Thursday, January 10, 2008

A Matrimonial Home In-Law

In Gains v. Jackman, a judgment released late last month by the Ontario Superior Court of Justice, Paul David-Gains who was involved in matrimonial litigation was awarded a 50% interest of his matrimonial home. While regularly such a judgment would be common procedure in Ontario, this case is unique because the home in which Paul was awarded 50% interest was actually owned by Gloria and Peter Jackman, his ex-wife’s parents.

His ex-wife, Elizabeth, along with her parents explained that the property was purchased by the Jackmans because Paul and Elizabeth failed to qualify for a mortgage. They argued that their intention was that Elizabeth and Paul would be living in the home as tenants.

The Court considered the following evidence:

(1) the closing funds for the house were provided by Paul and Denise;
(2) Mortgage payments on the house were being made weekly by Paul and Elizabeth (and that if they had no interest in the home, they would have elected a monthly mortgage payment, especially in light of their financial circumstance);
(3) Paul was making payments to Elizabeth marked “mortgage payments” not “rental payments”;
(4) When the couple briefly separated in 2002, Elizabeth made a list of her assets and included the home on the asset list; and
(5) Several witnesses, who were friends of the couple, testified that Paul and Elizabeth held themselves out to be owners of the home.

In taking the above into account, the Judge concluded that a constructive trust had been established, and that the property was in fact a matrimonial home as defined in the Family Law Act. Accordingly, in spite of his former-in laws being the registered owners, Paul was entitled to a one half interest in the property.

A full text version of Gains v. Jackman can be found here.

- Annie Noa Kenet, Toronto

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