A Spouse Can Have a Beneficial Interest in a Home Owned By the Other Spouse in a Common Law Relationship

In Harris v. Kirby, 2026 ONSC 2536, the Ontario Superior Court resolved several unresolved family law issues between former common-law spouses AH and RK concerning:

• ownership of a Brampton property,

• retroactive child support,

• treatment of investment income,

• and private school tuition expenses for their two children.

  
  

The parties had cohabited for approximately nine years and had two children together.  

Justice Agarwal ruled that:

1. AH held a 50% beneficial interest in the Hogan Manor property despite the title being solely in RK’s name;

2. RK’s 2021 child-support income would not be increased to include alleged unreported capital gains from a real estate sale;

3. RK owed $26,336 in retroactive child support;

4. RK was not liable for retroactive private school tuition costs.  

   
   

The court ordered the Hogan Manor property sold, with proceeds divided equally, subject to deductions for tax arrears and a second mortgage for which Kirby alone was responsible.  

Analysis

1. Beneficial Ownership and Resulting Trust

The most significant aspect of the case was the court’s finding that AH had a beneficial ownership interest in a house legally titled only in Kirby’s name.  

The court applied the doctrine of resulting trust, which presumes that when someone contributes financially to property acquired in another person’s name, they intended to retain a beneficial interest proportional to their contribution.  

The evidence supporting Harris included:

• deposits into the parties’ joint account,

• use of her severance and tax refund toward the home purchase,

• payment of mortgage and carrying costs,

• and extensive involvement in managing the property purchase and administration.  

  
  

The judge found Kirby’s explanations unpersuasive, particularly:

• His claim that the joint account was merely administrative,

• and his assertion that Harris acted only “on his behalf.”  

  
  

The decision is an important illustration that:

• legal title is not determinative of ownership, especially in common-law relationships,

• and courts will closely examine the parties’ actual financial conduct and intentions.

  
  

2. Treatment of Capital Gains for Child Support

Harris argued that Kirby’s 2021 income should include proceeds from the sale of an Oshawa investment property.  

The judge criticized RK for failing to produce business and tax records and drew an adverse inference that some unreported income likely existed.  

However, the court still declined to include the capital gain in child support calculations because:

• The transaction appeared one-time in nature,

• There was no evidence that the proceeds improved RK’s lifestyle,

• and including the amount risked, turning child support into wealth redistribution rather than support.  

  
  

This portion of the ruling demonstrates that:

• not every capital transaction automatically increases guideline income,

• especially where the gain is non-recurring and not reflective of ongoing earning capacity.

  
  

3. Retroactive Child Support

The court ordered retroactive child support beginning only in September 2022, not from the parties’ 2019 separation.  

Justice Agarwal applied the framework from DBS v SRG and found:

• AH had delayed formally seeking support,

• RK initially believed paying private school tuition satisfied his obligations,

• And there was little evidence of hardship to the children before 2022.  

  
  

Once RK stopped paying tuition, however, AH clearly requested support, and the children’s financial circumstances worsened.  

The ruling highlights an important principle:

• informal support arrangements may temporarily shield a parent from retroactive liability,

• but once those arrangements collapse, formal support obligations become enforceable.

  
  

4. Private School Tuition as Section 7 Expenses

Although the children had long attended private school, the court declined to require RK to reimburse AH for tuition after September 2022.  

The judge held that the expenses were not proven to be:

• “necessary,” nor

• “extraordinary” under the Child Support Guidelines.  

Key findings included:

• the parties’ post-separation finances had materially changed,

• Maintaining two households reduced affordability,

• And there was no evidence that the children required specialized programming unavailable in public school.  

  
  

This reinforces the principle that:

• Children do not automatically have a legal right to continued private schooling after separation,

• even if private school attendance existed during the relationship.

  
  

5. Broader Significance

Overall, the case is a strong example of:

• equitable property principles in common-law relationships,

• the distinction between legal and beneficial ownership,

• and the flexible, fact-driven nature of child support and section 7 expense determinations.  

  
  

This case adds a new analysis to the ever-growing jurisprudence in family law, particularly regarding common-law relationships. At Shankar Law, we handle highly complex matrimonial cases. You can rest assured that you are in safe hands with our research and knowledge.

We are happy to guide and assist you at any of our four offices in Owen Sound, Port Elgin, Wiarton, and Kincardine. In fact, anywhere in Ontario. We look forward to working with you. Professional legal support is just a call away at 226-256-8054. Our Family Law team is skilled, thorough, and reliable, making the complex seem simple.

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