Djekic v. Zai, (2015) 329 O.A.C. 133 (CA)

• Judge: Weiler, Sharpe and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 08, 2015
• Jurisdiction: Ontario
• Citations: (2015), 329 O.A.C. 133 (CA);2015 ONCA 25

Djekic v. Zai (2015), 329 O.A.C. 133 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JA.025

Barb Bosiljka Djekic (applicant/appellant and respondent on the cross-appeal) v. William Zai (respondent/respondent and appellant on the cross-appeal)

(C58542; 2015 ONCA 25)

Indexed As: Djekic v. Zai

Ontario Court of Appeal

Weiler, Sharpe and Blair, JJ.A.

January 20, 2015.

Summary:

Djekic and Zai separated after almost eight years' cohabitation. Djekic asserted a claim for support and a constructive trust in the home in which the parties resided. Zai opposed the claim and asserted his own claims for a reconciliation of amounts that he paid on behalf of Djekic respecting lines of credit that they had taken out in connection with a number of real estate investments in which they were jointly involved. He also claimed other adjustments.

The Ontario Superior Court ordered Zai to pay spousal support of $950 per month for six years. Djekic was also entitled to a $100,000 equitable trust interest in the parties' residence. If Zai failed to pay that amount within one year, Djekic was entitled to register her $100,000 interest against title. The court awarded Djekic $18,500 in costs. Djekic appealed, asserting that the court erred in making support time limited and in failing to order that she had a constructive trust interest equivalent to one-half of the value of the residence at the trial (estimates varied from $600,000 to $750,000). She also asserted that the court erred in failing to provide security for the payment of her equitable interest and in failing to grant pre-judgment interest. Zai cross-appealed respecting the quantum of support, the order of costs and the court's failure to deal with his claims about the monies owing to him and Djekic's failure to return certain personal property to him.

The Ontario Court of Appeal allowed Djekic's appeal to the extent of varying the spousal support award to provide for a monthly payment of $950 on an indeterminate basis, payable in accordance with the Guidelines, awarding her prejudgment and post judgment interest on the $100,000 equitable trust, and granting her a charge against the residence as security for the payment of the trust. The court extended the time that Zai had to pay the $100,000 by three months. Upon payment of the trust plus interest, any charge registered as security for the payment was to be discharged and Djekic would have no further claim in the residence. The court otherwise dismissed the appeal. The court dismissed the cross-appeal.

Family Law - Topic 688

Husband and wife - Property rights during and after common law marriage or relationship - Resulting or constructive trusts - Djekic and Zai separated after almost eight years' cohabitation - Djekic asserted a claim for a constructive trust in the home in which the parties resided - The trial judge found that Djekic had met the test for a finding of constructive trust based on unjust enrichment and fixed the value of Djekic's equitable interest at $100,000 - Djekic appealed, asserting that the judge erred by failing to hold that the parties had been engaged in a joint family venture and therefore that her interest should have been determined on the "value survived" approach (Kerr v. Baranow (2011, SCC)) - The Ontario Court of Appeal rejected the argument - First, Kerr was not argued before the trial judge - Further, there was no way on the state of the record to sort out the application of the requisite factors for a joint family venture to the circumstances - The judge was confronted with an unsatisfactory record - There was no valid appraisal as to the residence's value at the time of trial - The parties' financial affairs and relationship were complicated because they had jointly purchased five other residential properties, funded through lines of credit and, at least partly, through the proceeds from the sale of their respective homes - While Zai pointed to certain payments that he had made in various accounts, and while it appeared that Djekic received at least the sums of $56,000 and $47,955 from him, it was unclear what the funds were used for - The judge made no findings about whether Djekic's initial $80,000 contribution was a loan or a contribution to the purchase price - He did conclude that Djekic had been repaid that amount in one fashion or another, but that the funds had "went back into property or properties" and that it was impossible to sort out what happened to monies or what cheques went where - In the circumstances, and considering Djekic's other contributions to the residence, the judge concluded that a $100,000 equitable trust was appropriate - He did the best he could based on the record before him - His conclusion was fair and reasonable - However, Djekic should have been awarded prejudgment and post judgment interest on her award of $100,000 - She was also entitled to have a charge on the property to secure payment of the $100,000 plus interest - See paragraphs 11 to 19.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs - Djekic and Zai separated after almost eight years' cohabitation - Djekic asserted a claim for indefinite spousal support and a constructive trust equivalent to half the value of the home in which the parties resided (estimates varied from $600,000 to $750,000) - Zai opposed the claim and asserted his own claims for a reconciliation of amounts that he paid on behalf of Djekic respecting lines of credit that they had taken out in connection with a number of real estate investments in which they were jointly involved - He also claimed other adjustments - The trial judge ordered Zai to pay spousal support of $950 per month for six years - The court also ordered that Djekic was entitled to a $100,000 equitable trust interest in the residence - If Zai failed to pay that amount within one year, Djekic was entitled to register her $100,000 interest against title - The court awarded Djekic $18,500 in costs - Djekic appealed - Zai cross-appealed the cost award, asserting that the judge erred in finding that Djekic had been more successful than he had been - The Ontario Court of Appeal dismissed the cross-appeal - Costs were in the discretion of the trial judge, both as to quantum and as to who was to pay - Zai had opposed any payment of support and any award of equitable interest - Djekic succeeded on both counts - While Zai did enjoy some success at trial, there was no basis for interfering with the judge's decision - See paragraphs 22 and 23.

Family Law - Topic 1006

Common law, same-sex or adult interdependent relationships - Resulting or constructive trusts - [See Family Law - Topic 688 ].

Family Law - Topic 1009

Common law, same-sex or adult interdependent relationships - Joint family venture - [See Family Law - Topic 688 ].

Family Law - Topic 1013

Common law, same-sex or adult interdependent relationships - Maintenance - Djekic and Zai separated after almost eight years' cohabitation - The trial judge ordered Zai to pay spousal support of $950 per month for six years - The Ontario Court of Appeal held that the trial judge erred in determining that the award should be time limited - Although he considered the length of the parties' cohabitation, he failed to address other important factors - The Spousal Support Advisory Guidelines suggested that where a recipient's age plus the duration of the relationship were greater than 65, as was the case with Djekic, an indefinite award was appropriate - In Fisher v. Fisher (2008, Ont. C.A.), the court noted that while a judge could depart from the Guidelines, he or she had to provide reasons for doing so - The trial judge provided no reasons for doing so - He appeared not to have considered Djekic's age at all in that context or the fact that she was disabled and on a small pension - While Zai asserted that he was not a wealthy man, he had, or through his corporation had access to, an annual income in the neighbourhood of $90,000 - Although he might not maintain that earning capability for many years, the nature of an indeterminate award was that it was subject to variation, in light of appropriate changes in circumstances - See paragraphs 7 to 10.

Family Law - Topic 2213

Maintenance of spouses and children - General principles - Extent of duty to support - [See Family Law - Topic 1013 ].

Family Law - Topic 2329

Maintenance of spouses and children - Maintenance of spouses - Considerations - [See Family Law - Topic 1013 ].

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines (incl. non-divorce cases) - [See Family Law - Topic 1013 ].

Interest - Topic 5008

Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Entitlement - [See Family Law - Topic 688 ].

Practice - Topic 7030

Costs - Party and party costs - Entitlement to - Where success or fault divided - [See Family Law - Topic 966 ].

Real Property - Topic 8014.1

Title - Registration of instruments, etc. - Land titles system - Registration - Property interests held in trust - [See Family Law - Topic 688 ].

Cases Noticed:

Fisher v. Fisher (2008), 232 O.A.C. 213; 88 O.R.(3d) 241; 2008 ONCA 11, refd to. [para. 9].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, refd to. [para. 12].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 13].

Counsel:

Steven J. Lubczuk and Kathleen E. Quinlan, for the appellant and respondent on the cross-appeal;

William Zai, acting in person.

This appeal and cross-appeal were heard on January 8, 2015, by Weiler, Sharpe and Blair, JJ.A., of the Ontario Court of Appeal. The court released the following judgment on January 20, 2015.