A Constructive Trust in lieu of a Support Claim?
Support claims under Part V of the Succession Law Reform Act are usually the first choice of Ontario counsel when claiming against an estate on behalf of a disappointed common-law spouse. But what if the prospective claimant does not meet the requirement of having cohabited with the deceased for at least three years? Other remedies are available but not always easy to obtain. Belvedere v. Brittain Estate, [2007] O.J. No. 3067, while under appeal, demonstrates a circumstance in which the Court was prepared to make a finding of a constructive trust in unusual circumstances. In this case, the Court imposed a constructive trust upon an RRSP for the benefit of the deceased's girlfriend ("the Plaintiff"). The Court applied the three criteria that it found necessary to create a constructive trust as follows:
1. Enrichment of the deceased -- the Plaintiff, as an employee of an airline, conferred benefits on the deceased in the manner of housekeeping, care of his child, sharing of her group health benefits and discounted airfares;
2.Corresponding Deprivation -- the Plaintiff was urged by the deceased to sell her car, home and furniture and forego career advancement in entering into a relationship with him. The Court also considered her emotional devastation at his untimely death as a component of her deprivation;
3. Absence of Juristic Reason --the Defendant estate could not establish any juristic reason for the deceased's enrichment.
Interestingly, the fact that the Plaintiff had not contributed towards the RRSP was apparently no deterrent to the Court in finding a constructive trust. The Court considered the consistent evidence that the deceased intended to look after the Plaintiff and the fact that, but for his death, the Plaintiff would have expected to marry the deceased two months later, in which case the marriage would have revoked the Will.
Until tomorrow, David
