A resulting trust arises when property is transferred without clear evidence of an intention to gift, and equity presumes that the transferee holds the property, in whole or in part, for the transferor’s benefit. In Canadian law, they serve as a critical corrective to prevent unjust enrichment and to align beneficial ownership with contributions and intentions inferred from the circumstances. In the context of estate law, transfers that engage the doctrine of resulting trust occur more often than not in the context of property being transferred from a parent to a child. These transfers can be made for a variety of reasons, and often there is not a wealth of supporting documentation to prove the actual intent of the parent. The Honourable Justice Akbarali of the Ontario Superior Court of Justice recently was faced with such a circumstance in the decision of Ramotar v. Ramotar.[1]

Background

Jagranie Ramotar (the “Applicant”) is 88 years old and suffers from macular degeneration, meaning she is visually impaired. Her son, Vinoo Ramotar (the “Respondent”) is one of 6 children of the Applicant, and notably the only child which she is not estranged from. The case centres around a piece of property in which the Applicant and her late husband Soogrim Ramotar (“Soogrim”) had moved into in 2009 (the “Property”).

Following a break up with his common law partner, the Respondent moved into the Property in 2014, and continued to reside there for over a decade. The Parties relationship was previously positive but began to deteriorate in 2021 following Soogrim’s death in December of 2021. He did not pay for rent, groceries, or any bills associated with the Property until 2025, when he had been ordered to do so by Justice Gilmore of the Ontario Superior Court of Justice.

The Applicant and Soogrim had made mirror wills leaving each other as their sole heir, with the Respondent as the sole contingent beneficiary should the other predecease them. In 2020, the Respondent was also named attorney for personal care in relation to the Applicant.

Less than 2 months after Soogrim’s death, the Respondent drove the Applicant to the lawyer that had prepared her will and power of attorney to affect a transfer of the Property from the Applicant solely to the Applicant and Respondent as joint tenants, for no consideration. The Applicant had made the meeting and spoke with an independent lawyer who worked with the drafting lawyer. The Respondent is a licenced real estate agent and the Applicant deposed that she believed the purpose of the transfer was attributed to wealth management reasons. Due to her physical condition, the Applicant could not read the documents, though she signed them nonetheless.

The Parties’ relationship continued to deteriorate, and in 2023, the Applicant signed a Power of Attorney for Property, appointing another family member as attorney. The Respondent remained as attorney for personal care. Upon the creation of this document, the Applicant became aware of the implications of the transfer of the Property. The Applicant made efforts to sever the joint tenancy, but remained concerned about the Respondent’s half interest in the Property, which could operate to disinherit her other children to the extent of half of the value of the home in the future.

The Respondent still lives with the Applicant and refuses to relinquish his interest in the property. As such, the Applicant sought an order that the Property be transferred fully to her as the sole legal and beneficial owner, relying on the doctrine of resulting trust, and alternatively the doctrines of undue influence, unjust enrichment, and constructive trust. In addition, she sought an order that the Respondent vacate the Property immediately.

Issues

Justice Akbarali identified a number of issues arising from the above circumstances, including the following:

1. Does the presumption of resulting trust apply, and if so, can it be rebutted?
2. Does the record establish undue influence and/or unjust enrichment, such that a constructive trust should be found?
3. Should a vesting order be made? and
4. Should the Respondent be ordered to vacate the Property

Analysis

Issue 1: Resulting Trust

Justice Akbarali began by citing the leading case on the presumption of resulting trust, in Pecore v. Pecore where it was shown that the gratuitous transfer of a property between a parent and a non-disabled adult child is subject to a presumption of a resulting trust.[2] The Court also referenced Kerr v. Barranow where the Supreme Court of Canada held that in cases of gratuitous transfers, the actual intention of the grantor is the governing consideration.[3]

As the transfer of the Property here was made without consideration, Justice Akbarali found that the presumption of resulting trust does indeed apply, and therefore it fell to the Respondent to rebut that presumption. In considering whether the presumption of resulting trust was rebutted, the Court considered, among other things, the fact that the Respondent was the sole heir of the Applicant, the fact that the Respondent had never met the lawyer prior to the transfer meeting, and the overall inconsistencies in the Applicant’s testimony.

Accordingly, Justice Akbarali held that, while the presumption of resulting trust did exist, the Respondent was able to rebut that presumption and held that it was the Applicant’s intention to gift an interest in the whole of the Property and the right of survivorship to the Respondent at the time of the transfer.

Issue 2: Undue Influence, Unjust Enrichment, and Constructive Trust

Justice Akbarali, citing Justice Gilmore’s review of the indicators of undue influence in Abbruzzese v. Tucci,[4] first laid out the following factors that can be considered in proving undue influence:

1.    where the testator is dependent on the beneficiary for emotional and physical needs;
2.    where the testator is socially isolated;
3.    where the testator has experienced recent family conflict;
4.    where the testator has experienced recent bereavement;
5.    where the testator has made substantial pre-death transfer of wealth to the respondent;
6.      where the testator has made a new will not consistent with prior wills;
7.    where the testator has failed to provide a reason or explanation for unexpectedly excluding a family member;
8.    where the testator uses a lawyer previously unknown to him or her and chosen by the respondent.

The Applicant’s argument centered on the fact that she was vulnerable due to her visual impairment, the recent loss of her spouse, and her dependence on the Respondent. Justice Akbarali did find that the Applicant was at some risk of vulnerability, but also found that the Respondent did not have the opportunity to exercise undue influence over the Applicant, as she was at no time found incapable, and had a previous relationship with the drafting lawyer, whereas the Respondent did not.

Justice Akbarali also noted that parent-child relationships do not always give rise to a presumption of undue influence and to establish such a presumption, the Applicant must establish the existence of a relationship of potential dominance between the parent and adult child. Here, such a dominant relationship did not exist, and even if it did, Justice Akbarali found that the evidence suggested that the Applicant entered into the transaction of her own full, free, and informed thought.

With respect to unjust enrichment, the Court defined it as an enrichment on the part of one party to a corresponding deprivation on the part of another, with no juristic reason.[5] Here, Justice Akbarali held that there is a clear juristic reason for the enrichment, that being the Applicant’s gift to the Respondent of a joint interest in the Property. As such, any claim for unjust enrichment is not made out.

Accordingly, the Court held that there is no basis to grant the remedy of constructive trust.

Issues 3 and 4: Vesting Order and an Order to Vacate the Property

The Court reiterated its finding that the transfer was made as a clear gift to the Respondent, and therefore a vesting order should not be granted, as gifts are not revocable by such a mechanism.[6]

With regard to the 4^th issue of ordering the Respondent to vacate the Property, Justice Akbarali expressed concern with the ongoing arrangement for both parties to be residing at the Property, given the clear deterioration of their relationship. That being said, given her findings above, she could not find any basis before her on which she had authority to evict the Respondent from the Property, given that he had a 50% ownership of it. As such, the Court declined to make any such order.

Final Thoughts

In many cases, once the presumption or resulting trust is established, it can be quite difficult to rebut. Notably, in this case, neither lawyer present during the transfer of the Property testified, which is somewhat surprising given the key consideration in rebutting the presumption of resulting trust is the intention and mindset of the transferor at the time of the transfer. Given the lack of evidence provided at the actual time of the transfer, the Court had to rely on the surrounding factors to come to a decision. This case is a sharp reminder that in parent-adult transfers it is critical that you are clear with your intention. Otherwise, when the evidence is thin, the court will read in the circumstances of the transfer, and you may not like the story they tell.

—

[1] Ramotar v. Ramotar, 2026 ONSC 2153

[2] Pecore v. Pecore, 2007 SCC 17

[3] Kerr v. Barranow, 2011 SCC 10

[4] Abbruzzese v. Tucci, 2024 ONSC 957

[5] Supra note 3 at paras 36-40

[6] See Jackson v. Rosenberg, 2024 ONCA 875, at para. 31.