A Constructive Trust is One of Two Remedies

A constructive trust is one of two remedies that a court may utilize once it has found an unjust enrichment. An action for unjust enrichment arises when three elements are satisfied: (1) an enrichment, (2) a corresponding deprivation, and (3) the absence of a juristic reason for the enrichment. (Ogle v. Ogle, Peter v. Beblow, Pettkus v. Becker, Boland v. Boland)

In the context of adult sons' claim of a constructive trust over their mother's dairy farm, the Ontario Court of Appeal concluded that the sons were required to prove that:

(1) in providing the improvements to their mother's farm, they prejudiced themselves with the reasonable expectation of receiving something in return from her and that she freely accepted the benefits conferred by her sons in circumstances where she knew, or ought to have known, of that reasonable expectation;

(2) considering all of the relevant circumstances, it would be neither just, nor fair, to permit their mother to retain the benefit which they conferred on her without requiring that she compensate them for the cost of the improvements. (Campbell v. Campbell)

In Boland v. Boland, in the context of a family law dispute, the court considered whether the husband had a property interest in the farm owned by his father at the date of separation. The husband's father was the registered owner of the lands on which the matrimonial home was located. Marshman J. noted that a constructive trust is one of two remedies that a court may utilize once it has found an unjust enrichment. An action for unjust enrichment arises when three elements are satisfied: (1) an enrichment, (2) a corresponding deprivation, and (3) the absence of a juristic reason for the enrichment. Here the husband conferred a benefit on his father's land and suffered a detriment in that he spent $37,000 of his own money on land which did not belong to him. However, Marshman J. held that there was a juristic reason for the enrichment. Specifically, the husband conferred the benefit while voluntarily acting in his own self-interest. He was conferring a benefit not only on his father as the registered and beneficial owner of the property but also on himself as tenant at will. The farm was the husband's livelihood, and he did not pay rent to the father

In Simonin v. Simonin affirmed in 2010 ONCA 900, the plaintiff Mary commenced an action on her behalf and as estate trustee for the estate of her deceased husband, Franco, against her husband's mother, Matilda. Mary sought a declaration that she was entitled to a portion of the net proceeds of sale of certain property as a result of unjust enrichment flowing to Matilda. The Property was a portion of a farm comprised of two parcels of land. Franco did extensive renovations to the Property and oversaw additional improvements to the property. Daley J. considered the three elements of unjust enrichment and held that (a) Matilda received enrichment in that the Property was improved and its value increased; (b) however there was no net detriment to Mary and Franco, after considering the offsetting value of the benefits received by Mary and Franco; and (c) there was a juristic reason for Matilda to retain the benefit as Mary and Franco acted voluntarily in their own self-interest.

In Ogle v. Ogle the Saskatchewan Court of Appeal upheld the trial judge's finding that the son's estate had a constructive trust over farmland owned by his mother. The Court noted that the remedy of constructive trust can arise based on unjust enrichment. In this case, the son acted to his detriment in contributing to the farm and there was no other juristic reason to explain the parent's actions.

In Campbell v. Campbell, the plaintiffs claimed restitution as a result of unjust enrichment. The plaintiffs operated a dairy farm on a property owned by their mother, the defendant. During the course of their occupancy of the farm, they modernized it at their own expense. In their action against their mother, they claimed a declaration that they had operated the dairy farm as partners in the family farm and alternatively claimed based on unjust enrichment. The trial judge found that the plaintiffs were entitled to restitution as a result of the unjust enrichment of the defendant. On appeal, Borins J.A. granted the defendant’s appeal and concluded that there was no unjust enrichment.

The test for unjust enrichment was laid out by the Supreme Court of Canada inPettkus v. Becker, [1980] 2 SCR 834, 1980 CanLII 22 (SCC). Dickson J. expressed the test as follows:

[T]here are three requirements to be satisfied before an unjust enrichment can be said to exist: an enrichment, a corresponding deprivation and absence of any juristic reason for the enrichment.

In Peter v. Beblow, [1993] 1 SCR 980, 1993 CanLII 126 (SCC), Madame Justice McLachlin descrived an action for unjust enrichment as follows:

The basic notions are simple enough. An action for unjust enrichment arises when three elements are satisfied: (1) an enrichment, (2) a corresponding deprivation, and (3) the absence of a juristic reason for the enrichment. These proven, the action is established and the right to claim relief made out

In Boland v. Boland, 1996 CanLII 8096 (ON SC), in the context of a family law dispute, the court considered whether the husband had a property interest in the farm owned by his father at the date of separation. The husband's father was the registered owner of the lands on which the matrimonial home was located. Marshman J. noted that a constructive trust is one of two remedies that a court may utilize once it has found an unjust enrichment. An action for unjust enrichment arises when three elements are satisfied: (1) an enrichment, (2) a corresponding deprivation, and (3) the absence of a juristic reason for the enrichment. Here the husband conferred a benefit on his father's land and suffered a detriment in that he spent $37,000 of his own money on land which did not belong to him. However, Marshman J. held that there was a juristic reason for the enrichment. Specifically, the husband conferred the benefit while voluntarily acting in his own self-interest. He was conferring a benefit not only on his father as the registered and beneficial owner of the property but also on himself as tenant at will. The farm was the husband's livelihood, and he did not pay rent to the father:

[18] A constructive trust is one of two remedies which a court may utilize once it has found an unjust enrichment. Mr. Cudmore argues that once the prerequisites for unjust enrichment have been found, a remedy naturally follows and in this case the only logical remedy is a constructive trust. The case law makes it clear that there are three prerequisites which must be fulfilled before the court will find an unjust enrichment. For example, in Peter v. Beblow (1993), 1993 CanLII 126 (SCC), 44 R.F.L. (3d) 329 (S.C.C.), Madam Justice McLachlin, speaking for the majority, at p. 336 states as follows:

The basic notions are simple enough. An action for unjust enrichment arises when three elements are satisfied: (1) an enrichment, (2) a corresponding deprivation, and (3) the absence of a juristic reason for the enrichment. These proven, the action is established and the right to claim relief made out.

[19] There is no question that Mr. Boland conferred a benefit on his father’s land. While there was clearly a benefit to Mr. Boland at the same time, I have no hesitation in finding that he suffered a detriment in that he spent $37,000.00 of his own money on land which did not belong to him. The more interesting issue in this particular case is whether a court would find an absence of juristic reason for the enrichment in the particular circumstances of the case. If Mr. Cudmore cannot convince me that such would be the case in a law suit brought by Mr. Boland against his father, then his argument fails.

[20] In Black’s Law Dictionary, 6th ed. (1990), the word “juristic” is defined as follows: “pertaining or belonging to, or characteristic of, jurisprudence, or a jurist, or the legal profession”. This is, indeed, a very broad definition and tends to suggest, as does Madam Justice McLachlin in the Peter v. Beblow case, that, in determining whether or not the third requirement is met, the court may sometimes be simply deciding the issue of whether or not the enrichment is “unjust”. At p. 338 of the Peter v. Beblow case, Madam Justice McLachlin states:

…It is in connection with the third element – absence of juristic reason for the enrichment – that such considerations may more properly find their place. It is at this stage that the court must consider whether the enrichment and detriment, morally neutral in themselves, are “unjust”.

What matters should be considered in determining whether there is an absence of juristic reason for the enrichment? The test is flexible, and the factors to be considered may vary with the situation before the court. For example, different factors may be more relevant in a case like [Peel (Regional Municipality) v. Ontario, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762] at p. 803, a claim for unjust enrichment between different levels of government, than in a family case.

In every case, the fundamental concern is the legitimate expectation of the parties: Becker v. Pettkus [1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834]. In family cases, this concern may raise the following subsidiary questions:

(i) Did the plaintiff confer the benefit as a valid gift or in pursuance of a valid common law, equitable, or statutory obligation which he or she owed to the defendant?

(ii) Did the plaintiff submit to, or compromise, the defendant’s honest claim?

(iii) Does public policy support the enrichment?

[21] In reviewing the law in this matter, I found the discussion on the principle of unjust enrichment in Goff and Jones, The Law of Restitution, 3rd ed. (1986), illuminating. At p. 29 of the text, the authors have this to say:

It is not in every case where a defendant has acquired a benefit at the plaintiff’s expense that restitution will be granted. There are many situations where such a benefit has been acquired and yet it would obviously be wrong to award restitution. To take a simple example, if A gives B £100 as a gift, B acquires a benefit at A’s expense; yet clearly restitution should not, in the absence of some special circumstances, such as mistake or duress, be awarded. It is necessary therefore to identify the circumstances in which a defendant should make restitution for the benefit which he has received. These circumstances are subsumed in the principle that he must do so when the enrichment is unjust – hence the principle unjust of enrichment.

[22] Like the Canadian cases, the learned authors find three prerequisites to a claim for unjust enrichment, the first two being the same as those found in the Canadian cases. However, they define the third prerequisite as being “that it would be unjust to allow him to retain the benefit” (p. 16). Hence, the third requirement becomes not so much a condition as a limitation. The authors then divide the limitations into six broad classes, one of which is particularly appropriate to this case. That limitation reads as follows:

The plaintiff conferred the benefit while performing an obligation which he owed to another or otherwise while acting voluntarily in his self interest. (p.39)

[23] There can be no question in this case that Mr. Boland was voluntarily acting in his own self interest when he tiled the land. Whether or not he obtained a property interest in the land under the will of his father, he knew that he would have the right to use the land for at least as long as his father remained alive. The farm was his livelihood. He did not pay rent to his father. He was, therefore, conferring a benefit not only on his father as the registered and beneficial owner of the property, but on himself as the tenant at will. He had no reason to believe that that tenancy would be determined by his father at any time in the near future, as indeed it has not. Mr. Boland has continued to enjoy the use of the land. In those circumstances, I am not prepared to find that Mr. Boland would likely have been successful in a claim for a constructive trust at the date of separation. I am not satisfied that a court would have found it unjust to permit Mr. Boland Sr. to retain the benefit of the improved land. Accordingly, I am not convinced that Mr. Boland had an interest in the land on the date of the separation and the equalization payment due to Mrs. Boland will not be increased.

In Simonin v. Simonin, 2008 CanLII 58155 (ON SC), affirmed in 2010 ONCA 900, the plaintiff Mary commenced an action on her behalf and as estate trustee for the estate of her deceased husband, Franco, against her husband's mother, Matilda. Mary sought a declaration that she was entitled to a portion of the net proceeds of sale of certain property as a result of unjust enrichment flowing to Matilda. The Property was a portion of a farm comprised of two parcels of land. Franco did extensive renovations to the Property and oversaw additional improvements to the property. Daley J. considered the three elements of unjust enrichment and held that (a) Matilda received enrichment in that the Property was improved and its value increased; (b) however, there was no net detriment to Mary and Franco, after considering the offsetting value of the benefits received by Mary and Franco; and (c) there was a juristic reason for Matilda to retain the benefit as Mary and Franco acted voluntarily in their own self-interest:

Elements of Unjust Enrichment

(a) Enrichment of the Defendant

[63] On the evidence I find that the defendant received enrichment in that the Property was improved and its value increased as a result of the renovations carried out. There is no evidence that Mary personally did anything or contributed money, labour or materials that increased the value of the Property.

[64] I am thus of the view that the plaintiff has no personal right of action and it is only in her capacity as estate trustee that she can make a claim.

[65] It is asserted on behalf of the plaintiff that a “value added” approach is to be applied in determining the amount of enrichment that has accrued to the defendant and the corresponding quantum of damages to be awarded to the plaintiff.

[66] The plaintiff relies upon the appraisal report and evidence offered by appraiser Anne Helliker (“Helliker”). Based on her opinion, it is submitted that the contributory value of the improvements to the Property would have been at least $545,000.

[67] While I find that the renovations and improvements to the property were paid for by Spancrest and not by the plaintiff or Franco and as such the plaintiff’s action, in her personal capacity and as estate trustee, fails as no benefit was conferred on the defendant by the plaintiff or Franco, I will nevertheless consider whether the second element of unjust enrichment is present, namely a corresponding deprivation.

(b) Corresponding Deprivation

[68] In determining whether there has been any corresponding deprivation to a benefit received by the defendant the court should consider the “totality of what has passed between the parties”. Toth v. de Frias (1996), 128 W.A.C. 34 (B.C.C.A) at para. 20.

[...]

[98] I am of the view that in addition to the non-tangible benefits received by the plaintiff and Franco, the value of the benefits received by them was in the sum of $610,920 as compared to the contributory value to the Property resulting from the improvements in the amount of $230,000.

[99] I therefore find that the plaintiff has not established that she and Franco suffered a corresponding deprivation as a result of the benefits accruing to the defendant from the renovations and repairs carried out at the Property. I find that the benefits conferred whether by Franco, the plaintiff or Spancrest did not result in the plaintiff and Franco being unjustly deprived, since the benefits they received from the relationship with the defendant more than offset the contributions to the value of the Property. Fuller v. Matthews, 2007 BCSC 444 (CanLII), [2007] B.C.J. No. 656 (B.C.S.C.) at para 82; Thomas v. Fenton (2006), 2006 BCCA 299 (CanLII), 269 D.L.R. (4^th) 376 (B.C.C.A.) at paras. 24 – 25.

[...]

[108] In my view the plaintiff has not made out a prima facie case by demonstrating that there is no juristic reason from an established category allowing for the enrichment of the defendant.

[109] Further, even where there is no juristic reason from an established category of juristic reasons for the defendant retaining the benefit conferred, it may arise in circumstances where the plaintiff has been acting voluntarily in his own self interest. (Campbell, supra at para. 25) (Boland v. Boland (1996), 1996 CanLII 8096 (ON SC), 24 R.F.L. (4^th) 301 (Ont. C.t. (Gen. Div.)) at para. 22; Read v. Read (1995), Nfld. & PEIR 166 (P.E.I. Trial Div.) at para. 11.

[110] Evidence that a plaintiff conferred benefits in self-interest and/or evidence that a plaintiff benefited in return from their conferral of benefits tends to show that there was no reasonable expectation of the parties that the benefit would be compensated for by the defendant. (Campbell, supra at paras. 39 – 41).

[111] Obligations, such as those the plaintiff asserts exist, are not to be imposed upon a person without their consent and knowledge. As acknowledged by the plaintiff, she did not know of any agreement between Franco and the defendant that, were she to sell the Property she would repay Franco for the costs of the improvements made to the Property. Further, there is no evidence of any agreement with the defendant that she would compensate the plaintiff or Franco for the renovations to the Property under any circumstances.

[112] I thus find that any benefit conferred by the plaintiff and Franco upon the defendant, as a result of the renovations made to the Property, arose from the plaintiff and Franco acting voluntarily and in their own self-interest, and as such there is a juristic reason for the defendant to retain the benefit received by her.

[113] In Campbell, supra, Borins J.A. quoted with approval the article: by A. Drassinower, “Unrequested Benefits in the Law of Unjust Enrichment” (1998), 48 U. of T. Law J. 459. Borins J.A. makes reference to this article particularly with regard to the author’s discussion of the law of unjust enrichment for unrequested benefits. The author stated as follows at p. 460 of the article:

The law of unjust enrichment thus construes the absence of donative intent not unilaterally, as a subjective matter taking place in the plaintiff’s head, but rather bilaterally, as an inter-subjective matter taking place between the plaintiff and the defendant. Forcing the defendant to disgorge the benefit received in the absence of this bilaterality would amount to granting the plaintiff the privilege of unilaterally constituting another’s obligation. Unrequested benefits fall outside the law of unjust enrichment in that, having failed to display the required bilaterality, their disgorgement would itself be unjust. (Campbell paras. 1-32)

In Ogle v. Ogle, 2005 SKCA 14 (CanLII), the Saskatchewan Court of Appeal upheld the trial judge's finding that the son's estate had a constructive trust over farmland owned by his mother. The Court noted that the remedy of constructive trust can arise based on unjust enrichment. In this case, the son acted to his detriment in contributing to the farm and there was no other juristic reason to explain the parent's actions:

[12] In this case, the two possible heads upon which the remedy of constructive trust could arise, based on the law and facts in this case, are unjust enrichment and proprietary estoppel. While the trial judge did not make a ruling qua equitable right, the elements of at least unjust enrichment are present in his findings of fact.

[13] The elements of unjust enrichment are: (i) an enrichment of the defendant; (ii) a corresponding deprivation of the plaintiff; and (iii) an absence of juristic reason for the enrichment.[8]

[14] The trial judge in this case found these facts:

1. Ron Ogle acted to his detriment in contributing to the farm. Any compensation he received did not compensate him for his labours and there were also reasons for such payments other than mere compensation as a wage earner. [9]

2. In comparison with the parents’ treatment of their other children, there was no other juristic reason to explain the parent’s actions, i.e., that they intended to “give” him the land.[10] This coincides with Ron Ogle’s expectation that he would receive title to the farm in exchange for his efforts.[11]

These findings support the trial judge’s conclusion that the plaintiffs/ respondents made out their case for an equitable right and established the elements of unjust enrichment.

[15] As to whether the constructive trust was an appropriate remedy, we note the comments of McLachlin J. (as she then was), speaking for the majority in Peter v. Beblow,[12] to the effect that for a constructive trust to be found, monetary compensation must be inadequate and there must be a link between the services rendered and the property in which the trust is claimed.[13] Counsel made no issue of this, either at trial or before us, and indeed, there was no evidence led to establish that monetary compensation would have been adequate. All assumed that this being the family farm, the case was about the land only.

[16] The Supreme Court of Canada's ruling in Soulos v. Korkontzilas[14] indicates that constructive trusts are available in a variety of situations. McLachlin J. (as she then was) establishes the general principle in Soulos:

[35] Good conscience as a common concept unifying the various instances in which a constructive trust may be found has the disadvantage of being very general. But any concept capable of embracing the diverse circumstances in which a constructive trust may be imposed must, of necessity, be general. Particularity is found in the situations in which judges in the past have found constructive trusts. A judge faced with a claim for a constructive trust will have regard not merely to what might seem "fair" in a general sense, but to other situations where courts have found a constructive trust. The goal is but a reasoned, incremental development of the law on a case-by-case basis.[15]

[16] We note, too, these comments from the majority in Soulos:

[36] The situations which the judge may consider in deciding whether good conscience requires imposition of a constructive trust may be seen as falling into two general categories. The first category concerns property obtained by a wrongful act of the defendant, notably breach of fiduciary obligation or breach of duty of loyalty. The traditional English institutional trusts largely fall under but may not exhaust (at least in Canada) this category. The second category concerns situations where the defendant has not acted wrongfully in obtaining the property, but where he would be unjustly enriched to the plaintiff's detriment by being permitted to keep the property for himself. The two categories are not mutually exclusive. Often wrongful acquisition of property will be associated with unjust enrichment, and vice versa. However, either situation alone may be sufficient to justify imposition of a constructive trust.[16]

[17] The trial judge was faced with a unique set of facts: an adult son who works the farm land and dies suddenly before his 80 year old mother who still has some need of the land. We would be hard-pressed to say that the trial judge’s decision to recognize an equitable right and then to limit it in light of the mother’s need is not consistent with Peter and Soulos.

In Campbell v. Campbell, 1999 CanLII 2294 (ON CA), the plaintiffs claimed restitution as a result of unjust enrichment. The plaintiffs operated a dairy farm on a property owned by their mother, the defendant. During the course of their occupancy of the farm, they modernized it at their own expense. In their action against their mother, they claimed a declaration that they had operated the dairy farm as partners in the family farm and alternatively claimed based on unjust enrichment. The trial judge found that the plaintiffs were entitled to restitution as a result of the unjust enrichment of the defendant. On appeal, Borins J.A. granted the defendant’s appeal and concluded that there was no unjust enrichment:

Based on the foregoing authorities, I have come to this conclusion: assuming that Laura was enriched by the acquisition of the new barn and the other improvements and that her sons had sustained a corresponding deprivation, for them to establish that their mother was unjustly enriched they were required to prove that:

(1) in providing the improvements to their mother's farm, they prejudiced themselves with the reasonable expectation of receiving something in return from her and that she freely accepted the benefits conferred by her sons in circumstances where she knew, or ought to have known, of that reasonable expectation;

(2) considering all of the relevant circumstances, it would be neither just, nor fair, to permit their mother to retain the benefit which they conferred on her without requiring that she compensate them for the cost of the improvements.

Thus, what is at the heart of the third requirement is the reasonable expectation of the parties, and whether it would be just and fair to the parties considering all of the relevant circumstances, to permit the recipient of the benefit to retain it without compensation to those who provided it.

[...]

Although the trial judge did not refer to the test for unjust enrichment, it is clear that he had it in mind. He found that Laura had been enriched. However, he made no finding that her sons had sustained a corresponding deprivation. Furthermore, he failed to consider the third branch of the test -- the absence of any juristic reason for the enrichment. In my view, his failure to consider this requirement must lead to the success of Laura's appeal. As well, I question whether, in the circumstances of this appeal, John and Robert had suffered a deprivation. However, it is unnecessary to decide this question.

In my view, this is not a case of unjust enrichment because the plaintiffs did not establish the absence of any juristic reason for their mother's enrichment. In arriving at this conclusion, I have considered the legitimate expectations of the parties and the absence of bilaterality, together with what is just and fair to the parties. I have concluded that to order recovery would effect the result of enabling the plaintiffs to unilaterally constitute their mother's obligations. In my view, liabilities are not to be forced upon people without their consent, and without their knowledge.

Simply stated, this is a case where the evidence shows that John and Robert constructed the barn, and otherwise improved the farm property, without the consent of their mother who was the owner of the farm property, and subsequently expected that she would reimburse them for having done so. However, there was no evidence that when they incurred these expenses. John and Robert expected to be reimbursed by their mother. Moreover, even if the sons had such an expectation, there is no evidence that their mother accepted the improvements in circumstances in which she knew, or reasonably ought to have known, of her sons' expectations. Indeed, there was evidence that she did not agree to the construction of a new barn. Thus, the evidence failed to show an absence of donative intent on the sons' part which was as real from their mother's perspective as it was from their perspective. Applying the concept of bilaterality, the plaintiffs failed to show that their mother was aware they were not making her a gift of the barn and the other improvements. It is also significant that at the relevant time Laura's state of mind was so impaired that she was not fully cognizant of what was taking place. Although there was no medical evidence of her state of mind, I believe this is a reasonable inference that can be drawn from John's evidence, which I quoted earlier.

In Pekurar v Hummingbird Farms Limited, 2015 CanLII 2400 (ON SCSM), the plaintiffs were residential tenants of Hummingbird Farms Limited pursuant to a Lease Agreement dated September 11, 2009. They claimed damages for unjust enrichment based on renovations they performed at the start of the lease on the house they had rented. After reviewing the authorities, Winny J. held that the plaintiffs failed to establish the absence of a juristic reason for the alleged enrichment of the defendants. They chose to put their money into someone else’s property and did so despite knowing that the owner had refused to consent to the greater part of the renovations they performed. They did so despite having no guarantee in fact or in law that they would continue in possession of the rented house for the ten years they had planned for at the time:

29. The plaintiffs cited Garland v. Consumers’ Gas Co., 2004 SCC 25 (CanLII), [2004] 1 S.C.R. 629. That case is not factually applicable because it does not deal with the situation where real property owned by another party is alleged to have been improved by the claimants. It does deal with the essential elements of unjust enrichment which are (i) an enrichment of the defendant; (ii) a corresponding deprivation of the plaintiffs; and (iii) an absence of juristic reason for the enrichment. In my view the following authorities are more helpful on their facts.

30. In Nicholson v. St. Denis (1975), 1975 CanLII 393 (ON CA), 8 O.R. (2d) 315 (C.A.), leave to appeal denied [1975] 1 S.C.R. x, the plaintiff improved a building at the request of a party who had recently purchased the property. That party then defaulted under the agreement of purchase and sale and the property reverted to the vendor, which had no contract with the plaintiff. The plaintiff’s unjust enrichment claim against the vendor was dismissed on appeal. McKinnon J.A. (as he then was) pointed out that the plaintiff could have protected himself by ascertaining the true state of ownership of the property or by means of a construction lien.

31. In Campbell v. Campbell (1999), 1999 CanLII 2294 (ON CA), 43 O.R. (3d) 783 (C.A.), the plaintiffs made a claim in unjust enrichment based on improvements they had made to a farm property owned by their mother, at a cost of $220,000. That claim succeeded at trial based on a finding that their mother had known the improvements were underway and did not object to them. On appeal that judgment was reversed and the claim dismissed. Borins J.A. wrote the reasons of the court, finding that the plaintiffs had failed to establish an absence of juristic reason for their mother’s enrichment. The court “concluded that to order recovery would effect the result of enabling the plaintiffs to unilaterally constitute their mother’s obligations. In my view, liabilities are not to be forced upon people without their consent, and without their knowledge.”

32. In Simonin Estate v. Simonin (2010),