Case comment: Boire v Boire, 2025 SKKB 150 (CanLII)

The recent Saskatchewan decision in Boire v Boire, 2025 SKKB 150 reminds us of the importance of properly documenting an express trust when adding third parties to title. In Boire there was sufficient evidence of a trust interest as to permit the Court to summarily enforce the beneficiary’s rights in the trust property, and avoid a long and costly trial.

Factual Background:

1. Marcel (“Marcel”) an 86-year-old widower from southern Saskatchewan, moved out of the family home after his wife Evelyn’s death.
2. In 2023, prior to Evelyn’s death, Marcel and Evelyn had placed the names of their three children on title to the Home for estate planning purposes. It is common for property owners to add intended beneficiaries to land titles, expecting that these beneficiaries will eventually receive sole ownership through the right of survivorship, thereby avoiding probate costs and delays.
3. Estate planning documents typically state that property owners retain the right to sell the property and receive the proceeds during their lifetimes. Those added to title generally have no control or beneficial interest until the owner’s death.
4. The issue arose when Marcel wished to sell the now-vacant family home (“Home”) but one child, Gregory, refused to cooperate.
5. At the time of adding the children to title to the Home, Marcel and Evelyn entered into a written agreement with their three children (the “Agreement”).
6. The Agreement did not use the word “trust”, but it did provide for the below:

1. Title was to be registered in the names of “the owners” (Marcel and Evelyn) and “the beneficiaries” (the children) as joint tenants “for estate planning purposes”;
2. Marcel and Evelyn retained full control of the Home during their lives and were entitled to all revenues from the Home and responsible for all expenses associated with it;
3. The children would “become the beneficial owners” of the Home upon the death of both their parents; and
4. Marcel and Evelyn could sell the Home during their lifetime and if they did so, they would be entitled to all sale proceeds notwithstanding their children’s registered interests on title.

7. When Marcel decided to sell the home, his daughters signed the listing agreement, but Gregory refused, wanting to ensure he received the share he believed his mother intended for him

Issue:

Was Gregory’s interest in the home held in trust for Marcel, allowing Marcel to control the use and ownership of the home during his lifetime?

Determination in Boire v Boire:

The Court found that the Agreement created an express trust, giving Marcel control over the Home’s use and sale.  

A trust is a legal relationship wherein a trustee manages property for the benefit of the beneficiaries. In law, trusts can be created in a number of ways. They can be intentionally created, or they may come into being through operation of law. Marcel was alleging an express trust, which is a trust that is intentionally created. For an express trust to be found in this situation, the Court would have to determine that the settlor of the trust (Marcel and Evelyn) had transferred the Home into the names of the alleged trustees (the three children) with the stipulation that the Home would be held for the benefit of the beneficiaries (Marcel and Evelyn).

The Court held that the relevant time to assess if a trust was created was at the time of the transfer into the name of the alleged trustees:

[9]            In Saskatchewan the party seeking to establish the existence of a trust must demonstrate that the transferor lacked donative intent at the time of transfer. The Court of Appeal has cautioned that gratuitous transfers should be accompanied either by a deed of gift or by a declaration of trust: Dunnison Estateat para 114. It also stated that if a transferor wants the ability to reclaim the land in question, at least as a practical matter, he or she should create an express trust at the time of transfer: para. 105; see also Martin v Martin, 2022 SKCA 79 at para 8.

The Court observed that to create a trust, there must exist the below three certainties:

1. Certainty of intention to create a trust;
2. Certainty as to the subject matter of the trust; and
3. Certainty as to the beneficiaries of the trust.

The Agreement satisfied these requirements. Marcel and Evelyn retained full control and beneficial ownership during their lifetimes, with the children holding bare legal title. Gregory would not obtain a beneficial interest until Marcel’s death. As Marcel was still alive, he retained absolute control over the home and its proceeds. Marcel had the right to compel Gregory’s cooperation in the sale.

If Gregory refused to cooperate, the Court could enforce the Agreement through a judicial order. The Court held as follows:

[18]            I find that Marcel and Evelyn Boire entered into this agreement with their children to document their intentions at the time of transfer. Their intention was to provide that the children would hold bare legal title to the land in trust for their parents and would only acquire a beneficial interest in the land upon the latter’s death, if the land had not been sold. The agreement created an express trust.

Gregory was concerned he might not receive a share of the home’s proceeds, fearing Marcel could exclude him from the will. The Court found these concerns did not justify Gregory’s refusal to cooperate, nor did they invalidate the trust’s terms.

What order did the Court make?

Marcel requested various remedies, including vesting title in his name and his daughters’ names, or solely in his name, and alternative submissions for partition and sale. The Court determined the most practical remedy was to vest title solely in Marcel’s name:

[23]            Mindful of Gregory’s concerns, and mindful of the fact it is no longer expedient for the parties that the children’s names remain on title, I am granting an order pursuant to  109(3)of The Land Titles Act, 2000. I direct the Registrar to transfer title in the property into the sole name of Marcel Boire.

Conclusion

Boire offers various lessons for practitioners. These include:

1. If an owner of land is placing land into the name of another person, with the intention that they act as trustees, it is vital to ensure that this trust relationship is evidenced by a contemporaneous declaration of trust. This declaration of trust should provide clear evidence of the three certainties, being certainty of intention to make a trust, of subject matter and of the beneficiaries of the trust.

   Here, if Marcel had not prepared a trust agreement at the time of adding Gregory to title, it would have been far more time consuming, costly, and uncertain to prove that Marcel held the beneficial ownership of the Home during his lifetime; and

2. The Court has the power to make a vesting order under s.109 of The Land Titles Act, 2000, in order to provide an efficient remedy. This allows correction of the title without resorting to complex sale orders or partition actions.

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.