DATE: 20010820
DOCKET: C33833
COURT OF APPEAL FOR ONTARIO
RE: ALAN MICHAEL JONES (Respondent/Appellant) v. KRYSTYNA JONES (Respondent)
BEFORE: MORDEN, AUSTIN AND BORINS JJ.A.
COUNSEL: Alan F. N. Poole, Q.C. for the appellant Barbara J. Puckering for the respondent
HEARD: August 16, 2001
On appeal from the judgment of Justice Bruce A. Glass dated February 4, 2000.
E N D O R S E M E N T
Released Orally: August 16, 2001
[1] The trial judge failed to conduct a proper analysis in his consideration of whether the donor of the Florida property, Mr. Szafran, intended to make a gift of the property only to his daughter, the respondent, or to both her and her husband, the appellant. The proper analysis required the court to determine the intention of the donor at the time the gift was made.
[2] The evidence was that the reason the property was transferred by the donor to his daughter and her husband was that there were tax advantages in doing so. Notwithstanding this evidence, in concluding that the donor did not intend to make a gift of the property to the appellant, the trial judge gave effect to evidence of subsequent facts which, although they had limited probative value, did not overcome the evidence of the donor’s intention to transfer the property to his daughter and her husband to take the benefit of the tax advantages.
[3] To give effect to the respondent’s submission that the donor did not intend to transfer the property beneficially to the appellant requires to court to conclude that the donor acted dishonestly. This, of course, was not suggested by the respondent.
[4] Accordingly, the appeal is allowed and paragraph 9 of the judgment is varied to reflect the foregoing reasons. In addition, paragraph 10 of the judgment is set aside. The appellant is entitled to his costs of the appeal.
[5] As the result of this appeal affects the costs of the trial awarded by the trial judge, paragraph 13 of the judgment is varied to provide that the appellant is to pay the respondent’s costs in the amount of $17,680, plus G.S.T.
“J. W. Morden J.A.”
“Austin J.A.”
“S. Borins J.A.”