David Joseph Lesko v. Kelly Sue Lesko

(Ontario) (Civil) (By Leave)


Family law - Family assets - Family law – Family assets – Constructive trust – Respondent seeking to deduct half of the value of a home owned by applicant husband on the date of marriage from her net family property statement, based on her contribution to the acquisition and maintenance of that property – To what extent may trial judges impose trust remedies that exceed the remedies available under provincial legislation regarding the division and/or equalization of matrimonial property? – To what extent may trial judges dispense “palm tree justice” in the face of a statutorily prescribed method to divide and/or equalize property? – To what extent may an appellate court substitute its analysis for that of the trial judge where the trial judge’s reasons are deficient?.


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The parties began their cohabitation in 1998, married in August 2003 and separated in December 2014. They sold their matrimonial home in 2015. Each party received an equal portion from the sale proceeds but an amount was held in trust by their real estate solicitor pending a trial. The respondent sought to establish a beneficial interest in a home owned by the applicant on the date of marriage. Also in issue were ongoing and retroactive spousal and child support. The trial judge ordered that the respondent was entitled to deduct half of the value of the home owned by the applicant on the date of marriage. The applicant was also ordered to pay retroactive and ongoing child and spousal support. This decision was upheld on appeal.