



COURT OF APPEAL FOR ONTARIO

CITATION: MacIntyre v. Winter, 2021 ONCA 516

DATE: 20210719

DOCKET: C68527

Tulloch, Nordheimer and Jamal
    JJ.A.

BETWEEN

Ronald
    James MacIntyre

Applicant

(Respondent)

and

Igor
    Alexander Winter

Respondent
(Appellant)

Carol Craig and Ira Marcovitch, for the
    appellant

Michele D. Blais, for the respondent

Heard: May 31, 2021 by
    videoconference

On appeal from the judgment of Justice Mark
    P. Shelston of the Superior Court of Justice dated June 8, 2020 with reasons
    reported at 2020 ONSC 4376.

Nordheimer J.A.:

[1]

Igor Alexander Winter (Alex) appeals from the
    judgment of the trial judge in which he determined various issues arising from
    the breakup of the relationship between Alex and the respondent, Ronald James
    MacIntyre (Ron). Those issues included claims for spousal support and claims
    arising out of the jointly owned home. Alex appeals only from the trial judges
    determination that there should be an equal division of the net proceeds of the
    sale of the home.

BACKGROUND

[2]

Alex and Ron began a relationship in 1994. They
    separated on February 5, 2017. The parties never married and have no children.

[3]

At the time of trial, Ron was 57 years of age
    and had been under the care of a psychiatrist since April 2009. He stopped
    working in June 2010 due to mental health issues. Ron is in receipt of
    long-term disability benefits through the Canada Pension Plan and Manulife
    Financial.

[4]

At the time of trial, Alex was 54 years of age.
    He had also been under the care of a psychiatrist since May 2009. Alex was
    employed as a staff psychiatrist at the Royal Ottawa Hospital and had private
    patients.

[5]

About a year after their relationship began, the
    parties moved to Ottawa. Initially, they resided in Rons apartment there.
    While residing together, the parties considered buying a home. Alexs mother
    provided $100,000 towards the purchase of the home. Alex and Ron were pre-approved
    for a mortgage.

[6]

On January 14, 1999, the parties purchased their
    first home, as joint tenants. There was a joint mortgage secured against the
    property. The parties agreed that Ron would be responsible for the mortgage
    payments and Alex would be responsible for all of the other expenses associated
    with the home. Alex provided the deposit of $5,000 and $99,081.92 as the down
    payment to purchase the home.

[7]

Some six years later, on December 12, 2005, the
    parties purchased a new, more expensive, home in Arnprior, Ontario. A joint
    mortgage and line of credit were secured against the property. The purchase of
    the residence was financed through the mortgage, the proceeds of sale of the
    first home, and additional monies contributed by Alex, as I shall explain below.

[8]

Unfortunately, after moving into their new home,
    the parties experienced harassment from other residents in the area because
    they were a same-sex couple. This harassment was serious enough that it involved
    the local police. The harassment caused significant damage to the mental health
    of both Alex and Ron. It also placed a great deal of strain on their
    relationship.

[9]

In September 2016, Alex told Ron that he wanted
    to separate. After discussing the issue, the parties did not separate but, by
    January 2017, the relationship had deteriorated. On February 5, 2017, Ron told
    Alex the relationship was over. Alex was very upset and asked Ron to
    reconsider. Ron left the home, rented a room, and never reconciled with Alex.

[10]

The Arnprior property was appraised in October
    2016 at $1,400,000. Alexs claim was for an order that he receive the first
    $480,248.82 of the net proceeds of the sale of the property, representing his
    initial contributions, and that the balance be divided equally between him and
    Ron. Alexs position was that the presumption against gifts applied to his
    contribution of the down payment towards the property and that his intent was
    always that the down payment monies would be returned to him if the property was
    ever sold.

THE DECISION BELOW

[11]

Ron commenced an application in which he sought
    indefinite spousal support on a compensatory and non-compensatory basis. The
    trial judge found that Ron did not have an entitlement to spousal support on a compensatory
    basis. However, the trial judge did find that Ron had an entitlement to spousal
    support on a non-compensatory basis. The trial judge ordered Alex to pay Ron spousal
    support of $269 per month on an indefinite basis, subject to variation in the event
    of a material change in circumstances. The trial judge further ordered that
    Alex designate Ron as the irrevocable beneficiary of a life insurance policy
    with a minimum amount of $50,000 for so long as Alex has an obligation to pay
    spousal support to Ron.

[12]

Lastly, on the issue of spousal support, the
    trial judge ordered Ron to pay Alex the sum of $72,558 for the overpayment of
    spousal support from February 1, 2018 up to and including June 2020. The trial
    judge further ordered that this amount was to be deducted from Ron's share of
    the net proceeds of sale of the home after he rendered his decision on the costs
    of the proceeding.

[13]

The final issue was the division of the net
    proceeds of sale of the Arnprior home. Ron sought an equal division. Alex sought
    payment of the first $480,248.82 of the net proceeds of sale of the Arnprior home
    based on the fact that he had contributed the deposit and down payment,
    totalling $104,081.92 on the purchase of the first home, and then contributed additional
    amounts, totalling $514,333.20, to the purchase of the second home.

[14]

The trial judge ordered an equal division of the
    proceeds of sale of the Arnprior home. He found that there never was an
    intention that Alex was to be repaid the deposit and down payment. Rather, the
    trial judge found that Alex intended to gift the deposit and down payment to
    Ron as part of their financial arrangements for the purchase and use of the homes.

ANALYSIS

[15]

On Alexs appeal from the finding that there
    should be an equal division of the proceeds of sale of the home, he raises the following
    issues:

1.

The trial judge unevenly scrutinized the evidence
    in relation to each partys credibility.

2.

The trial judge misapprehended the evidence used
    to assess each partys credibility.

3.

The trial judge erred by failing to consider
    that, by placing the properties in joint tenancy, Alex only intended to gift a right
    of survivorship.

4.

The trial judge misapprehended the evidence in
    relation to the source of the funds for the down payments on the two homes.

5.

The trial judge erred in finding that Alex
    gifted the down payments.

[16]

In my view, the central issue to be determined
    is the fifth issue, that is, the finding of gift. If that issue is determined
    in Alexs favour, the other issues become irrelevant. Indeed, that was the
    approach that counsel took in argument before us. That said, these issues
    overlap to some extent such that the analysis of the fifth issue will
    necessarily engage comment on some of the other issues.

[17]

The leading decision on the subject of gifting
    is
Pecore v. Pecore
, 2007 SCC 17, [2007] 1 S.C.R. 795. In that
    decision, Rothstein J. confirmed that two presumptions, that is, the presumption
    of a resulting trust and the presumption of advancement, continue to have a
    role to play in disputes over gratuitous transfers. He said that the presumptions
    provide a guide for courts in resolving disputes over transfers where evidence
    as to the transferor's intent in making the transfer is unavailable or
    unpersuasive: at para. 23.

[18]

The presumption of advancement does not apply in
    this case. Neither party suggests that it does. Rather, it is the presumption
    of a resulting trust that is in play. With respect to that presumption,
    Rothstein J. said, at para. 24:

The presumption of resulting trust is a
    rebuttable presumption of law and general rule that applies to gratuitous
    transfers. When a transfer is challenged, the presumption allocates the legal
    burden of proof. Thus, where a transfer is made for no consideration, the onus
    is placed on the transferee to demonstrate that a gift was intended. This is so
    because equity presumes bargains, not gifts. [Citations omitted.]

[19]

The trial judge referred to
Pecore
towards the beginning of his analysis. He then correctly stated: Ron has the
    burden of proof to prove, on a balance of probabilities, that Alex intended to
    gift Ron the monies used to purchase both the Ottawa and Arnprior properties.

[20]

Unfortunately, the trial judge does not appear
    to have employed this approach in his analysis of the issue. Rather, in his
    analysis, the trial judge became focussed on a lengthy consideration of many
    credibility issues. While the trial judge ultimately found that there were
    problems with both Rons and Alexs evidence, he favoured Rons evidence. However,
    for reasons that I shall explain, given the nature of the issue to be
    determined, credibility was not the central concern.

[21]

On the issue of the status of the monies
    contributed by Alex to the purchase of both homes, there were two different
    stories. Alexs evidence was:

Q. I was just asking if you and Ron had any
    other discussions about the down payment?

A. Yeah. Because the money, I had always
    referred to it as  as my mums money because it was money that she had given
    me not my dad and it was meant for me down the road to just to provide me with
    some security. So, I wouldve wanted to ensure that that money [would have]
    been safe. So, whatever property we were putting it into wed have to make sure
    that it was a  a good investment, and that I would be receiving the monies
    back in the event that the house would  or property, at that point, would
    sell.

Q. Okay. And so, were you quite clear on that
    condition?

A. Yes, I was.

[22]

Rons evidence was different. His evidence on
    the subject was:

Q. And was there an agreement  oral or
    written to the effect that if you separated, the amount of Alexs contribution
    to the down payment would be returned to him?

A. No.

Q. Did you ever talk about it?

A. No.

[23]

The trial judge did not directly address the divergence
    in the evidence on this point. However, it seems implicit in the findings that
    the trial judge did make that he rejected Alexs evidence that there was an
    express discussion respecting his intention.

[24]

Accepting that is the case, one must examine the
    balance of the evidence to determine what the intention was with respect to the
    monies that Alex contributed to the purchase of the two homes. In considering
    that issue, the trial judge failed to address the central point that arises
    from the presumption, that is, the intention of the transferor, namely, Alex. Contrary
    to the respondents submission, it is not the intention of both parties that is
    relevant. This central point was made clear in
Kerr v. Baranow
, 2011
    SCC 10, [2011] 1 S.C.R. 269, where Cromwell J. said, at para. 18:

The Court's most recent decision in relation
    to resulting trusts is consistent with the view that, in these gratuitous
    transfer situations, the actual intention of the grantor is the governing
    consideration:
Pecore v. Pecore
, 2007 SCC 17, [2007] 1 S.C.R. 795, at
    paras. 43-44. As Rothstein J. noted at para. 44 of
Pecore
, where a
    gratuitous transfer is being challenged, "[t]he trial judge will commence
    his or her inquiry with the applicable presumption and will weigh all of the
    evidence in an attempt to ascertain, on a balance of probabilities, the
transferor's
    actual intention
". [Emphasis in original.]

[25]

On this point, the nature of the onus or burden
    that rests on Ron, in terms of rebutting the presumption, is the civil standard
    of a balance of probabilities. In other words, Ron must establish, on a balance
    of probabilities, that it was Alexs intention to gift these monies:
Pecore
,
    at para. 43. The standard of proof on a balance of probabilities requires clear,
    convincing and cogent evidence:
F.H. v. McDougall
, 2008 SCC 53,
    [2008] 3 S.C.R. 41, at para. 46.

[26]

The trial judge did not commence his analysis with
    these principles in mind, which constitutes an error of law. Indeed, the trial
    judge does not appear to have ever focussed solely on Alexs intention.

[27]

The trial judge cited eleven factors to support
    his conclusion that Alex intended to gift the monies to Ron. However, some of
    those factors are just variations on the same factor. When those variations are
    eliminated, the eleven factors reduce to six: the length of time Alex and Ron
    lived together; their agreement on who would be responsible for which expenses associated
    with the home; the lack of a document evidencing Rons obligation to repay the
    monies advanced by Alex; their decision to register the home as joint tenants
    and that the home would go to the surviving partner if either of them
    predeceased the other; the absence of any reference to repayment in Rons will;
    and their decision to deposit the sale proceeds of the first home in a joint
    bank account.

[28]

In considering these six factors, half of them do
    not relate to the issue of Alexs intention at the time of the transfer of the
    funds. For example, the length of time that the two had been living together;
    their agreement on who would be responsible for which expenses associated with
    the ongoing ownership of the home; and the absence of any reference to
    repayment in Rons will, do not go to the issue of Alexs intention at the time
    that the monies were contributed, and that is the time that is relevant:
Pecore
,
    at para. 5.

[29]

I then turn to the remaining three factors.
    First, the trial judge found that it was not credible that Alex would, on the one
    hand, not require Ron to repay the down payment and deposit if Alex died, but
    that he would insist upon payment if there was no death. There is nothing
    inherently incredible about that position and the trial judge does not point to
    any evidence, other than his own view, that would support his conclusion.

[30]

What the evidence of both Alex and Ron did
    establish was that the home was put in joint tenancy to ensure that, if either
    Alex or Ron predeceased the other, the home would go to the surviving partner. Both
    parties wanted to ensure that there would not be any issue over that happening.
    They were a same sex-couple that had already experienced negative reactions to
    their relationship. They clearly did not want to create a situation where third
    parties could attempt to interfere with the survivors right to the home. On
    this point, it is important to remember that Alex had been involved in
    extensive litigation with his siblings over his mothers estate, that also
    involved his joint interest in a property.

[31]

In fact, the trial judge expressly found that
    this was the purpose behind having the homes put into joint tenancy. He said, I
    accept Ron's evidence that Ron and Alex decide[d] to register the properties as
    joint tenants because they were joint owners as well as to avoid any litigation
    in the event of the death of one of them.

[32]

However, the trial judge does not appear to have
    recognized that survivorship can be separated from the intent to gift. It was
    possible to accept both Alexs assertion that his intent at the time of the
    purchase of the home was to receive back the funds he deposited if the house was
    ever sold, and, at the same time, to accept that Alex intended Ron to have
    survivorship benefits if he predeceased Ron.

[33]

The trial judge erred in extrapolating from the fact
    of joint tenancy, entered into with the intention of Ron taking a right of
    survivorship in the homes, to a finding of an intention to gift Ron the funds
    contributed by Alex for the acquisition of the homes. The point that a right of
    survivorship alone is not sufficient to rebut the presumption of a resulting
    trust that operates during the parties joint lives is clearly made in Mark Gillen,
    Lionel Smith & Donovan W.M. Waters,
Waters Law of Trusts in Canada
,
    4th ed. (Toronto: Thomson Reuters Canada, 2012), at § 10.II.B.2 (WL):

If A supplies the purchase money and
    conveyance is taken in the joint names of A and B, B during the joint lives
    will hold his interest for A; B will also hold his right of survivorshipagain
    by way of a resulting trustfor A's estate, because that right is merely one
    aspect of B's interest. In other words,
the starting point is that B holds
    all of his interest on resulting trust for A, or A's estate.

However,
    evidence may show that, while A intended B to hold his interest for A during
    the joint lives, it was also A's intention that, should he (A) predecease, B
    should take the benefit of the property
. The presumption of resulting trust
    would then be partially rebutted, in relation to the situation that has arisen,
    so that B would not hold his interest (now a sole interest and not a joint
    tenancy) on resulting trust. He would hold it for his own benefit. [Footnote
    omitted.] [Emphasis added.]

[34]

To assert an immediate gift of the beneficial
    ownership of the funds contributed by Alex, Ron must, in Rothstein J.s
    words, rebut the presumption of resulting trust by bringing evidence to
    support [his] claim:

Bergen v. Bergen
, 2013 BCCA 492, 52
    B.C.L.R. (5th) 258, at para. 42, citing
Pecore
, at para. 41; see also
Christopher
    v. Freitas
, 2019 ONCA 84, at para. 5. The trial judge erred by ignoring
    this requirement.

[35]

Second, the trial judge relied on the fact that
    the proceeds of the sale of the first home were paid into the parties joint
    bank account to conclude that Alex did not intend to be repaid the monies he had
    advanced. Such a conclusion ignores the salient fact that the two were in the
    process of buying a new home. The purchase of that new home was being financed,
    in part, by the proceeds of sale from the first home. If Alex had asked for his
    monies back at that time, the purchase of the new home would not have been
    completed, which would have been fundamentally inconsistent with the parties
    intention to buy a new home. The trial judges reasoning on this point amounts
    to a
non

sequitur
.

[36]

Third, the trial judge found that that it was
    not credible that Alex would invest approximately $100,000 into a property and
    not secure the repayment with a document in writing. Alex said that he did not
    ask for a document, at the time, because that is not how his parents had dealt
    with such matters and, also, because he trusted Ron. The trial judge rejected
    the former reason and did not address the latter.

[37]

In rejecting the former reason, the trial judge
    failed to reconcile his conclusion regarding the likelihood of Alexs actions, with
    the fact that, after the end of the relationship, Alex provided a $250,000 loan
    to a person, with whom he had become involved, and who was purchasing the home.
    There was no documentation for this loan either but, in this situation, the
    trial judge fully accepted that Alex had advanced the monies as a loan. Indeed,
    the trial judge imputed interest income from that loan in determining Alexs
    income for spousal support purposes.

[38]

Our courts are strewn with cases where people in
    a relationship wound up in litigation because they did not take a commercial
    approach to their domestic arrangements from the outset. This is just another
    of those cases. While it may be regrettable, it does not change the fact that it
    is a very frequent reality. Although the absence of contemporaneous
    documentation is a relevant consideration (see
Chao v. Chao
, 2017 ONCA
    701, at para. 54), the absence of such documentation by itself is not
    necessarily sufficient to conclude that a gift was intended. The most that the
    evidence establishes, even taken entirely from Rons point of view, is that the
    issue was simply not discussed  an understandable result in a domestic relationship.
    It is precisely in such situations, where the evidence is insufficient, that the
    presumption of a resulting trust determine[s] the result:
Pecore
, at
    paras. 22, 44. The trial judge erred by losing sight of this principle.

[39]

On a final point, the trial judge also found
    that there was no document corroborating either partys version. It is unclear
    to me what that is a reference to. If the trial judge meant that there was no
    document establishing a gift from Alex to Ron, that is certainly correct.
    However, if the trial judge meant that there was no document evidencing the
    source of the funds, that is incorrect. Alex produced a bank statement for a
    personal account that he held, and from which the down payment of about $100,000
    for the first home was obtained. Regardless of the circumstances in which that
    bank statement was ultimately produced, its existence would appear to negate
    any suggestion that the $100,000 did not come from Alexs funds. Ron ultimately
    seems to acknowledge that reality, but then contends that the ultimate source
    of these funds was Alexs mother who, he says, intended to gift the monies to both
    of them. There is no evidence to support that contention. Ron did not have any
    discussions with Alexs mother about any such gift, nor could he point to any
    other independent evidence that would establish that Alexs mother intended to
    make a gift to the two of them rather than to Alex alone.

[40]

In order to establish a gift, Ron had to satisfy
    three conditions: there must be (1) an intention to make a gift on the part of
    the donor, without consideration or expectation of remuneration; (2) an
    acceptance of the gift by the donee; and (3) a sufficient act of delivery or
    transfer of the property to complete the transaction:
McNamee v. McNamee
,
    2011 ONCA 533, 106 O.R. (3d) 401, at para. 24.

[41]

Mindful of the need to guard against self-serving
    evidence or evidence that reflects a change of intent, the only direct evidence
    of Alexs intention is from Alex himself. He said that he intended to receive
    back the down payment monies if the house was ever sold. The evidence that a
    significant portion of these monies came from Alexs mother as gifts to him
    alone and that Alex subsequently loaned a significant amount of money to
    another individual, also without documentation, supports his stated intent. In the
    absence of clear, convincing, and cogent evidence to the contrary, Ron, who
    bears the burden of rebutting the presumption of a resulting trust, cannot
    succeed. The trial judges findings, insofar as they relate to this specific
    issue, are insufficient to discharge that burden.

CONCLUSION

[42]

I would allow the appeal, set aside paragraph 11
    of the order below, and in its place make an order that Alex is to be paid the
    sum of $480,248.82, together with accrued interest, from the proceeds of sale
    of the property located at 421 Gillies Grove Road, Arnprior, Ontario. The
    remaining balance is to be split equally between the parties, subject to Ron
    repaying the amount due for the overpayment of spousal support.

[43]

The appellant is entitled to his costs of the
    appeal fixed in the amount of $25,000 inclusive of disbursements and HST. In
    terms of the costs of the trial, I would set aside the costs award at trial and
    make no order as to costs, given the divided success at that level.

Released: July 19, 2021 M.T.

I.V.B.
    Nordheimer J.A.
I agree. M. Tulloch J.A.

I
    agree. M. Jamal J.A.


