Ontario Superior Court of Justice

Court File No.: 0172/21
Date: 2025-06-13
Heard: April 9, 10, 11, 14, 15, 16, 17, 18, 22, 23, 24, 25, May 1, 2025

Between:
He Gong (Applicant)
(Pandora Du, for the Applicant)
-and-
Huijing Jin (Respondent)
(Ran Tao, for the Respondent)

Reasons for Judgment
P. Henderson

Introduction

[1] This decision follows a 13-day trial over the breakdown of a short six-year marriage, from which there were no children. The issues in various forms involve property and damages arising from domestic violence.

[2] At the beginning of trial, the Respondent sought to amend her pleadings to add a claim for spousal support which I denied. The Respondent had been given the opportunity 11 months earlier at the Trial Management Conference. By the beginning of trial, she had not amended her pleadings. I found that at that point it was too late and would prejudice the Applicant. As the evidence came out at trial, I would find also that the claim lacked merit substantively.

Background

[3] The parties became romantically involved in 2006. In or about 2013 the Respondent emigrated from China to Canada with her mother. The parties married in China on July 12, 2014.

[4] Shortly after the marriage, the Respondent sponsored the Applicant, also a Chinese national, to immigrate to Canada.

[5] Initially, the parties lived in Toronto with the Respondent’s mother and her boyfriend. The parties, and the Respondent’s mother moved to London in January 2017, and lived together in a home purchased in the name of the Respondent. This property was located at 1128 Aldersbrook Road, London Ontario (“Aldersbrook”). A second home was purchased in July 2018 and was also registered in the Respondent’s name alone. This property was located at 1474 Dyer Road, London Ontario (“Dyer Road”).

[6] The parties and the Respondent’s mother moved into Dyer Road in July 2018, and remained there until the parties separated September 1, 2020. As a result of a domestic incident that day, the Applicant was removed from the matrimonial home by police and was criminally charged.

The Parties' Claims

The Applicant

[7] The Applicant seeks a variety of relief involving property:

1. A declaration that he is the 50% legal and beneficial owner by way of constructive or resulting trust of the matrimonial home Dyer Road and Aldersbrook.
2. Compensation for the wrongful retention of the Applicant’s leased Mercedes Benz C300 by the Respondent in the amount of $7,910.20.
3. Compensation for the Respondent’s wrongful retention of $30,000.00 left in the matrimonial home and the $51,183.53 she transferred from the joint account to her own by adding these amounts to her Net Family Property (“NFP”).
4. An order for the equalization the parties’ NFP’s pursuant to s.5 of the Family Law Act or in the alternative, an unequal division of the parties’ NFP’s pursuant to s. 6 of the Family Law Act in the Applicant’s favour.
5. Occupation rent from the date of separation.

The Respondent

[8] The Respondent seeks a variety of relief also involving property:

1. An order for the equalization of the parties’ NFP’s.
2. A restraining order pursuant to s. 46 of the Family Law Act.
3. An award of damages arising from the Respondent’s physical abuse of the Applicant.

Discussion

[9] For the purpose of this decision, I will discuss first, the Applicant’s equitable claims, a determination of the advances from the Respondent’s family as loans or gifts, then equalization of the parties’ NFP’s, a determination of any post separation adjustments, followed by the domestic violence issue including the claim for damages, and restraining order.

Applicant’s Equitable Claims

[10] The Applicant claims an equitable interest in Aldersbrook and Dyer Road based on his contributions to the maintenance of the property including mortgage payments, property taxes and general upkeep. The Supreme Court of Canada in Rawluk v. Rawluk, [1990] 1 S.C.R. 70 recognized that equitable interests were not precluded by the property division scheme in Part I of the Family Law Act.

[11] These equitable interests have to be determined and valued when determining a party’s NFP. At paragraph 40, of Rawluk, Cory J., writing for the majority explained:

[40] Before property can be equalized under s. 5 of the Family Law Act, 1986, a court is required by s. 4 to determine the "net family property" of each spouse. Under section 4(1) this is defined as "the value of all property . . . that a spouse owns on the valuation date". "Property" is defined in the same subsection as "any interest, present or future, vested or contingent, in real or personal property". This all-encompassing definition is wide enough to include not only legal but beneficial ownership. The appellant has conceded that "property" as defined under s. 4(1) includes a beneficial interest arising from an express or resulting trust. I see no reason why the remedial constructive trust should not be included in the list of equitable principles or remedies that may be used to calculate the beneficial ownership of net family property.

[12] The determination of each party’s NFP also turns on whether certain money transfers that found their way into the two properties were loans or gifts and a determination of the Applicant’s contributions to an account in the Respondent’s name alone but subsequently made joint.

[13] Aldersbrook was purchased in January 2017 for $345,000 subject to a conventional mortgage with the TD Bank in the amount of $224,250. It is not disputed that title was registered in the Respondent’s name alone, and that the mortgage was also in the Respondent’s name alone. Further there is no evidence that either party personally contributed to the purchase price, to any significant extent. It is not disputed that the down payment of approximately $120,500 was funded by money from one of the Respondent’s aunts in China and the Respondent’s mother. (The Respondent’s aunt, Guangshi Jin, was the eldest sister of the Respondent’s mother who lives in China. She became involved in the purchase of Dyer Road. To distinguish her from another aunt she was and will be referred to as Aunt #1. The second aunt who became involved in the purchase of Aldersbrook is the Respondent’s mother’s next eldest sister, Hongshi Jin, who also lives in China. Through the trial and for the purpose of these reasons she is referred to as Aunt #2).

[14] It is not disputed that Aunt #2 advanced 500,000 RMD or approximately $100,000 by way of two advances, made necessary because of Chinese foreign currency controls. The first advance was in the amount of $65,800 deposited into the Respondent’s TD Bank account #0274. The second advance was in the amount of $31,897 deposited into the Applicant’s CIBC account #0068. He then transferred $35,000 into the Respondent’s account #0274.

[15] There was a further deposit into the Respondent’s account of $50,000 which the Respondent says was a loan from her mother.

[16] On November 1, 2016, $145,007.50 was withdrawn from the Respondent’s account. It is not disputed that a bank draft in the amount of $121,000.19 payable to the Respondent’s real estate solicitor was the balance of the down payment on Aldersbrook.

[17] Dyer Road was purchased with a conventional mortgage through BMO, and an advance from Aunt #1 of 1 million RMD, equivalent to $200,000. Neither party contributed any capital otherwise. Again, title was registered in the Respondent’s name alone, and she qualified for the mortgage on the basis of the same new immigrant programme as she did with Aldersbrook.

[18] As the Respondent understood the bank, her mortgage application would improve if the parties had a joint account. On April 29, 2018, the Respondent added the Applicant to her account #0274. She had also opened a separate BMO account in her name, for the mortgage. She closed it after a year, after which all expenses in respect of the carrying cost of Dyer Road came from the joint account. After the account was made joint, it is clear on the evidence that at best at least some of the Applicant’s income was being deposited into the joint account. He was also making withdrawals from time to time.

Analysis

[19] Both Aldersbrook and Dyer Road values have significantly increased since the date of purchase. As a result, the Applicant is seeking a declaration of a proprietary interest in both properties by way of either a resulting trust, or in the alternative, a constructive trust.

[20] With respect to either remedy, the underlying circumstances are either a transfer of title with no consideration or no transfer of title but a transfer of money or money’s worth with no compensation.

[21] On separation, when these issues often become relevant the court has two ways to address them. The court can rely on either trust presumptions – either by way of resulting trust or presumption of advancement – or by imposing a constructive trust.

[22] In the present case, the presumption of advancement as it usually arises in cases of transfer from parents to minor children is not applicable.

[23] A resulting trust presumption arises in circumstances where the court finds that the transferor did not intend to give away their interest entirely but only for safekeeping by the transferee. It is a presumption only and may be rebutted. The Supreme Court in Kerr v. Baranow, 2011 SCC 10 held that the “common intention” resulting trust is no longer applicable.

[24] Consequently, the focus is on the transferor’s intentions. The Supreme Court in Pecore v. Pecore, 2007 SCC 17, held that the civil standard is applicable to rebutting the presumption. At paragraph 44, Rothstein wrote for the majority:

44 As in other civil cases, regardless of the legal burden, both sides to the dispute will normally bring evidence to support their position. The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention. Thus, as discussed by Sopinka et al. in The Law of Evidence in Canada, at p. 116, the presumption will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities.

[25] A resulting trust has been found, for example, where title to the matrimonial home has been placed in the name of one spouse to protect against possible creditors of the other spouse (see Korman v. Korman, 2015 ONCA 305).

[26] Alternatively, the jurisprudence has established that constructive trust is a remedy in circumstances where a party has been unjustly enriched by the money or money’s worth of the other party.

[27] Starting at paragraph 36 of the Supreme Court decision in Kerr, Cromwell J. summarizes the developed jurisprudence in respect of the law of constructive trust. The claiming party must meet a three-part test. On the balance of probabilities that party must establish:

a. An enrichment
b. A corresponding deprivation
c. A lack of juristic reason, that is the transfer was not made pursuant for example to a gift or contract.

[28] In the context of this discussion, reference must also be made to s. 14 of the Family Law Act which reads:

14. The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,
    a. the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants; and
    b. money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purposes of clause (a).

[29] At paragraph 26 of Korman, Cronk J. noted:

[26] Section 14 of the Act affirms the presumption of a resulting trust in determining questions of ownership between spouses in the context of gratuitous property transfers. Where the presumption is invoked, the party resisting the imposition of a resulting trust is required to disprove the presumption that his or her spouse is the beneficial owner of an interest in the disputed property.

[30] In the present case, the Applicant’s claims for a proprietary interest by way of a resulting trust in Aldersbrook and Dyer Road present analytical challenges, one conceptual and the other evidentiary.

[31] First, in respect of both properties, there was no transfer of title, nor was there any transfer of money or money’s worth from the Applicant to the Respondent at the time of purchase in order to facilitate the purchase. As I have noted neither party contributed any cash to the purchase of either property. The purchases were funded entirely by a conventional mortgage and funds advanced by the Respondent’s family. While I will discuss the Applicant’s evidence of his intention below, at the time of purchase however, I have difficulty seeing where the Applicant transferred money or money’s worth to establish an interest that he conveyed to the Respondent that could result back by way of trust. He was in no better nor worse position the day before either purchase than the day after.

[32] Secondly, an evidentiary factor that impacted the analysis on several issues is that many transactions were in cash. While there may be perceived beneficial reasons for dealing in cash there are downsides when trying to establish a person’s monetary contribution.

[33] It was an accepted fact that the parties were paid partly by cheque at the restaurant where they both worked but likely more than half of their income came in the form of cash. The evidence established that at times the parties had access to each other’s “envelopes” that contained the cash from that pay period (the pay periods were not disclosed). While the Applicant testified the Respondent would deposit his cash into her account, it is impossible to determine that fact nor certainly how much. I find therefore, that until the Respondent made her account joint in April 2018, there is no evidence to refute the Respondent’s claim that she carried the mortgage and household expenses without contribution from the Applicant.

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Released: 13 June 2025

P. Henderson