Court of Appeal for Ontario

Date: 2018-01-12 Docket: C63598

Judges: Feldman, Pepall and Huscroft JJ.A.

Between

Frederick Robert Alan Marshall Respondent (Appellant in Appeal)

and

Kathleen Margaret Marshall Applicant (Respondent in Appeal)

Counsel

Frederick Leitch, Q.C., for the appellant

Michelle Kropp, for the respondent

Heard and released orally: January 8, 2018

On appeal from: the judgment of Justice Jonathon C. George of the Superior Court of Justice, dated January 18, 2017.

Reasons for Decision

[1] The appellant husband appeals from the decision of the trial judge with respect to the ownership of two Mexican condominiums which were purchased with funds contributed by both spouses.

[2] The trial judge rejected the appellant husband's claim that he held title to the condominiums (through ownership of shares in a company) on resulting trust for the wife in respect of half their value. The resulting trust was claimed by the appellant husband because the value of the Mexican properties had apparently declined since the date of separation, so that it would be of financial benefit to him in the equalization calculation to have half the value at the date of separation attributable to the respondent wife. Although she contributed funds to purchase the properties, the wife rejected the claim that she held half on resulting trust.

[3] In this case much evidence was led regarding the purchase of the Mexican properties, and the decisions regarding the rental and sale of the properties. The trial judge considered all the evidence, and effectively found, based on all the evidence, that the presumption of resulting trust had been rebutted. We see no basis to interfere with that decision.

[4] The appeal is therefore dismissed, with costs of the appeal to the respondent, fixed at $11,500, inclusive of disbursements and HST.

K. Feldman J.A.

S.E. Pepall J.A.

Grant Huscroft J.A.