Court File and Parties
Court File No.: CV-24-00733805-0000
Date: 2026-02-17
Ontario Superior Court of Justice
Between:
CEDRIC TODD Applicant/Respondent by Counterclaim – and – ALLAN TODD; JENNIFER TODD; BRIAN TODD; SHARON TODD Respondent(s)/Applicant(s) by Counterclaim
Counsel: Dan McConville, Sukhdeep Gill, Counsel for the Applicant/Respondent by Counterclaim Self-represented, for the Respondents(s)/Applicant(s) by Counterclaim
Heard: February 5, 2026
Judge: MATHEN, J.
Reasons for Judgment
Overview
[ 1 ] This is an application for partition and sale of a residential property in Etobicoke and distribution of the ensuing proceeds; and a counter application for, among other things, a declaration of resulting trust in that property.
[ 2 ] The parties to this case are siblings. Cedric Todd brought the application in 2024. His siblings, Allan Todd, Brian Todd, Peter Todd, Sharon Todd and Jennifer Todd (the "Todd siblings"), brought the counter application in 2025. Because the parties are from the same family, I refer to them by their first names.
[ 3 ] The property is question is municipally known as 86 Waterbury Drive, Etobicoke, Ontario. The registered owners on title are Cedric Todd and Brian Todd.
[ 4 ] Cedric says that he owns 50% of the property. He argues that he and his late father Alex Todd purchased the home in 1976. Cedric's brother Brian was added solely for financing purposes. The Respondents/Applicants by counterclaim, including Brian, argue that the six surviving Todd siblings are each entitled to a one-sixth interest in the property based on (a) resulting trust, (b) constructive trust and/or (c) the siblings' unwritten agreement that they would co-own the property.
[ 5 ] While the Todd siblings had counsel earlier in the process, in November 2025 they elected to act without representation. They did not ask to adjourn this application. They prepared a factum. At the hearing, they received ample time to make their case. The court explained certain legal principles, such as the framework for partition and sale and the conditions under which a court might hold the proceeds of a sale in trust. The Todd siblings were invited to make legal arguments about the issues. The Todd siblings affirmed that they want to be recognized as the "owners" of the property.
[ 6 ] At the beginning of the hearing, I advised I was considering whether the matter might benefit from viva voce evidence. Ultimately, with the benefit of arguments from each side, and having considered the application record, I am satisfied that the issues were adequately canvassed at the hearing, so no additional evidence is required.
[ 7 ] This is a very sad case. I appreciate that the Todd siblings believe that Cedric has betrayed them. However, the court must decide the issues based on the law of Ontario, the application record and each party's burden of proof. Considering all those things, Cedric's application is granted, and the Todd siblings' application is dismissed.
Facts, Party Positions, and Case History
Facts
[ 8 ] The following facts are not in dispute.
[ 9 ] The Todd family was Alex and Hyacinth, and their seven children: Cedric b. 1947, Cynthia b. 1948, Allan b. 1951, Jennifer b. 1953, Brian b. 1954, Sharon b. 1957, and Peter b. 1959.
[ 10 ] Together with their parents, the parties emigrated to Canada from Pakistan in the 1970s. Everyone was living in Canada by 1972.
[ 11 ] Initially, the family rented a home located at 90 Waterbury Drive, Etobicoke, Ontario.
[ 12 ] In 1976, Cedric and his brother, Brian, were listed as tenants in common for a property located at 86 Waterbury Drive.
[ 13 ] The property was purchased for $68,000 consisting of:
a. $16,717.21 in cash;
b. $41,593.01 through assumption of a first mortgage from National Trust; and
c. $9,689.78 through a second mortgage from Household Realty.
[ 14 ] 86 Waterbury functioned as the Todd Family Home for many years.
[ 15 ] The mortgage on 86 Waterbury was discharged in 1992 or 1993. Currently, the home has a registered Line of Credit for $185,000. Counsel for Cedric advised that the balance is zero. At the hearing the Todd siblings would neither confirm or deny the balance stating that the matter is "under investigation".
[ 16 ] Alex Todd passed away in 1995. Hyacinth Todd passed away in 2009.
[ 17 ] One of the Todd siblings, Cynthia, passed away in 2018.
[ 18 ] On September 14, 2023, counsel for Cedric wrote to Brian advising that Cedric wanted to sell the property.
[ 19 ] Other than the agreement of purchase and sale, title and deed, and mortgage papers, there are no written documents, including trust documents, pertaining to 86 Waterbury.
[ 20 ] The record contains the following:
a. An Offer to Purchase 86 Waterbury for $68,000 in September 1976. The Offer is handwritten by Cedric. The purchasers are "Alex Todd, Brian Todd and Cedric Todd".
b. Four cheques from Alex Todd to National Trust: $1,276.48 on November 30, 1976; $5,447.00 on January 22, 1978; $5,033.34 on July 4, 1980; and $5,000.00 on July 10, 1982. The parties agree that these were lump sum mortgage payments.
c. A series of 35 cheques from Alex to Cedric – between November 5, 1984, and December 8, 1987 – in amounts of or around $370 each.
d. A handwritten note by Hyacinth Todd, dated July 15, 2003, stating that "This house which has been our Family Home, and everything in it, belongs to my children, to be shared among them."
Party Positions
Cedric
[ 21 ] Cedric deposes that he and his father purchased 86 Waterbury Drive for $68,000. The two had an unwritten agreement that, among other things:
a. They alone would contribute to the purchase;
b. Each of them would have a 50% interest;
c. Each of them would be responsible for half of the downpayment; and
d. The rest of the family could live at the property and make some contributions thereto.
[ 22 ] Cedric says that he and his father never agreed that the property would be held in trust for all of the Todd siblings.
[ 23 ] Cedric details his efforts to find 86 Waterbury and his negotiations for a private sale. He does not recall Brian Todd being involved with the purchase at first. He says that Brian came on as a purchaser strictly to qualify for the mortgage.
[ 24 ] Cedric says that at the time of the purchase, he was a mechanic at Dominion Glass and was also involved in real estate. He would purchase properties for the purpose of renting them out and reselling them once renovated.
[ 25 ] Cedric says that none of his siblings contributed to 86 Waterbury's purchase.
[ 26 ] Cedric contributed at least half of the contributions towards the purchase of the home. He gave his father cash, which he received from his tenants.
[ 27 ] Cedric contributed disproportionately towards the property's carrying costs over the years. He paid for extensive renovations, including rebuilding the washrooms and renovating the kitchen.
[ 28 ] Cedric has been unable to enjoy the property as two of his siblings have been living there without paying rent. They have refused to purchase Cedric's interest in the home or vacate or sell it.
Todd Siblings
[ 29 ] Allan, Brian, Jennifer, Sharon and Peter Todd state that Cedric and Brian Todd hold 86 Waterbury as resulting and constructive trustees for all the Todd siblings.
[ 30 ] The Todd siblings agree with Cedric that 86 Waterbury was purchased for $68,000. Their breakdown of the price is as follows:
a. $16,717.21 paid in cash sourced from contributions by the Todd siblings, other than Cedric Todd;
b. $41,593.01 through assumption of an existing first mortgage from National Trust, which was serviced and paid off over time by the siblings, other than Cedric Todd; and
c. $9,689.78 paid by Cedric Todd through a second mortgage from Household Realty.
[ 31 ] Accordingly, Cedric's only contribution amounted to one-seventh of the purchase price.
[ 32 ] The fact that the property was registered in Cedric and Brian's names reflects the family's culture. Traditionally, the eldest unmarried sons hold property for the benefit of everyone else.
[ 33 ] Everyone in the Todd family understood that 86 Waterbury would not be sold while any of the Todd siblings was living there.
[ 34 ] Over the years, the Todd siblings contributed to the home's maintenance and carrying costs.
[ 35 ] Cynthia Todd died in 2018. It appears that Cynthia had no children. She was married, but later separated and the court is advised that her ex-husband obtained an annulment. The Todd siblings say that Cynthia's one-seventh interest passed to the remaining six Todd siblings.
[ 36 ] Over the years, Cedric "has used the Property's equity as collateral for his own business and real estate investments."
[ 37 ] Jennifer and Sharon Todd currently reside at the Property and would be unable to obtain comparable, alternative housing.
[ 38 ] Allan, Jennifer, and Brian Todd swore affidavits.
[ 39 ] Allan Todd deposes that:
a. All of the money that Alex Todd contributed to the 86 Waterbury purchase was funded by "my siblings other than Cedric". This includes a $2,000 deposit, cheques for $8,000 and $6,717.21, and lump sum mortgage payments on November 30, 1976, January 22, 1978, July 4, 1980, and July 10, 1982.
b. The siblings, other than Cedric, would "contribute money which would be collected by my mother [Hyacinth Todd] and then given to my father to deposit into his account to cover the cheques."
c. Cedric's sole contribution to 86 Waterbury was the second mortgage. However, the mortgage was in the amount of $15,012,81, and Cedric only contributed $9, 698.79. Allan believes that Cedric used the rest of the money "to fund his lifestyle".
d. Allan advised Alex Todd "not to be a registered owner" of 86 Waterbury. Allan did this because of Alex's age and the fact he was already on title to another home. Alex agreed.
e. Cedric and Brian's names were put on title because of practices rooted in "traditional Pakistani/Anglo-Indian values" under which "it is customary for adult sons to assume responsibility for safeguarding family assets…on behalf of their siblings – particularly their sisters and any siblings who are children."
f. Allan recalls "discussions within the family, including with Cedric, at the time the Family Home was purchased and in the [ensuing] years" that the Family Home "was beneficially owned by all the siblings despite whose names were on title".
g. By August 3, 1982, the outstanding amount on the first mortgage for 86 Waterbury was $29,099.79.
h. There are no statements showing the balance of the mortgage after August 3, 1982.
i. In June 1984, the original mortgage was discharged and replaced with a new mortgage to Canada Trustco for $75,000.
j. Allan does not know why the new mortgage was for so much more than was needed to refinance the original mortgage. He believes that "the additional funds were given by the family to Cedric so he could purchase two rental properties."
k. Beginning in July 1984, the father Alex Todd began paying a monthly cheque to Cedric to cover a portion of the new Canada Trustco mortgage related to the original first mortgage. Those cheques varied from $350 and $370.
l. The mortgage was fully amortized in 2000.
m. Alex Todd never once said that Cedric "owned" the property.
[ 40 ] Jennifer Todd deposes that:
a. She has lived at 86 Waterbury since 1976.
b. In all that time, Cedric "has not meaningfully contributed to the payment of property taxes, utilities or the general upkeep of the Family Home".
c. Jennifer was responsible for banking on her father Alex's behalf. She had a Power of Attorney.
d. Jennifer does not recall ever depositing any large sums of cash from Cedric into Alex Todd's bank account. To the best of her knowledge, Alex did not receive any large cash deposits from Cedric.
e. Property taxes were paid through Alex's bank account until his death, after which they were paid by Hyacinth on the siblings' behalf.
f. Jennifer paid the home insurance premiums on behalf of her father while he was alive.
g. The Todd siblings have contributed to improvements to the home. Jennifer personally contributed substantial sums to renovations including new roofing and windows. She would not have done so had she believed that the home belonged to Cedric.
h. Over the years, Cedric has proposed selling the home. In or about 2020, Cedric suggested that Jennifer and Sharon move into his property in Scarborough. Jennifer and Sharon refused, finding such a move too disruptive.
i. Cedric began moving his things back into 86 Waterbury. There was a physical altercation between him and his sister Sharon.
j. On or around July 8, 2023, Cedric threatened to evict Jennifer and Sharon unless they began paying $3,500 per month in rent.
[ 41 ] Brian Todd deposes that:
a. When the Todd family decided to purchase 86 Waterbury, Brian was asked "to [be] on title together with Cedric because we were the two unmarried sons at the time."
b. The inclusion of Cedric and Brian's names on title never meant and never was intended to mean that they were the only owners.
c. Brian has always understood that he holds his interest in the Family Home for the benefit of all his siblings.
Case History
[ 42 ] The evidence and materials in this application are:
a. Cedric's Notice of Application dated December 18, 2024
b. The Todd siblings' Notice of Application dated February 19, 2025
c. Cedric's Affidavit dated July 2, 2025
d. Allan Todd's Affidavit dated August 21, 2025
e. Jennifer Todd's Affidavit dated August 21, 2025
f. Brian Todd's Affidavit dated August 22, 2025
g. Cedric's Reply Affidavit dated October 22, 2025
h. Cedric's Factum dated January 19, 2026
i. The Todd siblings' factum dated January 26, 2026
j. Cedric's Amended Factum dated January 30, 2026
k. Numerous exhibits attached to affidavits, and a list of Exhibits included with the Todd siblings' factum
l. An excerpt from Allan Todd's cross-examination on January 23, 2026
[ 43 ] On March 26, 2025, at Civil Practice Court (CPC), the parties agreed to a ½ day hearing during which the application and counterapplication would be heard together. Callaghan J. issued an endorsement with a timetable requiring cross examinations to be completed by October 30, 2025.
[ 44 ] At the CPC appearance, the Todd siblings were represented by counsel. On November 29, 2025, they signed a Notice of Intention to Act in Person. At the hearing before me, counsel for Cedric Todd advised that this change affected the timetable including cross-examinations on affidavits, which did not occur until late January.
Issues
[ 45 ] Given the facts, I have decided to deal with the counterapplication first.
[ 46 ] The issues for decision are:
a. Is the Todd siblings' claim statute-barred?
b. If the claim is not statute-barred, does the evidence support the Todd siblings' claims for resulting and/or constructive trust, or for an unwritten agreement that the property would be collectively owned?
c. Is Cedric entitled to an order for partition and sale?
d. Is Cedric entitled to receive 50% of the proceeds of sale?
e. Should the proceeds of any sale be held in trust?
[ 47 ] With regard to above issues:
a. Cedric must prove that the Todd siblings' claims are statute-barred.
b. The Todd siblings must prove their claims of resulting and/or constructive trust, and/or an unwritten agreement.
c. Cedric must prove that he is entitled to an order for partition and sale.
d. Cedric must prove that he is entitled to 50% of the proceeds of any sale.
e. The Todd siblings must prove that the proceeds of any sale should be held in trust.
Analysis
[ 48 ] The facts as I find them are contained in the following analysis.
Preliminary Findings
[ 49 ] Both sides, but particularly the Todd siblings, refer to many events, before and after the purchase of 86 Waterbury, that are not relevant to this hearing. For example, whether and how Allan and his father Alex bought a house for Cedric in Brampton in 1973 has little relevance to the purchase of 86 Waterbury. Nor is it relevant that, in 1993, Allan "personally helped to secure a $32,500 loan" for Cedric's business. I appreciate that the Todd siblings mention these events to support the family dynamics they say are in play. The court must focus on the purchase of 86 Waterbury, the evidence for resulting and/or constructive trust, and the evidence for an unwritten agreement to hold the property collectively for all the siblings.
[ 50 ] Jennifer and Cedric's affidavits discuss a fight at the house sometime in 2021. Jennifer deposes that Cedric "punched" and "shoved" their sister, Sharon. Cedric says that Jennifer and Sharon "attacked" him. Jennifer says that Sharon made a police complaint, but there is no other evidence of this. Sharon Todd did not swear an affidavit. Given the inconsistent evidence about the fight, there is no proof on a balance of probabilities that an assault happened in the way that Jennifer describes. That allegation therefore plays no role in my analysis.
Issue One: Is the Todd siblings' claim statute-barred?
The Law
[ 51 ] Under the Real Property Limitations Act, R.S.O. 1990, c. L.15 9 ("RLPA"), s. 4, no person shall "bring an action to recover any land…but within ten years next after the time at which the right…to bring such action, first accrued". Furthermore, pursuant to s. 15, the expiration of the limitation period for bringing an action as set out in the RLPA results in the right to bring such an action being "extinguished".
[ 52 ] The RLPA's use of the term "an action to recover any land" includes a claim "for an ownership interest" and, consequently, a claim that lies in equity: Studley v. Studley, 2022 ONCA 810, 78 R.F.L. (8th) 410, at para. 29, citing McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561, at para. 39.
[ 53 ] Cedric must show that the 10-year limitation period under the RPLA has elapsed, such that the Todd siblings are out of time to make their claims regarding 86 Waterbury.
Application
[ 54 ] The issue is when the Todd siblings knew that Cedric thought he had a greater interest in 86 Waterbury than the one-seventh or one-sixth interest they believed him to have. In particular, did the Todd siblings know this more than ten years before they commenced their counterapplication on February 19, 2025?
[ 55 ] As explained below, I find that they did.
[ 56 ] In his affidavit, Allan Todd deposes that:
a. He recalls family discussions, that included Cedric, "at the time the Family Home was purchased and in the years that followed" where the family agreed and understood that 86 Waterbury "was beneficially owned by all the siblings despite whose names were on title."
b. Cedric never stated that he "owned" the home while their father Alex was alive.
c. "It was only around the year 2020 that Cedric began to deviate from the shared understanding."
[ 57 ] However, under cross-examination in January 2026, Allan states that:
a. "After my father passed away [in 1995], Cedric says to my sisters, 'Hey I own this property'."
b. As a result, Allan says, his sisters Sharon and Jennifer went to Hyacinth, who said that Cedric was only "joking". However, Hyacinth then wrote the note referenced at paragraph 20 of these reasons. Allan said he had spoken to Jennifer and Sharon in preparation for his deposition, and they confirmed the information.
c. Allan did not see the note until after his mom passed away in 2009.
[ 58 ] Jennifer Todd's affidavit does not speak to her interaction with Hyacinth Todd about Cedric's statement that he owned the house, or when she became aware of the note that Hyacinth wrote.
[ 59 ] The Todd siblings' factum states at paragraph 31 that "Cedric first mentioned that he owned 100% of the property around 2002-2003."
[ 60 ] For the following reasons, I find it more likely than not that, prior to February 19, 2015, the Todd siblings knew that Cedric believed that he owned or partially owned 86 Waterbury:
a. The Todd siblings produced a note from Hyacinth Todd. They did so because they believed that it would strengthen their claims.
b. The note is dated July 15, 2003.
c. According to Allan, Hyacinth thought that Cedric was "joking" when told that he said he was the home's owner. Yet, she wrote the note anyway. I find it most likely that Hyacinth did that because one or more of her children asked her to.
d. Under cross-examination, Allan said that Jennifer and Sharon spoke with Hyacinth about this issue, which means that Jennifer and Sharon knew about Cedric's statements by, at least, 2003.
e. In her sworn affidavit, Jennifer Todd says nothing to contest the above facts.
f. Brian Todd's affidavit does not speak to the above facts. Sharon and Peter Todd did not swear affidavits.
g. Allan says "they" discovered the note after his mother died. Hyacinth Todd died in 2009. Allan did not say exactly when he became aware of the note, but having reviewed his statements under cross-examination, I am satisfied that it was around or shortly after his mother's death. There is no evidence that Allan only became aware of the note after 2015.
h. According to the Todd siblings' factum, Cedric stated that he owned 100% of the property sometime in 2002-2003.
[ 61 ] I find that Jennifer and Sharon, at least, knew that Cedric believed the house was his in 2003; and Allan knew that shortly after his mother died in 2009. Given the closeness of the Todd siblings, as evidenced in all of their materials, I find it more likely than not that Brian, Sharon and Peter became aware of this information from Jennifer, Sharon and Allan a short time after the above events, and certainly after Hyacinth's note was found in or around 2009.
[ 62 ] As a result, I am satisfied that, prior to February 15, 2015, more than ten years before they commenced their own application, the Todd siblings knew of relevant facts under which their "right" to claim an interest in the real property located at 86 Waterbury began to accrue. Accordingly, the Todd siblings' claim is statute-barred and their claims and rights in relation to 86 Waterbury have been extinguished.
[ 63 ] For completeness, I will now consider the merits of the Todd siblings' counter application.
Issue Two: If the claim is not statute-barred, does the evidence support the Todd siblings' claims for resulting trust, constructive trust, and/or an unwritten agreement for collective ownership?
[ 64 ] In their Notice of Application, the Todd siblings seek a declaration that 86 Waterbury is held by Cedric and Brian Todd "as trustees under a resulting trust for the benefit of the six surviving Todd siblings." The Todd siblings' materials suggest that the resulting trust arose when the property was purchased, which would be a "purchase money resulting trust".
[ 65 ] Later in the Application the Todd siblings state that Cedric and Brian Todd also hold the property "as constructive trustees" for them. The Todd siblings describe their financial contributions to the property such that, should Cedric a receive more than a one-sixth share, he would be unjustly enriched.
[ 66 ] Although not explicitly pleaded, the Todd siblings' materials and arguments suggest that there was an unwritten agreement among the surviving siblings that they collectively owned the property.
[ 67 ] The Todd siblings must prove these claims.
The Law
[ 68 ] As held in Kim v. Kim, 2014 ONSC 4773, at para. 8, citing D.W.M. Waters, Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984):
[A] resulting trust arises whenever legal or equitable title to property is in one party's name, but that party, because he is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner, or to the person who did give value for it.
[ 69 ] The trust is presumed when property is purchased with the money of one person, but title is in the name of another, although there is no written evidence of the trust: Kim, at para. 9, citing Anger and Honsberger, Real Property, 2nd ed. (Aurora: Canada Law Book, 1985) vol. 1, at pp. 646-47.
[ 70 ] A purchase money resulting trust is formed when:
a. The trustee has title to the property;
b. The claimant supplied part or all of the purchase price when the property was being bought from a third-party and transferred into the alleged trustee's name; and
c. The claimant acted throughout as a purchaser.
Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at para. 1; Kim, at para. 14, citing D.W.M. Waters, at pp. 302, 305; Bradshaw v. Hougassian, 2024 ONCA 425, 173 O.R. (3d) 63, at para. 8.
[ 71 ] To establish a constructive trust claim based on unjust enrichment, a claimant must show that:
a. A party benefited from an enrichment;
b. The enrichment was to the detriment of the party seeking a constructive trust; and
c. There is no juristic reason for the enrichment.
Djekic v. Zai, 2015 ONCA 25, 54 R.F.L. (7th) 1, at para. 12. See also Kerr v. Baranow, 2011 SCC 10, 2011 SCC 86, [2011] 1 S.C.R. 269, at para. 50.
[ 72 ] The Statute of Frauds, R.S.O. 1990, c. S.19, s. 2, dictates that interests in land can only be assigned, granted or surrendered "by deed or note in writing" and must be "signed by the party so assigning…or the party's agent".
Application
i. Resulting Trust
[ 73 ] The Todd siblings have not adduced sufficient evidence to make out a purchase money resulting trust. While the first branch of the test is satisfied (Cedric has title), the other two branches are not.
[ 74 ] With respect to supplying part or all of the purchase price, there is no evidence of how much money, if any, the Todd siblings provided towards the purchase price:
a. The Todd siblings agree that Cedric took out a second mortgage for $9,689.78. The dispute is over who contributed to the $16,717.21, which was provided from cheques drawn from Alex Todd's bank account.
b. Jennifer Todd's affidavit does not state whether and, if so, how much money she personally provided towards the purchase price.
c. Brian Todd's affidavit does not state whether and, if so, how much money he personally provided towards the purchase price.
d. Allan Todd's affidavit states that Alex Todd and the Todd siblings "pool[ed] their resources so that an offer could be made". He deposes that the money provided by Alex Todd for the purchase really came from the Todd siblings. There is no corroboration for this, such as cheques made out from the siblings to their father. Nor are exact amounts given.
e. Allan's explanation for the lack of any direct flow of funds from the siblings to their father Alex is that that would have been "insulting" to him, so the siblings gave funds to their mother Hyacinth instead. Yet, elsewhere in their materials, the Todd siblings described a highly communal and interdependent family dynamic. The idea that the siblings needed to disguise their assistance to their father is internally inconsistent and, consequently, not persuasive.
f. Allan says that all of the cheques his father Alex wrote came from "money contributed by my siblings other than Cedric". I find the pointed exclusion of Cedric from any family "pooling" to be not believable.
g. Even if the Todd siblings did contribute some money towards the purchase price, there is no evidence that it exceeds the 50% interest owing to Brian Todd, who states that he owns the home in trust for his siblings.
h. In their factum, the Todd siblings cite Andreacchi v. Andreacchi, 2023 ONSC 4877. In that case, a mother conveyed a property to some but not all her children before her death. The question was whether that conveyance was a gift which would render it free from obligation to any other family members, or a transfer to those children to hold it in trust for the mother's estate. The court affirmed that where there is a gratuitous transfer, "there is a rebuttable presumption that the transferor intended to create a trust rather than make a gift": at para. 74. The Todd siblings argue that "the facts in Andreachi are quite similar to those in their case, and this recent decision provides strong support for their position." I do not find Andreachi helpful because, in that case, the mother was the title holder. The court acknowledged that where a parent makes a gratuitous transfer to a child, a resulting trust may be presumed: see also, Mroz v. Mroz, 2015 ONCA 171 at para. 72. There was no such gratuitous transfer in this case, because Alex Todd never had title to the home.
[ 75 ] For similar reasons, the third component for this type of resulting trust also fails. There is no evidence that any of the Todd siblings, except Brian, acted as the purchaser.
[ 76 ] Therefore, the Todd siblings have not made out a purchase money resulting trust.
ii. Constructive Trust
[ 77 ] The Todd siblings also have not made out constructive trust based on unjust enrichment. While there may have been some modest enrichment, none of the siblings suffered a deprivation.
[ 78 ] With respect to enrichment:
a. I am not persuaded that the Todd siblings paid the mortgage so as to enrich Cedric. First, Cedric deposes that he and his father paid the mortgage and there is evidence of dozens of cheques from Alex Todd to both to the mortgagee and Cedric, that clearly went towards the mortgage. Second, there is no paper evidence that the Todd siblings contributed anything towards the mortgage.
b. I do accept that over the years Jennifer Todd contributed towards at least some of the home's maintenance and carrying costs. This could establish some enrichment to Cedric.
[ 79 ] That said, even if some enrichment is established, there is no evidence that it was "to a party's detriment". The Todd siblings acknowledge that, over the last fifty years, they have all lived in the house at various times. They derived the benefit of that use and enjoyment. Furthermore, none of the siblings appear to have paid rent to Cedric or Brian. Therefore, I am not persuaded that any of the Todd siblings have suffered a loss from any payments they made.
[ 80 ] Given that the first two components of unjust enrichment are not made out, it is not necessary to consider the third component: whether there was a juristic reason for the enrichment.
iii. Unwritten Agreement
[ 81 ] With respect to whether the siblings had an unwritten agreement for collective ownership based on cultural and familial norms, in this case the Statute of Frauds bars such a finding. There is no signed written agreement or other substantiating document that provides the Todd siblings other than Brian with an interest in the property. The only written document is the note from Hyacinth, who was not a party to the alleged agreement. The Todd siblings have not offered any contrary precedent to overcome the operation of the Statute of Frauds in this instance.
iv. Conclusion
[ 82 ] At the hearing, counsel for Cedric suggested that, to the extent that resulting trust is at play in this case, it is the father, Alex Todd, who had the strongest claim. Cedric states that he purchased the home with Alex, and that Brian was only added for financing purposes. The evidence shows monies drawn from Alex's bank account to pay the mortgage over several years.
[ 83 ] I agree with counsel that the Todd siblings appear to be making a claim on behalf of Alex, arguing that they were the true source of his funds. Such a claim should have been made after Alex's death in 1995, through his estate. Fifty years after the house was purchased, thirty-one years after Alex's death, and without any documentation for critical elements of the counterapplication, it is not possible to find in favour of the Todd siblings.
[ 84 ] The counterapplication is therefore dismissed in its entirety.
Issue Three: Is Cedric entitled to an order for partition and sale?
[ 85 ] Cedric seeks an order for partition and sale of 86 Waterbury Drive.
The Law
[ 86 ] Joint tenants and tenants in common, among others, have the right to seek an order for sale of their property: Partition Act, R.S.O. 1990, c. P.4, s. 2.
[ 87 ] Because joint tenants have a statutory, prima facie right to sell their property, the court has a narrow discretion to decline to grant them an order. The court may, however, decline if the requesting party's conduct is "malicious, vexatious or oppressive": Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (Ont. C.A.), at para. 2.
[ 88 ] While "oppression" can include "hardship", it requires more than financial inconvenience or adverse consequences: Walker v. Walker, 2024 ONSC 1508, at para. 18, citing Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 75 O.R. (3d) 478 (C.A.), at para. 2.
[ 89 ] When one party goes to court to sell a property against the wishes of other parties, there inevitably will arise disputes and bad feeling. Such disagreements do not amount to hardship or oppression. Bringing an application for partition and sale does not amount to bad faith, nor does it constitute oppressive or vexatious conduct: Charbonneau v. Gracie, 2022 ONSC 3804, 43 R.P.R. (6th) 105, at para. 25.
Application
[ 90 ] As a tenant in common of 86 Waterbury, Cedric has a prima facie right to sell it.
[ 91 ] The Todd siblings feel betrayed and blindsided by Cedric. They say that, had they known what Cedric's intentions were, they would have done things very differently.
[ 92 ] Notwithstanding the hard feelings and complicated family history, I am not persuaded that Cedric's claim is vexatious. As toxic as the relationship is between these siblings, Cedric has a legal right to seek the partition and sale of the home. Furthermore, Cedric is 78 years old and says he needs the proceeds of a sale for his retirement security. While Cedric does not need a reason to seek an order for partition and sale, I find his stated reason to be plausible enough to overcome any suggestion that he has acted maliciously.
[ 93 ] The Todd siblings state that Jennifer and Sharon Todd live in the property, are elderly and will be hard pressed to find suitable alternate accommodation. At the hearing I was advised that they need 86 Waterbury for their retirement.
[ 94 ] Jennifer and Sharon's situation is likely difficult and highly inconvenient. I accept that they may suffer adverse consequences and, even, some hardship. Nevertheless, I am not persuaded that that hardship rises to the level of oppression required to defeat Cedric's claim.
[ 95 ] Therefore, having considered all the circumstances, Cedric has established his right to an order for partition and sale.
[ 96 ] At the hearing, Cedric's counsel said that his client would be reasonable. He does not expect that Jennifer and Sharon will be ordered to vacate the home forthwith. Jennifer and Sharon are elderly and require some time to get their affairs in order. Cedric's counsel noted that it may well be easier to sell the home after the winter, and that Cedric may be amenable to having his interest bought out. A short delay will allow the Todd siblings to decide if they wish to pursue that option. Consequently, I shall order that the house may not be listed for sale for 75 days. The home must be vacant by May 8, 2026.
Issue Four: If Cedric is entitled to sell the property, is Cedric entitled to receive 50% of the proceeds?
[ 97 ] Cedric and Brian are the co-owners of 86 Waterbury. Cedric seeks a 50% share in the home. He bears the burden of proof on this issue.
[ 98 ] Given that I have dismissed the counterclaim, deciding how to split the proceeds involves only Cedric and Brian. The other Todd siblings are not relevant to this question.
[ 99 ] Cedric's evidence is that he purchased the home with his father. Brian Todd did not give specific evidence of how much money he contributed to the purchase, or how much he has contributed over the years.
[ 100 ] In the circumstances, I find that Cedric has established that, as a tenant in common who contributed to the original purchase and to the mortgage and to the home's costs over the years, he is entitled to a 50% share of the net proceeds.
Issue Five: Should the proceeds of any sale be held in trust?
[ 101 ] Given that I have dismissed the Todd siblings' counterapplication, there is no reason to order the proceeds of sale to be held in trust. As a tenant in common, Cedric is entitled to realize his share of the home's value once it is sold.
Costs
[ 102 ] At the conclusion of the hearing, I asked the parties to upload their bills of costs. I was advised that there are no offers to settle.
[ 103 ] Cedric incurred costs of $47,661.48.
[ 104 ] The Todd siblings incurred costs of $57,280.50.
[ 105 ] In deciding costs, I have considered r. 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In particular, the general principles guiding my discretion are listed in r. 57.01.
[ 106 ] I have reviewed Cedric's bill. Considering the length and steps of this proceeding I find the lawyers' fees, and time expended, to be reasonable.
[ 107 ] Cedric prevailed on this hearing and is entitled to his costs. I do not find that the Todd siblings behaved improperly or vexatiously. I am mindful of the fact that they represented themselves at the hearing.
[ 108 ] In the circumstances, I find that costs of $35,000 are appropriate. The costs shall be payable within 120 days, so that, if possible, they can be deducted from the proceeds of sale.
Order
[ 109 ] In conclusion, I make the following order:
a. The Application is granted, subject to the following terms:
i. The property municipally known as 86 Waterbury Drive, Etobicoke, Ontario, may be listed for sale no sooner than 75 days from the date of this Order.
ii. The Respondents must vacate the property on or before May 8, 2026.
iii. Cedric shall provide Brian with the names of 3 qualified and arms length Listing Agents. Brian shall choose one within 7 days of receipt, failing which Cedric shall choose.
iv. The Respondents/Applicants by counterclaim shall within 120 days pay the costs of this Application/Counterapplication in the amount of $35,000 inclusive of disbursements and HST.
b. The Respondent Todd siblings' Application is dismissed.
c. The Applicant Cedric Todd's submitted draft order shall issue consistent with the above provisions.
Mathen, J.
Released: February 17, 2026