Duca Financial Services Credit Union Ltd. v. Bozzo, 2011 ONCA 455 is a good source for the law as relates the creation of a trust and when a trust, apparently properly created, is a sham. The Court holds:
[2] Concerning the validity of the trust declaration, at paras. 41-2 of his reasons, the trial judge correctly set out the requirements for a valid trust and referred to some of the circumstances in which a trust may be found to be a sham and therefore void:
To establish a valid trust, there must be three certainties: the certainty of intention, the certainty of subject matter and the certainty of objects. [Citations omitted.]
A purported trust may be held to be a "sham" and void where a trust instrument sets out the persons who are to benefit but does not represent the settler's true intent which is simply to create the appearance of a disposition of assets through the purported trust. The actual intent, in such cases, is to retain control of the assets purportedly held in trust. In such an instance, there is no true intention to create a trust and one of the three certainties is missing; hence, the purported trust is void.
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