Montgomery v. Kouadio-Kossonou

2025 BCSC 1222 Montgomery v. Kouadio-Kossonou

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Montgomery v. Kouadio-Kossonou, 2025 BCSC 1222 Date: 20250630 Docket: S249880 Registry: New Westminster Between: Brian Montgomery Plaintiff And Auguste Roland Emmanuel Kouadio-Kossonou Defendant Before: The Honourable Justice Bantourakis Reasons for Judgment Counsel for the Plaintiff: G. Morrison Counsel for the Defendant: K. Seyedi Place and Dates of Trial: New Westminster, B.C. May 5-7, 2025 Place and Date of Judgment: New Westminster, B.C. June 30, 2025 Table of Contents INTRODUCTION.. 3 BACKGROUND.. 4 CREDIBILITY AND RELIABILITY. 7 THE INITIAL INTENTION TO BE CO-OWNERS. 10 THE TRUST CLAIMS. 12 (1) Has Dr. Montgomery rebutted the presumption of indefeasible title by way of resulting trust?. 12 (2) Has Dr. Montgomery rebutted the presumption of indefeasible title by way of unjust enrichment and constructive trust?. 20 CONCLUSION.. 23

INTRODUCTION [1] The plaintiff, Dr. Montgomery, and the defendant, Mr. Kouadio-Kossonou, had only known each other a short time when title to a Port Moody condominium was registered in both of their names as joint tenants (the "Condo"). Their romantic relationship did not last long. Mr. Kouadio-Kossonou moved out about six months after they took possession of the Condo. [2] This case is about who owns the Condo. In the lead up to the purchase, the parties agreed generally that Dr. Montgomery would pay about half of the approximately $1.2-million-dollar purchase price up front, with the remainder financed through a mortgage in both of their names. Mr. Kouadio-Kossonou, in turn, was to make a roughly equal contribution over time, by making the monthly mortgage payments. He made mortgage payments for a period, but also unilaterally withdrew money from the home equity line of credit attached to the Condo, and did so repeatedly until Dr. Montgomery had it closed. [3] In fact, Mr. Kouadio-Kossonou withdrew, and did not repay, more from the home equity line of credit than he has paid towards the mortgage, increasing the total charge on title. He has also long since stopped making any mortgage payments or making interest payments on the line of credit, let alone paying down its principal, though he acknowledges that the line of credit is his responsibility alone. Instead, Dr.

Montgomery has been making the necessary payments. [4] The parties were not spouses as that term is defined in s. 3(1) of the Family Law Act, S.B.C. 2011, c. 25, so their dispute is not governed by family law legislation. Dr. Montgomery instead asks that Mr. Kouadio-Kossonou be removed from title based on equitable principles. He says Mr. Kouadio-Kossonou has not made any financial contribution for his interest in the Condo and has been unjustly enriched. Indeed, he says that Mr. Kouadio-Kossonou has actually made a negative contribution, by increasing the debt secured against title. If he does not succeed in having Mr. Kouadio-Kossonou removed from title, Dr. Montgomery asks for an order for sale: Partition of Property Act, R.S.B.C. 1996, c. 347. [5] Mr. Kouadio-Kossonou, on the other hand, says that his name is registered on title because the parties intended and agreed to hold title as joint tenants and that intention should govern. He says he is willing to start making mortgage payments again, but that Dr. Montgomery owes him occupational rent. [6] In response to Dr. Montgomery's submission that he contributed no value for title to the Condo, Mr. Kouadio-Kossonou says he contributed by making mortgage payments, and that the amounts he has withdrawn and not repaid from the home equity line of credit are not relevant in assessing his equitable interest. He also says he contributed value by being a co-borrower on the mortgage and line of credit and taking on financial risk. Mr. Kouadio-Kossonou opposes any order for sale at this time. Rather, he wishes to remain on title until some undetermined future date, when he hopes it will more advantageous to sell.

BACKGROUND [7] The parties originally met online. Dr. Montgomery lived in Port Moody, British Columbia and Mr. Kouadio-Kossonou lived in Montreal, Quebec. They first met in person in July 2021, when Dr. Montgomery went to visit Mr. Kouadio-Kossonou in Montreal. Not long after, Dr. Montgomery invited Mr. Kouadio-Kossonou to move to British Columbia, and they began living together in Dr. Montgomery's Port Moody apartment in December 2021 or January 2022. [8] Dr. Montgomery, who was in his early 50s, had been a property owner before, but was renting when Mr. Kouadio-Koussonou moved in. Dr. Montgomery's marriage of many years had come to an end some time before. He testified, and I accept, that he was renting at that time because his share of the proceeds from the sale of the family home he had with his ex-spouse was tied up pending resolution of division of property issues and because it gave him some time to consider what he wanted to do before committing to another property. [9] In the first part of 2022, Dr. Montgomery's family law case finally resolved and he expected to receive money that was being held in trust for him by around the end of June 2022. He wanted to buy a condo in Port Moody, close to his medical practice and social activities. He and Mr. Kouadio-Kossonou agreed to continue living together and by May 15, 2022 they signed a contract to purchase the Condo, which

was new, for $1,209,000. The closing date was to be July 14, 2022. [10] As I mentioned before, the parties agreed generally that each would contribute roughly half of the purchase price. Dr. Montgomery would contribute his share in cash up front on closing and Mr. Kouadio-Kossonou would contribute his half by making monthly mortgage payments over time. Dr. Montgomery was to cover the strata fees and property taxes, which he did and has continued to do. They obtained mortgage approval jointly and, having received information on the implications, decided on joint tenancy. They did not set out any aspect of their agreement in writing and, as I will discuss, its terms were not clearly defined. [11] The mortgage lender offered the parties a home equity line of credit. Initially, they declined it. However, less than a month before closing, it became apparent that the funds that were being held in trust for Dr. Montgomery in the family law case would not be released in time, and so he would not have as much cash on hand at closing as he had anticipated. [12] In the circumstances, a home equity line of credit was arranged through the lender to cover the shortfall. I accept Dr. Montgomery's evidence that although a higher credit limit was offered, he opted for a $370,517 limit on the home equity line of credit, which was the amount strictly required to bridge the shortfall pending

release of his family law funds (the "Bridge Amount"). [13] On July 14, 2022, Dr. Montgomery and Mr. Kouadio-Kossonou became registered owners of the Condo as joint tenants. The final cost was $1,296,541.49, factoring in the purchase price as well as GST, property transfer tax and other expenses. [14] Dr. Montgomery made an initial down-payment of $57,995.00 and then paid an additional $222,230.49 in cash on closing. Also on closing, the Bridge Amount was paid out from the home equity line of credit, which Dr. Montgomery then paid back in full when his family law funds were released a few months later. Dr. Montgomery's total cash contribution at that point was $650,742.49. [15] On October 13, 2022, the same day that Dr. Montgomery paid off the home equity line of credit and thus freed up considerable borrowing room, Mr. Kouadio-Kossonou withdrew from it without telling Dr. Montgomery, who was out of the country at the time. The home equity line of credit, like the mortgage and title, was in both parties' names. In the span of about a month and half, Mr. Kouadio-Kossonou made over 50 withdrawals from the home equity line of credit. I find as a fact that he did so unbeknownst to Dr. Montgomery. The net amount owing after those withdrawals was $64,500. [16] Around late November 2022, Dr. Montgomery discovered the home equity line of credit withdrawals and confronted Mr.

Kouadio-Kossonou about them. The withdrawals stopped for a time, but the principal amount owing remained largely the same. [17] By about mid-January 2023, around six months after they became the registered owners of the Condo, the relationship was over and the parties separated. Dr. Montgomery stayed in the Condo. Mr. Kouadio-Kossonou moved out around early February 2023. [18] Mr. Kouadio-Kossonou then started taking money from the home equity line of credit again. Between February and June 2023, when Dr. Montgomery had the line of credit closed, Mr. Kouadio-Kossonou netted about another $20,000 in withdrawals which, like the earlier withdrawals, has yet to be repaid. Mr. Kouadio-Kossonou acknowledges that the amounts owing on the home equity line of credit are his responsibility alone. [19] Mr. Kouadio-Kossonou initially continued making mortgage payments after he moved out. However, he stopped making mortgage payments or paying the interest on the line of credit in February 2024. He may have attempted to make an interest payment in April 2024, but it appears to have bounced. Since February 2024, Dr. Montgomery has been paying the mortgage and, as of March 2025, had made $6,706.61 in interest payments on the line of credit. [20] Mr. Kouadio-Kossonou's withdrawals from and amounts still owing on the home equity line of credit exceed the mortgage payments he has made.

Specifically, he made a total of $63,954.57 in mortgage payments before stopping ($15,253.90 going towards principal, with the remainder being interest), but about $85,199.60 is owed on the home equity line of credit. [21] Additionally, there are now two new charges on title to the Condo. The first is a Crown lien relating to Mr. Kouadio-Kossonou's Speculation and Vacancy Tax declaration. The amount owing as of the date of the certificate of lien was just over $12,600. The second new charge on title relates to a judgment against Mr. Kouadio-Kossonou for just over $17,700 obtained by Canadian Tire Bank, apparently relating to a credit card debt. [22] Mr. Kouadio-Kossonou testified that he is in the process of resolving both matters. He suggested that the Canadian Tire debt may not be his, that he may be a victim of fraud in that regard, that he does not remember it, that he will make payments on it if it is proven to be his, and that he was not aware of the legal process regarding that debt, whether because relevant correspondence went to the Condo after he had moved out, or because he was traveling in Europe at the relevant time.

CREDIBILITY AND RELIABILITY [23] Dr. Montgomery and Mr. Kouadio-Kossonou were the only two witnesses at trial. In certain respects, their evidence aligns. For example, they agree on the general timeline of their relationship, on what amounts were paid and when for the Condo, and on the withdrawals from the home equity line of credit from October 13, 2022 onward. A detailed Notice to Admit was entered which was very helpful in establishing the basic facts and chronology. [24] That said, there are also obvious points of disagreement. Dr. Montgomery and Mr. Kouadio-Kossonou presented different views of the circumstances leading up to the Condo purchase, the nature of Mr. Kouadio-Kossonou's contribution (if any) and the events surrounding the breakdown in their relationship. [25] I find that Dr. Montgomery was a measured and straightforward witness who endeavoured to tell the truth. He did not exaggerate or embellish, readily acknowledged when he did not remember and made appropriate concessions under cross-examination. Dr. Montgomery's account was consistent and material aspects of it harmonize with the broader evidentiary record, including contemporaneous documentation and correspondence regarding the Condo purchase and line of credit. Though it is evident that he feels deeply betrayed by Mr. Kouadio-Kossonou, Dr. Montgomery demonstrated restraint when discussing Mr.

Kouadio-Kossonou and their relationship. [26] Having had the benefit of hearing and seeing Dr. Montgomery testify, and assessing his evidence in the context of the evidence as a whole, I find that Dr. Montgomery's account was consistent with the preponderance of probabilities, credible and trustworthy: see e.g. Bradshaw v. Stenner, 2010 BCSC 1398 at paras. 186-188; see also Moinzadeh v. Loblaws Inc., 2021 BCSC 793 at para. 16. [27] I cannot say the same for Mr. Kouadio-Kossonou. He was evasive on matters of importance and gave self-serving evidence that is implausible when viewed in light of the evidence I do accept and the evidence as a whole. He sometimes spoke of Dr. Montgomery in a demeaning manner and seemed eager to give evidence impugning Dr. Montgomery's character or that would be embarrassing to him: see e.g. K.R. v. J.R., 2022 BCSC 1856 at para. 340, citing R. v. Boohhour, 2007 ONCA 716 at para. 10. [28] For example, I completely reject aspects of Mr. Kouadio-Kossonou's evidence on the circumstances leading up to the Condo's purchase. Mr. Kouadio-Kossonou testified that Dr. Montgomery was facing the imminent loss of his medical license because of professional misconduct and this informed some of their discussions. He said Dr. Montgomery referred to moving abroad to become a scuba diving instructor if that happened. In part because of this allegedly precarious

professional situation, Mr. Kouadio-Kossonou testified, they moved ahead with the Condo purchase in the manner they did to ensure Mr. Kouadio-Kossonou's future security as a "full legal owner from the beginning". [29] This version of events was never put to Dr. Montgomery in cross-examination. That issue aside, considering other aspects of the evidence I accept, including Dr. Montgomery's account of his financial situation and relative debt-intolerance, I find Mr. Kouadio-Kossonou's evidence on this point was not truthful. I do not accept that Dr. Montgomery would have tied up the substantial amount of liquid cash he invested in the Condo and undertaken the associated mortgage liability if his livelihood was at imminent risk and a move abroad was in the cards. I find Mr. Kouadio-Kossonou was not being honest when he testified to these things, and his lack of honesty on this undermines his credibility more broadly. [30] As a further example, Mr. Kouadio-Kossonou's evidence on financial matters was evasive and at times incongruous. At trial, an affidavit he made after Dr. Montgomery started this litigation was put to him, in which he said that he was able to and would continue making mortgage payments on the Condo. Despite this, he stopped a few months later. His explanation that he did so because he had told Dr. Montgomery that he would stop paying if Dr. Montgomery started

litigation made little sense in the circumstances. [31] Mr. Kouadio-Kossonou also tended to portray himself in a somewhat grandiose manner and the overall tenor of his evidence was that he is a man of means who can afford certain luxuries, including a luxury vehicle, international business class travel, sometimes multiple times a year, and skiing trips in the Alps. However, he repeatedly accessed the home equity line of credit, including for sums as low as $250 or $500 (though also for far greater sums) and by a certain point his attempts to pay even very modest sums of interest appear to have begun bouncing. In cross-examination, Mr. Kouadio-Kossonou agreed he used some of the line of credit funds to pay other debt he had with a higher interest rate, effectively taking on debt to service other debt. His various attempts to explain the Canadian Tire debt were unconvincing. [32] Overall, I find that Mr. Kouadio-Kossonou was not a credible witness, on financial matters or otherwise. THE INITIAL INTENTION TO BE CO-OWNERS [33] I turn to Mr. Kouadio-Kossonou's submission that the parties intended to be equal co-owners of the Condo and that their agreement to that effect poses a bar to granting the equitable remedies Dr. Montgomery seeks. [34] Mr. Kouadio-Kossonou says that to find that he holds his interest or any part of it for Dr. Montgomery's benefit as Dr. Montgomery asks this

Court to do would be to impose a trust the parties never agreed to and did not intend. Offering to resume making the mortgage payments he unilaterally stopped making, Mr. Kouadio-Kossonou says that the parties' alleged agreement should instead be enforced. He says Dr. Montgomery breached the agreement, by filing this lawsuit. [35] The circumstances of this case are similar to those in Freeland v. Farrell, 2022 BCCA 99. That case involved two former romantic partners who had agreed that they would each cover half the cost of a property they purchased and held title to as joint tenants. However, Ms. Farell did not contribute her half, though she was a covenantor on the mortgage: Freeland at paras. 10, 23. The trial judge found she had received title gratuitously and that she held her interest on a resulting trust for Mr. Freeland, or alternatively that she had been unjustly enriched and held title on a constructive trust for his benefit: Freeland at paras. 31-37. Ms. Farell's subsequent appeal was dismissed. [36] Like Mr. Kouadio-Kossonou, Ms. Farell argued among other things that the parties had intended a joint tenancy and that she be a co-purchaser and, conversely, had not intended that she hold title in trust for Mr. Freeland. She argued the parties' initial intention should carry the day: Freeland at paras. 57, 65. [37] The Court of Appeal rejected that argument. It held

that the case was properly resolved on an application of equitable principles, and that the parties' initial intention to be equal co-owners did not govern. The question in the circumstances of that case was whether the criteria governing the equitable remedies Mr. Freeland was asking for were satisfied, not whether the parties had initially intended that one of them hold their interest in trust for the other: Freeland at paras. 68-70. [38] The Court of Appeal also noted that the parties' intention that Ms. Farrell would be a co‑purchaser was not unconditional. Rather, it was based on Ms. Farrell contributing half the cost to acquire and maintain the property, which she had not done: Freeland at para.

69. There was "no evidence that the parties set their minds to what would happen in the scenario that actually unfolded" and it was a "long stretch to think they would have intended Mr. Freeland to carry the Property at his sole expense, allowing Ms. Farrell to later extract half the increased value ": Freeland at para. 70. [39] In the case at bar, I am unable to find that the parties reached an agreement that governs. The alleged agreement was ill-defined at the outset and its terms were uncertain. The notion was that each would contribute roughly half of the Condo's price, with Dr. Montgomery's share paid up front in cash and Mr. Kouadio-Kossonou's share paid via mortgage instalments, but it does not appear that their respective monetary contributions were precisely defined. [40] Compounding matters, the situation changed when the need for bridge financing arose. Yet the parties never turned their minds to the implications of taking on the home equity line of credit. Neither of them suggests they discussed or reached any agreement on whether the home equity line of credit's use would be limited to providing the Bridge Amount, its ongoing use or its potential impact on their respective equity interests. There was no apparent thought given to what would happen if their relationship ended before both of their contributions had been made, as has occurred. [41] In the circumstances, I am unable to accede to Mr. Kouadio-Kossonou's submission that the parties' alleged agreement and initial intention for co-ownership governs. There was no meeting of the minds regarding the situation currently before the Court and, as in Freeland, the case falls to be determined on the application of equitable principles.

THE TRUST CLAIMS [42] That brings me to Dr. Montgomery's claims in equity. As I mentioned before, Dr. Montgomery and Mr. Kouadio-Kossonou hold title to the Condo as joint tenants. Pursuant to s. 23(2) of the Land Title Act, R.S.B.C. 1996, c. 250, indefeasible title is conclusive evidence at law and in equity that the person named in the title as registered owner is indefeasibly entitled to ownership of the land described in the title. Mr. Kouadio-Kossonou is entitled to the benefit of this statutory presumption unless Dr. Montgomery is able to rebut it: Freeland at para. 42. [43] There are three ways the presumption of indefeasibility can be rebutted: (i) the operation of a resulting trust which may be inferred where no value is given for a legal interest; (ii) the operation of an agreement between the parties that is contrary to the registered legal title; or (iii) taking into account the underlying equitable interests between the parties (e.g., considerations that arise in claims for unjust enrichment): Suen v. Suen, 2013 BCCA 313 at para. 34 [Suen 2013]. [44] Dr. Montgomery says that he has rebutted the presumption of indefeasible title in two of these ways: resulting trust and unjust enrichment. (1) Has Dr. Montgomery rebutted the presumption of indefeasible title by way of resulting trust? [45] Dr. Montgomery submits that Mr. Kouadio-Kossonou holds title on a resulting trust for his benefit. Where a person receives property for no consideration, the person who gave them title must either have intended to gift that property, or to retain it: Nishi v. Rascal Trucking, 2013 SCC 33 at para.

27. A resulting trust operates in the latter scenario, to return property to the person who gave it and is entitled to own it beneficially, from someone else who has legal title to it: Kerr v. Baranow, 2011 SCC 20 at para. 16. [46] A resulting trust is in fact presumed where a party gave no value for their interest as "equity presumes bargains, not gifts": Pecore v. Pecore, 2007 SCC 17 at para.

24. Where the presumption arises, it can still be rebutted, if it is shown on a balance of probabilities that the transferor intended a gift: Freeland at paras. 47-48. [47] A person must truly have received title gratuitously in order for a resulting trust to arise, and the onus of establishing that rests on the party asserting a resulting trust: Suen 2013 at para.

38. If that onus is not discharged, then there is no resulting trust, even where the value given is unequal to the other party's contribution: Petrick (Trustee) v. Petrick, 2019 BCSC 1319 at paras. 57-59; Freeland at para.

63. However, if it is discharged, the onus shifts to the opposing party to show a gift was intended, failing which the presumption resulting trust will remain in place and operate to return title to the donor: Pecore at paras. 24-25, 43-44. [48] The first issue under this heading then is whether Mr. Kouadio-Kossonou received title gratuitously or, conversely, gave tangible, meaning real or material, value for his legal interest in the Condo: Freeland at para.

63. That, in turn, depends on two questions. First, did Mr. Kouadio-Kossonou make a monetary contribution for title through his mortgage payments and, relatedly, is the debt he incurred on the home equity line of credit relevant in assessing his alleged monetary contribution? Second, did Mr. Kouadio-Kossonou contribute value by being a co-borrower on the mortgage and home equity line of credit, and taking on the associated financial liability? Did Mr. Kouadio-Kossonou contribute value for title by making mortgage payments? [49] This case is somewhat unusual in that Mr. Kouadio-Kossonou did pay the mortgage for a time. Viewed in isolation, this would suggest he contributed value. However, the parties disagree on whether the mortgage payments should be viewed in isolation, or whether the amounts Mr. Kouadio-Kossonou borrowed on the home equity line of credit should also be factored into the analysis. [50] While acknowledging that he alone is responsible for the amount owing on the home equity line of credit, Mr. Kouadio-Kossonou says that the line of credit is separate from the mortgage and that it should not form part of equitable ownership or entitlement analysis. He emphasizes that he did nothing wrong from a legal perspective by drawing funds from a line of credit he was a co-borrower on. He notes that in Suen v. Suen, 2016 BCCA 107 [Suen 2016], our Court of Appeal found that

personal debts that were "factually [ ] unrelated to [the parties'] equity interests" in the property ought not to have been considered in the context of an unjust enrichment analysis: Suen 2016 at para. 59. [51] However, the evidence in this case persuades me that the debt owing on the home equity line of credit is not factually unrelated to the parties' equity interests in the Condo, but rather forms part and parcel of those interests. I find that the home equity line of credit should properly be considered in the equitable ownership and entitlement analysis. [52] The land title Form B, lender documentation, and Title Search, all of which are in evidence, show that the mortgage and home equity line of credit form part of a single security instrument. The home equity line of credit is secured by the mortgage and together they represent a single charge on title. Likewise, the mortgage and home equity line of credit are treated by the lender as part of one "Homeline Plan" which has a mortgage component and a home equity line of credit component, albeit with different interest rates, but that nevertheless form part of the same borrowing instrument and yield a combined total owing and secured against title. That is, the mortgage and home equity line of credit are effectively one insofar as the charge on title is concerned. [53] Mr. Kouadio-Kossonou increased the debt secured

against the Condo's title through that charge. To suggest that the mortgage payments contributed value in these circumstances is to endorse a strained pretense. The question here is whether Mr. Kouadio-Kossonou provided "tangible, meaning real or material, value" by way of his mortgage payments: Freeland at paras. 61, 63. Considering he took more money out than he put in, I find that he did not. [54] Dr. Montgomery argues that the situation is even more stark. He suggests that Mr. Kouadio-Kossonou was at times using money from the home equity line of credit to pay the mortgage. The evidence shows that in some months Mr. Kouadio-Kossonou was making mortgage payments and making (larger) withdrawals from the line of credit within days or on the same day. In my view, whether Mr, Kouadio-Kossonou was at any point using actual line of credit dollars to make his mortgage payments matters little in these circumstances, because overall it is clear that from a net perspective Mr. Kouadio-Kossonou was extracting value from title, rather than contributing value for it. [55] In fact, even though the home equity line of credit was capped at the Bridge Amount, Mr. Kouadio-Kossonou testified to having taken money from the line of credit "from day one" (though as I understand it he says he paid back the amounts he took in the first month or two). When it was suggested to him that he could not

have drawn from the line of credit until October 2022 because there was no available credit room until Dr. Montgomery paid off the Bridge Amount with his family law funds, Mr. Kouadio-Kossonou explained that he was able to make withdrawals "from day one" because this was a revolving line of credit, and so whenever he made a mortgage payment, additional credit room became available. [56] On that evidence, the relationship in fact between the mortgage, the line of credit and actual equity in the property is plain. Looking at title itself, and the charge on it, Mr. Kouadio-Kossonou's mortgage payments did not contribute tangible value. [57] I also reject Mr. Kouadio-Kossonou's submission that his net monetary contribution is only negative because sometime after February 2024 Dr. Montgomery restricted his access to the account from which the mortgage payments had been made, effectively freezing his net contributions in time. [58] In cross-examination, Mr. Kouadio-Kossonou acknowledged that he chose to stop making mortgage payments in February 2024 without telling Dr. Montgomery. As I alluded to earlier, he testified that he had told Dr. Montgomery about a year before that he would stop making the payments if Dr. Montgomery started legal action against him. He said he felt that was sufficient warning. That is, on Mr. Kouadio-Kossonou's own evidence, he chose to stop making payments

because of the litigation, not because of issues with the account. [59] Restrictions may well have been placed on the account a few months later, when Dr. Montgomery learned from his lender that the mortgage was in arrears and started making the payments himself. However, if Mr. Kouadio-Kossonou had wanted or been able to resume making mortgage payments or pay down the line of credit, he could have taken steps to do so. There is no evidence before me to suggest that he did. Mr. Kouadio-Kossonou was represented by counsel at the time. [60] In fact, Mr. Kouadio-Kossonou's decision to stop making mortgage payments about seven months into this litigation is confounding considering the position he has taken before me, as is his decision not to pay down even some of the principal owing on the line of credit. Mr. Kouadio-Kossonou claims to be a person of means who leads a comfortable life financially. If that is so, he could have addressed the very basis upon which Dr. Montgomery advances a resulting trust claim, simply by ensuring that his mortgage contribution exceeded the amount owing on the home equity line of credit. He did not. [61] I find that Mr. Kouadio-Kossonou chose to stop paying the mortgage, whether because he could not afford it at all, or because he preferred to direct whatever funds he had available to him elsewhere. Accordingly, his suggestion at trial that he would

not have been in a negative monetary contribution situation but for Dr. Montgomery's conduct rings hollow, as do his assurances that he is now willing and able to pay the mortgage and, to quote a rather galling submission made on his behalf in closing, that he "would welcome the opportunity" to pay back the line of credit. Did Mr. Kouadio-Kossonou contribute value for title by being a co-borrower and incurring risk? [62] Even if Mr. Kouadio-Kossonou did not make a monetary contribution for title, as I have found, it remains that he was a covenantor on the mortgage and is jointly liable on both the mortgage and home equity line of credit. Mr. Kouadio-Kossonou rightly points out that pledging credit can constitute consideration such that the presumption of resulting trust will not arise on an otherwise gratuitous transfer: Petrick at paras. 57, 61. [63] That said, whether pledging credit alone will constitute consideration depends on the facts: Freeland at para. 59-64. For example, where the risk incurred by pledging credit is purely nominal, and the consequent consideration in exchange for an interest in title is correspondingly nominal, or the co-borrowing did not assist in the purchase at all, a presumption of resulting trust may still arise: see e.g. Kennedy v. Smith, 2022 BCSC 1622 at para. 76. [64] As I will explain, I find that Dr. Montgomery would have purchased the Condo

regardless of Mr. Kouadio-Kossonou's involvement in the purchase, that the co-borrowing did not assist in the purchase at all and that Mr. Kouadio-Kossonou incurred no real risk. Looking at the evidence as a whole, Mr. Kouadio-Kossonou's pledge of credit provided no real or material value. [65] To begin, I accept Dr. Montgomery's evidence that he had been eyeing the condo development in issue even before he met Mr. Kouadio-Kossonou and, once his family law matter seemed to have resolved, decided that it was time to buy. [66] I also accept Dr. Montgomery's evidence that he told Mr. Kouadio-Kossonou he was going to buy a Condo and, assuming Mr. Kouadio-Kossonou still wished to live with him, asked him whether he wanted to buy in as well. That is, I find that Dr. Montgomery planned to go ahead with a condo purchase regardless, but offered Mr. Kouadio-Kossonou the chance to buy in because they were in a relationship and living together. I do not accept Mr. Kouadio-Kossonou's evidence that he played any role of significance in locating or choosing the Condo. [67] Further, I find as a fact that Dr. Montgomery did not need Mr. Kouadio-Kossonou to obtain financing for the Condo and his pledge of credit did not assist at all. I have heard evidence regarding Dr. Montgomery's income and assets. I find that Dr. Montgomery was and is financially secure. When he bought the Condo he was a

family physician in his early 50s with a long history of substantial earnings and income into the six figures. He carries no debt other than the mortgage, has considerable retirement savings and was a property owner for years. [68] Dr. Montgomery's testimony about his ability to qualify for the mortgage, and with respect to his financial situation more broadly, was not challenged on cross-examination. He also tendered a mortgage calculation printout at trial that is consistent with his evidence that he would have qualified on his own, though I place little weight on that printout alone. [69] I also find that Dr. Montgomery would easily have obtained financing for the Bridge Amount on his own. On the evidence I accept, that money was to be imminently available to Dr. Montgomery in cash as part of his family law process. Mr. Kouadio-Kossonou's counsel's submission in closing that there could have been some uncertainty about whether the family law funds would be released to him has no basis in the evidence. [70] Conversely, at the time of mortgage approval, Mr. Kouadio-Kossonou was much younger, had just begun a new job, had no significant assets or Canadian savings, had only lived in British Columbia a short time and had recently taken on debt by signing a financing agreement for a luxury car. I have already described some of the evidence regarding Mr. Kouadio-Kossonou's

financial situation. Though much remains unclear in that regard because I am unable to rely on his evidence, I find as a fact that within a short time of taking possession of the Condo, and likely for some time before, Mr. Kouadio-Kossonou was having difficulty managing his expenses and debt. [71] I say this for a variety of reasons, including Mr. Kouadio-Kossonou's evidence that he began drawing from the line of credit "from day one", the number and nature of his documented withdrawals from the line of credit which began very shortly after the Condo purchase and the very day more credit room became available, his apparent inability or unwillingness to pay down the principal on the home equity line of credit, his admission that he used some line of credit money to service other debt he was carrying, and the fact that certain of his attempted interest payments on the home equity line of credit bounced, including for quite modest sums. [72] Finally, I find that Mr. Kouadio-Kossonou took on no real risk by pledging his credit. This became obvious in cross-examination, when Mr. Kouadio-Kossonou was pressed regarding the fact he had stopped making mortgage payments after February 2024, without telling Dr. Montgomery. Mr. Kouadio-Kossonou agreed that he understood that non-payment of the mortgage could result in the lender forcing the Condo's sale and affect his credit rating but

maintained that he was not concerned about those things. [73] I find that Mr. Kouadio-Kossonou was not concerned about those things because he knew that Dr. Montgomery would not allow the joint secured debt to go into default and that Dr. Montgomery had the means to ensure it did not. Indeed, that is what happened. Since Mr. Kouadio-Kossonou unilaterally stopped making the mortgage payments and paying the interest on the line of credit, Dr. Montgomery has done so, with no apparent consequence for Mr. Kouadio-Kossonou to date. As a practical matter, it was Dr. Montgomery who bore the risk, while Mr. Kouadio-Kossonou effectively bore none or, at most, his risk was nominal. [74] Mr. Kouadio-Kossonou also did not incur any real risk in relation to the Bridge Amount taken from the home equity line of credit. I find as a fact that Mr. Kouadio-Kossonou knew and understood that those funds would shortly become available to Dr. Montgomery and that when they did Dr. Montgomery would pay off the line of credit in full, which is what he did. Mr. Kouadio-Kossonou's various attempts to convince the Court otherwise were unpersuasive. [75] Based on all this, I am satisfied that Dr. Montgomery has established that Mr. Kouadio-Kossonou did not contribute value for title. A presumption of resulting trust arises and the onus now shifts to Mr. Kouadio-Kossonou to rebut that presumption by proving

on a balance of probabilities that Dr. Montgomery intended to gift him his interest in the Condo. Did Dr. Montgomery intend a gift? [76] Mr. Kouadio-Kossonou did not directly submit that Dr. Montgomery intended a gift. However, to be clear, I find as a fact that Dr. Montgomery did not intend to gift Mr. Kouadio-Kossonou his interest in the Condo. Dr. Montgomery's evidence regarding his intention that the parties should each contribute financially was credible and clear. It is also well supported by the broader evidentiary record, including Mr. Kouadio-Kossonou's account of the parties' alleged agreement. The presumption of resulting trust has not been displaced. [77] I find that Dr. Montgomery has rebutted the presumption of indefeasibility and Mr. Kouadio-Kossonou holds his legal interest in the Condo on a resulting trust for Dr. Montgomery. As I will now explain, I reach a similar conclusion on Dr. Montgomery's claim in unjust enrichment and constructive trust. (2) Has Dr. Montgomery rebutted the presumption of indefeasible title by way of unjust enrichment and constructive trust? [78] Dr. Montgomery's claim in unjust enrichment turns on three elements: (1) the enrichment of Mr. Kouadio-Kossonou; (2) a corresponding deprivation to Dr. Montgomery; and (3) the absence of any juristic reason for the enrichment: Kerr at paras. 36-45. The burden is on Dr. Montgomery to establish

all three elements. [79] On the findings of fact I have already made, I conclude that the first two elements are made out. Mr. Kouadio-Kossonou has received title from Dr. Montgomery gratuitously and would be enriched if he was to share in the value of the Condo by retaining his legal interest. There would also be a corresponding deprivation to Dr. Montgomery, as he would be deprived of that very same interest, despite having made all of the financial contributions. [80] As for juristic reason, Mr. Kouadio-Kossonou says the parties' agreement coupled with the legal effect of joint tenancy under the Land Title Act constitutes a juristic reason for his enrichment. I do not agree. [81] There are two parts to the juristic reason analysis, but generally "it is an inquiry into whether there was a reason in law or justice for the retention of the benefit conferred by the plaintiff onto the defendant": Hall v. Hall, 2015 BCCA 96 at para. 42, citing Kerr at paras. 40-45. [82] In the first part of the analysis, the court is concerned with established categories that can constitute a juristic reason, such as a contract, a disposition of law or donative intent: Kerr at para.

41. If there is no juristic reason arising from an established category, a prima facie case is made out. In the second part of the analysis, the burden shifts to the defendant to show why the enrichment should be retained despite it not fitting under an established category of juristic reason: Kerr at para.

43. The exercise at the second step turns on the parties' reasonable expectations and moral and policy-based arguments about whether particular enrichments are unjust: Kerr at paras. 43-44. [83] Turning to the first step, I find that there is no juristic reason for Mr. Kouadio-Kossonou's enrichment from an established category. As I have already found, there was no meeting of the minds and no agreement that governs the situation before the Court. Further, any ill-defined agreement the parties had contemplated that Mr. Kouadio-Kossonou would incrementally contribute roughly half of the purchase price for the Condo. As a practical matter, that did not happen because Mr. Kouadio-Kossonou extracted more money from the Condo than he put in, and then unilaterally stopped putting anything in at all. Echoing the Court of Appeal in Freeland, I find that Mr. Kouadio-Kossonou "simply cannot assert at the first step of the juristic reason analysis that a bargain [he] breached establishes a juristic reason for [him] to retain an enrichment": Freeland at para. 80. [84] Moving on to the second step, Mr. Kouadio-Kossonou could not have had any reasonable expectation of retaining a beneficial half-interest in a Condo he did not contribute to in any real or tangible way and there is no moral or policy reason to justify Mr. Kouadio-Kossonou retaining a beneficial half‑interest in these circumstances. [85] The question then becomes what remedy ought to be awarded in unjust enrichment. A monetary award must be considered first and in most cases will be adequate: Kerr at para. 47; Freeland at para.

76. However, a proprietary remedy by way of constructive trust may be imposed where the plaintiff demonstrates that: (1) there is a substantial and direct link or a causal connection or a nexus between the claim and the property upon which the constructive trust is to be impressed; and (2) monetary damages are inadequate: Nouhi v Pourtaghi, 2019 BCSC 794 at para. 26, citing Kerr at para.

50. If a constructive trust is found, the extent of the interest held in trust must be proportionate to the contribution to the property: Kerr at para. 50. [86] Applying those considerations, I find that a constructive trust should be imposed. There is clearly a substantial and direct connection between this claim and the Condo and a monetary award would be inadequate and inappropriate. Dr. Montgomery's contributions to the Condo have been significant. He paid over $650,000 in cash for the Condo purchase initially, has been making the regular mortgage payments on the property since Mr. Kouadio-Kossonou decided to stop doing so and has also serviced the interest payments on the line of credit. Dr. Montgomery has paid all the strata fees and property taxes since the Condo was acquired. [87] Further, Dr. Montgomery has now lived in the Condo for almost three years. On the evidence, I find that the Condo is Dr. Montgomery's home in every sense of that word. It is also close to his work, his activities, and the community to which he has become attached. It would also be costly for Dr. Montgomery to move and it is uncontroversial that he would suffer a financial loss if the Condo was sold now. [88] In the circumstances, I find that the appropriate remedy is by way of constructive trust. In quantifying it, I rely on my findings that Mr. Kouadio-Kossonou has made no positive financial contribution to the Condo. Rather. Dr. Montgomery is the only one who has contributed in any tangible way and has done so to a significant degree. I find that Dr. Montgomery is entitled to a 100% legal interest in the Condo, which is proportionate to his contributions.

CONCLUSION [89] In light of all the above, I find that Mr. Kouadio-Kossonou holds legal title to the Condo on a resulting trust, or alternatively, a constructive trust for Dr. Montgomery. Mr. Kouadio-Kossonou has no beneficial interest in the Condo and I order that he is to be removed from title. [90] That leaves outstanding, however, two issues relating to the mortgage and line of credit. The first relates to the fact that Mr. Kouadio-Kossonou is currently a covenantor on the mortgage and line of credit despite having no interest in the Condo. The second relates to the mortgage payments Mr. Kouadio-Kossonou did make and the amount outstanding on the home equity line of credit. [91] On the first point, counsel for Dr. Montgomery advises me that my order regarding title may be sufficient to allow them to take the necessary steps with the lender to remove Mr. Kouadio-Kossonou from the covenants of the mortgage. I make no order to that effect considering the lender was not named as a party to these proceedings: see Freeland at paras. 83-84. However, if any issues arise in that regard, the parties may make arrangements through Supreme Court Scheduling to appear back before me. [92] On the second point, the balance owing on the line of credit as of the date of trial was $85,199 and Mr. Kouadio-Kossonou has admitted it his responsibility alone. However, once Mr. Kouadio-Kossonou is

removed as a borrower, the mortgage and line of credit will remain in Dr. Montgomery's name alone. [93] Further complicating matters, over course of making the mortgage payments he did, Mr. Kouadio-Kossonou paid down the principal on the mortgage by $15,253.90 (though overall he increased the charge on title) and also serviced the interest on the mortgage for a period, which Dr. Montgomery would otherwise have been required to do. The mortgage interest stands in lieu of Mr. Kouadio-Kossonou's rent for the period from July 2022 to the end of January 2023 and should not be credited to him, but after that Mr. Kouadio-Kossonou was no longer living in the Condo. [94] In the unusual circumstances before me, I have concluded that doing justice between the parties requires that I order Mr. Kouadio-Kossonou to pay to Dr. Montgomery the difference between: (a) the principal owing on the home equity line credit plus any principal or interest payments Dr. Montgomery has made on that line of credit in service of Mr. Kouadio-Kossonou's debt; and (b) the amount by which Mr. Kouadio-Kossonou's mortgage payments reduced the principal owing on the mortgage plus any mortgage interest paid by Mr. Kouadio-Kossonou from February 2023 until he stopped making mortgage payments. Again, if any issues arise in this regard, the parties may make arrangements through Supreme Court Scheduling to appear back

before me. [95] In the ordinary course, as the successful party, Dr. Montgomery is entitled to his costs. However, if the parties wish to make submissions on costs, they may do so in writing. In that event, their submissions (not to exceed five pages each) and any affidavit evidence they wish to rely on should be exchanged according to a schedule to be agreed between counsel, with the first submission to be filed with the registry within 30 days of the release of these reasons. "Bantourakis J."