This blog has been written by Mohena Singh, Associate at Fasken
A recent Ontario Superior Court decision, Giglione v. Giglione [1], is a useful reminder that disappointment does not always lead to a legal remedy when it comes to inheritance.
In this case, the Deceased got re-married in March 2014 and executed a will three weeks later, dividing the residue 30 percent to his spouse and 70 percent among his five children. Less than a year later, the Deceased and his spouse purchased a property as joint tenants and, in 2016, sold it and used the proceeds to purchase the matrimonial home, again as joint tenants, with both spouses named throughout the closing documents. The couple never separated and lived together in the home until the Deceased’s death in October 2025.
One of the Deceased’s sons brought a motion seeking leave to issue and register a certificate of pending litigation against the matrimonial home, arguing that the home was really his father’s, based on the source of the purchase funds, his father’s payment of expenses, and statements he said his father had made.
Where property is transferred for no consideration, a presumption of resulting trust generally arises, placing the onus on the transferee to prove a gift was intended. Where the parties are married spouses, however, section 14 of the Family Law Act (“FLA”) modifies this analysis. Subsection 14(a) provides that where property is held in the names of spouses as joint tenants, that fact is proof, absent evidence to the contrary, that the spouses intended to own the property as joint tenants.
The court found that the son had not disproven the application of section 14 of the FLA. Both properties were purchased in joint tenancy after the marriage and after the will was made, with both spouses named throughout the closing documents and represented by the same longstanding family lawyer. There was no suggestion of undue influence, and the Deceased, who had held sole title to other properties in the past, clearly understood the difference between joint tenancy and sole ownership. As the court put it, the title was part of the arrangement between husband and wife, regardless of the source of the funds used to acquire the property.
The court was equally unpersuaded by the argument that the Deceased’s alleged payment of all expenses for the home amounted to a severance of the joint tenancy. There was no evidence of an explicit, mutually communicated intention to treat the parties’ interests as a tenancy in common, and the couple remained married and living together in the home until the Deceased passed away. The right of survivorship therefore prevailed, meaning the matrimonial home passed to the surviving spouse outside the estate, and there was no triable issue as to its ownership.
A certificate of pending litigation is only available where a party can demonstrate a triable issue regarding an interest in land. Having found no triable issue as to ownership of the matrimonial home, the court denied the son’s request to register a certificate of pending litigation against it. The presumption in subsection 14(a) of the FLA, unrebutted on the evidence, was determinative not only of the underlying ownership question but also of the availability of this protective remedy.
This case underscores a point that is easy to overlook: how title is held in a home is not a mere formality. Where spouses hold a matrimonial home in joint tenancy, subsection 14(a) of the FLA creates a strong presumption in favour of that joint ownership, one that is difficult for an estate or a disappointed beneficiary to rebut after the fact. For clients who wish to preserve a share of a jointly acquired property for their children, the time to address that is when title is registered, through a cohabitation or marriage agreement, a declaration of trust, or by holding title as tenants in common rather than as joint tenants.
Thank you for reading.
[1] 2026 ONSC 5096.
