



COURT OF APPEAL FOR ONTARIO

CITATION: Chechui v. Nieman, 2017 ONCA 669

DATE: 20170828

DOCKET: C62247

Strathy C.J.O., Cronk and Pepall JJ.A.

BETWEEN

Victoria Chechui

Applicant

(Respondent in appeal)

and

Ian Jamieson Nieman

Respondent

(Appellant)

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

Harold Niman and Chloe van Wirdum, for the respondent

Heard: May 8, 2017

On appeal
    from the orders of Justice Kenneth G. Hood of the Superior Court of Justice,
    dated May 12, 2016 and July 25, 2016, with reasons reported at 2016 ONSC 1905,
18 E.T.R. (4th) 329
and
2016 ONSC 4667
,
18 E.T.R. (4th) 348
.

Cronk J.A.:

[1]

This property dispute arose on the breakdown of a common law
    relationship of approximately three and one-half years duration. The narrow
    issues on appeal concern the respondents entitlement to a 50 per cent interest
    in the home occupied by the parties during the latter part of their
    cohabitation and the appellants claim for a credit in respect of funds used by
    him to retire a joint debt incurred by the parties to facilitate the purchase
    of the home.

A.       Background in Brief

[2]

The appellant, Ian Jamieson Nieman (Ian), and the respondent,
    Victoria Chechui (Victoria), met in October 2009.  At that time, Victoria was
    living in Toronto in her own house.  She was employed by Rogers Communications
    and earned approximately $160,000 per year, including bonus. Ian was an unemployed
    music producer. He lived with his mother, Dianne Nieman (Dianne), in her home
    in Ottawa.

[3]

In July 2010, after dating for several months, the parties began
    living together at Victorias Toronto house. However, when Dianne received a $4
    million inheritance, she decided to invest part of it in a home in Toronto for
    Ians and Victorias use.

[4]

On November 3, 2010, Dianne purchased a house on Austin Terrace
    in Toronto. Ian and Dianne owned the house as tenants in common, with Ian
    owning 99 per cent and Dianne owning 1 per cent.  The purchase price was paid
    in full and the house was owned by Ian and Dianne free and clear of any
    encumbrances.

[5]

In December 2010, Victoria sold her house and moved with Ian into
    the Austin Terrace property. Dianne continued to reside at her own home in
    Ottawa.

[6]

Victoria used some of the proceeds from the sale of her house to
    pay off the mortgage on her home and a line of credit in her name.  She gave
    some of the remaining proceeds to her parents and retained the balance in her
    personal bank account.

[7]

Throughout the parties cohabitation, Victoria earned more income
    than Ian. She paid the majority of the couples living expenses, while Ian did
    most of the housework. In July 2011, Victoria resigned from her job due to
    health reasons, and received a ten-month severance package. In November 2012,
    she obtained new employment, at increased compensation of $190,000 per year,
    plus bonus.

[8]

In the same month, November 2012, the parties separated for a
    brief period. However, they soon reconciled and agreed to marry. They set a
    wedding date of July 26, 2013.

[9]

In December 2012, Dianne suffered a series of strokes and Ian
    brought her to Toronto for medical treatment. The parties agreed with Dianne
    that she would live with them following her discharge from rehabilitation,
    scheduled for April 22, 2013. As it was clear that Dianne would require the use
    of a wheelchair, the parties and Dianne decided to look for a new,
    wheelchair-accessible home in Toronto to accommodate Diannes needs.

[10]

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).

[11]

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. As I will explain, the line of credit and the gift letter are
    central to the issues on appeal.

[12]

On closing, title to the Brookdale Property was taken in both
    Ians and Victorias names, as joint tenants.

[13]

The parties moved into the Brookdale Property in April 2013. 
    About one month later, on May 5, 2013, Dianne passed away. In light of her
    death, the parties cancelled their planned July wedding and decided to
    reschedule it for a later date.

[14]

The Austin Terrace property was listed for sale after Diannes
    death.  It 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. He testified before
    the application judge, and Victoria did not dispute, that the joint investment
    account was established to ensure that Victoria was taken care of financially
    in the event of Ians death.

[15]

Approximately two and one-half months later, in January 2014, the
    parties again separated, this time permanently. Their separation precipitated a
    dispute regarding Victorias entitlement to a 50 per cent interest in the
    Brookdale Property and in the funds held in the RBC investment account.

B.      Litigation

[16]

In May 2014, Victoria applied to the Superior Court of Justice
    for an order for the partition and sale of the Brookdale Property, with the
    proceeds to be equally divided, and an order that the funds in the RBC
    investment account also be divided equally, among other relief.

[17]

Ian resisted Victorias application. He sought declarations that
    Victoria held her interests in the Brookdale Property and the RBC investment
    account in trust for him. He also claimed damages against Victoria for breach
    of trust, breach of fiduciary duty, breach of contract, unjust enrichment and
    conversion, as well as punitive, aggravated and exemplary damages.

[18]

The application judge rejected Ians evidence on the creation of
    the joint RBC investment account. However, he accepted the independent evidence
    of the involved RBC investment advisor that the purpose of establishing the
    account on a joint basis was to benefit Victoria if something should happen to
    Ian.  Relying on this evidence, the application judge held that Ian did not
    intend to gift Victoria one-half of the investment account. He explained, at
    para. 66:

What Ian gifted to Victoria was a gift of the right of
    survivorship.  While he intended her to be a joint account holder, it was only
    for the purpose of benefitting her upon his death, presuming they were still
    together.  I am not satisfied on the evidence that Victoria has rebutted the
    presumption that she held her interest in the joint account in trust for Ian. 
    In fact, the totality of the evidence convinces me that she did hold this in
    trust for Ian.

[19]

Accordingly, the application judge dismissed Victorias claim
    regarding the RBC investment account and directed that her name be removed from
    the account.  Victoria does not challenge this ruling on this appeal.

[20]

The application judge reached a different conclusion concerning
    the Brookdale Property, finding that Victoria did hold a 50 per cent interest
    in the house.

[21]

Specifically, notwithstanding Ians claims to the contrary, the
    application judge accepted that Ian knew that title to the Brookdale Property
    was held jointly and understood the meaning of a joint tenancy. He observed, at
    para. 72:

[Ian] could have sought to have the Brookdale [P]roperty held
    differently if he wanted.  He held Austin Terrace with his mother as tenants in
    common.  He could have done the same with Victoria but he did not.  He could
    have sought to change the title after the purchase but he failed to do so.  He
    could have protected the [$1 million] payment through some form of security
    such as a mortgage if he was not making a gift.  He did not do so.

[22]

With respect to Diannes gift of $1.7 million towards the
    purchase price of the Brookdale Property, the application judge held, at paras.
    67-69:

The Brookdale Property is different from the joint account.  It
    was purchased with the help of the gift from [Dianne] to both Ian and
    Victoria.  There is no doubt in my mind, based upon the gift letter and the
    testimony of [two lawyers consulted by Dianne for independent legal advice],
    that the gift of [$1.7 million from Dianne] was for both Ian and Victoria and
    not for Ian alone as he now argues.  He did not provide the funds to purchase
    Brookdale.  The funds came from his mother, gifted to both Victoria and him,
    and from RBC with mortgage security given by the two of them.

Although Ian was on the mortgage with Victoria, as title was in
    both their names, Victoria was the primary borrower, and  the mortgage loan
    was given on the strength of Victorias income, not Ians, which was
    negligible.

In other words, there is no resulting trust claim or any claim
    that can be made by Ian with respect to the [$1.7 million] gifted by his
    mother.

[23]

The application judge also addressed Ians repayment of the $1
    million line of credit relating to the Brookdale Property. He concluded that a
    presumption of resulting trust did not arise in Ians favour regarding this
    repayment because, in his view, the applicable authorities recognize a
    resulting trust only on the acquisition or transfer of property. He further
    held that any presumption of resulting trust applicable to the repayment of the
    line of credit would nevertheless have been rebutted by Victorias evidence
    that the parties always intended that the Brookdale Property would be owned by
    them jointly and in equal shares, regardless of their contributions to its
    purchase.

[24]

In the result, unlike his ruling regarding the RBC investment
    account, the application judge concluded that Ian had gifted to Victoria the
    repayment of the parties debt under the joint line of credit.

[25]

The application judge therefore rejected Ians trust-based claims
    concerning the Brookdale Property, as well as his various damages claims, and
    granted an order that the Brookdale Property be listed for sale and the net
    proceeds of sale be divided equally between the parties. He awarded Victoria
    her costs of the application, fixed in the amount of $180,000.

C.      Issues and Relief Sought

[26]

Ian appeals from the application judges ruling in favour of
    Victoria concerning the Brookdale Property. He contends that the parties
    intended throughout that he should beneficially own the entirety of the
    Brookdale Property, and that Victoria was named on title only for the purpose
    of obtaining short-term financing to acquire the Brookdale Property.

[27]

Ian submits, generally, that the application judge erred by: i)
    excluding Ians evidence of the parties intent regarding ownership of the
    Brookdale Property; ii) rejecting Ians trust-based claims concerning the
    Brookdale Property; and iii) finding that Ian intended to gift to Victoria his
    $1 million repayment of the joint line of credit used to facilitate the
    acquisition of the Brookdale Property.

[28]

He therefore seeks an order dismissing Victorias application and
    permitting him to retain 100 per cent ownership of the Brookdale Property. In
    the alternative, he requests an order crediting him, on the division of the
    proceeds from the sale of the Brookdale Property, for his $1 million repayment
    of the RBC line of credit.

D.      Analysis

(1)

Victorias Interest in the Brookdale Property

[29]

Ian argues that the application judge erred by failing to find
    that he is the sole beneficial owner of the Brookdale Property.

[30]

I disagree. Three considerations persuade me that Victoria is
    entitled to a 50 per cent legal and beneficial interest in the Brookdale
    Property, thus justifying the application judges order that it be listed for
    sale and the net sale proceeds be divided equally between the parties.

[31]

First, and most obviously, title to the Brookdale Property was
    taken in the parties joint names. In addition, the Brookdale agreement of
    purchase and sale was in both Ians and Victorias names.

[32]

The application judge expressly rejected Ians claims that he did
    not know what the term joint tenancy meant, that he did not direct that title
    to the Brookdale Property be put in joint names, and that he did not read the
    real estate closing documents when he signed them.  The application judge stated,
    at para. 72:

I do not believe Ian when he says he did not understand what
    joint tenancy meant or he did not read the direction when he signed, or did not
    see the reference to joint tenancy when he signed, or did not understand what
    he was signing or that it was not explained to him.

[33]

These findings were open to the application judge on the
    evidentiary record. His assessment of the credibility of Ians evidence on
    these issues attracts considerable deference from this court.

[34]

Moreover, the application judges finding that Ian understood the
    meaning and implications of a joint tenancy for the Brookdale Property was
    supported by the evidence of the involved real estate agent, who testified that
    Ian knew the Brookdale agreement of purchase and sale named both parties as
    purchasers. It was also supported by the testimony of the involved real estate
    solicitor, who said that Ian understood the Brookdale closing documentation,
    which provided for joint tenancy of the property with Victoria, and that it had
    been explained to him and detailed in a follow-up reporting letter.

[35]

Notably, as the application judge observed, title to the Austin
    Terrace property had been held by Ian and his mother as tenants in common.
    While Ian was clearly aware of this alternate mode of holding title, there was
    no evidence that he sought a similar title arrangement for the Brookdale
    Property.

[36]

Second, there is the significant factor of Diannes $1.7 million
    gift to
both
Ian and Victoria to assist in the
    acquisition of the Brookdale Property. There was ample evidence before the
    application judge to support his conclusion that this gift, to Ians knowledge,
    was to both Ian and Victoria, and not to Ian alone, as Ian argued.

[37]

For example, Ann Harvey, an RBC mortgage specialist, testified
    before the application judge as one of Ians own witnesses. She confirmed that
    RBC required all persons who were going to be on title to the Brookdale
    Property to be named as mortgagors on the mortgage security. She also explained
    that RBC required that a gift letter be signed by Dianne in respect of the
    funds she intended to advance, and that Dianne receive independent legal advice
    regarding the gift and the gift letter. As detailed below, this advice was
    provided to Dianne.

[38]

The terms of the gift letter itself clearly describe the purpose
    and joint nature of Diannes gift. Ian, Victoria and Dianne all executed the
    gift letter. It identifies both Ian and Victoria as the recipients or persons
    receiving a financial gift of $1.7 million from Dianne, to be used as all or
    part of the down payment for the purchase of the [Brookdale Property].

[39]

Importantly, Ian acknowledged on cross-examination that he knew,
    prior to executing the gift letter, that Diannes $1.7 million gift was to both
    him and Victoria jointly.

[40]

There was also evidence before the application judge indicating
    that Rachel Blumenfeld, a wills and estates lawyer consulted by Dianne for
    independent legal advice regarding her intended gift, had confirmed with Dianne
    that Victoria would be entitled to one-half of the gifted money. It was Ms.
    Blumenfelds evidence that, in accordance with her usual practice in such
    circumstances, she had advised Dianne to obtain a mortgage from the parties in
    respect of the gifted money. This did not occur.

[41]

In addition, Lawrence Fine, the lawyer who eventually provided
    independent legal advice to Dianne regarding the gift letter, testified that,
    based on his private discussions with Dianne, he was satisfied that she
    understood the gift letter and the gift itself, that she knew it was not a
    loan, and that she did not want control over the money once it was gifted.

[42]

Thus, both the unambiguous language of the gift letter and the
    evidence of the circumstances surrounding its execution compelled the
    conclusion that the funds gifted by Dianne, to Ians knowledge at the time,
    were intended as an unconditional joint gift to Ian and Victoria.

[43]

Ian argues that the application judge erred in his treatment of
    the evidence regarding the gift letter by admitting Victorias evidence of
    Diannes intention concerning the $1.7 million gift, but declining to admit
    Ians proffered evidence on the same issue. This unequal treatment of the
    evidence, Ian says, resulted in an incomplete record regarding the purpose and effect
    of Diannes gift.

[44]

I would not accede to this argument.  In making his findings
    concerning the joint nature of the gift, the application judge did not rely on
    any evidence by Victoria concerning Diannes intention about the gift.  To the
    contrary, his finding that Dianne gifted $1.7 million to Ian and Victoria
    jointly was based on: i) the terms of the gift letter itself; ii) Ms.
    Blumenfelds, Mr. Fines and Ms. Harveys evidence, described above; and iii)
    his rejection of Ians testimony that Diannes gift was to him alone. I see no
    error in the application judges approach to or assessment of the whole of the
    evidence on this issue.

[45]

Third, Ians argument that Victoria was unjustly enriched when
    she received an interest in the Brookdale Property was considered and properly
    dismissed by the application judge. Ians submission that the application judge
    erred in failing to consider this claim must be rejected.

[46]

As Victorias counsel stresses, Ians case in response to
    Victorias application was not framed in unjust enrichment. Rather, it focused
    on claims of resulting trust in respect of the Brookdale Property and the RBC
    investment account.  While Ian mentioned unjust enrichment in his Answer, he failed
    to plead it with any specificity.  And when Ian was given an opportunity by a
    case conference judge to address deficiencies in his pleading by submitting an
    Amended Answer, he added only a claim for breach of fiduciary duty.  He did not
    plead any further facts in support of an unjust enrichment claim.

[47]

Nevertheless, contrary to Ians contention, the application judge
    did consider unjust enrichment as a possible foundation for Ians claim to sole
    ownership of the Brookdale Property. At para. 78 of his reasons, he stated:

Nor can there be a claim of unjust enrichment with respect to
    Brookdale.  $1,700,000 was clearly gifted by [Dianne] to both Ian and
    Victoria.  It was always the mutual intention of both Ian and Victoria that
    they would own Brookdale jointly and equally regardless of their contributions
    to the purchase.

[48]

The application judges factual finding that Dianne gifted $1.7
    million to Ian and Victoria jointly is fatal to Ians unjust enrichment claim
    regarding the Brookdale Property. The fact of this joint gift furnishes a
    juristic reason for Victorias enrichment in respect of the Brookdale Property.
    The absence of a juristic reason for the enrichment in question is a necessary
    pre-requisite to any finding of unjust enrichment: see, for example,
Kerr v. Baranow
,
    2011 SCC 10, [2011] 1 S.C.R. 269; Mitchell McInnes,
The Canadian

Law of Unjust Enrichment and
    Restitution
(Markham: LexisNexis Canada Inc., 2014), at p.
    4.  On the application judges factual findings, this pre-requisite was not
    satisfied in this case.

[49]

In my opinion, for all these reasons, Ians challenge to
    Victorias entitlement to a 50 per cent interest in the Brookdale Property must
    fail.

(2)

Ians Repayment of the Joint Line of Credit

[50]

That, however, does not end the matter. Ian argues, in the
    alternative, that he should receive credit on the sale of the Brookdale
    Property for his repayment of the $1 million joint line of credit obtained in
    respect of the property.

[51]

It is unnecessary to address all the arguments advanced by Ian in
    aid of this argument. At heart, his arguments take aim at the application
    judges pivotal finding, at paras. 71 and 78, that Ian gifted the payment of
    [$1 million] to pay off the line of credit. In my view, on this record, this
    finding is tainted by palpable and overriding error.

[52]

There is no dispute that the debt incurred under the line of
    credit was joint. Thus, Ian was responsible for payment of at least 50 per cent
    of the funds owed under the line of credit. This defeats Ians claim for a
    credit for the repayment of the full $1 million debt under the joint line of
    credit.

[53]

The issue, therefore, is whether, on the future division of the
    proceeds of sale from the disposition of the Brookdale Property, Ian is
    entitled to credit for his repayment of Victorias $500,000 share of the
    parties joint debt under the line of credit.

[54]

There appears to have been no affirmative evidence that Ian
    intended to gift Victoria the equivalent of $500,000 by reason of his repayment
    of her share of the indebtedness under the line of credit. The application
    judges ruling on this issue rests on Victorias evidence, described at para.
    71 of his reasons, that the parties always intended to own the Brookdale
    Property jointly and equally regardless of their contributions to the
    purchase.  In the application judges view, set out at para. 71, this evidence
    applies equally to the payment of [$1 million] by Ian. He gifted this amount.

[55]

With respect, the application judges analysis of this issue conflates
    the parties intention regarding ownership of the Brookdale Property with Ians
    intention when he paid off the line of credit in full. It is not axiomatic that
    because the parties intended to own the Brookdale Property jointly, Ian
    intended to forego any claim for a credit in respect of his repayment of the
    line of credit on an equal division of the Brookdale Property, by gifting
    Victoria the repayment of her share of the parties joint debt. Put somewhat
    differently, I do not agree that the parties intention to hold title to the
    Brookdale Property jointly necessarily rebuts the presumption of a resulting
    trust in respect of Ians repayment of Victorias debt under the line of
    credit.

[56]

To the contrary, there was evidence supporting the conclusion
    that Ian did not intend that his repayment of the line of credit constitute a
    gift to Victoria. Victoria herself essentially said so. She acknowledged on
    cross-examination that, in paying down the line of credit, Ian did not intend
    to gift her 50 per cent of the $1 million repayment. As she put it: I, I dont
    think its a gift, no. Rather, she testified that [Ian] was paying down our
    debt, and the line of credit was an obligation for us both to fulfill. The
    application judge made no reference to these important concessions by Victoria.

[57]

Further, at the application hearing, Ian advanced a resulting
    trust claim concerning his repayment of Victorias indebtedness under the joint
    line of credit. As I have already mentioned, the application judge concluded
    that a presumption of resulting trust did not arise in Ians favour because, in
    his view, a presumption of resulting trust can apply only on the purchase or
    transfer of property, and not to a post-purchase reduction of liabilities
    associated with the purchase or transfer of property.

[58]

As I see it, there are several difficulties with the application
    judges analysis of this issue.

[59]

First, Ians repayment of the $1 million line of credit,
    established to facilitate the purchase of the Brookdale Property, was
    gratuitous and directly linked to the acquisition of the house.  The Supreme
    Court emphasized in
Kerr
,
    at paras. 18 and 19, citing its earlier decision in
Pecore v. Pecore
, 2007 SCC
    17, [2007] 1 S.C.R. 795, at paras. 43-44 and 24, that in situations involving
    gratuitous transfers, as in this case, the governing consideration is the
    transferors actual intention. The intention of the transferor alone counts, as
    [t]he point of the resulting trust is that the claimant is asking for his or
    her own property back:
Kerr
,
    at para. 25.  As Rothstein J. explained in
Pecore
, at para. 44, in such cases:

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 transferors actual intention
.  [Emphasis added.]

See also
Andrade v. Andrade
, 2016 ONCA 368,
131 O.R. (3d) 532
,
    at paras. 62 and 67.  Further, it is the transferors actual intention
at the time of transfer
that is the critical
    consideration:
Nishi v. Rascal Trucking Ltd.
, 2013 SCC 33, [2013] 2
    S.C.R. 438, at paras. 2, 30 and 41.

[60]

Kerr
also instructs that, when a gratuitous transfer is made, the transferee bears
    the onus of demonstrating that a gift was intended. Failing such a
    demonstration, the transferred property is deemed to be held in trust by the
    transferee for the transferor, as beneficial owner.

[61]

The problem in this case is that, contrary to the approach set
    out in
Pecore

and

Kerr
, the
    application judge did not proceed on the basis that the presumption of a
    resulting trust was implicated in respect of Ians repayment of the line of
    credit. Instead, at the outset, he concluded that the presumption was
    inapplicable. He then went on to find that even if the presumption did apply to
    the line of credit, it would have been rebutted by the evidence of the parties
    common intention concerning ownership of the Brookdale Property.

[62]

By proceeding in this fashion, the application judge essentially
    asked himself the wrong question. The repayment of the line of credit was integrally
    bound up with the purchase of the Brookdale Property. Victoria did not dispute
    that the parties had agreed that Ian would repay the mortgage  later converted
    to the line of credit  shortly after the Brookdale closing.

[63]

In these circumstances, the relevant question was what Ian
    intended at the time of repaying the line of credit  not what the parties
    commonly intended concerning ownership of the Brookdale Property. By focusing
    on the latter question, rather than the former, the application judge erred.

[64]

As the Supreme Court notes in
Pecore
at para. 44, where
    the presumption of resulting trust is engaged, it will determine the result if
    there is no evidence to rebut it. This is such a case. To repeat, Ians
    repayment of Victorias share of the parties debt under the line of credit was
    gratuitous, and directly linked to the purchase of the Brookdale Property.
    Victoria bore the onus to establish that Ian intended to gift her the sum of
    $500,000, that is, the repayment of her share of the parties joint indebtedness
    under the line of credit. There was no independent evidence of such an
    intention by Ian.  Further, as I have already explained, Victorias own
    evidence undercut such a conclusion. It follows that Victoria failed to meet
    her burden to prove that Ian intended to gift the repayment of the line of
    credit to her, in whole or in part.

[65]

This conclusion is reinforced by the evidence of Ians use of the
    proceeds of sale from the Austin Terrace property. As I have said, Ian owned 99
    per cent of that property. When it was sold, he used $1 million to repay the
    line of credit used to purchase the Brookdale Property and deposited $800,000
    in the RBC investment account. The application judge accepted that Ian did not
    intend to give half the funds in the RBC investment account to Victoria. In
    contrast, he held, in effect, that Ian had a different intent when he applied
    the Austin Terrace sale proceeds to the line of credit. I agree with Ians
    submission that there was no evidentiary foundation to support the conclusion
    that his intent regarding repayment of the line of credit was any different
    from his intent concerning the RBC investment account.

[66]

A resulting trust therefore arises in relation to Ians repayment
    of Victorias share of the parties joint debt under the line of credit.  In my
    view, the appropriate remedy is to direct that Ian be credited with the amount
    of $500,000 on division of the proceeds of sale of the Brookdale Property and I
    would so order.

[67]

In reaching this conclusion, I am mindful of Victorias argument
    that Ian did not plead or seek such a credit before the application judge and
    that, as a result, the evidence regarding the repayment of the line of credit
    was thin.

[68]

While this may be true, these factors do not preclude the remedy
    that Ian now seeks.  The question of the legal consequences of Ians repayment
    of the line of credit was a live issue before the application judge. The proper
    treatment of Ians repayment of the line of credit fell within the boundaries
    of his resulting trust claim concerning the Brookdale Property.

[69]

I note that, in light of my conclusion that a resulting trust
    applies in this case in respect of Ians repayment of Victorias debt under the
    joint line of credit, it is unnecessary to consider Ians additional argument
    that a constructive trust should have been imposed concerning that repayment.

E.       Disposition

[70]

I would allow the appeal in part, in accordance with these
    reasons.  To summarize, I see no basis on which to disturb the application
    judges finding that Victoria is entitled to a 50 per cent interest in the
    Brookdale Property. However, I would direct that, on division of the proceeds
    of sale of the Brookdale Property, Ian is entitled to a $500,000 credit for his
    repayment of Victorias share of the parties debt under the joint line of
    credit associated with the Brookdale Property.

[71]

Ian has been partially successful on this appeal. I would
    therefore award him part of his agreed costs of the appeal, fixed in the total
    amount of $12,500, inclusive of disbursements and all applicable taxes.

[72]

At the appeal hearing, the parties did not address the costs
    awarded by the application judge in Victorias favour. In light of the
    disposition of this appeal that I propose, I would direct that Ian deliver his
    brief written submissions regarding the costs below to the Registrar of this
    court within 30 days from the date of these reasons and that Victoria deliver
    her brief responding written submissions to the Registrar within 30 days
    thereafter.

Released:

GRS                                        E.A. Cronk
    J.A.

AUG 28 2017                          I agree G.R.
    Strathy C.J.O.

I agree
    S.E. Pepall J.A.


