Barber v. Magee

Ontario Reports

Court of Appeal for Ontario

LaForme, Hourigan and Paciocco JJ.A.

June 29, 2017

139 O.R. (3d) 78 | 2017 ONCA 558

Case Summary

Family law — Property — Gifts — Trial judge not erring in finding that advancements of funds to appellant by his father were gifts rather than loans — Trial judge alive to presumption of resulting trust and not reversing burden of proof by noting that indicia of loans were not present.

The trial judge found that advancements of funds to the appellant by his father were gifts, and therefore included in the appellant's net family property, rather than loans. The appellant appealed.

Held, the appeal should be dismissed.

The trial judge was alive to the presumption of resulting trust and the proper assignment of the burden of proof. He did not reverse the burden of proof by noting that the indicia of loans were not present; rather, he was looking at the presence or absence of objective criteria that could help him characterize the payments.

The trial judge did not err in awarding prejudgment interest from the date of separation.

Cases Referred To

Statutes Referred To

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 128(1), 130(1)(c)

Appeal

APPEAL from the judgment of D.F. Fitzpatrick J., [2015] O.J. No. 6818, 2015 ONSC 8054 (S.C.J.).

John Bruggeman, for appellant.

Michael Stangarone and Serena Lein, for respondent.

Decision

[1] BY THE COURT: -- Neil Magee, the appellant, and Hayley Barber, the respondent, agree that the appellant's father, Ken Magee, advanced $90,414 and then $67,000 to the appellant, all of which was invested in the matrimonial home held in the appellant's name. If these advancements were loans, they are debts owed by the appellant, reducing his net family property. If they were gifts, they are included in the appellant's net family property. The appellant appeals the decision of the trial judge that these advancements were gifts.

[2] The appellant argues that these advancements are presumed not to be gifts, yet the trial judge reversed the onus of proof, expecting him to prove that they were loans. The appellant also contends that the trial judge erred in fact and law in finding that the advancements were gifts on the evidence before him. Finally, the appellant urges that the trial judge erred in awarding prejudgment interest during the period when the respondent occupied the home. None of these alleged errors occurred.

[3] The trial judge correctly stated the law of resulting trusts, and he applied the law correctly. The trial judge's task was to weigh all of the evidence in deciding the father's actual intention at the time of the transactions, and that is what he did: Pecore v. Pecore, [2007] 1 S.C.R. 795, [2007] S.C.J. No. 17, 2007 SCC 17, at para. 44.

[4] Generally, there are objective indicators that can assist in determining whether an advancement is a gift or a loan: Locke v. Locke, [2000] B.C.J. No. 1850, 2000 BCSC 1300, [2000] B.C.T.C. 681, at para. 21; Klimm v. Klimm, [2010] O.J. No. 968, 2010 ONSC 1479 (S.C.J.), at paras. 28-32; Mora v. Mora, [2011] O.J. No. 2188, 2011 ONSC 2965 (S.C.J.), at paras. 38-40. A gift is a transfer in which the absence of an expectation of repayment tends to be reflected in the absence of security, recording, payments or efforts to collect payments. A loan often involves a formal, recorded transfer in which terms are set out and in which repayment is made or sought. In evaluating whether the presumption of resulting trust has been rebutted, a trial judge will naturally look at such indicia.

[5] When the trial judge was commenting on what was not present by way of indicia of loans, he was not reversing the onus of proof. He was looking at the presence or absence of objective criteria that could help him characterize the payments. Even though the burden is on the party claiming a gift to prove it, it is quite appropriate for a trial judge to notice the failure of the party who would be in control of documents and records of a loan to produce such documents. The relevant inference is not that the party is hiding the truth by not producing anything; it is that the absence of indicia of a loan that one would reasonably expect to find suggests that the advancement was not a loan but a gift. There was no error in the trial judge reasoning in this way.

[6] It would have been preferable if the trial judge had not commented that he was "not persuaded that the monies advanced were loans". However, it is clear in the context of his accurate statements of the law, his close discussion of the burden, and his analysis, that he was alive at all times to the presumption of resulting trust and the proper assignment of the burden. This ground of appeal is denied.

[7] Nor did the trial judge make any palpable and overriding errors in evaluating the evidence. He was entitled to accept the respondent's explanation for comments attributed to her, and her testimony, and to reject the evidence of the appellant and his father.

[8] Finally, the trial judge did not err in awarding prejudgment interest from the date of separation. Section 128(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "CJA") provides that prejudgment interest is "calculated from the date the cause of action arose", which in this case was the date of separation. While s. 130(1)(c) of the CJA confers discretion to award prejudgment interest for a period other than that provided in s. 128(1), the trial judge was not asked to do so and was entitled not to do so.

[9] The appeal is dismissed. The respondent is awarded costs of the appeal in the amount of $10,000, inclusive of disbursements and HST.

Result

Appeal dismissed.

End of Document

Barber v. Magee, 2017 ONCA 558

Case Summary

Barber v. Magee

Case Summary

Cases Referred To

Statutes Referred To

Appeal

Decision

Result

Judges

Counsel

Parties

Areas of Law