Ontario Civil



Defence of non est factum was sufficient to void transfer of property

Mother and father expanded property by purchasing adjacent property. Son lived in basement of home. Father and son enlarged workshop on expanded home property. Parents intended to give workshop to son someday. Father died and son took advantage of mother’s poor English and had her transfer expanded home property to him. Son subsequently transferred expanded home property to himself and mother as joint tenants. Mother brought action against son for order setting aside transfers and restoring her sole ownership of expanded home property. Action was allowed. Son brought counterclaim for beneficial interest in workshop or restitution. Counterclaim was dismissed because son did not come to court with clean hands and it was premature. Son appealed. Appeal dismissed. Trial judge correctly concluded that defence of non est factum was made out, which was sufficient to void transfer. Trial judge also found that transfer was obtained as result of undue influence, which was supported by evidence. Son lived in mother’s home, mother was recently widowed, English was not her first language, she had limited comprehension and reading ability in English and she did not receive independent legal advice. Trial judge did not err in analysis of counterclaim. There was no evidence that property increased in value as result of workshop addition.

Servello v. Servello (Jun. 16, 2015, Ont. C.A., R.G. Juriansz J.A., P. Lauwers J.A., and Grant Huscroft J.A., File No. CA C59361, M45103, M44845) Decision at 245 A.C.W.S. (3d) 330 was affirmed.  255 A.C.W.S. (3d) 337

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