DATE:  20000229
                                                  DOCKET:  C29145

                   COURT OF APPEAL FOR ONTARIO

           OSBORNE A.C.J.O., MORDEN AND MOLDAVER JJ.A.
                                

BETWEEN:                    )
                                   )
FAYEZ NASSER                       )
                                   )    Thomas G. Bastedo, Q.C.
               Plaintiff/Appellant )    for the appellant
                                   )
- and -                            )
                                   )
MONIKA MAYER-NASSER (also known    )    Angela Costigan
as MONIKA MAYER)                   )    for the respondent
                                   )
              Defendant/Respondent )
                                   )    Heard:  March 19, 1999
                                   )

On appeal from the judgment of Kiteley J. dated January 21, 1998

OSBORNE A.C.J.O.:

OVERVIEW

[1]  This is an appeal by the  plaintiff Fayez Nasser and a cross-
appeal by the defendant Monika Mayer-Nasser from the judgment of
Kiteley J. dated January 21, 1998.  In that judgment, after
adjusting the parties’ ownership interests in certain properties
by the application of resulting trust principles, the trial judge
accepted Ms. Mayer-Nasser’s claim that Mr. Nasser was unjustly
enriched to Ms. Mayer-Nasser’s detriment and that there was no
juristic reason for the enrichment.  To remedy the unjust
enrichment the trial judge held that Ms. Mayer-Nasser was
entitled to 35 percent of the value of the parties’ total assets.
She went on to find that Ms. Mayer-Nasser’s entitlement could
best be satisfied by the adjustment of title to two properties
which were jointly owned by the parties and a cash payment.
[2]  Mr. Nasser submits that the trial judge erred in finding
that he was unjustly enriched to Ms. Mayer-Nasser’s detriment. He
further submits that if Ms. Mayer-Nasser is entitled to relief to
remedy unjust enrichment, the trial judge erred in making the
hybrid remedial order (property transfer and cash) that she did.
[3]  Ms. Mayer-Nasser, in her cross-appeal, contends that the
trial judge erred in limiting her recovery to 35 percent of the
total value of the parties’ assets.  She submits that the
appropriate remedy for the unjust enrichment found by the trial
judge should be quantified at 50 percent of the value of the
parties’ assets.

THE EVIDENCE AND TRIAL ISSUES

(i)  The Parties Relationship

[4]  I do not propose to review all of the sometimes conflicting
evidence.  I will, however, review some of the evidence bearing
on the parties’ family and business relationships.  At the outset
I note that, for the most part, the trial judge made findings of
credibility favourable to Ms. Mayer-Nasser, although she
recognized that in some parts of her evidence, Ms. Mayer-Nasser
was prone to exaggeration.
[5]  Mr. Nasser, born in 1936, and Ms. Mayer-Nasser, born in
1943, met in 1967.  At that time they were employees of Carl
Zeiss Canada Ltd.  They began seeing each other outside of their
work environment in about 1972.  In the summer of 1973, Ms. Mayer-
Nasser told Mr. Nasser that she was pregnant.  This occurred in a
chapel in Niagara Falls, Ontario where Ms. Mayer-Nasser said that
she and Mr. Nasser privately exchanged “matrimonial vows.”  Mr.
Nasser put a different gloss on this event.  He testified that
they made an agreement in the chapel under which they promised to
take responsibility for their then unborn child and to share the
expenses related to the child equally.  He denied that he and Ms.
Mayer-Nasser exchanged matrimonial vows.  In any case, Mr. Nasser
and Ms. Mayer-Nasser cohabited for over 23 years before they
separated.  It is apparent that Ms. Mayer-Nasser was viewed by
the outside world as Mr. Nasser’s wife.  However, they never
married legally.  They have two children, Nadia born on December
10, 1973 and Norman, born on April 19, 1977.
[6]  The parties’ relationship deteriorated irreparably by
October 1995.  One source of their problems was the disagreement
about the manner in which they should deal with their daughter,
Nadia.  All that need be said about that is that Ms. Mayer-
Nasser’s views were significantly more liberal than Mr. Nasser’s.
[7]  Beginning in 1995, Mr. Nasser did not eat at home and began
to stay away from the matrimonial home until late at night.  As a
consequence of her fractured relationship with Mr. Nasser, Ms.
Mayer-Nasser became depressed.  She testified that Mr. Nasser
threatened her with litigation.  She said he also physically
threatened her and that he said, “You’re going to eat the crumbs
off the floor.  I’m going to hurt you.”  At this time, Ms. Mayer-
Nasser was frightened and slept with a baseball bat by her side.
[8]  On December 19, 1995, Jennings J., in response to Ms. Mayer-
Nasser’s motion, gave her exclusive possession of the matrimonial
home subject to Mr. Nasser’s right to use the master bedroom for
sleeping purposes from 10:00 p.m. until 7:30 a.m. each day.
[9]  In January 1996, Mr. Nasser, using a lipstick, wrote what
Ms. Mayer-Nasser thought was a threatening Arabic proverb on a
bathroom mirror.  When Ms. Mayer-Nasser saw this, she collapsed
and on January 16, 1996 in a state of depression she jumped from
the Brimley Road - 401 bridge.  She is a paraplegic.
[10] Before he moved from the matrimonial home, and while Ms.
Mayer-Nasser was in hospital, Mr. Nasser moved a framed copy of
the Arabic proverb to which I have referred from the basement and
hung it in the master bedroom.

(ii)  Employment History – Mr. Nasser

[11] Mr. Nasser worked for Carl Zeiss Canada Ltd. (“Zeiss”) for
ten years before he came to Canada in 1967.  At that time he was
married and had two children aged three and one.  He separated
from his wife in 1970.  For the next 18 years, he was involved in
a bitter divorce proceeding.  He is trained as an optical
electronic technician who has a particular expertise in
microscopes and other optical instruments.
[12] In March 1985, Mr. Nasser accepted an early retirement
package from Zeiss.  However, he continued to deal with Zeiss,
but as a supplier rather than as an employee.
[13] In 1985, West-East Trading Company (Wetco), a business that
Mr. Nasser had established in 1978 with members of his family,
was incorporated.  It carried on business under the name
Microlites.  As a result of Mr. Nasser’s particular skills,
Microlites got into the business of manufacturing and
distributing bulbs for microscopes and other optical instruments.
By 1989, Mr. Nasser held all of the shares of Microlites.
[14] In 1991, there were significant cutbacks in the funding of
hospitals and universities.  Due to the cutbacks, these
institutions had to continue to use old equipment because funds
were not available to buy new equipment.  Mr. Nasser possessed
the skills to adapt existing equipment, such as microscopes, for
current use.  The combination of provincial funding cutbacks and
Mr. Nasser’s expertise caused Microlites to prosper.
[15] 1991 was described as a breakthrough year.  In that year,
Microlites’ gross sales increased from $405,000 to $1,250,000.
In that period Microlites gross profit margin was between 35 and
41 percent.  It is fair to say that Mr. Nasser’s business was
prosperous and that its prosperity depended to a large  measure
on his unique expertise.  At the time of separation Microlites
was valued at $516,000.

(iii)   Employment History – Ms. Mayer-Nasser

[16] When Mr. Nasser and Ms. Mayer-Nasser began to see each other
in 1972, Ms. Mayer-Nasser was employed at Zeiss in the accounting
and order entry department.  She took a maternity leave in 1973
when the parties’ daughter Nadia was born.  She did not return to
work full time until 1977.  Due to problems in obtaining
satisfactory babysitting, the parties agreed that she would
remain at home to look after the children.  She cooked, cleaned,
washed and was generally responsible for household management.
During this period Ms. Mayer-Nasser worked for a short time with
Woolco and the Yellow Pages.   In 1978, after Wetco was
established, Ms. Mayer-Nasser worked for Wetco answering the
telephone.
[17] In May 1985, Wetco carried on business as Microlites.
Microlites leased premises at 2240 Midland Avenue in Scarborough
in August 1985.  Ms. Mayer-Nasser worked there every day in order
to establish the business.  She answered the telephone, placed
and received orders and did the accounting.  Mr. Nasser’s brother
testified that she was of great assistance to Microlites.
[18] By 1990, Ms. Mayer-Nasser worked at Microlites about three
days a week from 11:00 a.m. to 4:00 p.m. Throughout this time,
she had full child care and household management
responsibilities.  Ms. Mayer-Nasser was paid $24,000 in 1990,
$26,400 in 1991, $27,456 in 1992, $18,000 in 1993, $20,400 in
1994 and about $22,000 in 1995.
[19] Ms. Mayer-Nasser was paid by Microlites on the 15th and 30th
of each month.  She paid all of the household expenses and
expenses related to a condominium on Sheppard Avenue where Mr.
Nasser’s mother lived from her salary.  Mr. Nasser required Ms.
Mayer-Nasser to operate on what was referred to in the evidence
as an “in and out” budget.  It was because of the restrictions of
this “in and out” budget that Ms. Mayer-Nasser shopped at outlets
such as Goodwill and the Salvation Army.  Mr. Nasser exercised a
very strict control over all of the household and other expenses.
The result was that Ms. Mayer-Nasser, as the trial judge put it,
“…used virtually all of the resources attributed to her for tax
purposes and for family purposes.”
[20] By about April 1995, as a result of their deteriorating
relationship Ms. Mayer-Nasser stopped working at Microlites.  Her
version of this was that Mr. Nasser fired her; Mr. Nasser
testified that Ms. Mayer-Nasser quit voluntarily.  In any case,
after Ms. Mayer-Nasser left, or was asked to leave, Mr. Nasser
gave her no money for household expenses for four months.

(iv)  The Parties Assets

[21] In 1973, Mr. Nasser purchased 1 Fulham Street from Ms. Mayer-
Nasser’s former husband.  Title was taken in Ms. Mayer-Nasser’s
name.  Mr. Nasser testified that he and Ms. Mayer-Nasser agreed
that once Mr. Nasser’s divorce action was completed he and Ms.
Mayer-Nasser would own 1 Fulham Street as joint tenants.
[22] In June 1979 the parties purchased a condominium on Sheppard
Avenue in Scarborough as a residence for Mr. Nasser’s mother.
The mortgage on the Sheppard Avenue condominium was paid off in
1982.  The Sheppard Avenue condominium was registered in Ms.
Mayer-Nasser’s name and occupied by Mr. Nasser’s mother.
[23] In 1989, 1992 and 1994 the parties purchased three
commercial condominium units on Midland Avenue in Scarborough.
The first commercial condominium was paid for out of the proceeds
of the sale of a property in Florida which Mr. Nasser owned.
Microlites eventually carried on business from the three
commercial Midland Avenue condominium units.
[24] Ms. Mayer-Nasser assisted in the purchase of one of the
commercial condominium units by mortgaging the Fulham Street
residence for $50,000.  This mortgage was later increased to
$120,000 when the parties purchased the third commercial Midland
Avenue condominium unit.  This mortgage was discharged in 1995.

(v)  The Value of the Parties’ Assets

[25] At trial, Mr. Nasser and Ms. Mayer-Nasser agreed on the
value of the assets each of them held when they separated.  The
valuation of the parties’ RRSPs took into account the tax
consequences of their disposition.  Since the parties agreed on
the value of their assets, no evidence was led with respect to
any relevant asset values at the trial.  Nor were the assigned
asset values in issue on the appeal.  Finally, on this issue, it
appears that the parties agreed the assigned date of separation
asset values could be taken as the asset values at the time of
the trial.

[26] In summary form, when the parties separated in 1995, the
assets each of them held and their agreed values were:

[27] As is apparent from the above, the total agreed value of the
assets of the parties was $1,142,257 ($411,100 + $731,147).

(vi)  The Resulting Trust Title Adjustments

[28] At trial, Mr. Nasser took issue with Ms. Mayer-Nasser’s
ownership interest in Fulham Street, the residential condominium
on Sheppard Avenue and the three commercial condominiums on
Midland Avenue.  He contended that Ms. Mayer-Nasser held those
properties in trust for him and sought a declaration to that
effect.  As I have noted, title to 1 Fulham Street and the
Sheppard Avenue condominium was in Ms. Mayer-Nasser’s name.
Title to the three commercial condominiums was held by Mr. Nasser
and Ms. Mayer-Nasser jointly.
[29] I will not spend much time dealing with the trial judge’s
resolution of Mr. Nasser’s resulting trust claims since no issue
is taken with it on this appeal.  It will be sufficient to note
that after referring to the resulting trust principles set out by
Dickson J. in Rathwell v. Rathwell (1978), 1 R.F.L. (2d) 1
(S.C.C.), the trial judge declared that the Fulham Avenue
property was owned to the extent of 50 percent by Mr. Nasser.
She also declared that the Sheppard Avenue condominium which was
registered in Ms. Mayer-Nasser’s name was owned by Mr. Nasser.
[30] The three commercial condominiums were, as I have said,
owned jointly and Mr. Nasser sought a declaration that he was the
sole owner of all three condominiums.  The trial judge dismissed
his claim in that regard.  She also dismissed Mr. Nasser’s
alternative claim that he was entitled to a 100 percent ownership
of the three condominium units based on unjust enrichment
principles.
[31] After the trial judge’s findings with respect to Mr.
Nasser’s resulting trust claims are taken into account, the
assets owned by the parties and their values were:

[32] As a result of the changes brought about by the trial
judge’s resulting trust declarations, the value of the assets
owned by Mr. Nasser increased by $181,000 and the value of the
assets owned by Ms. Mayer-Nasser decreased by the same amount.
The total of the parties’ assets, of course, remained at
$1,142,257.

(vi)  Ms. Mayer-Nasser’s Unjust Enrichment Claim

[33] When she dealt with Ms. Mayer-Nasser’s unjust enrichment
claim, the trial judge made findings of fact, all of which appear
to me to be supported by the evidence.  She found that Ms. Mayer-
Nasser worked directly for Microlites in three phases.  The first
was the early years from 1979 to 1985 when the unincorporated
business, Wetco, was operated from the parties’ matrimonial home.
The second phase was between 1986 and 1990 when she was the
business’s only employee.  In that period she received a salary
and rental income from Microlites and Mr. Nasser.  Her earnings
were sufficient to enable her to contribute regularly to her RRSP
account.  Her third working phase was from 1990 to 1994.  In this
period she was subject to the “in and out” budget to which I have
referred.  The trial judge recognized that some of the income
that Ms.Mayer-Nasser received in this period was not related to
her work for Microlites but was tax driven income splitting.  She
found that Ms. Mayer-Nasser was adequately compensated for her
direct contributions as an employee of Microlites.
[34] The trial judge referred in some detail to the parties’
“documented financial relationship” which established that they
were not independent of one another from a financial standpoint.
She emphasized not only what income Ms. Mayer-Nasser received but
also what she was required to do with it.  She found that the
income that Ms. Mayer-Nasser received from all sources during her
23 year period of cohabitation with Mr. Nasser was about $432,000
and that Ms. Mayer-Nasser, in addition to her interest in 1
Fulham Street, ended the relationship “with cash equal to about
10 percent of what she had received as income.” The trial judge
concluded that Ms. Mayer-Nasser committed a disproportionate part
of her earnings to what might generally be described as family-
related needs and that Mr. Nasser, who earned substantially more
income than Ms. Mayer-Nasser in the period of cohabitation, was
able to segregate his earnings from the money spent for family-
related purposes.  The trial judge dealt with this aspect of the
parties’ relationship in this way:
          

          I am mindful that Monika used virtually all of
          the resources attributed to her for tax purposes
	  for family purposes.  As the unique features of
          their documented financial relationship indicates,
	  their finances were by no means independent of each
          other.  Monika became accountable for 100 per cent
 	  of her income based on the “in and out budget.”
	  … In other words, in addition to her interest in
 	  Fulham [the matrimonial home], Monika ended the
	  relationship with cash equal to about 10 per cent
 	  of what she had received as income.  I do not have
	  such a detailed analysis of Fayez income.  But
	  suffice it to say based on the penultimate chart,
	  that Fayez must have earned more income, and more
          importantly, been able to segregate his resources
	  from those expended by the family.  This commitment
	  of funds disproportionately by Monika is a
	  deprivation to her and an enrichment to Fayez.

[35] The trial judge further found that Ms. Mayer-Nasser made a
significant contribution in the areas of child care and household
management.  Between May 1977 and the end of 1985, Ms. Mayer-
Nasser was not working outside the home except to a very modest
degree.  The trial judge noted that Mr. Nasser could not have
succeeded as he did in his business had Ms. Mayer-Nasser not
assumed total child care and household management
responsibilities.  On this subject the trial judge said:
          

          …[S]he was primarily responsible for child care
	  and managing the household.  Fayez could not have
	  made the effort he did, but for Monika’s assumption
	  of those responsibilities.  The children were aged
	  4 and an infant at the beginning of this period.
	  They were 12 and 8 at the end of it.  With a
	  household of four and additional responsibilities
	  to Fayez mother, Monika had her hands full.  Fayez
	  reaped the benefit of her efforts by being able to
          focus on his salaried job at Carl Zeiss as well as
	  promote the export business.

[36] After taking account of the entire relationship between Mr.
Nasser and Ms. Mayer-Nasser the trial judge recognized that a
“precise balancing” of the benefits conferred in the parties’
relationship could not be established.  She concluded,
nonetheless, that Ms. Mayer-Nasser’s contributions were
significant enough to support a finding that Mr. Nasser was
enriched, and that there was a corresponding deprivation to Ms.
Mayer-Nasser.
[37] When she considered the issue whether there was a juristic
reason for the unjust enrichment the trial judge quoted the
following passage from Peter v. Beblow (1993), 44 R.F.L. (3d) 329
(S.C.C.) at 340 in respect of the child care and domestic
services that Ms. Mayer-Nasser provided:
          

          It is my view that this argument [the argument
	  that domestic services are provided out of a
	  sense of love and commitment to the relationship]
	  is no longer tenable in Canada, either from the
          point of view of logic or authority.  From the
	  point of view of logic, I share the view of
	  Professors Hovius and Youdan that “there is no
	  logical reason to distinguish domestic services
	  from other contributions. … The notion that
	  household and childcare services are not worthy
          of recognition by the court fails to recognize
	  the fact that these services are of great value,
	  not only to the family, but to the other spouse.  
	  … The notion, moreover, is a pernicious one that
	  systematically devalues the contributions which
          women tend to make to the family economy. …
          

          Moreover, the argument cannot stand with
          the jurisprudence which this and other courts
          have laid down.  Today courts regularly
          recognize the value of domestic services.
          This became clear with the court’s holding in
          Sorochan, leading one author to comment that
          “the Canadian Supreme Court has finally
          recognized that domestic contribution is of
          equal value as financial contributions in
          trusts of property in the familial context.”
          

[38] In my opinion, there is no proper basis upon which to
interfere with the trial judge’s unjust enrichment finding.  Mr.
Nasser was able to increase his net worth as a result of
Ms. Mayer-Nasser’s significant contribution to this family
enterprise.  In the circumstances, the trial judge’s conclusion
that Mr. Nasser was enriched by Ms. Mayer-Nasser’s many
contributions, that Ms. Mayer-Nasser suffered a corresponding
deprivation and that there was no juristic reason for the
enrichment are reasonable findings which are supported by the
evidence.  See Pettkus v. Becker, [1980] 2 S.C.R. 834 at 849.
[39] When she dealt with the issue of the appropriate remedy, the
trial judge referred extensively to Peter v. Beblow, supra.
Consistent with MacLachlin J.’s majority reasons in Peter, she
accepted that unless a monetary award was inadequate, the
appropriate remedy for unjust enrichment should be monetary (as
opposed to proprietary).  After she reviewed all of Ms. Mayer-
Nasser’s contributions to the family enterprise over the lengthy
period of cohabitation, the trial judge looked to the total
family asset base and concluded that the contributions of Mr.
Nasser and Ms. Mayer-Nasser to the accumulation of their assets
“was not equal.”  Having reached that conclusion the trial judge
went on to find that to remedy the unjust enrichment that she
found to exist, Ms. Mayer-Nasser should receive 35 percent of the
total value of the property that the parties had accumulated
during co-habitation, that is $400,000 (approximately 35 percent
of $1.1 million).  To get Ms. Mayer-Nasser into an asset position
of $400,000 the trial judge ordered that:

• Mr. Nasser’s one-half interest in the Fulham Street
  property be transferred to Ms. Mayer-Nasser;

• Ms. Mayer-Nasser’s one-half interest in the three
  Midland Avenue industrial condominiums be transferred
  to Mr. Nasser; and

• the balance (about $130,000) to be paid by Mr. Nasser to
  Ms. Mayer-Nasser in cash.

[40] The two property ownership adjustments to which I have
referred above increased Ms. Mayer-Nasser’s net asset base by
$40,000 (plus $110,000 in connection with the Fulham Street
property transfer and minus $70,000 with respect to the Midland
Avenue industrial condominium transfer).
[41] After the constructive trust remedial adjustments, the
parties’ asset picture was, as follows:

[42] In addition to challenging the trial judge’s unjust
enrichment finding, Mr. Nasser takes issue with the remedy
resorted to by the trial judge in two general respects.  First,
he contends that the trial judge erred in quantifying Ms. Mayer-
Nasser’s entitlement by looking at the parties’ total net assets
(about $1.1 million) and then concluding that Ms. Mayer-Nasser’s
entitlement to remedy unjust enrichment should be “35 percent of
the total value of the property accumulated by both of them.”
Second, Mr. Nasser takes issue with the trial judge’s decision to
juggle the parties’ ownership interests in the two properties to
which I have referred and her decision to make up the balance (to
set Ms. Mayer-Nasser to a $400,000 asset position) by requiring
Mr. Nasser to pay Ms. Mayer-Nasser about $130,000.  I will deal
with the quantification issue first.
[43] I accept that in quantifying Ms. Mayer-Nasser’s entitlement
by looking to the total value of the parties’ assets and awarding
Ms. Mayer-Nasser 35 percent of that total the trial judge did not
follow MacLachlin J.’s direction in Peter v. Beblow by valuing
Ms. Mayer-Nasser’s contributions to this family enterprise on a
literal value received, or quantum meruit, basis.  It is,
however, important to recognize the net effect of the trial
judge’s remedial order was to increase Ms. Mayer-Nasser’s asset
base by $170,000.  This is so because Ms. Mayer-Nasser had assets
after the resulting trust property adjustments valued at
$230,000.  The unjust enrichment remedial order increased the
value of her assets from $230,000 to $400,000.  The issue then is
whether the trial judge’s order which benefitted Ms. Mayer-Nasser
to the extent of $170,000 can be sustained.
[44] A monetary award to remedy  unjust enrichment cannot be
calculated with precision, particularly when the period of
cohabitation is long, as is the case here.  In cases involving a
long period of cohabitation, the line between a value received
and value survived determination becomes somewhat blurred.  Ms.
Mayer-Nasser’s contributions were provided in the context of a
family enterprise, the value of those services cannot
realistically be assessed in the abstract.  Since Mr. Nasser was,
in the final analysis, the beneficiary of Ms. Mayer-Nasser’s many
contributions to the family enterprise, it seems to me to make
sense to take account of the value to him of Ms. Mayer-Nasser’s
contributions.
[45] In light of the trial judge’s findings of fact, and in the
context of the parties’ 23 year period of co-habitation, I do not
think that the payment to Ms. Mayer-Nasser of $170,000 is
unreasonable.  In my view, it was open to the trial judge to
consider the value of the services provided by Ms. Mayer-Nasser
against the background of the assets the parties were able to
accumulate during their lengthy period of co-habitation.  Since
this is an appeal, it is only where the trial judge’s decision
(in this case to award Ms. Mayer-Nasser $170,000 to remedy unjust
enrichment) exceeds the generous ambit within which reasonable
disagreement is possible and is plainly wrong that this court
will interfere.  See Silver v. Silver (1985), 49 R.F.L. (2d) 148
(Ont. C.A.) and Mack v. Mack (1986), 1 R.F.L. (3d) 143 (Ont.
C.A.).  In my opinion, the award of $170,000 comes within the
generous ambit of reasonableness and I would, therefore, not
interfere with it.  I note in passing that if the parties had
married, Ms. Mayer-Nasser’s equalization payment (after the
resulting trust title adjustments) would have been $341,000,
assuming that there was an equal division of the difference in
the parties’ net family properties.  The payment ordered by the
trial judge was one-half of this amount.
[46] This brings me to the property transfer issue.  Mr. Bastedo
(who was not Mr. Nasser’s trial counsel), submits that the trial
judge erred in effecting a “re-arrangement of title” when a
monetary award was found to be adequate.  Ms. Costigan (who was
Ms. Mayer-Nasser’s trial counsel), submits that the trial judge
did no more than what trial counsel asked her to do if she found
that Ms. Mayer-Nasser was entitled to relief based on unjust
enrichment.  Although the trial record is unclear, it tends to
support Ms. Costigan’s position.  Beyond that, Mr. Bastedo was
unable to say that Ms. Costigan’s submissions with respect to the
position taken by counsel at trial were wrong.  Finally, the
trial judge’s reasons support Ms. Costigan’s submissions on the
issue.  When the trial judge dealt with the issue of remedy, she
noted that if there were a finding of unjust enrichment, counsel
favoured a monetary award and some juggling of assets to give
effect to the award.  The trial judge put it in this way in her
reasons:
          
          In this case, I understand that counsel favour
	  a monetary award, should I reach the conclusion
	  that Monika is entitled to a remedy.  I further
	  understand that counsel anticipate the prospect
	  that assets from one side of the balance sheet
	  might be moved to the other to accomplish the
	  award.  Given the nature of the assets available,
          monetary award is not only desirable it is
          possible.  Furthermore, a “re-arrangement” of the
	  title to property is appropriate where the level
          of conflict in the action has been high. 
	  [Emphasis added.]
                    

[47] It is apparent from the trial judge’s reasons that the
prospect of her ordering some transfer of assets in the event
that she found unjust enrichment was discussed with counsel and
agreed to.  If that were not the case, I would assume that trial
counsel would have so informed the trial judge.  Since counsel
apparently agreed to the trial judge’s asset juggling approach, I
am not prepared to re-visit that issue on the appeal.

THE CROSS-APPEAL

[48] In her cross-appeal, Ms. Mayer-Nasser seeks an order
granting her 50 percent of the parties’ total assets, that is 50
percent of $1.1 million.  I see no basis upon which to increase
the trial judge’s monetary award, which I have said was
reasonable.  I would, therefore, dismiss the cross-appeal with
costs.

CONCLUSION

[49] For these reasons, I would dismiss the appeal and cross-
appeal, both with costs.

                                     “C.A. Osborne A.C.J.O.”
                                     “I agree: J.W. Morden J.A.”
                                     “I agree: M.J. MoldaverJ.A.”
Released:  February 29, 2000