My In-Laws Own Our House — Can I Get a Share in Divorce? Scarborough Chinese-Speaking Divorce Lawyer: Who Paid Matters More Than Title

A client asked me: we’ve been married for over a decade, living in a house titled in my in-laws’ names. Now we’re divorcing, and neither of our names is on the title. Can I still get a share of the house?

Short answer: yes, but not automatically. Whose name is on the title isn’t the whole story. Courts look at who paid for the house and who kept it up. Here’s how it works, case by case.

Step one: what it means that title is in your in-laws’ names

Under s. 18(1) of Ontario’s Family Law Act, a matrimonial home has to meet two conditions: at least one spouse has an interest in the property, and the family ordinarily occupies it as their home. The matrimonial home gets special treatment: its full value goes into property division regardless of whose name is on title, its pre-marriage value can’t be deducted, and neither spouse can sell or mortgage it behind the other’s back.

But if title has always been in your in-laws’ names and neither spouse holds any legally recognized interest, it’s not your matrimonial home — there’s no automatic equal split. The Ontario Court of Appeal said as much in Spencer v. Riesberry: a mere expectation doesn’t count. A contingent “maybe someday” interest under a trust isn’t an “interest” under s. 18(1), so the house wasn’t a matrimonial home.

So don’t count on the words “we’ve lived here for over a decade” alone. Living somewhere a long time doesn’t create ownership. But a long stay usually means something else: over those years, you paid money into the house and kept it standing — and that’s where the real legal arguments live.

Key one: resulting trust — you paid for it, your in-laws just held the title

This is common in Chinese families: the couple pays for the house (down payment, mortgage), but title goes in the parents’ names — for financing, tax, or just habit. The law has a presumption for that, called a resulting trust: whoever paid keeps the real ownership; the title holder is just holding it in their name.

The Supreme Court of Canada settled the rule in Pecore v. Pecore, 2007 SCC 17: when parents transfer property to an adult child for free, it’s presumed to be held in trust — not a gift. Anyone claiming it was a gift has to prove it. Note: only transfers to minor children are presumed gifts. Between adults — parents to adult children, or between spouses — the presumption is a resulting trust.

A BC case followed exactly this logic: between 2012 and 2017, a husband transferred over $250,000 into his parents’ joint account, with some bank entries expressly labelled “mortgage,” “home insurance,” and “roof repairs.” At trial, the parents couldn’t produce records to contradict that. The court found the husband had provided the purchase funds and the parents held title on a resulting trust for him. The whole house was really the couple’s, divided equally as family property. The judge added a line worth remembering: when family members pool money for a house, write it down at the time — years later, a court will rely on contemporaneous records, not after-the-fact explanations.

So step one is always: follow the money. Who paid the down payment? Who paid the mortgage? What do the bank statements show?

Key two: constructive trust — you raised this house

If the purchase money really was your in-laws’, but over the years you paid the mortgage, renovated the place, and covered property tax, insurance, and maintenance — that’s the second route: unjust enrichment plus constructive trust.

In Kerr v. Baranow, 2011 SCC 10, the Supreme Court set out three elements: one party was enriched, the other suffered a corresponding deprivation, and there was no legal basis for the enrichment. In family cases, courts also ask whether there was a “joint family venture” — did both sides work toward the family’s goals, were finances mixed together, was there genuine mutual commitment, did someone sacrifice for the family?

Earlier, in Rawluk v. Rawluk, [1990] 1 S.C.R. 70, the Supreme Court confirmed married spouses can claim a constructive trust too — the Family Law Act didn’t shut that door. The court first sorts out who the house really belongs to — on paper and in substance — then does equalization. In Rawluk, a wife who had worked the family farm for years was awarded a half interest.

Put simply: every dollar you put into the house and every bit of effort counts in law. It wasn’t for nothing.

Key three: proprietary estoppel — your in-laws made a promise

This one fits the “we’ve lived here for over a decade” situation best. In Schwark v. Cutting, 2010 ONCA, the Court of Appeal set three conditions: the owner led the other person to believe they had a right to the property; the person believed it and paid a real price for that belief; the owner later went back on it.

The leading case is Clarke v. Johnson, 2012 ONSC 4320, and it’s worth telling in full. Clarke and his wife built a cottage on an island owned by her family. The family advanced some construction funds, then forgave the loan. The marriage ended in 1991; the wife never went back, but Clarke kept using the cottage with the kids for twenty years, paying for all maintenance and improvements. Twenty years later, the family turned around and served him with a trespass notice.

Clarke sued and won on both unjust enrichment and proprietary estoppel. The court said: he built the cottage with his own hands and maintained it for twenty years — the family was enriched. He genuinely believed he could use it for life, and kept spending money on that belief. Kicking him out now would be unconscionable. The court imposed a constructive trust — effectively, a share of the cottage was his — because money alone wasn’t enough: as the judge put it, the bond between a person and their cottage can’t be measured in dollars.

The Court of Appeal upheld the decision and quoted the trial judge’s words: “The attachment between a person and his or her camp is unique and not easily described. Over time there comes to be an emotional attachment borne of the surrounding beauty, the investment of sweat equity, and the memories of times spent with family and friends. When one has been allowed to develop that attachment over the course of decades, and has directed personal and financial resources to the property in the reasonable belief that it would continue, it is unconscionable to deny that benefit.”

Living in a house and raising it for over a decade isn’t “living there for free” in law — it’s reliance plus contribution. Your in-laws said “this is your home,” you believed them, and you poured your heart into the place for years. A court won’t let them say now that the house has nothing to do with you.

But there are three situations where you may not get a share

First: if your in-laws bought the house outright before the marriage, you never put a dollar into it or changed anything about it, and you simply lived there for years — that’s their property, not yours. Time alone doesn’t create rights. Don’t fool yourself on this one.

Second: your “interest” has to be real. In Spencer v. Riesberry, the Court of Appeal held that a contingent “maybe someday” interest under a trust isn’t a real legal interest. Courts recognize what you actually paid for with money and effort — not expectations.

Third, one caveat. In recent years the Court of Appeal has tightened up on married spouses reaching for fairness arguments to get around the property-division regime. In McNamee v. McNamee (2011 ONCA 533) and Madi v. King (2023 ONCA 443), the court said the Family Law Act’s equalization scheme already exists to address unjust enrichment — don’t keep trying to bypass it. But those cases are mainly about houses already in a spouse’s name. Your situation is different: with title in your in-laws’ names, equalization can’t reach the house at all — so the trust route is the proper road to take.

One practical question that comes up constantly: was the parents’ money a gift or a loan?

Many cases get stuck here: the in-laws say it was a gift, the spouse says it was a loan — or claims a share of the house. In Chao v. Chao, the Court of Appeal gave five factors: was there anything in writing at the time saying it was a loan; were repayment terms agreed; was there any security; did only this child get money, or were the children treated differently; was repayment demanded before separation?

Take Massaar v. Moneck: a mother-in-law gave the couple over $160,000 toward their first home, with monthly repayments of $900 starting three months later, continuing until February 2021. At divorce the husband called it a gift. The court looked at the repayment record — a “gift” repaid for over three years? It was ruled a loan, repayable from the sale proceeds.

So the rule is simple: with parents’ money, write down at the time whether it’s a loan or a gift. Written down, no dispute. Not written down, it’s a mess at divorce, and the judge decides on the evidence.

Start keeping evidence now

If it ever goes to court, only evidence counts. Bank statements for the down payment and mortgage, transfer memos, renovation contracts and invoices, who paid property tax and insurance, the texts and WeChat messages where your in-laws made promises — keep everything. Ontario banks keep records for only seven years; make your own folder. Clarke won because twenty years of contribution was laid out in front of the judge. The BC case won because a bank memo said “mortgage.”

A house in your in-laws’ names doesn’t mean you walk away with nothing in a divorce. Title is paper; money and contribution are substance. But this road runs on evidence, not tears or time. Book an initial consultation (30 minutes, $220+HST). Call 647-930-6688.

This article is general legal information, not legal advice, and does not create a lawyer-client relationship.