“The essential components of a valid gift are: a) an intention to make a gift; b) acceptance by the donee of the gift; and c) a sufficient act of delivery or transfer of the property to complete the transactions: McNamee v. McNamee, 2011 ONCA 533 (CanLII), 2011 ONSC 533, 106 O.R. (3d) 401, at para. 25.
Where a transfer of property is gratuitous between a parent and adult children, there is a presumption of resulting trust. The onus is on the recipient adult children to rebut the presumption. They must prove the donor’s intention to make the gift on a balance of probabilities: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 43-44.
In Foley v. McIntyre, 2015 ONCA 382, 125 O.R. (3d) 721, at para. 26, the Ontario Court of Appeal explained the application of the resulting trust principle as follows in the context of gratuitous transfers by parents to their adult children:
Equity presumes bargains, not gifts. Thus, when a parent gratuitously transfers property to an adult child, the law presumes that the child holds the property on a resulting trust for the parent: Pecore v. Pecore, [2007] 1 S.C.R. 795, [2007] S.C.J. No. 17, 2007 SCC 17, at para. 36. The onus shifts to the adult child to rebut the presumption by proving the contrary intent on a balance of probabilities: Sawdon Estate v. Watch Tower Bible and Tract Society of Canada (2014), 119 O.R. (3d) 81, [2014] O.J. No. 573, 2014 ONCA 101, at paras. 56-57; Mroz (Litigation guardian of) v. Mroz (2015), 125 O.R. (3d) 105, [2015] O.J. No. 1284, 2015 ONCA 171, at para. 72. The trial judge must begin her inquiry with the presumption and then weigh all the evidence in an attempt to determine the parent’s actual intent at the time of the transfer: Pecore, at para. 44; Sawdon, at para. 57; Mroz, at para. 72.”