Court Cases & Orders Property Division, Sharing & The Matrimonial Home

Son-In-Law Gets Lifelong Licence to Use Mother-in-Law’s Portion of Family Island

Son-In-Law Gets Lifelong Licence to Use Mother-in-Law’s Portion of Family Island

One of the main components of my Family Law practice is guiding clients through the process of property division upon separation and divorce. The question of how to divide property is not always easy; some properties are unusual, have long family histories, or have sentimental memories attached to them.

The recent decision in Clarke v. Johnson is precisely such a case: the property in question was a family-owned island, and a camp that had been built on it. The issue was whether a son-in-law – who had separated from his wife – should be entitled to use the portion of a family island owned by his former mother-in-law.

The matriarch of family, Martha, was one-third owner of a Sudbury-area island on Lake Panache, which had been purchased around 1971 with her now-deceased husband. The remainder of the island was owned by her brother-in-law and sister-in-law, who each owned a one-third share. Under an informal and unwritten agreement, each owner (together with his or her family) was entitled to use their own one-third, although a “Main Lodge” building was reserved for common use by all.

Martha’s daughter Victoria had married a man named Donald, and they had two children together. Early on in their marriage, and with Martha’s permission, Victoria and Donald had built a camp on Martha’s share of the island, using $5,700 from Donald’s RRSP, and $17,000 loan from Martha’s husband (which was never repaid, apparently with his concurrence). Victoria and Donald placed a $15,000 prefabricated cottage on the property.

Victoria and Donald separated in 1991. Since that time – and because in the separation process Victoria had “washed her hands of the camp” and now “wanted no part of it” – Donald and the children had enjoyed exclusive of the camp on the island. According to Victoria, the camp was not Donald’s to deal with, but she was content to have him and the children use it, as long as he maintained it. She never once visited the camp since the 1991 separation.

Enter Wesley, the son of Victoria and Donald. Wesley had been living out west for 10 years, but had moved back to Sudbury. He expressed an interest in using the camp, which was fine with Donald as long as it did not interfere with his own planned use. Unfortunately, Donald and his son Wesley could not come to terms on this point, and their relationship became strained. Donald then decided to refuse to allow Wesley to use the camp at all.

This was where Martha stepped in again. Pointing out that she was the legal owner of the one-third of the island on which the camp was situated, and asserting that her son-in-law Donald’s use was predicated on his willingness to share it with the children, she claimed that she would terminate Donald’s use, and issue a trespass notice to him.

Donald brought an action to determine his rights in connection with the island, claiming that while he was not himself an owner of the island itself, he was an owner of the camp that was situated on it. More to the point, Donald claimed that he had an equitable right to occupy the property and the camp, based on the principle of unjust enrichment.

After hearing a good deal of evidence, the court allowed Donald’s action. First of all, it had to characterize the camp structure itself: despite its prefabricated nature, it had become a permanent structure on the land when Donald and Victoria had it installed. It was not merely a “chattel” that could be removed.

Next, the court found that Donald had successfully established a legal claim for “unjust enrichment,” by showing that: 1) Martha had been enriched by Donald’s actions; 2) Donald had suffered a corresponding deprivation as a result; and 3) there was no juristic (legal) reason for the enrichment.

Legally, it was clear that his former mother-in-law Martha still owned the portion of the island in question. However, Donald had not only contributed funds to constructing the camp in the first place, but over the subsequent 20 years he had also paid the bills, made improvements, and had sole responsibility for upkeep and maintenance. All of these benefited Martha. Furthermore Martha never occupied the camp herself, whereas Donald had enjoyed exclusive possession of it for about 20 years.
In these circumstances, there was clear enrichment to Martha, deprivation by Donald, and no juristic reason for it. The court was then left to craft the appropriate remedy.

Given what the court called Donald’s “very real and significant emotional attachment” to the camp – and the fact that this could not easily be quantified in dollars – the proper legal remedy was to impose a constructive trust on the camp, which would reflect Donald’s interest. Also, given his long period of uninterrupted use and sole responsibility for maintenance, Donald was also entitled to regulate the use of the camp by his children. This, the court found, would reflect the legitimate expectations of the parties.

As such, the court’s solution was to give Donald a licence to occupy the camp until he died, or until he was no longer physically able to attend there. Such a licence was personal to him, and could not be assigned or sold in any way. Moreover, the court imposed a condition that he was required to maintain the camp in a good state of repair, to refrain from materially altering its nature or character, and to pay taxes and utility costs related to it.

For the full text of the decision, see:

Clarke v. Johnson (2012), 2012 ONSC 4320, 2012

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.