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Trusts - Evidence. Qu v. Zhang
In Qu v. Zhang (Ont CA, 2025) the Ontario Court of Appeal dismissed a family law appeal, here where the "principal issue in this litigation related to the beneficial ownership of the house", the resulting trust doctrine and FLA modification to this doctrine in s.14 ['Presumptions'].
Here the court states resulting trust doctrine, and comments on applicable evidence:[11] As a general proposition, the law presumes that gratuitous transfers between individuals are not intended as gifts: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 24. As Juriansz J.A. said in Belokon v. Krygyz Republic, 2016 ONCA 981, 136 O.R. (3d) 39, at para. 56, leave to appeal refused, Entes Industrial Plants Construction & Erection Contracting Co. v. Kyrgyz Republic, [2017] S.C.C.A. No. 74, and Sistem Mühendislik Insaat Ve Sanayi Ticaret Anonim Sirketi v. Kyrgyz Republic, [2017] S.C.C.A. No. 75: “The presumption of resulting trust flows from the principle that equity presumes bargains and not gifts.”
[12] However, the presumption may be rebutted, on a balance of probabilities, by evidence showing that the transferor intended the transfer, whether money or other property, to be a gift: Pecore, at para. 24, 43; Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 18. This must be based on “sufficiently clear, convincing and cogent” evidence: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 46. I return to the nature of the evidence required to rebut the presumption below.
[13] Section 14 of the Family Law Act, R.S.O. 1990, c. F.3 (“the FLA”) adds an important gloss to these principles. The provision states:14 The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,
(a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants; and
(b) money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purposes of clause (a). [Emphasis added.] [14] The effect of this provision is that, if spouses hold property as joint tenants, or if money is on deposit in the name of both, that is sufficient to prove joint ownership in the absence of evidence to the contrary on a balance of probabilities. Thus, the presumption is reversed in these circumstances; the transferor must rebut the presumption that the property or funds were intended to be a gift.
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[24] .... In a perfect world, at least for litigation purposes, people would more carefully document their financial affairs, especially in relation to important purchases and transfers. Confirmatory evidence may make it easier for a trier of fact to resolve property disputes; however, it is not always available: MacIntyre, at para. 38; Chao v. Chao, 2017 ONCA 701, 99 R.F.L. (7th) 281, at para. 54.
[25] I do not take Rothstein J.’s reference in Pecore to “bringing evidence” to mean that the testimonial evidence of the party who carries the burden, standing alone, will necessarily be deficient for this purpose. Indeed, as Rothstein J. subsequently wrote in F.H., at para. 46:Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make a decision. If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test. [Emphasis added.] See also Eileen E. Gillese, The Law of Trusts, 3rd ed. (Toronto: Irwin Law Inc., 2014), at p. 117: “Any admissible evidence, writing or parol, may be adduced to rebut the resulting trust, including circumstantial evidence.”
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