COURT OF APPEAL FOR ONTARIO

DATE: 20000229

DOCKET: C29145

OSBORNE A.C.J.O., MORDEN AND MOLDAVER JJ.A.

B E T W E E N :

FAYEZ NASSER

Plaintiff/Appellant

Thomas G. Bastedo, Q.C.
for the appellant

• and -

MONIKA MAYER-NASSER (also known as MONIKA MAYER)

Defendant/Respondent

Angela Costigan
for the respondent

Heard: March 19, 1999

On appeal from the judgment of Kiteley J. dated January 21, 1998

OSBORNE A.C.J.O.:

OVERVIEW

[1] This is an appeal by the plaintiff Fayez Nasser and a cross- appeal by the defendant Monika Mayer-Nasser from the judgment of Kiteley J. dated January 21, 1998. In that judgment, after adjusting the parties’ ownership interests in certain properties by the application of resulting trust principles, the trial judge accepted Ms. Mayer-Nasser’s claim that Mr. Nasser was unjustly enriched to Ms. Mayer-Nasser’s detriment and that there was no juristic reason for the enrichment. To remedy the unjust enrichment the trial judge held that Ms. Mayer-Nasser was entitled to 35 percent of the value of the parties’ total assets. She went on to find that Ms. Mayer-Nasser’s entitlement could best be satisfied by the adjustment of title to two properties which were jointly owned by the parties and a cash payment.

[2] Mr. Nasser submits that the trial judge erred in finding that he was unjustly enriched to Ms. Mayer-Nasser’s detriment. He further submits that if Ms. Mayer-Nasser is entitled to relief to remedy unjust enrichment, the trial judge erred in making the hybrid remedial order (property transfer and cash) that she did.

[3] Ms. Mayer-Nasser, in her cross-appeal, contends that the trial judge erred in limiting her recovery to 35 percent of the total value of the parties’ assets. She submits that the appropriate remedy for the unjust enrichment found by the trial judge should be quantified at 50 percent of the value of the parties’ assets.

THE EVIDENCE AND TRIAL ISSUES

(i) The Parties Relationship

[4] I do not propose to review all of the sometimes conflicting evidence. I will, however, review some of the evidence bearing on the parties’ family and business relationships. At the outset I note that, for the most part, the trial judge made findings of credibility favourable to Ms. Mayer-Nasser, although she recognized that in some parts of her evidence, Ms. Mayer-Nasser was prone to exaggeration.

[5] Mr. Nasser, born in 1936, and Ms. Mayer-Nasser, born in 1943, met in 1967. At that time they were employees of Carl Zeiss Canada Ltd. They began seeing each other outside of their work environment in about 1972. In the summer of 1973, Ms. Mayer- Nasser told Mr. Nasser that she was pregnant. This occurred in a chapel in Niagara Falls, Ontario where Ms. Mayer-Nasser said that she and Mr. Nasser privately exchanged “matrimonial vows.” Mr. Nasser put a different gloss on this event. He testified that they made an agreement in the chapel under which they promised to take responsibility for their then unborn child and to share the expenses related to the child equally. He denied that he and Ms. Mayer-Nasser exchanged matrimonial vows. In any case, Mr. Nasser and Ms. Mayer-Nasser cohabited for over 23 years before they separated. It is apparent that Ms. Mayer-Nasser was viewed by the outside world as Mr. Nasser’s wife. However, they never married legally. They have two children, Nadia born on December 10, 1973 and Norman, born on April 19, 1977.

[6] The parties’ relationship deteriorated irreparably by October 1995. One source of their problems was the disagreement about the manner in which they should deal with their daughter, Nadia. All that need be said about that is that Ms. Mayer- Nasser’s views were significantly more liberal than Mr. Nasser’s.

[7] Beginning in 1995, Mr. Nasser did not eat at home and began to stay away from the matrimonial home until late at night. As a consequence of her fractured relationship with Mr. Nasser, Ms. Mayer-Nasser became depressed. She testified that Mr. Nasser threatened her with litigation. She said he also physically threatened her and that he said, “You’re going to eat the crumbs off the floor. I’m going to hurt you.” At this time, Ms. Mayer- Nasser was frightened and slept with a baseball bat by her side.

[8] On December 19, 1995, Jennings J., in response to Ms. Mayer- Nasser’s motion, gave her exclusive possession of the matrimonial home subject to Mr. Nasser’s right to use the master bedroom for sleeping purposes from 10:00 p.m. until 7:30 a.m. each day.

[9] In January 1996, Mr. Nasser, using a lipstick, wrote what Ms. Mayer-Nasser thought was a threatening Arabic proverb on a bathroom mirror. When Ms. Mayer-Nasser saw this, she collapsed and on January 16, 1996 in a state of depression she jumped from the Brimley Road - 401 bridge. She is a paraplegic.

[10] Before he moved from the matrimonial home, and while Ms. Mayer-Nasser was in hospital, Mr. Nasser moved a framed copy of the Arabic proverb to which I have referred from the basement and hung it in the master bedroom.

(ii) Employment History – Mr. Nasser

[11] Mr. Nasser worked for Carl Zeiss Canada Ltd. (“Zeiss”) for ten years before he came to Canada in 1967. At that time he was married and had two children aged three and one. He separated from his wife in 1970. For the next 18 years, he was involved in a bitter divorce proceeding. He is trained as an optical electronic technician who has a particular expertise in microscopes and other optical instruments.

[12] In March 1985, Mr. Nasser accepted an early retirement package from Zeiss. However, he continued to deal with Zeiss, but as a supplier rather than as an employee.

[13] In 1985, West-East Trading Company (Wetco), a business that Mr. Nasser had established in 1978 with members of his family, was incorporated. It carried on business under the name Microlites. As a result of Mr. Nasser’s particular skills, Microlites got into the business of manufacturing and distributing bulbs for microscopes and other optical instruments. By 1989, Mr. Nasser held all of the shares of Microlites.

[14] In 1991, there were significant cutbacks in the funding of hospitals and universities. Due to the cutbacks, these institutions had to continue to use old equipment because funds were not available to buy new equipment. Mr. Nasser possessed the skills to adapt existing equipment, such as microscopes, for current use. The combination of provincial funding cutbacks and Mr. Nasser’s expertise caused Microlites to prosper.

[15] 1991 was described as a breakthrough year. In that year, Microlites’ gross sales increased from $405,000 to $1,250,000. In that period Microlites gross profit margin was between 35 and 41 percent. It is fair to say that Mr. Nasser’s business was prosperous and that its prosperity depended to a large measure on his unique expertise. At the time of separation Microlites was valued at $516,000.

(iii) Employment History – Ms. Mayer-Nasser

[16] When Mr. Nasser and Ms. Mayer-Nasser began to see each other in 1972, Ms. Mayer-Nasser was employed at Zeiss in the accounting and order entry department. She took a maternity leave in 1973 when the parties’ daughter Nadia was born. She did not return to work full time until 1977. Due to problems in obtaining satisfactory babysitting, the parties agreed that she would remain at home to look after the children. She cooked, cleaned, washed and was generally responsible for household management. During this period Ms. Mayer-Nasser worked for a short time with Woolco and the Yellow Pages. In 1978, after Wetco was established, Ms. Mayer-Nasser worked for Wetco answering the telephone.

[17] In May 1985, Wetco carried on business as Microlites. Microlites leased premises at 2240 Midland Avenue in Scarborough in August 1985. Ms. Mayer-Nasser worked there every day in order to establish the business. She answered the telephone, placed and received orders and did the accounting. Mr. Nasser’s brother testified that she was of great assistance to Microlites.

[18] By 1990, Ms. Mayer-Nasser worked at Microlites about three days a week from 11:00 a.m. to 4:00 p.m. Throughout this time, she had full child care and household management responsibilities. Ms. Mayer-Nasser was paid $24,000 in 1990, $26,400 in 1991, $27,456 in 1992, $18,000 in 1993, $20,400 in 1994 and about $22,000 in 1995.

[19] Ms. Mayer-Nasser was paid by Microlites on the 15th and 30th of each month. She paid all of the household expenses and expenses related to a condominium on Sheppard Avenue where Mr. Nasser’s mother lived from her salary. Mr. Nasser required Ms. Mayer-Nasser to operate on what was referred to in the evidence as an “in and out” budget. It was because of the restrictions of this “in and out” budget that Ms. Mayer-Nasser shopped at outlets such as Goodwill and the Salvation Army. Mr. Nasser exercised a very strict control over all of the household and other expenses. The result was that Ms. Mayer-Nasser, as the trial judge put it, “…used virtually all of the resources attributed to her for tax purposes and for family purposes.”

[20] By about April 1995, as a result of their deteriorating relationship Ms. Mayer-Nasser stopped working at Microlites. Her version of this was that Mr. Nasser fired her; Mr. Nasser testified that Ms. Mayer-Nasser quit voluntarily. In any case, after Ms. Mayer-Nasser left, or was asked to leave, Mr. Nasser gave her no money for household expenses for four months.

(iv) The Parties Assets

[21] In 1973, Mr. Nasser purchased 1 Fulham Street from Ms. Mayer- Nasser’s former husband. Title was taken in Ms. Mayer-Nasser’s name. Mr. Nasser testified that he and Ms. Mayer-Nasser agreed that once Mr. Nasser’s divorce action was completed he and Ms. Mayer-Nasser would own 1 Fulham Street as joint tenants.

[22] In June 1979 the parties purchased a condominium on Sheppard Avenue in Scarborough as a residence for Mr. Nasser’s mother. The mortgage on the Sheppard Avenue condominium was paid off in 1982. The Sheppard Avenue condominium was registered in Ms. Mayer-Nasser’s name and occupied by Mr. Nasser’s mother.

[23] In 1989, 1992 and 1994 the parties purchased three commercial condominium units on Midland Avenue in Scarborough. The first commercial condominium was paid for out of the proceeds of the sale of a property in Florida which Mr. Nasser owned. Microlites eventually carried on business from the three commercial Midland Avenue condominium units.

[24] Ms. Mayer-Nasser assisted in the purchase of one of the commercial condominium units by mortgaging the Fulham Street residence for $50,000. This mortgage was later increased to $120,000 when the parties purchased the third commercial Midland Avenue condominium unit. This mortgage was discharged in 1995.

(v) The Value of the Parties’ Assets

[25] At trial, Mr. Nasser and Ms. Mayer-Nasser agreed on the value of the assets each of them held when they separated. The valuation of the parties’ RRSPs took into account the tax consequences of their disposition. Since the parties agreed on the value of their assets, no evidence was led with respect to any relevant asset values at the trial. Nor were the assigned asset values in issue on the appeal. Finally, on this issue, it appears that the parties agreed the assigned date of separation asset values could be taken as the asset values at the time of the trial.

[26] In summary form, when the parties separated in 1995, the assets each of them held and their agreed values were:

Asset

Ms. Mayer-Nasser

Mr. Nasser

Fulham Street

$222,000

Sheppard Avenue condominium

71,000

Midland Avenue commercial condominiums

70,000

$70,000

Contents of matrimonial home

10,000

Business Tools

10,000

Cemetery Plots

3,825

RRSPs

25,739

106,825

Microlites

516,000

Life Insurance (cash surrender value)

14,371

24,497

Total

$411,110

$731,147

[27] As is apparent from the above, the total agreed value of the assets of the parties was $1,142,257 ($411,100 + $731,147).

(vi) The Resulting Trust Title Adjustments

[28] At trial, Mr. Nasser took issue with Ms. Mayer-Nasser’s ownership interest in Fulham Street, the residential condominium on Sheppard Avenue and the three commercial condominiums on Midland Avenue. He contended that Ms. Mayer-Nasser held those properties in trust for him and sought a declaration to that effect. As I have noted, title to 1 Fulham Street and the Sheppard Avenue condominium was in Ms. Mayer-Nasser’s name. Title to the three commercial condominiums was held by Mr. Nasser and Ms. Mayer-Nasser jointly.

[29] I will not spend much time dealing with the trial judge’s resolution of Mr. Nasser’s resulting trust claims since no issue is taken with it on this appeal. It will be sufficient to note that after referring to the resulting trust principles set out by Dickson J. in Rathwell v. Rathwell (1978), 1978 3 (SCC), 1 R.F.L. (2d) 1 (S.C.C.), the trial judge declared that the Fulham Avenue property was owned to the extent of 50 percent by Mr. Nasser. She also declared that the Sheppard Avenue condominium which was registered in Ms. Mayer-Nasser’s name was owned by Mr. Nasser.

[30] The three commercial condominiums were, as I have said, owned jointly and Mr. Nasser sought a declaration that he was the sole owner of all three condominiums. The trial judge dismissed his claim in that regard. She also dismissed Mr. Nasser’s alternative claim that he was entitled to a 100 percent ownership of the three condominium units based on unjust enrichment principles.

[31] After the trial judge’s findings with respect to Mr. Nasser’s resulting trust claims are taken into account, the assets owned by the parties and their values were:

Asset

Ms. Mayer-Nasser

Mr. Nasser

Fulham Street

$110,000

$110,000

Sheppard Avenue condominium

70,000

71,000

Midland Avenue commercial condominiums

10,000

$70,000

Contents of matrimonial home

Business Tools

10,000

Cemetery Plots

3,825

RRSPs

25,739

106,825

Microlites

516,000

Life Insurance (cash surrender value)

14,371

24,497

Total

$230,110

$912,147

[32] As a result of the changes brought about by the trial judge’s resulting trust declarations, the value of the assets owned by Mr. Nasser increased by $181,000 and the value of the assets owned by Ms. Mayer-Nasser decreased by the same amount. The total of the parties’ assets, of course, remained at $1,142,257.

(vi) Ms. Mayer-Nasser’s Unjust Enrichment Claim

[33] When she dealt with Ms. Mayer-Nasser’s unjust enrichment claim, the trial judge made findings of fact, all of which appear to me to be supported by the evidence. She found that Ms. Mayer- Nasser worked directly for Microlites in three phases. The first was the early years from 1979 to 1985 when the unincorporated business, Wetco, was operated from the parties’ matrimonial home. The second phase was between 1986 and 1990 when she was the business’s only employee. In that period she received a salary and rental income from Microlites and Mr. Nasser. Her earnings were sufficient to enable her to contribute regularly to her RRSP account. Her third working phase was from 1990 to 1994. In this period she was subject to the “in and out” budget to which I have referred. The trial judge recognized that some of the income that Ms.Mayer-Nasser received in this period was not related to her work for Microlites but was tax driven income splitting. She found that Ms. Mayer-Nasser was adequately compensated for her direct contributions as an employee of Microlites.

[34] The trial judge referred in some detail to the parties’ “documented financial relationship” which established that they were not independent of one another from a financial standpoint. She emphasized not only what income Ms. Mayer-Nasser received but also what she was required to do with it. She found that the income that Ms. Mayer-Nasser received from all sources during her 23 year period of cohabitation with Mr. Nasser was about $432,000 and that Ms. Mayer-Nasser, in addition to her interest in 1 Fulham Street, ended the relationship “with cash equal to about 10 percent of what she had received as income.” The trial judge concluded that Ms. Mayer-Nasser committed a disproportionate part of her earnings to what might generally be described as family- related needs and that Mr. Nasser, who earned substantially more income than Ms. Mayer-Nasser in the period of cohabitation, was able to segregate his earnings from the money spent for family- related purposes. The trial judge dealt with this aspect of the parties’ relationship in this way:

I am mindful that Monika used virtually all of the resources attributed to her for tax purposes for family purposes. As the unique features of their documented financial relationship indicates, their finances were by no means independent of each other. Monika became accountable for 100 per cent of her income based on the “in and out budget.” … In other words, in addition to her interest in Fulham [the matrimonial home], Monika ended the relationship with cash equal to about 10 per cent of what she had received as income. I do not have such a detailed analysis of Fayez income. But suffice it to say based on the penultimate chart, that Fayez must have earned more income, and more importantly, been able to segregate his resources from those expended by the family. This commitment of funds disproportionately by Monika is a deprivation to her and an enrichment to Fayez.

[35] The trial judge further found that Ms. Mayer-Nasser made a significant contribution in the areas of child care and household management. Between May 1977 and the end of 1985, Ms. Mayer- Nasser was not working outside the home except to a very modest degree. The trial judge noted that Mr. Nasser could not have succeeded as he did in his business had Ms. Mayer-Nasser not assumed total child care and household management responsibilities. On this subject the trial judge said:

…[S]he was primarily responsible for child care and managing the household. Fayez could not have made the effort he did, but for Monika’s assumption of those responsibilities. The children were aged 4 and an infant at the beginning of this period. They were 12 and 8 at the end of it. With a household of four and additional responsibilities to Fayez mother, Monika had her hands full. Fayez reaped the benefit of her efforts by being able to focus on his salaried job at Carl Zeiss as well as promote the export business.

[36] After taking account of the entire relationship between Mr. Nasser and Ms. Mayer-Nasser the trial judge recognized that a “precise balancing” of the benefits conferred in the parties’ relationship could not be established. She concluded, nonetheless, that Ms. Mayer-Nasser’s contributions were significant enough to support a finding that Mr. Nasser was enriched, and that there was a corresponding deprivation to Ms. Mayer-Nasser.

[37] When she considered the issue whether there was a juristic reason for the unjust enrichment the trial judge quoted the following passage from Peter v. Beblow (1993), 1993 126 (SCC), 44 R.F.L. (3d) 329 (S.C.C.) at 340 in respect of the child care and domestic services that Ms. Mayer-Nasser provided:

It is my view that this argument [the argument that domestic services are provided out of a sense of love and commitment to the relationship] is no longer tenable in Canada, either from the point of view of logic or authority. From the point of view of logic, I share the view of Professors Hovius and Youdan that “there is no logical reason to distinguish domestic services from other contributions. … The notion that household and childcare services are not worthy of recognition by the court fails to recognize the fact that these services are of great value, not only to the family, but to the other spouse. … The notion, moreover, is a pernicious one that systematically devalues the contributions which women tend to make to the family economy. … Moreover, the argument cannot stand with the jurisprudence which this and other courts have laid down. Today courts regularly recognize the value of domestic services. This became clear with the court’s holding in Sorochan, leading one author to comment that “the Canadian Supreme Court has finally recognized that domestic contribution is of equal value as financial contributions in trusts of property in the familial context.”

[38] In my opinion, there is no proper basis upon which to interfere with the trial judge’s unjust enrichment finding. Mr. Nasser was able to increase his net worth as a result of Ms. Mayer-Nasser’s significant contribution to this family enterprise. In the circumstances, the trial judge’s conclusion that Mr. Nasser was enriched by Ms. Mayer-Nasser’s many contributions, that Ms. Mayer-Nasser suffered a corresponding deprivation and that there was no juristic reason for the enrichment are reasonable findings which are supported by the evidence. See Pettkus v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834 at 849.

[39] When she dealt with the issue of the appropriate remedy, the trial judge referred extensively to Peter v. Beblow, supra. Consistent with MacLachlin J.’s majority reasons in Peter, she accepted that unless a monetary award was inadequate, the appropriate remedy for unjust enrichment should be monetary (as opposed to proprietary). After she reviewed all of Ms. Mayer- Nasser’s contributions to the family enterprise over the lengthy period of cohabitation, the trial judge looked to the total family asset base and concluded that the contributions of Mr. Nasser and Ms. Mayer-Nasser to the accumulation of their assets “was not equal.” Having reached that conclusion the trial judge went on to find that to remedy the unjust enrichment that she found to exist, Ms. Mayer-Nasser should receive 35 percent of the total value of the property that the parties had accumulated during co-habitation, that is $400,000 (approximately 35 percent of $1.1 million). To get Ms. Mayer-Nasser into an asset position of $400,000 the trial judge ordered that:

• Mr. Nasser’s one-half interest in the Fulham Street • property be transferred to Ms. Mayer-Nasser; • Ms. Mayer-Nasser’s one-half interest in the three • Midland Avenue industrial condominiums be transferred • to Mr. Nasser; and • the balance (about $130,000) to be paid by Mr. Nasser to • Ms. Mayer-Nasser in cash.

[40] The two property ownership adjustments to which I have referred above increased Ms. Mayer-Nasser’s net asset base by $40,000 (plus $110,000 in connection with the Fulham Street property transfer and minus $70,000 with respect to the Midland Avenue industrial condominium transfer).

[41] After the constructive trust remedial adjustments, the parties’ asset picture was, as follows:

Asset

Ms. Mayer-Nasser

Mr. Nasser

Fulham Street

$220,000

Sheppard Avenue condominium

$71,000

Midland Avenue commercial condominiums

140,000

Contents of matrimonial home

10,000

Business Tools

10,000

Cemetery Plots

3,825

RRSPs

25,739

106,825

Microlites

516,000

Life Insurance (cash surrender value)

14,371

24,497

Cash

129,890

(129,890)

Total

$400,000

$742,257

[42] In addition to challenging the trial judge’s unjust enrichment finding, Mr. Nasser takes issue with the remedy resorted to by the trial judge in two general respects. First, he contends that the trial judge erred in quantifying Ms. Mayer- Nasser’s entitlement by looking at the parties’ total net assets (about $1.1 million) and then concluding that Ms. Mayer-Nasser’s entitlement to remedy unjust enrichment should be “35 percent of the total value of the property accumulated by both of them.” Second, Mr. Nasser takes issue with the trial judge’s decision to juggle the parties’ ownership interests in the two properties to which I have referred and her decision to make up the balance (to set Ms. Mayer-Nasser to a $400,000 asset position) by requiring Mr. Nasser to pay Ms. Mayer-Nasser about $130,000. I will deal with the quantification issue first.

[43] I accept that in quantifying Ms. Mayer-Nasser’s entitlement by looking to the total value of the parties’ assets and awarding Ms. Mayer-Nasser 35 percent of that total the trial judge did not follow MacLachlin J.’s direction in Peter v. Beblow by valuing Ms. Mayer-Nasser’s contributions to this family enterprise on a literal value received, or quantum meruit, basis. It is, however, important to recognize the net effect of the trial judge’s remedial order was to increase Ms. Mayer-Nasser’s asset base by $170,000. This is so because Ms. Mayer-Nasser had assets after the resulting trust property adjustments valued at $230,000. The unjust enrichment remedial order increased the value of her assets from $230,000 to $400,000. The issue then is whether the trial judge’s order which benefitted Ms. Mayer-Nasser to the extent of $170,000 can be sustained.

[44] A monetary award to remedy unjust enrichment cannot be calculated with precision, particularly when the period of cohabitation is long, as is the case here. In cases involving a long period of cohabitation, the line between a value received and value survived determination becomes somewhat blurred. Ms. Mayer-Nasser’s contributions were provided in the context of a family enterprise, the value of those services cannot realistically be assessed in the abstract. Since Mr. Nasser was, in the final analysis, the beneficiary of Ms. Mayer-Nasser’s many contributions to the family enterprise, it seems to me to make sense to take account of the value to him of Ms. Mayer-Nasser’s contributions.

[45] In light of the trial judge’s findings of fact, and in the context of the parties’ 23 year period of co-habitation, I do not think that the payment to Ms. Mayer-Nasser of $170,000 is unreasonable. In my view, it was open to the trial judge to consider the value of the services provided by Ms. Mayer-Nasser against the background of the assets the parties were able to accumulate during their lengthy period of co-habitation. Since this is an appeal, it is only where the trial judge’s decision (in this case to award Ms. Mayer-Nasser $170,000 to remedy unjust enrichment) exceeds the generous ambit within which reasonable disagreement is possible and is plainly wrong that this court will interfere. See Silver v. Silver (1985), 1985 2075 (ON CA), 49 R.F.L. (2d) 148 (Ont. C.A.) and Mack v. Mack (1986), 1986 6346 (ON CA), 1 R.F.L. (3d) 143 (Ont. C.A.). In my opinion, the award of $170,000 comes within the generous ambit of reasonableness and I would, therefore, not interfere with it. I note in passing that if the parties had married, Ms. Mayer-Nasser’s equalization payment (after the resulting trust title adjustments) would have been $341,000, assuming that there was an equal division of the difference in the parties’ net family properties. The payment ordered by the trial judge was one-half of this amount.

[46] This brings me to the property transfer issue. Mr. Bastedo (who was not Mr. Nasser’s trial counsel), submits that the trial judge erred in effecting a “re-arrangement of title” when a monetary award was found to be adequate. Ms. Costigan (who was Ms. Mayer-Nasser’s trial counsel), submits that the trial judge did no more than what trial counsel asked her to do if she found that Ms. Mayer-Nasser was entitled to relief based on unjust enrichment. Although the trial record is unclear, it tends to support Ms. Costigan’s position. Beyond that, Mr. Bastedo was unable to say that Ms. Costigan’s submissions with respect to the position taken by counsel at trial were wrong. Finally, the trial judge’s reasons support Ms. Costigan’s submissions on the issue. When the trial judge dealt with the issue of remedy, she noted that if there were a finding of unjust enrichment, counsel favoured a monetary award and some juggling of assets to give effect to the award. The trial judge put it in this way in her reasons:

In this case, I understand that counsel favour a monetary award, should I reach the conclusion that Monika is entitled to a remedy. I further understand that counsel anticipate the prospect that assets from one side of the balance sheet might be moved to the other to accomplish the award. Given the nature of the assets available, monetary award is not only desirable it is possible. Furthermore, a “re-arrangement” of the title to property is appropriate where the level of conflict in the action has been high.

[Emphasis added.]

[47] It is apparent from the trial judge’s reasons that the prospect of her ordering some transfer of assets in the event that she found unjust enrichment was discussed with counsel and agreed to. If that were not the case, I would assume that trial counsel would have so informed the trial judge. Since counsel apparently agreed to the trial judge’s asset juggling approach, I am not prepared to re-visit that issue on the appeal.

THE CROSS-APPEAL

[48] In her cross-appeal, Ms. Mayer-Nasser seeks an order granting her 50 percent of the parties’ total assets, that is 50 percent of $1.1 million. I see no basis upon which to increase the trial judge’s monetary award, which I have said was reasonable. I would, therefore, dismiss the cross-appeal with costs.

CONCLUSION

[49] For these reasons, I would dismiss the appeal and cross- appeal, both with costs.

“C.A. Osborne A.C.J.O.”

“I agree: J.W. Morden J.A.”

“I agree: M.J. MoldaverJ.A.”

Released: February 29, 2000