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Restitution (Specific) - Family

. Surridge v. Ross

In Surridge v. Ross (Ont CA, 2024) the Ontario Court of Appeal considered the interplay between the doctrines of resulting trusts and unjust enrichment - here in a family law context:
[5] The respondent brought a motion for summary judgment pursuant to r. 16 of the Family Law Rules, O. Reg. 114/99 and the appellant brought a cross-motion for partial summary judgment. The motion judge granted summary judgment in favour of the respondent on the issue of unjust enrichment. He found that the parties had received legal advice before closing, that title was taken by them as equal owners, and that there is no suggestion that a mistake was made in how title was taken. He also found that the respondent had proven deprivation flowing from his unilateral payments toward the equity of the property, namely the down payment and all mortgage and property expenses, and that these payments enriched the appellant. The motion judge found that there was no contract between the parties that provided a juristic reason for the enrichment, nor was there any evidence of it constituting a gift from the respondent to the appellant. This prima facie case for an absence of juristic reason was not rebutted by the appellant. The motion judge also allowed the respondent credit for the installation of the new furnace and agreed with the respondent that the cost of the basement repairs ought to be shared equally by the parties.


[8] In our view, the appeal must be dismissed. The motion judge did not err in his application of the law of unjust enrichment. The record supported his findings that the appellant had been enriched by the payments made by the respondent and that no juristic reason for this enrichment existed.

[9] The motion judge reviewed the relevant jurisprudence, including Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 31-43 and Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at paras. 44-46, wherein the established categories of juristic reason are set out. As noted above, the motion judge found that the respondent established a prima facie case for absence of juristic reason and the appellant had not rebutted it. He explained that there was no evidence that the parties had turned their minds to the consequences of separating, particularly in respect of servicing the mortgage debt and the outcome of the property itself.

[10] The motion judge should have addressed in his reasons whether there was evidence of donative intent at the time the property was acquired in joint names and when the payments at issue were made. In gratuitous transfer situations, the actual intention of the grantor is the governing consideration: Kerr, at para. 18, referring to Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795.

[11] Further, as the Supreme Court states in Kerr, at para. 96:
The title to property may also reflect an intent to share wealth, or some portion of it, equitably. This may be the case where the parties are joint tenants of property.
[12] However, given the presumption of resulting trust where money or property is advanced by only one party, the onus is on the appellant to demonstrate donative intent: Pecore, at para. 25; Kerr, at para. 19. It is clear from the motion judge’s reasons as well as the record that the onus was not met in this case.


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Last modified: 30-04-24
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