Court of Appeal for Ontario

Mongillo v. Mongillo

Date: 2003-03-06

File No.: C33041

Counsel: Joseph C. Vieni, for the appellant.

Endorsement

[1] By the Court: On the basis of the evidence that he accepted, the trial judge really found that the appellant and the respondent entered into a contract by the terms of which the respondent agreed to move from the Kevlin home into a smaller home upon the promise of the appellant that she receive an unfettered one-half ownership of the smaller home. The appellant was in breach of contract when he tricked the respondent into signing the Trust Deed and the Power of Attorney. Moreover, in his amended statement of defence the appellant admitted that there was an agreement, but pleaded that the agreement was unenforceable as it was not set out in writing. In our view, the Statute of Frauds does not assist the appellant as the Deed to the home signed by the appellant and the respondent was in writing and there was part performance of the contract when the respondent took possession of the home and spent her own money to improve it.

[2] Although the trial judge's legal analysis may be faulty, we are satisfied that he reached the correct result on the testimony and the evidence that he accepted.

[3] Therefore, the appeal is dismissed with costs on a partial indemnity scale, including disbursements and GST, fixed at $20,000.

Appeal dismissed.