In Binio v. Kotarak, , 2026 ONSC 7330[1], the Ontario Superior Court of Justice was asked to determine whether a former common-law partner could secure interim proprietary relief over real property by way of a Certificate of Pending Litigation (“CPL”) and a preservation order. While the plaintiff advanced claims grounded in resulting and constructive trust, the Court declined to grant either form of relief, emphasizing that interim proprietary remedies are discretionary, equitable, and unavailable where damages are an adequate remedy.
The decision offers a careful reminder that CPLs are a discretionary remedy, and that even where a plaintiff clears the low threshold of demonstrating a triable issue, the equities may nonetheless weigh decisively against restraining a registered owner’s property rights.
Background
The plaintiff alleged that he and the defendant were in a common-law relationship beginning in 2015.[2] During that relationship, the parties resided in a property in Erin, Ontario, which was sold in 2022 for approximately $1.7 million.[3] The plaintiff claimed to have contributed $52,000 from his personal savings toward its purchase, to have repaid an additional advance made on his behalf by a friend, and to have completed substantial renovations that enhanced the property’s value.[4]
According to the plaintiff, the proceeds of sale from the Erin property were then used to acquire a property in Renfrew, Ontario, which was registered solely in the defendant’s name.[5] The relationship ended in April 2025, at which point the plaintiff was removed from the Renfrew home.[6]
In his Statement of Claim, the plaintiff sought declarations of resulting and constructive trust, tracing relief, and ultimately an interest in the Renfrew property.[7] On the motion before the Court, he sought leave to issue a CPL and a preservation order restraining the defendant from selling or encumbering the property.
The defendant disputed nearly every factual allegation. She asserted that the Erin property was solely hers, both legally and beneficially, and that she alone funded its acquisition.[8] She denied that the plaintiff made financial contributions or meaningful improvements, characterizing his involvement as limited to minor maintenance.[9] She further maintained that the parties were only briefly intimate, after which they lived as housemates, and that the plaintiff was expected to pay rent, which she reported as rental income on her tax returns.[10]
The defendant also led evidence of significant prejudice should a CPL issue. The Renfrew property was subject to an upcoming mortgage renewal, she required refinancing to meet carrying and renovation costs, and she relied on the property’s equity to support herself and her son, a full-time university student.[11] The property had been unsuccessfully listed for sale several times, with the price substantially reduced.[12]
Issues
There were 2 central issues on the motion:
- Whether the plaintiff had demonstrated a triable issue supporting a reasonable claim to an interest in land sufficient to justify the issuance of a CPL; and
- Whether the Court should grant a preservation order restraining he defendant from selling, transferring, or encumbering the property pending trial.
Analysis
The CPL Framework
The Court began by reiterating the settled principles governing CPLs. A CPL does not create an interest in land; it merely provides notice of a claimed proprietary interest.[13] The threshold requirement is low: the plaintiff must establish a triable issue as to a reasonable claim to an interest in land, not a likelihood of success.[14]
The Court accepted that the plaintiff met this initial threshold.[15] Although his allegations were uncorroborated, they were sworn, and the Court emphasized that it is not the role of a CPL motion to finally determine credibility or the merits of the underlying trust claims.
However, ultimately, the decision to grant or vacate a certificate is discretionary. After the threshold issue is established, the court must consider all relevant circumstances and exercise its discretion in accordance with equitable principles to determine if granting a CPL would be unjust.[16]
Factors the court may consider on a motion to grant a CPL include[17]:
- whether the plaintiff is a shell corporation;
- whether the land is unique;
- the parties’ intent in acquiring the property;
- whether damages are an available alternative;
- the ease or difficulty of assessing damages;
- whether damages would be an adequate remedy;
- the existence of a willing purchaser; and
- the respective harm to each party if the certificate is granted or removed, with or without security.
Damages as an Adequate Remedy
The decisive factor in this case was the adequacy of damages. The Court concluded that even if the plaintiff were ultimately successful in establishing a trust claim, his remedy would be monetary.[18] There was no reasonable prospect that he would be awarded sole ownership of the property. At most, success would result in a quantifiable interest capable of being satisfied through damages, a buy-out, or partition and sale.[19]
The plaintiff led no evidence that the Renfrew property was unique, nor that a monetary award would fail to do justice between the parties. As the Court noted, CPLs are not available where damages are sufficient, and are not intended to operate as leverage or insurance against enforcement risk.[20]
Prejudice
The balance of prejudice strongly favoured the defendant.[21] A CPL would impair her ability to refinance or sell the property at a critical time, jeopardizing her financial stability and her ability to support her son’s education. By contrast, the evidence showed substantial equity in the property, estimated at approximately $600,000, which would remain available to satisfy any eventual monetary judgment in the plaintiff’s favour.[22]
In weighing circumstances, the Court also took into account the relative strength of the evidentiary record. While not deciding the merits, it was relevant that the defendant provided documentary support – including tax records – for her position, whereas the plaintiff provided none to substantiate his alleged contributions or renovations.[23]
Taken together, these conditions led the Court to conclude that a CPL would be unjust in the circumstances.
The Preservation Order
The plaintiff’s request for a preservation order under Rule 45.01 met a similar fate. The Court characterized the relief sought as an attempt to obtain security for judgment in advance of trial.[24] The proper mechanism for such relief is a Mareva injunction, which requires strict proof of a genuine risk of asset dissipation.[25]
No such evidence existed. The defendant resided in Canada, had ongoing ties to the jurisdiction, and was not attempting to place assets beyond the Court’s reach. The mere prospect that the plaintiff might need to pursue ordinary enforcement remedies following judgment did not amount to irreparable harm.[26] The low possibility of having to enforce a judgment did not justify the extraordinary remedy of an interlocutory restraint on the defendant’s property rights.[27]
Conclusion
Binio is a clear illustration of the limits of interim proprietary relief in property disputes. While the threshold to assert a triable interest in land is low, the equitable discretion that follows is exacting.
The decision reinforces several key principles regarding CPLs and preservation orders:
- A CPL is not a tool to secure payment or preserve leverage where damages are adequate.
- The balance of convenience and prejudice, particularly where refinancing, housing stability, or third-party interests are engaged, remains central.
- Preservation orders and CPLs will not be used as substitutes for Mareva relief or as a hedge against ordinary enforcement risk.
At its core, the decision reflects the Court’s continued insistence that interim remedies affecting property rights be used sparingly, carefully, and only where they truly serve the interests of justice.
—
[1] 2026 ONSC 7330 [Binio].
[2] Ibid at para 2.
[3] Ibid.
[4] Ibid.
[5] Ibid at para 3.
[6] Ibid.
[7] Ibid at para 4.
[8] Ibid at para 5.
[9] Ibid.
[10] Ibid at para 8.
[11] Ibid at para 6.
[12] Ibid at para 7.
[13] Ibid at para 12.
[14] Ibid.
[15] Ibid at para 17.
[16] Ibid at paras 12, 14.
[17] Ibid at para 12.
[18] Ibid at para 19.
[19] Ibid.
[20] Ibid at para 20.
[21] Ibid at para 21.
[22] Ibid.
[23] Ibid at para 22.
[24] Ibid at para 25.
[25] Ibid.
[26] Ibid at para 27.
[27] Ibid.
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Written by: Emily Caza
Posted on: March 2, 2026
Categories: Commentary
In Binio v. Kotarak, , 2026 ONSC 7330[1], the Ontario Superior Court of Justice was asked to determine whether a former common-law partner could secure interim proprietary relief over real property by way of a Certificate of Pending Litigation (“CPL”) and a preservation order. While the plaintiff advanced claims grounded in resulting and constructive trust, the Court declined to grant either form of relief, emphasizing that interim proprietary remedies are discretionary, equitable, and unavailable where damages are an adequate remedy.
The decision offers a careful reminder that CPLs are a discretionary remedy, and that even where a plaintiff clears the low threshold of demonstrating a triable issue, the equities may nonetheless weigh decisively against restraining a registered owner’s property rights.
Background
The plaintiff alleged that he and the defendant were in a common-law relationship beginning in 2015.[2] During that relationship, the parties resided in a property in Erin, Ontario, which was sold in 2022 for approximately $1.7 million.[3] The plaintiff claimed to have contributed $52,000 from his personal savings toward its purchase, to have repaid an additional advance made on his behalf by a friend, and to have completed substantial renovations that enhanced the property’s value.[4]
According to the plaintiff, the proceeds of sale from the Erin property were then used to acquire a property in Renfrew, Ontario, which was registered solely in the defendant’s name.[5] The relationship ended in April 2025, at which point the plaintiff was removed from the Renfrew home.[6]
In his Statement of Claim, the plaintiff sought declarations of resulting and constructive trust, tracing relief, and ultimately an interest in the Renfrew property.[7] On the motion before the Court, he sought leave to issue a CPL and a preservation order restraining the defendant from selling or encumbering the property.
The defendant disputed nearly every factual allegation. She asserted that the Erin property was solely hers, both legally and beneficially, and that she alone funded its acquisition.[8] She denied that the plaintiff made financial contributions or meaningful improvements, characterizing his involvement as limited to minor maintenance.[9] She further maintained that the parties were only briefly intimate, after which they lived as housemates, and that the plaintiff was expected to pay rent, which she reported as rental income on her tax returns.[10]
The defendant also led evidence of significant prejudice should a CPL issue. The Renfrew property was subject to an upcoming mortgage renewal, she required refinancing to meet carrying and renovation costs, and she relied on the property’s equity to support herself and her son, a full-time university student.[11] The property had been unsuccessfully listed for sale several times, with the price substantially reduced.[12]
Issues
There were 2 central issues on the motion:
Analysis
The CPL Framework
The Court began by reiterating the settled principles governing CPLs. A CPL does not create an interest in land; it merely provides notice of a claimed proprietary interest.[13] The threshold requirement is low: the plaintiff must establish a triable issue as to a reasonable claim to an interest in land, not a likelihood of success.[14]
The Court accepted that the plaintiff met this initial threshold.[15] Although his allegations were uncorroborated, they were sworn, and the Court emphasized that it is not the role of a CPL motion to finally determine credibility or the merits of the underlying trust claims.
However, ultimately, the decision to grant or vacate a certificate is discretionary. After the threshold issue is established, the court must consider all relevant circumstances and exercise its discretion in accordance with equitable principles to determine if granting a CPL would be unjust.[16]
Factors the court may consider on a motion to grant a CPL include[17]:
Damages as an Adequate Remedy
The decisive factor in this case was the adequacy of damages. The Court concluded that even if the plaintiff were ultimately successful in establishing a trust claim, his remedy would be monetary.[18] There was no reasonable prospect that he would be awarded sole ownership of the property. At most, success would result in a quantifiable interest capable of being satisfied through damages, a buy-out, or partition and sale.[19]
The plaintiff led no evidence that the Renfrew property was unique, nor that a monetary award would fail to do justice between the parties. As the Court noted, CPLs are not available where damages are sufficient, and are not intended to operate as leverage or insurance against enforcement risk.[20]
Prejudice
The balance of prejudice strongly favoured the defendant.[21] A CPL would impair her ability to refinance or sell the property at a critical time, jeopardizing her financial stability and her ability to support her son’s education. By contrast, the evidence showed substantial equity in the property, estimated at approximately $600,000, which would remain available to satisfy any eventual monetary judgment in the plaintiff’s favour.[22]
In weighing circumstances, the Court also took into account the relative strength of the evidentiary record. While not deciding the merits, it was relevant that the defendant provided documentary support – including tax records – for her position, whereas the plaintiff provided none to substantiate his alleged contributions or renovations.[23]
Taken together, these conditions led the Court to conclude that a CPL would be unjust in the circumstances.
The Preservation Order
The plaintiff’s request for a preservation order under Rule 45.01 met a similar fate. The Court characterized the relief sought as an attempt to obtain security for judgment in advance of trial.[24] The proper mechanism for such relief is a Mareva injunction, which requires strict proof of a genuine risk of asset dissipation.[25]
No such evidence existed. The defendant resided in Canada, had ongoing ties to the jurisdiction, and was not attempting to place assets beyond the Court’s reach. The mere prospect that the plaintiff might need to pursue ordinary enforcement remedies following judgment did not amount to irreparable harm.[26] The low possibility of having to enforce a judgment did not justify the extraordinary remedy of an interlocutory restraint on the defendant’s property rights.[27]
Conclusion
Binio is a clear illustration of the limits of interim proprietary relief in property disputes. While the threshold to assert a triable interest in land is low, the equitable discretion that follows is exacting.
The decision reinforces several key principles regarding CPLs and preservation orders:
At its core, the decision reflects the Court’s continued insistence that interim remedies affecting property rights be used sparingly, carefully, and only where they truly serve the interests of justice.
—
[1] 2026 ONSC 7330 [Binio].
[2] Ibid at para 2.
[3] Ibid.
[4] Ibid.
[5] Ibid at para 3.
[6] Ibid.
[7] Ibid at para 4.
[8] Ibid at para 5.
[9] Ibid.
[10] Ibid at para 8.
[11] Ibid at para 6.
[12] Ibid at para 7.
[13] Ibid at para 12.
[14] Ibid.
[15] Ibid at para 17.
[16] Ibid at paras 12, 14.
[17] Ibid at para 12.
[18] Ibid at para 19.
[19] Ibid.
[20] Ibid at para 20.
[21] Ibid at para 21.
[22] Ibid.
[23] Ibid at para 22.
[24] Ibid at para 25.
[25] Ibid.
[26] Ibid at para 27.
[27] Ibid.
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