Court File and Parties
Court File No.: CV-24-00000546 Date: 2025-09-02 Superior Court of Justice – Ontario
Re: Marielle Di Turi, Applicant -and- Dylan Di Turi-Seemann, Respondent
AND
Dylan Di Turi-Seemann and Melissa O'Donnell, Applicants by Counterapplication -and- Marielle Di Turi, Respondent by Counterapplication
Before: Justice Spencer Nicholson
Counsel: M. Paul Morrissey and Cloe Gonyou for Marielle Di Turi Nolan Wilson for Dylan Di Turi-Seemann and Melissa O'Donnell
Heard: January 20, 21 and 22, 2025
Reasons for Judgment
Introduction
1This application and counterapplication proceeded as an action and a short trial was conducted. Throughout these Reasons, I will be referring to the parties by their first names. I intend no disrespect by doing so.
Background
2This unfortunate dispute is between a mother, Marielle Di Turi, and her only child, her son Dylan Di Turi-Seeman.
3Dylan is married to Melissa O'Donnell.
4Marielle, Dylan and Melissa decided to purchase a home together in the spring of 2021. Marielle sold the home in which she had been living with her sister and the proceeds from that sale were used to purchase the new home. The new home was purchased for $860,000.
5Marielle paid for the $42,000 deposit and used $325,000 from the sale of her home to buy the new home. The remaining portion of the purchase price was financed by means of a $535,000 mortgage. It is agreed that at the time of closing, Marielle paid an additional $15,347.64 in respect of title insurance, land transfer tax, land registry fees, their share of 2021 common expenses and solicitor's fees and disbursements. Marielle's contribution to the purchase of the property at the time of closing was $340,347.64, including the deposit. Marielle also took out a bridge financing loan because the new home closed before she sold her existing home. With the costs of the bridge financing, Marielle's total contribution was $343,347.64.
6Dylan and Melissa did not contribute any amount of the funds payable on closing.
7After the purchase of the home, all of the expenses were paid out of a joint account maintained by the parties. It is agreed that each of them paid approximately 1/3 of the household expenses.
8Title to the new home was put in the name of Marielle and Dylan, as joint tenants.
9Not long after the parties moved into the home there was conflict between Marielle and the young couple. Marielle moved out on two occasions. The first time was from October 6, 2022 to February 14, 2023 and then again in May of 2023. Each time, she returned to live with her sister. Marielle continued to contribute to the expenses after she moved out.
10The parties agreed to sell the home and it was sold on August 31, 2023 for the sum of $945,000. The net proceeds were $380,127.73. Those proceeds are currently being held in trust pending the resolution of this case.
11The sole issue for determination is who gets the proceeds of sale.
12It is the position of Marielle that she is entitled to the sum of $343,347.64, representing her initial contribution and the remainder of the proceeds should be split three ways. She argues that the doctrine of purchase money resulting trust applies and the presumption is that this was not a gift. It is her position that Dylan and Melissa bear the onus of rebutting the presumption. She also had relied upon unjust enrichment claiming that it would be inequitable if Dylan and Melissa receive a windfall. However, it was agreed by all parties that the case came down to whether the downpayment was a "gift" or not. If it was a gift, then there would have been juristic reason and the enrichment would not have been "unjust".
13Dylan and Melissa argue that there were negotiations preceding the purchase between Dylan and Marielle and that she made it clear that the funds were a gift. Dylan and Melissa argue that they were induced to contribute to the expenses in the belief that this was an investment and they would share in the proceeds if the property was sold. It is their position that Marielle had a change of heart as a result of the conflict between them in the home.
Evidence at Trial
14The court heard viva voce evidence of Marielle, Dylan and Melissa. There was also an Agreed Statement of Facts. The parties had tendered affidavits originally as part of the application and counterapplication and relied upon those in addition to the oral testimony. The parties filed a joint document brief as well.
15Marielle was born on November 22, 1952 and is 72 years of age. She was 68 years of age when the parties first discussed living together. She had been living in a home that she co-owned with her sister.
16Marielle testified that she retired in August of 2022 from her employment as a legal assistant, a position she held for approximately 25 years.
17Marielle testified that in 2020, she had bilateral carpal tunnel syndrome and was thinking of retiring. It was put to her on cross-examination that she had a number of medical problems in addition to the carpal tunnel syndrome, which she denied. However, she did admit, only on cross-examination, that she became sick in November of 2021 and was diagnosed with Lupus in January of 2023.
18She and her sister considered selling their property and buying a smaller home together. She had lived with her sister for 32 years. Dylan had grown up in that home, his father having left the family when he was only 18 months old.
19In 2020, Dylan and Melissa were living together in a rented one bedroom apartment. Melissa was expecting their first child in May of 2021. Dylan and Melissa were both employed by the Bank of Montreal.
20Dylan testified that he and Melissa were in no hurry to move even though she was pregnant because their apartment was big enough in the short term for them and their baby. He also testified that the landlord had a larger, two bedroom apartment that was offered to them.
21Both Marielle and Dylan testified about a discussion around Christmas time in 2020. Marielle testified that Dylan wanted her to sell the house and buy a home for the three of them to live in with their newborn child. She testified that she did not agree to this proposal. She felt too rushed to sell her home because the baby was due so soon. She also needed to discuss the issue with her sister.
22According to Marielle, she offered to give Dylan and Melissa money as a gift, although the amount of the gift was never specifically discussed. She testified that she was thinking of giving them approximately $20,000, which was available to her in her TFSA. She denied telling them the amount that she was considering. She did not put any stipulations on how they could spend the gift. According to her, had Dylan accepted this proposal, she would not have been required to sell her existing home.
23According to Marielle, Dylan did not accept this plan and was very insistent about the three of them buying a home and living there together.
24Marielle testified that they did subsequently agree that she would sell her home and use the proceeds to purchase a home. She maintains that there was no discussion about this being a gift and she had no intention of making this a gift. These funds represented a significant portion of her retirement funds.
25Marielle testified that it was her intention that if she died, Dylan would receive the property. Accordingly, they were joint tenants. Since he is her only son, Dylan stood to inherit all of her property in any event.
26It was put to Marielle on cross-examination that there is no documentation confirming that her initial offer was a gift of approximately $20,000. When she was cross-examined on her affidavit, she had indicated that it was for something in the "$20,000s". Further, it was put to her on cross-examination that she told him the downpayment was an "investment" and that he would share over and above his initial contribution. She denied telling Dylan that.
27On cross-examination, Marielle admitted that she was enthusiastic about the prospect of living with her grandchild. There is a longstanding tradition in her family of living with extended family. However, in her affidavit, she described "relenting" and agreeing to pay the down payment, that she "entered into the arrangement unhappily" and that she felt "rushed and pressured".
28Dylan testified that he and Melissa told Marielle they were expecting a child at Christmas time. Marielle was very happy. He wanted their child to have his grandmother in the home like he had. According to Dylan, Marielle suggested that they could move in together or she could put a downpayment on for them. It was agreed that she would pay the downpayment and he and Melissa would cover the mortgage and Marielle would pay all the other bills.
29Dylan testified that Melissa was part of the discussion as well. However, Melissa testified that the discussions were mostly between Dylan and Marielle. She did understand that Marielle had given them two options. One was cash for a downpayment and the other was co-ownership and living together.
30Melissa testified that she had also grown up with her grandmother in her household and was happy with the idea of Marielle living with them.
31Dylan testified that their conversation about the plan "evolved". They were all open to living together. He described that his mother told him to "think of it as an investment" and he understood that to mean that he would be able to re-coup his investment if they re-sold the home. She never told him that it was only her investment.
32Dylan returned to the evolution of the situation during cross-examination. He testified that they stopped talking about the $20,000 gift immediately and began to discuss moving in together. Dylan recalled a second conversation that occurred in February of 2021, around Family Day. They were reminiscing about their fond memories of when he grew up. This was around the time that the plan to move in together solidified. He agreed that Marielle never told them it was a gift during that discussion. However, he did testify that the fact that she was graciously willing to given them the downpayment meant that it should be considered a gift.
33Dylan did admit that his mother never called the downpayment a "gift". However, in his view improving her grandson's situation was a gift.
34Dylan acknowledged that the parties had no agreement as to what would happen if the living arrangement did not work out. He stated that there was no reason to think about that at the time because they were all happy about the idea of living together. Melissa also testified that she never thought about what would happen if the house got sold. She did offer that splitting the proceeds 50-50 with Marielle was a "fair" result. However, she did not contemplate this result when they agreed to live together as no one had turned their mind to it not working out.
35The parties did not go into the specifics of why their relationship broke down, nor was that evidence necessary. However, there was a physical altercation and the police were summonsed to the home.
36Dylan and Marielle had a telephone conversation that he recorded unbeknownst to Marielle. That conversation was on June 6, 2023 after the dispute over the funds had already manifested itself and they each talked about getting lawyers. I disapprove of Dylan taping his telephone conversation with his mother without her knowledge. The only purpose of such a tape-recorded call would be to trap his mother into some sort of admission. I note that she repeatedly told him that she had her own lawyer. I interpreted some of his comments about the funds being held up as threatening, although not of bodily harm. Taping this conversation, in my view, reflected negatively on Dylan. Its unfortunate that their relationship dissolved to that extent.
37However, this audio recording was tendered as evidence, without objection.
38During the conversation, Dylan suggested that the funds would either be shared 50-50 or held in trust for a very long time. Marielle responded by saying "you expect to get money out of this?" Later, she described to him that the downpayment represented her retirement money. The following exchange takes place:
Dylan: And you offered me, a pretty much, a down payment, right? So, I mean…you're just doing this because you want to fuck me over.
Marielle: You know what Dylan, that was then, that was then, and this is now.
39Dylan argues that her comment "that was then, this is now" reflects a change in her original position, and supports that she originally intended to give him a gift.
40I disagree. I regard that conversation as devolving into an argument in which neither party can be held to be making admissions that have legal import. In my view, this conversation merely restated the positions that both parties took at trial. I find the recorded conversation to be of little assistance.
41The parties also exchanged some emails and texts when they were searching for a property to purchase. In an email dated June 4, 2021, Marielle told Dylan that the house "may also be a good investment and will only go up in value". She denied that she was contemplating selling the house from the outset, but also testified that she recognized that it was a possible scenario.
42On cross-examination, Dylan indicated that he and Melissa had also considered renting a larger apartment and were looking to pay approximately $2,000 per month. He agreed that his mother offered financial assistance but that no specific amount was discussed. He did not accept that option. Dylan testified that he accepted Marielle's other option, that she pay the downpayment and live with them, with the house going into their names jointly. He denied that the only way he could afford to move was if his mother helped him. He indicated that it was his mother who pushed the option of moving into together. However, Dylan agreed on cross-examination that this was the best option for his family too. I find that Dylan and Melissa were not induced by Marielle to move into the home and that this was a good deal from his perspective too.
43Dylan agreed that there is no documentation that supports his argument that his mother made a gift of the downpayment.
44During cross-examination, it was put to Dylan that if he and Melissa rented an apartment for $1630 per month for two years, they would have paid $39,000. By living in the home that was purchased and paying $2,000 per month, they paid a total of $48,000 over those two years. Thus, if they received $26,000 from the proceeds of sale, they would be ahead by approximately $17,000. From his responses to this line of questioning, it was clear that Dylan did not consider that he and Melissa would have incurred expenses even if they had not moved in with their mother. Therefore, he was not prepared to acknowledge that he and Melissa still benefitted from this arrangement.
Discussion
45In my view, very little turns on credibility in this case. The real issue is that no one considered what would happen in the event that living together did not work out. No one considered the worst case scenario. Thus, when their relationship soured, they each made assumptions about what should occur.
46I found that aspects of Marielle's evidence was inconsistent with other aspects. She both suggested that she felt pressured by Dylan to move in and that it was against her will, while also admitting that she was pleased with the prospect of living with her grandchild. She initially claimed to be in good health with only carpal tunnel syndrome, and then later admitted to being diagnosed with Lupus.
47I found Dylan to be evasive at times, refusing to recognise that he and Melissa would have had expenses regardless of where they resided such that this was a beneficial arrangement for them. There were subtle differences between his evidence and Melissa's evidence about their intentions with respect to their rental apartment and where they were looking to purchase a home.
48Melissa was a credible witness who could offer very little direct evidence on the key issue. Her view of what was a fair outcome is irrelevant.
49In reality, there are very few issues of credibility as between the parties. Both sides acknowledge that there were two options presented—(1) the gift of approximately $20,000 and (2) living together with Marielle paying the downpayment from the proceeds of the sale from their home. This issue is whether the second option was intended by Marielle to be a gift.
50On his own evidence, Dylan has not established that Marielle gifted them the downpayment. At best, Dylan assumed that the downpayment was a gift. His attempt during his cross-examination to describe that Marielle living with her grandson was a "gift" was not persuasive. It is Marielle's intention that matters, not Dylan's intention.
51Melissa's evidence does not assist her or Dylan as she was not present during any conversation with Marielle that would establish that she intended to gift them the downpayment.
Presumption of Resulting Trust
52Marielle relies on the presumption of resulting trust.
53In Pecore v. Pecore, 2007 SCC 17, [2007] 1 SCR 795, the Supreme Court of Canada described at para. 20 that a resulting trust arises when title to property is in one party's name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner (my emphasis). Advancement is a gift during the transferor's lifetime to a transferee who, by marriage or parent-child relationship, is financially dependent on the transferor (para. 21).
54The Supreme Court described that the presumption of resulting trust and presumption of advancement are rebuttable presumptions. The issue is whether there is sufficient evidence adduced to displace the presumption.
55For the presumption of resulting trust, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended (Pecore, at para. 24). Equity presumes bargains, not gifts.
56The presumption of advancement applies between parent and child. The Court however, noted that this presumption should not apply in respect of independent adult children, but only minor children. Thus, I find that the presumption of advancement does not apply in this case.
57In Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at para. 1, the Supreme Court reiterated that the presumption of resulting trust is a presumption that the parties intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person's contribution.
58A purchase money resulting trust arises when a person advances funds to contribute to the purchase price of property but does not take legal title to that property. There is a rebuttable presumption that the parties to the purchase "intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that of the person's contribution. This also applies to transactions involving parents and adult children (see: Bradshaw v. Hougassian, 2024 ONCA 425, at para. 8).
59In Bradshaw, the Court of Appeal, at para. 19, described that the presumption of resulting trust will be defeated if it is established that the person who contributed the purchase money did not intend to acquire a beneficial interest in the property. This can be established by demonstrating that the money advanced by the contributor was meant as either a loan or as a gift.
60Accordingly, I find that the presumption of advancement does not apply in this case, but that the presumption of resulting trust does. Therefore, the onus is upon Dylan and Melissa to establish, on a balance of probabilities, that Marielle intended to make a gift of the downpayment for the new home to them.
61In Pecore, the Court held that in determining whether the presumption has been rebutted, the court should consider evidence adduced to show the intention of the transferor contemporaneous, or nearly so, to the transfer. In Bradshaw, the Court of Appeal held that the doctrine of purchase money resulting trust focuses on the parties' intentions at the time the purchase money is advanced.
62Unlike Pecore, where the transferor had died and thus he could not provide direct evidence as to his intention, Marielle is still alive and testified that she did not intend to make such a large gift. I found her evidence on that issue to be credible. In particular, she was only in her late 60's at the time of these events. She was coming up on her retirement, which occurred in August of 2022 and would have had to support her own retirement with these funds. Thus, in the event that this plan did not work out, I find that she would not have significantly diminished her retirement funds by making such a significant gift to Dylan and Melissa. I find that she would not have so disadvantaged herself for their benefit.
63On the other hand, Dylan's own evidence was vague with respect to whether Marielle intended to make a gift through the second proposal. He did not testify that she described the downpayment as a gift or that there was any discussion about the downpayment being a gift. I find that there was no such discussion. His own evidence does not establish on a balance of probabilities that Marielle intended to gift him the downpayment, although he perhaps believed that she did. It is the transferor's intention that is paramount, not what the transferred may have believed (see: MacIntyre v. Winter, 2021 ONCA 516, at para. 24, citing Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 at para.18).
64I find that Marielle did offer Dylan a gift, in the range of $20,000, which he turned down. The second proposal, I find, was not a gift or a loan. This second proposal is the one that was accepted by Dylan and Melissa and that the parties acted upon.
65Dylan and Melissa rely upon Wiffin v. Lau, 2024 ONSC 224, at para. 34, in which it is noted that "where a gift is intended, the fact that the donor comes to regret the gift based upon an unexpected turn of events cannot cause an otherwise absolute gift to morph into a conditional one".
66In Wiffin, the court distinguished between a testamentary gift and an inter vivos gift, which takes place immediately. It was described that making a person a joint tenant during the transferor's lifetime means that the gift has occurred at the time of the joint tenancy. In Wiffin, the court found that the transferor did intend to make a gift of his beneficial interest. Importantly, however, the transferor in that case was not in the same position as Marielle, with her retirement pending.
67The intention that the new home pass by right of survivorship to Dylan in the event that Marielle died does not rebut the presumption of resulting trust (see: MacIntyre, at paras. 32-33). In my view, that was a sensical plan to avoid probate fees and effect an orderly transfer of Marielle's affairs to her only heir upon her death. However, I do not find that this was Marielle's sole intention, but was a byproduct of her desire to have her grandson grow up with extended family, as Dylan had done.
68I have reminded myself that I must guard against self-serving evidence on the part of Marielle that reflects a change of intent. That was the purpose of the "that was then, this is now" evidence contained in her recorded conversation. As noted, I find that statement was made in the heat of an argument between Marielle and Dylan and does not bear the legal consequence that Dylan suggests. I cannot find that Marielle's statement in this conversation establishes on a balance of probabilities that she intended to gift to Dylan such a substantial portion of her retirement funds at an age where she may still have many years left in which she would be required to be self-sufficient.
69I have considered that Dylan was Marielle's only son and this fact supports that Marielle would likely have wanted to be generous to him. He was her immediate and logical heir. I also accept that she was excited about the prospect of living with her grandson, a situation that mirrored the one that she had experienced when Dylan was a young child. However, Dylan and Melissa were employed at the Bank and, although not well off, would have been self-sufficient. I do not accept that she would have given such a proportion of her savings to them at this stage of their respective lives.
70It must be considered that Marielle benefitted from the arrangement of living with her son and grandson as well. She would derive significant satisfaction with living with her family members. This benefit does not, however, lead to the inescapable conclusion that she was willing to part with her savings by way of gift. She could intend to assist Dylan and Melissa by either making a gift or by choosing to pay the downpayment but retain the downpayment in the event that the relationship ended. I find that the evidence does not persuade me that she chose the former, but rather does establish that she chose the latter.
71Much was attempted to be made about whether or not Dylan and Melissa thanked Marielle for providing the funds for the home. There was a brief "thank you" in one of the text messages from Dylan to Marielle. However, I find that whether there was a thank you note, or flowers is not particularly helpful to this issue. Again, it is Marielle's intention that matters. However, even if there had been an expression of gratitude, it could simply be an acknowledgement of the gesture that Marielle had made in providing the downpayment funds. This would not make those funds a "gift".
72I also accept that there was some non-specific discussion about the property being an "investment". Again, I do not find that helpful in determining whether Marielle intended the downpayment to be a gift. She could have meant that it was a good investment for her only. She could have meant that it would be a good investment for Dylan when she died and he took the house through right of survivorship. She could have meant that Dylan and Melissa would show some return on their investment in contributing to the monthly expenses. In any event, I find that an "investment" is not the same as a "gift" and I find that Marielle never told Dylan that she was making the downpayment on the house as a gift to them.
73In his evidence, Dylan suggested that he and Melissa were content in their apartment and only moved because Marielle "pushed" the downpayment option upon them. I reject that assertion. On the evidence, the arrangement was the best option for Dylan, Melissa and their child and I find that they were not induced by any representation that Marielle would have made to them, including that the home was an investment. As noted, this plan simply did not work out, and the parties had not put their mind to that possibility.
74I found Melissa to be a credible witness. However, she admitted that she was not involved in the discussions between Marielle and Dylan. Her evidence does not assist in rebutting the presumption of resulting trust.
75Accordingly, Dylan and Melissa have failed to rebut the presumption of resulting trust. I find that Marielle is entitled to the return of her initial contribution from the sale proceeds.
Damages
76The parties did not spend a significant amount of time arguing about the issue of damages but appeared to be in substantial agreement. The amount of the downpayment, plus the expenses that were paid solely by Marielle were substantiated by the evidence at trial.
77Accordingly, I find that from the proceeds of the sale of the property, Marielle is entitled to the sum of $343,347.64. The balance of the proceeds is to be split equally between the three parties.
78I recognize that over the years, Dylan and Melissa spent more money than they will recover from the proceeds. However, they would have had to incur living expenses had they rented and I agree with the point made in cross-examination that Dylan and Melissa benefitted financially from living in the home purchased by Marielle.
Costs
79At first blush, it would appear that Marielle is entitled to her costs. If the parties cannot agree on the issue of costs, Marielle may serve and file written submissions, not to exceed three pages in length double spaced, plus any relevant offers to settle. Those submissions are to be submitted through the London trial coordinator by September 19, 2025. Responding submissions within the same parameters are to be served and filed by September 30, 2025.
Justice Spencer Nicholson
Date: September 2, 2025
Released: September 2, 2025