Grappler,
This case referred to Wilkosz v. Amato, [1999] O.J. No. 1958
Traversy v. Glover, 2006 CanLII 24130 (ON S.C.),
http://www.canlii.org/on/cas/onsc/20...onsc15735.html
-and-
Dasilva v. Dasilva, 2004 CanLII 5043 (ON S.C.)
http://www.canlii.org/on/cas/onsc/20...onsc11862.html
-and-
Helder v. Kicksee, 2003 CanLII 43440 (ON S.C.)
http://www.canlii.org/on/cas/onsc/20...onsc11252.html
The latter also referred to the late Sopinka J. (former SCC Justice):
[40] In The Law of Evidence in Canada, Sopinka J. notes that “where there is a conveyance or transfer of property, without consideration. from…a parent…the common law presumes that it was intended as a gift” (para. 4.48)
[41] According to Sopinka J., the presumption of advancement is rebutted, “if the party adduces evidence of a contrary intention to a balance of probabilities . The evidence required to rebut the presumption is evidence of the donor’s contrary intention at the time of the transfer. Because the courts first examine all the evidence to determine the transferor’s or purchaser’s intent, the presumptions are, practically speaking, operative only in doubtful cases” (para. 4.51) This is such a case.
[42] See also paragraphs 32-48 of Wilkosz v Amato, [1999] O.J. No. 1958 (Sup.Ct) in which the Court considered evidence of the parent’s financial treatment of one daughter in determining whether advances made to another daughter were loans or gifts. The court held that;
p.38 The evidence of Alis and her husband was adduced to show a course
of conduct by the Plaintiffs in their treatment of their daughters. As the
Plaintiffs advanced money or money’s worth to Alis and her husband to
provide a home to them as they started their married life. in much the same circumstances as their younger daughter. I allowed this evidence to be introduced.
p.39 That evidence is, in my view insufficient, standing alone. to justify a finding that there was a similar arrangement between the parties in this action concerning repayment. But that evidence does illustrate their treatment of the first daughter. In the absence of evidence to the contrary, it leads one to consider it more likely than not that similar treatment would be accorded to the advance of a substantial sum made to the second daughter.
[43] I infer from the evidence in this trial that Velma was keenly sensitive to the notion of parity between her children when it came to her own largesse. The reasoning of Wilkosz v Amato, supra is of assistance in the facts of this case.
lv
02-12-2007, 11:17 PM
Urgent!!!
Best of luck in your case.
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