COURT FILE NO.: FS-21-088(Walkerton)

DATE: 2021 12 21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Paul Urbshott, Applicant

AND:

Elizabeth Barrie Owen, Respondent

BEFORE: Justice J.R. Sproat

COUNSEL: R. Shankar, for the Applicant

S. Quinn, for the Respondent

HEARD: November 25, 2021

ENDORSEMENT

[1] The parties lived together from 2004 to earlier this year but never married.

[2] In 2005 Ms. Owen purchased a 100-acre property. In or about 2006 construction started on a large home and barns on the property. Earlier this year Ms. Owen advised Mr. Urbshott that she intended to sell the property. They separated soon after.

[3] Mr. Urbshott advanced a constructive trust – unjust enrichment claim. His grounds for entitlement include:

a) he negotiated the purchase of the 100-acre property from a relative of his and received a family discount;

b) he is a qualified Master Carpenter and performed some of the work on the new home himself;

c) he acted as the general contractor and secured favourable prices from trades people he had come to know over his career;

d) he worked on the property and took primary responsibility for tending to animals and maintaining the property;

e) he paid approximately $30,000 for masonry and brick work on the house.

[4] Ms. Owen disputes some of the allegations. She does acknowledge the payment of approximately $31,000.

[5] The sale of Ms. Owen’s home was scheduled to close November 30, 2021. The sale price is approximately $1.4 million. In anticipation of the sale she has purchased a small home in Wiarton for $467,000 using bridge financing. After her sale closes, the Wiarton home will be unencumbered and Ms. Owen will have an additional $5 – 600,000 to invest.

[6] Mr. Urbshott’s motion requested that 50% of the net proceeds of sale be held in trust.

[7] The parties agree that the Rule 45.01 test is applicable and that the first two elements of the test are met. The issue then is balance of convenience.

[8] Ms. Quinn’s argument was that since the Notice of Motion asks that 50% of the net proceeds be held in trust the court cannot consider less onerous means of providing security. I do not agree. It was clear from the Notice of Motion that Mr. Urbshott wanted an order to secure his position. I see no unfairness to Ms. Owen in considering alternative, less onerous, forms of security or considering securing a lesser amount. I think that this conclusion is supported by the goal of the civil rules “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”.

[9] Further, as I noted in argument, if Mr. Urbshott had claimed a Certificate of Pending Litigation (“CPL”) it would have been granted. He did not do so, however, as he was not trying to block the sale and did not have particulars of the new Wiarton property. So, dismissing the motion on technical grounds would only delay the inevitable, that security would be obtained through CPL.

[10] Ms. Quinn advised that on the November 30, 2021 sale, certain proceeds will be used to pay off bridge financing so that Ms. Owen will own the Wiarton property free and clear.

[11] Ms. Quinn shall provide proof that has been done forthwith after the closing. An order will issue that Ms. Owen not encumber the Wiarton home. Pending the removal of the encumbrances on the Wiarton property, I make a general order that Ms. Owen not dissipate the net proceeds of sale. In other words, the funds are to be invested not given away or transferred out of Ontario.

[12] An order so tailored provides protection to Mr. Urbshott while, as a practical matter, imposing no burden on Ms. Owen. As such, the balance of convenience favours the granting of the order. Mr. Shankar shall draft an order to reflect this endorsement and provide it to Ms. Quinn for approval.

[13] Mr. Shankar shall provide written cost submissions within 14 days. Ms. Quinn to respond within a further 10 days. Reply, if any, within a further 5 days.

SPROAT J.

Date: December 21, 2021