In Lalli v Lalli, the Court allowed an appeal from the trial judge’s dismissal of a resulting trust claim. The dissent would have dismissed the appeal. The trial judge found that there was no gratuitous transfer of funds from parents to son and wife to purchase the subject property. Instead, he found that the funds were paid to the son to discharge the father’s debt to the son. The trial judge did not put any weight on the realtor’s evidence supporting the father’s position that his intention was to give the funds in resulting trust because the realtor had no information about the father’s debt to the son and had relied only on what the father had told him. Yet, the majority found this finding of fact to have been a legal error, because where there is a resulting trust, only the transferor’s intention is relevant, and the realtor’s evidence on the father’s intention supported the father. The majority was of the view that the trial judge should have accepted the realtor’s evidence and rejected the son’s evidence because the son’s story of the debt owing to him was questionable because the amount of the debt he claimed owing was not exactly $55,000, but over $7,000 less than that.

The dissent would have dismissed the appeal, finding that the trial judge had found the payment of the $55,000 was to repay a debt, was therefore not gratuitous, and therefore the presumption of resulting trust was not even engaged. The realtor had no evidence on the pre-existing debt, so there was no error in not giving his evidence weight as to whether the father had repaid a debt owing to the son. It was not for the Court to revisit the trial judge’s credibility assessments and overturn his findings of fact.

This commentator questions whether the majority was correct to find that the trial judge made a legal error. The finding on whether the father repaid a debt or not seemed to be a factual credibility finding, not one arising from a misapprehension of the evidence or a legal error.

Anroop v Naqvi was an estates dispute concerning whether a fourth will which disinherited the deceased’s daughter-in-law and grandson who had served as his primary caregivers, should prevail over an earlier third will that provided for them. The Court allowed the appeal, holding that the application judge erred in failing to recognize suspicious circumstances surrounding the fourth will, including the drafting solicitor’s conflict of interest, uncontradicted expert evidence that the testator’s signature was forged, and clear indicators of undue influence given the deceased’s vulnerability and the will’s substantial departure from prior wills.

In Malamas v. Wey, the appellant sued her ex-husband E.W. and his parents for damages arising from alleged financial deception regarding the ownership of the family home, in a context involving intimate partner violence. The Court allowed the appeal in part, holding that the motion judge erred in dismissing the claims against E.W. However, the Court upheld the dismissal of the appellant’s claims against E.W’s parents, finding those claims were properly barred by a 2017 consent order that dismissed those claims.

In Aquino (Re), the Court dismissed the appeal from a bankruptcy order, holding that the Monitor had authority to bring the bankruptcy application as a judgment creditor and that the bankruptcy judge did not err in granting the order. The Court further held that a Mareva order remained in effect, as it had not merged into the prior judgment and was properly continued to prevent asset dissipation pending the bankruptcy trustee’s administration of the bankrupt’s assets.

In Convocation Flowers Incorporated v. Anisa Holdings Ltd., a commercial landlord’s termination of a tenant’s access to loading docks constituted a repudiatory breach entitling the tenant to treat the lease as at an end, move to new premises and seek damages. The tenant’s pursuit of temporary relief through a without prejudice consent order providing for only temporary loading dock access did not constitute affirmation of the lease or waiver of its right to accept the repudiation later.

In Chen v. Zhang, the Court allowed an appeal from an order to extend the limitation period to make an equalization claim and held that the clear language of the divorce agreement entered into in China precluded the respondent from bringing the claim.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Aquino (Re), 2026 ONCA 132

Keywords: Bankruptcy and Insolvency, Bankruptcy Order, Mareva Order, Monitors, Trustees in Bankruptcy, Discretion, Collateral Purpose, Stay Proceedings, Appeals, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 2, 36.1, 42(1)(j), 43(1), 43(7), 43(10), 69.3(1), 69.4, 69.5, 193(c), Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, ss. 36.1, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Ernst & Young Inc. v. Aquino, 2021 ONSC 527, Ernst & Young Inc. v. Aquino, 2022 ONCA 202, Aquino v. Bondfield Construction Co., 2024 SCC 31, Royal Bank v. Bodanis, 2020 ONCA 185, North House Foods Ltd. (Re), 2025 ONCA 563, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, First National Financial GP Corporation v. Golden Dragon HO 10 Inc., 2019 ONCA 873, Bernard v. Laurentian Bank of Canada, 2025 QCCA 1145, Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Cowper-Smith v. Morgan, 2017 SCC 61,  B&M Handelman Investments Ltd. v. Curreri, 2011 ONCA 395, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Medcap Real Estate Holdings Inc. (Re), 2022 ONCA 318

Malamas v. Wey, 2026 ONCA 133

Keywords: Family Law, Property, Matrimonial Home, Civil Procedure, Settlements, Orders, Summary Judgment, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 16(1)(h.2), R. v. Lavallee, [1990] 1 S.C.R. 852, Corner Brook (City) v. Bailey, 2021 SCC 29, Uber Technologies Inc. v. Heller, 2020 SCC 16, Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, Clarke v. Clarke, [1990] 2 S.C.R. 795, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, Dunmore v. Mehralian, 2025 SCC 20, Michel v. Graydon, 2020 SCC 24, Hryniak v. Mauldin, 2014 SCC 7, Barendregt v. Grebliunas, 2022 SCC 22, Shipton v. Shipton, 2024 ONCA 624, Deluca v. Bucciarelli, 2022 ONCA 774, R. v. Morillo, 2018 ONCA 582, R. v. Morillo, 2018 ONCA 582, Ahluwalia v. Ahluwalia, 2023 ONCA 476, R. v. Bates (2000), 146 C.C.C. (3d) 321 (Ont. C.A.),  Bear Island Foundation v. Ontario (1999), 126 O.A.C. 385 (C.A.), R. v. Cunningham, 2023 ONCA 36, R. v. Fraser, 2016 ONCA 745, R. v. Kormendy, 2019 ONCA 676, Cunningham v. Moran, 2011 ONCA 476, Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429, Johnston v. McLean, 2024 ONCA 791, R. v. Finnessey (2000), 135 O.A.C. 396 (C.A.), Choc v. Hudbay Minerals Inc., 2013 ONSC 1414, Jane Doe v. Weinstein, 2018 ONSC 1126, R. v. Bérubé (1999), 215 N.B.R. (2d) 341 (C.A.), K.M.N. v. S.Z.M., 2024 BCCA 70, R. v. Brown, 1992 ABCA 132,  J.P. v. Sinclair (1997), 148 D.L.R. (4th) 472 (B.C.C.A.), Shih v. Shih, 2017 BCCA 37, Continental Appraisals Ltd. v. Air Touch Communications Ltd., 2024 BCCA 304, John Doe v. Bennett, 2002 NFCA 47, R. v. McNab, 2020 SKCA 4, McCann v. Barens, 2023 BCSC 2000, Klassen v. Epp, 2025 BCSC 1056

Chen v. Zhang, 2026 ONCA 137

Keywords: Family Law, Property, Remedies, Equalization of Net Family Property, Civil Procedure, Limitation Periods, Extension of Time, Family Law Rules, rr. 1(8)-(8.1),  2(2)-(4), 20.2(15), Family Law Act, R.S.O. 1990, c. F.3, ss. 2(8), 7(3)(a), Manchanda v. Thethi, 2016 ONCA 909

Anroop v. Naqvi, 2026 ONCA 142

Keywords: Wills and Estates, Wills, Validity, Testamentary Capacity, Suspicious Circumstances, Forgery, Undue Influence, Conflicts of Interest, Costs, Rules of Civil Procedure, r. 74.04, John Gironda et al. v. Vito Gironda et al., 2013 ONSC 4133, Vout v. Hay, [1995] 2 S.C.R. 876, Dujardin v. Dujardin Estate, 2018 ONCA 597, Ward v. Anderson Estate, 2021 ONSC 8337, Gefen Estate v. Gefen, 2022 ONCA 174, Trotter Estate, 2014 ONCA 841, McDougald Estate v. Gooderham (2005), 199 O.A.C, 203 (C.A.), Neuberger Estate v. York, 2016 ONCA 303, leave to appeal refused, [2016] S.C.C.A. No. 207, McGrath v. Joy, 2022 ONCA 119, Di Nunzio v. Di Nunzio, 2022 ONCA 889, Sawdon Estate v. Sawdon, 2014 ONCA 101, Bayford v. Boese, 2021 ONCA 533

Convocation Flowers Incorporated v. Anisa Holdings Ltd, 2026 ONCA 145

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Goodlife Fitness Centres Inc. v. Rock Developments Inc., 2019 ONCA 58, Primo Poloniato Grandchildren’s Trust (Trustee of) v. Browne, 2012 ONCA 862, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Horn Ventures International Inc. v. Xylem Canada LP, 2023 ONCA 408, Spirent Communications of Ottawa Limited v. Quake Technologies (Canada) Inc., 2008 ONCA 92, Nation v. Wasausink Lands Inc. (2004), 43 B.L.R. (3d) 244 (Ont. C.A.), Lu v. Wang, 2025 ONCA 702, Ching v. Pier 27 Toronto Inc., 2021 ONCA 551, Dosanj v. Liang, 2015 BCCA 18

Lalli v. Lalli, 2026 ONCA 123

Keywords: Property Law, Remedies, Resulting Trust, Civil Procedure, Evidence, Presumption of Resulting Trust, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1)(a), Bosanac v. Commissioner of Taxation, [2022] H.C.A. 34 (Austl. H.C.), 405 C.L.R. 37, Kerr v. Baranow, 2011 SCC 10, Nishi v. Rascal Trucking, 2013 SCC 33, Pecore v. Pecore, 2007 SCC 17, Saylor v. Brooks (2005), 261 D.L.R. (4th) 597 (C.A.), Falsetto v. Falsetto, 2024 ONCA 149, Holtby v. Draper, 2017 ONCA 932, Schwartz v. Schwartz, 2012 ONCA 239, Nussbaum v. Nussbaum (2004), 9 R.F.L. (6th) 455 (Ont. S.C.), Andrade v. Andrade, 2016 ONCA 368, Pisarski v. Piesik, 2019 BCCA 129, Wu v. Sun, 2010 BCCA 455, MacIntyre v. Winter, 2021 ONCA 516, Sidney N. Lederman, Michelle K. Fuerst, & Hamish C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis Canada, 2022)

Short Civil Decisions

Ingarra v. Cartel & Bui LLP, 2026 ONCA 139

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Default Judgments, Setting Aside, Appeals, Jurisdiction, Final or Interlocutory, Frivolous, Vexatious, Abuse of Process, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1), Rules of Civil Procedure, r. 2.1, 19.08, Add-Vance Service Centre Ltd. v. Triloq Corp., 2024 ONCA 940, Amstar Pool ILP v. Tweneboa-Kodua, 2025 ONCA 493

Shapiro v. Shapiro, 2026 ONCA 144

Keywords: Wills and Estates, Civil Procedure, Appeals, Jurisdiction, Succession Law Reform Act, R.S.O. 1990, c. S. 26

Kideckel v. Kideckel, 2026 ONCA 149

Keywords: Civil Procedure, Appeals, Stay Pending Appeal, Evidence, Costs

Clarke v. Denyes, 2026 ONCA 143

Keywords: Family Law, Parenting, Best Interests of the Child, Civil Procedure, Orders, Setting Aside, Appeals, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), Weidenfeld v. Weidenfeld, 2022 ONCA 860, Collins v. Tiveron, 2024 ONCA 447

John Szewczyk Testamentary Trust v. Szewczyk, 2026 ONCA 153

Keywords: Wills and Estates, Wills, Interpretation, Civil Procedure, Appeals, Costs, Full Indemnity

CIVIL DECISIONS

Aquino (Re), 2026 ONCA 132

[Gillese, Zarnett and Coroza JJ.A.]

Counsel:

David Ullmann, Stephen Gaudreau, G. Corsianos and T. Corsianos, for the appellant, J.A.

A. Merskey, L. Cloutier and E. Cobb, for the respondent Ernst & Young Inc. in its capacity as Court-Appointed Monitor of Bondfield Construction Company Limited

A. Bogach for the respondent, KSV Restructuring Inc, in its capacity as trustee in bankruptcy of 1033803 Ontario Inc.

Keywords: Bankruptcy and Insolvency, Bankruptcy Order, Mareva Order, Monitors, Trustees in Bankruptcy, Discretion, Collateral Purpose, Stay Proceedings, Appeals, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 2, 36.1, 42(1)(j), 43(1), 43(7), 43(10), 69.3(1), 69.4, 69.5, 193(c), Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, ss. 36.1, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Ernst & Young Inc. v. Aquino, 2021 ONSC 527, Ernst & Young Inc. v. Aquino, 2022 ONCA 202, Aquino v. Bondfield Construction Co., 2024 SCC 31, Royal Bank v. Bodanis, 2020 ONCA 185, North House Foods Ltd. (Re), 2025 ONCA 563, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, First National Financial GP Corporation v. Golden Dragon HO 10 Inc., 2019 ONCA 873, Bernard v. Laurentian Bank of Canada, 2025 QCCA 1145, Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Cowper-Smith v. Morgan, 2017 SCC 61,  B&M Handelman Investments Ltd. v. Curreri, 2011 ONCA 395, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Medcap Real Estate Holdings Inc. (Re), 2022 ONCA 318

facts:

In April 2019, Bondfield Construction Company Limited was granted protection under the Companies’ Creditors Arrangement Act (“CCAA”). Ernst & Young Inc. was appointed as Court-Appointed Monitor. J.A., the appellant, was the former president and a directing mind of Bondfield.

In 2019, the Monitor commenced litigation against the appellant, alleging that he conducted a false invoicing scheme resulting in transfers of over $20 million from Bondfield to him and his associates for services never provided. These transfers constituted transfers at undervalue as described in s. 2 of the Bankruptcy and Insolvency Act (“BIA”).  The appellant was also the president and a directing mind of a Bondfield affiliate, 1033803 Ontario Inc. (“Forma-Con“), which became bankrupt in December 2019. KSV Restructuring Inc. was appointed as trustee in bankruptcy of Forma-Con (the “Forma-Con Trustee“). In 2020, the Forma-Con Trustee brought an application alleging similar conduct to that alleged in prior litigation, resulting in transfers at undervalue totalling more than $11 million from Forma-Con to the appellant and his associates.

The Monitor obtained a Mareva injunction against the appellant dated February 25, 2020 (the “General Mareva Order“). In 2021, the appellant was ordered to pay the Monitor over $21.8 million and the Forma-Con Trustee over $11.3 million, together with interest and costs. The appellant’s appeals were dismissed by both the Court of Appeal for Ontario and the Supreme Court of Canada.

The Bankruptcy Judge’s Decision

In 2025, the Monitor applied for a bankruptcy order against the appellant and sought to confirm that the General Mareva Order remained in effect.

The bankruptcy judge rejected three preliminary objections raised by the appellant: 1) that the Monitor lacked authority to bring an application for a bankruptcy order, 2) that a bankruptcy order would improperly transfer obligations of the Monitor to a bankruptcy trustee, and 3) that a bankruptcy would be redundant.

The bankruptcy judge determined that the necessary grounds for issuing a bankruptcy order had been established. She accepted the Monitor’s evidence that, at that time, the appellant owed more than $27.4 million. She also found that the appellant had committed an act of bankruptcy within six months preceding the application by ceasing to meet his liabilities as they became due within the meaning of s. 42(1)(j) of the BIA. The judgment debts owing to the Monitor and the Forma-Con Trustee had not been paid, and the appellant had admitted he could not pay them, that he had no liquid assets, no access to credit, and no sources of income.

The bankruptcy judge refused to exercise the discretion under s. 43(7) of the BIA to dismiss the bankruptcy application, finding that the appellant had no present ability to pay his debts. His claim that he would be able to do so after the successful conclusion of litigation with his father, and the subsequent sale of the corporate properties, was not evidence that he was able to pay his debts and not in line with what is contemplated by s. 43(7). She also refused to exercise her discretion under s. 43(10) of the BIA to adjourn the application for further evidence or to await the resolution of the litigation.

The appellant alleged that the bankruptcy application had a collateral purpose: to benefit Zurich Insurance Company, a party with claims against both the appellant and his father.  According to the appellant, Zurich could influence the bankruptcy trustee’s approach to his litigation with his father since it was guaranteeing payment of the trustee’s fees, just as it could influence the Monitor’s decision to bring the bankruptcy application, as it had provided financing in the CCAA proceedings.  The bankruptcy judge found there was no evidence to support such concerns about the conduct of independent court officers, terming them “speculative”.

issues:

1. Was the Bankruptcy Order appealable as of right?

2. Did the Bankruptcy Judge err in making the bankruptcy order?

i. Did the Bankruptcy Judge err in rejecting the appellant’s preliminary objections?

ii. Did the Bankruptcy Judge err in rejecting the argument that the bankruptcy application had a collateral purpose?

iii. Did the Bankruptcy Judge err in the exercise of her discretion not to dismiss or stay the bankruptcy application?

3. Did the bankruptcy judge fail to address whether the General Mareva Order, which continued, merged into the judgment in the prior litigation and ceased to be in effect?

holding:

Appeal dismissed.

reasoning:

Was the Bankruptcy Order appealable as of right?

1. Yes. The Court concluded that the Bankruptcy Order was appealable as of right under s. 193(c) of the BIA. The Court applied the restrictive approach to s. 193(c), which requires that an appellant meet three criteria: the appeal must be more than procedural in nature, involve the value of the debtor’s property exceeding ten thousand dollars, and result in a loss to the appellant: North House, at paras. 21, 28, citing Bending Lake at para. 53.

The Bankruptcy Order stripped the appellant of any capacity to dispose of or deal with any or all of his property and vested that property in the bankruptcy trustee. The Court found that the order was clearly more than a procedural order and directly brought into play the value of the appellant’s property. It caused the appellant a loss by vesting the property in someone else. No one disputed that the property involved exceeded $10,000 in value.

Did the Bankruptcy Judge err in rejecting the appellant’s preliminary objections?

2(i). No. The bankruptcy judge rejected the appellant’s submission that the Monitor lacked authority to commence a bankruptcy application. The Court found no error in that approach, noting that the Supreme Court of Canada expressly held that the Monitor’s authority flowed from s. 36.1 of the CCAA: Aquino SCC decision at paras. 3 and 13. Moreover, the appellant conceded that the Monitor was otherwise authorized to bring litigation. The Court held that the bankruptcy judge’s reasoning was unassailable. Nor was there any error in the rejection of the appellant’s two other preliminary objections: that a bankruptcy application against him was inconsistent with the Monitor’s duties as a court officer, and that the appointment of a trustee in bankruptcy would be redundant to the Monitor’s role. Each objection misconceived the separate roles of the Monitor, a court officer with functions directed to the assets of and stakeholders in Bondfield, and the bankruptcy trustee, a court officer charged with administering assets formerly owned by the appellant for the benefit of his creditors.

Did the Bankruptcy Judge err in rejecting the argument that the bankruptcy application had a collateral purpose?

2(ii). No. The Bankruptcy Judge did not err. The Court held that these factual determinations were entitled to deference. The appellant did not show a basis to interfere with them, which was fatal to his attempt to have the Court revisit the bankruptcy judge’s exercise of discretion. In the absence of a palpable and overriding error of fact, an appellate court must defer to an exercise of discretion unless the application judge made an error in principle or if the exercise of discretion results in an order that is plainly wrong: Cowper-Smith, at para. 46.

Did the Bankruptcy Judge err in the exercise of her discretion not to dismiss or stay the bankruptcy application?

2(iii). No. The Bankruptcy Judge did not err in exercising their discretion to refuse to dismiss or stay the bankruptcy application. The Court viewed that the uncontested facts were that the appellant had no present ability to pay either judgment debt, which together totalled over $30 million. The bankruptcy judge correctly concluded that the appellant did not satisfy his onus of showing that he “is able to pay [his] debts” within the meaning of s. 43(7). His contention that he would be able to do so at some point in the future, if he won his litigation against his father and then liquidated the corporate properties, was insufficient.

The Court also rejected the appellant’s argument that the bankruptcy judge failed to give appropriate consideration to the fact that he was the registered holder of shares in corporations subject to litigation with his father. The ownership of the shares was subject to litigation that had to be determined at a yet-to-be-scheduled trial, making the fate of the shares and the appellant’s ability to monetize and benefit from corporate assets future and uncertain events.

Regarding the stay under s. 43(10), the Court held that a bona fide dispute was required to stay a bankruptcy application, and that there was no dispute as to the facts underlying the application. The appellant did not dispute the existence of the judgments, that they were unpaid and owing, or the amount of the judgment debts. The problem for the appellant in resisting the bankruptcy application was not the value of the corporate properties, but his current inability to access this value, which extended into the future with an uncertain end date.

Did the bankruptcy judge fail to address whether the General Mareva Order, which continued, merged into the judgment in the prior litigation and ceased to be in effect?

3. No. The Court rejected this submission. The General Mareva Order specifically stated its termination date: it remained in effect until varied by further order of the Court. The Court also rejected the appellant’s submission that the Mareva Order created uncertainty in light of the bankruptcy. Although the bankruptcy judge did not put it in those terms, she effectively exercised the Court’s power under s. 69.4 of the BIA to declare that the stay did not apply, as she stated she was satisfied that making the General Mareva Order was “complementary to the powers afforded to [the appellant’s] trustee in bankruptcy”. The Court found no reversible error in that exercise of discretion, holding that it was appropriate to prevent any purported dealings with or dissipation of assets by the appellant while the bankruptcy trustee was preparing to seek out and take control of the assets legally vested in it.

Malamas v. Wey, 2026 ONCA 133

[Tulloch C.J.O., Roberts and George JJ.A.]

Counsel:

K.M., acting in person

G. McConnell, for the respondents

Keywords: Family Law, Property, Matrimonial Home, Civil Procedure, Settlements, Orders, Summary Judgment, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 16(1)(h.2), R. v. Lavallee, [1990] 1 S.C.R. 852, Corner Brook (City) v. Bailey, 2021 SCC 29, Uber Technologies Inc. v. Heller, 2020 SCC 16, Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, Clarke v. Clarke, [1990] 2 S.C.R. 795, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, Dunmore v. Mehralian, 2025 SCC 20, Michel v. Graydon, 2020 SCC 24, Hryniak v. Mauldin, 2014 SCC 7, Barendregt v. Grebliunas, 2022 SCC 22, Shipton v. Shipton, 2024 ONCA 624, Deluca v. Bucciarelli, 2022 ONCA 774, R. v. Morillo, 2018 ONCA 582, R. v. Morillo, 2018 ONCA 582, Ahluwalia v. Ahluwalia, 2023 ONCA 476, R. v. Bates (2000), 146 C.C.C. (3d) 321 (Ont. C.A.),  Bear Island Foundation v. Ontario (1999), 126 O.A.C. 385 (C.A.), R. v. Cunningham, 2023 ONCA 36, R. v. Fraser, 2016 ONCA 745, R. v. Kormendy, 2019 ONCA 676, Cunningham v. Moran, 2011 ONCA 476, Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429, Johnston v. McLean, 2024 ONCA 791, R. v. Finnessey (2000), 135 O.A.C. 396 (C.A.), Choc v. Hudbay Minerals Inc., 2013 ONSC 1414, Jane Doe v. Weinstein, 2018 ONSC 1126, R. v. Bérubé (1999), 215 N.B.R. (2d) 341 (C.A.), K.M.N. v. S.Z.M., 2024 BCCA 70, R. v. Brown, 1992 ABCA 132,  J.P. v. Sinclair (1997), 148 D.L.R. (4th) 472 (B.C.C.A.), Shih v. Shih, 2017 BCCA 37, Continental Appraisals Ltd. v. Air Touch Communications Ltd., 2024 BCCA 304, John Doe v. Bennett, 2002 NFCA 47, R. v. McNab, 2020 SKCA 4, McCann v. Barens, 2023 BCSC 2000, Klassen v. Epp, 2025 BCSC 1056

facts:

The appellant deposed that her marriage began with the promise of a home. During her engagement, her then-fiancé, E.W., told her that his parents would purchase a home for the couple. At that time, the appellant was employed full-time and had savings of her own. She deposed that she accepted his proposal because he told her that his name would be placed on title and that she understood the home to be a gift to both spouses.

According to E.W., the home was, in fact, purchased by his parents in their own name and he was never registered on title. Although he admitted to knowing this, he stated that neither he nor his parents ever disclosed this fact to the appellant. The appellant deposed that after they moved into the home, and during their nine-year marriage, E.W. engaged in violence towards her and at least one of their two children.

The appellant retained counsel and brought an application. In August 2017, the appellant entered into a consent order with the respondents. In exchange for a $50,000 cash payment, interim child support payments, and terms restricting E.W. to supervised access, the appellant agreed to vacate the family home and accepted that the parents would no longer be required to participate in the family proceedings. The order also provided that “[a]ll claims between” the appellant and the parents “are dismissed without costs,” but did not dismiss or release any claims against E.W.

In August 2022, the appellant again turned to the courts. She brought the present action against E.W. and his parents for financial deception. Her statement of claim seeks damages for the financial and emotional harm she suffered, including the loss of the family home. Pleadings of violence and abuse infused the statement of claim, which alleged that these wrongs combined with the financial deception to intensify emotional distress. The respondents moved for summary judgment. The motion judge accepted the respondents’ submissions and dismissed the action.

issues:

1. Did the motion judge err in prematurely dismissing claims against E.W. by way of summary judgment?

2. Did the motion judge err in prematurely dismissing claims against E.W.’s parents by way of summary judgment?

holding:

Appeal allowed in part.

reasoning:

Did the motion judge err in prematurely dismissing claims against E.W. by way of summary judgment?

1. Yes. The motion judge erred in prematurely dismissing claims against E.W. by way of summary judgment. The Court turned to whether the motion judge properly considered the appellant’s claims against E.W. in light of the evidentiary record and the applicable legal principles. In the Court’s view, the failure to account for the context of intimate partner violence affected the assessment of the limitations defence and the application of res judicata and abuse of process. As a result, the Court found that those issues could not properly be resolved by way of summary judgment.

The motion judge did not address the allegations and evidence of intimate partner violence in assessing the procedural doctrines relied upon by the respondents. The Court did note that the appellant’s pleadings did not set out her claims arising from intimate partner violence with precision. This issue did not preclude the disposition but would require clarification if the matter proceeded to trial.

The Court found that there were genuine issues requiring a trial as to whether the discretionary component of the doctrines should be exercised to permit the claims to proceed. The appellant relied on evidence relating to housing insecurity, financial instability, and the alleged violence and its effects during the relevant period. Whether those circumstances were established, and their legal significance, were matters for trial.

Did the motion judge err in prematurely dismissing claims against E.W’s parents by way of summary judgment?

2. No. The motion judge did not err in prematurely dismissing claims against E.W’s parents by way of summary judgment. The Court noted that the motion judge dismissed the claims on the basis that they were barred by the August 2017 consent order, which provides under the heading “final” that “[a]ll claims between” the appellant and the parents “are dismissed without costs.” He concluded that this provision applied to the parents but not to E.W., who was not named. The issue on appeal was whether the motion judge erred in interpreting the consent order as barring the appellant’s present claims against the parents.

The Court saw no reversible error in the motion judge’s interpretation. The consent order expressly referred to “all claims” between the appellant and the parents, and it was made in the context of finally resolving the parents’ involvement in the family proceeding. The Court found that the motion judge’s conclusion that the order barred those claims was entitled to deference. The Court dismissed the appeal with respect to the claims against the parents.

Chen v. Zhang, 2026 ONCA 137

[Fairburn A.C.J.O., Huscroft and Zarnett JJ.A.]

Counsel:

H. (P.) Du, for the appellant

W. C. (C.) Hu, for the respondent

Keywords: Family Law, Property, Remedies, Equalization of Net Family Property, Civil Procedure, Limitation Periods, Extension of Time, Family Law Rules, rr. 1(8)-(8.1),  2(2)-(4), 20.2(15), Family Law Act, R.S.O. 1990, c. F.3, ss. 2(8), 7(3)(a), Manchanda v. Thethi, 2016 ONCA 909

facts:

The appellant and respondent came to Canada from China as international students and began residing together in Ontario around 2010. The appellant purchased a Toronto property in October 2011, registered in her name alone. The parties married in China on February 14, 2015, and a child was born of that union shortly after the marriage. The parties returned to China on August 21, 2019, and by the fall of 2019, had separated. On September 21, 2020, the parties signed a divorce agreement which provided that all assets owned by each party prior to marriage belonged solely to that individual. In August 2023, the respondent commenced an application that included a claim for a 50% beneficial interest in the Toronto property and a claim for equalization.

The motion judge had to decide whether the divorce agreement decided all the property issues between the parties and whether the limitation period for the equalization claim could be extended. The motion judge dismissed the appellant’s request to dismiss the request for an extension of the limitation period on the basis that the respondent had failed to make child support payments and financial disclosure contrary to court orders. He found that any alleged non-compliance should be dealt with on a specific motion. The motion judge extended the limitation period, having been satisfied that there were apparent grounds for relief, that the delay had been incurred in good faith, and that no one would suffer substantial prejudice because of the delay. He also found that the divorce agreement did not bar the respondent from seeking an equalization claim but was unable to determine whether the divorce agreement barred the ownership claim, leaving that to be determined at trial.

issues:

1. Did the motion judge err in extending the time to bring the equalization claim?

2. Did the motion judge err in allowing the ownership claim to proceed to trial?

holding:

Appeal allowed.

reasoning:

1. Yes.  The Court determined that the motion judge erred in his application of rr. 1(8) and 2(2)-2(4) of the Family Law Rules when he found that “alleged non-compliance” with the prior court order had to be dealt with “on a specific motion brought by the [appellant], not as a response to what is effectively a pleading motion.”

There was nothing in the Rules to suggest that the party aggrieved by the failure to comply with the court’s orders must bring a separate motion. On the contrary, when the party who had failed to comply with court orders requested an indulgence of the court, such as a request for an extension of time, the court was required to take this non-compliance into account by virtue of its duty to promote the primary objective of dealing with cases justly and efficiently, as articulated in rr. 2(2)-(4).

The respondent’s failure to pay child support, in breach of court orders, was an important consideration in determining whether the court should grant a party permission to proceed with an equalization claim despite having missed the statutory daeadline. The motion judge erred in law in failing to account for this factor.

2. Yes. The Court believed this matter was resolvable on the motion and was all but resolved on the factual findings of the motion judge. The divorce agreement contained no language limiting its scope to pre-marital property in China. Instead, the broad wording of paragraph III referred to “all fixed assets … and all other assetsowned by each party prior to marriage.” There was no dispute about the legitimacy or the binding nature of the agreement, and the parties accepted that the English translation was accurate.

The respondent also filed no admissible evidence to support his position that Ontario property could not be dealt with in a Chinese divorce agreement. In concluding that he was unable to answer the question before him and sending it to trial, the motion judge effectively gave the respondent a second chance to advance the same argument and to produce the expert opinion evidence he ought to have filed on the motion.

Anroop v. Naqvi, 2026 ONCA 142

[Gillese, Pepall and Zarnett JJ.A.]

Counsel:

J. Jagtoo, F. Jagtoo and M. Jagtoo, for the appellants

K. Gale and P. Mahajan, for the respondent

Keywords: Wills and Estates, Wills, Validity, Testamentary Capacity, Suspicious Circumstances, Forgery, Undue Influence, Conflicts of Interest, Costs, Rules of Civil Procedure, r. 74.04, John Gironda et al. v. Vito Gironda et al., 2013 ONSC 4133, Vout v. Hay, [1995] 2 S.C.R. 876, Dujardin v. Dujardin Estate, 2018 ONCA 597, Ward v. Anderson Estate, 2021 ONSC 8337, Gefen Estate v. Gefen, 2022 ONCA 174, Trotter Estate, 2014 ONCA 841, McDougald Estate v. Gooderham (2005), 199 O.A.C, 203 (C.A.), Neuberger Estate v. York, 2016 ONCA 303, leave to appeal refused, [2016] S.C.C.A. No. 207, McGrath v. Joy, 2022 ONCA 119, Di Nunzio v. Di Nunzio, 2022 ONCA 889, Sawdon Estate v. Sawdon, 2014 ONCA 101, Bayford v. Boese, 2021 ONCA 533

facts:

This litigation concerned the estate of RA, who died at 87 on July 4, 2022. The central dispute was whether a will executed on October 20, 2021 (the “Third Will”), or a later will dated May 19, 2022 (the “Fourth Will”), represented RA’s valid last will. RA was predeceased by his wife, his child PA, and his son NA. NA, NA’s common law spouse AH, and their son BA had lived with RA for approximately 24 years. RA was very close to his grandson BA, caring for him as a child. As BA got older, he contributed to household finances and assisted RA with online banking. In RA’s later years, and especially after NA’s death, AH acted as RA’s primary caregiver, providing daily care including assistance with hygiene and meals. AH and BA also paid $75,600 to repair and renovate RA’s home in early 2022. None of RA’s other children helped with his personal or medical needs, though LA, one of RA’s daughters, also lived in the home. CN, one of RA’s four surviving children, never lived with RA and did not financially contribute to his home. She gave inconsistent evidence regarding her interactions with RA.

RA undisputedly made three wills, though the fourth was contested. The first will was prepared using a will kit, while the second and third wills were drafted by K, a wills and estates solicitor. All three wills were substantially similar in their treatment of RA’s home, the principal estate asset, leaving it to NA, AH and/or BA, with LA permitted to remain in the home for as long as she wished. The impugned Fourth Will was drafted by NN, a real estate lawyer. NN rented office space from CN’s husband, who referred clients to him. NN drafted the Fourth Will for free and did not send RA a reporting letter. The Fourth Will divided the residue of RA’s estate equally between RA’s surviving children and made no provision for BA or AH.  It also contained a bizarre “Sky-Diving Provision” despite RA never having sky-dived.

On May 15, 2022, AH and BA left the family home due to alleged abuse and harassment by three of RA’s surviving children, including CN.  RA died seven weeks later. Acting on the Third Will, which named him as estate trustee, BA applied for a certificate of appointment and received a life insurance payout of approximately $21,800.  CN objected to this application, produced the Fourth Will, and brought her own certificate of appointment application. She also started a Small Claims Court action (“SCC claim”) to recover the life insurance payout. BA and AH responded by bringing their own application challenging the validity of the Fourth Will, and the two proceedings were joined and heard based on affidavit evidence and cross-examinations, not as a trial.

In her January 10, 2025 judgment, the application judge declared the Fourth Will valid and dismissed BA and AH’s application. The application judge found RA had testamentary capacity, was not unduly influenced, and that RA’s signature was not forged.  A subsequent costs order required the parties to bear their own costs.  BA and AH appealed both the merits and costs decisions.

issues:

1. Did the application judge err in concluding there was insufficient evidence of suspicious circumstances to displace the presumption that the Fourth Will was properly executed?

2. Did the application judge err in misapprehending, disregarding or failing to accept the uncontradicted conclusion of the appellants’ handwriting expert that RA’s signature on the Fourth Will was a forgery?

3. Did the application judge err in refusing or failing to consider that NN was in a conflict of interest?

4. Did the application judge err in concluding that the Fourth Will was not obtained via unconscionable procurement?

5. Did the application judge err in concluding that no undue influence was exerted on RA to sign the Fourth Will?

6. Did the application judge err in granting CN leave to amend her SCC claim, which remedy had not been sought?

7. Did the application judge err in refusing to grant the appellants their costs of the application?

holding:

Appeal allowed.

reasoning:

1, 2, and 3. Yes. The standard of review was correctness for questions of law, with appellate intervention only warranted for palpable and overriding errors of fact. First, the Court affirmed relevant legal principles, emphasizing that a will’s propounder must prove proper execution and the testator’s knowledge and approval of the will’s contents. While courts generally presume capacity, knowledge, and approval, this presumption is upended where suspicious circumstances exist surrounding will preparation, capacity, or where coercion or fraud is suspected. Proving suspicious circumstances is not an onerous burden and is satisfied by adducing evidence which, if accepted, would tend to negate knowledge and approval or capacity.

The Court held that the Fourth Will was invalid. The application judge committed legal and factual errors in finding no suspicious circumstances existed and thus applying the presumption of validity. Her most critical error was finding that RA had good reason to disinherit BA and AH, relying on NN’s March 14, 2022 notes stating that RA had complained about mistreatment by the appellants after they moved out. This statement was clearly incorrect, as AH and BA were still living with RA on that date, and never treated RA badly. Moreover, the application judge erred in law by not concluding that NN was in a conflict of interest when he drafted the Fourth Will. The fact that he was a tenant of CN’s husband and financially benefitted from the husband’s referrals constituted a blatant conflict of interest, which was itself a suspicious circumstance. In addition, the application judge erred in failing to find suspicious circumstances based on uncontradicted expert evidence that the Fourth Will’s signature was forged. Suspicions were amplified by K’s concerns about RA’s capacity just two days before his meeting with NN, and by evidence that CN had bragged about being able to replicate RA’s signature.

Having found suspicious circumstances that rebutted the Fourth Will’s presumed validity, CN bore the burden of proving that RA knew and approved of the will’s contents. No reliable evidence supported a finding of knowledge and approval: the incongruous “Sky-Diving Provision” was at least one clause RA clearly had not approved. NN admitted that he included this provision in error and confirmed that he did not review the entire will with RA prior to execution.

4. Not decided. Whether the doctrine of unconscionable procurement exists at Ontario law is uncertain, and the Court left this question for another day.

5. Yes. The Court held that if RA did sign the Fourth Will, it was because of undue influence, which was an independent basis to deem the will invalid. Many undue influence indicators were present: RA was an elderly man with serious medical conditions, he had been very affected by his son NA’s recent death, and overall, RA was vulnerable and dependent on others for care. There was also clear evidence of familial conflict, and the Fourth Will’s substantial departure from the terms of the first three wills, all of which were quite recent, could not be ignored.

6. Yes. The SCC claim was contingent on the Fourth Will being valid, which it was not. Hence, the Court granted the appellants’ motion and dismissed the SCC claim.

7. Yes. The Court set aside the application judge’s costs order, which contained several legal errors, mainly the application judge’s failure to explain why she did not see the litigation as a public policy case. Public policy was engaged by the dispute, and the Court awarded a blended costs award reflecting the fact that CN’s actions in propounding the Fourth Will led to the within application and her contradictory testimony increased costs.

Convocation Flowers Incorporated v. Anisa Holdings Ltd., 2026 ONCA 145

[Favreau, Copeland and Madsen JJ.A.]

Counsel:

N.G. Wilson and M. Coker, for the appellants

J. Binavince, for the respondent

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Goodlife Fitness Centres Inc. v. Rock Developments Inc., 2019 ONCA 58, Primo Poloniato Grandchildren’s Trust (Trustee of) v. Browne, 2012 ONCA 862, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Horn Ventures International Inc. v. Xylem Canada LP, 2023 ONCA 408, Spirent Communications of Ottawa Limited v. Quake Technologies (Canada) Inc., 2008 ONCA 92, Nation v. Wasausink Lands Inc. (2004), 43 B.L.R. (3d) 244 (Ont. C.A.), Lu v. Wang, 2025 ONCA 702, Ching v. Pier 27 Toronto Inc., 2021 ONCA 551, Dosanj v. Liang, 2015 BCCA 18

facts:

The appellant landlord, Anisa Holdings Ltd. (“Anisa”) purchased a commercial building in 2022. The previous owner had leased a unit in the building to the respondent, Convocation Flowers Inc. (“CFI”) in June 2018 (the “Lease”). The Lease included a schedule requiring the landlord to enlarge the door opening to the loading docks and raise the garage door clearance (the “improvements”).

Anisa sought to negotiate a lease termination with CFI as it wished to use the property for its own business. When negotiations failed, Anisa terminated CFI’s access to the loading docks, confirmed in writing on October 21, 2022.

On November 2, 2022, CFI started legal proceedings seeking a declaration of the rights and obligations of Anisa and CFI pursuant to the Lease and unfettered access to the loading docks. A case conference on November 4, 2022, resulted in a temporary without prejudice consent order restoring CFI’s access to the loading docks until November 20, 2022. Shortly thereafter, CFI entered into a lease for other premises and vacated the unit. On December 2, 2022, CFI amended its application to seek a declaration that Anisa had repudiated the Lease, causing CFI irreparable harm.

The application judge determined that Anisa breached the Lease by eliminating CFI’s access to the loading docks and driveway to receive deliveries; Anisa breached the duty of good faith; Anisa’s breach was fundamental, entitling CFI to treat the Lease as at an end and sue for damages; and a trial should be ordered on the issue of damages.

issues:

1. Did the application judge err in her interpretation of the Lease in finding that CFI was entitled to use the loading docks and the rear yard “where no such right existed under the terms of the Lease”?

2. Did the application judge err in finding that it had fundamentally breached the Lease where the consent order remedied access to the loading docks?

3. Did the application judge err in finding that CFI was entitled to treat the Lease as at an end in circumstances where it had affirmed the Lease through its application and the consent order?

holding:

Appeal dismissed.

reasoning:

1. No. The application judge correctly set out the applicable principles of contract interpretation. The application judge’s interpretation of the Lease was comprehensive and entitled to deference. Anisa could not point to any palpable and overriding error.

2. No. The Court saw no error in the application judge’s analysis of the repudiatory breach. She correctly recognized that only when a breach is repudiatory is a tenant entitled to do what CFI did, “which is to treat the contract as at an end and sue for damages.” She distinguished between a breach that is merely “material” and one that deprives the innocent party of substantially the whole benefit of the contract.

The application judge’s analysis of repudiation was thorough and entitled to deference. The Court saw no error in her conclusion that on this record, CFI was “entitled to call it what it was – a repudiation – rather than continuing to try to make it work with the significant risk of adverse consequences for its business as a whole.”

3. No. Anisa could not rely on the without prejudice temporary consent order in support of its position that it did not repudiate the lease. The Court noted further that where the court has found that the breach is repeated continually, a party is at liberty to subsequently choose to accept repudiation and treat the contract as at an end. A party did not lose its right to terminate a contract merely because it sought temporary relief or took reasonable time to decide how to respond to the breach.

Lalli v. Lalli, 2026 ONCA 123

[Roberts, Miller and Monahan JJ.A.]

Counsel:

P. Jeejeebhoy and Z. Romanin, for the appellants

M. Singh, S. Pathmanathan and T. Taraky, for the respondents

Keywords: Property Law, Remedies, Resulting Trust, Civil Procedure, Evidence, Presumption of Resulting Trust, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1)(a), Bosanac v. Commissioner of Taxation, [2022] H.C.A. 34 (Austl. H.C.), 405 C.L.R. 37, Kerr v. Baranow, 2011 SCC 10, Nishi v. Rascal Trucking, 2013 SCC 33, Pecore v. Pecore, 2007 SCC 17, Saylor v. Brooks (2005), 261 D.L.R. (4th) 597 (C.A.), Falsetto v. Falsetto, 2024 ONCA 149, Holtby v. Draper, 2017 ONCA 932, Schwartz v. Schwartz, 2012 ONCA 239, Nussbaum v. Nussbaum (2004), 9 R.F.L. (6th) 455 (Ont. S.C.), Andrade v. Andrade, 2016 ONCA 368, Pisarski v. Piesik, 2019 BCCA 129, Wu v. Sun, 2010 BCCA 455, MacIntyre v. Winter, 2021 ONCA 516, Sidney N. Lederman, Michelle K. Fuerst, & Hamish C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis Canada, 2022)

facts:

The appellants are the parents of the respondent son. The parties decided to look for properties to purchase in 2006. The appellant father contacted a realtor, who located two condominium units to purchase as investment properties. The appellants supplied part of the down payment for the condos, but legal title was held solely by the respondents. The trial judge rejected the respondents’ claim that the funds were a wedding gift from the appellants. The trial judge found instead that the condominiums were purchased by the parties together as a joint venture. That finding was not appealed.

The realtor also located a suitable residential property at Farwell Crescent to serve as the family home (“Farwell”). To facilitate the purchase, the appellant father advanced $55,000 to the respondent son. The son was registered on title as the legal owner. The trial judge found that these funds were paid in satisfaction of a debt of unpaid wages owed to the son by the father and dismissing the appellant parents’ resulting trust claim to a half interest in the Farewell property.

Both appellant parents gave evidence that when they advanced the $55,000, they did so intending to take a beneficial interest in Farwell. The trial judge had difficulties with the evidence of both appellants. The appellants, however, also led evidence from their realtor. The realtor’s evidence was that he was first approached by the father to assist in the purchase of a family home and some investment properties. The realtor’s evidence was that the parties’ plan was that the father would contribute a large down payment for the family home, and that legal title would be held by the respondent son or wife or both. The realtor’s understanding was that Farwell would be jointly owned, with the appellant parents holding a beneficial interest.

The trial judge recognized the importance of the realtor’s evidence. The realtor was the only third-party witness to the purchase of Farwell, and his evidence supported the appellant parents’ position that the father’s intention in advancing the funds was to take an ownership interest in Farwell. However, the trial judge then appeared to reject the realtor’s evidence on the appellant father’s intention in advancing the $55,000, stating that the realtor never met alone with the son and had no conversation with the son or his wife.

issues:

1. Did the trial judge err in dismissing the appellant parents’ claim to a 50% beneficial ownership interest in Farwell?

2. If so, should the Court decide the appellant parents’ claim or remit the matter to a new trial?

holding:

Appeal allowed.

reasoning:

1. Majority (Roberts, Miller J.): Yes.

The appeal concerned what is required to establish a purchase money resulting trust – a trust created when a transferor contributes purchase money towards the purchase of an asset without taking legal title and with the intention to take a beneficial interest. To establish the purchase money resulting trust in this case, the appellants asked the Court to apply a presumption of resulting trust. This is the presumption that where a person pays the whole or a part of the purchase price of property, that person is presumed to have declared a trust over the property.

A purchase money resulting trust arises when a person advances funds to contribute to the purchase price of property, but does not take legal title to that property. Where the person advancing the funds is unrelated to the person taking title, the law presumes that the parties intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution.

The Court quoted with approval the Supreme Court decision in Saylor v. Brooks that “[r]eliance on the presumptions has diminished because the courts are now examining all the evidence to determine the transferor’s intent. That is to say, courts are tending to examine the evidence in its entirety, and base findings regarding intention on all the facts. It will only be where the evidence itself is unclear that reliance on presumptions becomes necessary.”

The appellant parents argued that as they advanced the funds for the purchase of Farwell but did not take title, the presumption arose, and the onus then rested on the respondents to marshal evidence to rebut it. The respondents argued that the presumption did not arise, because on the evidence accepted by the trial judge, the intention of the appellants was not to create a trust but to satisfy a debt. It was the trial judge’s task to determine whether the plaintiffs met their persuasive burden once they determined the presumption did not arise.

The majority of was of the view that the operation of the presumption did not actually arise on the facts that were established before the trial judge. The presumption was not needed by the appellants to advance their claim.

The presumption of resulting trust only arises in this specific scenario: where the evidence led by the plaintiff is “unpersuasive”, “neutral, truly equivocal, non-existent or uninformative” of the transferor’s objective intentions at the time of the transaction. It is only where there is an absence of evidence of the transferor’s actual intentions that there is any need for the presumption. In such scenarios, the presumption follows logically: absent a living transferor, the transferee is the party best situated to bring evidence about the circumstances of the transfer. However, where there is clear evidence of actual intentions, no presumption is necessary.

The trial judge’s treatment of the realtor’s evidence in deciding that the appellant parents had not established a resulting trust was problematic. The realtor’s evidence was that he had been approached by the appellant father to help locate properties to purchase, that one of the properties would be a residence for the two families, that he would provide funds for the downpayment, and that he would not be on title but would be an owner of the property. The trial judge was not obligated to find this evidence persuasive, and he was permitted to prefer contrary evidence. Nevertheless, his reasons do not suggest that he accepted the evidence but found it unpersuasive, but instead that he found it not probative of the questions he had to answer. In that, he was mistaken. It may well have been that the realtor’s evidence was not probative of the existence of a joint venture to purchase Farwell. But it was certainly probative of the objective intention of the father when he advanced the monies for the purchase.

The realtor accompanied the parties during their search for properties, received instructions from the appellant father and then the respondent son once it was decided that the son would take title. The fact that the realtor gave no evidence as to what the son’s intentions were on purchasing Farwell was not a reason not to consider the realtor’s evidence about the father’s intentions.

For the purpose of a resulting trust argument, it is not necessary to ascertain the intention of both parties at the time of the purchase. It is the intention of the grantor or contributor alone that counts. Accordingly, it was only the appellant father’s intentions that were relevant. That is not to say that the respondent son and wife’s evidence about the father’s intentions was not relevant as well. It was. But it was an error to disregard the realtor’s evidence for the sole reason that he was unable to give evidence as to the son’s intentions.

Given the importance of the realtor’s evidence as the sole impartial witness on the central question at trial, the trial judge erred by disregarding it. The issue of the appellant parents’ ownership interest in the Farwell property therefore had to be considered anew.

Dissent (Monahan JJ.A.): No.

The dissent would have dismissed the appeal.

Presumptions of resulting trusts only apply to gratuitous transfers, and there are numerous authorities that confirm this. A presumption of a resulting trust arises where one person voluntarily transfers property to a second person or when two parties contribute to the purchase of a property and only one of them takes title to it, referred to as a “purchase money resulting trust”. In either scenario, the transfer is gratuitous because it occurs without consideration (Kerr v. Baranow).

If the transferor did receive consideration from the transferee for the property transferred, then no presumption of resulting trust can or should arise in either scenario. The receipt of consideration means that the transfer is part of a reciprocal arrangement or bargain between the transferor and the transferee. The transferee has, in effect, paid the transferor for the property they have received. In these circumstances, it would be inequitable as against the transferee to award the transferor the additional benefit of a resulting trust in the transferred or purchased property.

If a transfer is gratuitous and the presumption of a resulting trust is engaged, it can be rebutted if the transferee provides evidence, on the civil standard of a balance of probabilities, of the transferor’s contrary intention at the time the transfer was made. A trial judge will consider all relevant evidence on the issue of the transferor’s intention, including evidence advanced by the transferee

The trial judge proceeded on the basis that the presumption of a resulting trust only arises in cases where a transferor makes a gratuitous transfer to a transferee. The central issue in the dispute over the Farwell property was whether the appellants had received consideration for the appellant father’s $55,000 transfer to the respondent son that formed part of the down payment for the Farwell property.

Given the parties’ diametrically opposed accounts on the intentions behind the advance of the $55,000, the trial judge was required to make credibility findings. While the trial judge noted concerns over the credibility of the parties generally, he ultimately preferred the evidence of the son over that of the father, particularly given that it was corroborated by witnesses with no direct interest in the litigation. The trial judge therefore found that the father’s payment of $55,000 to the son was to discharge his debt to his son. These findings meant that the appellants had failed to establish circumstances giving rise to a trust in the Farwell property, since the father’s payment to his son was not gratuitous.

The dissent saw no error in the trial judge’s analysis concerning the realtor’s evidence. The threshold inquiry in any resulting trust analysis is whether the transferor made a gratuitous payment to the transferee. If, instead, the transferor received consideration for the payment (in the form of extinguishment of a debt obligation or otherwise), no resulting trust in the transferee’s property can or should arise. Thus, far from erring in his analysis, the trial judge correctly recognized that, as a threshold matter, he had to determine whether the father’s payment of $55,000 to the son had been made without consideration. Since the trial judge found that the father had received consideration for his payment, the appellant parents’ claim to a beneficial interest in the Farwell property necessarily failed.

The trial judge did not ignore the realtor’s evidence in his consideration of this issue, noting that the realtor supported the appellants’ position that the Farwell property was jointly and equally owned. Given that the father’s evidence lacked credibility, and that the trial judge already relied on it for the condo issue, the realtor’s evidence was particularly important. However, the trial judge noted that the realtor’s evidence provided little insight into the “without consideration” threshold inquiry, since the realtor’s evidence originated solely from discussions with the father. Accordingly, the realtor had no knowledge of the circumstances giving rise to the son’s claim of a pre-existing debt owed by his father. This was a straightforward analysis of the probative value of the realtor’s evidence in relation to the live issues in relation to the Farwell property and disclosed no legal error.

Even if the trial judge ought to have found that the father’s payment of $55,000 gave rise to a presumption of a resulting trust in the appellants’ favour, this error was of no consequence, since it would not have affected the ultimate result. This is because a presumption of a resulting trust is rebuttable by contrary evidence regarding the transferor’s intention at the time of the transfer.

In determining whether the presumption has been rebutted, a trial judge, considering the evidence as a whole, is entitled to prefer the evidence of the transferee over that of the transferor. Based on his review of the entire record, including the evidence of certain disinterested witnesses whose evidence tended to support the son’s version of events, the trial judge preferred the respondents’ evidence that the father had paid the son on account of amounts owing to him. These factual findings were sufficient to rebut the presumption of a resulting trust.

The trial judge was in the best position to assess the parties’ credibility, weigh the evidence, and make findings of fact. It was not the role of the Court to revisit the trial judge’s credibility assessments and related findings of fact in order to find that the trial judge ought to have preferred the evidence of the father (and realtor) over that of the son.

2. Majority: The Court was in a position to decide the claim and determined that the appellant parents held a 50% beneficial interest in Farwell.

Section 134(1)(a) of the Courts of Justice Act permits the Court to “make any order or decision that ought to or could have been made by the court or tribunal appealed from”. This includes, in a proper case, drawing inferences of fact from the evidence.

This was a proper case for the Court to do so because the record, including the trial judge’s findings that were not set aside, permitted such a determination. It was also just to do so to avoid further expense and delay for the parties.

The trial judge did not reject the realtor’s evidence as incredible or unreliable but disregarded it because of legal error.

The respondent son’s evidence did not support the trial judge’s finding that the $55,000 was advanced to him as unpaid wages. The sums did not add up. The son’s evidence was that he was owed a total of $47,280 for unpaid wages, plus a further $10,000 loan he made to his father, for a total debt of $57,280. But the trial judge rejected the son’s claim that $10,000 of the $55,000 was a repayment of a loan. Standing on its own, the $47,280 wage claim left $7,180 unexplained.

In addition to the realtor’s evidence that the trial judge found supported the father’s evidence about the appellant parents’ intention, the $55,000 amount paid on closing, which represented half of the downpayment and closing costs, also substantiated the appellant parents’ claim that they contributed $55,000 with the intention of taking a 50% ownership interest in the Farwell property.

In the result, the Court declared and ordered that the appellant parents were entitled to a 50% interest in the Farwell property.

This Court was not in a position to order the sale of the property or the accounting as requested by the appellants. Accordingly, those related remedies were remitted to the Superior Court. The dissent did not weigh in on this issue as it would have dismissed the appeal.

SHORT CIVIL DECISIONS

Ingarra v. Cartel & Bui LLP, 2026 ONCA 139

[Roberts, Monahan, and Wilson JJ.A.]

Counsel:

NC, acting in person

JI, AI, JPI, PE and SH, acting in person

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Default Judgments, Setting Aside, Appeals, Jurisdiction, Final or Interlocutory, Frivolous, Vexatious, Abuse of Process, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1), Rules of Civil Procedure, r. 2.1, 19.08, Add-Vance Service Centre Ltd. v. Triloq Corp., 2024 ONCA 940, Amstar Pool ILP v. Tweneboa-Kodua, 2025 ONCA 493

Shapiro v. Shapiro, 2026 ONCA 144

[Lauwers, Huscroft and Gomery JJ.A.]

Counsel:

M.L. Pomerleau and B.Q. Boudreau, for the appellant

A. Posno, R. Waxman and S. Victor, for the respondent

Keywords: Wills and Estates, Civil Procedure, Appeals, Jurisdiction, Succession Law Reform Act, R.S.O. 1990, c. S. 26

Kideckel v. Kideckel, 2026 ONCA 149

[Simmons, Paciocco and Osborne JJ.A.]

Counsel:

BK, acting in person

A. Simovonian, for the respondent

Keywords: Civil Procedure, Appeals, Stay Pending Appeal, Evidence, Costs

Clarke v. Denyes, 2026 ONCA 143

[Trotter, Monahan and Dawe JJ.A.]

Counsel:

M.J. Denyes, acting in person

J. Stanchieri and D. Rappaport, for the respondent/responding party

Keywords: Family Law, Parenting, Best Interests of the Child, Civil Procedure, Orders, Setting Aside, Appeals, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), Weidenfeld v. Weidenfeld, 2022 ONCA 860, Collins v. Tiveron, 2024 ONCA 447

John Szewczyk Testamentary Trust v. Szewczyk, 2026 ONCA 153

[Lauwers, Huscroft and Gomery JJ.A.]

Counsel:

M. Zatovkanuk, for the appellant

D.J. Dochylo, for the respondent CIBC Trust Corporation, as trustee of the JS Testamentary Trust

No one appearing for the respondent ES, as trustee of the S. Grandchildren’s Trust

Keywords: Wills and Estates, Wills, Interpretation, Civil Procedure, Appeals, Costs, Full Indemnity

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