



COURT OF APPEAL FOR ONTARIO

CITATION: Peters v. Swayze, 2018 ONCA 189

DATE: 20180226

DOCKET: C63711

Sharpe, Rouleau and Benotto JJ.A.

BETWEEN

Deanna Lynn Peters

Applicant (Appellant)

and

Howard James Swayze

Respondent (Respondent)

Lisa DeLong and Elizabeth Abraham, for the appellant

Gerry Smits, for the respondent

Heard: February 16, 2018

On appeal from the order of Justice R. John Harper of the
    Superior Court of Justice, dated April 7, 2017, with reasons reported at 2017
    ONSC 1779.

REASONS FOR DECISION

[1]

Deanna Peters appeals the dismissal of her claim for a constructive
    trust interest in a home owned by her former common law partner Howard Swayze.

[2]

Peters and Swayze cohabited for 15 years from 2000 to 2015. When they
    began living together, Swayze took title to a home that he had owned with his
    former spouse. There was no equity in the home. Peters and Swayze lived for two
    years in Peters apartment and then, in 2002, they moved to the home that
    Swayze had acquired from his former spouse.

[3]

By May 2005, the parties had acquired significant debt. They
    consolidated their combined debt with a loan with CitiFinancial for $57,290.
    Swayze was the borrower and Peters co-signed the loan. Swayze testified that
    the carrying costs of the loan became too much and he refinanced the debt with
    a mortgage on his home in the amount of $187,568. CitiFinancial was paid
    $57,000 and, after other legal expenses, Swayze was paid $19,000 from the
    proceeds of that mortgage. Peters was not liable for the mortgage.

[4]

There was evidence that, in 2016, the home was worth between $260,000
    and $320,000. The balance owing on the mortgage at that time was approximately
    $157,000, although Swayze then made a $17,000 lump sum payment against the
    principal.

[5]

At no time did the parties have joint bank accounts or joint savings.
    Peters was on Swayzes benefits from work and she and her daughter were on
    Swayzes car insurance as secondary drivers.

[6]

Peters submits that the trial judge erred in dismissing her claim to a
    constructive trust interest in the home. She claims that she is entitled to
    half the equity in the home on the basis of her contributions during
    cohabitation. She points to the fact that she paid half the monthly mortgage
    costs of $1,000, paid the phone, internet and cable, and bought food. She also
    relies on her work cleaning the home and working in the garden, which she
    claims benefitted Swayze and increased the value of the home. These facts, Peters
    submits, establish unjust enrichment entitling her to half the increase in the
    equity of the home as a joint family venture.

[7]

Peters does not suggest that the trial judge erred in his articulation
    of the law. The Supreme Court of Canada set out the law on unjust enrichment
    arising from a common law relationship in
Kerr v. Baranow
,
2011 SCC 10, [2011] 1 S.C.R. 269. The
    court: (i) determines if there has been an unjust enrichment, by determining whether
    the defendant has been enriched and the claimant has suffered a corresponding deprivation;
    if so then (ii) there must be no reason in law or justice for the defendant to
    keep the benefits conferred by the claimant.

[8]

If an unjust enrichment has been established, the concept of joint
    family venture comes into play when considering remedy. The
Kerr v. Baranow
factors to be considered in determining whether a joint family venture exists
    are:

·

Mutual effort  did the parties pool their efforts and work towards
    a common goal?

·

Economic integration  how extensively were the parties finances
    integrated?

·

Actual intent  did the parties intend to have their lives economically
    intertwined?

·

Priority of the family  to what extent did the parties give
    priority to the family in their decision making?

[9]

The determination of whether there has been unjust enrichment and a joint
    family venture are questions of fact, which Peters bears the onus of establishing.

[10]

The
    trial judge found that unjust enrichment had not been established. Peters was
    never on title to the home and never financially liable for the mortgage on the
    home. She did not pay for capital repairs, insurance, or property taxes. The
    $500 that Peters paid per month was essentially rent for herself and her daughter
    who lived in the home. Although she paid for the phone, internet and cable, she
    and her daughter were the primary users of these services. There was no evidence
    of how much the garden increased the value of the home and the trial judge
    found that gardening was really just a hobby for her.

[11]

Having
    not found unjust enrichment, the trial judge was not required to consider
    whether a joint family venture existed. He nonetheless did so and concluded
    that wealth of the parties was not created from the fruits of the domestic and
    financial relationship. The parties earned about the same income and kept their
    finances separate. They did not pool their resources, integrate their financial
    lives or demonstrate an intention to join their finances. They in fact lived
    separately in the home.

[12]

We
    see no error of fact or law made by the trial judge.

[13]

The
    appeal is dismissed with costs payable to Swayze fixed at $5,000 inclusive of
    disbursements and taxes.

Robert J. Sharpe J.A.

Paul Rouleau J.A.

M.L. Benotto J.A.


