WEL Newsletter, Vol.9 No.9, December 2019
Dear ,
We are more fortunate than most, to live in a culturally diverse, peaceful and thriving city in Toronto.

Also more than most other times of the year, we have the unique opportunity to celebrate the season and embrace all of our customs and cultures and community at a celebratory and giving time of year.
We wish all of you and your families and friends a peaceful and happy season and all the best for 2020. If you have an opportunity to make a difference this season, to give a gift of time, or opportunity in some small way, the rewards will be all yours.
Happy Holidays and Happy New Year!




Daniel Paperny's article,  Who Qualifies as a "Spouse"? The BC Court of Appeal Says It's a "Judgement Call"  was published in the November 2019, 34-11.


Alexander Swabuk and Sareh (Lua) Ebrahimi presented at the Toronto Police College in a program for Senior Investigators on ELDER ABUSE: Civil & Criminal Remedies.


Kimberly Whaley's article, 'Slover v Rellinger 2019 ONSC 6497 on Testamentary Capacity & Undue Influence' was published by NoticeConnect.


Kimberly Whaley's article, 'Is Typed Note on Home Computer a Will?' was published in the Lawyer's Daily on December 10, 2019.


On December 10th Mike Marra spoke on a panel chaired by Natalia Angelini of Hull and Hull LLP, together with presenters, Christine Vanderschoot of Kelly D. Jordan Family Law, Kristine Anderson of Bales Beall LLP and Lorna Yates of Cohen Alves Peeters Yates LLP. They spoke at the OBA Elder Law program on the topic of Capacity For Lawyers: Elder and Family Law Matters.

WEL congratulates our friend and colleague Brian Cohen of Gowling WLG, for being named as a Fellow to the American College of Trusts and Estate Counsel in November. Congratulations Brian on this significant achievement!

By: Mike Marra
Much has changed in our society in the past thirty years. The
Divorce Act was last amended in 1986. After extensive consultation the Federal government has proclaimed substantial changes to the Act which come into force on July 1, 2020.
The focus of the changes are much heralded updates to provisions regarding children and family violence.
The new terminology mandated by the Act will be unfamiliar and perhaps confusing to estate practitioners and indeed the public as a whole.
The information in this article is largely extracted from Department of Justice Reports and Publications.*
New Terminology
Perhaps the most fundamental change occasioned by the new Act is the change in terminology from the historic children as property concepts of custody and access.
Custody orders are now "parenting orders "which will set out "parenting time" and "decision-making responsibility." Parenting time is the time during which someone in the role of a parent is responsible for a child. This includes time when the child is not physically in the care of that person, such as when the child is at school or in daycare.
"Decision-making responsibility" refers to the responsibility to make significant decisions about a child, such as decisions about a child's health and education. Both spouses, a parent, and any person currently in or seeking a parental role in the life of a child could apply for a parenting order. Non-spouses would have to seek leave of the court, as is the case currently for custody orders under the Divorce Act.
The 2019 amendments codify some existing practices of family courts under the Divorce Act and introduce some new concepts.
Parenting time
The 2019 changes to the Divorce Act include a provision stating that parenting time may be allocated according to a schedule. This may be helpful in situations of high conflict, where a flexible schedule may lead to more frequent disputes. The amendments also indicate that each person with parenting time may make day-to-day decisions about a child when the child is in their care, unless a court orders otherwise. Day-to-day decisions include matters such as a child's bedtime. If a particular matter that would normally be a day-to-day decision is significant to an individual child, a court could make special mention of the matter in a parenting order. For example, if parents decided that a child was to be vegetarian, they would each choose meals for the child avoiding meat. A parenting order could provide for this.
The legislation preserves the Divorce Act principle that a child should spend as much time with each parent as is consistent with the child's best interests. Under the current Divorce Act, this is reflected in what is known as the "maximum contact principle." This principle is now subject to the "primary consideration" that a court must consider a child's physical, emotional and psychological safety, security and well-being above all else. This may be particularly important in cases of family violence.
It is important to note that this parenting time principle is not a presumption of equal time. As the Supreme Court of Canada has held with respect to the current Act, "the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted."
Decision-making responsibility
The 2019 changes to the Divorce Act introduce the concept of "decision-making responsibility" as the responsibility for making significant decisions about a child's well-being, including decisions about the child's health, education, language, religion, and significant extra-curricular activities. This responsibility could be allocated to one or both spouses or other persons who currently stand -or who intend to stand-in the place of a parent. The amendments also recognize the option of separately allocating different decision-making responsibilities to each parent. This may be helpful in cases where a court determines that joint-decision-making responsibility is not appropriate, but it would be in the child's best interests for both parents to be involved in certain decisions about the child.
"Significant extra-curricular activities" is included as one of the enumerated items in the definition of decision-making responsibility. Such activities are often the subject of considerable disagreement and sometimes litigation. This provision will guide parents and courts to consider these issues as early as possible in the process of coming to agreements. The term is intended to capture activities that require a greater investment of a family's resources, whether in terms of time or finances.
The goal is a change in the culture surrounding the delineation of the legal rights and responsibilities of separated parents and their children. The focus will hopefully become less about "winning" custody and having all the say regarding the children and more about dividing and allocating the various areas of decision making responsibility and parenting time.
The new Act mandates the best interests of the child (safety, security and well-being) as the primary consideration in the determining of parenting issues and requires the court to have specific regard to enumerated factors (section 16(3)):
(3)  In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a)  the child's needs, given the child's age and stage of development, such as the child's need for stability;
(b)  the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;
(c)  each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;
(d)  the history of care of the child;
(e)  the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;
(f)  the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g)  any plans for the child's care;
(h)  the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i)  the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j)  any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and


(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k)  any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Under the 1986 Divorce Act "best interests of the child" is not referenced. There is no guidance or criteria set out in the Act for the making of a custody order at all. It has been left to the Courts to apply the common law principles of "best interests" and often taking from provincial statutes the enumerated considerations for best interests.

This is an obvious improvement and long overdue.
Family violence
The court must consider the impact of family violence on parenting and contact arrangements, including its impact on the ability and willingness of the person who engaged in family violence to care for and meet the needs of the child. In cases of family violence, the court must also consider whether to require the parties to co-operate on matters related to the child.
In Canada, there are significant rates of family violence against children and spouses both during and after separation. Separation can be a particularly risky period for spousal violence.
Evidence indicates that family violence has wide-ranging effects on victims and families, including long-term impacts on the behaviour, development and physical, psychological and emotional health of the child.
Prior to these amendments, the Act made no reference to family violence. Now courts will have to consider the relevance of any family violence to the parenting arrangements for a child.
To assess the ability and willingness of a perpetrator of family violence to care for and meet the needs of the child, the court must consider what the history of family violence demonstrates about that person's ability to parent in the child's best interests. For example, the court would need to consider whether the person:
  • might be violent with the child
  • might use their relationship with the child to be violent with or control another person
  • has caused the child to be fearful of them
  • can be an appropriate role model for, and provide guidance to, the child 
In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence.
There is growing evidence that each type of violence has unique impacts and effects. To determine which parenting arrangement is in the best interests of the child, the court must consider the particular nature and impact of the family violence.
At least four types of intimate-partner violence have been identified:
  1. Coercive and controlling violence: a pattern of emotionally abusive intimidation, coercion and control, often combined with physical violence.
  2. Violent resistance: generally in response to coercive and controlling violence, and committed to protect oneself or another person.
  3. Situational (or common) couple violence: generally due to an inability to manage conflict or anger in a particular situation, this violence is not necessarily associated with a general desire to control a partner.
  4. Separation-instigated violence: ranging from minor to severe, this generally occurs around the time of separation and involves a small number of incidents. 
Real-life situations of family violence rarely will fall exclusively into one category of this or other typologies of family violence. It is important to look at the severity of the violence in each case.
However, while all violence is of concern, generally the most serious type of violence in family law is coercive and controlling violence. This is because it is part of an ongoing pattern, tends to be more dangerous and is more likely to affect parenting.
To help courts assess the impact, severity and risks of family violence, s 16(4) provides a non-exhaustive list of additional criteria related to family violence:
Factors relating to family violence
(4)  In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a)  the nature, seriousness and frequency of the family violence and when it occurred;

(b)  whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c)  whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d)  the physical, emotional and psychological harm or risk of harm to the child;

(e)  any compromise to the safety of the child or other family member;

(f)  whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g)  any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h)  any other relevant factor.
Changes of residence and relocation
The other primary area of reform in the new Divorce Act involves mobility or as it is now termed, "relocation".
Relocation, or moving a child after separation and divorce, is one of the most litigated family law issues. In a 2016 survey of lawyers and judges, over 98% of respondents indicated that disputes are harder to settle when relocation is involved.
The leading case in this area is Gordon v Goertz, decided by the Supreme Court of Canada in 1996. The Supreme Court held that, before actually considering the merits of an application to vary a custody order in the context of a proposal for relocation, a court must be satisfied that the relocation constitutes a material change in the circumstances of the child. If it does constitute such a change, in determining the best interests of the child, the court should consider, among other factors
  1. The existing custody and access arrangements and relationship between the child and each parent
  2. The desirability of maximizing contact between the child and both parents
  3. The views of the child
  4. The custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child
  5. The impact of the potential disruption on the child of either a change in custody or removal from their current environment
According to the Supreme Court, there is no presumption in favour of the custodial parent, although the views of the custodial parent are entitled to "great respect and the most serious consideration."
Gordon v Goertz  did not address issues related to notice of a move, or who must bring an application for variation of the order before a relocation may occur.
There has been a great deal of criticism in the academic literature and by practitioners about the state of the law related to relocation. Some have argued that the decision in Gordon v Goertz does not provide sufficient certainty, making it difficult to predict the outcome in a case, advise clients and settle cases. The Supreme Court's direction that the reason for the move should only be considered exceptionally has largely been ignored, as in practice the reason for the move often relates to an analysis of the best interests of the child.
Over time, some patterns in the case law have emerged. In particular, two patterns are important to highlight. First, a relocation is more likely to be denied if there is a shared care/custody arrangement. Second, where there is a clear primary caregiver for a child, a move is more likely to be approved.
There is little empirical research on relocation's effects on children, and most of what is available is limited by small sample sizes and other methodological challenges. While some research suggests that relocation can be disruptive for children and affect their relationships, a range of factors needs to be considered.
The 2019 changes to the Divorce Act set out a framework for changes of residence and relocation that includes three broad components:
  1. Notice of a proposed change of residence or relocation
  2. Additional best interests criteria for relocation cases
  3. Burdens of proof that will apply in certain relocation cases
Key to the application of these provisions is the concept of "relocation" which is defined as a move-either by a child or a person with parenting time or decision-making responsibility-that could have a significant impact on the child's relationship with a person with parenting time or decision-making responsibility, a person applying for such responsibilities, or a person who has contact with the child under a contact order.
As noted these changes come into effect across Canada on July 1, 2020 and represent a fundamentally new way of dealing with children's issues on separation. The hoped for cultural shift will take time for all users of the system, including, judges, mediators, educators, health treatment professionals and parents but is largely seen as a positive and much needed step.
It is understood that these changes only apply to married persons and their children who are proceeding to a divorce. Unmarried parents and parents who are not seeking to divorce are governed by provincial and territorial legislation, such as the Childrens' Law Reform Act in Ontario.
It is hoped that the provinces and territories amend its applicable legislation to mirror the Divorce Act amendments to coincide with the July 1, 2020 implementation date so all families and children are treated equally under the law.
Leading groups in Ontario, such as the Ontario Bar Association Family Law Section have submitted briefs to the Attorney General in this regard.   
* Legislative Background: An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (Bill C-78 in the 42nd Parliament)

By: Sareh (Lua) Ebrahimi
An earlier WEL blog was written on the case of Gefen v. Gaertner, [1]  which dealt with the importance of providing an expert with a full complement of relevant facts and documents in relation to an assessment. This case is of relevance for a second reason however. 
A new tool to challenge gifts appears to have emerged for use in Ontario.  More precisely, a tool that has remained dormant for just over 100 years has been revived.  The doctrine of unconscionable procurement was developed in English Courts of Equity during the 1800's and, along with equitable undue influence, became one of the mainstays when a disgruntled heir wished to re-fill an emptied estate by overturning inter vivos gifts made by the will-maker. 

The lead case in England was Cooke v. Lamotte.[2] Also of note in the string of English cases on point are Anderson v. Elsworth  [3] , Earl of Aylesford v. Morris  [4] Hoghton v. Hoghton  [5]Phillipson v. Kerry  [6] , Allcard v. Skinner 
, and Pitt v. Holt   [8] The doctrine became part of the law of Ontario.  The lead Ontario decision became Kinsella v. Pask  [9], but the doctrine was also dealt with in Lavin v. Lavin  [10] Smith v. Alexander  [11], Trusts & Guarantee Co v. Cook  [12]   Crippen v. Ogilvie  [13] Dmyterko Estate v. Kulikowsky   [14] Houston v. London  [15] Vanzant v. Coates  [16] Kudlaciak v. Trela  [17] and in Dmyterko Estate v. Kulikowsky  [18]   .
After the fusion of law and equity, unconscionable procurement gradually fell from use.  It then sat dormant, part of the law of Ontario but not applied.
That has now changed with the case of Gefen, the Honourable Justice Kimmel revived the doctrine, considered its history and application over extensive reasons for decision on point, and applied it to reverse more than $8M of gifts and other inter vivos wealth transfers. 
The doctrine is best expressed by the Ontario Court of Appeal in Kinsella v. Pask as follows:
In every case where a person, to his own advantage, but to the prejudice of the giver, obtains by donation some substantial benefit, he is bound to prove clearly, not only that the gift was made, but that it was the voluntary, deliberate, well-understood act of the donor, and that the donor ... did appreciate its effect, nature, and consequence." [19]

The doctrine is predicated on the idea that it is unconscionable to allow a significant gift or other inter vivos wealth transfer to stand where the recipient was instrumental in causing it to occur and the maker did not truly appreciate what he or she was doing. It can also be referred to as the rule against large donations without proper understanding. [20] The doctrine applies and the presumption is triggered if and only if the wealth transfer is said to be "significant" or "improvident". [21]
The legal onus is on the party attacking the transaction to prove, on the civil standard of a balance of probabilities and, at the close of evidence, must convince the court that the gift or other wealth transfer was procured without conscionable understanding on the part of the maker. [22]
Once the basic elements that trigger the presumption have been established by the attacker (a significant benefit and the active involvement on the part of the person obtaining that benefit in the procurement or arrangement of the transfer) [23] then there is a presumption that the donor of the gift did not truly understand what he/she was doing in making the transaction.  The court is to look at the impugned transactions with its moral sense awakened and with a view to determining whether it would be unconscionable to allow the transaction to stand.
The doctrine has nothing to do with the essential validity of the wealth transfer (which is capacity, intention and the mechanical elements necessary to the transaction, such as delivery). It takes an otherwise valid inter vivos wealth transfer and allows the court to hold it to be unconscionable.[24] This equitable doctrine does not require proof of incapacity or undue influence to operate.
At issue is the maker's necessary level of understanding to make a transaction conscionable when it takes place in circumstances that suggest, on a prima facie basis, the contrary. It is a matter of flawed intent.  [25]
Unconscionable procurement is not the same as equitable undue influence.  It is a cousin in equity, but is invoked by different fact patterns and requires a different character of evidence to meet it.  It focuses on understanding, not on vulnerability.
The decision in the Gefen case has been appealed as it relates to mutual wills, but no appeal was launched relating to unconscionable procurement.  The decision is here to stay.  
One of our lawyers at WEL, John Poyser, has written a 47-page chapter outlining the history, scope, and modern application of unconscionable procurement (See John E.S. Poyser, Capacity and Undue Influence, 2nd ed (Toronto: Thomson Reuters Canada, 2019), at pages 627-674). 

[1]  Gefen v. Gaertner, 2019 ONSC 6015 ["Gefen"]
[2]  Cooke v. Lamotte (1851), 51 E.R. 527, 15 Beav. 234 (Eng. Ch.D.)
[3]  Anderson v. Elsworth (1861), 66 E.R. 363, 30 L.J. Ch. 922, 3 Giff. 154 (Eng. V.-C.)
[4]  Earl of Aylesford v. Morris (1873), (1872-73) L.R. 8 Ch. App. 484 (Eng. Ch. App.)
[5]  Hoghton v. Hoghton (1852), 15 Beav. 278, 51 E.R. 545 (Eng. Rolls Ct.)
[6]  Phillipson v. Kerry  (1863), 32 Beav. 628, 55 E.R. 247 at p. 637 [Beav.] (in setting aside the transaction in this case on the basis that the gift maker did not understand the whole nature and effect of the deed, the court went one step further to state that the gift maker needed to understand the implications of the transaction that were key, not just a general understanding of the nature of the transaction itself. Knowing what she was doing was insufficient to save the ransaction. The court demanded evidence to satisfy it that she was alive to the implications of what she was doing. The English Court of Appeal identified that as too far a reach, and suggested that modern courts should not follow Phillipson v. Kerry in that regard. See the discussion of Pitt v. Holt (2011), [2011] EWCA Civ 197, [2012] Ch. 132, [2011] 3 W.L.R. 19, [2011] 2 All E.R. 450, [2011] Pens. L.R. 175, 2011 WL 674966 (Eng. C.A. (Civ. Div.)).
[7]  Allcard v. Skinner (1887), L.R. 36 Ch. D 145 (Eng. C.A., Ch. Div.)
[8]  Pitt v. Holt  (2011), [2011] EWCA Civ 197, [2012] Ch. 132, [2011] 3 W.L.R. 19, [2011] 2 All E.R. 450, [2011] Pens. L.R. 175, 2011WL674966 (Eng. C.A. (Civ. Div.)). The case went on appeal to the Supreme Court of the United Kingdom, reported as Pitt v. Holt , [2013] UKSC 26, [2013] 2 A.C. 108 (U.K. S.C.)
[9]  Kinsella v. Pask, 1913 CarswellOnt 781, 12 D.L.R. 522, 28 O.L.R. 393 (Ont. C.A.) ["Kinsella"]
[10]  Lavin v. Lavin, 1880 CarswellOnt 52, 27 Gr. 567 (Ont. Ch.), affirmed (1882), 7 O.A.R. 197 (Ont.C.A.)
[11]  Smith v. Alexander , 1908 CarswellOnt 672, 12 O.W.R. 1144 (Ont. C.P.)
[12]  Trusts & Guarantee Co v. Cook , 1909 CarswellOnt 689, 14 O.W.R. 1185 (Ont. K.B.)
[13]  Crippen v. Ogilvie , 1871 CarswellOnt 35, 18 Gr. 253 (Ont. C.A.) at paras. 64 to 66;
[14]  Dmyterko Estate v. Kulikowsky , 1992 CarswellOnt 543, 47 E.T.R. 66 (Ont. Gen. Div.) at para. 114
[15]  Houston v. London & Western Trusts Co. , 1913 CarswellOnt 648, 5 O.W.N. 336, 25 O.W.R. 488 (Ont. H.C.);
[16]  Vanzant v. Coates , 1917 CarswellOnt 106, 39 D.L.R. 485, 40 O.L.R. 556 (Ont. C.A.)
[17]  Kudlaciak v. Trela , 1975 CarswellOnt 574, 11 O.R. (2d) 330, 66 D.L.R. (3d) 72 (Ont. H.C.) (noticed in passing in case dealing with joint accounts)
[18]  Dmyterko Estate v. Kulikowsky , 1992 CarswellOnt 543, 47 E.T.R. 66 (Ont. Gen. Div.).
[19]  Kinsella , 12 D.L.R. 522 at p. 526, 28 O.L.R. 393 at pp. 399-400
[20]  John E.S. Poyser, Capacity and Undue Influence, 2nd ed  (Toronto: Thomson Reuters Canada, 2019), at p. 628 ("Poyser")
[21]  Poyser, at page 659.
[22]  Poyser, at page630.
[23]  Poyser,at  page 628.
[24] Poyser, at page 663.
[25] Poyser,at  page 629.
By: Sareh (Lua) Ebrahimi
At times, a parent purchases a property, fully funded with their own money, however, the parent registers his/ her adult child on title as a joint tenant for estate planning purposes. The property is subsequently occupied by the adult child and their married spouse, making the property their matrimonial home. Upon the death of the adult child the property may become the subject of a legal dispute between the joint owner parent and the surviving spouse.
Special provisions are made for matrimonial homes on the death of an owner spouse in terms of the Family Law Act [1] (the "FLA"). Section 26(1) states that where a matrimonial home is owned by a spouse in joint tenancy with a third party, the joint tenancy is deemed to have been severed immediately before death.
Since the FLA states that the joint tenancy is severed immediately before the death of the joint owner spouse it signifies that the parent and the joint owner adult child were deemed to have owned the property as "tenants in common".
This treatment is to be contrasted with that accorded to all other property owned in joint tenancy, which passes to the surviving joint tenants by operation of law.
In the event that the surviving spouse does not agree that the property belongs to the parent due to the fact that it was the couple's "matrimonial home", the parent still has various remedies available to him/ her. However, exercising such remedies could be costly due to litigation costs.
In terms of section 26(1), the parent is the owner of a 50% interest in the property as a tenant in common. In respect of the other 50% interest held by the deceased child's estate, the parent could have a claim against the estate, either for a claim of resulting trust or in the alternative, for unjust enrichment, to the extent that he/she can prove that he/she funded the purchase of the property.
A resulting trust arises when title to property is held in the name of a party who gave no value for it. In such circumstances, that party is obliged to return the property to the original title owner unless the deceased's estate can establish that the property was gifted to the deceased.
The parent can pursue a claim based on the assertion that the deceased was holding the property in trust for him/her indicating that the deceased only held legal title to the property and the parent was the beneficial owner of the property.
In the case of a gratuitous transfer, a rebuttable presumption of resulting trust applies when the transfer is challenged. The court commences the inquiry with the presumption, weighs all of the evidence and attempts to ascertain the actual intention of the transferor.
The presumption of a resulting trust applies to gratuitous transfers as between parents and adult children. [2]
In the recent case of Kent v Kent, the Court stated that if there is a finding of a resulting trust, then section 26(1)  of the FLA does not apply. If the adult child did not have a beneficial interest in the property, the interest cannot be transferred to the surviving spouse by virtue of the provisions of  s. 26(1) . [3]
At the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit that justice does not permit one to retain. [4]

To successfully claim unjust enrichment against another person, a claimant must prove three things:
  1. The person received a benefit;
  2. The claimant suffered a loss corresponding in some way to the benefit; and
  3. There was no juristic reason for the benefit and the loss.  
In  Pacific National Investments Ltd. v. Victoria (City) [5] and in Garland v. Consumers' Gas Co. , [6]  the Court set out a two-step analysis for the absence of juristic reason. 
The first step of the juristic reason analysis applies the established categories of juristic reasons; in their absence, the second step permits consideration of the reasonable expectations of the parties and public policy considerations to assess whether recovery should be denied.
In order to succeed with a claim of unjust enrichment, the parent is required to prove all three elements; that the deceased received a benefit (which is the 50% interest in the property) and as a result the parent has suffered a loss as he/she paid for the property, that there was no juristic reason for the benefit and the loss (there was no contract between him/her and the deceased, or a gift or a deed of donation). The court will also consider the reasonable expectations of the parties and public policy considerations to access whether recovery should be denied.
The remedies for unjust enrichment are restitutionary in nature; that is, the object of the remedy is to require the estate to repay or reverse the unjustified enrichment.
A successful claim for unjust enrichment may attract either a "personal restitutionary award" or a "restitutionary proprietary award".[7] In other words, the parent may be entitled to a monetary or a proprietary remedy, depending on the facts of the case.
The Courts have recognized in some cases when a monetary award is inappropriate or insufficient, a proprietary remedy may be required.
The case of Pettkus v Becker is responsible for an important remedial feature of the Canadian law of unjust enrichment: the development of the remedial constructive trust. Imposed without reference to intention to create a trust, the constructive trust is a broad and flexible equitable tool used to determine beneficial entitlement to property.[8] Where the parent can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour. [9]
In order to ensure that clients fully understand and appreciate the consequences of their actions, real estate lawyers have an obligation to advise clients when purchasing property in the context where section 26(1) of the FLA could become applicable. This will help circumvent any confusion and disappointment which could arise when clients are advised that they do not automatically acquire the property by right of survivorship, and are informed of the consequences of the costly litigation upon the death of the joint owner spouse in circumstances where the property becomes the subject of a legal dispute.

[1]  RSO 1990, c F.3. (the "FLA").
[2] Pecore v. Pecore, [2007] 1 S.C.R. 795, 2007 SCC 17.
[3]  Kent v. Kent, 2019 ONSC 6873 (CanLII)
[4]  Peel (Regional Municipality) v. Canada; Peel (Regional Municipality) v. Ontario, [1992] 3 SCR 762, 1992 CanLII 21 (SCC) , at p. 788. 
[5]  2004 SCC 75 (CanLII).
[6] 2004 SCC 25 (CanLII), [2004] 1 S.C.R. 629.
[7]  Lac Minerals Ltd. v. International Corona Resources Ltd. , 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574, at p. 669, per La Forest J. 
[8]  Pettkus , at pp. 843-844 and 847-848.
[9]  Pettkus , at pp. 852-853.

Institute 2020 Elder Law Section Program
Rights and Limitations on an Attorney Under a Power of Attorney
February 2020
Chair: Kimberly Whaley
Speakers: Albert Oosterhoff and John Poyser

Ontario Bar Association Elder Law Passport Series Program
Capacity for Lawyers: Elder and Real Estate Matters
February 26, 2020
Speaker: Matthew Rendely
Ontario Bar Association Elder Law Passport Series Program
Capacity for Lawyers: Elder and Corporate Client Matters
March 18, 2020
Speaker: Kimberly Whaley

Osgoode Professional Development
Passing of Accounts & Fiduciary Accounting
April 7, 2020
Chair: Kimberly Whaley

Osgoode Professional Development
The Osgoode Program in Wills and Estates
April 28, 2020
Speaker: Kimberly Whaley

 Divisional Court Considers Test for Capacity in Family Law Proceedings

The Presumption of Life Has its Limits - Supreme Court of Canada Holds that Pension Payments made to Deceased Absentee are to be Returned

Slover v. Rellinger - Family Conflict and the Ever-Changing Estate Plan

Bare Trusts and Perpetuities?

Globally, The Aged Care Sector Needs More TLC!

Presented Paper: Summit on Aging: Demographics & Elder Abuse Uncovered & Understood

Elder Abuse: Civil and Criminal Remedies - CCEL Conference Paper

Curbing the Scourge of Predatory Marriages by Legislation

Slover v Rellinger: Retrospective Capacity Assessment is Admissible Evidence

A Challenge to the Authenticity of Signatures on a Will: Bayford v Boese

The Doctrine of Unconscionable Procurement: Gefen v. Gaertner

It's a Start! Saskatchewan Introduces New Legislation To Tackle Predatory Marriages

Promises Made, Promises Broken - Proprietary Estoppel Found in Mulholland v. Mulholland Estate

Hicklin Estate v. Hicklin: What is a Home?

Mawhinney v. Scobie: The No-Contest Clause

NoticeConnect's Canada Will Registry now has a search feature

Pension Benefits Divided on Separation Cannot be Assigned to Estate

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