CITATION: Brunton v. Lanzarotta et al, 2026 ONSC 4080

COURT FILE NO. CV-23-00004477-0000

DATE: 2026 07 13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARILYN BRUNTON

Ted R. Laan, for the Applicant

Applicant

• and -

A. J. LANZAROTTA WHOLESALE FRUITS AND VEGETABLES LTD. AND JANET MICHELLE BRUNTON

Tyler H. McLean, for the Respondent A.J. Lanzarotta Wholesale Fruits and Vegetables Ltd.

No one appeared for Janet Brunton

Respondents

HEARD: September 8-9, 2025, written submissions received December 7-8, 2025

REASONS FOR JUDGMENT

D.E. Harris J.

INTRODUCTION

1The applicant, Marilyn Brunton (“Marilyn”), and her late husband, Dr. James Brunton (“Dr. Brunton”), added Janet Brunton (“Janet”), Marilyn’s daughter from a previous marriage, to the title of their three real estate properties in 2016 and 2017. The Parcel Register indicates that each transfer is from Marilyn and Dr. Brunton to themselves and Janet Brunton. The corresponding Land Transfer Tax affidavits state, “Transfer from parents to themselves and their daughter for natural love and affection.” Janet was also added to several bank accounts as well. Marilyn Brunton is now 79 years old. Dr. Brunton died in 2020.

2In 2023, the respondent A. J. Lanzarotta Wholesale Fruits and Vegetables Ltd. (hereafter “Lanzarotta”) obtained judgment against Janet in the amount of $1,793,732.90. In an uncontested trial, Justice Daley found that Janet and two other defendants had made false representations to Lanzarotta: see the reasons for judgment at 2024 ONSC 1780, 12 C.B.R. (7th) 371. On the basis of these misrepresentations, Lanzarotta forwarded fruits and vegetables on credit to the defendants. The defendants fell into serious arrears and then failed to pay for the food that had been delivered to them. A finding of civil fraud was made against the defendants, including Janet Brunton.

3The respondent Lanzarotta seeks to enforce their judgment by seizing and selling Marilyn Brunton’s real estate property and bank accounts.

4Marilyn, to protect her assets from Lanzarotta, brings an application for a declaration that her three properties and the bank accounts are held by Janet in a resulting trust for her, Marilyn.

5In a previous judgment, I found that adding Janet as a co-owner on the Parcel Register did not have the irrevocable effect in law of passing title to her: Brunton v. Lanzarotta et al, 2024 ONSC 6155. A trial has now been held on the issue of whether following the leading case of Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, putting Janet on title created a resulting trust in favour of the parents or, alternatively, the intention of the transfer was to gift the properties to Janet. These are my reasons for decision on that question.

THE EVIDENCE

6At trial, Marilyn Brunton testified; Edward Olkovich, who was the Bruntons’ long time real estate lawyer, also testified; and Maureen Galea, their tax lawyer, testified. It was also agreed that their pre-trial questioning under Rule 39.03 would be admissible on this trial.

7Dr. and Marilyn Brunton married in 1991. It was the second marriage for both. Each had three children from their previous marriage. Janet is Marilyn’s daughter with her first husband.

8The three properties which are the subject matter of this litigation are: 1. The Grand Harbour Townhouse, Marilyn’s primary residence. The Bruntons purchased it in July of 2007. Janet was added to title on September 29, 2017; 2. The Toronto condominium. Dr. Brunton acquired it on April 29, 1983. Five years after they married, in 1996, Marilyn was added to title. Janet was added to title September 29, 2017. Janet has been living in this residence since 2013; and 3. The Collingwood Condominium. It was purchased by the Bruntons on March 28, 2013. Janet was placed on title August 16, 2016. Each of the transfers included in the Land Transfers Tax affidavits contain this statement, “Transfer from parents to themselves and their daughter for natural love and affection.” Marilyn testified that she did not remember reading these words at the time of the transactions. Also, the box saying that the transfer was in trust was not checked.

9There are also three TD Canada Trust accounts in Marilyn’s name in which Janet was added during the COVID-19 pandemic.

10Nothing changed in terms of the expenses or other financial arrangements with respect to each of the three properties when Janet was put on title. She has never paid anything towards the Collingwood or Grand Harbour properties. For the Toronto condominium, where she has been living since 2013, she has from the beginning paid maintenance fees and utilities. Janet has never paid property taxes on any of the properties including on the Toronto condominium.

11Marilyn Brunton testified. She had a long work history. Her last job was working for her husband as a medical secretary. Her evidence was that she and Dr. Brunton went to Ms. Galea’s home office in August of 2016 to put Janet on the Collingwood property. It was her testimony that the purpose was so that in case anything happened, Janet “could just take over.” Marilyn said,

Well, he [her husband, Dr. Brunton] said, you know he didn’t want the children if we got into a plane crash got killed by head on or whatever that it when we died, the children would have money because it wouldn’t be held up in court for a long time.

12She reiterated this again later in her testimony, saying,

My husband had a – knew of a case where the parents had a head on collision and the boys were left and it was an awful mess. And my husband had friends that won’t even go fly together in a plane. One would go in one plane and one would go in the other because of the fear of having a plane crash. And as you must remember, this past weekend, the people from Quebec. Those two got killed. So, he always had said – we’ve got to look after what we’re doing here. We’ve got to have a plan. And he put her on there because he’d said, if we get killed, and her name’s not on there to take care of things, like get money pay this pay that he said everything is going to be frozen.

13This evidence is of Dr. Brunton’s present intention, elaborating on his state of mind. Evidence of “state of mind” or present intention is admissible as a common law exception to the hearsay rule: see R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915 at paras. 23-28; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 per Iacobucci J., at paras. 168, 178-179; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42 at paras. 49-66. Nothing in the principled exception to the hearsay rule case law would suggest the evidence here is inadmissible. Furthermore, there were no circumstances of suspicion, concerns that the statement might be false or made for a fraudulent purpose, that could preclude admissibility.

14The statement of present intention leads to an inference that Janet was put on title consistent with and for the purpose expressed. Furthermore, although the statement is not Marilyn’s per se, it was implicit that she was in accord with it. Based on the circumstances, the statement was tantamount to a joint statement: Starr, paras. 168-169. And Marilyn was present in court to be cross-examined on the issue. Dr. Brunton articulation of the reason for putting Janet on title is admissible on this trial.

15Marilyn Brunton testified that she had an immune deficiency disease which makes her particularly susceptible to infections. For this reason, during the pandemic, Janet would help with the banking. That is why Janet was put on the three bank accounts. Mrs. Brunton now has new accounts as the old accounts were frozen by a Mareva injunction.

16It was Marilyn’s evidence that Ms. Galea never explained in their meetings the implication of adding Janet to the properties. Mrs. Brunton testified that she could not remember discussing anything about it with her.

17Mr. Olkovich, the wills and estates lawyer, drew up the wills of the couple. He and his wife were friends of the Bruntons. The wills were to mirror each other. Each said that if the spouse was not living, everything would be left to Janet Brunton. There was a letter to the Bruntons Mr. Olkovich wrote on June 24, 2016, that said he understood that they wanted to transfer the Collingwood condo to Janet. The letter stated that they had said to him that they were to meet with their tax advisor. There was no elaboration of the purpose for the transfer to Janet.

18Mr. Olkovich testified that if they had asked him to add Janet or her brother Dean to any of the properties, he would have refused. He has written several books for lay people on wills and estates. He advises in the books not to add adult children to property. The parents lose control over the asset; there are income tax implications. There are six reasons listed in one of his books not to do it. He includes a discussion of Pecore in the newer books. It was his evidence that Dr. Brunton owned a copy of Mr. Olkovich’s book “Estates of the Heart” and had read it. Mrs. Brunton confirmed this in her evidence. This book was written before Pecore was released. There is a discussion of why adult children should not be put on title. Some of his other books also discussed that matter and advised against it.

19Mr. Olkovich responded at trial to the critical question of whether he ever had a discussion with Dr. Brunton about the issue of adding Janet to the properties. Ultimately, it is clear from his evidence that he had no specific recollection about having discussions on the topic of putting Janet on title of the properties. That was also clear from his questioning under Rule 39.03(1) before trial. At trial, he seemed to surmise that he must have had discussions and would have told Dr. Brunton that he would not participate in adding Janet. He had no notes or anything else to jog his memory.

20There was a memo to file from Mr. Olkovich dated August 15, 2016, recording that Marilyn had called. She had said that he had gotten everything wrong in the draft will and then referred to some changes she wanted to make from his June letter. But transferring the Collingwood condo to Janet was not mentioned anywhere in the memo.

21The wills Mr. Olkovich drew up were executed August 18, 2016. Mr. Olkovich was not told and did not know that two days before, Janet had been put on title. To his recollection, he never spoke to real estate lawyer, Maureen Galea. He testified that he did not learn of Janet being put on title until after Dr. Brunton died in 2020. In his questioning, he testified that at this point he warned Marilyn about putting adult children on title.

22Ms. Galea testified as well. She was the Bruntons’ real estate lawyer from back when they sold their first home. She was the lawyer who added Janet to all three properties in 2016 and in 2017. For the first transfer in 2016 involving the Collingwood condominium, the Bruntons and Janet were present. Ms. Galea had no notes from any of the meetings, including this one. She testified that she asked whether they had received the appropriate legal advice, saying that she was not a tax lawyer or an estate planning lawyer. She was not an accountant. Everyone said it was fine to move forward. She testified that they had an opportunity to obtain independent legal advice, but they did not do so. Ms. Galea did not see the 2016 will.

23Ms. Galea testified that she had a phone call with Dr. Brunton in which he said that he wanted Janet on the property. Ms. Galea said that she could not do the transfer without the consent of the lender. She thought this transaction was the city townhouse which the evidence shows was done in 2017.

24Reporting letters for each transaction were filed at trial but they do not mention the purpose of the transfer nor the need to get wills and estates legal advice. The witness did say that she explained to clients generally that the phrase “natural love and affection” meant that a gift was being made. But there was no specific reliable recollection that she did in this instance. On the Parcel Register there was a box if the transfer was in trust. It was left unchecked.

POSITION OF THE PARTIES

25The position of the applicant Marilyn Brunton is that the presumption of resulting trust by reason of putting Janet on title has not been rebutted. Title never passed to Janet. The properties and bank accounts were not intended to be gifts. There is evidence that Dr. Brunton wanted to ensure that the properties, if both he and Marilyn died at the same time, would transfer smoothly and without probate to Janet Brunton. It was not intended that Janet would be a co-owner when he and Marilyn Brunton were alive.

26The respondent’s position is that Janet Brunton’s work taking care of her parents was the consideration for transferring the properties to her. This transfer was therefore a bargain, and a resulting trust should not be implied as a matter of law. Furthermore, Marilyn Brunton was not a credible witness. In addition, the mechanism of a resulting trust being an equitable remedy, the applicants are disentitled to the remedy because they did not come to court with clean hands. Mrs. Brunton received money from Janet after the Mareva injunction was granted, and this violated the injunction and was contemptuous. It peshould disentitle her to the benefit of a resulting trust.

27The respondent concludes:

Summation:

39. Common sense dictates, if you make another person an owner of a property, they become an owner. If you want them to receive ownership after you pass, you specify the same in your Will. But, if you are concerned about probate fees, and are ignorant to capital gains consequences and the balance of Mr. Olkovich’s “D’s”, you add them to title as a joint owner but have them sign a trust agreement or acknowledgement regarding their entitlements during your lifetime. No acknowledgement or trust declaration was done here, despite the very sophisticated Dr. & Mrs. Brunton having the assistance of several lawyers and one lawyer’s book(s). The logical inference is that Dr. & Mrs. Brunton made a deal with Janet – they conferred mutual benefits upon each other – Dr. & Mrs. Brunton would and did receive the assistance they undoubtedly did and will require, and Janet received financial stability with an ownership interest in The Properties and use of The Accounts. If this Application fails, Mrs. Brunton will not be put in a difficult situation as her evidence was that she does not use the Toronto Condo nor the Collingwood Townhouse.

CONCLUSION

28These are the questions that need to be resolved:

1. Was putting Janet on the three real estate properties and three bank accounts consideration for her work caring for Dr. Brunton and Mrs. Brunton? If so, there is no need to examine the gift\resulting trust dichotomy. There was a bargain between the Bruntons and Janet and as a result, she became a co-owner of the properties.

2. If it is concluded that putting Janet on the property was not as payment for her work caring for her parents, what was the intention of putting Janet as co-owner on the properties? Was it intended as a gift or did it amount to a resulting trust?

3. If it is concluded that there was a resulting trust, is Mrs. Brunton disentitled to it by reason of being party to a breach of the Mareva injunction and not coming to court with clean hands?

WAS PUTTING JANET ON THE PROPERTIES PAYMENT FOR HELPING THE BRUNTONS

29I do not accept that the properties were given to Janet to compensate her for helping her parents. There was no direct evidence supporting this conclusion. Mrs. Brunton denied it was the case. She was in the best position to know the answer to this question. I found her to be a credible witness. She answered the questions in cross-examination without hesitation. She did not appear to try to head off the questioner or to attempt to figure out where the questioning was going before answering. There were times when her memory failed her but that only made sense given the distance of past events--about eight years--and her present age.

30The type of help Janet provided to her parents was relatively typical of offspring assisting their ailing and ageing parents in these current times. It was not of the magnitude where one would expect a significant transfer of wealth in compensation. The Bruntons had helped Janet over the years, such as allowing Janet to live in the Toronto condominium rent free. This was merely a familial gesture of reciprocity for their nurturing and help. There was no indication that they were inclined to make such a large and generous gift as compensation for Janet’s help. It would have been out of proportion to the help she was providing them.

31Furthermore, adding Janet to the bank accounts during COVID was clearly done for purely pragmatic reasons. Her mother would have been in danger going out into the community to do the banking in light of her immunity being compromised by the auto-immune disease. It only made sense for her daughter to step in and help, as offspring are expected to do. As said in Pecore at para. 37, “it is common nowadays for ageing parents to transfer their assets into joint accounts with their adult children in order to have that child assist them in managing their financial affairs.” What occurred here is an example of this. This was merely a matter of pragmatics between mother and daughter and was not a gift to Janet.

WAS THE REAL ESTATE CO-OWNERSHIP A RESULTING TRUST OR WAS IT A GIFT?

32The decision in Pecore, applied to the present situation, presumes that putting Janet on title had the effect in equity of creating a resulting trust. Janet is the adult, semi-dependant daughter of the couple and thus the presumption applies. The respondent has the burden of proof to disprove that it was a resulting trust: Pecore, paras. 20, 24-26, 40. Also see Jackson v. Rosenberg 2024 ONCA 875 at paras. 41-47.

33The purpose of a presumption is to inject certainty into the law and provide guidance for the courts and for lawyers: Pecore, para. 23. It only comes into play and is germane if a judge is uncertain of what conclusion ought to be drawn. It is a starting position. But now, after trial, I can determine what was behind the Bruntons’ decision.

34Summarizing the evidence, according to Mrs. Brunton, there was no intention to grant Janet co-ownership of the properties. She attested that Janet was put on the properties so that when her parents died, she would be “in immediate control of the properties.” Dr. Brunton was the driving force behind this legal action, but Mrs. Brunton was aware of it and it is implicit that she agreed. She said that she and her late husband discussed with Janet that she would share the properties with her brother Dean when it was advantageous for him to receive them. He was living in Columbia at the time and if he acquired an interest in the properties, there could be tax and logistical issues. The Bruntons had faith that Janet would take care of her brother. A collateral benefit of their plan would be that probate fees would be avoided.

35On the witness stand, Mrs. Brunton referred to her husband talking about what would happen if they both were killed suddenly, as were the children her referred to who were left without parents. I believe her. The contrary evidence that putting Janet on the properties was as a partial gift of them to her was not convincing.

36The respondent attacks Marilyn’s evidence, saying that she is lying to benefit her own case. I saw no sign of that. She appeared forthright and was honest, in my opinion. And importantly, the documentary evidence does not contradict her.

37I do not agree with the respondent’s submission that the Bruntons and particularly Dr. Brunton, were sophisticated and knew what they were doing. Dr. Brunton had some of Mr. Olkovich’s books but that is the only indication that he had any level of sophistication. He was a doctor and highly educated. That does not mean that he understood the nuances of putting adult children on property and the risks involved. The issue of resulting trust vs. gift is quite esoteric.

38The evidence of the lawyers Olkovich and Galea must be carefully examined. Neither had notes of the directions they were given or any other aid memoire. Mr. Olkovich had the necessary knowledge and expertise to advise the Bruntons that putting Janet on title could be misconstrued and might be interpreted as a gift. This was also unequivocally stated in his books, at least one of which Dr. Brunton owned and had read. But is not clear that it was top of mind at the time of the transactions in August 2016 or September 2017.

39While Mr. Olkovich had the knowledge of the risk that putting Janet on title could be construed to be a gift, Ms. Galea was the lawyer who actually affected the transactions. It is not clear whether she was aware of the risk. There was an unfortunate disconnect. Mr. Olkovich did the wills for the Bruntons, completing a version of the wills two days after Janet was first put on title for the Collingwood condominium in 2016. The left hand did not seem to know what the right hand was doing. The Olkovich memo of June 24, 2016, mentions the desire to transfer the Collingwood condo to Janet but there was no other information in the memo or in his viva voce evidence.

40In terms of findings, Mr. Olkovich could not specifically remember having a discussion with Dr. Brunton about the transfer to Janet although he presumed that they had one. I cannot accept this. It is conjectural and strongly in his interest in the context of this trial. To the contrary, I think if they discussed Janet, Mr. Olkovich would specifically remember. The strong caution against putting an adult child on title expressed in his books and in his testimony is a clear indication that he would have sounded a loud alarm for Dr. Brunton if this had been discussed. He would have advised him in no uncertain terms that putting her on title could be seen as a gift. In short, I take from the absence of a memory or notes that Mr. Olkovich never had a discussion with Dr. Brunton and never warned him about the issue, at least proximate to the time frame of the transactions putting Janet on title.

41Like Mr. Olkovich, Ms. Galea had no notes. Nor did she have any documents that might shed light on the situation. Her reporting letters do not mention anything pertinent to the issue. Some of her evidence relied on what she habitually did with clients, such as tell them the meaning of the language “for the natural love and affection” was that it implies that a gift is being made.

42Evidence of habit is not necessarily reliable: R. v. Pilon, 2009 ONCA 248. Habits are not invariably adhered to, depending on their kind. They are open to exceptions. In this situation, one would expect a lawyer would get explicit written instructions or at least make a memo to file to explain the purpose of the legal step being taken.

43In my view, Ms. Galea, like the Bruntons, was unaware that she was drifting into dangerous waters and it was necessary that care be taken. I am skeptical whether the Bruntons were told to get pertinent legal advice. There are no notes supporting this, no memo to file and no mention in the reporting letters. Because not giving this advice would leave Ms. Galea exposed, if this advice was given, one would expect it to be memorialized to protect herself.

44There was a major inconsistency in her evidence. In her Rule 39.03 questioning, Ms. Galea commented on the first transfer in 2016 to put Janet on title to the Grand Harbour townhouse. She testified that Dr. Brunton did not seem well at this time. With respect to the purpose of the transfer she said,

A… they wanted to add Janet to title basically because he was getting older and they wanted to make sure that the properties would transfer to Mrs. Brunton when he passed away and then, but also transferred to Janet after Mrs. Brunton passed away, without having to worry about probate.

He was trying to put all his ducks in a row before passing away because he wanted to protect his family.

Q. And so did, are there any notes of that you made with respect to this transaction?

A. Not really, it was just add Janet to title and it was based on discussions that we had.

45This shows that Ms. Galea understood that it was not intended that Janet was to receive part of the properties as a gift. It was for a much more limited purpose, consistent with what Marilyn testified.

46The lawyers’ evidence, because a lack of notes or other aid memoire and the effluxion of time, is—unfortunately--unreliable. Ms. Galea, who had the principal responsibility to clarify the Bruntons’ intentions, did not do so adequately. If Ms. Galea or Mr. Olkovich had been fully alive to the issue, I believe there would have been some indication in the documentary evidence one way or the other.

47The evidence of Marilyn concerning the purpose of putting Janet on title is the one clear piece of evidence in this trial. It is confirmed by Ms. Galea’s evidence at her questioning. Nothing in the documentary evidence specifically or with any force contradicts it. In addition, because Janet is the sole beneficiary under the wills, this tends to confirm that putting her on title was for survivorship and to avoid probate and not as a means of gifting a portion of the property to her during their lifetime: see Jackson, at paras. 23-31, 36.

IS MARILYN DISENTITLED TO THE RESULTING TRUST BECAUSE HER HANDS ARE NOT CLEAN?

48It was the submission of the respondent that Mrs. Brunton violated or was party to the violation of the Mareva injunction freezing Janet’s assets. She received money from Janet and she paid the Toronto Condo expenses with the money. Mrs. Brunton did not know the source of the money. Therefore, a resulting trust being an equitable remedy, Marilyn did not come to court with clean hands and she should not benefit from equitable remedies

49This argument has no merit. The respondent cannot show that Mrs. Brunton was party to or participated in the breach of the Mareva injunction. Even if it could be shown that there was a breach of the order, it would be a relatively minor matter. The clean hands doctrine is not a blunt instrument. In Embee Diamond Technologies Inc. v. Prince Albert (City), 2017 SKQB 128 the court held at para. 41,

This legal principle holds that where a party comes to court seeking equitable relief he must disclose all matters within his knowledge, whether favourable to him or not, and that he should be free of misconduct — in other words, he should have "clean hands". In past times, failure to adhere to this doctrine could lead to a dismissal of the request for relief. However, Robert J. Sharpe in Injunctions and Specific Performance, (Toronto: Canada Law Book, 2014) at ¶1.1030 to ¶1.1070, indicates that the better summary of this principle is that wrongdoing or the lack of clean hands on the part of an applicant should not deprive the applicant of a remedy unless the wrongdoing bears directly on the appropriateness of the remedy, and then the refusal of relief should be justifiable on some more precise basis than the "clean hands" maxim. [Emphasis added]

50There is also a wide discretion with respect to this equitable doctrine: Hrvoic v. Hrovic 2023 ONCA 508 at para. 18. Here, the purported lack of clean hands has very little to do with the remedy sought. To prohibit a resulting trust would be substantially disproportionate to any breach committed and would be entirely inappropriate.

CONCLUSION

51The application is allowed. There will be a declaration that the properties and the bank accounts were not intended to be gifts to Janet and that no title passed. Janet holds the properties in a resulting trust for her mother. The bank accounts were not intended to a gift either and Janet was put on them for purely pragmatic reasons. She has no ownership or beneficial interest.

52It is preferred if the parties could agree on costs between themselves. If not, the applicant will have 30 days from the day this judgment is released to file two-page submissions plus a bill of costs and the respondent will have 30 days from the date of the applicant’s filing with the same page limit.

D. E. Harris J.