45 St. Clair Ave. West, Suite 600
Toronto, Ontario, M4V 1K9
Tel: (416) 925-7400 Fax: (416) 925-7464

Equitable Remedies for Financial Abuse of the Elderly: Stewart v. Stewart

This blog post is part of six-part series with Professor Albert Oosterhoff examining the application of equitable remedies in instances of elder abuse. This post will discuss the case of Stewart v. Stewart,[1] in which the British Columbia Supreme Court applied the equitable doctrine of unjust enrichment to compensate the older adult, Ramona Stewart (“Ramona”), for the loss of the 50% interest in her home that she suffered as a result of the actions of her son and daughter-in-law, Gary and Bonny.

Ramona, Gary, and Bonny jointly acquired property as tenants in common, though they lived in separate dwellings on the property. Ramona held a half interest in the property, while Gary and Bonny held the other half interest. After her husband died, and one year after she prepared a power of attorney and will in 2003, Ramona transferred her half interest in the land to Gary and Bonny for no consideration, but continued to reside in her home until moving to an assisted living facility in 2009.

After the transfer of her interest, Ramona and her daughters, Loretta, Joan, and Karen, continued to pay a portion of the expenses related to the property. Ramona’s daughters were appointed joint committees[2] of their mother’s person and affairs in 2012, and after finding evidence that their mother was waiting for payment from Gary with respect to the transfer of her interest in the property, the committees brought an action for a declaration of trust and compensation.

The Court held that the transfer constituted unjust enrichment, as Ramona conferred the benefit with the expectation that Gary would compensate her when financially able. In order to prove the equitable doctrine of unjust enrichment, a claim must prove three elements:

  1. The defendant was enriched;
  2. The claimant suffered a corresponding deprivation; and
  3. There is no juristic reason for the enrichment.[3]

In instances of elder abuse, such as the within case, as older adults are highly vulnerable to financial abuse by those who care for them, especially where they have granted a Power of Attorney.

To remedy the financial abuse perpetrated by Gary and Bonny against Ramona, the Court awarded Ramona a sum equal to half of the appraised value of the land. The monetary remedy granted in this case – as opposed to a proprietary remedy –reflects the fact that Ramona was no longer living at the property, and needed funds to pay for her ongoing care. Notably, Gary and Bonny received an equitable set-off for the improvements they made to the property after their Ramona moved into the assisted living facility.

[1] 2014 BCSC 766.

[2] A “committee” is the British Columbia equivalent of a “guardian” under Ontario law.

[3] Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, rev’g 2009 BCCA 111, 2010 CarswellBC 241, aff’g 2007 BCSC 1863, 2009 CarswellBC 642. .

Previous Post:
Next Post:
Click here or on top Blog logo to return to Blog front page.

Search Blog by Keyword(s)

Site Search

Site Map