Jun 22, 2020

COURT OF APPEAL SUMMARIES (June 15 – 19, 2020)

Kent v. Kent, 2020 ONCA 390 (CanLII)

[Gillese, Brown and Jamal JJ.A.]

Counsel:

RGK, acting in person

Aleksandr G. Bolotenko, Phillipa C. Goddard and Miriam Vale Peters, for the respondents

Keywords: Family Law, Matrimonial Home, Wills and Estates, Presumption of Resulting Trust, Family Law Act, R.S.O. 1990, c. F.3, ss. 18(1) and 26(1), Pecore v. Pecore, 2007 SCC 17, Spencer v. Riesberry, 2012 ONCA 418

Facts:

M, the mother, made a 1978 Will naming her daughter, J, the sole beneficiary. If J predeceased M, J’s children alive on M’s death would be the beneficiaries.

M bought the Property in 1983. In 1996, as the sole owner of the Property, she transferred title to herself and J as joint tenants for nominal consideration. J was an adult at this time. M continued to live alone at the Property until 2008.

In 2008, J, her husband, RGK (the appellant), and their children began living with M at the Property, and did so until J’s death in 2014 on a rent-free basis. After J died, RGK continued to live with his mother in law, M, at the Property until M moved into long-term care in 2015. RGK continued to live at the Property on a rent-free basis. M paid all the expenses for the Property until she died in 2016.

In 2015, M made a new Will naming her two grandchildren (J and RGK’s children) as trustees and giving the Property to RGK and her two grandchildren. After J died, she then registered a survivorship application putting title solely into her name. She then transferred the Property to herself, RGK and her two grandchildren as joint tenants.

After M died in 2016, RGK claimed, as the sole beneficiary under J’s Will, that he owned two thirds of the Property (having inherited his wife, J’s half), and that his children each only owned one sixth. His children disagreed, maintaining that the two of them and their father each owned one third of the Property.

The application judge dismissed RGK’s application for a declaration that he owned two thirds of the Property. RGK appealed.

Issues:

1. Was the 1996 Transfer a Gift?

2. Was the Presumption of Resulting Trust Rebutted by the 1978 Will?

3. Was the Property a Matrimonial Home?

Holding:

Appeal dismissed.

Reasoning:

1. No. The application judge properly applied Pecore in determining that there was no gift by M to J of the Property, but rather that the presumption of resulting trust applied (discussed further under #3 below).

2. No. M’s 1978 Will was two decades before the 1996 transfer of the Property by M jointly into J’s name. Accordingly, it served as no evidence of M’s intention in 1996, which is the relevant time to determine intention as to whether there was a gift or resulting trust under Pecore. The Court agreed with the application judge that M’s actions in making a new Will in 2015 and transferring the Property back into her name after J died by way of survivorship application was evidence that she believed she was the sole owner and not evidence of a change of intention.

3. No. The Court did not accept RGK’s submission that in allowing him, his wife J, and their children to live on the Property together with her, beginning in 2008, that M made the Property their matrimonial home and thereby removed any consideration of resulting trust. RGK and J did occupy the Property as their family residence beginning in 2008. The issue to determine, therefore, was whether J had an “interest” in the Property within the meaning of ss 18(1) of the FLA in order to qualify the Property as a matrimonial home. J did not have an “interest” within the meaning of that section. J became a joint tenant in 1996, however, that transfer raised the presumption of resulting trust because it was for no consideration. The presumption was not rebutted. Since there was a resulting trust, J held her interest in trust for M. That is not an “interest” within the meaning of the subsection so as to make the Property a matrimonial home.

In addition, RGK had no interest in the Property within the meaning of ss 18(1) of the FLA. Since J’s interest in the Property was only as trustee of the resulting trust, ss 26(1) of the FLA did not apply to sever the tenancy between M and J on J’s death, such that RGK could claim an interest in J’s interest.