“The application judge correctly stated the general legal principles applicable to the dispute: for most categories of relationships, including the one involved here, there is a rebuttable presumption of a resulting trust where one party makes a transfer of property to another for no consideration: Pecore v. Pecore, 2007 SCC 17, [2007] 2 S.C.R. 795, at para. 24. A purchase money resulting trust is a type of resulting trust. It arises “when a person advances funds to contribute to the purchase price of property, but does not take legal title to that property”: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at para. 1. Where the person taking title is not the minor child of the person advancing the funds, there is a presumption that “the parties intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution”: Nishi, at para. 1.
Paula argued on appeal that having a third party take title to avoid merger under the Planning Act is a bar to relying on the presumption of resulting trust. This proposition is not supported by the case law and is inconsistent with general principles. Where a resulting trust is presumed, the onus is on a party seeking to rebut that presumption to establish that the purchaser intended to make a gift: Lattimer v. Lattimer, (1978), 1978 CanLII 1547 (ON SC), 18 O.R. (2d) 375, at p. 378 (H.C.). This is not a matter of constructive or deemed intention, but of establishing actual intention, requiring a case-by-case evaluation of the evidence to ascertain the gratuitous transferor’s actual intention on the balance of probabilities: Schwartz v. Schwartz, 2012 ONCA 239, 349 D.L.R. (4th) 326, at paras. 42-43. The intention to avoid merger does not necessarily entail the intention to make a gift.”