When family members are placed on title solely to secure financing, who truly owns the property once relationships fracture? In this case, the Ontario Superior Court revisits the law of resulting trusts in the context of family financing, underscoring that beneficial ownership turns on intention at the time title is taken.
Background
Betty Savage (“Betty” or the “Applicant”) seeks an order removing David Duvall (“David” or the “Respondent”), from title to a Gravenhurst property (the “Property”).[1] The Applicant is the mother of Rod Savage (“Rod”), whereas the Respondent is the father of Michele Duvall (“Michele”).[2]
In or around 2016 Rod and Michele were in a relationship and Rod expressed his interest in buying a home. Although Rod had sufficient finances to cover monthly mortgage payments, he did not qualify for a mortgage.[3] The Applicant agreed to help Rod purchase the property, holding the mortgage in Betty’s name, on the understanding that when Rod was able to qualify for a mortgage, title would be transferred to him.[4]
As a part of the offer to purchase the Property, Rod contributed to Betty $1,000 for the initial deposit. There is dispute as to whether Rod received this $1,000 from Michele. Rod further provided $21,000 to Betty as a contribution to the closing funds. Betty contributed the remaining $2,012.83.[5]
Shortly thereafter, Betty discovered that she did not qualify for a sufficient mortgage. Given that Michele and her children were due to move in with Rod, David agreed to assist with the purchase of the Property. [6]
Together, Betty and David qualified for the mortgage and the sale closed in October 2016.[7]
From December 2016 to September 2020 funds generated from Rod’s business would be transferred into a joint account between Rod and Michele, where they would then be transferred to satisfy the mortgage account.[8] From September 2020 onward, most funds transferred to the mortgage account originated from Betty’s joint account with Rod.
Eventually, Rod and Michele’s relationship ended.[9] In September 2022, Betty opened a new mortgage account, with funds originating from Betty’s personal savings and her joint account with Rod.[10]
Position of the Parties
The Applicant submits that she holds the Property in trust for Rod. Rod made the initial down payment, with some financial assistance from her. He also made the monthly mortgage payments, with assistance from Betty Anne after Michele moved out.
The Respondent submits that he holds the Property in trust for Michele. He disputes there is evidence proving Rod made any contributions to the Property. It was Michele who paid the initial $1,000 deposit, and for the six years she and her sons lived at the Property, Michele paid $900 per month. This equates to a total of $65,800 paid toward the mortgage alone.
Analysis
The Court begins its analysis by examining the difference between resulting and constructive trusts as espoused by Adams J., quoting from Professor Waters, in 512760 Ontario Inc. (Re) (1992),
Broadly speaking, a resulting trust arises whenever legal or equitable title to property is in one party’s name, but that party, because he is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner, or to the person who did give value for it.
The courts and the various legislatures of the common law world have used interchangeably the terms “implied trust”, “resulting trust” and “constructive trust”, and the terminology is therefore somewhat confusing. But essentially, while express trusts are those which come into existence because settlors have expressed their intention to that effect, constructive trusts arise not because of anyone’s expression of true intent but because B ought to surrender property to A and this is the machinery the court employs in order to get B to do that. In between the express trust, a product of the settlor’s intention, and the constructive trust, a machinery imposed by law, are the implied trust and the resulting trust. [Emphasis in original.][11]
The Court then considers everybody’s favourite trust case Pecore v. Pecore, for the following proposition,
“[a] resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original owner”[12]
The Court then considers an Ontario Court of Appeal decision, which in their view, dealt with a similar matter. In examining the facts and holding from Andrade v Andrade,[13] the Court notes that the Court of Appeal overturned a trial level decision for, inter alia, failing to consider the evidence of intention when matriarch of the family, put the subject property into her children’s names, while she continued to reside there.[14] The intention being, that she would remain the beneficial owner.[15]
Accordingly, based on the evidence before the Court, Justice Casullo found that the Applicant held the Property in Trust for Rod.[16] In assessing the Respondent’s intentions when being added to title, the Court found that the Respondent’s motive was gratuitous.[17] The Court held the following:
When he was added to title, David did not agree to take any responsibility for the Property, financially or otherwise. In fact, it was not until Michele moved out that David raised the spectre of his 50% ownership interest. I find the mortgage arrangement was created to facilitate Rod’s purchase of the Property, to which Betty Anne held in trust for Rod.[18]
In response to the Respondent’s position regarding Michele’s contributions to the Property, Justice Casullo noted that Michele would be paying rent regardless of where she lived.[19]
Disposition
Ultimately, the Court granted the Applicant’s application, ordering that Betty held title in the Property as trustee for Rod, and that David’s name is to be removed from the title.[20]
Final Remarks
In a somewhat straightforward constructive/ resulting trust case, this decision demonstrates that beneficial ownership turns on intention at the time title is taken, not the happenstance of whose name appears on title or post-hoc accounting of mortgage payments.
Reaffirming the principles in Pecore and Andrade, the Court emphasized that a resulting trust will arise where a party is added to title gratuitously and without assuming financial responsibility, particularly where the evidence demonstrates the arrangement was designed solely to facilitate another’s purchase.
—
[1] Savage v Duvall, 2026 ONSC 405, at paras 1-2. (“Savage v Duvall”)
[2] Ibid., at paras 3-4.
[3] Ibid., at para 5.
[4] Ibid., at para 6.
[5] Ibid., at paras 10-11.
[6] Ibid., at para 12.
[7] Ibid., at para 13.
[8] Ibid., at para 15.
[9] Ibid., at para 17.
[10] Ibid., at para 18.
[11] 512760 Ontario Inc. (Re), 1992 CanLII 8615 (ON SC), at para 22.
[12] Pecore v. Pecore, 2007 SCC 17, at para 20.
[13] Andrade v. Andrade, 2016 ONCA 368.
[14] Savage v Duvall, at para 33.
[15] Ibid., at para 34.
[16] Ibid., at para 35.
[17] Ibid.
[18] Ibid., at para 36.
[19] Ibid., at para 35.
[20] Ibid., at para 40.
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Written by: Grant Swedak
Posted on: March 9, 2026
Categories: Commentary
When family members are placed on title solely to secure financing, who truly owns the property once relationships fracture? In this case, the Ontario Superior Court revisits the law of resulting trusts in the context of family financing, underscoring that beneficial ownership turns on intention at the time title is taken.
Background
Betty Savage (“Betty” or the “Applicant”) seeks an order removing David Duvall (“David” or the “Respondent”), from title to a Gravenhurst property (the “Property”).[1] The Applicant is the mother of Rod Savage (“Rod”), whereas the Respondent is the father of Michele Duvall (“Michele”).[2]
In or around 2016 Rod and Michele were in a relationship and Rod expressed his interest in buying a home. Although Rod had sufficient finances to cover monthly mortgage payments, he did not qualify for a mortgage.[3] The Applicant agreed to help Rod purchase the property, holding the mortgage in Betty’s name, on the understanding that when Rod was able to qualify for a mortgage, title would be transferred to him.[4]
As a part of the offer to purchase the Property, Rod contributed to Betty $1,000 for the initial deposit. There is dispute as to whether Rod received this $1,000 from Michele. Rod further provided $21,000 to Betty as a contribution to the closing funds. Betty contributed the remaining $2,012.83.[5]
Shortly thereafter, Betty discovered that she did not qualify for a sufficient mortgage. Given that Michele and her children were due to move in with Rod, David agreed to assist with the purchase of the Property. [6]
Together, Betty and David qualified for the mortgage and the sale closed in October 2016.[7]
From December 2016 to September 2020 funds generated from Rod’s business would be transferred into a joint account between Rod and Michele, where they would then be transferred to satisfy the mortgage account.[8] From September 2020 onward, most funds transferred to the mortgage account originated from Betty’s joint account with Rod.
Eventually, Rod and Michele’s relationship ended.[9] In September 2022, Betty opened a new mortgage account, with funds originating from Betty’s personal savings and her joint account with Rod.[10]
Position of the Parties
The Applicant submits that she holds the Property in trust for Rod. Rod made the initial down payment, with some financial assistance from her. He also made the monthly mortgage payments, with assistance from Betty Anne after Michele moved out.
The Respondent submits that he holds the Property in trust for Michele. He disputes there is evidence proving Rod made any contributions to the Property. It was Michele who paid the initial $1,000 deposit, and for the six years she and her sons lived at the Property, Michele paid $900 per month. This equates to a total of $65,800 paid toward the mortgage alone.
Analysis
The Court begins its analysis by examining the difference between resulting and constructive trusts as espoused by Adams J., quoting from Professor Waters, in 512760 Ontario Inc. (Re) (1992),
Broadly speaking, a resulting trust arises whenever legal or equitable title to property is in one party’s name, but that party, because he is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner, or to the person who did give value for it.
The courts and the various legislatures of the common law world have used interchangeably the terms “implied trust”, “resulting trust” and “constructive trust”, and the terminology is therefore somewhat confusing. But essentially, while express trusts are those which come into existence because settlors have expressed their intention to that effect, constructive trusts arise not because of anyone’s expression of true intent but because B ought to surrender property to A and this is the machinery the court employs in order to get B to do that. In between the express trust, a product of the settlor’s intention, and the constructive trust, a machinery imposed by law, are the implied trust and the resulting trust. [Emphasis in original.][11]
The Court then considers everybody’s favourite trust case Pecore v. Pecore, for the following proposition,
“[a] resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original owner”[12]
The Court then considers an Ontario Court of Appeal decision, which in their view, dealt with a similar matter. In examining the facts and holding from Andrade v Andrade,[13] the Court notes that the Court of Appeal overturned a trial level decision for, inter alia, failing to consider the evidence of intention when matriarch of the family, put the subject property into her children’s names, while she continued to reside there.[14] The intention being, that she would remain the beneficial owner.[15]
Accordingly, based on the evidence before the Court, Justice Casullo found that the Applicant held the Property in Trust for Rod.[16] In assessing the Respondent’s intentions when being added to title, the Court found that the Respondent’s motive was gratuitous.[17] The Court held the following:
When he was added to title, David did not agree to take any responsibility for the Property, financially or otherwise. In fact, it was not until Michele moved out that David raised the spectre of his 50% ownership interest. I find the mortgage arrangement was created to facilitate Rod’s purchase of the Property, to which Betty Anne held in trust for Rod.[18]
In response to the Respondent’s position regarding Michele’s contributions to the Property, Justice Casullo noted that Michele would be paying rent regardless of where she lived.[19]
Disposition
Ultimately, the Court granted the Applicant’s application, ordering that Betty held title in the Property as trustee for Rod, and that David’s name is to be removed from the title.[20]
Final Remarks
In a somewhat straightforward constructive/ resulting trust case, this decision demonstrates that beneficial ownership turns on intention at the time title is taken, not the happenstance of whose name appears on title or post-hoc accounting of mortgage payments.
Reaffirming the principles in Pecore and Andrade, the Court emphasized that a resulting trust will arise where a party is added to title gratuitously and without assuming financial responsibility, particularly where the evidence demonstrates the arrangement was designed solely to facilitate another’s purchase.
—
[1] Savage v Duvall, 2026 ONSC 405, at paras 1-2. (“Savage v Duvall”)
[2] Ibid., at paras 3-4.
[3] Ibid., at para 5.
[4] Ibid., at para 6.
[5] Ibid., at paras 10-11.
[6] Ibid., at para 12.
[7] Ibid., at para 13.
[8] Ibid., at para 15.
[9] Ibid., at para 17.
[10] Ibid., at para 18.
[11] 512760 Ontario Inc. (Re), 1992 CanLII 8615 (ON SC), at para 22.
[12] Pecore v. Pecore, 2007 SCC 17, at para 20.
[13] Andrade v. Andrade, 2016 ONCA 368.
[14] Savage v Duvall, at para 33.
[15] Ibid., at para 34.
[16] Ibid., at para 35.
[17] Ibid.
[18] Ibid., at para 36.
[19] Ibid., at para 35.
[20] Ibid., at para 40.
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