A recent decision of the Ontario Superior Court of Justice, Moore v. Thompson, 2026 ONSC 2336, is worth a careful read for any solicitor who closes residential purchases for unmarried couples. Although it arises out of a family law application, the substantive holdings turn on three doctrines that live squarely in the real estate world. First, the writing requirement under the Statute of Frauds. Second, the equitable carve-out of part performance. Third, the twin remedial pillars of resulting trust and unjust enrichment. Justice Mills used all three to order one joint tenant to repay the other $523,007 after a sale that left no equity behind.
The Facts
The parties resided together for just over three years, between October 2020 and December 2023. They were not married and there were no children of the relationship.
Moore, who came into the relationship with a house, a cottage, a rental property and a vacant lot, sold her own home to fund the downpayment on a new property she and Thompson bought together in October 2021. They took title as joint tenants. Thompson, employed throughout, moved in with four teenage children and with two of his other children joining them three weekends per month. He contributed roughly $4,500 over more than three years toward the mortgage, made no contribution to the downpayment, and produced almost nothing in the way of financial records at trial. When the relationship ended and the home was sold in January 2025, there was no equity left and Moore was out of pocket on the downpayment, the carrying costs and the closing adjustments she had funded alone.
Trust Claim Reframed After the Sale
Because the property was gone, Moore could not pursue a trust claim against the asset itself. She amended her application to seek a monetary remedy for unjust enrichment, plus a resulting trust analysis against Thompson personally.
That re-framing is the first quietly important lesson for transactional counsel. When a non-contributing co-owner is on title, the in-rem remedy disappears the moment closing funds are disbursed on a sale, but the personal claim survives. Clients sometimes assume that selling the property ends it, but it does not.
Statute of Frauds and Part Performance
Neither party pleaded the Statute of Frauds, but Justice Mills raised it on her own motion because the case turned on an unwritten agreement to share the cost of acquiring an interest in land.
The court held the oral agreement enforceable through part performance. Where there has been part performance of an oral agreement and one party acted to its detriment in reliance on the oral agreement while the other party stood by encouraging or acquiescing to the part performance of the oral agreement, it would be inequitable to allow that non-performing party to rely on s. 4 of the Statute of Frauds to avoid enforcement of the oral agreement.
Moore had sold her home, restructured debt, taken on new debt, funded the downpayment, signed the APS and mortgage, and paid every operating cost, all while Thompson stood by and acquiesced. Each act related unequivocally to the property and was referable to a pre-existing agreement. The court treated Thompson’s stance, that he simply signed papers without reading them as no answer. Sophisticated or not, a party who lets another carry the deal cannot later hide behind the Statute of Fraud.
Resulting Trust and Unjust Enrichment
Where one party gratuitously expends money for another’s benefit, a presumption of resulting trust arises, and the recipient must show the transfer was a gift. Common-law cohabitation does not, on its own, supply that gift inference, citing the case of Walker v. Farsijani. Thompson presented no evidence of donative intent and so could not rebut the presumption of resulting trust.
