Constructive Trust in Ontario Family Law: Protect Your Property Rights

Ontario law only. This article provides general information about property claims between spouses and common-law partners. Property rights and limitation periods are fact-specific

When a relationship ends, legal title does not always tell the whole story. In Ontario, a spouse or common-law partner may sometimes claim a beneficial interest in a home based on proven contributions and equitable principles.
This is especially important for common-law partners, who do not receive the same automatic property equalization rights as married spouses. Any claim must be proven with evidence.

Common-Law Partners and the Family Home

A person who is not on title may still have a potential beneficial-interest claim, depending on the facts, contributions and evidence.

1. If you are common law and have a house before your start living together with your new partner, you have to do –

CLICK HERE

cohabitation agreement is strongly recommended to protect your property rights in the house

2. If you are common law partner and moved in with the individual who does have the house –

CLICK HERE

you potentially may have a beneficial interest in the house, in case if you did not enter into cohabitation agreement. If you financially contributed to the house, make sure that you keep all records, receipts information, names of contractors, if any, and all other records, invoices, receipts. If you giving your partner cash, ALWAYS TAKE RECEIPTS OR NOTES SIGNED BY the recipient.

What Is a Constructive Trust?

A constructive trust is an equitable remedy that may recognize a beneficial interest in property even when the claimant is not the registered owner. It commonly arises from unjust enrichment.

Generally, the claimant must show that the other person was enriched, the claimant suffered a corresponding deprivation, and there was no legal reason for the benefit to be retained.

Relevant contributions may include a down payment, mortgage payments, renovations, unpaid work, childcare or homemaking. Contributions do not automatically create ownership, and a court may award money instead of an interest in the property.

Certificate of Pending Litigation (CPL): Protecting the Property

If a separation leads to a court claim that genuinely puts an interest in land in question, the claimant may ask the court to issue a Certificate of Pending Litigation (CPL). Once issued and registered on title, it gives notice of the dispute and can make a sale, transfer or refinancing more difficult while the case continues.

3. In case of separation, you have a recorse. You can always bring the application to register against your partner’s house a certificate of pending litigation. It is strong legal instrument to secure and protect your beneficial interest in your partner’s house.

Evidence to Keep

Keep bank and mortgage records, proof of down-payment or renovation contributions, invoices, receipts, contractor names, written communications and signed records of cash payments. These documents may be critical to proving the nature and value of your contribution.

Do Not Delay

Do not delay. Limitation periods depend on the type of claim and remedy requested, so prompt legal advice is important.

Consultation

Need advice about your legal matter?

CLICK HERE FOR CONSULTATION

15-minute consultation: by phone.

Consultation regarding your legal matter: $360 plus 13% HST, totaling $406.80, by Zoom.