Cumming v. Whynott, 2018 BCSC 905

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cumming v. Whynott, 2018 BCSC 905 Date: 20180601 Docket: S161018 Registry: Vancouver Between: Mary Anne Cumming Plaintiff And Reginald Jesse Whynott Defendant And Douglas Scott Whynott Third Party Before: The Honourable Madam Justice Forth Reasons for Judgment The Plaintiff, appearing in person: Mary Anne Cumming Counsel for the Defendant Reginald Jesse Whynott: Donald R. Martin The Third Party, appearing in person: Douglas Scott Whynott Place and Date of Hearing: Vancouver, B.C. April 27, 2018 Place and Date of Judgment: Vancouver, B.C. June 1, 2018 Introduction [ 1 ] This is a

summary trial application brought by the defendant against the plaintiff seeking the relief sought in the amended counterclaim. The plaintiff and third party were self-represented in this application. [ 2 ] The defendant seeks the following relief: a. from the sum of $100,166.37 currently held in trust at the law firm of Donald R.

Martin, $84,061.31 be disbursed and paid to the defendant, Reginald Jesse Whynott; b. by way of compensation, damages and restitution, the plaintiff shall pay to the defendant the sum of $27,339.08; and c. the balance of the amount in trust, after payment of the $84,061.31, shall be disbursed and paid to the defendant as credit towards the amount of $27,339.08. [ 3 ] For the purpose of these reasons, I will refer to the parties as follows: • Reginald Jesse Whynott, who is the defendant and the father of the third party, the “defendant”; • his late wife Marilynn Whynott, “Mrs.

Whynott”; • his son Reginald David Whynott, “David”; and • his son Douglas Scott Whynott, the “third party”. I will refer to Mary Anne Cumming simply as the “plaintiff”.

Background Facts [ 4 ] In 1992, the defendant and Mrs. Whynott purchased a five-acre parcel of land on Olympic Road in Qualicum Beach, BC (the “Olympic Road Property”). In 1994, David and his spouse purchased an interest in the Olympic Road Property. The defendant and Mrs. Whynott constructed a house at 2855 Olympic Road, and David and his spouse constructed a house at 2859 Olympic Road, both on the Olympic Road Property. In 2001, the defendant, Mrs. Whynott, David, and David’s then spouse obtained a mortgage on the property.

The First Agreement, 2005 [ 5 ] The plaintiff and third party had commenced cohabitating in early 2005. In November 2005, David and his new spouse sold their interest in the Olympic Road Property to the third party and the plaintiff. When the title was registered, it showed the third party and plaintiff as the sole registered owners of the entire Olympic Road Property, in joint tenancy. The defendant claims this was done in error. [ 6 ] In conjunction with this property transfer, the plaintiff, the third party, the defendant, and Mrs. Whynott entered into an oral agreement (the “First Agreement”).

The plaintiff deposes that it was agreed that she and the third party would pay 50% of all common expenses, including existing mortgage payments, with the intention that she and the third party would “split” their 50% share. [ 7 ] The defendant agrees that the plaintiff and third party together were responsible for 50%, but deposes that neither he nor Mrs. Whynott had any knowledge of the terms of any arrangements or any agreement as between the plaintiff and third party with respect to the payment of their half.

The Second Agreement, 2006 [ 8 ] In approximately mid-2006, the plaintiff and third party advised the defendant that the existing mortgage on the Property needed to be renewed, but that because of the third party’s financial problems, there would be a substantial increase in the interest rate if he was on the renewed mortgage. [ 9 ] The defendant deposes that as a result, he, Mrs. Whynott, the plaintiff, and the third party entered into a second oral agreement (the “Second Agreement”), which included the following terms: a.

The third party would release his interest in the Olympic Road Property and the defendant, Mrs. Whynott, and the plaintiff would hold title as joint tenants, would obtain a new mortgage, and would pay out the current mortgages. b. In respect to the new mortgage, the defendant and Mrs. Whynott would be responsible for one-half of the mortgage principal, monthly mortgage payments, and common expenses, and the plaintiff would likewise be responsible for the other 50%. [ 10 ] The plaintiff disputes that she alone was responsible under the Second Agreement for half of the payments on the new mortgage.

Instead, she deposes that “[i]t was agreed that the arrangement for paying the new first mortgage and expenses on the property would remain the same as before.” [ 11 ] A mortgage was then applied for from Coast Capital Savings Credit Union (“CCSCU”). [ 12 ] On September 26, 2006, the plaintiff and third party executed a Form A Freehold Transfer, transferring title from the third party and plaintiff to the defendant, Mrs. Whynott, and the plaintiff, as joint tenants. [ 13 ] That same day, the plaintiff, the defendant, and Mrs. Whynott signed a CCSCU mortgage securing the sum of $560,000.

It was registered against the Olympic Road Property on September 27, 2006, under No. FA117050 (the “First Mortgage”). [ 14 ] The First Mortgage’s proceeds were paid out in accordance with the “Final Statement of Disbursement of Mortgage Monies”. [ 15 ] Each month, amounts were deposited by the plaintiff, the defendant, and Mrs. Whynott into a joint CCSCU account. The monthly mortgage payments were then paid out of that account. The Third Agreement, 2007 [ 16 ] The defendant deposes that in August 2007, the plaintiff approached him and Mrs.

Whynott, requesting cooperation to use the Olympic Road Property to enable her to borrow money to pay personal indebtedness. [ 17 ] The plaintiff deposes that this proposal was actually made by the third party to her, the defendant, and Mrs. Whynott, and that the money was requested to pay off the personal indebtedness of the third party. [ 18 ] The defendant deposes that a third oral agreement was reached (the “Third Agreement”) between the plaintiff, the defendant, and Mrs. Whynott, in which the three of them agreed to take out an additional mortgage on the Olympic Road Property (the “Second Mortgage”).

According to the defendant, the Third Agreement included the following terms: a. the new loan would be separate from the First Mortgage; b. all monies advanced under the Second Mortgage would be paid to the plaintiff; and c. both the repayment of the principal amount from time to time owing under the Second Mortgage and all monthly mortgage payments on the Second Mortgage would be the sole responsibility of the plaintiff.

[ 19 ] The plaintiff asserts that pursuant to the Third Agreement, the monies from the Second Mortgage would be advanced to her and the third party to pay for the third party’s indebtedness, and that the responsibility for paying the Second Mortgage would be that of the plaintiff and the third party. [ 20 ] On October 16, 2007, the Second Mortgage was filed under registration No. CA599645 against the Olympic Road Property. The amount advanced under this loan was $76,347.00. The net amount of $74,468.40 was deposited into a joint CCSCU account. The plaintiff deposes that she, the defendant, Mrs.

Whynott, and the third party all had access to the joint account. She further deposes that the “majority of the withdrawals” from the account were not made by her, and that she was unaware at the time they had been made. [ 21 ] The defendant, in contrast, deposes that neither he nor Mrs. Whynott gave permission to anyone to access the joint account except the plaintiff, and that if anyone else did withdraw monies from that account, it would have been only with the plaintiff’s permission.

The defendant further deposes that the funds from the Second Mortgage were deposited for the sole benefit of the plaintiff, except for a small withdrawal he made of $100 when the joint account was closed. [ 22 ] Each month, the defendant and Mrs. Whynott deposited to the joint account an amount to pay one-half of the First Mortgage’s monthly payment, and, each month, the plaintiff deposited an amount to pay one-half of the First Mortgage’s monthly payment and the entirety of the Second Mortgage’s monthly payment.

The plaintiff’s evidence is that because of the third party’s financial difficulties, she was the “primary payor” of the third party’s share for both Mortgages. The August 2011 Agreement [ 23 ] On January 26, 2011, Mrs. Whynott passed away. By March 3, 2011, the plaintiff and the defendant held legal title to the Olympic Road Property as joint tenants. [ 24 ] In August 2011, the defendant made a proposal to the plaintiff and third party for the disposition of the Olympic Road Property. On August 23, 2011, the plaintiff prepared and signed a counter-proposal.

On September 9, 2011, the counter-proposal was signed by the defendant (the “August 2011 Agreement”). [ 25 ] The August 2011 Agreement contained the following relevant terms: … Douglas and I pay $1,875 towards the First Mortgage …. You would be correct, Douglas and I are responsible for the 2 nd mortgage, although at the time I signed onto the second mortgage I failed to understand it was the soul [sic] responsibility of Douglas and I.

However, that is now done and yes we are responsible for it. … … Douglas and I would still be responsible to pay out the 2 nd mortgage from our share of the 50% of sale of the property. [ 26 ] On November 10, 2011, the Olympic Road Property was listed for sale with Coast Realty Group for $859,900. [ 27 ] On November 6, 2013, the plaintiff and third party separated, and the plaintiff left the Olympic Road Property. At the time, the plaintiff and third party had been living in the basement of the house at 2855 Olympic Road since 2012, as a fire had destroyed the house at 2859 Olympic Road.

The insurance company was in the process of rebuilding the house. [ 28 ] Commencing in December 2013, the plaintiff reduced the monthly contributions she had been making for both the First Mortgage and the Second Mortgage by around half. The plaintiff asserts she did this because she was no longer living at the Olympic Road Property, and therefore the third party should have been responsible for paying one-quarter of the First Mortgage and half of the Second Mortgage. [ 29 ] In August 2014, the plaintiff had a stroke and was hospitalized.

She underwent four months of intensive rehabilitation. [ 30 ] In November 2014, the plaintiff ceased making any mortgage payments. From December 2014 until the Olympic Road Property sold in February 2016, the defendant made all payments for both Mortgages. [ 31 ] The defendant claims that in order to prepare the Olympic Road Property for sale, he incurred expenses in repairing and cleaning up the area surrounding the house located at 2859 Olympic Road. Those costs included inspection of the shared septic system, inspection of the stove and chimney, and removal of construction debris and waste.

The total costs incurred were $6,325.83. The defendant claims that the plaintiff’s share of these costs should be $5,877.46. [ 32 ] The plaintiff disputes that she should be responsible for these expenses on the basis that she was not living on the Olympic Road Property and that she offered to assist in the clean-up but her offer was rejected. [ 33 ] In February 2016, the Olympic Road Property sold for the sum of $675,000. [ 34 ] The defendant’s understanding was that out of the plaintiff’s share of the sale proceeds, she was to pay off the Second Mortgage.

After payment of the First Mortgage and other expenses, the undivided net sale proceeds would have been $168,122.62. If this amount had been shared equally between the plaintiff and defendant, they each would have received $84,061.31. The plaintiff would have then paid out from her share the amount owing on the Second Mortgage of $68,700.81. [ 35 ] This is not what occurred.

Instead, the amount owing on the Second Mortgage was paid directly out of the undivided net sale proceeds. [ 36 ] Prior to the sale, the plaintiff filed a notice of claim on January 27, 2016, seeking a certificate of pending litigation (“CPL”) against the Olympic Road Property and an equitable distribution of the sale proceeds.

[ 37 ] To avoid having the sale prevented by the filing of the CPL, the defendant agreed that the net sale proceeds would be held in trust pending the resolution of the action. [ 38 ] As a result, the sale proceeded in February 2016, and the net sale proceeds have since remained in a trust account accruing interest. The current amount in trust is $100,166.37. [ 39 ] The defendant submits that the plaintiff is in breach of the First, Second, and Third Agreements for failing to make the required monthly contributions for the First and Second Mortgages.

The defendant is seeking to be made whole by receiving his share of the trust funds as well as damages and/or restitution from the plaintiff. The Issues [ 40 ] The issues raised in the pleadings, affidavits, and submissions are as follows: a. What was the agreement between the parties on the payment of the First and Second Mortgages? b. Should the defendant be reimbursed for any of the mortgage payments he made on the First and Second Mortgages from December 2013 to the sale of the Olympic Road Property? c.

Should the plaintiff be responsible for the payment of the principal amount of the Second Mortgage out of her share of the net sale proceeds? d. Should the plaintiff be responsible for any additional costs incurred related to the clean-up and maintenance of the Olympic Road Property?

a) What was the agreement between the parties on the payment of the First and Second Mortgages? [ 41 ] In September 2006, when the Olympic Road Property was transferred into the names of the plaintiff, the defendant, and Mrs. Whynott, these three transferees and the third party all signed an acknowledgement.

The acknowledgment states, in part: We acknowledge that it is recommended by the office of Mary Nichol Notary Corporation that we enter into a separate agreement setting out such matters as who is responsible for any mortgage payments ( WHICH INCLUDES DIFFERENT DEBTS OF DIFFERENT BORROWERS, who is responsible for payment of maintenance/repairs on the house, who is responsible for payment of property taxes and utilities, how the sale proceeds will be divided upon the eventual sale of the property, etc., etc. [Emphasis in original.] [ 42 ] The four individuals did not document or sign any subsequent written terms.

The plaintiff asserts that according to the orally- made Second Agreement, the responsibility to pay 50% of the First Mortgage was to be split equally between her and the third party.

She submits that according to the orally-made Third Agreement, the responsibility for paying the Second Mortgage was both hers and the third party’s. [ 43 ] The defendant asserts that pursuant to both the Second and Third Agreements, the plaintiff was solely responsible for paying 50% of the First Mortgage and 100% of the Second Mortgage, and that any deal she had with the third party to split those amounts was something between them. [ 44 ] The only documents produced in this

summary trial that reference the three oral Agreements are as follows: • A proposal from the defendant to the plaintiff in August 2011, which states: “At present Mary Anne and Douglas pay $1735.00 towards the first mortgage.” • A counter-proposal from the plaintiff to the defendant dated August 23, 2011, which states: “Under the topic ‘Current Situation’ Douglas and I pay $1875 towards the first mortgage and not the $1735 you have mentioned.” • An email from the plaintiff to the defendant dated February 6, 2014, which states: o Any proceeds from the sale of the property will be shared equally between the title holders.

This clause will need revision to read as … “From the gross proceeds of a sale of the property, the first obligation will be to pay out the First Mortgage at Coast Capital and all realtors commission, appraisal and legal fees and any outstanding taxes. This balance will be divided equally between title holder Reginald J. Whynott and title holder Maryanne Cumming / (partner Douglas S.

Whynott) and Maryanne and her partner will be totally responsible for payment of the existing Second Mortgage at Coast Capital, proceeds of which went to them initially, and as per signed agreement of August 21, 2011 between the parties mentioned. • An email from the plaintiff to the defendant dated February 7, 2014, which states: o With regard to me protecting my investments, as always, I will continue to pay my portion of the 1st mortgage which is $687.50 which is half of the $1375. As for the 2nd mortgage I will continue to pay my 50% which currently is $187.

Doug, as my partner at the time the 1st and 2nd mortgage was incurred, and who has a vested interest in the property, shall be held responsible for 50% from our share of the 1st mortgage and 50% responsible for the 2nd mortgage. [ 45 ] The parties have not submitted legal authorities to direct this Court on the applicable standards for interpreting the alleged

Agreements. Nevertheless, the jurisprudence of this province is uncontroversial with respect to the principles of contractualinterpretation. In Group Eight Investments Ltd. v. Taddei, 2005 BCCA 489 at paras. 19-22, the Court of Appeal wrote: [19] It is settled law that a court must, in interpreting a contract, determine the intention of the parties from the words of the contractand not interpret the words of the contract based on the intentions of the parties: G.H.L.

Fridman, The Law of Contract in Canada, 4thed. (Scarborough: Carswell, 1999) at 482. [20] The plain and ordinary meaning must be given to words in a contract unless to do so would result in an absurdity: Ex parteWalton. In re Levy (1881), 17 Ch.D. 746 (C.A.). Words must be interpreted in light of the whole of the contract and the intention of theparties expressed therein. In construing contracts, the court assumes that the words in the contract are there for a purpose and “reject aninterpretation that would render one of [the contract’s] terms ineffective” (National Trust Co. v.

Mead (1990), (SCC), 71D.L.R. (4th) 488 at 499). … [22] More recently, this Court summarized the principles of contract

interpretation in Gilchrist v. Western Star Trucks Inc. (2000),2000 BCCA 70 , 73 B.C.L.R. (3d) 102, at paras. 17-18: The goal in interpreting an agreement is to discover, objectively, the parties’ intention at the time the contract was made. The mostsignificant tool is the language of the agreement itself. This language must be read in the context of the surrounding circumstancesprevalent at the time of contracting. Only when the words, viewed objectively, bear two or more reasonable

interpretations, may thecourt consider other matters such as the post-contracting conduct of the parties: [citations omitted]. The first inquiry, then, is to determine whether there is only one reasonable meaning to the words in the contract, or more than one. Inthis search one must look to the surrounding circumstances and the whole of the contract. The words of the contract must be looked at intheir ordinary and natural sense and cannot be distorted beyond their actual meaning: [citations omitted]. [46] The three Agreements in the case at hand were made orally. In Le Soleil Hotel & Suites Ltd. v.

Le Soleil Management Inc., 2009BCSC 1303 at para. 328, Dickson J. (as she then was) wrote that: [328] The

interpretation of oral contracts turns on the same essential principles: Lawson Graphics Pacific Ltd. v. Simpson (1987), (BC SC), 12 B.C.L.R. (2d) 126. If the alleged agreement has not been reduced to writing, the Court must consider what theparties said and did and assess objectively whether, in context, their words and actions establish an intention to be bound: PeriscanFinancial Services Inc., supra; Leong & Associates, supra. The genesis and aim of the transaction is an aspect of the relevant context forconsideration: Canada Square Corporation, supra.

The credibility of witnesses will be particularly important and differing versions ofevents will increase the difficulty of establishing that an enforceable bargain was made: Anchorage Management Services Ltd. v. 465404B.C. Inc., 1999 BCCA 771 , 1999 CarswellBC 2947 (C.A.). [47] In Copcan Contracting Ltd. v.

Ashlaur Trading Inc., 2010 BCCA 597 at paras. 8 and 10, the Court of Appeal wrote: [8] … a contract is enforceable only if it is clear to a reasonable bystander, in light of all of the material facts, that the parties intendedto contract and that the essential terms of the contract can be determined with a reasonable degree of certainty (Anchorage ManagementServices Ltd. v. 465404 B.C. Inc., 1999 BCCA 771). … [10] In De Cotis v. Viam Holdings Ltd., 2010 BCCA 368 at para. 21, Newbury J.A. observed at para. 21: As G.H.L.

Fridman notes in The Law of Contracts in Canada (5th ed., 2006) “[i]n the case of a completely oral contract there is greaterflexibility in the nature of the evidence that is admissible to prove the contents of the contract and the meaning of the language used bythe parties.” (At 440.) This flexibility follows intuitively from the recognition that oral contracts must often be construed without the keyinterpretive tool used to understand written contracts - the words of the agreement. [48] Upon my review of the evidence, I make the following findings. [49] In or around November 2005, the plaintiff, the third party, the defendant, and Mrs.

Whynott orally agreed to the FirstAgreement. The First Agreement provided that the plaintiff and third party were each responsible for 25% of all common expenses,including existing mortgage payments, and the defendant and Mrs. Whynott would together pay the remaining 50% of such expenses,including existing mortgage payments. [50] The defendant deposes that the responsibility between the plaintiff and third party for their half share was neither his norMrs. Whynott’s concern.

In my view, however, the whole of the evidence persuades me that the parties intended for the plaintiff andthird party to each be liable for 25%. This is supported by the plaintiff’s affidavit directly stating as much. I also note that the plaintiffand third party were each put on title, and that at the time of the First Agreement, the plaintiff and third party had been cohabiting forless than a year, which causes me to doubt that they would have fully joined their debt obligations at that point. [51] In mid-2006, the plaintiff, the third party, the defendant, and Mrs.

Whynott orally agreed to the Second Agreement. The SecondAgreement provided that the third party would transfer away his legal title in the Olympic Road Property, and that the other threeindividuals would be put on title and obtain the new First Mortgage. [52] The defendant deposes that the plaintiff was solely responsible for half of the First Mortgage and related expenses. However, Ifind that the parties intended for the plaintiff and third party to each be responsible for a quarter of the costs.

I give weight to theplaintiff’s evidence that the payment arrangement under the Second Agreement was intended to be the same as before. This is consistentwith the fact that the Second Agreement essentially replaced the First Agreement by paying out the original mortgage, although I do note

that additional funds were advanced. [ 53 ] I find it objectively clear that the groups’ intention for removing the third party from title was not to relieve him of any payment obligations for the property, but to enable the group to borrow at a lower interest rate. Also, I note that in the August 2011 proposal prepared by the defendant, he wrote that “[a]t present Mary Anne and Douglas pay $1735.00 toward the first mortgage”: see Water Street Pictures Ltd. v. Forefront Releasing Inc. , 2006 BCCA 459 at para. 27 for discussion on subsequent conduct. [ 54 ] In August 2007, the plaintiff, the defendant, and Mrs.

Whynott entered into the Third Agreement. The Third Agreement provided for the Second Mortgage to be registered against the Property. [ 55 ] The evidence before me does not support that the third party was privy to this Agreement. Although the plaintiff deposes that the Third Agreement was proposed by the third party to help pay off his debts, I note that the third party did not hold legal title to the Property leading up to the Agreement, did not sign any mortgage-related documentation, and was not named on the joint bank account into which the mortgage funds were deposited.

Moreover, the defendant deposes that this Agreement was only between the plaintiff, Mrs. Whynott, and himself. As a result, I find that the Third Agreement is only enforceable as between the plaintiff and defendant, and that the plaintiff is responsible for 100% of the Second Mortgage as between her and the defendant. [ 56 ] In

summary, I find the following pursuant to the Agreements: • the defendant was responsible for paying 50% of the First Mortgage and none of the Second Mortgage; and • as between the plaintiff and defendant, the plaintiff was responsible for paying 25% of the First Mortgage and 100% of the Second Mortgage. [ 57 ] I also note that this is only a

summary trial on the counterclaim brought by the defendant against the plaintiff. There is no application for a

summary trial of the third party notice. As a result, I am unable to resolve any amounts that may be owing between the plaintiff and third party for payments made to satisfy both Mortgages.

b) Should the defendant be reimbursed for any of the mortgage payments he made on the First and Second Mortgages from December 2013 to the sale of the Olympic Road Property? [ 58 ] As found in the preceding section, the defendant was only responsible for paying 50% of the First Mortgage but none of the Second Mortgage.

However, as a result of failures on the parts of both the plaintiff and third party, the defendant ended up paying additional amounts on their behalf, between December 2013 and December 2015, in order to keep both Mortgages in good standing. [ 59 ] The issue, then, is what amounts should the defendant be reimbursed by the plaintiff? First Mortgage [ 60 ] I have reviewed and cross-referenced the CCSCU joint account

schedule and the CCSCU joint account statement at exhibits R and S of the defendant’s first affidavit, and I find the following. [ 61 ] For the ten-month period between December 2013 and September 2014, the monthly payments for the First Mortgage were $2,707.88. Over this period, nine monthly payments were taken from the CCSCU joint account, for a total of $24,370.92.

Based on my determination regarding the Second Agreement, the defendant was responsible for 50% of this ($12,185.46), and the plaintiff and third party were each responsible for 25% ($6,092.73). [ 62 ] Over this period, the plaintiff made nine contributions of $687.50, for a total of $6,187.50. The third party made no contributions. As a result, the plaintiff satisfied her obligations and does not owe the defendant for this period. [ 63 ] For the 12-month period between October 2014 and September 2015, the monthly payments for the First Mortgage were $2,722.48.

Over this period, 11 monthly payments were taken from the CCSCU joint account, for a total of $29,947.28. The defendant was responsible for 50% of this ($14,973.64), and the plaintiff and third party were each responsible for 25% ($7,486.82). [ 64 ] Over this period, the plaintiff made contributions totalling only $1,375. She did not make any contributions after November 2014. The defendant made contributions totalling $28,572.28, and the third party made no contributions.

As a result, the plaintiff owes the defendant $6,111.82 for this period. [ 65 ] From October 2015 to when the Property was sold in February 2016, two mortgage payments totalling $5,337.24 were taken from the CCSCU joint account. Neither the plaintiff nor the third party contributed to these amounts. As a result, the plaintiff owes the defendant $1,334.31 (i.e. 25%). [ 66 ] In

summary, the plaintiff owes the defendant a total of $7,446.13 for the First Mortgage, from December 2013 to the sale of the Property. Second Mortgage [ 67 ] From December 2013 to the sale of the Property in February 2016, the monthly payment amounts for the Second Mortgage were approximately $332. Over this period, 23 monthly payments were taken from the CCSCU joint account, for a total of $7,622.78. Based on my determination regarding the Third Agreement, the plaintiff was responsible for this entire amount as between her and the defendant.

[ 68 ] Over this period, the plaintiff made 12 contributions totalling $2,226. As a result, she owes the defendant $5,396.78 for the Second Mortgage.

Summary [ 69 ] The total amount the plaintiff owes the defendant for monthly payments for the First and Second Mortgages between December 2013 and December 2015 is $12,842.91. [ 70 ] It is not clear to me what happened to the January 2015 mortgage payment. The CCSCU joint bank account and the CCSCU account

summary do not show any payments being made in January 2015. I assume this was adjusted for on the payout of the First Mortgage from the sale proceeds.

c) Should the plaintiff be responsible for the payment of the principal amount of the Second Mortgage out of her share of the net sale proceeds? [ 71 ] The plaintiff specifically agreed that the principal for the Second Mortgage would be paid out of her and the third party’s shares of the net proceeds of sale. As she stated in the August 2011 Agreement: “Douglas and I would still be responsible to pay out the 2 nd mortgage from our share of the 50% of sale of the property.” [ 72 ] Unfortunately, that did not happen as had been agreed to.

Instead, $68,700.81 was paid out of the net sale proceeds to pay off the Second Mortgage. As a result, this amount should be returned to the defendant from the monies currently held in trust. [ 73 ] It may well be that the plaintiff has a claim against the third party for his obligation to pay a share of this amount, but that issue was not a part of this

summary trial.

d) Should the plaintiff be responsible for any additional costs incurred related to the clean-up and maintenance of the Olympic Road Property? [ 74 ] The plaintiff disputes paying this amount on the basis that she was not residing at the Olympic Road Property and that she offered to help. [ 75 ] It is highly unlikely that the plaintiff would have been able to assist in the type of clean-up that was taking place.

This is particularly so as she had suffered a stroke in August of 2014. [ 76 ] The August 2011 Agreement, which addresses the terms upon which the parties agreed to sell the Olympic Road Property, was silent on the allocation of clean-up costs. The Agreement does state, “I assume both parties would be responsible for paying 50% of all fees”; however, this appears to be with specific reference to “Realtor fees” and “Legal fees”, which are mentioned immediately before. [ 77 ] I find that the plaintiff is only responsible for 25% of the clean-up costs. This

interpretation is most consistent with the factual circumstances of the case and the previous Agreements between the parties.

There is no evidence to support that there was a variation to the Agreement for the clean-up around 2859 Olympic Road address, or that a different arrangement was made. [ 78 ] I find that the plaintiff’s share of the costs are as follows: a. 12 Nov 15 Pump out and inspect shared septic system: $897 x 25% = $224 b. 04 Feb 16 Metal appliance/waste pickup and disposal: $150 x 25% = $37.50 c. 12 Feb 16 Crane to remove granite slabs and frames: $750 x 25% = $187.50 d. 12 Feb 15 [sic] Labourers for 2859 clean-up: $1,200 x 25% = $300 e. 17 Feb 16 Dumpster rental and waste disposal: $3,329 x 25% = $832 Total $1,581 [ 79 ] The defendant should also be collecting from his son, the third party, for his share of the clean-up costs.

Accounting [ 80 ] The following is a

summary of the accounting to be made in respect to the trust monies. From the initial amount paid into trust of $99,421.81, the defendant should have received $84,061.31 and the plaintiff $15,360.50. [ 81 ] From the plaintiff’s share of $15,360.50, she should pay to the defendant $12,842.91 for the monthly payments owed for the First and Second Mortgages, and $1,581 for the clean-up, for a total of $14,423.91. [ 82 ] Therefore, of the initial trust payment, the defendant should receive $98,485.22, and the plaintiff $936.59. [ 83 ] The interest accrued on the trust funds should be shared on a 50/50 basis between the plaintiff and defendant.

Costs [ 84 ] The defendant did not specifically seek costs in the

summary trial application but does so in the amended counterclaim filed. [ 85 ] The Supreme Court Civil Rules provide that on an application, costs normally follow the event. [ 86 ] In this case, the defendant was not entirely successful in respect to the terms of the three oral Agreements. The plaintiff was successful in that regard. In light of all of the circumstances, the appropriate remedy is that the plaintiff and defendant should each bear their own costs.

Third Party Claim [ 87 ] There remains outstanding the issues as between the plaintiff and the third party. [ 88 ] The plaintiff did acknowledge that the third party was entitled to a share of the equity in the sale proceeds. However, the evidence before me is that the third party failed to make contributions to the Mortgages that he was obligated to make.

He also apparently had the benefit of living at 2859 Olympic Road, after the fire damage was repaired, from March 2015 until the Property was sold. [ 89 ] I will leave it for the plaintiff to decide whether she will pursue the third party claim that she has filed against the third party. Likewise, should the defendant wish to pursue a claim against the third party for amounts owed pursuant to the First Mortgage and clean-up costs, that is his right.

Summary of Orders [ 90 ] A

summary of the orders is as follows: a. the plaintiff owes the defendant the sum of $12,842.91 for the monthly payments made on the First and Second Mortgages; b. the plaintiff owes the defendant the sum of $1,581 for her share of the expenses incurred for the clean-up of the Olympic Road Property; c. from the trust funds, the sum of $84,061.31 is to be disbursed and paid to the defendant; d. from the trust funds, the sum of $15,360.50 is attributed to the plaintiff but she must direct $14,423.91 of this amount to be disbursed and paid to the defendant; e. the sum of $936.59 is to be disbursed and paid to the plaintiff; f. the accrued interest will be divided equally and paid in equal shares to the plaintiff and the defendant; g. the plaintiff and defendant will each bear their own costs of this

summary trial; and h. the third party is not entitled to any costs for his attendance at the

summary trial application. “The Honourable Madam Justice Forth”