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TRUSTS ­- Resulting trusts - Creation - When presumption operates

Friday, July 17, 2020 @ 6:28 AM  


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Appeal by the husband from the dismissal of his application seeking a declaration he owned two-thirds of the subject property. In 1996, the wife’s mother transferred title in her home to herself and the wife, her only child, as joint tenants for nominal consideration. In 2008, the husband, wife and their two children moved into the property with the mother. After the wife’s death in 2014, and after the mother’s move to a long-term care home in 2015, the husband continued to reside on the property. The husband was the beneficiary under the wife’s will. In 2015, the mother conveyed the property to herself, the husband and the two grandchildren as joint tenants. The mother paid all expenses of the property until her death in 2016. The application judge found the 1996 transfer raised the presumption of resulting trust that had not been rebutted by the husband.

HELD: Appeal dismissed. The application judge correctly found the presumption of resulting trust arose in respect of the 1996 transfer. He made no error in finding the presumption had not been rebutted. The 1996 transfer was not a gift of an interest in the property to the wife. In allowing the husband and wife to live on the property, the mother did not make the property their matrimonial home. The wife did not have an interest in the property within the meaning of s. 18(1) of the Family Law Act. When the wife died, she did not own an interest in the property as a joint tenant with the mother. Section 26(1) of the Family Law Act did not apply to give the husband an interest in the property.

Kent v. Kent, [2020] O.J. No. 2702, Ontario Court of Appeal, E.E. Gillese, D.M. Brown and M. Jamal JJ.A., June 17, 2020. Digest No. TLD-July132020010