CANADA Trends and Developments Contributed by: Ian Hull, Suzana Popovic-Montag and Nick Esterbauer, Hull & Hull LLP
When a gift is effected by transferring land inter vivos into joint tenancy, the donor may give the donee either a full beneficial interest in the land or only a survivor - ship interest. The nature of the donee’s interest will depend on the intention of the donor when the joint tenancy is created. If only a survivorship interest is gifted, the donee will receive legal ownership of the property only. The donor will retain all other rights associated with beneficial ownership of the property, with the donee holding any exercisable rights associ - ated with beneficial ownership in trust for the donor. The rights associated with beneficial ownership of the property only pass to the donee when the donor passes away. While inter vivos gifts are technically irrevocable, in several provinces in Canada a gift consisting of a right of survivorship in real property may be denuded prior to the donor’s death. The courts have recognised that a gifted survivorship interest does not prevent a donor from dealing with the property in a way that may put an end to the right of survivorship. In Ontario, the Court of Appeal confirmed in Jackson v Rosenberg (2024 ONCA 875) that a donor may strip the value from a gift consisting of a survivorship inter - est in real property by severing the joint tenancy so that the property is held by the donor and donee as tenants in common. Under those circumstances, the donee continues to hold their beneficial interest in the property in trust for the donor. Because there is no right of survivorship when property is held as tenants in common, the donor’s interest in the property held by the donee will revert back to the donor’s estate when the donor dies, leaving the donee with no ben - eficial interest in the property. Similarly, the courts in British Columbia have deter - mined that a gift consisting of a right of survivorship in real property can be denuded by severing the joint tenancy so that the property is held by the donor and donee as tenants in common: see, for example, Ber- gen v Bergen (2013 BCCA 492). The BC Supreme Court also confirmed in Wong v Chong Estate (2016 BCSC 953) that if the joint tenancy is severed by a donee rather than the donor, the donee will continue to hold their interest in the property in trust for the
donor and will have no beneficial interest therein as a tenant in common. In Manitoba, a donor who gives a survivorship interest may also sever a joint tenancy, but this act may not terminate the right of survivorship. In Berry v Berry (2025 MBKB 32), the court held that the donee con - tinued to hold his interest in the property in trust for the donors after they severed the joint tenancy, but would take full beneficial ownership of his share of the property as a tenant in common once the donors passed away. The law is different elsewhere in Canada. In Alber - ta, the courts have recognised a presumption that a donor who transfers property into joint tenancy retains the right to sever that joint tenancy. However, this pre - sumption can be rebutted with evidence establishing that the donor intended to gift an irrevocable right of survivorship, in which case the joint tenancy cannot be severed: see Pohl v Midtal (2018 ABCA 403, affirm - ing 2017 ABQB 711). In Saskatchewan, a joint tenant is barred from unilat - erally effecting a transfer to sever the joint tenancy under the Land Titles Act, 2000, SS 2000, c L-5.1. A joint tenancy can only be severed by court order or if the co-owners agree to sever it. The Saskatchewan Court of Appeal also held in Thornstein Estate v Olson (2016 SKCA 134) that once a gift of survivorship has been effected, the donor cannot sever the joint ten - ancy to take the gift back. Gifting monetary assets and a right of survivorship When transferring financial assets inter vivos, those assets may be transferred directly from the donor to the donee, or the donor may add the donee to an account so that the account is held jointly. A joint account may also include a right of survivorship, in which case the donee can take whatever remains in the account at the time of the donor’s death. However, the presumption of resulting trust may still apply to a joint bank account that includes a right of survivor - ship, as noted by the court in Renwick Estate v Stan- berry (2023 ONSC 5970). In Garbera Estate (2024 ABKB 185), the court addressed a variety of factors that may be consid -
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