Kamermans v. Gabor, 2018 ONSC 5241
The parties began cohabitating in September 2008, when the Applicant and
her children moved into the Respondent’s home. She contributed $7,500
in improvements to that home. In July 2010, the parties bought a new home
as joint tenants that required more extensive renovation. The house ended
up costing them $240,000. The Respondent made a down payment of approximately
$70,500 from the proceeds of the first home. Together, the parties obtained
a mortgage for the rest of the purchase price and took title as joint tenants.
After sharing extensive renovation costs and living expenses equally, the
parties separated in February of 2016. The home was sold for $307,000.
Each party received $19,000, and the remainder was held in trust. The
Applicant commenced a proceeding for division of property, among other
things. The Respondent claimed that he was entitled to reimbursement for
the down payment he made prior to any division, based on unjust enrichment
and constructive trust.
Analysis of the Constructive Trust Claim
In first establishing which type of trust may apply to the matter, Justice
Heeney pointed out that the resulting trust analysis focuses solely on
the initial transaction, in order to determine whether there was an intention
to make a gift. Alternatively, the constructive trust analysis allows
the court to take into account the entire history of the couple in question,
and includes a consideration of improvements made to the property by each
party. He then proceeded to analyze the case as a
constructive trust claim.
The Applicant argued that the fact that title was taken in joint names
is, in and of itself, a juristic reason for the enrichment she received
in the form of the $70,000 down payment, because the public requires confidence
in how title is held. It was argued that the title should be clear and
unequivocal, except in the most exceptional of cases.
Justice Heeney ultimately rejected this argument, because every single
constructive trust case involves the claimant seeking an interest in land,
or monetary compensation in lieu of an interest, in opposition to the
manner in which legal title is already held. If the Applicant's argument
were valid, no constructive trust claim would ever succeed. Justice Heeney
found that despite the contradictory evidence, there was no agreement
between the parties as to what would happen with the Respondent’s
down payment in the event of relationship breakdown.
Property Division and Distribution
The analysis shows that the Respondent did contribute $55,000 more than
his common law partner, and she was thereby unjustly enriched. There was
no juristic reason for the enrichment and accordingly the Respondent got
most of his deposit back. The judge also found that the parties were engaged
in a joint family venture, insofar as the acquisition and improvement
of the subject house was concerned.
He assessed their contributions to the improvement of the property to be
roughly equal. In order to figure out how to deal with the contribution
of the parties to the purchase of the property, the Court observed that
the Respondent contributed $63,000 and the Applicant contributed $7,500
to the initial purchase price. This $7,200 contribution was the amount
that the Applicant put into the first home, which the Respondent sold
to purchase their joint residence.
Justice Heeney stated: Consistent with the same principle that the parties
should share in their wealth proportionate to their contributions, the
Respondent received 89.4 percent and the Applicant received 10.6 percent
of the monies remaining in trust. Applying those percentages meant that
the Respondent received $56,573.72, and the Applicant received $6,707.85.
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