Law360 Canada (July 30, 2026, 1:06 PM EDT) --

Balvinder Kumar

Constructive trust claims and joint family venture claims are often used in family law matters when, following a breakdown of a relationship, one party has been unjustly enriched at the expense of the other.

The statutory property evaluation under the Family Law Act protects and benefits the married couple. But for unmarried couples or common law spouses, there is no such statutory protection. The party alleging constructive trust and joint family venture (JFV) claims must prove beyond a doubt that there is unjust enrichment of one party due to the efforts of the other party and must rely upon the principles of equity to claim a share of assets accumulated during the relationship, specifically in a situation where one spouse is not on title of a property.

If established, remedy for determinative constructive trust and JFV claims will result in a monetary award only. But in the case I am reviewing, the Ontario Superior Court Justice Melanie Kraft did not determine the trust claims, opining that the sale of the property will not prejudice the trust claims as the sale proceeds will be held in trust pending a determination of the claims at trial. Let’s look at the details of this case.

In Fournier v. Giannousopoulos 2026 ONSC 2813, the parties, Kelsy Janet Fournier (applicant) and Markos Giannousopoulos (respondent) were in a common law relationship for 15 years, not married, and lived together with their 3-year-old twin daughters in a property solely owned by the applicant.

An incident between the parties occurred, the matter was reported to the Children’s Aid Society, and the applicant left the property on an interim basis while the respondent continued to live at the property. After their separation, the applicant paid 100 per cent of the expenses relating to the property with no contribution from the respondent. The applicant carried all the costs of the property relating to mortgage, property insurance, property taxes and all other operating expenses. The applicant also paid for the respondent’s basic expenses, including food and supplies for the children.

When the mortgage renewal was approaching, the applicant insisted that she wanted to sell the property and did not wish to renew the mortgage. The applicant had to renew the mortgage for one year to give time to the respondent to make alternative arrangements. Unfortunately, during this time, the applicant’s credit went down, and the mortgagee advised the applicant they would not be renewing the mortgage on the property, and the entire amount must be paid at the end of the terms. The applicant started looking for other mortgages but could not be approved from an A-lender. She could obtain a high-interest rate mortgage from a B-lender, which she could not afford.

Without going into the minute details of the case, let’s look at the issues before the court and the application of the law.

The court had to decide on whether the respondent’s constructive trust/joint family venture claims in the property prevents the property from being sold, when the respondent should vacate the property, and whether the applicant should be granted the sole carriage of the property.

In Ontario, there is no statutory protection for an unmarried spouse’s interest in property held in the other’s name, and a person not on title must rely on equitable remedies to assert a claim. Ontario courts, in prior cases, have ruled that registered sole owners can obtain vacant possession and sell property despite an occupying party’s unresolved constructive trust claim, often to mitigate financial hardship.

In order to protect alleged interests, courts have also ordered that a portion of the net sale proceeds be held in trust pending a trial determination of the claim and that the trust claims could be protected by an order to hold a portion of the proceeds of sale in trust pending trial. These cases confirm that courts will not allow an occupant to use possession as leverage while the owner bears the financial burden of a property. In this case, the court confirmed a lack of cooperation and a lack of evidence from the respondent to confirm his claim. The court found that the respondent’s contributions throughout the relationship were inconsistent and limited. Considering this, Justice Kraft did not determine the trust claims of the respondent. She agreed that the constructive trust and JFV claims can be determined at trial and these claims are not prejudiced if the property is sold with net sale proceeds being held in trust.

Unmarried spouses do not have possessory rights to a “matrimonial home” under the Family Law Act since the expanded definition of “spouse” to include common law spouses is only in relation to spousal support claims and not property claims. The court gave the respondent 45 days to vacate the property. The court did not allow the respondent to participate in the sale. The respondent’s conduct with the contractors who came to repair the roof was aggressive and erratic. The applicant was able to demonstrate financial hardship. As such, the court granted the applicant sole carriage of the sale of the property given how long the applicant had tried to get the respondent to list the property for sale and the consistent refusal of the respondent to deal with it. The court found it appropriate for the applicant to have carriage and control of the property’s repairs and sale, to decide on the listing agent and to have complete decision-making authority regarding the property.

Lessons learned and key takeaways:


Balvinder Kumar practises real estate law (residential and commercial) and is a freelance writer and author with LexisNexis.

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