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Estate Planning

: Toronto Estate Law Blog

Holy Jumping Title, Batman

By Hull and Hull LLP

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The recent Court of Appeal decision in Schwartz v. Schwartz, 2012 ONCA 239 (CanLII) discusses the issue of resulting trusts and their effect on transfers of property.

In Schwartz, Mr. and Mrs. Schwartz transferred title to their matrimonial home to Mrs. Schwartz alone in 2000. In 2006, title was transferred to Mr. Schwatz alone. In divorce proceedings, the court found that Mr. Schwartz was holding title in the matrimonial home in trust for Mrs. Schwartz. A creditor of Mr. Schwartz's appealed

The Court of Appeal addressed the issue of resulting trusts. The Court cited Kerr v. Baranow, 2011 SCC 10 (CanLII) and its reasoning that a resulting trust may arise in the domestic context where there has been a gratuitous transfer of property. In such a case, the courts may find that a resulting trust exists, with the effect of returning the property to the person who gave it. 'Thus, the beneficial interest ‘results' (jumps back) to the true owner. When faced with such an issue, the court must consider evidence of the actual intention of the transferor. Although an intention to gift property trumps the presumption of resulting trust, the intention at the time of the transfer is a question of fact.

In conclusion, the Court of Appeal held that it was open to the motion judge to find that Ms. Schwartz did not intend to gift her interest in the property and therefore had an interest in the property, but remitted the matter to the motion judge to determine the extent of the interest.

Thank you for reading.

Paul Trudelle

Full post as published by Toronto Estate Law Blog on April 24, 2012 (boomark / email).