Zacher v. Zacher, 2019 ONSC 1450 http://canlii.ca/t/hxsv9
Zacher v. Zacher, 2019 ONSC 1450 (CanLII), (March 4, 2019) is a decision arising out of a five day family law trial conducted in the fall of 2018. In what the trial judge described as a “sad case”, the court was asked to deal with the usual issues of property equalization, pension division and spousal support. What prompted the judge’s description was the fact both parties were in their eighties, had been married for over fifty years and had a very successful and prosperous life together. Unfortunately the husband was in the early stages of dementia and the symptoms of dementia appeared to have contributed to the decision to separate.
There are two items in the case that bear comment.
The claim of resulting trust made by the wife in respect of property in the name of the parties’ adult daughter. The court found that the parties purchased a home in Port Dover in 2003 and title was taken in the name of their adult daughter. Their daughter was disabled from birth and had always lived with her parents and was dependent upon them. When the Port Dover property was sold another home was purchased in St. Thomas and again title was taken in the name of the daughter. It was agreed that the daughter did not contribute any monies toward the purchase of either property and was not involved in the decision to purchase either property.
At the trial the husband took the position that the property in St. Thomas was a gift to their daughter and the wife argued that the property was held by the daughter for her parents in trust by operation of the doctrine of resulting trust as expressed by the Supreme Court of Canada in Pecore v. Pecore:
 The starting point for my analysis is that the gratuitous transfer of title to Nichola by her parents triggers the presumption of a resulting trust. In other words, the law presumes that the legal owner holds the property in trust for the beneficial owners who paid for it. The onus rests with Nichola, (the transferee), to demonstrate on a balance of probabilities that her parents (the transferors) intended to gift her the property. What is critical is the intention of Patricia and Robert at the time of the transfer: see Pecore v. Pecore, 2007 SCC 17 (CanLII) at paras. 24-25; and Holtby v. Draper, 2017 ONCA 932(CanLII) at para. 32.
 Essentially, I must look to the substance of the transfer and determine whether the parents intended to gift their daughter Nichola the property or intended to have her hold it for them in trust and retain beneficial ownership.
Extensive evidence was heard from all of the family members over the course of the five day trial. These cases are fact driven evidence based determinations that are extremely costly to litigate and devastatingly emotional for the family members.
Based on all of the evidence the court found that a gift was intended to provide security for the parties’ financially vulnerable daughter:
 I am convinced that but for the separation of Patricia and Robert, this matter would not have arisen. Instead, the applicant now regrets her earlier decision to convey legal ownership to Nichola and is trying to undo her earlier transfer.
Post-separation disputes involving intra-family property transfers are becoming increasingly reported in the case law. Clearly documenting the transaction or transfer at the time by way of a Deed of Gift or other agreement with independent legal advice (ILA) would provide greater certainty in the event of a subsequent family breakdown.
The second item of concern is the complete absence of any discussion regarding the husband’s legal capacity. Beyond noting the husband’s early stage dementia in the opening of the reasons there is no indication of any medical evidence, a capacity assessment or questions regarding the husband’s ability to understand the complex legal issues before the court.
Nevertheless the Court noted that the separation was precipitated by the husband’s erratic and agitated behaviour and noted the following impression of his testimony:
 Robert presented as a pleasant yet confused witness. At times, his evidence was focused yet at other times he appeared scattered and difficult to comprehend.
 Much of his examination-in-chief was done by way of leading questions and counsel for the applicant acted with immense respect and restraint in light of Robert’s obvious mental impairments.
 In short, beyond accepting that he has unconditional love and concern for the well-being of Nichola, it would be unsafe to place much weight on any of Robert’s testimony.
One wonders whether an early stage capacity assessment may have moved the file away from this traditional adversarial approach. In that regard I reference my February 20, 2019 Blog, Legal Capacity in Family Law Litigation: http://welpartners.com/blog/2019/02/legal-capacity-in-family-law-litigation/