Superior Court of Justice — Ontario
Court File No.: CV-25-00062920-0000 Date: 2026-04-01
Parties
Between:
Robert David Jeffrey Applicant
– and –
Pharaby Privat Jeffrey, personally, and in her capacity as the Executor and Estate Trustee of the Estate of Matthew David Jeffrey and Daniel M. Coutts, in his capacity as the Foreign Estate Trustee's Nominee as Estate Trustee without a Will for the Estate of Matthew David Jeffrey Respondents
Counsel
J. Dunphy, for the Applicant
No one appearing, for the Respondents
Heard: March 27, 2026
The Honourable Justice L. E. Standryk
Reasons for Decision
Overview
[1] The applicant, Robert David Jeffrey ("Robert"), seeks orders pursuant to the court's equitable jurisdiction validating and enforcing an oral agreement made between Robert and his predeceased son, Matthew David Jeffrey ("Matthew"). The purported agreement permits Robert and his seriously ill wife, Glenda Jeffrey ("Glenda"), to live in their home municipally located at 183 Anne Street, Niagara-on-the-Lake, Ontario (the "Property") for the remainder of their lives without the payment of rent.
[2] On August 3, 2021, Matthew passed away in his sleep while visiting his parents at their home in Niagara-on-the-Lake. He was 48 at years old at the time of his death. While he was born in St. Catharines, Ontario, at the time of his death he was ordinarily resident in Scott, Louisiana, in the United States of America, where he resided with his wife, Pharaby Privat Jeffrey.
[3] Pharaby Privat Jeffrey is the respondent to this application both in her personal capacity and as the Executor and Estate Trustee of her husband's estate.
[4] Following Matthew's death, Pharaby Privat Jeffrey appointed Daniel M. Coots to act as the Foreign Estate Trustee's Nominee. Daniel M. Coots was removed as the Foreign Estate Trustee's nominee by order of Ramsay J. on February 12, 2026, for reasons which include the inability to obtain instructions from Pharaby Privat Jeffrey.
[5] The respondent has not moved to appoint a further Nominee. The respondent has not filed any response to this application, which was served on her then lawyer on June 5, 2025.
[6] I am satisfied that the respondent was served with and received all materials filed in support of this application. The application proceeded unopposed.
[7] For the reasons that follow, the court exercises its equitable jurisdiction to validate and enforce the oral agreement between the applicant, Glenda and Matthew, pursuant to the doctrine of part performance, and to award the applicant damages for the breach of the agreement.
Factual Background
[8] Glenda and Robert have two children, Matthew and Lisa. Matthew was married to the respondent, Pharaby Privat Jeffrey ("Pharaby"), who resides in Louisiana, USA.
[9] In 1996, Glenda and Robert purchased the Property for $136,000, using their life savings. They resided at the property continuously for the next 30 years.
[10] Glenda and Robert were not high-income earners. Prior to their retirement in 2018 or 2019, Robert earned approximately $600 per week transporting wheelchair users to medical appointments, while Glenda earned approximately $480 per week working as a healthcare aide in a nursing home.
[11] Following their retirement, Glenda and Robert's financial circumstances became strained. Their sole sources of income were the Canada Pension Plan and Old Age Security benefits. The majority of their income was required to service their mortgage and pay property taxes. In an effort to meet their expenses, Glenda worked part-time at a local bed and breakfast.
[12] Matthew was a successful banker and was financially well‑established. He served as the Acadiana Market President at Home Bank. In addition, Matthew owned and raced thoroughbred horses, held commercial real estate investments, and was active in the stock market.
[13] Matthew had a close relationship with his parents and wanted them to spend extended periods with him and his young family in Louisiana during their retirement. It was important to him that his children spend meaningful time with their grandparents, but Robert and Glenda could not afford such visits.
The Agreement
[14] In 2018, Glenda and Robert owned the Property. Although the Property was subject to a mortgage, there was equity in the home.
[15] The applicant alleges that in 2018 Matthew suggested an arrangement that would ease his parents' financial pressures and provide them with an injection of cash that would allow them the opportunity to visit Louisiana more frequently. Robert and Glenda would transfer title of the property to Matthew, together with the equity in the home, calculated at approximately $175,000. In return, Matthew would assume responsibility for the balance of mortgage payments, property taxes, property insurance and home repairs.
[16] In exchange, Glenda and Robert would receive approximately $70,000 to assist with expenses, live out the remainder of their lives in their home rent-free, and pay utilities on the property.
[17] This arrangement was oral and was never memorialized in writing.
[18] In furtherance of the arrangement, Matthew, Glenda and Robert jointly retained Neil Viola, a lawyer with Martin Sheppard Fraser LLP in Niagara-on-the-Lake, Ontario, to complete the transfer of the Property to Matthew. The transfer was registered as instrument number NR494687 on October 19, 2018. Mr. Viola signed the transfer on behalf of both the transferors, Glenda and Robert, and the transferee, Matthew, therefore acting for both parties in the transaction.
[19] Glenda and Robert obtained independent legal advice from another lawyer, Michael Skiba. Mr. Skiba wrote a letter of independent legal advice dated October 19, 2018, the day the transfer was registered.
[20] Following the transfer, Glenda and Robert continued to reside in the Property and pay for the utilities and other personal expenses. Matthew did not require his parents to pay rent, contribute to the mortgage, or vacate the property at any time.
[21] Within approximately 12 months of the transfer of title, Glenda and Robert's lives took an unforeseen and difficult turn. In 2020, at the age of 72, Glenda suffered a traumatic brain injury as a result of a fall. She remained in a coma for approximately one month. When she regained consciousness, she was unable to walk, speak, or eat independently and required a feeding tube for nourishment. Over time, her condition improved and she returned home, where Robert assumed the role of her full‑time caregiver. On August 4, 2021, Matthew passed away unexpectedly in his sleep while visiting his parents at their home.
[22] Following Matthew's death, Robert and his daughter, Lisa, contacted Pharaby Privat Jeffrey to seek assurances that she would honour Matthew's agreement. Ms. Privat Jeffrey did not respond. Despite this, she continued to make the mortgage payments until October 2023. In October 2023 she stopped paying the mortgage.
[23] As a result, Glenda and Robert were compelled to draw on their limited resources to cover the mortgage payments and property insurance. Between October 2023 and October 2024, Robert and Glenda paid $14,714.74 toward the mortgage and an additional $7,333.20 for property insurance.
[24] On January 8, 2024, Ms. Privat Jeffrey threatened to sell the property "as soon as possible".
[25] On October 19, 2024, Meridian Credit Union indicated it was not prepared to renew the mortgage. As a result, Ms. Privat Jeffrey paid the mortgage in full.
Analysis
[26] The purported agreement granting Robert and Glenda a life interest in the property concerns an interest in land. Section 4 of the Statute of Frauds, R.S.O. 1990, c. S. 19 requires that such an agreement be reduced to writing and signed by the party against whom it is to be enforced.
[27] Equity proceeds on the principle that it regards as done that which ought to be done. An oral agreement affecting land may therefore be enforced where it has been partly performed: Hill v. Nova Scotia (Attorney General), 1997 CanLII 401 (SCC), [1997] 1 S.C.R. 69, at para. 10.
[28] The Court of Appeal for Ontario in Erie Sand and Gravel Limited v. Tri‑B Acres Inc., 2009 ONCA 709, 97 O.R. (3d) 241, at para. 49, explained both the purpose of the doctrine of part performance and its relationship to the strict requirements of the Statute of Frauds:
The purpose of s. 4 of the Statute of Frauds is to prevent fraudulent dealings in land based on perjured evidence. However, Equity will not allow the Statute of Frauds to be used as an "engine of fraud". It created the doctrine of part performance to prevent the Statute of Frauds from being used as a variant of the unconscionable dealing which it was designed to remedy: see Hill v. Nova Scotia (Attorney General), 1997 CanLII 401 (SCC), [1997] 1 S.C.R. 69, [1997] S.C.J. No. 7, at para. 10. The requirements in s. 4 of the Statute of Frauds must give way in the face of part performance because the acts of part performance fulfill the very purpose of the written document--that is, they diminish the opportunity for fraudulent dealings with land based on perjured evidence.
[29] In the same decision, Gillese J.A. clarified that the doctrine of part performance comprises two distinct requirements:
i. the first requirement is detrimental reliance, which obliges a party to prove acts of performance. Absent such reliance, there is no inequity in permitting reliance on the Statute of Frauds.
ii. The second requirement concerns equity's requirement—namely, that the acts of part performance must sufficiently indicate the existence of the alleged agreement.
The first requirement is substantive in nature and grounded in the rationale for the doctrine; the second is primarily evidentiary: Erie Sand, at para. 79.
Detrimental Reliance
[30] The registered transfer refers to consideration of $450,000. This figure does not reflect either the amount Matthew paid for the Property or the consideration actually received by Robert and Glenda.
[31] The statement of adjustments dated October 19, 2018 reflects a vendor credit of $450,000 and a purchaser credit described as a "gift from parents" in the amount of $175,000. The statement further shows that the only funds actually advanced by Matthew totalled $267,634.36. The trust ledger confirms that the $267,634.36 advanced by Matthew was applied to discharge the first mortgage, pay legal fees and closing costs.
[32] At the time of transfer, the property had an estimated value of approximately $450,000 and was subject to a mortgage of approximately $195,224.21, leaving equity in the range of $254,775.79. Of this equity, Robert and Glenda received only $71,473.95.
[33] This transaction involved a substantial transfer of equity from Robert and Glenda to Matthew. While the characterization of this transfer as a "gift" appears on the statement of adjustments, there is no contemporaneous documentation in Mr. Viola's file explaining the nature or purpose of that equity transfer. Characterizing the equity as a gift arguably conferred material benefits to Matthew, including increasing his cost base for capital gains purposes and improving his loan‑to‑value ratio for financing purposes.
[34] As part of the transaction, Robert and Glenda obtained independent legal advice from Michael Skiba on October 10, 2018. Mr. Skiba's letter of independent legal advice records that he was consulted by Robert and Glenda regarding the sale of their home to their son for $450,000, that they would receive approximately $246,000 on completion, and that the remaining equity would be gifted to Matthew in exchange for being permitted to live in the home rent‑free.
[35] The trust ledger statement dated November 7, 2018 from Martin Sheppard confirms that Robert and Glenda received only $71,473.95 in cash.
[36] Mr. Skiba's independent legal advice letter was provided to Mr. Viola, who acted for both sides to the transaction. Given the nature of a joint retainer, Mr. Viola owed a duty of undivided loyalty to both Robert and Glenda and to Matthew, supporting the inference that Matthew was aware of and accepted the terms described in the letter.
[37] In the affidavit material before me, Robert deposes that Ms. Privat Jeffrey was present on the day the transfer was registered. It is the uncontested evidence on the record before me that all parties met with Mr. Viola together. The independent legal advice letter is not signed by Matthew. Had it been, this dispute would not arise, as the Statute of Frauds permits enforcement of an agreement or memorandum signed by the party to be charged. The absence of Matthew's signature is unsurprising, as the letter was prepared for the benefit of Robert and Glenda, not Matthew.
[38] Although the transfer did not expressly reflect a life interest on title, there was no reason for Robert and Glenda to anticipate that Matthew would resile from the agreement. In 2018, Matthew was 42 years old, enjoyed a close and trusting relationship with his parents, and none of the parties contemplated his sudden death less than three years later.
[39] A central question arising from the evidence is why two retired individuals living on fixed incomes would divest themselves of their only substantial asset and relinquish approximately $200,000 in equity.
[40] The evidence supports the conclusion that Robert and Glenda did not intend to make a gratuitous transfer of the equity in their home. Rather, they entered into an arrangement pursuant to which they conveyed title to Matthew in exchange for the right to occupy the home for their lifetimes, and they did so in reliance on that arrangement to their detriment.
[41] Matthew stood by while his parents acted to their detriment in reliance on the agreement by transferring legal title to their home into his name alone, obtaining independent legal advice, accepting only approximately $71,000 while conveying over $175,000 in equity, and relinquishing ownership of their only significant asset.
[42] These facts establish clear and irreversible detrimental reliance.
Part Performance
[43] Historically, the doctrine of part performance required that the acts relied upon be referable only to the agreement alleged. In Deglman v. Guaranty Trust Co. of Canada and Constantineau, 1954 CanLII 2 (SCC), [1954] S.C.R. 725, the Supreme Court of Canada adopted a less stringent approach, holding that it is sufficient if the acts are "unequivocally referable in their own nature to some dealing with the land" (the "Deglman test"): see also Erie Sand, at paras. 86–87.
[44] The Court of Appeal in Erie Sand further refined the Deglman test, directing courts to first determine the relevant context and then assess the alleged acts of part performance having regard to how reasonable people conduct their affairs.
[45] The proper approach is to begin by determining the context or relevant circumstances, and then to consider the acts of part performance in light of ordinary human conduct: see Erie Sand, at para. 94.
[46] In this case, the following acts of part performance by Robert and Glenda are unequivocally referable to dealings with the property:
i. retaining a real estate solicitor and instructing him to register a transfer of title;
ii. obtaining independent legal advice in respect of the transfer;
iii. executing an independent legal advice letter expressly attesting that the remaining equity would be transferred to Matthew in exchange for the right to reside in the home rent‑free;
iv. consenting to the registration of title in Matthew's name alone;
v. directing the discharge of the existing first mortgage in the amount of $195,224.21;
vi. transferring equity in the home to Matthew while accepting only approximately $71,000 in cash;
vii. jointly retaining Mr. Viola and instructing him to complete the transfer;
viii. continuing to reside in the property rent‑free and paying utilities and personal expenses in accordance with the agreement.
[47] Matthew likewise engaged in acts of part performance unequivocally referable to dealings with the property by:
i. jointly retaining Mr. Viola and consenting to the registration of title in his name alone;
ii. completing the transfer following his parents' receipt of independent legal advice;
iii. receiving title together with approximately $175,000 in equity while paying only approximately $71,000 to his parents;
iv. refraining from charging rent or seeking vacant possession, consistent with the agreement; and
v. paying the mortgage on the Property which was continued by Ms. Privat Jeffrey until October 2023.
[48] These acts satisfy not only the Deglman test, in that they are unequivocally referable to a dealing with land, but also the earlier more stringent requirement that the acts be referable to the agreement itself.
[49] In light of the established evidence of detrimental reliance, the extensive acts of part performance by Robert, Glenda and Matthew, and the clear connection between those acts, the property and the underlying agreement, equity both can and should intervene.
[50] As the Court of Appeal held in Erie Sand, at para. 64, a party who acquiesces in another's detrimental performance under an unenforceable agreement will be barred from relying on the Statute of Frauds to avoid its obligations.
[51] To permit Matthew's estate to rely on the Statute of Frauds in these circumstances would be unconscionable. The court therefore exercises its equitable jurisdiction to prevent the statute from being used as an engine of fraud.
[52] For these reasons, I find that the parties entered into a binding oral agreement that is valid and enforceable.
Damages for Breach of the Oral Agreement
[53] From October 2023 through October 2024, Robert continued to make mortgage payments after Matthew's estate ceased doing so.
[54] The documentary record demonstrates that these payments were made directly from Robert and Glenda's accounts through a series of transfers into the mortgage account between October 2023 and October 2024. The mortgage account shows corresponding incoming transfers. Mortgage payments were also made indirectly through deposits into the Matthew and Robert joint account in November and December 2023 directly from Robert's account. When aggregated, these payments total $14,714.74.
[55] During this same period, and on an ongoing basis, Robert was also compelled to pay the homeowners' insurance premiums for the property, notwithstanding that Robert and Glenda no longer held legal title. The total insurance premiums paid by Robert amount to $7,333.20, reflecting four annual policy renewals under policy number FB959450 from August 2022 to August 2025/2026. Under the agreement, and consistent with Matthew's conduct while alive, responsibility for these insurance premiums rested with the legal owner of the property.
[56] Accordingly, the total amount paid by Robert toward the mortgage and property insurance during the period of the estate's non‑performance is $22,047.94.
[57] There are two independent legal bases upon which Robert and Glenda are entitled to recover these amounts. First, having found that the oral agreement is valid and enforceable, the estate's failure to pay the mortgage and insurance constitutes a breach of that agreement. As a result, Robert and Glenda are entitled to damages flowing from that breach.
[58] Second, and in the alternative, the estate has been unjustly enriched. The estate benefited from mortgage and insurance payments it was obligated to make as the legal title holder. Robert and Glenda suffered a corresponding deprivation in the amount of the payments made, and there is no juristic reason for the enrichment. The payments were made contrary to the agreement and solely to preserve the family home during the period in which the estate failed to perform its obligations. Restitutionary damages are therefore warranted to restore Robert to the position he would have occupied but for the estate's unjust enrichment. Compelling the estate to reimburse Robert for these payments is necessary to prevent an inequitable result and to ensure that the Statute of Frauds is not used to defeat substantively just claims arising from detrimental reliance and part performance.
Conclusion
[59] Accordingly, there shall be a declaration that Matthew entered into a valid, binding and enforceable agreement with Robert and Glenda pursuant to which his parents are entitled to reside at the property for their lifetimes without the payment of rent. An instrument reflecting Robert and Glenda's life interest in the property shall be registered on title. In addition, Matthew's estate shall pay damages to Robert in the amount of $22,047.94.
Costs
[60] The applicant seeks costs of the application in the total sum of $43,245.44, inclusive of fees, disbursements, and H.S.T. Counsel provided a Bill of Costs and a Revised Bill of Costs as directed by me, taking into consideration the impact of any offers to settle exchanged by the parties. A revised bill of costs was provided, incorporating the consequences arising from the applicant's August 27, 2025 offer to settle, an offer in which the applicant sought the very relief ultimately granted on this application.
[61] The applicant has been entirely successful and is therefore presumptively entitled to costs. The applicant was required to attend multiple court appearances to deal with both Mr. Coots' motion to be removed as the Foreign Estate Trustee's nominee, as well as this application. Although this application was repeatedly scheduled on the Thursday regular motions list, it was frequently not reached due to the volume of matters on the weekly lists and, as a result, was adjourned on several occasions. The applicant's counsel nonetheless had to prepare for and appear at each scheduled appearance, and the applicant should not be required to solely bear the costs of doing so.
[62] I have also reviewed the hourly rates charged by counsel for the applicant. Having regard to their respective years of call and the nature of the work required, I am satisfied that the hourly rates are reasonable and work performed proportionate to the issues that required determinations.
[63] Having regard to the governing principles under rule 57.01 of Rules of Civil Procedure, R.R.O. 1990, Reg. 194, including the results achieved, the complexity of the issues, the principle of indemnity, the number of court attendances, the applicant's offer to settle, and the principle of proportionality, I am satisfied that the costs requested by the applicant are fair and reasonable. He is entitled to partial indemnity up to August 27, 2025 and substantial indemnity costs thereafter.
[64] Costs are fixed at $43,245.44, inclusive of disbursements and H.S.T., payable within 90 days.
L. E. Standryk J.
Released: April 1, 2026