The Value of Contribution of a parties to the acquisition or improvement of an asset does not have to be in money and can take various individual forms as was discussed in Mac v Mak 2016 BCSC 1140.
The Courts have to scrutinize the relationship and history of the parties and come to a conclusion on a case by case basis as to what if anything each party contributed little or no monies but instead did other things like free labour in expectation of being put on title.
Mac v Mak was a dispute over ownership of a home that was previously held in joint tenancy by Sau Har Mak and her two daughters.
Sau Har Mak died in August 2012, and full title of the home passed to her daughters on her death.
Two of Sau Har Mak’s sons sought a declaration that their sisters hold the property on resulting trust for Sau Har Mak’s estate and do not have beneficial ownership of the home.
[92] The central issue before the Court is whether a joint tenancy was created between Sally Mak, Mary Mak and Sau Har Mak when the Mahon property was purchased on June 17, 1993.
Specifically, the Court must determine whether the transfer was gratuitous, and therefore the presumption of a resulting trust applies, or whether beneficial ownership is governed by the presumption of indefeasible title in favour of Sally and Mary Mak.
VALUE
[119] In Virk v. Pannu, 2006 BCSC 921, aff’d Bajwa v. Pannu, 2007 BCCA 260, Baljit Kaur Bajwa and her mother, Balwant Kaur Virk, together with the defendant, Rupinder Pannu, purchased a property as joint tenants for $249,000. Ms. Bajwa and Ms. Virk as plaintiffs had provided the down payment of $35,000, and the balance of the purchase price came from a mortgage with their financial institution. Mr. Pannu did not contribute any money towards the purchase, but became a covenanter on the mortgage. He assisted in searching for the property and engaging a realtor. The court held that the onus was on the plaintiffs seeking to displace the presumption of indefeasible title created by s. 23(2) of the Land Title Act and there was no cogent evidence doing so. The court held that the presumption of resulting trust did not apply because Mr. Pannu had given “value” for his interest, and he was not unjustly enriched if he retained a one-third interest in the property.
[120] As noted by the Court of Appeal in Bajwa, “[w]hether value is given is a question of fact to be determined on the evidence in each case”: para. 16. As the facts in Bajwa indicate, value does not necessarily involve the contribution of money: para 16. The court stated:
[16] The Virks rely on Professor Waters’ text, Law of Trusts in Canada, 2d. ed. (Toronto: Carswell, 1984) at 299. The passage on that page of the text says that for a resulting trust to be inferred the person said to be a trustee must have given no value for his legal interest. It follows that if it is found as a fact that the person whose equitable interest is challenged did give value, there can be no resulting trust. Whether value was given is a question of fact to be determined on the evidence in each case. …
See also Chuang, paras. 10 and 11:
[10] Whether a transfer is found to be gratuitous, and therefore whether the presumption of resulting trust arises, is a question of fact, and even the exchange of money is not determinative (Modonese) [Modonese v. Delac Estate, 2011 BCSC 82]. In this case, although the Claimant did pay some money towards the purchase of the Property, the registration as a 50% owner, as opposed to the 15% she contributed, was based on the parties’ intention to have a life together. There may be cases where unequal contributions leading to equal ownership will not be gratuitous (if for example the deal could not be completed without the lesser contributing party’s contacts), but those would seem to be different from the present case. In Miller v. Walker, 2006 ABQB 424 [Miller], the court found that unequal contributions to a property that was immediately registered as a joint tenancy raised the presumption of resulting trust (although the presumption was rebutted in that case). Further, the Claimant herself argues (and not merely in the alternative) that the presumption of advancement applies, and since the presumption of advancement only arises on gratuitous transfers, her position would seem to implicitly concede that the transfer was gratuitous.
[11] The presumption of resulting trust can itself be rebutted by the presumption of advancement, and either presumption can be defeated by evidence of a contrary intention on the part of the donor.
See also Klein v. Wolbeck, 2016 ABQB 28 at para. 176:
Put aside the difficulty that Mr Klein did not transfer the Lands to Ms Wolbeck since the transferors were Mr Klein’s parents. The doctrine of resulting trust has no purchase because Ms Wolbeck did provide value. She was also a mortgagor. Her acquisition of her joint interest was not a gratuitous transaction: Lutz v Lutz, 2013 ABCA 159 at para 12. Mr Klein did not put up the entire down payment himself and gratuitously cause the certificate of title to reflect a joint interest for Ms Wolbeck.
[121] The courts have occasionally found that unequal contributions leading to equal ownership may be considered a gratuitous transfer: Chuang at paras. 10 and 11.
