sokly, the PGT may determine, in its discretion, what amounts may be needed to improve Phary’s living space.

Costs

141The parties all served Offers to Settle. The PGT offered to have Heddle vest in Phary’s name and that Phary would indemnify Connie and Sokly for any amounts owing on the LOC and the mortgage. Heddle would be listed for sale and Connie and George would continue to pay the expenses for Heddle until sale. Connie and George would vacate Heddle 30 days prior to the closing date.

142Further, Sokly would not be required to repay the $50,000 he removed from the equity of Heddle. Connie would not be required to repay the car loan, the balance of the line of credit, nor would she be required to pay any occupation rent. Connie would receive $70,000 from the net sale proceeds and Sokly would also receive $70,000 but the funds directed to Sokly would be used to renovate Phary’s living space at his home.

143Connie and Sokly’s offers were similar to that of the PGT but Connie sought $250,000 from the sale proceeds and agreed that Sokly should receive $30,000. Sokly’s offer required that he and Connie would each receive $100,000 from the net sale proceeds. Sokly would receive a further $30,000 from the net sale proceeds to be used towards renovations for Phary’s living space in his home.

144The PGT’s offer was extremely generous but it was not accepted. Sokly and Connie’s offers completely disregard any risk that they would be unable to prove their alleged contribution to the purchase of Heddle. Connie’s offer in particular lacked a connection to reality given the allegations of her treatment of Phary, her exclusive occupation of Heddle, and her lack of evidence with respect to refuting the car loan or personal expenses paid using the LOC.

145The PGT’s Bill of Costs is more than reasonable. The PGT seeks partial indemnity costs of $82,889 and substantial indemnity costs of $121,595.

146The PGT was not successful on all issues. Connie was not required to repay the car loan or pay any occupation rent. Sokly had no success with respect to his request that Connie pay him occupation rent or any allegedly unauthorized amounts taken from their joint account. As well, I found that Sokly’s position in this litigation on substantive issues was unreasonable.

147As such I fix the PGT’s all-inclusive costs at $70,000. Sokly shall pay $40,000 of the costs owed and Connie shall pay $30,000. Connie’s share of costs owed shall be deducted from her share of sale proceeds. Sokly’s share may be set off against the cost of renovations to Phary’s living space with proof of payment to the PGT.

Cory A. Gilmore