CITATION: Lehto v. Dumonski, 2026 ONSC 1341

COURT FILE NO.: FS-25-152-00

DATE: 2026-03-05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Ryan Roy Lehto

Self-represented, for the Applicant

Applicant

and -

Katie Lee Dumonski

Anthony Russo, for the Respondent

Respondent

HEARD: February 26, 2026, at Thunder Bay, Ontario

Madam Justice T. J. Nieckarz

Decision On Motion

Overview:

1Ms. Dumonski brings this motion pursuant to the Partition Act for the immediate partition and sale of the family home, municipally known as 2618 King George’s Park Drive, Rosslyn, Ontario (the “Home”).¹

2Ms. Dumonski also seeks an order giving directions pertaining to the listing and sale of the Home.

3The parties were unmarried spouses. They are owners of the Home as joint tenants.

4Mr. Lehto has been living in the Home since separation. Ms. Dumonski was also living at the Home until September 2025. Now that she is not living at the Home, she would like it sold.

5Ms. Dumonski argues that there is no reason to delay the sale of the Home any further. She submits that neither party is likely to be able to afford to purchase the other’s interest and the parties should capitalize on the upcoming prime Spring/Summer sale season. Ms. Dumonski works in the real estate field and submits that the parties should sell the home without delay to maximize the potential sale proceeds. She further argues that the sale of the Home will not prejudice Mr. Lehto’s unjust enrichment claim, as either all or most of the net sale proceeds may be held in trust pending determination. She hopes to realize some of her equity prior to trial to assist her with securing more stable and affordable accommodations, but is prepared to forego receipt of sale proceeds pending a final determination of claims.

6Mr. Lehto resists the sale. He argues that the sale will prejudice his claims made in equity. Having said this, it is unclear as to what those claims are. He has advanced unjust enrichment and resulting trust claims in his pleading. His affidavit speaks to a constructive trust remedy for unjust enrichment (which is not pleaded).

7Mr. Lehto also requests orders from the court. He seeks child support from Ms. Dumonski, a contribution to s. 7 expenses, and disclosure. No formal motion was brought. The requests were made within the body of Mr. Lehto’s affidavit. The child support claims have not been determined by me. The focus of this proceeding has been Ms. Dumonski’s motion for partition and sale.

8Ms. Dumonski also seeks a disclosure order. She wants Mr. Lehto to provide a Certificate of Financial Disclosure. Mr. Lehto says that he has complied with all his disclosure obligations, but Ms. Dumonski has not.

9For the reasons that follow, the motion for partition and sale is dismissed without costs. An order shall issue requiring the delivery of Affidavits Listing Documents and for Questioning.

Facts:

10The parties started living together in August 2014 and separated in November 2022. They have one child together, who is 9 ½ years old (the “Child”). The parties share care of the Child on an alternating weekly basis. They each have older children from prior relationships.

11The lot for the family home was purchased in August 2015. A home was constructed shortly thereafter, with the parties moving into the Home in March 2016.

12Despite being separated, the parties continued to live at the Home together until September 1, 2025, when Ms. Dumonski found temporary alternate housing. Ms. Dumonski rents an apartment, which costs her $2,500 plus utilities each month, and is a substantial distance from the Child’s school. Ms. Dumonski says that the cost and distance from the Child’s school make this apartment unsustainable long-term.

13This Application was commenced by Mr. Lehto in June 2025. When the Application was commenced, he was represented by counsel. In the Application he seeks, among other things, partition and sale of the Home. He acknowledges in his pleading that neither party is likely to be able to afford the Home by themselves. He also seeks a declaration of resulting trust and/or damages for unjust enrichment.

14Mr. Lehto alleges that he alone purchased the lot and the materials used in constructing the Home, without contribution from Ms. Dumonski. He says that much of the labour that went into building the Home was his. Once the Home was built, he paid for the appliances and most of the mortgage and tax payments. He claims that Ms. Dumonski contributed minimally and also caused significant damage to the Home. He further claims that no contribution was made whatsoever by Ms. Dumonski post-separation. Mr. Lehto alleges that he alone has paid the mortgage, property taxes, line of credit, insurance, utilities (except for a few water bills), maintenance and other carrying costs for the Home since separation.

15In her experience as a realtor, Ms. Dumonski estimates that the current value of the Home is more than $900,000. Mr. Lehto does not dispute this value.

16The Home is subject to a mortgage with a balance owing of $151,657 as of January 24, 2026. Mr. Lehto’s son claims to be owed $60,000 for a construction loan, although I am not clear whether this is a registered charge or not. The equity in the Home is estimated to be a total of $700,000 - 750,000.

Analysis:

17Mr. Lehto’s position is difficult to ascertain. While his pleadings seek a declaration of resulting trust or, alternatively unjust enrichment, I can understand why Ms. Dumonski’s current counsel believed that the case was proceeding solely on an unjust enrichment basis, with a constructive trust as a potential remedy. Mr. Lehto’s pleading, his affidavit, and his submissions confuse the concepts. Based on submissions made by the parties at the Case Conference, Justice Wojciechowski’s Endorsement dated October 16, 2025, reflects that the matter was proceeding as an unjust enrichment / constructive trust claim. At the hearing of this motion, once the concepts were explained, Mr. Lehto expressed that his primary claim is resulting trust, but then his submissions focused on damages.

18Given the equitable claims, the question is whether the Home should be partitioned and sold under s. 2(1) of the Partition Act, prior to the ownership issue of the property being determined.²

19In his affidavit sworn in response to this motion, Mr. Lehto indicated that he does not disagree with a sale in principle but believes it should wait until disclosure is complete. At the motion hearing he confirmed he is opposed to an interim sale, particularly given his equitable claims. I take from his submissions that his argument is that a sale is not an inevitable outcome of this proceeding given his equitable claims. He needs to see the disclosure process completed to fully assess those claims.

20This issue was considered by Justice Kraft in Senthilvadivel v. Ranjihan.³ In that case, the husband claimed that he paid the full downpayment on a rental property that was owned by the parties on a 90/10 basis to the benefit of the wife. The wife alleged that she also contributed a significant amount to the acquisition of the property, and to its ongoing payments.

21After reviewing the principles pertaining to partition and sale of a jointly owned property as set out in Dhaliwal v. Dhaliwal⁴, Justice Kraft concluded that the rental property should not be partitioned and sold pending a determination of the ownership issue of the property, as a sale of the property was not an inevitable result. It was too early in the proceeding to determine the impact of the equitable and equalization claims. The order was made without prejudice to the right of the moving party to seek partition and sale once these claims became clearer.

22The principles set out in the case law that are applicable to this motion include⁵:

a. Section 2 of the Partition Act empowers the court to order the sale of a jointly owned property.

b. A joint tenant has a prima facie right to an order for the partition and sale of a property held with another joint tenant.

c. A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made.

d. The onus is on the party opposing the sale to establish that there is a sufficient reason, recognized in law, as to why the court should exercise its discretion to refuse sale.

e. Judicial discretion to refuse an order for partition is limited to instances where there is evidence that the Applicant has acted maliciously, vexatiously, or oppressed the Respondent.

f. In family law cases, an order under the Partition Act should generally not be made until any dispute related to the property has first been determined.

g. A partition application should generally not be granted where it can be shown that a legitimate claim would be unfairly prejudiced.

h. In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale, both positive and negative, in relation to the interests of both joint tenants and the family.

i. The court must consider and attempt to guard against potential prejudice. Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage?

j. Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale.

k. The court must consider the impact of a proposed sale on children or a vulnerable spouse, including the emotional impact, and the fundamental need to ensure that they have appropriate housing. The availability and affordability of alternate housing must be considered.

l. Order for the sale of a matrimonial home at the interim stage should not be made as a matter of course. The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible. In citing this factor, I am mindful that these are not married parties, and the Home is not a “matrimonial home” under the Family Law Act.⁶

m. Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a short period might reduce the pressure for an immediate sale.

n. A request for sale during summer months may entail some timeliness if seasonal market conditions are favourable.

23Applying the facts of this case to the legal principles, I find:

a. The onus is on Mr. Lehto to establish that there is a sufficient reason for me to exercise discretion to refuse the partition and sale of the Home.

b. He alleges that his claims will be prejudiced if the Home is ordered sold. The prejudice relates to his resulting trust and unjust enrichment claims, and there being outstanding disclosure.

c. Mr. Lehto’s resulting trust claim and/or his unjust enrichment claim have not yet been determined, and therefore it is possible that in addition to his 50% interest in the Home, he may have equitable title to a much higher interest. If Mr. Lehto’s claim for resulting trust is allowed, Ms. Dumonski could be found to hold her interest in the home on a resulting trust basis for Mr. Lehto, in which case a sale of the Home is not an inevitable result. If his claim for resulting trust is denied, according to Mr. Lehto his damages for unjust enrichment would give him a preferential share of the equity in the home in the approximate amount of $600,000. That would still leave an amount payable to Ms. Dumonski for her equity. More significantly, Ms. Dumonski would still be an owner of the Home and would not be required to sell her interest to Mr. Lehto. She would be entitled to have the Home sold, and then to have the net sale proceeds allocated as determined by the court at trial.

d. Advancing an unjust enrichment or resulting trust claim is not an automatic barrier to an order for partition and sale. When considering prejudice, there may be no irreparable damage caused to Mr. Lehto’s property claims, provided all the net proceeds of sale from the Home are held in trust pending a determination of his equitable claims in the property. While Ms. Dumonski has sought release of $50,000 to each party, Mr. Russo indicates that she is prepared to have all the net sale proceeds held in trust by a real estate lawyer to avoid prejudice to Mr. Lehto’s claims. Mr. Lehto will, however, lose his home when it is not apparent at this stage of the proceeding that this will be the inevitable result.

e. I balance this with the prejudice to Ms. Dumonski of not allowing the partition and sale request prior to the ownership issues becoming clearer or determined fully. Ms. Dumonski states that the equity in the Home is the parties’ greatest asset. It currently remains inaccessible to her. If she had access to the equity, then both parties could have stable and independent housing. She has, however, agreed that to protect Mr. Lehto’s claims this court could order all the net sale proceeds to be held in trust pending a final determination. This is a reasonable position to take given that the nature (resulting trust) or value (if unjust enrichment) of Mr. Lehto’s equitable claims are not yet known. The difficulty is that the sale does not then assist her with quicker access to stable and independent housing.

f. In considering prejudice I also note that Ms. Dumonski does not take the position that without a sale she is unable to afford accommodations, has undue financial pressure, or that the ongoing existence of liability for the mortgage on the Home prevents her from securing housing. I note that Mr. Lehto is currently paying all expenses for the home without requiring a contribution from Ms. Dumonski. There is no suggestion from either party that this situation impacts child support (which has not yet been determined).

24For these reasons, until the ownership and other equitable claims become clearer the motion for partition and sale is premature. Once the claims of Mr. Lehto become clearer and disclosure is complete, either party is at liberty to bring a further motion for partition and sale. In the meantime, this matter should proceed quickly to trial to have the claims determined expeditiously. Both parties have indicated they require further motions pertaining to child support. If a trial can be held quickly, the parties may be spared the additional costs of further motions.

Disclosure:

25The issue of disclosure was addressed at the case conference held before Justice Wojciechowski on October 16, 2025. Orders were made for disclosure. Each party says that they have complied with their disclosure obligations, but the other has not.

26The most significant issue appears to be with respect to a binder that Mr. Lehto alleges contained all his receipts for items paid for during construction of the Home.

27Mr. Lehto alleges that Ms. Dumonski removed the binder from the Home.

28Paragraph 1 of Justice Wojciechowski’s October 16, 2025, order states that Ms. Dumonski “agrees to provide a digital copy of The Binder to the applicant”.

29On November 27, 2025, counsel for Ms. Dumonski advised that the binder had been misplaced during her move, but that Ms. Dumonski was going to search for it and provide it as soon as possible.

30On January 29, 2026, then counsel for Ms. Dumonski advised that she had conducted a search and only located a binder for another property. Ms. Dumonski concluded that the binder for the Home was still located at the Home.

31This was, understandably, extremely concerning to Mr. Lehto given the importance of the contents of the binder to his case. Based on his representations, the contents of the binder are harmful to Ms. Dumonski’s case.

32Mr. Lehto argues that the binder was removed from the Home by Ms. Dumonski after litigation commenced, and she is now either intentionally withholding it or has destroyed it. Ms. Dumonski argues that either Mr. Lehto has it, or he has destroyed it. The latter makes very little sense to me unless Ms. Dumonski disputes that most of the contributions for the Home were from Mr. Lehto. It would not have been in Mr. Lehto’s interest to destroy the binder that he so desperately and consistently has sought out to prove his claims.

33It is difficult for the court to resolve this issue on a motion that is based on contradictory affidavits. If the binder is gone, a different way of determining what evidence there is of contributions to the Home will have to be found. Based on what there is, or is not, an adverse inference may be drawn by a trial judge against a party. In the meantime, questioning should be held to determine the specifics of Mr. Lehto’s claims and Ms. Dumonski’s evidence with respect to the contributions Mr. Lehto says he made. The equitable claims advanced by Mr. Lehto can benefit from questioning to determine each party’s evidence in advance of trial.

34The Family Law Rules also provides for the delivery of an Affidavit Listing Documents. In this case, this may be more helpful than a Certificate of Financial Disclosure from Mr. Lehto. Combined with questioning, documentary discovery may be helpful in this case. Mr. Lehto has indicated that he is attempting to uncover further documents that may shed light on his claim given the missing binder.

35An Affidavit Listing documents requires the parties to exchange an affidavit listing every document that is:

a. relevant to any issue in the case; and

b. in the party’s control, or available to the party on request.⁷

Pursuant to Rule 19(2), parties are entitled to request to examine any listed document, and to receive a copy of any document they are entitled to examine. Pursuant to Rule 19(8), a party is obligated to update the list if/when they find additional relevant documents. Rule 19(10) sets out the consequences for a failure to comply with the Rule.

Costs:

36Mr. Lehto is the successful party on the motion, which presumptively entitles him to costs.

37Despite this, I am exercising my discretion to order that no costs be payable. Ms. Dumonski only lost the motion because of the potential of prejudice to Mr. Lehto’s resulting trust claim, which claim means that the sale of the Home is not an inevitable result at trial. As mentioned above, there is confusion as to what claim Mr. Lehto is advancing (unjust enrichment or resulting trust). Had there been more clarity from Mr. Lehto as to the claim he was advancing, Ms. Dumonski may not have brought the motion. This confusion was compounded by Mr. Lehto’s request in his pleadings for partition and sale. It is unfair to penalize Ms. Dumonski for bringing a motion based on the information she had, which would have suggested to her that her chances of success on the motion were greater.

38With respect to the resulting trust claim, I note that Mr. Lehto’s pleadings are deficient. I refer him to Mansfield v. Kolinski, 2024 ONSC 553, at para. 44, where I discussed a similar concern, and Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269. Equitable claims are very complex, and they can be difficult to litigate. Mr. Lehto could benefit from ongoing legal representation.

Orders:

39It is ordered that:

a. Ms. Dumonski’s motion for partition and sale is dismissed, without costs.

b. Mr. Lehto’s claims for child support are dismissed, without prejudice to either party’s right to bring a proper motion seeking temporary support.

c. If Mr. Lehto is claiming a constructive trust as a remedy for unjust enrichment, he shall amend his pleading within 30 days of the date of this Endorsement.

d. If Mr. Lehto is not advancing a resulting trust claim, he shall advise Ms. Dumonski’s counsel within 30 days of the date of this Endorsement.

e. If Mr. Lehto seeks any other amendments to his pleading to clarify and plead the essential elements of a resulting trust, he shall do so within 30 days of the date of this Endorsement.

f. If Mr. Lehto abandons his claim for a resulting trust, seeking only unjust enrichment (with either damages or constructive trust as the remedy), or once disclosure is complete, Ms. Dumonski shall be at liberty to bring a further motion for partition and sale if she so chooses.

g. Each party shall serve on the other an Affidavit Listing Documents within 30 days of the date of this Endorsement.

h. Each party is granted leave to proceed with questioning of the other, limited to 2 hours each, and to be held no later than June 30, 2026.

i. A settlement conference/trial management conference shall be scheduled to be held no sooner than 30 days following questioning (to allow time for undertakings to be answered).

j. If this matter cannot be placed on a trial list for hearing in 2026, provided the trial can be conducted in five days or less, the parties shall seek a special date from the trial co-ordinator, which date shall be confirmed at the trial management conference.

The Hon. Madam Justice T. J. Nieckarz

Released: March 5, 2026