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Our team of best* Vancouver Richmond Mandarin Chinese speaking family lawyers warn parents to be very careful when they want to loan or gift money to their child or children. Our top ranked* Vancouver Richmond Mandarin Chinese speaking family lawyers know children and the family are the most important part of your lives. Mistakes on parental loans and gifts for Mandarin Chinese speaking family law clients can be catastrophic. Consult with our senior Vancouver Richmond Mandarin Chinese Speaking Family Lawyers before advancing thousands or millions of dollars to your child. We act for both parents and children in disagreements over loans and gifts. Click here to view our related article on “resulting trusts“. Most clients are unaware until it is too late that strict time limits apply to collecting on loans and missed deadlines mean the debt is extinguished forever. Click her to see our time limits warning article.

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Our Best* Vancouver Richmond Mandarin Chinese Speaking Family Lawyers can be reached on our Mandarin Chinese language hotline at 604-682-6466. Click here to go to our Chinese language site.

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Vancouver Richmond Mandarin Chinese Speaking Family Lawyers

Best Vancouver Richmond Mandarin Chinese Speaking Family Lawyers 604-682-6466

Vancouver Richmond Mandarin Chinese Speaking Family Lawyers

Vancouver Richmond Mandarin Chinese speaking family lawyers warn mistakes in loans involve not papering the transaction properly or missing the time limits to collect on the debt. Secondly, when making a gift it is crucial you put in writing who the gift is too if your child is in a married or marriage like relationship. Our skilled Vancouver Richmond Mandarin Chinese speaking family lawyers can help you do things properly to save you hundreds of thousands if not millions of dollars. Preparing proper loan agreements, mortgages or gift documents showing who the gift is to really helps protect from future catastrophe should a relationship go sideways.

In a recent BC Supreme Court decision a gift and a loan had to be analyzed by the Judge to see if they were gifts and if so excluded or not or a loan that needed to be deducted before family property was equally divided between husband and wife. 

Vancouver Richmond Mandarin Chinese speaking family lawyers know the rules to be applied are not well known by spouses and their parents who often “front” money to their child but not necessarily their son or daughter in law. The recent case of Dheenshaw v. Gill dealt with a gift that had been used to buy one house and then later traced into the purchase of a second home placed in joint tenancy. Placing gifted property in anoint names can be a disaster.

In Dheenshaw v. Gill the judge found a $10,000 gift to her daughter that went into the first home lost its excluded status upon the first home being sold and the monies being used to buy a second home jointly in the husband and wife’s names BUT $50,000 the husband argued was not a loan was found to be one a dedicated before equal division of family property. The court reviewed the case law and prepared a summary that should serve as a critical guide for our Vancouver Richmond Mandarin Chinese speaking family lawyers and our clients.

 

[71]         The respondent says that he was not a party to the arrangements made between the claimant and her mother for either the townhouse down payment or Mrs. Gurmej Dheenshaw’s subsequent contribution of $50,000 toward the purchase of 145A Street in April 2004. Mr. Gill maintains any obligation to repay the monies advanced by the claimant’s mother should be borne solely by Ms. Dheenshaw. The respondent also contends that if either or both payments were gifts, the funds are not traceable to the proceeds of sale of the Edmonton condominium.

[72]         In Beaverstock v. Beaverstock, 2011 BCCA 413, the Court addressed the correct approach to the resolution of a dispute about whether a gratuitous advance from a parent to an adult child is a loan or a gift. As the Court held at para. 9:

The correct approach to the resolution of this dispute is not in dispute. It is set out in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795. Whether the transfer was a loan or a gift depends on the actual intention of the appellant when she made the advance, which is a question of fact. As the advance was gratuitous, the onus was on the respondent to demonstrate that the appellant intended a gift, since equity presumes bargains, not gifts (para. 24). This equitable principle gives rise to a presumption the son received the money on a resulting trust, which is a rebuttable presumption of law. The trial judge was therefore required to presume the advance was not a gift and to determine whether the respondent had satisfied the burden of rebutting the presumption of resulting trust on a balance of probabilities (para. 44).

[73]         In Byrne v. Byrne, 2015 BCSC 318, the issue was whether bi‑weekly payments of $1,000 made by the claimant’s father to a joint account held by the claimant and the respondent and used to pay for household expenses constituted a gift or loan.  Mr. Justice Armstrong began his analysis at paras. 41 and 42:

[41]      Payments from a parent to an adult child are generally not presumed to be gifts; they are presumed to form a resulting trust in which the parent keeps an interest in the property. However it is open to a party claiming the transfer is a gift to rebut the presumption of a resulting trust by providing evidence to that effect: Pecore v. Pecore  . . .

[42]      In Pecore, the Supreme Court of Canada addressed how the presumptions operate in the context of transfers from a parent to an adult child:

(a)   the focus in any dispute over a gratuitous transfer is the actual intention of the transferor at the time of the transfer . . .

(b)   When the transferor’s intent is unavailable or unpersuasive, the presumptions of advancement (a gift) and resulting trust are useful guides and will apply . . .

(c)   gifts from parents to independent adult children are not presumed to be gifts; rather the presumption of a resulting trust applies . . .

(d)   there may be circumstances where a transfer between a parent and an adult child was intended to be a gift and it is open to the party claiming that the transfer is a gift to rebut the presumption of resulting trust by bringing evidence to support that claim . . .

(e)   the burden on the party claiming a gift was made is proof on a balance of probabilities . . .

[74]         At para. 43, the court noted that in Kuo v. Chu, 2009 BCCA 405 at para. 9, the Court of Appeal adopted the following factors from Locke v. Locke, 2000 BCSC 1300, as applicable to the question of whether a loan or a gift was intended:

(a)   Whether there were any contemporaneous documents evidencing a loan;

(b)   Whether the manner for repayment is specified;

(c)   Whether there is security held for the loan;

(d)   Whether there are advances to one child and not others, or advances of unequal amounts to various children;

(e)   Whether there has been any demand for payment before the separation of the parties;

(f)    Whether there has been any partial repayment; and,

(g)   Whether there was any expectation, or likelihood, of repayment.

[75]         The Locke factors are items of circumstantial evidence relevant to the transferor’s actual intention.  They are not exhaustive and are to be weighed by the trial judge, along with all of the other evidence, in order to determine the transferor’s actual intention as a matter of fact: Beaverstock at para. 11.

[75]         The Locke factors are items of circumstantial evidence relevant to the transferor’s actual intention.  They are not exhaustive and are to be weighed by the trial judge, along with all of the other evidence, in order to determine the transferor’s actual intention as a matter of fact: Beaverstock at para. 11.

[76]         Whether the opposing spouse was aware of the transaction is not determinative of the question of whether a loan was made: Byrne at para. 47.

[77]         In Beaverstock, the Court held that the trial judge had erred in law by failing to begin his analysis with the presumption of resulting trust and in failing to make a finding concerning the appellant’s actual intention when she advanced the funds to her son.

[78]         In Savost’Yanova v. Chui, 2015 BCSC 516, where the husband’s father had advanced $60,000 to assist with the purchase of the matrimonial home, Mr. Justice Weatherill held that in determining the intent of the person of who advances money in a family context, the court must weigh all of the evidence to determine whether the presumption of resulting trust has been rebutted: Chui at para. 77.

[79]         At para. 75, the court adopted the following summary of the applicable legal principles:

[75]      The law regarding whether a transfer made by a parent to an adult child is a loan or a gift was summed up by Madam Justice Brown in Hawley v. Paradis, 2008 BCSC 1255 at para. 30, after a review of the applicable authorities:

[30]      Based on the case law presented to me, I conclude:

1.  that the presumption of advancement no longer applies between adult children and their parents;

2.  that as between adult children and their parents, the presumption is a resulting trust when the parents make gratuitous transfers to children;

3.  that the court must consider all of the evidence in determining whether the parent intended the transfer as a gift or a loan;

4.  that the factors considered in Wiens and Locke will assist the court in determining whether the advance was a loan or a gift.

[80]         Here, I must determine whether the actual intention of the claimant’s mother was to make a gift or a loan. Because the advance was gratuitous, the claimant bears the onus of demonstrating that her mother intended a gift, “since equity presumes bargains, not gifts”. In determining the transferor’s intention, the court must take into account the Locke factors, along with all of the other evidence.

Alert From Vancouver Richmond Mandarin Chinese Speaking Family Lawyers

Alert Don’t Place Excluded Property In Joint Names If You Don’t Want To Share It Say Vancouver Richmond Mandarin Chinese Speaking Family Lawyers.

The law is still unclear on whether using  excluded property to buy joint property causes the loss of the excision and makes the full amount equally shareable. To protect yourself do0 not place property in the other spouse’s name or even in joint namers if it involves the use of excluded property.

In  one case joint tenancy was not fatal to an exclusion despite the infamous VJF decision:

[90]         In Lahdekorpi, the court distinguished V.J.F., primarily on the ground that there the court found the husband had made a gift of property to the wife when he intentionally transferred title to her and registered the property solely in the wife’s name.  In Lahdekorpi, the Shirley Road property was purchased, in part, with the respondent’s $30,000 inheritance and the property was registered jointly in both parties’ names.  At para. 94, the court held:

… In my view, the joint tenancy effectively preserved her contribution to the property, which was purchased for approximately $130,000. In these circumstances, I am not persuaded that the respondent could reasonably be said to have intended to gift her inheritance to the claimant. I note that, although the parties purchased subsequent properties using, in part, income derived from the Shirley Road property, the properties were either held jointly or in the sole name of the respondent. In my view, the $30,000 used in the purchase of the Shirley Road property can be traced back to the inheritance, such that it does not lose its character as an inheritance.

But in Dheenshaw the putting of the money into a property in joint names then selling and dividing the proceeds equally wasenough to prove and intent to share the formerly excluded property equally.

WE REPEAT NEVER PUT EXCLUDED PROPERTY in the other spouse’s name or even in joint names but if you do then do not do it without a signed contract saying the property is still fully excluded.

Meet With Our Top* Vancouver Richmond Mandarin Chinese Speaking Family Lawyers Today 604-682-6466

Our top rated* Vancouver Richmond Mandarin Chinese Speaking Family Lawyers can tailor a wealth preservation and asset protection strategy whether you are a parent wanting to lend or gift property or whether you are the recipient. Come see us first not after the fact to avoid disaster.

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