Greetings to all,

The Supreme Court of Canada has just released Moore v. Sweet, 2018 SCC 52 http://canlii.ca/t/hw6vr , allowing an appeal from on ONCA decision that was mentioned last year on the RDG.

Mr. Moore and Ms. Moore, the plaintiff, separated and later divorced. While they were married, he insured his life for $250,000 with Ms. Moore designated as beneficiary. When they separated, it was agreed that Ms. Moore would continue to pay the premiums (some $500/year) and would continue to be the named beneficiary. Mr. Moore however changed the beneficiary designation to his new spouse, Ms. Sweet. (He made this designation irrevocable, which the first designation had not been; Canadian law allows such a designation which can then only be revoked with the consent of the named beneficiary.) Later still, the Moores reached a separation agreement in relation to family property, which did not mention the insurance policy, and which did not include a general release. Ms. Moore continued to pay the premiums until Mr. Moore died in 2013, at which time the question arose who should get the proceeds.

Ms. Moore succeeded in this appeal, in unjust enrichment. The majority apply the juristic reason framework from Garland v Consumers Gas, and disagree with the dissenters and the majority of the court below that the irrevocable designation amounted to a juristic reason. They also use, though not under that name, the idea of interceptive subtraction to conclude that Ms. Moore was deprived of the whole proceeds and not merely of the $7,000 she paid in premiums.

As I said last year, while I think the result is correct, the case could have been resolved by well-established trust law principles: the perfectionary constructive trust that enforces a contractual obligation, when it has become an unconditional obligation to transfer rights to another. That trust, of course, is enforceable against a gratuitous donee.

It is also arguably an old-fashioned purchase money resulting trust.

With best wishes,

Lionel