This Blog was written by: Gosha Sekhon, LLB
A not uncommon occurrence these days finds single adult children residing with an elderly, surviving parent. The parent, more often than not, requires some assistance with their health care, household tasks and the management of their financial affairs. Usually the co-habiting child is single, divorced, widowed and also finds himself or herself in a position where they are the only sibling willing and/or able to take on the responsibility of caring for the parent on a consistent basis.
In the course of the relationship the parent may come to make insinuations, or possibly outright promises, to leave certain financial holdings or even their primary residence, to the child that is caring for them on a regular basis. The child, in turn, may develop expectations as to consideration for the value of the care they are providing. There may not be an expectation of immediate remuneration, but rather an expectation that there will be an eventual recognition of their contributions in caring for the parent through a larger share of the parent’s estate.
Some of these factors came to the forefront in the recent case of Granger v. Granger (Ont. C.A.) in which the Court made a determination on the issue of unjust enrichment. The Plaintiff in this decision was the son of one of the Defendants and presented the following facts to the court:
- He had lived with and cared for his mother for the past 30 years;
- He had done so on the alleged promise from his mother that she would leave him her primary residence.
The trouble was that the mother had given power of attorney for property to her other child, her daughter, who then proceeded to transfer the ownership of the home into her mother’s and her own name as joint tenants.
On appeal, the Plaintiff successfully established that unjust enrichment had occurred because:
- He conferred a benefit on his mother of his personal services;
- He suffered a corresponding detriment for so doing;
- There was no juristic reason for the enrichment which had occurred.
I commend the summary in the recent Ontario Reports for the particular details of the situation. The issue with these increasing prevalent living arrangements between adult children and elderly parents is this: will it require formalized documentation of services provided, promises made, expectations established? It may be that we will see an increasing need for more formalities and less of “taking things for granted” as time goes on in some of the most intimate relationships of our lives.