When married spouses take title to a home as joint tenants, can the fact that one spouse supplied most of the purchase money mean that the home nevertheless belongs, in whole or in part, to that spouse’s estate?
The recent decision of Giglione v. Giglione et al., 2026 ONSC 5096, considers that question in the context of a matrimonial home held by spouses as joint tenants.
The Facts
The Deceased and the Respondent married in 2014. The following year, they purchased a property in Hamilton as joint tenants. Most of the purchase funds came from the sale of a property previously owned solely by the Deceased, although additional funds were required to complete the purchase.
The spouses later sold that property and used the proceeds to purchase their matrimonial home, again taking title as joint tenants. Both spouses were named in the agreement of purchase and sale and the closing documents, and they remained married and lived in the home until the Deceased’s death.
Following the Deceased’s death, one of his children (the “Applicant”) brought a motion for directions seeking, among other relief, leave to register a certificate of pending litigation against the matrimonial home. The Applicant argued that the Estate had a beneficial interest in the property by way of a resulting trust. The question on the motion was whether there was a triable issue regarding the ownership of the home.
The Family Law Act
The Applicant relied on the presumption of resulting trust discussed in Pecore v. Pecore, 2007 SCC 17. However, where ownership is disputed between spouses, section 14 of Ontario’s Family Law Act is central to the analysis. It provides:
14 The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,
(a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants; and
(b) money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purposes of clause (a).
The Court referred to Alami v. Haddad, 2025 ONCA 527, where the Court of Appeal confirmed that section 14 codifies the presumption of resulting trust between spouses while providing specific exceptions, including for property held as joint tenants.
On the facts before it, the Court was not satisfied that the evidence displaced the presumption arising from section 14(a). Both properties had been acquired after the marriage and held jointly from the outset. The purchase and sale and closing documents were in both spouses’ names, and the Deceased had previously owned other properties in his sole name. The Court found that he would have understood the difference between sole ownership and joint tenancy.
In the Court’s view, the manner in which title was taken formed part of the arrangement between the spouses, notwithstanding the source of the funds used to acquire the properties.
The quality of the Applicant’s evidence was also significant. The Court gave it little weight. It found that his affidavits contained inadmissible hearsay and double hearsay, conclusory statements without an evidentiary basis, speculation, and inadmissible opinion evidence. Much of the evidence also related to a period many years after title was taken, and was of limited assistance in establishing the Deceased’s intentions at the time.
Was the Joint Tenancy Severed?
The Applicant alternatively argued that the joint tenancy had been severed through a course of dealing. The Court rejected this argument. Even assuming that the Deceased had paid for the entire property and its ongoing expenses, that fact alone did not establish a severance. The evidence did not show that the spouses had mutually treated their interests as a tenancy in common or otherwise dealt with the property inconsistently with the continued joint tenancy.
The right of survivorship therefore remained intact. The matrimonial home passed to the Respondent on the Deceased’s death, and the Court found no triable issue regarding its ownership. The request for a certificate of pending litigation was denied.
The Takeaway
So, does who paid matter? It can, but not in isolation. Where spouses hold property as joint tenants, section 14(a) gives the joint title evidentiary significance: in the absence of evidence to the contrary, it is proof that the spouses intended to own the property jointly. The source of the purchase funds may remain relevant, but a party seeking to bring the property into an estate must have evidence capable of overcoming that statutory starting point or establishing that the joint tenancy was later severed.
For estate planning and estate litigation alike, the decision is a useful reminder that how spouses take title – and the evidence of their intentions when they do so – can be just as important as tracing who supplied the money.
Thanks for reading!
Osama Saleemi