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INTERPRETATION - Express terms

Thursday, March 19, 2020 @ 9:23 AM  

Lexis Advance® Quicklaw®
Appeal by the husband from summary judgment permitting the wife’s father to register a demand mortgage for $165,000 against the husband’s former marital home owned by both spouses. The spouses separated in 2015. In 2007, the wife’s parents paid over $216,000 in improvements to the property, including the construction of an in-law suite where the wife’s parents lived. The parents and the spouses entered into a Licence Agreement which provided that in consideration of $165,000 secured by a demand mortgage, the parents obtained a licence to reside in the property. After the spouses separated, the wife’s father wanted to register the demand mortgage. The motion judge rejected the husband’s submission that the $165,000 secured by the Agreement was a gift. The motion judge concluded that there was a valid and enforceable Agreement and demand mortgage and the father was legally entitled to register the demand mortgage for $165,000. 

HELD: Appeal dismissed. The motion judge did not err in finding that the Agreement was a valid licence rather than a lease of property. The entire Agreement, starting with the title and continuing through its provisions, was a licence, not a lease. The motion judge did not err by determining that the money paid for the construction of the in-law suite was not a gift. If the advance was a gift, the drafting and execution of the Agreement made no sense. Considering that the Agreement waived interest on the $165,000 while the parents resided in the in-law suite, there was no basis for discounting the face value of the mortgage by the portion of time that the parents lived in the suite.

Kraemer v. Kraemer, [2020] O.J. No. 500, Ontario Court of Appeal, J.C. MacPherson, R.J. Sharpe and M. Jamal JJ.A., February 5, 2020. Digest No. TLD-March162020007