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Equity - Resulting Trust

Holtby v. Draper (Ont CA, 2017)

In this case the Court of Appeal states the principles to be applied to making a finding of resulting trust after a gifting of property is made (here the gifting was made through a corporation and the court discusses the specific impact of that at paras 38-44):
[32] In Pecore v. Pecore, 2007 SCC 17 (CanLII), [2007] 1 S.C.R. 795, at para. 44, Rothstein J. explained that the trial judge must commence his or her inquiry with the applicable presumption and weigh all the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention. When a gratuitous transfer is made, the transferee has the onus to demonstrate a gift was intended, to rebut the presumption of resulting trust: Pecore, at para. 24. The presumption of resulting trust applies to married spouses, except that where property is held in joint ownership, the presumption is that they intended to each own one half, in the absence of evidence to the contrary: Family Law Act, s. 14. The transferor’s intention at the time of the transfer is the critical consideration: Nishi v. Rascal Trucking Ltd., 2013 SCC 33 (CanLII), [2013] 2 S.C.R. 438, at paras. 2, 30 and 41. Evidence of intention that arises subsequent to a transfer must be relevant to the intention of the transferor at the time of the transfer. Its reliability must be assessed to determine weight, guarding against evidence that is self-serving or reflects a change in intention: Pecore, at para. 59; Andrade v. Andrade, 2016 ONCA 368 (CanLII), 131 O.R. (3d) 532, at para. 63.

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