“The Applicant relies on the ten-year limitation period under s. 4 of the Real Property Limitations Act, and submits that, as more than ten years has expired since the date of separation, the Respondent’s claim of a resulting trust is statute-barred.
Section 4 of the Real Property Limitations Act states, in material part:
No person shall …bring an action to recover any land…within ten years next after the time at which the right…to bring such action, first accrued to the person…bringing it.
In McConnell v. Huxtable, 2014 ONCA 86, the court held that s. 4 of the Real Property Limitations Act applies to claims based in unjust enrichment seeking to impose a remedial constructive trust over real property within the context of a family law dispute. By the same rationale, the same limitation period applies to claims seeking a resulting trust over real property within a family law dispute (or a civil dispute for that matter) (see McConnell, at para. 29, quoting from Hartman Estate v. Hartman Holdings Ltd. (2006), 2006 CanLII 266 (ON CA), 263 D.L.R. (4th) 640 (Ont. C.A.)).
In McConnell at paras. 54 and 52, the Court of Appeal stated, albeit in the context of an constructive trust case, that “ordinarily the claim should be taken not to have been discovered until the parties have separated and there is no prospect of resumption of cohabitation” because “[i]n the family law context, this [discovery of the claim] may typically occur on the date of separation, when shared assets, including real property, are divided and the possibility therefore arises of one party holding onto more than a fair share”.
The key issue is what is the triggering date for the commencement of the ten-year limitation period. Both parties have operated under the assumption that the triggering date is the date of separation.
I agree with this conclusion. As at the date of separation, the Respondent knew that the Applicant was a joint tenant of the Property with him and could exercise a right to request a partition and sale as part of a request for division of assets. It is uncontested that he had the facts that gave rise to his claim of resulting trust as at that date.
The limitation period commenced on the date of separation in the circumstances of this case, since that is the date upon which the family property is to be divided, and the possibility therefore arose that the Applicant would assert ownership over the Property. The date of separation is when the Respondent’s right to bring a proceeding first accrued, consistent with McConnell.
The date of separation is August 17, 2012. The Respondent’s factum (reflecting first notice of the claim) is undated but was delivered just prior to the return of the motion. His Answer, pleading a resulting trust, is dated July 31, 2023. More than ten years have passed since the agreed upon date of separation.
As more than ten years since the date at which his right to bring a proceeding accrued has lapsed prior to the Respondent bringing his proceeding claiming a resulting trust in his Answer, this claim is, in any event, barred from proceeding under s. 4 of the Real Property Limitations Act. As a result, there is no genuine issue requiring a trial as relates to the resulting trust claim.”