Ontario Court Of Appeal Summaries (August 28 – September 1)

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario.

Two of the three substantive decisions this week were in family law. One was a relocation application for a five year old child where the mother was unsuccessful at first instance but successful on appeal. The other concerned the application of the presumption of resulting trust in the division of property following the dissolution of a common law relationship. There was also a decision reminding counsel of the importance of making full and fair disclosure of all material facts when moving without notice.

Wishing everyone a great long weekend.

CIVIL DECISIONS

Chechui v. Nieman, 2017 ONCA 669

[Cronk J.A.]

Counsel: Earl A. Cherniak, Q.C., Zohar R. Levy and Valois P. Ambrosino, for the appellant

Harold Niman and Chloe van Wirdum, for the respondent

Keywords: Family Law, Property Law, Joint Tenancies, Gratuitous Transfers, Gifts, Presumption of Resulting Trust, Unjust Enrichment, , Pecore v. Pecore, 2007 SCC 17, Kerr v. Baranow, 2011 SCC 10

Facts:

The appellant, Ian Jamieson Nieman ("Ian"), and the respondent, Victoria Chechui ("Victoria"), met in October 2009. In July 2010, the parties began living together at Victoria's house in Toronto. Ian's mother, Dianne, then received a $4 million inheritance and decided to invest part of it in a home on Austin Terrace in Toronto for Ian and Victoria's use. Ian and Dianne owned the house as tenants in common, with Ian owning 99 per cent and Dianne owning 1 per cent. In December 2010, Victoria sold her house and moved with Ian into the Austin Terrace property.

In December 2012, Dianne suffered a series of strokes and the parties agreed to have Dianne live with them. Dianne would require the use of a wheelchair, so the parties and Dianne decided to look for a new, wheelchair-accessible home in Toronto to accommodate Dianne's needs.

On March 16, 2013, Ian and Victoria entered into an agreement of purchase and sale to buy a house on Brookdale Avenue in Toronto for $2.6 million (the "Brookdale Property").

To finance the purchase of the Brookdale Property, Victoria obtained a $1 million mortgage in the parties' joint names from RBC Dominion Securities Inc. ("RBC"). The mortgage was later converted to a line of credit in the same amount. In addition, after obtaining independent legal advice, Dianne executed a gift letter, required by RBC, gifting $1.7 million to both Ian and Victoria.

On closing, title to the Brookdale Property was taken in both Ian and Victoria's names, as joint tenants. The parties moved into the Brookdale Property in April 2013. About one month later, Dianne passed away.

The Austin Terrace property was listed for sale after Dianne's death and eventually sold in October 2013 for $2.325 million. Ian deposited his share of the sale proceeds in his bank account, repaid the $1 million RBC line of credit on the Brookdale Property in full, and deposited $800,000 into an investment account with RBC, held jointly with Victoria.

Approximately two and a half months later, in January 2014, the parties separated. Their separation precipitated a dispute regarding Victoria's entitlement to a 50 per cent interest in the Brookdale Property and in the funds held in the RBC investment account.

Issues:

Is the respondent entitled to a 50 percent interest in the Brookdale Property? Is the appellant entitled to a credit regarding the funds used by him to repay the joint line of credit? Holding: Appeal allowed, in part.

Reasoning:

1. Yes. The respondent is entitled to a 50 percent interest in the Brookdale Property.

   First, title to the Brookdale Property...