Jackson v Rosenberg Appeal: Supplementary Reasons
1. Introduction
I wrote blogs on both the decision at first instance,[1] and on the decision of the Ontario Court of Appeal.[2] The reader may recall that Mr Jackson had transferred title to his house into the joint names of himself and Ms Rosenberg, but that later he had severed the joint tenancy. The application judge held Mr Jackson intended to make a gift to Ms Rosenberg but only of the right of survivorship in the property and no beneficial rights while he lived. Since the transfer to Ms Rosenberg was made without consideration, a presumption of resulting trust arose. The application judge also held that Mr Jackson retained the right to sever the joint tenancy and that he in fact did sever it. He went on to hold that the severance eliminated the right of survivorship with respect to Mr Jackson’s 50% interest in the property, but that the 50% share Ms Rosenberg held in trust for Mr Jackson was not eliminated. And therefore, if any equity remains in the property when Mr Jackson dies, 50% of it would pass to her.
The Court of Appeal dismissed Ms Rosenberg’s appeal. However, Justice Zarnett, who wrote the reasons for the court, took issue with the conclusion of the application judge that the right of survivorship continued with respect to the 50% interest in the property, even though the joint tenancy had been converted into a tenancy in common on the severance. He said:
[67] Before the 2020 transfer, Ms Rosenberg held her interest in the joint tenancy in trust for Mr Jackson, and she had a right of survivorship. As the joint tenancy was severed in the 2020 transfer, what Ms Rosenberg continued to hold was an interest in a tenancy in common in trust for Mr Jackson. No right of survivorship could attach to or flow from that interest.
Consequently Justice Zarnett invited the parties to make written submissions about the question whether any changes to the formal judgments of the application judge should be made because of his ‘erroneous holding that any right of survivorship subsisted following the 2020 transfer’.
The parties did make submissions on this point in Supplementary Reason,[3] and it is appropriate to record the court’s decision in this supplementary blog.
Paragraph 1 of the formal judgments remained unchanged, while the court accepted the revisions to paragraphs 2-4 and the replacement of paragraph 5 requested by Mr Jackson. Thus the formal judgments now provide:
- THIS COURT ORDERS THAT Mr. Jackson’s severance of the joint tenancy of the property municipally known as 15 Potts Lane, Port Hope, Ontario, on September 9, 2020 is valid.
- THIS COURT ORDERS THAT Ms. Rosenberg holds her 50% share of the Property as a tenant-in-common in a resulting trust in favour of Mr. Jackson.
- THIS COURT ORDERS THAT Mr. Jackson retains all rights and interests in the Port Hope property, that he is a beneficial owner of 100% of the property, and that he is free to encumber or sell the Property.
- THIS COURT ORDERS THAT when Mr. Jackson dies, 100% of whatever equity remains in the Port Hope property will become part of his estate.
- THE COURT ORDERS THAT 100% of the beneficial ownership of the Property is vested in Mr. Jackson and that an order to this effect in the form attached hereto as Schedule “1” be recorded in the Land Titles register for the Property.
With respect to paragraph 5, the court held that, as beneficiary of the resulting trust over the 50% of the property held in Ms Rosenberg’s name, Mr Jackson is entitled to demand that she comply with her duty as trustee, which is to return the legal title to the owner. For that statement the court cited Pecore v Pecore,[4] in which the Supreme Court stated, a ‘resulting trust arises when title to property is in one party’s name, but that party … is under an obligation to return it to the original title owner’.
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[1] 2023 ONSC 4403. See https://welpartners.com/blog/2023/11/can-you-make-an-irrevocable-gift-of-the-right-of-survivorship/.
[2] 2024 ONCA 875. See https://welpartners.com/blog/2025/01/jackson-v-rosenberg-appeal/.
[3] Jackson v Rosenberg, 2025 ONCA 48, 97 ETR 4th 49.
[4] 2007 SCC 17, para 20.
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Written by: Albert Oosterhoff
Posted on: August 7, 2025
Categories: Commentary
1. Introduction
I wrote blogs on both the decision at first instance,[1] and on the decision of the Ontario Court of Appeal.[2] The reader may recall that Mr Jackson had transferred title to his house into the joint names of himself and Ms Rosenberg, but that later he had severed the joint tenancy. The application judge held Mr Jackson intended to make a gift to Ms Rosenberg but only of the right of survivorship in the property and no beneficial rights while he lived. Since the transfer to Ms Rosenberg was made without consideration, a presumption of resulting trust arose. The application judge also held that Mr Jackson retained the right to sever the joint tenancy and that he in fact did sever it. He went on to hold that the severance eliminated the right of survivorship with respect to Mr Jackson’s 50% interest in the property, but that the 50% share Ms Rosenberg held in trust for Mr Jackson was not eliminated. And therefore, if any equity remains in the property when Mr Jackson dies, 50% of it would pass to her.
The Court of Appeal dismissed Ms Rosenberg’s appeal. However, Justice Zarnett, who wrote the reasons for the court, took issue with the conclusion of the application judge that the right of survivorship continued with respect to the 50% interest in the property, even though the joint tenancy had been converted into a tenancy in common on the severance. He said:
[67] Before the 2020 transfer, Ms Rosenberg held her interest in the joint tenancy in trust for Mr Jackson, and she had a right of survivorship. As the joint tenancy was severed in the 2020 transfer, what Ms Rosenberg continued to hold was an interest in a tenancy in common in trust for Mr Jackson. No right of survivorship could attach to or flow from that interest.
Consequently Justice Zarnett invited the parties to make written submissions about the question whether any changes to the formal judgments of the application judge should be made because of his ‘erroneous holding that any right of survivorship subsisted following the 2020 transfer’.
The parties did make submissions on this point in Supplementary Reason,[3] and it is appropriate to record the court’s decision in this supplementary blog.
Paragraph 1 of the formal judgments remained unchanged, while the court accepted the revisions to paragraphs 2-4 and the replacement of paragraph 5 requested by Mr Jackson. Thus the formal judgments now provide:
With respect to paragraph 5, the court held that, as beneficiary of the resulting trust over the 50% of the property held in Ms Rosenberg’s name, Mr Jackson is entitled to demand that she comply with her duty as trustee, which is to return the legal title to the owner. For that statement the court cited Pecore v Pecore,[4] in which the Supreme Court stated, a ‘resulting trust arises when title to property is in one party’s name, but that party … is under an obligation to return it to the original title owner’.
—
[1] 2023 ONSC 4403. See https://welpartners.com/blog/2023/11/can-you-make-an-irrevocable-gift-of-the-right-of-survivorship/.
[2] 2024 ONCA 875. See https://welpartners.com/blog/2025/01/jackson-v-rosenberg-appeal/.
[3] Jackson v Rosenberg, 2025 ONCA 48, 97 ETR 4th 49.
[4] 2007 SCC 17, para 20.
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