DATE: 20050330

DOCKET: C40514

COURT OF APPEAL FOR ONTARIO

RE:

RICHARD WILLIAM PARNELL (Appellant/Respondent by way of cross‑appeal) – and – LYNN SUSAN VIGER (Respondent/Appellant by way of cross‑appeal)

BEFORE:

MACPHERSON, CRONK JJ.A. and WHALEN J. (ad hoc)

COUNSEL:

Hendrik (Hank) Keesmaat

for Richard W. Parnell

Michael Nash

for Lynn S. Viger

HEARD & RELEASED ORALLY:

March 18, 2005

On appeal from the judgment of Justice Barry H. Matheson of the Superior Court of Justice dated June 25, 2003.

E N D O R S E M E N T

[1] The appellant, Richard Parnell, appeals the judgment of Matheson J. dated June 25, 2003, ordering that the respondent, Lynn Viger, had a 45 per cent constructive trust in a residential home at 30 Rushdale Drive in Hamilton and a 20 per cent constructive trust in a 1987 Bayliner 32' motor yacht cabin cruiser.

[2] The parties, who had been previously married, began a common law relationship in August 1988. There were two children born from the relationship. The relationship ended on December 3, 2001 when the appellant removed the respondent from their home pursuant to a court order obtained on an ex parte basis.

[3] The sole issue at trial was whether the respondent had a constructive trust in some of the appellant’s property, including a business, two properties, boats and various other personal property and assets.

[4] The trial judge held that the respondent was not entitled to receive any compensation from the proceeds of the sale of the appellant’s business (approximately $1,000,000). He reached a similar conclusion with respect to the contested property items, with two exceptions – the residential home and one of the boats. With respect to these items, the trial judge imposed a constructive trust in favour of the respondent – 45 per cent for the home, which was valued at $187,000 at the date of the separation, and 20 per cent for the boat. It is agreed that the value of the respondent’s interests in these properties based on these percentages is, as the trial judge found, $97,000.

[5] The appellant contends that the trial judge erred in concluding that he had been unjustly enriched by the respondent’s contributions to the relationship, including the home and the purchase of the boat. Accordingly, the trial judge also erred by ordering the remedy of a constructive trust.

[6] We disagree. The trial judge applied the correct legal principles relating to unjust enrichment and constructive trusts as set out in the case law, especially Peter v. Beblow, 1993 126 (SCC), [1993] 1 S.C.R. 980. Moreover, in our view, his application of these principles to the factual context of the parties’ 13‑year relationship is entirely supportable. Indeed, the trial judge was particularly careful in his analysis of the various items of contested property, and demonstrated convincingly the respondent’s direct and indirect contributions to those properties, which grounded her claim for compensation.

[7] The appellant also contends that the trial judge erred by ordering a constructive trust in a percentage amount as opposed to a fixed amount. The respondent agrees with this submission. Without deciding that a percentage formulation of a constructive trust would be inappropriate in all circumstances, since the parties agree that a fixed amount is preferable in this case, and since they also agree that the amount relating to the residence and the boat is $97,000, we would vary the trial judge’s order in that respect. Further, the judgment shall bear post-judgment interest from the date of his decision in accordance with the Courts of Justice Act.

[8] The respondent cross‑appeals. She submits that the trial judge erred by not including the appellant’s former business in the property subject to a constructive trust. We disagree. The trial judge concluded that the respondent’s contribution to the business, as both a full‑ and part‑time employee over many years, was essentially that of an employee for which she received appropriate financial compensation. We see no basis for interfering with this conclusion.

[9] The respondent also argues that her $97,000 interest in the residence and the boat should be secured against the appellant’s interest in the residence at 30 Rushdale Drive, Hamilton. We agree and we so order. We note that the trial judge made a similar order in respect of his costs award at trial, which is now secured against the Rushdale Drive property.

[10] Finally, the respondent seeks an order from this court that if the amount of the money judgment, together with the costs award at trial, in her favour are not paid within two months of the date of the disposition of these proceedings, the Rushdale Drive property should be partitioned and sold under the authority of the Clerk of the Superior Court of Justice, Family Court at Hamilton, by way of reference. In our view, in the unusual circumstances of this case, this is an appropriate order: see Pelican v. Karpiel, 1994 5 (ON CA), [1994] O.J. No. 2584 (Ont. C.A.).

[11] Accordingly, if the judgment and costs award at trial in favour of the respondent, as varied by this decision, are not paid to the respondent or her counsel by June 30, 2005, the Rushdale Drive property shall be sold under the supervision of the Family Court at Hamilton with the proceeds of sale first applied to satisfy the sums owing to the respondent and the balance paid to the appellant.

[12] The respondent is entitled to her costs of the motions, appeal and cross‑appeal, taken together, which we fix at $15,000, inclusive of disbursements and GST. Since the appellant has already paid $10,000 into court as security for costs, which can be released to the respondent, we further order that the remaining $5000 be secured against the appellant’s interest in the residence at 30 Rushdale Drive, Hamilton.

“J. C. MacPherson J.A.”

“E. A. Cronk J.A.”

“W. L. Whalen J. (ad hoc) per JCM”