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Together Forever Isn't Always True

4 minute read

The area and practice of family law is shaped by and evolves through societal change, legislation, global events (like a pandemic), and through judicial decisions of the Courts in Ontario and across Canada. FamilyMatters is the Lerners Family Law Group’s weekly update on how that change is being made:

When a couple decides to move in together, they are often thinking about the opening of a new chapter in their lives and not preparing themselves for a potential end. In the recent case MacIntyre v. Winter, the Court of Appeal made a strong signal that parties may want to consider taking a more business-like approach when they begin cohabiting in terms of the financial arrangements to protect themselves from the unknown.

In MacIntyre, a common-law same-sex couple purchased a home in 1994. Title was registered as joint tenants, with a right of survivorship.  Winter’s (the Appellant) mother gifted $100,000 to him to apply to the purchase price of the home, and the balance was financed by way of a mortgage. The parties agreed that MacIntyre (the Respondent) was responsible for the mortgage payments and the Appellant was responsible for all other home expenses.

In 2005, the parties purchased a more expensive home. Title was again registered as joint tenants, with a right of survivorship. The purchase of the residence was financed through a mortgage, the proceeds of the sale of the first home, and additional monies contributed by Winter. Unfortunately, the couple experienced harassment by residents in their neighbourhood because they were a same-sex couple. This created serious emotional stress, and contributed to a breakdown in their relationship. They separated in 2017.

At trial, Winter sought to receive the first $480,248.82 of the net proceeds of the sale of the home, representing his initial contributions. He claimed he had never intended to gift the deposit monies to MacIntyre. MacIntyre disagreed, and sought an equal division of the net proceeds of sale. His evidence was that the parties had never discussed whether Winter was entitled to a return of his initial contributions, and there was no documentation evidencing such an agreement. The trial judge found that the proceeds of the home should be divided equally, finding that there never was an intention that Winter was to be repaid the deposit and down payment. Rather, the judge found that Winter intended to gift the deposit and down payment to the Respondent as part of their financial arrangements for the purchase and use of the homes.

The Court of Appeal found that the trial judge erred in finding that Winter gifted the down payments. Nordheimer J., writing for the Court, stated that the court must examine the balance of the evidence to determine what the intention was with respect to the monies that was contributed to the purchase of the two homes, and that the central point is the intention of the transferor, namely Winter. It is not the intention of both parties that is relevant, rather the Respondent must establish that it was the Appellant’s intention to gift the deposit monies.

The Court of Appeal noted that in this case the evidence both parties established was that the home was put in joint tenancy to ensure that, if either party predeceased the other, the home would go to the surviving partner.  The Court found that the trial judge did not appear to have recognized that survivorship can be separated from the intent to gift. This failure was an error.

The Court of Appeal ordered that Winter be paid the sum of $480,248.82, together with accrued interest, from the proceeds of the sale of the home and that the remaining balance be split equally, subject to MacIntyre repaying the amount due for the overpayment of spousal support.

As pointed out by the Court of Appeal, this is another case where parties wound up in litigation because they did not take a commercial approach to their domestic arrangements from the outset.  A domestic contract can be useful to help protect parties, and establish and clarify expectations in the event of a relationship breakdown.


At a time when much is at stake, there is no substitute for having the experienced and skilled advocates from Lerners at your side. You need compassion and understanding, but you also need someone to protect your interests. Our Family Law Group tailors its approach and strategy to your goals to achieve the best possible outcome. Our team, located in Toronto and London, serving the GTA, Southwestern Ontario, and beyond, has the experience to handle matters both straightforward and complicated, without ever over-lawyering or contributing to unnecessary conflict. With a successful track record that includes some of Canada’s most complex family law cases, we are focused on getting you results and helping you move forward. Contact us to see how we can help.

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Sarah Conlin

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