A resulting trust arises whenever legal or equitable title to property is in one party’s name, but that party, because they are 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.[1] A resulting trust is presumed when a piece of property is purchased with the money of one person, but title is in the name of another, despite there being no written evidence of the trust.[2] Often, resulting trusts are found to exist when there are “unwritten” or “assumed” agreements that a parent’s property is meant to revert back into an estate, despite being held in name by a child. However, legally these can be difficult to identify, especially in situations where almost all evidence is predicated on unwritten agreements and understandings. The Ontario Superior Court of Justice recently had to grapple with such a predicament in Todd v. Todd et al.[3]
Background
This case concerned a dispute among a large family of siblings. The father, Alex Todd (“Alex”) passed away in 1995, and the mother, Hyacinth Todd (“Hyacinth”) passed away in 2009. Together, they had seven children. The eldest sibling, Cedric Todd (“Cedric”) brought an initial application for partition and sale of a residential property in Etobicoke that had been the longtime familial home of the Todd family (the “Property”). Five of Cedric’s siblings (the “Todd Siblings”) opposed Cedric’s application and brought a counter application for, among other things, a declaration of resulting trust in the Property. The seventh sibling passed away in 2018, unmarried and with no heirs.
In 1976, the Property was purchased by the Todd family for $68,000. A $16,000 downpayment was made and two mortgages were taken out: the first for $41,593 and the second for $9,698. Cedric and one of his brothers, Brian Todd (“Brian”) were listed as tenants in common. On September 14, 2023, Cedric’s counsel wrote to Brian advising that Cedric wished to sell the Property.
Notably, other than the agreement of purchase and sale, title and deed, and mortgage papers, there are no other written documents pertaining to the Property. As such, the evidence of the two parties differed wildly from one another, as the basis for the dispute was founded on assertions of unwritten agreements and understandings as to the beneficial ownership of the property.
Cedric’s evidence relied on the fact that he and his father, Alex, purchased the Property together. He deposed that the two of them had an unwritten agreement that they alone would contribute to the purchase, with each of them having a 50% interest in the Property. He deposed that he had provided half of the purchase payment for the Property, and that he and Alex never had any agreement that the Property would be held in trust for his siblings. He further deposed that the only reason that his brother Brian’s name was on the Property was for the purpose of getting the mortgage approved.
The Todd Siblings’ evidence substantially differed from Cedric’s deposition. They claimed that they collectively paid the entire downpayment for the Property as well as the entirety of the first mortgage with only Cedric paying the somewhat nominal second mortgage. They asserted that the only reason that Cedric’s name was on the Property was because of the family’s culture coming from Pakistan, where the eldest unmarried sons would hold property for the benefit of the family. The thrust of their evidence revolved around each sibling separately giving money to their mother, who would then provide it to Alex for the purpose of paying the mortgage. Again, no documentation was provided to support this claim, as they argued that it was based on an unwritten understanding of the ownership of the Property.
Issues
Justice Mathen of the Ontario Superior Court of Justice identified the following issues arising out of the circumstances:
- Is the Todd Siblings’ counter application statute barred?
- Does the evidence support the claim for resulting and/or constructive trust, or for an unwritten agreement that the Property would be collectively owned?
- Is Cedric entitled to an order for partition and sale, and if so, how much of the proceeds is Cedric entitled to, and should the proceeds of any sale be held in trust?
Analysis
Issue 1: Is the Counterclaim Statute Barred?
As a preliminary issue, Justice Mathen first had to consider whether there was a limitations issue respecting the Todd Siblings’ claims. Under the Real Property and Limitations Act[4] (“RLPA”), no person shall “bring an action to recover any land…but within ten years next after the time at which the right…to bring such action, first accrued”. Effectively, the analysis depended on whether or not the Todd Siblings knew that Cedric thought that he had a greater interest in the Property than the rest of them at any point prior to the last 10 years.
On review of the evidence, Justice Mathen did find that it was more likely than not that the Todd Siblings did in fact know about Cedric’s intentions as early as 2003. This finding was largely based on a handwritten note penned by Hyacinth in 2003 that stated that “This house which has been our Family Home, and everything in it, belongs to my children, to be shared among them.” This note was produced by the Todd Siblings themselves in an attempt to bolster their case. Evidence on cross-examination was brought out that it was likely that this note was written as a response to comments made by Cedric that he owned the house. Additionally, although it was unclear as to when the Todd Siblings became aware of the note, it was likely that they had at least known about it following their mother’s death in 2009.
As such, on a balance of probabilities, Justice Mathen found that the Todd Siblings had been aware of Cedric’s intentions by 2009 at the latest, which would fall outside of the limitation period provided for in the RPLA. Accordingly, their claim is statute-barred and is extinguished. For completeness, however, Justice Mathen went on to rule on the merits of the counter application in any event.
Issue 2: Does the Evidence Support the Claim for Resulting Trust, Constructive Trust, and/or an Unwritten Agreement for Collective Ownership?
At the outset, Justice Mathen identified the governing law surrounding resulting and constructive trusts. Specifically in the context of a resulting trust, a trust is presumed when the property is purchased with the money of one person, but title is in the name of another. Referencing Nishi v. Rascal Trucking Ltd.,[5] the court found that a resulting trust is formed when:
- The trustee has title to the property;
- The claimant supplied part of all of the purchase price when the property was being bought and transferred into the alleged trustee’s name; and
- The claimant acted throughout as a purchaser.
While the court did find that the Todd Siblings had satisfied the first branch of this test, it was ultimately held that sufficient evidence was not adduced to satisfy the second and third branch. Although it is clear that Cedric has title to the Property, it is unclear to what extent the Todd siblings provided any of the purchase price. The Todd Siblings deposed that they had pooled their resources to give to Alex for the purchase price, but no corroborative evidence was provided to support this claim. Justice Mathen also found that parts of the Todd Siblings’ testimony was inconsistent with itself and unpersuasive.
With respect to a constructive trust Justice Mathen, referencing Djekic v. Zai,[6] found the following requirements:
- A party benefited from an enrichment;
- The enrichment was to the detriment of the party seeking a constructive trust; and
- There is no juristic reason for the enrichment.
The court found that no constructive trust could be made out on unjust enrichment as none of the siblings suffered a deprivation. There was clear paper evidence of cheques made by Alex and Cedric paying the mortgage for the Property, but no corroborative evidence supporting the Todd Siblings’ claims that they paid any of it. As such, no enrichment could be to their detriment, as they did not provide for the purchase price.
As for the existence of an unwritten agreement for collective ownership based on cultural and familial norms, the Court found that s.2 of the Statute of Frauds barred such a finding, as it dictates that interests in land can only be assigned, granted or surrendered “by deed or note in writing” and must be “signed by the party so assigning…or the party’s agent”.[7]
As such, even if the Todd Siblings’ claim wasn’t statute-barred, the court found that it would still fail on all accounts, and no trust can be established.
Issue 3: Is Cedric entitled to an order for partition and sale, and if so, how much of the proceeds is Cedric entitled to, and should the proceeds of any sale be held in trust?
The court ultimately held that, as a tenant in common of the Property, Cedric has a prima facie right to seek its sale.[8] In order to bar Cedric from selling the Property, the court would need to find that his conduct is “malicious, vexatious, or oppressive.”[9] Although two of the Todd Siblings currently resided in the home, the court found that Cedric’s desire to sell was not for vexatious or oppressive reasons, as he had legitimate reasons to wanting to sell the Property (he was 78 years old and needed the proceeds for his retirement).
The court went on to find that Cedric and Brian would each be entitled to 50% of the proceeds as tenants in common. Given that the counter claim was dismissed, there was no reason to order the proceeds of the sale to be held in any sort of trust.
Final Thoughts
Todd v. Todd et al is a prime example of the difficulties involved in cases where resulting trusts and unwritten agreements are claimed. Those problems are inherent in the name of the claim itself – the very nature of the circumstances being “unwritten” can make them incredibly difficult to claim in court. It should also be noted here that the Todd Siblings were not represented by counsel at the hearing of this matter, which made an already difficult claim even more trying to make out. This case serves as a stark reminder of the importance of keeping clear and detailed records whenever any transfer of funds is made, even if it is within family. There is no telling what may happen down the road in terms of family relationships, and unfortunately it is all too common for trusted families to turn on one another when money is involved. As such, we should all strive to take steps to protect ourselves, and hopefully, on this St. Patrick’s day, some luck can rub off on us such that we’ll never need to actually use that protection.
—
[1] Kim v. Kim, 2014 ONSC 4773, at para. 8, citing D.W.M. Waters, Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984)
[2] Ibid at para 9, citing Anger and Honsberger, Real Property, 2nd ed. (Aurora: Canada Law Book, 1985) vol. 1, at pp. 646-47
[3] Todd v. Todd et al., 2026 ONSC 968
[4] Real Property Limitations Act, R.S.O. 1990, c. L.15 9 at s.4
[5] Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R.
[6] Djekic v. Zai, 2015 ONCA 25, 54 R.F.L. (7th) 1,
[7] Statute of Frauds, R.S.O. 1990, c. S.19, s. 2,
[8] Partition Act, R.S.O. 1990, c. P.4, s. 2.
[9] Latcham v. Latcham (2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.), at para. 2.
Written by: Mark Polese
Posted on: March 18, 2026
Categories: Commentary, WEL Newsletter
A resulting trust arises whenever legal or equitable title to property is in one party’s name, but that party, because they are 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.[1] A resulting trust is presumed when a piece of property is purchased with the money of one person, but title is in the name of another, despite there being no written evidence of the trust.[2] Often, resulting trusts are found to exist when there are “unwritten” or “assumed” agreements that a parent’s property is meant to revert back into an estate, despite being held in name by a child. However, legally these can be difficult to identify, especially in situations where almost all evidence is predicated on unwritten agreements and understandings. The Ontario Superior Court of Justice recently had to grapple with such a predicament in Todd v. Todd et al.[3]
Background
This case concerned a dispute among a large family of siblings. The father, Alex Todd (“Alex”) passed away in 1995, and the mother, Hyacinth Todd (“Hyacinth”) passed away in 2009. Together, they had seven children. The eldest sibling, Cedric Todd (“Cedric”) brought an initial application for partition and sale of a residential property in Etobicoke that had been the longtime familial home of the Todd family (the “Property”). Five of Cedric’s siblings (the “Todd Siblings”) opposed Cedric’s application and brought a counter application for, among other things, a declaration of resulting trust in the Property. The seventh sibling passed away in 2018, unmarried and with no heirs.
In 1976, the Property was purchased by the Todd family for $68,000. A $16,000 downpayment was made and two mortgages were taken out: the first for $41,593 and the second for $9,698. Cedric and one of his brothers, Brian Todd (“Brian”) were listed as tenants in common. On September 14, 2023, Cedric’s counsel wrote to Brian advising that Cedric wished to sell the Property.
Notably, other than the agreement of purchase and sale, title and deed, and mortgage papers, there are no other written documents pertaining to the Property. As such, the evidence of the two parties differed wildly from one another, as the basis for the dispute was founded on assertions of unwritten agreements and understandings as to the beneficial ownership of the property.
Cedric’s evidence relied on the fact that he and his father, Alex, purchased the Property together. He deposed that the two of them had an unwritten agreement that they alone would contribute to the purchase, with each of them having a 50% interest in the Property. He deposed that he had provided half of the purchase payment for the Property, and that he and Alex never had any agreement that the Property would be held in trust for his siblings. He further deposed that the only reason that his brother Brian’s name was on the Property was for the purpose of getting the mortgage approved.
The Todd Siblings’ evidence substantially differed from Cedric’s deposition. They claimed that they collectively paid the entire downpayment for the Property as well as the entirety of the first mortgage with only Cedric paying the somewhat nominal second mortgage. They asserted that the only reason that Cedric’s name was on the Property was because of the family’s culture coming from Pakistan, where the eldest unmarried sons would hold property for the benefit of the family. The thrust of their evidence revolved around each sibling separately giving money to their mother, who would then provide it to Alex for the purpose of paying the mortgage. Again, no documentation was provided to support this claim, as they argued that it was based on an unwritten understanding of the ownership of the Property.
Issues
Justice Mathen of the Ontario Superior Court of Justice identified the following issues arising out of the circumstances:
Analysis
Issue 1: Is the Counterclaim Statute Barred?
As a preliminary issue, Justice Mathen first had to consider whether there was a limitations issue respecting the Todd Siblings’ claims. Under the Real Property and Limitations Act[4] (“RLPA”), no person shall “bring an action to recover any land…but within ten years next after the time at which the right…to bring such action, first accrued”. Effectively, the analysis depended on whether or not the Todd Siblings knew that Cedric thought that he had a greater interest in the Property than the rest of them at any point prior to the last 10 years.
On review of the evidence, Justice Mathen did find that it was more likely than not that the Todd Siblings did in fact know about Cedric’s intentions as early as 2003. This finding was largely based on a handwritten note penned by Hyacinth in 2003 that stated that “This house which has been our Family Home, and everything in it, belongs to my children, to be shared among them.” This note was produced by the Todd Siblings themselves in an attempt to bolster their case. Evidence on cross-examination was brought out that it was likely that this note was written as a response to comments made by Cedric that he owned the house. Additionally, although it was unclear as to when the Todd Siblings became aware of the note, it was likely that they had at least known about it following their mother’s death in 2009.
As such, on a balance of probabilities, Justice Mathen found that the Todd Siblings had been aware of Cedric’s intentions by 2009 at the latest, which would fall outside of the limitation period provided for in the RPLA. Accordingly, their claim is statute-barred and is extinguished. For completeness, however, Justice Mathen went on to rule on the merits of the counter application in any event.
Issue 2: Does the Evidence Support the Claim for Resulting Trust, Constructive Trust, and/or an Unwritten Agreement for Collective Ownership?
At the outset, Justice Mathen identified the governing law surrounding resulting and constructive trusts. Specifically in the context of a resulting trust, a trust is presumed when the property is purchased with the money of one person, but title is in the name of another. Referencing Nishi v. Rascal Trucking Ltd.,[5] the court found that a resulting trust is formed when:
While the court did find that the Todd Siblings had satisfied the first branch of this test, it was ultimately held that sufficient evidence was not adduced to satisfy the second and third branch. Although it is clear that Cedric has title to the Property, it is unclear to what extent the Todd siblings provided any of the purchase price. The Todd Siblings deposed that they had pooled their resources to give to Alex for the purchase price, but no corroborative evidence was provided to support this claim. Justice Mathen also found that parts of the Todd Siblings’ testimony was inconsistent with itself and unpersuasive.
With respect to a constructive trust Justice Mathen, referencing Djekic v. Zai,[6] found the following requirements:
The court found that no constructive trust could be made out on unjust enrichment as none of the siblings suffered a deprivation. There was clear paper evidence of cheques made by Alex and Cedric paying the mortgage for the Property, but no corroborative evidence supporting the Todd Siblings’ claims that they paid any of it. As such, no enrichment could be to their detriment, as they did not provide for the purchase price.
As for the existence of an unwritten agreement for collective ownership based on cultural and familial norms, the Court found that s.2 of the Statute of Frauds barred such a finding, as it dictates that interests in land can only be assigned, granted or surrendered “by deed or note in writing” and must be “signed by the party so assigning…or the party’s agent”.[7]
As such, even if the Todd Siblings’ claim wasn’t statute-barred, the court found that it would still fail on all accounts, and no trust can be established.
Issue 3: Is Cedric entitled to an order for partition and sale, and if so, how much of the proceeds is Cedric entitled to, and should the proceeds of any sale be held in trust?
The court ultimately held that, as a tenant in common of the Property, Cedric has a prima facie right to seek its sale.[8] In order to bar Cedric from selling the Property, the court would need to find that his conduct is “malicious, vexatious, or oppressive.”[9] Although two of the Todd Siblings currently resided in the home, the court found that Cedric’s desire to sell was not for vexatious or oppressive reasons, as he had legitimate reasons to wanting to sell the Property (he was 78 years old and needed the proceeds for his retirement).
The court went on to find that Cedric and Brian would each be entitled to 50% of the proceeds as tenants in common. Given that the counter claim was dismissed, there was no reason to order the proceeds of the sale to be held in any sort of trust.
Final Thoughts
Todd v. Todd et al is a prime example of the difficulties involved in cases where resulting trusts and unwritten agreements are claimed. Those problems are inherent in the name of the claim itself – the very nature of the circumstances being “unwritten” can make them incredibly difficult to claim in court. It should also be noted here that the Todd Siblings were not represented by counsel at the hearing of this matter, which made an already difficult claim even more trying to make out. This case serves as a stark reminder of the importance of keeping clear and detailed records whenever any transfer of funds is made, even if it is within family. There is no telling what may happen down the road in terms of family relationships, and unfortunately it is all too common for trusted families to turn on one another when money is involved. As such, we should all strive to take steps to protect ourselves, and hopefully, on this St. Patrick’s day, some luck can rub off on us such that we’ll never need to actually use that protection.
—
[1] Kim v. Kim, 2014 ONSC 4773, at para. 8, citing D.W.M. Waters, Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984)
[2] Ibid at para 9, citing Anger and Honsberger, Real Property, 2nd ed. (Aurora: Canada Law Book, 1985) vol. 1, at pp. 646-47
[3] Todd v. Todd et al., 2026 ONSC 968
[4] Real Property Limitations Act, R.S.O. 1990, c. L.15 9 at s.4
[5] Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R.
[6] Djekic v. Zai, 2015 ONCA 25, 54 R.F.L. (7th) 1,
[7] Statute of Frauds, R.S.O. 1990, c. S.19, s. 2,
[8] Partition Act, R.S.O. 1990, c. P.4, s. 2.
[9] Latcham v. Latcham (2002), 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (Ont. C.A.), at para. 2.
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