



COURT OF APPEAL
    FOR ONTARIO

CITATION: Rivas v. Milionis, 2018 ONCA 845

DATE: 20181023

DOCKET: C64367

Strathy C.J.O., Nordheimer J.A. and McKinnon J. (
ad
    hoc
)

BETWEEN

Aliki Effie Milionis

Applicant

and

Donald Xavier Rivas

Respondent (Respondent)

and

Taxiarchis Milionis and
    Tsambica Milionis

Appellants (Added Parties)

Patrick Di Monte, for the appellants

Paul Slan, for the respondent

Heard:  October 18, 2018

On appeal from the order of Justice Mario D. Faieta of
    the Superior Court of Justice, dated August 25, 2017 with reasons reported at
    2017 ONSC 5001.

REASONS FOR DECISION

[1]

The appellants appeal from the summary judgment granted by the motion
    judge in favour of the respondent in which the motion judge found that there
    were no monies due and owing under a mortgage.

[2]

This issue arises in the context of a family law proceeding between the
    applicant wife and the respondent husband.  The appellants are the parents of
    the wife and were added as parties to the proceeding because of the existence
    of a mortgage on the matrimonial home in which the respondent and his wife were
    the mortgagors and the appellants were the mortgagees.  The respondent sought
    to have the mortgage removed from the Net Family Property calculations because
    it was invalid.

[3]

The central issue is whether the mortgage secures loans made by the
    appellants to the respondent and his wife or whether the monies advanced by the
    appellants were, in fact, gifts.  The motion judge concluded the latter and
    that, consequently, there were no advances made under, or secured by, the
    mortgage.

[4]

For the purposes of this appeal, it is not necessary to delve deeply
    into the facts.  They are set out in detail in the motion judges reasons.  The
    applicant wife is the sole child of the appellants. She and the respondent have
    five children.  In the course of their marriage, they purchased a sequence of
    family homes over a period of five years, all with the financial assistance of
    the appellants.

[5]

The current matrimonial home was purchased in 2000.  There was a
    conventional mortgage given as part of the purchase.  In May 2004, the
    respondent changed employment with a consequent reduction in his income.  This
    development placed the respondent and his wife in a tight financial situation. 
    The respondents wife brought this situation to the attention of her parents who
    provided some initial financial assistance.  Eventually, the appellants agreed
    to provide further financial assistance to their daughter and the respondent by
    agreeing to pay off the existing mortgage.  While the appellants agree that
    they did this, they say that the funds they provided to pay off the mortgage
    were made by way of a loan and not as a gift.

[6]

The discussions about paying-off the existing conventional mortgage
    began in mid-2004 as a consequence of the financial problems that the
    respondent and his wife were experiencing.  That mortgage was actually paid off
    in February 2005.  In July 2005, the mortgage in question was registered on
    title.

[7]

The appellants say that the mortgage was registered on title to secure
    the loans that they had made to their daughter and the respondent that
    permitted them to pay off the existing mortgage.  The delay in registering the
    mortgage, according to the appellants, arose from the fact that they left the
    country after the conventional mortgage was paid off and they did not have time
    to deal with lawyers about getting the mortgage registered until they returned.

[8]

The respondent says that there was never any discussion of a mortgage at
    the time.  Rather, and out of the blue, the respondent says that his wife told
    him in July 2005 that her father wanted a mortgage on the home.  The respondent
    says that he was baffled by this request and immediately approached the appellant
    father about it.  A tense exchange occurred between the two in the course of
    which the respondent told the father that he could have the whole house if he
    wanted and the appellant father responded by saying that he wanted a mortgage
    for an even greater amount than he had originally asked for.

[9]

The respondent and his wife did provide the mortgage and they did so
    after receiving independent legal advice.  In addition, they signed an
    acknowledgement that they had already received the total proceeds of the
    mortgage.  The respondent says that he signed the mortgage, and related
    documents, in order to keep his wife happy.  The respondent says that they
    were, at that time, in love and they had five young children.  The respondent
    says that he was concerned that if he refused to sign the mortgage, the
    appellant father would be upset and that this would cause problems for the
    whole family relationship.  The respondent also says that his wife continually
    assured him that the mortgage was just a mechanism to make her father feel
    better and that the house would always be theirs.  There was apparently no
    further discussion about the mortgage until some 10 years later when the
    respondent and his wife separated.
[1]

[10]

The
    central issue before the motion judge was whether the monies provided by the
    appellants to pay off the conventional mortgage were a gift or a loan.  The
    motion judge correctly set out the law in question including the basic
    principle that there is a presumption of a resulting trust in a situation where
    there is a transfer of property from a parent to an adult child:
Pecore v.
    Pecore
, 2007 SCC 17, [2007] 1 S.C.R. 795 at para. 40.  That presumption
    can, of course, be rebutted.

[11]

In
    reaching his conclusion, the motion judge said, at para. 56:

Having considered the evidence
    submitted by the parties, I am satisfied that I cannot fairly resolve the
    matter on the contested record alone and that it is fair and appropriate to use
    the expanded fact-finding powers rather than requiring a trial or mini-trial on
    the issue of whether the transfers were intended to be loans or gifts.

[12]

In
    making this statement, we take it that the motion judge was satisfied that it
    was fair for him to go beyond the written record to weigh the evidence,
    evaluate credibility and draw inferences from the cross-examinations, to make
    the factual findings that he did.  This was not a case where there was any
viva
    voce
evidence heard through a mini-trial or the like.

[13]

While
    other judges might have chosen to hear directly from the parties before making
    the factual findings that the motion judge did here, we cannot say that the
    failure to do so in this case represents an error in principle that would
    warrant interference by this court.

[14]

Having
    resorted to these fact-findings powers, the motion judge said, at para. 58:

I do not accept Tasos' [the
    appellant father] evidence that the many transfers of money were loans. He
    stated that each of the transfers constituted a loan however, as noted earlier,
    there was no evidence that the Parents at the very least told Aliki and Xavier
    that those transfers were loans or that he communicated the loan terms of each transfer
    to Aliki and Xavier. I accept Xavier's evidence that the Parents never
    suggested to him until June or July 2005 that the transfers made from 2000 to
    2005 were loans.

[15]

It
    was open to the motion judge to make those findings of fact, and this court
    ought not to interfere with them unless the appellants can establish that they
    represent palpable and overriding error:
Housen v. Nikolaisen
, 2002
    SCC 33, [2002] 2 S.C.R. 235 at para. 10.  The appellants have failed to do so.

[16]

The
    motion judge set out his reasons for reaching these findings of fact.  In that
    regard, the history of the dealings between the appellants, their daughter and
    the respondent, prior to the mortgage, strongly suggest that all of the
    financial assistance provided by the appellants was intended to be by way of
    gifts and not loans.  For example, there was never any request for any form of
    security documentation with respect to any of this financial assistance.  There
    is also the salient fact that, after the conventional mortgage was paid off,
    the appellants, their daughter, and the respondent, all went out for a
    celebration of the fact that the daughter and the respondent were mortgage
    free.  This event is inconsistent with the appellants position that the
    respondent and their daughter had simply replaced one mortgage for another,
    even if the latter mortgage was much more favourable in its terms.

Conclusion

[17]

The
    appeal is dismissed.  The appellants will pay to the respondent his costs of
    the appeal fixed in the agreed amount of $10,000.

G.R.
    Strathy C.J.O.

I.V.B.
    Nordheimer J.A.

Colin
    McKinnon J.





[1]

It should be noted that the mortgage provided to the
    appellants did not require any payments of interest or principal to be made
    until the mortgage matured.


