In the decision of Clement v. Clement,[1] the Court considered a claim for unjust enrichment in circumstances where a brother financially contributed towards a Trust for the care and benefit of his sibling.
Background
Family
Louisa Pearl Clement (the “Deceased”) passed away on May 28, 2020. The Deceased was survived by her three children, Joyce Clement (“Joyce”), John Clement (“John”) and Richard Clement (“Richard”).[2]
John suffered from mental illness such that he was incapable of independently managing his property or personal care or otherwise able to have a stable career and income. This meant John was financially dependant on the Deceased.[3]
The Trust Agreement
In February 2002, the Deceased and Joyce executed a Trust Agreement, which provided for the shelter and care of John. Specifically, it contemplated that the Deceased’s property located at 1339 Barkway Road, Gravenhurst (the “Gravenhurst Property”) be used for John’s benefit for the duration of his life.[4]
The Trust Agreement stipulated that the Trustees, in their absolute and sole discretion, have the authority to sell the Gravenhurst Property and find an alternative property for John. This is with consideration to condition of the Property, the need for repairs, the value of the Property and general market conditions.[5]
Subsequent Events
In 2014, the Deceased moved into a care home. At this time, Richard began making financial contributions towards the upkeep and maintenance of the Gravenhurst Property such that John could continue living there in accordance with the Trust Agreement.[6]
On or about May 28, 2020, the Deceased passed away. Notwithstanding her passing, the Gravenhurst Property remained in the Deceased’s name during the period in which Richard was paying expenses. As Trustee and Estate Trustee of the Deceased’s Estate, Joyce did not make any contributions towards the Property.[7]
In or around 2023, John passed away. Richard subsequently contacted Joyce noting that he would track the expenses incurred towards the Gravenhurst Property. This was acknowledged by Joyce.[8]
In or around March 2024, the Gravenhurst Property was sold. At this time, Richard requested reimbursement from Joyce as Estate Trustee of the Deceased’s Estate. This claim was expressly denied.[9]
Accordingly, Richard brought a Statement of Claim for expenses incurred, asserting a constructive or resulting trust against the Gravenhurst Property. The matter in Clement, concerned a Summary Judgment motion brought by Joyce as the Defendant.[10]
Position of the Parties
Richard’s Position
Richard maintained that he was entitled to financial reimbursement.
Between approximately 2014 and 2023, Richard adduced evidence that he paid for common expenses directly related to the upkeep of the Gravenhurst Property, amounting to $62,213.77, and which can be broken down into the following subcategories:
(a) hydro: $18,385.92;
(b) furnace and propane: $11,600.93;
(c) property tax: $24,509.40;
(d) home insurance: $5,890.32; and
(e) miscellaneous expenses: $1,827.20.[11]
Richard further maintained that he did not intend to gift these expenses to the Deceased or John and expected to be reimbursed in full for the upkeep and maintenance of the Property.[12]
Joyce’s Position
As Estate Trustee of the Deceased’s Estate, Joyce took the position that the Trust Agreement created no obligation on the Trustee or the Estate to pay any expense pertaining to the Gravenhurst Property during John’s occupation. In this regard, there was no basis for Richard to claim recovery of purportedly gratuitous payments and maintenance made on behalf of his brother as against either the Estate or the Trust.[13]
To the extent that there was a viable claim by Richard, Joyce posits that it is for recovery against the Estate of John, since the expenses were John’s obligation to pay.[14]
In addition, the Joyce submitted that the relevant time period for claims against an estate are two years from the date of death. Accordingly, the claims advanced by Richard is statute-barred.[15]
Legal Principles and Analysis
Limitation Period
In Ontario, there is a general two (2) year limitation period to bring litigation pursuant to the Limitations Act, 2002.[16] Section 4 of that Act provides that:
Basic Limitation Period
-
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4. [emphasis added]
In the Ontario Court of Appeal decision of Ingram v. Kulynych Estate, 2024 ONCA 678 (CanLII) affirms that the relevant time period for claims against an estate are two years from the date of death as set out in the Trustee Act.[17] This was the position of the Defendant.[18]
The Court disagreed with the Defendant’s position. In particular, it pointed to section 4 of the Real Property Limitations Act (“RPLA”),[19] which provides as follows:
Limitation where the subject interested
4 No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it. R.S.O. 1990, c. L.15, s. 4. [emphasis added]
The Court noted that a claim for unjust enrichment in which the claimant seeks a remedial constructive trust in another’s property is “an action to recover any land” within the meaning of the Act. Accordingly, the RPLA applied and Richard was not statute-barred from bringing his unjust enrichment claim.[20] CITE.
Reimbursement
The Court agreed with Richard and made a finding that he is entitled to reimbursement. In this regard, the Trust Agreement contemplates that the Estate would provide accommodation for John during his life by ensuring he had a place to live (the Trust lands).
As Trustee, Joyce was responsible for keeping and managing the Property. In the Court’s view, her duties as Trustee would necessarily contemplate dealing with the maintenance and upkeep of the Property. Moreover, the Trust Agreement even contemplates the Property being sold if necessary to provide for such expenses. Accordingly, the Court dismissed the Defendant’s summary judgment motion.[21]
—
[1] Clement v. Clement, 2026 ONSC 4839 (“Clement”).
[2] Clement at paras 1 and 11.
[3] Clement at para 14.
[4] Clement at para 15 – 17.
[5] Clement at para 17(i).
[6] Clement at paras 20 – 22.
[7] Clement at para 24.
[8] Clement at para 23.
[9] Clement at para 24 – 25.
[10] Clement at para 26.
[11] Clement at para 22.
[12] Ibid.
[13] Clement at para 29.
[14] Clement at para 30.
[15] Clement at para 31.
[16] Limitations Act, 2022 c. 24. Sch B.
[17] See section 38(3) of the Trustee Act, RSO 1990, c T.23.
[18] Clement at para 31.
[19] Clement at para 35.
[20] Clement at para 35, citing McConnell v. Huxtable, 2014 ONCA 86.
[21] Clement at para 36.
Written by: Oliver O'Brien
Posted on: October 1, 2026
Categories: Commentary, Trusts
In the decision of Clement v. Clement,[1] the Court considered a claim for unjust enrichment in circumstances where a brother financially contributed towards a Trust for the care and benefit of his sibling.
Background
Family
Louisa Pearl Clement (the “Deceased”) passed away on May 28, 2020. The Deceased was survived by her three children, Joyce Clement (“Joyce”), John Clement (“John”) and Richard Clement (“Richard”).[2]
John suffered from mental illness such that he was incapable of independently managing his property or personal care or otherwise able to have a stable career and income. This meant John was financially dependant on the Deceased.[3]
The Trust Agreement
In February 2002, the Deceased and Joyce executed a Trust Agreement, which provided for the shelter and care of John. Specifically, it contemplated that the Deceased’s property located at 1339 Barkway Road, Gravenhurst (the “Gravenhurst Property”) be used for John’s benefit for the duration of his life.[4]
The Trust Agreement stipulated that the Trustees, in their absolute and sole discretion, have the authority to sell the Gravenhurst Property and find an alternative property for John. This is with consideration to condition of the Property, the need for repairs, the value of the Property and general market conditions.[5]
Subsequent Events
In 2014, the Deceased moved into a care home. At this time, Richard began making financial contributions towards the upkeep and maintenance of the Gravenhurst Property such that John could continue living there in accordance with the Trust Agreement.[6]
On or about May 28, 2020, the Deceased passed away. Notwithstanding her passing, the Gravenhurst Property remained in the Deceased’s name during the period in which Richard was paying expenses. As Trustee and Estate Trustee of the Deceased’s Estate, Joyce did not make any contributions towards the Property.[7]
In or around 2023, John passed away. Richard subsequently contacted Joyce noting that he would track the expenses incurred towards the Gravenhurst Property. This was acknowledged by Joyce.[8]
In or around March 2024, the Gravenhurst Property was sold. At this time, Richard requested reimbursement from Joyce as Estate Trustee of the Deceased’s Estate. This claim was expressly denied.[9]
Accordingly, Richard brought a Statement of Claim for expenses incurred, asserting a constructive or resulting trust against the Gravenhurst Property. The matter in Clement, concerned a Summary Judgment motion brought by Joyce as the Defendant.[10]
Position of the Parties
Richard’s Position
Richard maintained that he was entitled to financial reimbursement.
Between approximately 2014 and 2023, Richard adduced evidence that he paid for common expenses directly related to the upkeep of the Gravenhurst Property, amounting to $62,213.77, and which can be broken down into the following subcategories:
(a) hydro: $18,385.92;
(b) furnace and propane: $11,600.93;
(c) property tax: $24,509.40;
(d) home insurance: $5,890.32; and
(e) miscellaneous expenses: $1,827.20.[11]
Richard further maintained that he did not intend to gift these expenses to the Deceased or John and expected to be reimbursed in full for the upkeep and maintenance of the Property.[12]
Joyce’s Position
As Estate Trustee of the Deceased’s Estate, Joyce took the position that the Trust Agreement created no obligation on the Trustee or the Estate to pay any expense pertaining to the Gravenhurst Property during John’s occupation. In this regard, there was no basis for Richard to claim recovery of purportedly gratuitous payments and maintenance made on behalf of his brother as against either the Estate or the Trust.[13]
To the extent that there was a viable claim by Richard, Joyce posits that it is for recovery against the Estate of John, since the expenses were John’s obligation to pay.[14]
In addition, the Joyce submitted that the relevant time period for claims against an estate are two years from the date of death. Accordingly, the claims advanced by Richard is statute-barred.[15]
Legal Principles and Analysis
Limitation Period
In Ontario, there is a general two (2) year limitation period to bring litigation pursuant to the Limitations Act, 2002.[16] Section 4 of that Act provides that:
Basic Limitation Period
In the Ontario Court of Appeal decision of Ingram v. Kulynych Estate, 2024 ONCA 678 (CanLII) affirms that the relevant time period for claims against an estate are two years from the date of death as set out in the Trustee Act.[17] This was the position of the Defendant.[18]
The Court disagreed with the Defendant’s position. In particular, it pointed to section 4 of the Real Property Limitations Act (“RPLA”),[19] which provides as follows:
Limitation where the subject interested
4 No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it. R.S.O. 1990, c. L.15, s. 4. [emphasis added]
The Court noted that a claim for unjust enrichment in which the claimant seeks a remedial constructive trust in another’s property is “an action to recover any land” within the meaning of the Act. Accordingly, the RPLA applied and Richard was not statute-barred from bringing his unjust enrichment claim.[20] CITE.
Reimbursement
The Court agreed with Richard and made a finding that he is entitled to reimbursement. In this regard, the Trust Agreement contemplates that the Estate would provide accommodation for John during his life by ensuring he had a place to live (the Trust lands).
As Trustee, Joyce was responsible for keeping and managing the Property. In the Court’s view, her duties as Trustee would necessarily contemplate dealing with the maintenance and upkeep of the Property. Moreover, the Trust Agreement even contemplates the Property being sold if necessary to provide for such expenses. Accordingly, the Court dismissed the Defendant’s summary judgment motion.[21]
—
[1] Clement v. Clement, 2026 ONSC 4839 (“Clement”).
[2] Clement at paras 1 and 11.
[3] Clement at para 14.
[4] Clement at para 15 – 17.
[5] Clement at para 17(i).
[6] Clement at paras 20 – 22.
[7] Clement at para 24.
[8] Clement at para 23.
[9] Clement at para 24 – 25.
[10] Clement at para 26.
[11] Clement at para 22.
[12] Ibid.
[13] Clement at para 29.
[14] Clement at para 30.
[15] Clement at para 31.
[16] Limitations Act, 2022 c. 24. Sch B.
[17] See section 38(3) of the Trustee Act, RSO 1990, c T.23.
[18] Clement at para 31.
[19] Clement at para 35.
[20] Clement at para 35, citing McConnell v. Huxtable, 2014 ONCA 86.
[21] Clement at para 36.
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