“The rebuttable presumption of resulting trust arises upon gratuitous transfers between adults. This means the transferee holds the beneficial ownership of the property in trust for the transferor unless the presumption is rebutted. A beneficial owner has been described as “the real owner of property even though it is in someone else’s name”: Pecore v. Pecore, 2007 SCC 17 at para 4, citing Csak v. Aumon (1990), 1990 CanLII 8070 (ON SC), 69 D.L.R. (4th) 567 (Ont. H.C.J.), at p. 570. The presumption of resulting trust can be rebutted by evidence establishing, on a balance of probabilities, the transferor’s intention to gift the property: Pecore, at paras. 24, 43 and 44.
This standard of proof requires “clear, convincing and cogent” evidence: F.H. v. McDougall 2008 SCC 52, at para. 46; MacIntyre v. Winter, 2021 ONCA 516 at para. 25. In other words, absent this evidence, the presumption will determine the result: Pecore, at para. 44.
A party that seeks to establish that a transfer was a gift must show the following three conditions have been met, as set out in Falsetto v. Falsetto, 2023 ONCA 469, at para. 27:
a. The donor intended to gift the property;
b. The gift was accepted by the recipient; and
c. A sufficient act of delivery or transfer of the property occurred to complete the transaction.”