Failure to Launch


In the recent case of Fraik v. Pilon (BC Supreme Court), a daughter lived in her mother’s home for over 30 years. During that time, the daughter carried out some renovations but paid no rent and contributed little in the way of household expenses. During the period they lived together, mother and daughter had various discussions concerning the division of the property. At some point, the mother transferred an interest in the property to her daughter and eventually created a joint tenancy of the property. After this transfer, the mother severed the joint tenancy and left part of her share of the property to another child.

A joint tenancy means that the mother and daughter were both on title to a property and each owns the whole of the property. Joint tenancy ownership includes a right of survivorship, meaning that when one of the parties dies, their interest “dies” with them.  The other party continues to own the whole of the property, such that no ownership interest passes to the estate of the now-deceased party. However, during their lifetimes, each party is entitled to “sever” the joint tenancy and create an interest in common which would give each party a distinct interest they could dispose of in accordance with their wishes, including after death.

After her mother’s death, the daughter sued her mother’s estate claiming (1) her mother agreed to not sever joint tenancy of a property they shared and there was an agreement as to the division of the property following the mother’s death; (2) the mother’s act of severing the joint tenancy was equitable fraud; and (3) that the mother’s estate was unjustly enriched by the daughter’s contributions.

The court dismissed the daughter’s action and found (1) there was no evidence of an agreement to not sever the joint tenancy and there was no basis to find that the property should be divided in accordance with the daughter’s allegations; (2) there was no evidence that the mother acted fraudulently when she severed the joint tenancy; and (3) there was no unjust enrichment because the daughter lived in the property with her family at no expense for 30 years.

The Court confirmed that the required analysis for determining whether there has been unjust enrichment was described in Wilson v. Fotsch  (BC Court of Appeal). That case outlined a three-part test for analysing unjust enrichment: (1) there must have been a benefit to the mother at the expense of the daughter; (2) the daughter must have suffered a deprivation, meaning there was a causal link between the mother’s enrichment and the daughter’s deprivation; and (3) there was no legal reason for the mother’s enrichment.

This case highlights some of the issues that can arise where a child lives the majority of their life in a parent’s home without contributing to the household expenses.