Oh, my God. You want to talk about mothers? You wanna talk about mothers! It’s mother time, OK?
(WHiTE CHiCKS, Columbia Pictures, 2004)
It was nearly two decades ago when Justice Rothstein writing for the majority in Pecore v. Pecore, 2007 SCC 17 expressed the view, in obiter, that the presumption of advancement should apply equally to fathers and mothers.[1]
In the case of Tzouanakis v. Tzouanakis, 2024 ONSC 2734, the Court was faced with a dispute arising between a mother (the “Mother”) and her children (“Daughter 1”and “Daughter 2”) and son-in-law (the “Son-In-Law”). The Mother claimed interests in two pieces of residential property, legal titles to which were held by Daughter 1 and Daughter 2 on the one hand (“Property A”) and Daughter 1 and the Son-in-Law on the other (“Property B”).
The Mother and her late husband purchased Property A as a matrimonial home for the family. They paid for their daughters’ expenses and permitted the daughters to live with them until their late-20s. The Mother also worked long hours, every holiday, and double shifts at a hospital to care for the family. Several years later, the Mother contributed funds towards the purchase of Property B upon the request of Daughter 1 and the Son-in-Law owing to financial difficulties.
The Ontario Court of Appeal rejected the arguments that the trial judge had misapprehended evidence about the parties’ intentions at the time of Property A’s purchase as well as the parties’ respective financial contributions towards Property B. At the trial level, the Court emphasised the Mother’s significant contributions towards Property A and Property B, and it made a number of findings, as it was rightly entitled to do so, to underpin its conclusions that the presumption of a resulting trust had not been rebutted with respect to both properties.
Property A
The Ontario Court of Appeal did not reverse any of the trial judge’s findings, stating that it was open to the trial judge to find that both daughters,
“…gave no value for [Property A] and they are under the obligation to return it to the Mother. The Father and the Mother purchased [Property A] with their own money in 2003. [Daughter 2] knew that [Property A] was an investment property for their parents. [Both daughters] signed a mortgage… but the Mother was the guarantor and the mortgage payments were made by the parents.
…
The argument that the purchase of [Property A] was a family partnership or venture is weak. [Both daughters] were adults in 2003, residing with their parents in [Property A]… [Daughter 1 and the Son-in-Law] assisted in obtaining a tenant… they also prepared and cleaned the house and garage and helped with the landscape. However, in my view their assistance was minimal and not ongoing. The cost of supplies was paid for by the Mother who also paid for a dinner to thank them for their assistance. [emphasis added.]
…
The Father managed the rental and upkeep of [Property A] and then after he passed, the Mother managed the rental and upkeep of [Property A]. The Mother obtained cheques from the tenants, deposited the cheques, and paid the property taxes. Neither [Daughter 1] or [Daughter 2] managed [Property A] including roof and furnace repairs. [emphasis added.]
…
[Daughter 1 and the Son-in-Law] produced a reporting letter dated September 4, 2003, in connection with the purchase of the Strathmore Property. The reporting letter does not mention that title was being held by [the Daughters] in trust for their parents. The lawyer who was retained for the purchase of the Strathmore Property testified that he would have included the beneficial owners or mention the beneficial ownership in the reporting letter. He stated that the box was not checked indicating trustees. [emphasis added.]
…
[Daughter 2] stated that she and [Daughter 1] were not involved in the discussions with the lawyer as the lawyer was talking directly to the parents about the transaction. The parents were the controlling minds.”
Property B
Given the trial judge’s findings with respect to Property A, many of the arguments raised on appeal by Daughter 1 and the Son-in-Law were disposed of. It was open to the trial judge to apply the presumption of the purchase money resulting trust[2] and find that the Mother had contributed funds towards the acquisition of Property B as an investment:
“…[The Son-in-Law] admits that the amount of $200,000 was received from the Mother towards the purchase of [Property B]. [The Son-in-Law] admitted that $100,000 was received from the Mother through her own savings and applied towards the purchase of [Property B]. [The Son-in-Law admitted that the amount $98,948.71 was received from the refinancing of [Property A]… the beneficial owner of [Property A] is the Mother and those amounts contributed should be credited towards her.
The Mother testified emphatically that the monies contributed were an investment. The Mother had previously invested in [Property A].”
[1] Pecore v. Pecore, 2007 SCC 17 at paras. 32 and 33.
[2] For a discussion of the concept of the purchase money resulting trust, please see the blog “Parents Assisting Adult Children and the Purchase Money Resulting Trust” by David M. Smith.