Introduction
Estate disputes often present a labyrinth of legal challenges, especially when multiple parties assert competing interests over estate assets. The Ontario Court of Appeal’s recent decision in Beirat v Khiyal, 2024 ONCA 790, exemplifies the complexities in determining estate entitlements. It also underscores two essential legal protocols: 1) correctly assessing issues of standing (the legal right to bring an action), and 2) recognizing that there is no presumption of equal ownership in domestic unjust enrichment claims (used to establish a right to family property after the breakup of a common-law relationship). The appeal serves as a stark reminder: thorough knowledge of foundational legal principles is essential, and counsel must be vigilant in their preparations to avoid fundamental missteps.
The case concerned the estate of Radwan Darwish Abutaa, who left behind unresolved legal and financial entanglements. Although separated from his wife, Basma Rizeq Beirat, for several years, they remained legally married, with two adult children and a history of divided assets. Following Mr. Abutaa’s death, Ms. Beirat sought to propel the family law proceedings, claiming equalization of net family properties, spousal support, and retroactive child support, among other entitlements. However, the intricacies of Mr. Abutaa’s life — including his subsequent common-law relationship with Manal Khiyal, with whom he co-owned significant assets — complicated her claims. To Ms. Beirat’s detriment, these circumstances presented critical legal hurdles that were not adequately addressed.
The Intestate Determination and Lack of Standing
A fundamental error involved Ms. Beirat’s standing to make trust claims. The Estates Administration Act specifies that only a legally appointed estate representative may pursue trust claims on behalf of an estate. Yet, at first instance, the motion judge neglected to resolve whether Mr. Abutaa had died intestate (without a valid will) or whether Ms. Beirat or the deceased’s adult daughter could serve as estate representative. This oversight allowed Ms. Beirat to proceed on shaky grounds, raising private claims that, by law, she lacked authority to assert. In estate disputes, standing is a bedrock principle: trust claims are personal to the estate and require an individual with the legal right to bring them forward. Indeed, the Court of Appeal has stipulated this determination as a requirement before commencing a new trial.
The failure to address Ms. Beirat’s lack of standing — first by counsel and then by the motion judge — was a costly misstep. A careful examination of this threshold issue would have clarified the validity of her claims early on, conserving resources and potentially sparing the parties and the Court the time and expense of an ultimately futile pursuit. Thoroughly assessing procedural hurdles is not merely a formality, but a critical step in ensuring that advocacy remains grounded in actionable rights — a point the Court of Appeal underscored.
Unjust Enrichment and the Absence of an Equal Ownership Presumption
The second major error lay in treating Mr. Abutaa and Ms. Khiyal’s relationship as an economic partnership warranting equal asset division — a presumption contrary to established principles governing unjust enrichment claims. The Supreme Court of Canada’s decision in Kerr v Baranow clarified that in common-law relationships, there is no automatic presumption of equal ownership; rather, ownership divisions should reflect each party’s contributions and intentions.
The motion judge mistakenly accepted the notion that Mr. Abutaa and Ms. Khiyal were “one economic unit,” thereby imputing equal ownership across various assets. However, Kerr explicitly rejects this approach, requiring evidence of contributions and shared intentions to determine respective shares in accumulated wealth. The presumption of equality is replaced by a case-specific inquiry into financial and non-financial contributions, a principle overlooked in Beirat v Khiyal. Counsel must stay attuned to governing precedents, as assumptions about ownership can easily undermine an otherwise valid claim. Being familiar with the seminal decision of the highest court in the land is a necessary, though insufficient, requirement in any case.
Effective Use of Submissions and Oral Advocacy
The appeal also highlighted a procedural oversight made in the proceeding: the motion judge made adverse findings regarding Ms. Khiyal’s credibility merely on the submitted written record, without the benefit of oral evidence. In the view of the Court of Appeal, the parties ought to have sought to adduce oral evidence, as it was not possible to assess credibility on the written record, even with the assistance of the transcript from the cross-examinations on the affidavits.
The decision to forgo advocating for this opportunity left the parties vulnerable to adverse and untested findings and left the motion judge in a difficult position. The Court of Appeal criticized both counsel and the motion judge for failing to clarify discrepancies found within the written record by way of oral evidence.
While written submissions are indispensable, effective advocacy often requires oral hearings, particularly when complex factual disputes are at play. In this case, the Court of Appeal ordered a new hearing on a “proper evidentiary record,” which will presumably include oral evidence.
Conclusion
Beirat v Khiyal illustrates the intricate nature of estate disputes, with competing interest and tangled assets requiring unwavering legal acumen. Fundamental principles, such as proper standing and accurate application of unjust enrichment doctrines, must be at the forefront of counsel’s approach. This decision is therefore a cautionary tale: counsel must be scrupulously prepared to guide complex issues through the courts, ensuring that procedural and substantive standards are fully met to secure a just and equitable resolution.
