By Teodor Katsarov, SV Law
In the case of Ramotar v. Ramotar, 2026 ONSC 2153 (CanLII), the Court had to consider whether the presumption of resulting trust arising from a gratuitous transfer of property from parent to an independent adult child was rebutted by evidence that the transfer was an inter vivos gift.
For clarity, the term inter vivos is Latin for “between the living” and refers to gratuitous transfers of property made during the donor’s lifetime. An inter vivos gift takes effect immediately and is generally irrevocable.
Facts
The applicant, Jagranie Ramotar, is the mother of the respondent, Vinoo Ramotar. Jagranie was 88 years old at the time of the application and visually impaired. Jagranie and her late husband, Soogrim, purchased their house at 149 Rochman Boulevard, Scarborough in 2009. Vinoo moved in with his parents in 2014 and did not contribute to the household expenses. Soogrim passed away in 2021, leaving Jagranie as his sole heir, with Vinoo as the alternate beneficiary under mirror wills. The Wills were prepared by their personal lawyer, Zahid Bashir.
Two months after Soogrim’s death, the parties attended Mr. Bashir’s office, where they transferred the house from Jagranie to Jagranie and Vinoo in joint tenancy, for no consideration. Mr. Memon, a lawyer who shares space with Mr. Bashir, provided Jagranie with independent legal advice.
Jagranie deposed that Vinoo made the appointment to help her manage her assets and that she trusted him because of his real estate experience. She later claimed that she did not understand the documents she had signed. Vinoo deposed that Jagranie made the appointment, and that she knew what she was signing.
Jagranie deposed that she learned what a joint tenancy meant when she signed POAs for property in 2023, which prompted her to seek to sever it. The parties’ relationship deteriorated after the POAs. Jagranie claimed that Vinoo was threatening her with comments that he would send her to a nursing home. Jagranie wanted Vinoo to vacate the home, but he refused.
She brought an application seeking an order transferring the property entirely to her, relying on the doctrine of resulting trust, undue influence, unjust enrichment, and constructive trust.
The Court considered the following four issues:
- Whether the presumption of resulting trust apply, and if so, if it can be rebutted;
- Whether there was undue influence or unjust enrichment;
- Whether a vesting order should be made; and
- Whether Vinoo should be ordered to vacate the property.
Resulting Trust
The Court relied on the leading case law on resulting trust (i.e., Pecore v. Pecore, 2007 SCC 17; Kerr v. Baranow, 2011 SCC 10, at paras. 17-18) to reaffirm that a gratuitous transfer between a parent and a non-disabled adult child is subject to a presumption of a resulting trust. The onus was placed on Vinoo to rebut the presumption and prove that the gift was intended. The Court found that the presumption was rebutted because of the following:
- The Court stated that the mirror wills already identified Vinoo as the sole alternate beneficiary of the estate and that the transfer effected an inter vivos completion of the parties’ testamentary plan.
- Bashir had an existing relationship with Jagranie. Vinoo had never met him before the date of transfer. As such, the Court did not find any evidence that Mr. Bashir would act contrary to the instructions of Jagranie.
- The Court found that Jagranie made the appointment.
- On cross-examination, the Court found that Jagranie admitted that the reason she sought the revocation of the joint tenancy was because of Vinoo’s threats and not because she did not intend to make the gift.
- The Court found that Jagranie’s evidence was unreliable.
After careful examination, the Court placed significant weight on the evidence that Jagranie and Soogrim had executed mirror wills, as well as on Jagranie’s pre-existing relationship with Mr. Bashir and her role in scheduling the appointment. Taken together, the evidence strongly supported the conclusion that she had the necessary donative intent to make the gift to her son. The fact that she later changed her mind after satisfying the legal requirements for a valid inter vivos gift and completing the transfer was insufficient to revoke the gift. Accordingly, the Court found that the presumption of resulting trust was rebutted and that the gift to Vinoo was valid.
Undue Influence
The Court noted that vulnerability and dependency are the “hallmarks of undue influence” (at para 47). It also cited Abbruzzese v. Tucci, 2024 ONSC 957, at para. 201, aff’d 2025 ONCA 70, where the Court identified several factors to be considered when determining whether undue influence existed in respect of the inter vivos gift.
The Court found that Jagranie had some vulnerabilities (e.g., poor eyesight, some dependency on Vinoo, the passing of her husband), and that Vinoo had taken advantage of her by living in the house. However, the Court found that Vinoo did not have the opportunity to exercise undue influence on his mother because:
- There were no competence concerns;
- Jagranie used her own lawyer;
- Jagranie made the appointment;
- Her conflict with Vinoo would have made her less trusting of him, rather than making her trust him more;
- The instructions were consistent with the testamentary intentions, and
- Her evidence was unreliable.
The Court mentioned that even if there was a presumption of undue influence, the evidence showed that Jagranie intended the transaction. As such, the Court declined to find undue influence.
Unjust Enrichment/Constructive Trust
The Court said that there was no unjust enrichment because the deprivation was attributable to the intention behind the gift.
Vesting Orders
Under section 100 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, the Court is authorized to withdraw a gift. As such, Jagranie applied for a vesting order to set aside the gift. For clarity, a vesting order is a court order that directly transfer legal ownership of property from one party to another.
However, in this case, the Court indicated that vesting orders are not meant for withdrawing gifts that the donor regrets giving. Having found that a valid inter vivos gift transfer had been completed, the Court refused to grant an order vesting 100% of the ownership back to Jagranie.
Vacating the Property
The Court also refused to order Vinoo to vacate the property because he legally owned half of it, and there was no properly founded basis for the order. However, the Court held that if counsel identify such a basis, they could file a new motion on the issue.
Vinoo was awarded costs at $6,760.87.
Potential Implications
The decision may have broader implications in cases involving elders. It shows that even in situations where some vulnerability exists, undue influence is not automatically assumed. The Court must rely on certain factors to determine if undue influence exists. These factors include:
- “Whether the testator is dependent on the beneficiary for emotional and physical needs;
- Where the testator is socially isolated;
- Where the testator has experienced recent family conflict;
- Where the testator has experienced recent bereavement;
- Where the testator has made a substantial pre-death transfer of wealth to the respondent’
- Where the testator has made a new will not consistent with prior wills’
- Where the testator has failed to provide a reason or explanation for unexpectedly excluding a family member;
- Where the testator uses a lawyer previously unknown to him or her and chosen by the respondent.”[1]
The factors, together with whether the testator had the testamentary intention of making the gift must be considered on case-by-case basis to determine whether the vulnerability established a relationship of potential dominance that raises to the level of undue influence.
In its decision, the Court also reaffirmed the presumption of a resulting trust in parent and independent adult child property transfers. The decision highlights the importance of clear testamentary intention, and how the intention could have significant implications on how the case is decided.
For clarity, lawyers and clients must ensure that inter vivos gratuitous transfers are well documented and a clear intention of the transaction is recorded to prevent lengthy and costly court battles like in the Ramotar case.
[1] Ramotar v. Ramotar, 2026 ONSC 2153 (CanLII), at para 49 citing Abbruzzese v. Tucci, 2024 ONSC 957, at para. 201
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