



COURT OF APPEAL FOR ONTARIO

CITATION: Walters v. Nusseiri, 2020 ONCA 615

DATE: 20201002

DOCKET: C66495

Pepall, Benotto and Coroza JJ.A.

BETWEEN

Errol M. Walters

Plaintiff/Defendant by Counterclaim

(Appellant)

and

Lubna (a.k.a. Susan) Nusseiri

Defendant/Plaintiff by Counterclaim

(Respondent)

Harvey A. Swartz, for the
    appellant

Sukh Jagpal, for the
    respondent

Heard: in writing

On appeal from the judgment
    of Justice Cynthia Petersen of the Superior Court of Justice, dated January 2, 2019,
    with reasons reported at 2019 ONSC 22.

REASONS FOR DECISION

Introduction

[1]

The appellant, Errol Walters, appeals from the trial judges decision
    dismissing his action claiming entitlement to a share of the proceeds of sale
    of a residential property in Brampton, Ontario (the Property), and granting
    the respondent, Lubna Nusseiris, counterclaim to the proceeds based on a
    resulting trust.

Background Facts

[2]

The appellant and the respondent were involved in a relationship. They
    met in 2001 and never married. The nature of the relationship was in dispute. The
    respondent claimed he was a committed common law spouse who contributed
    financially to the initial purchase of the Property and to the carrying costs
    of the mortgage, property tax and utilities during the time that he lived there.
    The appellant claimed that she was an exploited sex worker and that the respondent
    was a controlling pimp who took her earnings and lived off of them.

[3]

The respondent purchased the Property in her name alone on July 29, 2005.
    Title was then transferred to both parties as joint tenants two months later on
    September 28, 2005. The trial judge found that the Property was the appellants
    principal residence from 2005 until 2009, when the parties ended their
    relationship and the appellant moved out. The Property was then sold in 2016.

[4]

When the Property was sold, the respondent received half of the proceeds
    of the sale. A dispute arose over the entitlement to the other half of the
    proceeds, an amount of $169,774.01. The appellant claimed that he was entitled
    to this share of the proceeds because he was a registered 50 percent owner of
    the Property. For her part, the respondent counterclaimed that the transfer of
    title in the Property to the appellant was invalid because of duress or undue
    influence. In the alternative, she argued that since the transfer to the
    appellant was gratuitous, he held his interest in the Property for her benefit,
    based on the doctrine of resulting trust.

Trial Judges Decision

[5]

After a three-day trial, the trial judge dismissed the appellants claim
    and concluded that his half interest in the Property was held in trust for the
    respondents benefit. She granted the respondents counterclaim and ordered
    that the other half of the proceeds of sale be released to her immediately. The
    trial judge found it unnecessary to deal with the respondents argument that
    the transfer was invalid because of undue influence or duress.

[6]

In very detailed and comprehensive reasons, the trial judge found that
    the appellant controlled the activities of the respondent and exploited her
    financially, living in the Property without contributing anything to expenses.
    She described the appellant as a domineering and parasitic partner and
    specifically found that the appellant confiscated the respondents income from
    sex work until he moved out in 2009.

[7]

The trial judge went on to find that the appellant made no contribution
    to the initial purchase of the Property in July 2005 and that the respondents
    transfer of 50 percent of her ownership interest to the appellant gave rise to
    a presumptive resulting trust. The trial judge held that the presumption had
    not been rebutted since the appellant led no evidence that the respondent
    intended to transfer the half interest to him as a gift.

[8]

Although the appellant did not advance a constructive trust claim, the
    trial judge also considered whether he was entitled to half or some other share
    of the proceeds because of his contributions to renovations to the Property.
    She concluded that there was no basis to impose a constructive trust in the
    appellants favour, because his work on the Property did not unjustly enrich
    the respondent.

Issues on Appeal

[9]

On appeal, the appellant argues that the trial judge erred by:

(i)

misapprehending the principles of resulting trust and the presumption of
    advancement;

(ii)

accepting
    the respondents evidence, even though she found that the respondent had
    exaggerated during her testimony;

(iii)

ignoring
    evidence that the appellant had contributed financially to the down payment for
    the Property;

(iv)ignoring evidence from a real estate lawyer who
    testified that one of the parties told him that the appellant and respondent
    had been cohabiting for more than three years before the purchase of the
    Property;

(v)

ignoring
    the appellants financial contributions to the mortgage on the Property until
    he moved out in 2009; and

(vi)ignoring the evidence of the appellant and his
    father that they made numerous improvements to the Property.

Analysis

[10]

We
    do not accept any of the appellants arguments. In our view, the appellant is
    inviting this court to retry the case by asking this court to revisit many of
    the careful factual findings made by the trial judge. Those findings of fact
    are owed deference, and we see no basis to interfere with them. Each of the
    appellants arguments can be dealt with briefly.

[11]

First,
    the trial judge did not misapprehend the principles of resulting trust and the
    presumption of advancement. Her reasons carefully track the jurisprudence on
    the presumptions of resulting trust and advancement from the Supreme Court of
    Canada:
Kerr v. Baranow
, 2011 SCC 10, [2011] S.C.R. 269, at para. 20;
Pecore
    v. Pecore
, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 24. She concluded
    that the presumption of resulting trust applied to these unmarried parties
    because there was a gratuitous property conveyance between them. The trial
    judge also examined s. 14 of the
Family Law Act
, R.S.O. 1990, c.F.3,
    and held that the presumption of joint tenancy did not apply. The parties were
    never married nor were they spouses within the meaning of the Act. We have not
    been directed to any error in the trial judges review of the principles that
    would justify this courts intervention.

[12]

Second,
    although the trial judge found that the respondent had a tendency for hyperbole,
    she was perfectly entitled to prefer the respondents evidence over the
    evidence of the appellant. Nor did the trial judges finding mean that she was
    required to wholly reject the evidence of the respondent. A trial judge can believe
    some, none or all of a witnesss evidence. We see no error in her credibility
    assessment.

[13]

Third,
    the trial judge did not ignore the appellants evidence that he had contributed
    to the down payment of the Property. She considered the appellants claim and expressly
    rejected it. In rejecting his evidence, the trial judge considered the
    testimony of both parties and the documentary evidence. She rejected the
    appellants contention that he used insurance benefits in connection with two
    separate motor vehicle accidents to contribute to the purchase. Indeed, the
    trial judge made very strong findings of credibility against the appellant and
    concluded that his evidence was riddled with internal contradictions, multiple
    inconsistencies, frequent implausibility and apparent fabrication. These findings
    were clearly open to her.

[14]

Fourth,
    the trial judge did not ignore the evidence from the solicitor who handled the
    real estate transactions of the Property in 2005. The appellant led evidence
    from the solicitor to establish that he was in a common law relationship and
    cohabitating with the respondent since 2002. According to the solicitor, he was
    told that the parties had been living in a common law relationship for over three
    years before the purchase of the Property in 2005. The trial judge noted that
    the fact that the solicitor was told by one of the parties that they were
    common law spouses was an out-of-court hearsay statement, and not proof that
    they were indeed spouses. Instead, the trial judge rejected the appellants
    position that he was in a common law marriage with the respondent since 2002. She
    accepted the respondents testimony that the appellant misrepresented their
    status to the solicitor in order to avoid paying land transfer taxes. The
    solicitor confirmed in his evidence that taxes would have been imposed had the
    parties not been common law spouses.

[15]

Fifth,
    the trial judge did not ignore the appellants evidence that he made financial
    contributions to the mortgage on the Property until he moved out in 2009. Again,
    the trial judge expressly rejected this evidence because she found the
    appellant had no employment income throughout the entire relationship and that
    the appellant lived solely from the earnings of the respondent.

[16]

Finally,
    the trial judge did not ignore the evidence of the appellant and his father
    that they made numerous improvements to the Property. The trial judge
    considered this evidence in dealing with a possible constructive trust claim. The
    trial judge assessed the appellants claim that he did some exterior stone
    work, refinished a deck, replaced a closet door, put up walls in the basement
    and built a fireplace in the living room. The trial judge found that there was
    insufficient evidence to establish that this work enhanced the value of the Property
    and noted that all the work had to be redone after the appellant moved out in
    2009. Her conclusion that there was no basis to find that the respondent was
    enriched by the appellants work on the Property was fully supported by the
    evidence.

Disposition

[17]

The
    appeal is dismissed. The parties may make brief submissions of two to three
    pages on costs within ten days of the release of this decision.

S.E. Pepall J.A.

M.L. Benotto J.A.

S. Coroza J.A.


