



COURT OF APPEAL FOR ONTARIO

CITATION: Mullings v. Robertson, 2019 ONCA 979

DATE: 20191213

DOCKET: C66780

Lauwers, Paciocco and Fairburn JJ.A.

BETWEEN

Owen Cornelius Mullings

Appellant

and

Jacqueline Alice Dian Robertson

Respondent

Owen Cornelius Mullings, appearing in person

Lauri Daitchman, for the respondent

Heard: November 29, 2019

On appeal from the judgment of Justice Ronald P. Kaufman
    of the Superior Court of Justice, dated February 28, 2019.

REASONS FOR DECISION

OVERVIEW

[1]

Mr. Owen Mullings, the appellant, and Ms. Jacqueline Robertson, the
    respondent, were common law partners. On February 28, 2019, the trial judge
    released a Family Court decision resolving numerous issues raised by the
    appellant and respondent arising out of their separation. The appellant appeals
    several of the rulings that we will identify below. He also seeks leave to
    offer fresh evidence in support of his appeals.

[2]

An issue was raised as to our jurisdiction to hear this appeal. Many
    appeals from the Family Branch of the Superior Court of Justice lie to the
    Divisional Court. Normally this appeal would have been properly heard by that
    court, except for the fact that the appellant also advanced a breach of
    contract claim for more than $50,000 in damages. Our court has jurisdiction
    over the breach of contract claim, the dismissal of which is also appealed
    from. This provides us with jurisdiction to hear all the matters arising in the
    proceedings under the
Courts of Justice Act
, R.S.O. 1990, c. C-43, s. 6(2).

[3]

The grounds of appeal raised by the appellant can conveniently be
    organized according to three general themes: (1) appeals of financial rulings;
    (2) appeals of property related claims; and (3) the funds withdrawn claim.

(1)

APPEALS OF FINANCIAL RULINGS

[4]

The appellant challenges factual decisions made by the trial judge
    relating to the financial contributions that he and Ms. Robertson made to the
    relationship. For example, he contends that in addition to other factual
    errors, the trial judge erred in: establishing the separation date, calculating
    joint family expenditures, and evaluating his contribution to his dependant,
    adult daughters education expenses. The impugned factual findings bear upon the
    trial judges rulings, including: (1) the trial judges denial of the
    appellants claim to spousal support; (2) the trial judges finding that there
    was no joint family venture; (3) the trial judges decision to order the
    appellant to pay retroactive child support and make payments under the
Child
    Support Guidelines
, O-Reg. 391/97, s. 7, relating to his daughters
    education expenses; and (4) the trial judges failure to allow the appellants
    unjust enrichment claim.

[5]

We would deny these grounds of appeal. The appellant is effectively
    attempting to reargue the underlying factual determinations. The appellant has
    not demonstrated that the trial judge committed any legal errors, or palpable
    and overriding errors of fact. The trial judge was entitled to come to the
    findings he did on the evidence before him.

[6]

Those factual findings also explain why the trial judge did not address
    or grant the unjust enrichment claim. This did not prejudice the appellant
    because that claim could not succeed on the facts the trial judge found.

[7]

Moreover, we see nothing in the proposed fresh evidence, or in the
    documents from the evidentiary record included in Mr. Mullings email of
    December 2, 2019, that could have affected the result on any of these
    determinations. We therefore deny leave to admit the fresh evidence in these
    proceedings.

(2)

APPEALS OF PROPERTY-RELATED CLAIMS

[8]

A number of the grounds of appeal raised by the appellant relate to land
    held during the relationship, in particular the Shirrick property and the
    Magdalan property. We would not give effect to these grounds of appeal,
    either.

[9]

When the Shirrick property was acquired, it was placed into the
    respondents name alone. The appellant contends that this property was meant to
    be put in both of their names, but the respondent abused her power of attorney
    and her fiduciary obligations by placing the property in her own name.

[10]

The parties agree that prior to their separation, the Shirrick property
    was placed in both of their names, as joint tenants, and that it was jointly
    owned at the time of separation. The trial judge relied upon joint ownership at
    the time of separation to determine that the appellant and the respondent are each
    entitled to 50% of the net value of the Shirrick property, subject to further
    orders. He then ordered a reduction in the appellants share to account for the
    expenses incurred by the respondent in maintaining the property since the
    separation.

[11]

The appellant claims that the trial judge erred with respect to the
    Shirrick property by:

·

not
    remedying the respondents breaches in wrongly placing the property in her own
    name when it was initially acquired;

·

finding
    that the property was held in joint tenancy at the time of the trial;

·

acting
    on the joint ownership of the property despite the appellants one-sided
    financial contributions to the acquisition of the property; and

·

reducing
    the appellants share based on the respondents maintenance expenses, when the
    trial judge should have set off the respondents share, given that she occupied
    the premises without rent payment to him.

[12]

We disagree with each of these grounds of appeal.

[13]

It is not contested that the Shirrick property was jointly owned at the
    time of separation. Given this fact, the more remote history of how the
    respondent came, for a time, to be the sole owner of the Shirrick property is
    immaterial.

[14]

It is conceded by the respondent that the trial judge misapprehended the
    evidence by failing to note that the joint tenancy was severed after separation
    but before the trial, and that thereafter the property was held as
    tenants-in-common. However, whether title was held as joint tenants or as
    tenants-in-common is also immaterial. What matters is that at the time of
    separation, the Shirrick property was jointly owned.

[15]

The trial judge was entitled to base his determination of the relative
    interests of the parties in the Shirrick home on this joint ownership at the
    time of separation. The trial judge was also entitled to reject the appellants
    contention that he contributed more and is therefore entitled to an increased
    share.

[16]

Similarly, the trial judge was entitled to reduce the appellants share
    for maintenance expenses and to decline to set-off occupation rent expenses.
    These were discretionary determinations for the trial judge to make, based on
    factual findings he was entitled to make.

[17]

The appellants claim relating to the Magdalan property is based on his
    contention that he sustained damages as a result of the respondents refusal to
    close the transaction in which the Magdalan property was acquired. He argues that
    the respondent had agreed to participate in the purchase, but later refused to
    do so, forcing him to purchase it on his own in order to mitigate the damage
    that would be incurred if the transaction did not close. The appellant claims
    that he ultimately lost $41,000 on the sale of the property, and incurred
    additional expenses, which he attributes to the respondents refusal to
    participate in the purchase.

[18]

The trial judge denied the Magdalan property claim because he did not
    accept, on the evidence, that the loss was caused by the respondents failure
    to participate in the purchase. He also appears to have held that the
    limitation period under the
Limitations Act
, 2002
, S.O. 2002,
    c. 24, Sch B expired and barred this claim.

[19]

The appellant contends that the trial judge erred in his factual
    findings relating to causation. He also urges that the trial judge erred in law
    in considering the two-year limitation period provided for in the
Limitations
    Act
, 2002
, because in the appellants view, the correct limitation
    period is ten years pursuant to the
Real Property Limitations Act
,
    R.S.O. 1990. c. L.15, s. 23(1).

[20]

We disagree. We are far from persuaded that s. 23(1) of the
Real
    Property Limitations Act
applies. The appellants claim is not to recover
    the land or an interest in the land. Instead, his claim is for damages arising
    from a breach of an alleged contract relating to land. However, we need not
    decide this issue because there is no basis for interfering with the trial
    judges conclusion that the failure by the respondent to close the transaction
    did not cause the loss on the resale of the Magdalan property. Once again, the
    facts supporting this determination were for the trial judge to make, as was
    this conclusion.

(3)

THE FUNDS WITHDRAWN

[21]

Finally, the appellant argues that the trial judge erred in not awarding
    damages for funds he claims were wrongfully withdrawn by the respondent from
    his bank accounts. On the consent of the parties, the trial judge resolved this
    claim by setting-off the amount of the allegedly wrongfully withdrawn funds against
    a claim by the respondent for an accounting of funds from the sale of her
    Jamaican property. We see no basis upon which the appellant can now retract his
    consent to that disposition, or to find that the trial judges acceptance of
    the parties agreement was in error. This ground of appeal is denied.

CONCLUSION

[22]

The appeal is dismissed. We award costs to the respondent in the amount
    of $29,800.00, inclusive of disbursements and HST.

P. Lauwers J.A.

David M. Paciocco
    J.A.

Fairburn J.A.


