CITATION: De Coito v. De Coito, 2009 ONCA 798

DATE: 20091112

DOCKET: C50503

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Juriansz and Rouleau JJ.A.

BETWEEN:

Isha De Coito

Applicant (Respondent in Appeal)

and

Robert Mohandeo De Coito and Sharda Rupert

Respondents (Appellant)

Counsel: Mark R. Mancini, for the appellant Steven Benmor, for the respondent

Heard and orally released: October 30, 2009

On appeal from the order of Justice Ferrier of the Superior Court of Justice dated April 16, 2009.

ENDORSEMENT

[1] The appellant brought a motion within the respondent wife’s motion in which the wife sought an order paying out the proceeds of the sale of the matrimonial home to her pursuant to the earlier order of Justice Goodman. In her motion, the appellant sought to enforce the judgment she had obtained subsequent to the order of Justice Goodman against the respondent husband for monies loaned and not repaid. Approximately $25,000 of some $56,000 had been used to pay down the mortgage on the matrimonial home, which at the time was in default. The property was registered solely in the husband’s name. The wife was unaware of the loan. Subsequent to the making of the loans, Justice Goodman divided the property and ordered that child support arrears be paid from the husband’s one-half interest in the sale proceeds.

[2] We agree with the motion judge that pursuant to s. 4 of the Creditors’ Relief Act, the outstanding child support arrears took priority over the appellant’s claim against the husband’s interest in the sale proceeds.

[3] The appellant claimed against the wife’s interest in the sale proceeds by invoking unjust enrichment. The appellant now argues that unjust enrichment is a cause of action and not a remedy and that as such the motion judge should not have considered and rejected it. She now wishes to assert a claim based on unjust enrichment in a different proceeding.

[4] Whether the motion judge considered unjust enrichment as a cause of action or a remedy does not matter. He properly analyzed and applied the elements that underlie unjust enrichment. He found that there was an enrichment of the wife and a corresponding deprivation of the appellant. However, he also found that there was a juridical reason for the enrichment, that being the borrowing of funds by the debtor, the husband, and the subsequent application of those funds to the mortgage. Thus, he held that the appellant did not have a claim on the sale proceeds based on unjust enrichment. We see no basis to interfere with his conclusion.

[5] In this court, the appellant advanced an argument that she was entitled to an equitable lien against the property. The appellant, however, did not advance an equitable lien argument before the motion judge. On this record, we do not think it proper for us to entertain it.

[6] In the result, the appeal is dismissed. We are satisfied that this is a proper case for partial indemnity costs. We fix the costs to the respondent in the amount of $6,500, inclusive of disbursements and GST.

“D. O’Connor A.C.J.O.”

“R.G. Juriansz J.A.”

“Paul Rouleau J.A.”