Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240918 DOCKET: COA-23-CV-1176

Zarnett, Monahan and Pomerance JJ.A.

BETWEEN

Susan Yvonne Couvillon Applicant (Respondent)

and

Clarence Douglas Coughler Respondent (Appellant)

Counsel: Eric Lay, for the appellant J.L. Lee Mullowney, for the respondent

Heard and released orally: September 13, 2024

On appeal from the judgment of Justice Owen Rees of the Superior Court of Justice, dated August 18, 2023, with reasons reported at 2023 ONSC 4745.

Reasons for Decision

[1] The appellant and respondent are former spouses. During their marriage, in 1994, they purchased a residential property in Osgoode, Ontario. They took title as joint tenants, each with a 50% interest. The parties separated about 10 years later and were divorced in 2006. They did not deal with their property entitlements at that time. The appellant continued to reside in the property after the separation and made all the payments associated with the property during that time.

[2] In 2023, the respondent applied under the Partition Act, R.S.O. 1990, c. P.4 for sale of the property and sought 50% of the net proceeds. The appellant made a cross-application, seeking a constructive trust over the respondent’s interest in the property to reflect his disproportionate contribution.

[3] The application judge made an order which the parties agreed should be for a sale, not partition, and granted a constructive trust over part of the respondent’s interest. In light of certain factors, he decided that the fair division of the interests in the property, and therefore of the net proceeds of its sale, was 35% to the respondent and 65% to the appellant. He imposed a constructive trust in favour of the appellant over the respondent’s interest to this extent.

[4] The application judge explained, in paras. 36-38 of his reasons, the factors he took into account in arriving at this apportionment. Against the backdrop of the parties both having contributed to the acquisition and carrying of the property pre-separation, he noted that although the respondent had not financially contributed to the property post-separation, she had maintained her equity interest in the property as an investment and should not be deprived of all the increase in its market value. He noted that the appellant had solely made mortgage and other payments post-separation, but the appellant had the benefit of sole occupancy of the property. And he noted that the respondent had risked her credit by signing onto the post-separation mortgage renewals.

[5] The appellant argues that because he made the post-separation mortgage payments, he should have been granted a larger share of the property. He asks that the respondent’s interest be limited to $50,000 which would leave him with the benefit of the market appreciation of the property. The property had originally been purchased for $125,000. More recent estimates put the value at $1 million.

[6] The application judge was called upon to engage in a highly discretionary fact-specific exercise. Constructive trust is a flexible remedy, and the apportionment of interests to give effect to the remedy was a matter which fell within his broad discretion. In our view, the application judge’s analysis reveals no error in principle. He took the relevant factors into account. His decision is entitled to deference. The appellant essentially contends that the factors should have been weighted differently, but that is not our role. There is no basis for appellate intervention.

[7] The appeal is therefore dismissed.

[8] Costs of the appeal are awarded in favour of the respondent in the amount of $12,500 all-inclusive.

“B. Zarnett J.A.”

“P.J. Monahan J.A.”

“R. Pomerance J.A.”