Digest of the Week | Kilitzoglou v. Curé



Kilitzoglou v. Curé,
2018 CarswellOnt 18487 (Ont.C.A.)


The Ontario Court of Appeal allowed an appeal by the defendant estate trustees from a judgment concerning expenses for a residence that was subject to a cohabitation agreement.
The plaintiff and deceased had a cohabitation agreement that provided the plaintiff with the option of remaining in the residence. The deceased's two daughters (defendants) were estate trustees and beneficiaries under his will. Concerning the residence, the trial judge granted the plaintiff judgment to cover the costs of capital repairs; apportioned insurance premiums on 50/50 basis; and found that the estate was entitled to recoup half of realty taxes and any maintenance costs that it had paid after the third anniversary of the deceased's death. The trial judge found bad faith in the defendants' attempt to force the plaintiff to sell the residence. The defendants appealed, which appeal was allowed. From the third anniversary of the deceased's death, the plaintiff was responsible for the ordinary and reasonable costs of maintaining the residence. The trial judge erred by allowing his view of the factual matrix to overwhelm or contradict words of the contract. The dominant theme of the cohabitation agreement was that each party would remain fiscally independent. It was not open to the trial judge to infer that the deceased wanted to care for the plaintiff for the rest of her life. The trial judge erred by apportioning realty taxes in accordance with what he thought "fair or reasonable" and apportioning insurance premiums to reflect equity apportioned in home, rather than according to the ordinary and grammatical meaning of words in the contract. The realty taxes and insurance cost had to be borne by plaintiff after expiry of three years. Given that the plaintiff was not paying all of the costs of maintaining residence, defendants could reasonably take position that she had not complied with agreement and the that residence should be sold. Their position could not support finding of bad faith.
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