Aboriginal Rights

In 2011, any land that was not voluntary seceded by the Indians to Canada, can be subject to an aboriginal title claim o Seceded land maintained by aboriginal people and not surrounded to the government by treaty. Aboriginal people have a continued right in this land. Controversy over aboriginal land rights claims o Land is fundamental to Aboriginal identity, and they believe they are placed on Earth to care of the land and the water and live in harmony with the land Sharp contrast to European concept of property o Aboriginals believe the treaties were to share land, but Europeans saw them as alienation of land o Aboriginal concept of ownership is not inconsistent with idea of sharing, and ownership is community based, and concept of ownership to a fee simple, and as such could not have given a fee simple estate since they didnt have that interest themselves to give away Federal policy in 2011 recognizes two types of land claims o 1) Specific claims Deals more with rights, and treaty breaches o 2) Comprehensive claims Deals with aboriginal title, and usually occur where there has been no treaty, or where a first nation group has not adhered to the treaty History o Canadian Government acted with the Royal Proclamation in 1763 This was to show good intention to Aboriginals about white settlement It has never been repealed, and it forms the principle basis for land claims in Canada, although it is not the sole claim any longer Central idea was to ensure that no aboriginal lands in America were taken by British subjects without consent by aboriginals Three main measures in the RP to ensure that no Indian land is taken without consent 1) Colonial govt are forbidden to settle on any un-seceded land 2) British settlers are not allowed to settle on Indian lands 3) Private individuals are not allowed to purchase Indian land o 1869 Indian Act enacted Two policy objectives 1) the Crown wanted to remove Indians from the path of settlement 2) to create a plan of civilization and assimilation to deal with the displaced aboriginal population o St. Catherines Milling & Lumber company v The Queen 1888 Judicial centrepiece of aboriginal rights and title until 1973 A value to us because of what they said about aboriginal title: There was aboriginal title to land, because of the existence of the RP Usufructuary (aboriginal term of usage) greater use than a licence Aboriginal title cannot be alienated except by surrender to the Crown Aboriginal title is not equal to a fee simple estate, but rather the title gives the people the right to occupy, and to use the land, hold it against third parties, but it is subordinate to the Crowns underlying title

Based on an interpretation of RP, and RP sole source of aboriginal rights Colder v BC, 1988 o Extremely important b/c it marks the first time the judiciary accepts Native notion of land and use o SCC split 3-3 if there was aboriginal title o 3 of the judges found that the Crown could unilaterally extinguish title and had done so in this case with the colonial land legislation o Created the law of extinguishment (English land law is used to destroy Aboriginal land title, but if they cannot use it, they will look elsewhere to destroy them, such as creating them) The law of extinguishment used to be a huge issue before Delgamuuk Guerin, SCC1984 o Court says clearly that aboriginal rights exist outside the royal proclamation, and b/c the Govt assumes sovereignty over Natives, they have a fiduciary duty to act in the best interests of the Natives at all times Comes out of connection with s. 35 of the Charter Chippewas of Sarnia, 2001, ON CA o The Crown had conveyed unseceeded land that the Chippewas had title in to Cameron by Crown patent in 1827 o Issue was what takes precedent: Crown root of title fee simple or aboriginal title? o Court said the grant was void, and of no effect, since the Chippewas had title to the property, but on equitable grounds, the Chippewas claim to the title was dismissed against the present owners of the fee simple, on the principle of a bona purchaser for value without notice. o Courts invoked the equitable jurisdiction of the court to find in favour of the fee simple title owner Delgamuuk, 1997, SCC o The most current word on the sources of aboriginal title, the content of aboriginal title, the operation of s. 25 of the Constitution Act, and how to prove aboriginal title o Aboriginal title is sui generis as it cannot be explained by common law or the rules of property found in Aboriginal legal systems They cant have fee simple, since they dont own it, the Creator owns it o Aboriginal titles source is outside of the Royal Proclamation, because of prior occupation of Canada by aboriginal people 1) Aboriginal people had physical occupation, and under common law, that occupation is proof of ownership 2) Occupation by Aboriginal people also arises from pre-existing systems of aboriginal law o Aboriginal title can be reduced to 2 propositions: Aboriginal title is the right to use and occupy the land for a variety of purposes that need not be aboriginal practices, customs, and traditions Reason for deciding this way: o Canadian jurisprudence o Definition of reserve land o Indian Oil and Gas act The protected uses on the land must not be irreconcilable with the nature of the groups attachment to that land (Apparent limitation)

This comes from their title being a sui generis, and that based on prior existing aboriginal legal systems R v Bernard; R v Marshall, 2005, SCC o Unlawful possession of spruce logs taken from Crown o In both cases, they were natives, and argued their actions were legal o At SCC, Bernard was acquitted, and a new trial was ordered for Marshall o Court must look at pre-sovereignty practice and translate it into a Modern Right o Occupation means physical occupation, and may be established in a variety of ways, from the construction of dwellings, to cultivation, to regular use o Exclusive means the intention and capacity to retain exclusive control, and is not negated by occasional acts of trespass or presence of other aboriginal groups by consent The claimant group must demonstrate effect control by which a reasonable inference can be drawn that it could have excluded others had it chosen to Duty to consult that arises from Delgamuuk is one of the most important things to come from it o Duty is more than consultation of the Aboriginal people o In some cases, their consent is needed o The determining question is what is required to keep the honour of the crown, and to honour the duty to consult with the aboriginal people Haida Nation v British Columbia (Minister of Forests), 2004, SCC o The SCC found that the government had a duty to consult because the natives had made a claim to title o The Crown is required to give written reasons in regards to the concerns of the aboriginal people, and in cases where the right or title has already been established, they need to get approval o Duty to consult arises when the crown has knowledge, real or constructive, of the potential existence of aboriginal right or title and contemplates conduct that might adversely affect it. Good faith is required on both side. Very low threshold test The test for aboriginal title (from Delgamuuk): o 3 prong test 1) the land must be occupied prior to sovereignty Can be hard to prove 2) can prove by present occupation, along with continuity between present and pre-occupation 3) at sovereignty, occupation must be exclusive What does occupation mean? What does exclusive mean? o See Bernard and Marshall for exclusive and occupation The test for infringement o 2 prong test (from Delgamuuk) 1) if the aboriginal claimants feel their title is being infringed, they need to show that it is being infringed 2) The Govt needs to justify their infringement, and need to show a valid legislative objective

Gifts and Trusts A gift is a voluntary and intentional transfer of property from the title-holder to another person without consideration o Title-holder = donor o Another person = donee - Testamentary Gifts o Covered by the Wills Act o A gift made in contemplation of the donors certain death o It is made through a will where the donor expresses in words the giving of property to persons on the donors death and on the donors death, they become known as the testator or the testatrix - DMC (Donatia Mortus Causes) o Made not in contemplation of death, but rather in expectation or apprehended peril o They have elements of both an Inter Vivos gift and a testamentary gift o Gift is not effective until the death, and the donor can take back the gift before the death o If the act that the donor expects to arise to cause his death passes, the gift is assumed to be incomplete o If the donor dies of a different method than the specific apprehended peril, there is a debate if the gift should be given or not - Inter Vivos Gifts o It is a gift from one living person to another living person that has the effect of transferring legal title o They are without consideration - Three elements of a perfectly constituted gift o 1) Donor must have the intention to donate Donor has to be have appropriate mental capacity Usually the Court looks for words of present gift and until 2003, Courts in all cases looked for these o 2) Donee must accept the gift o 3) there must be a sufficient act of delivery - The gift has to be literally given away - Policy reasons for requirement of sufficient act of delivery o The courts want to ensure that the donor clearly intended to make the gift, but often times when issues arise, the donor has died o The courts want to protect the donors property because of the importance the court places on private ownership against wrongdoers o Allows donors to reflect if they really want to make the gift, allows them to change their mind without legal consequences Third Criteria: Sufficient act of Delivery - Donor must divest control or he has done everything to divest title in the donee - Actual physical delivery is required - Three ways to satisfy o Physical delivery -

o Constructive delivery o Symbolic delivery (only one case successful under this method) - Cochrane v Moore, 1890, English Court of Appeal o Moore, defendant, claimed a interest in Kilworth, a horse o In the case, the Court says that with respect to this oral promise to Moore, there was a finding of fact that words of present gift exist o Court of Appeal said they were wrong, and delivery is required. In this case, there was not sufficient delivery and they quote the old case of Irons and Smallpiece Irons and Smallpiece says there must be actual delivery of the property to the donee o The court found for Moore despite this, on the basis that they found a trust There was an oral express trust, and that trust was created at the time that Benzon and Cochrane were in negotiation for the sale of the horses, when he said that should be all right Cochrane had an equitable duty to the beneficiary Moore and that duty was enforceable against subsequent purchasers with notice o This shows that you dont need delivery, and courts can stretch to find a trust - Courts were reluctant to accept anything short of actual physical delivery, but subsequently Courts began to consider constructive delivery of personal property in cases where the chattel was too large to be transferred, or if it was difficult to transfer Express Trust - Three certainties to create an express trust o 1) there has to an intention to create the trust o 2) There has to be an identification of the subject matter of the trust (beneficiary of the trust) o 3) There has to be an identification of the objects of the trust - Difference between express trust and gift, there is no requirement of exact wording that must be used to create that trust (as difference of present words of gifting for gifts) Watt v Watt Estate - Thunderbird Case - Plaintiff helped a Marine owner out and built the Thunderbird together - Legal title to the boat was in the name of the Marine owner & title was registered - However, the Marine owner had a log book that showed that the Mariana and the Plaintiff were co-owners of the Thunderbird, in addition, the Plaintiff and the Mariana owner each had a set of keys and each used the boat - Not a gift, but example of express trust Bauuernschmidt, 1903 decision - Donor put a gift in a safety deposit box and gave the duplicate key to the donee - Determine that there was No gift, since the donor still had a duplicate key, and therefore hadn`t relinquished control Thomas v Louis, 1892 - Donor`s safety box had $185,000 in securities - Donor gave the only copy of the key to the donee, and said you have can have anything in the box and there it was a gift Re Cole, 1964

Guy goes bankrupt, and a trustee is appointed, and the trustee has to dispose/sell his property and pay off his creditors - The trustee makes a motion to include certain pieces of furniture from his home which he shares with his wife - The wifes argument was that the furniture was gifted to her when she joined him at their new home. The husband bought the home without her, he brought her to a room in the house, covered her eyes, uncovered them, and they went through all the rooms, and he said Its all yours - The court finds it was not a gift in this case - Where a wife lives with her husband, that is owned and furnished by him, she has use of the furniture only, because the wife is like a servant - Raises the question: How can delivery be successful when people live together and property is shared? o Answer: If youre making a gift, and you to ensure the gift is made, you probably need a deed of title First Criteria: Donor must have intent - The onus of proof o When the donor is dead, they set a very high onus of proof o In Ontario, s. 13 of the Evidence Act, tells us that all evidence must be collaborated with other material evidence - Dylan Thomas o He lost the manuscript, and Cleverdon brings him copies of the manuscript, and he tells Cleverdon that if he finds the manuscript, he can keep it o Cleverdon sold it to the bookstore, and the widow is challenging this chain of ownership, as she claims Cleverdon never had proper title o What does this tell us about intention? Three key things 1) The onus is on the person who is making the claim of a gift to show all three requirements on a balance of propabilities 2) the circumstances of the donor, the relationship between donor/donee, size and percentage of the donors title property 3) Will look for words of present gifting o In this case, it was if you can find it, you can keep it - Donor must have capacity to form the intention to make the gift - The gift has to be a spontaneous act of the donor acting under circumstances that enable her/him to exercise an independent will, and the Court has to be satisfied that the gift is a free exercise of the donors will - Csada v Csada o He argued that his brother had influence undue influence, and as such, he did not spontaneously freely give the gift o This was a class-2 case of undue influence, which arose because at the time of the gift, the P, donor, was mentally weak, vulnerable, and highly susceptible to pressure from a dominating force o The donee was a domineering person, and was giving his brother advice and also persuading him

o The way in which the brother influenced undue influence was constant complaints about current living standards and not having received any land from their father Equitable doctrine of undue influence o Not related to mental capacity o When ones thoughts are overborne by the presence of another, the mental requirement to make the gift is not present o If a person who receives a gift is in the position to exert undue influence over the donor and stands in a fiduciary or confidential relationship to the donor, a presumption of undue influence is raise Once raise, the donee has the onus of rebutting the presumption Undue influence is a species of frauds Two classes o 1st class express undue influence or wrong doing cases Easiest to prove Include: threatening an individual in various forms, or abuse o 2nd class non-wrong doing cases Really hard to proof Influence is often very subtle, but transcends persuasion and amounts to pressure this is what needs to be shown Test for undue influence: o Has donor has placed confidence in the donee and is the donor dependent on the donee? o Has the donee provided advice and extended persuasion over the donor?

Trusts - Equity will not perfect an imperfect gift - Exemption to this: o Strong v Bird, 1874 If an individual expresses an intention to make a gift during his lifetime and then appoints the donee as the executor of the will, even though there is no delivery of the gift, is it perfect, because they have been named the estate trustee - Resulting Trusts and Constructive trusts o Resulting = must show a common interest to share, but not required for constructive trust - Resulting trust o Give property but no intention to give a gift o Recipient holds the property on trust for the individual who transferred the property to them o Common intention to share - Constructive trust o When court feels that equity/good conscience require the implication of a trust o The courts have ordered constructive trusts where a person who does not have title to the property has made a significant contribution to obtaining or maintaining the property. o The non-title holder has unjustly enriched the title holder. o Is used all the time in the cohabitating couple situation

Concurrent Interests In common law there were four forms of concurrent interests o 1) Joint tenancy o 2) Tenancy in common o 3) Tenancy by the entireties (see notes) o 4) co-parcenary (see notes) - Joint tenancy and Tenancy in Common o Both have unity in possession and concurrent right to possession o The co-owners are entitled to possession of the whole property, but not to possession to any part exclusively o A right to survivorship is present in a joint tenancy, but not in a tenancy in common - A right to survivorship: When one of the co-owners dies, their interest is extinguished and the interest of the surviving owners are enlarged - S. 13 of the Conveyancing Act o Only applies to land o Where land is granted, devised to two or more persons, other than executors or trustees, these persons take as tenants in common and not as joint tenants unless an intention sufficiently appears on the face of the letters patent, assurance, or will that they are to take as joint tenants - With respect to personality (personal property), when it is not clear to what the tenancy, the law assumes a joint tenancy - A tenancy in common has just one unity of possession - To create a joint tenancy PITTS (four unities plus s. 13) o 1) Possession o 2) Interest Each concurrent interest holder has an interest that is the same with respect to the extent of the interest, and the duration of the interest o 3) Title Concurrent owner must get their interest from the same instrument o 4) Time Each concurrent interest must vest in possession at the same time o 5) Section 13 No joint tenancy unless sufficiently stated - Words like share and share alike, to be divided among/between, equally amongst them and equally are words of severance, which forms a tenancy in common Cases that deal with language: McEwen v Ewers and Ferguson - Issue: interpretation of the language was the intention of the father to create a joint tenancy or a tenancy in common? - The lawyers for Janet argued that the word jointly as it was used could stand alone and it was clear that it was the intention to create a joint tenancy o Court said no, the word cannot stand alone, and when read jointly with the rest, a problem arose with equal shares -

- The terminology of equal shares shows an intention to create a tenancy in common Winchester and McCullogh, 2000 - A will left the residue of the estate to three children jointly in equal shares and also said that if any child predeceased their mother, then the residue was to become the property of the childs successors - Court found this was a tenancy in common since there was a references to share, which breaks the unity of interest Sellon v Huston Estate - Interpretation of a Will, and the issue was whether or not a joint tenancy with a right to survivorship was created by the use of the word jointly - The unique aspect of this case is that the will was made from a will stationery store form (not prepared by lawyer), and because there was no lawyer involved, the court decided that she would not have intended to use the word jointly in a legal sense, and created a tenancy in common Joint Tenancy Severance - Joint Tenancy severance results in a tenancy in common - Three ways of severing a joint tenancy (Williams v Hensman, 1861) o 1) unilateral act o 2) mutual agreement o 3) course of dealings - The second and third means of severance require a common intention. They differ in that a mutual agreement relies on an actual agreement (an expressed intention). In the third case, the intention is inferred from the partys actions o On the EXAM, you would always argue both, since the law between them is not clear. Even when there appears to be a mutual agreement, also argue course of dealings in the alternative - The unilateral act o It is clear that a unilateral act by a joint tenant can operate to severe a joint tenancy, and this can happen in one of three ways 1) Through a conveyance to another joint tenant 2) Through a conveyance to a third party 3) Through a conveyance to oneself - Situation for first method: o Three joint tenants (A, B, C) with 1/3 share each o A transfers the 1/3 share to B, and A has nothing, and this 1/3 share is owned by B as a tenancy in common with C. Bs original 1/3 interest remains the same. o B now dies. Bs original 1/3 share goes to C, but the 1/3 share he bought from A goes to his estate. - Situation for second method: o Three joint tenants A, B, C o C trades his interest to D (third party) o C retains a 1/6 of an interest, and D has a 1/6 of an interest o Cs interest has been severed, and created a tenant in common with D, A and B o What happens if A dies?

Bs tenancy will enlarge by absorbing As share, since he is the only remaining member of the joint tenancy. Cs actions do not impact A and Bs joint tenancy o If C dies, Cs 1/6 interest goes to his/her estate. - Third method (conveyance to oneself) o Most problematic method. 1) Unilateral Act Murdoch v Barry, 1975 - Husband and wife shared land as joint tenants - Wife, Patricia, conveyed the land to herself, and the lawyer also contained in the deed that it was intended to sever the joint tenancy - She died, and left all her property to her sister Catherine - The issue was whether or not Patricia severed the joint tenancy by destroying the unity of title when she executed and registered the deed - Court found that the tenancy was severed upon execution/registration of the deed - The case is good because it outlines what the common law was o The common law did not allow severance of a joint tenancy in this way o S. 42 of the conveyancing and property act does allow it o It is a statutory allowed in the province of Ontario Knowlton v Bartlett, 1984, NB QB Fam. Divison - In 1977, they got a divorce, and it said that Bartlett was to pay his ex-wife $3,000 and she would convey her interest in the property to him - Bartlett tried to complete this deal, but the ex-wife did not want to deal with him, so it was never paid, the deal was never completed - The ex-wife executed a deed to herself in regards to the property, and then wrote a will naming her brother Knowlton as the sole beneficiary - Issue: was the joint tenancy severed by Mrs. Bartletts execution to herself? o Yes, it was Both these cases are decided before The family law act (1980s) - How the family law act might effect a unilateral conveyance to oneself: o S. 21 There is a prohibition against dispositions (alienation of an interest) of family property, especially the matrimonial home, without the consent of the other spouse o The lawyers are saying that if its family property, and including the family home, that is held in joint tenancy, does s. 21 preclude a severance by one spouse without the consent of the other? Went to the Court of Appeal in two cases Re Lamanna and Lamana (1983) Horne v Horne Estate (1987) Both cases found that this did NOT constitute a disposition, and therefore consent was not required Eansor does not believe the cases are properly decided The terminology disposition is used under the legal income tax, and the family law act uses the same language. For tax purposes, this includes a severance for joint tenancy, so why shouldnt it for family law purposes?

2) Mutual Agreement Robichauld v Watson - Robichaulds mom, who was his heir, made an application that the joint tenancy had been severed and that they were tenants in common - The court examined the negotiations to determine if there was a mutual agreement to sever, and they said there was based on the information before them. They had gotten to the point where they regarded themselves as tenants in common - Test: Whether there was a course of dealing sufficient to show a mutual intent? Morgan v Davis - Husband dies, and the court found that the wife took everything by survivorship - In this case, the husband had willed away his interest, but the fact that he had done so, had no fact, since you cannot unilaterally sever a joint tenancy in a will 3) Course of dealing - In course of dealing cases, courts say that it is sufficient to infer that the intention of all the parties was to treat the tenancy as at tenancy in common - In these cases, there doesnt have to be any type of agreement at all, but there has to be some sort of action that shows they intended to act as tenancy in common - Robichauld is citied as this type as well Kissick Estate v Kissick, 1999 - Couple divorced - Wife took the matrimonial home, and husband lived in the cottage for 20 years - After his death, his family applied for share of cottage, but court found that it was a joint tenancy, and that no course of dealings took place - It was argued that there was a course of dealing since they each had sole possession, but the court said that this was not enough to sever tenancy The Partition Act - Under this, there is a prima facie for a co-owner to apply for partition or sale unless the party who is resisting the sale can show malicious, vexatious or oppressive conduct on the part of the person wanting the sale o Very high threshold - The court has very limited discretion to deny an application - If the application has to do with matrimonial property o 1) Courts are very reluctant to order sale/partition if hardship will result o 2) if there are ongoing separation/divorce proceeding, the application will be stayed until the proceedings are dealt with (Silva v Silva, 1990) Knowlton v Bartlett - Court finds that the property cannot be partitioned or be sold due to the hardship placed on Bartlett as he has lived there his whole life - Principle that arise: o 1) under the act, the court will look first to determine whether the property can be portioned, and only if it cannot be portioned will they order a sale Cook v Johnston, 1970 - Own an island jointly - One party had built a cottage on the property, and the other had used the island for holidays but slept in a tent - Cook, the cottage owner, applied for a partition of the island

Since it was big enough to share, could be partitioned Did not want to force a sale, since the island was unique and could probably not be replaced Family Law Act (Ontario Legislation, March 4, 1986) - Four themes o 1) the special principals that are applicable to property relationships in the family context, and the way in which the common law of ownership has been statutory altered by the act o 2) Ask ourselves what the history of the developments in the property area tell us about the relationship between courts and legislatures, and timeliness and effectiveness of statutory reform? o 3) Why some family relationships are captured by the act, and others not? o 4) How the law has responded to family relations that are not captured by the act? - The intention of the Family Law Act is to ensure that the value of all assets acquired by either or both parties by virtue of the marriage partnership will be shared equally upon the marriage breakdown - Section 4 and 5 provide that the value of all property accumulated during a marriage, as opposed to the property itself, is to be shared equally on marriage breakdown through a process that is called equalization - Two questions: o 1) Under the family law act what constitutes property? S 4(1) sets out a definition of property It is a very broad definition, it includes interests that are vested and it also includes contingent rights to future payments that do not require the future personal effort of the individual Discussion on professional degrees (see notes) o 2) The role of resulting/constructive trusts Murdoch v Murdoch, 1975, - Married for 25 years, and carried on a Ranch - All property was in husbands name - Wife provided physical labour, but no financial contribution - The claim is denied by the majority who found that her contributions were work done by any ranch wife - Since the property were not a matrimonial home, the court did not find a resulting trust - Since Murdoch the court will look at other contributions besides financial ones, but they must be to the matrimonial home, or if not, to properties where there is an expressed or implied intention to share the property Common Intention Resulting Trust - Equity will recognize a resulting trust in family property situations where property is held in the name of one of the parties, and it can be shown that the parties expressly or impliedly shared an intention that that property was to be shared by both parties - Note: This is going to arise in situations where the property is titled in one only one of the parties (not where tilted in both parties names) - Equity says the non-title spouse should acquire some proprietary right if they have contributed to the acquisition, to the preservation, or to the enhancement of the property - These cases have been largely unsuccessful

Pettkus v Becker, 1980, SCC - Mr. Pettkus and Mrs. Becker lived together from 1955 to 1974, and had a successful bee business. Never married, though Pettkus referred to her as his wife - She sought a declaration to one-half interest in the lands and a shared in the bee-keeping business - At SCC, 4 of the judges said that Mrs. Becker had made direct and indirect financial contributions to the properties and to the business b/c she had supported him with her income, and 4 would have found a resulting trust. However, the majority of the judges did not disturb the finding of fact of the trial judge who had determined that there was no implied or expressed intention to share. - The SCC found a constructive trust Constructive Trust - Equity imposes, or impresses a trust, on a property in appropriate circumstances where there is no intention to create a trust constructive trust - The overarching concept behind them is that the title party has been unjustly enriched by the actions of the other party - A constructive trust occurs when: o 1) unjust enrichment Its not enough that the non-title spouse has provided a benefit. The title spouse has to be unjustly enriched by that benefit. In this case, there was unjust enrichment b/c Pettkus had the benefit of 19 years of direct and indirect financial support from Becker o 2) corresponding deprivation Becker received little, or nothing, in return o 3) absence of juristic reason for the enrichment Onus to show no previously recognized juristic reason to deny coverage Juristic reasons: Gifting services, under a contract, Once claim has been made, defendant has onus to prove justification of the unjust enrichment - Requirement for a causal connection between the contribution to the property o For unjust enrichment to apply, there has to be a correlation between the acquiring of the property and the corresponding deprivation o The law has expanded to included, not just acquiring, but also maintenance and preservation of the property - Court can make one of two order o 1) Value-surviving basis order They order a title interest in the property to the non-titled party Court requires the person with legal title to the property to hold the beneficial interest in the property as a trustee for the non-title spouse This is not necessarily a half-interest, and will depend on the facts of the case Constructive trustee (title party) must account for the improper profit/benefit to the beneficiary (non-title party) in dollar terms - The importance of distinguishing between these two can hardly be over-estimated, and as the sad sequel to Pettikus v Becker indicates

o If the order is for money from the trustee who subsequently becomes bankrupt rather than an interest in the property itself is left as a creditor Peter v Beblow, 1993, SCC - Issue was how much domestic work could be regarded towards a constructive trust - The appellant cooked, cleaned, washed, gardened, painted, built a pig shed, and she kept chickens. She chopped wood, made kindling and shovelled all the snow. - Importance: up to his point in time, child care and household services had not been recognized for the purposes of contributions and the SCC was clear that child care and household services were worth of recognition by the courts and determined that in this case, the elements of a constructive trust were present Resulting Trusts between married individuals Pecore v Percore, 2007 SCC - In cases where property is purchased by one spouse and put in the name of another spouse, or in cases where a mom or dad purchases property and puts it in the name of an adult child, a presumption of a resulting trust arises o The title spouse or the title adult child is a trustee holding the property on behalf of the non-title spouse/parent (purchaser) - The presumption of a resulting trust can be rebutted o The usual rebuttal is that the property was a gift