What is the test for establishing that a party to a property is entitled to a resulting trust?

Where there is a gratuitous transfer of property, the general rule is that a presumption of a resulting trust arises. This places the onus on the transferee to demonstrate that a gift, as opposed to a resulting trust, was intended. [See Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795.]

In Kerr v. Baranow, 2009 BCCA 111, 176 A.C.W.S. (3d) 1077, the court reviewed Pecore and the issue of resulting trust and defined this concept as follows: A resulting trust is an equitable doctrine that, by operation of law, imposes a trust on a party who holds legal title to property that was gratuitously transferred to that party by another and where there is evidence of a common intention that the property was to be shared by both parties. In these circumstances, the law raises a rebuttable presumption of a resulting trust to the transferee.

As an exception to the general rule presuming a resulting trust, a presumption of advancement has historically been applied where the transferor is a husband and the transferee is his wife. Although a presumption of advancement has sometimes been applied to unmarried spouses, given that the parties were separated at the time of the transfer, I am satisfied that the presumption of advancement does not apply in these circumstances. [See J.A.B. v. H.W.C., 2008 BCSC 644, 167 A.C.W.S. (3d) 361 at para. 176; Zhu v. Li, 2009 BCCA 128, 176 A.C.W.S. (3d) 769 at para. 53, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 241.]