Does the presumption of resulting trust apply to the Advance?

Counsel for the claimant argues that pursuant to Pecore v. Pecore, 2007 SCC 17, the presumption of resulting trust should apply to the Advance on the basis that it was a gratuitous transfer between a parent and an adult child.

It is important not to overstate the importance of the presumption of resulting trust. The presumption is not engaged in circumstances where the actual intention of the transferor at the time of transfer is ascertainable on the evidence. As noted by Smith D. J.A. in Fuller v. Harper, 2010 BCCA 421, para. 47: Only if the trial judge is unable to reach a conclusion about the transferor’s actual intention at the time of transfer, will the presumption be applied to tip the scales in favour of the transferor or his estate.