A fresh perspective on divorce, spousal support, child support, parenting after separation and everything family law

Welcome Krystle Gill!

Cassels Murray is very pleased to announce that Krystle Gill joined our firm on April 1, 2015.

Krystle Gill Cassels Murray

Krystle has strong negotiation skills and experience, as well as trial experience at both the Provincial and Supreme Court levels in British Columbia.

Krystle graduated from the University of British Columbia in 2009 where she was a Director of the Law Students’ Society and President of the International Law Students’ Society. She has been a member of the Executive Committee for the Canadian Bar Association – BC Branch for 3 years, the Chair of the Women Lawyers’ Forum – Vancouver Island, and has a strong connection to the legal community through her local involvement with the Victoria Bar Association.

We are fortunate to have Krystle as part of our team. Krystle will be practicing in the areas of family and estates law.

Family Law: Debt or Loan?

At the National Family Law Conference Stacie R. Glazman, LL.M., C.S., CBV, presented a paper entitled “Thanks for the Money, Mom and Dad.  Do I have to Pay You Back?”

Ms. Glazman is an excellent speaker (and author) so the topics stuck with me.  Her paper, and presentation, addressed an issue that can become contentious: if a parent advances money to their married child:

  • is the money a gift?
  • is the money a loan?
  • is the money a gift to only their child (and not the spouse)?
  • is the money a loan to only their child (and not the spouse)?

Often becasue these gifts/loans are given in the context of family relationships, they are not documented and recorded with the same level of detail that business transactions are.  When parties separate, and money has to be separated, and disputes often arise as to who gets the benefit of the money from mom and dad, or who has to pay the money back to mom and dad.

In 2007 the Supreme Court of Canada released a decision dealing with the loan vs. gift issue, in an estate context.  In the Pecore v. Pecore decision, the court found that the presupmtion of advancement is not applicable to transfers between parents and adult independent children.  Previously, the presumption of advancement had applied to property transfers between parents and independent adult children where no consideration was given.  The presumption of advancement meaning: a presumption that the transfer was intended as a gift.  Baesd on the Pecore decision, the presumption is that of a resulting trust (i.e. a “loan”).

Ms. Glazman summarizes the test as follows at page 8 of her paper:

  1. Determine if the presumption of resulting trust applies because the transfer is gratuitous and the recipient is obliged to return it;
  2. The onus is on the person claiming “gift” to show that a gift was intended;
  3. Look to the evidence as to the transferor’s actual intention to see if it is sufficient to rebut the presumption on a balance of probabilities.
How does this apply to family law?

Many courts across Canada have found that the law in Pecore has been applied to family law cases where there are “gift vs. loan” disputes.  For example, the recent case of T.S. v. M.S. and J.P provides a useful summary of the application of the Pecore decision to family law in British Columbia at paragraph 35, citing the case of Hawley v. Paradis:

29        … The recent cases of Ng2008 BCSC 172 (CanLII), [2008 BCSC 172 ] and Krupa v. Krupa, 2008 BCSC 414 (CanLII), 2008 BCSC 414 [Krupa], have both considered the principles in Pecore within the context of transfers of money or property made by a parent to a child within a dispute over the division of marital property. Ng and Krupa are instructive in this case. In Ng at para. 37, Garson J. held that, according to Pecore, “a presumption of advancement as between parents and children will only arise in cases where the child is a minor”. She further stated that the presumption of a resulting trust had been rebutted in that case. In my view, Mr. Paradis’ contention that Garson J. thought other conclusions could be reached regarding the presumption of advancement is untenable. Rather, it appears clear to me that she was indicating that she was bound to follow the law as set out by the majority in Pecore, as am I. In Krupa, Madam Justice Ross concluded that the presumption of advancement with respect to gratuitous transfers from a parent to a child is limited to transfers involving minor children. She also stated at para. 78, “There is a presumption of resulting trust with respect to gratuitous transfers from a parent to an adult child.” Ross J. further considered D.L.M.2008 NBCA 2 (CanLII), [2008 NBCA 2, 289 D.L.R. (4th) 37] and held that the factors in Locke continue to be relevant to ascertaining intent when considering whether a transfer made by a parent to an adult child is a loan or a gift.

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.

What evidence and factors will the court consider?

The court may consider a number of factors in making the determination if a transfer was a gift or a loan.

The factors set out in the Locke case, are:

  • Whether there are any documents showing that the transfer was a loan;
  • If a manner of repayment is specified;
  • If security is held for the loan;
  • If there are advances to one child and not to others (i.e. if this is a pattern of giving);
  • If there was a demand for payment prior to separation;
  • If there has been some form of repayment; and
  • If there is a likelihood or expectation of repayment.

The evidence in each case will have an important impact on determining if the transfer was a gift or loan.

Reddit My Divorce

RedditReddit.com is one of my favorite websites.  I go there almost every day to check news and important things on the internet.  This weekend I decided to search reddit for “divorce” -I should not have been surprised that there were about 5,400 results in 0.663 seconds (but I was).

There were funny threads and insightful threads.  Some of the threads  that I found most interesting (a mix of funny, serious and newsworthy) were:

There are so many different threads and posts on reddit.com that I had to stop reading (and get back to work).   While it is generally not possible to verify the identity of people posting on the internet, reading posts like these does provide useful insight into the perspective of others.

***Please note that some of the language used on the attached links is not safe for work (and the views expressed do not necessarily represent the views or opinions of Hart Legal…or Christine Murray).

Justice Harvey Brownstone: the perspective of Canada’s celebrity Judge

Over the holiday break I had a chance to get caught up on Justice Harvey Brownstone’s show, Family Matters with Justice Harvey Brownstone.

I have been following the work of Justice Harvey Brownstone for a few years.  He is a sitting Justice of the Ontario Provincial Court and has been creating excellent resources for Canadian families that incorporate his unique perspective into the information and advice he gives.

Currently the show, Family Matters with Justice Harvey Brownstone, is being broadcast weekly in British Columbia on Chek News and in Ontario on CHCH.

The show is a great resource aimed at providing legal information relating to family law and the Canadian justice system  in a unique and approachable way. As described on the Family Matters website the show is a:

TV program with a focus on a multiplicty of issues affecting contemporary North American life, with a particular emphasis on the interplay between relationships and the justice system: internet dating, addictions, prenups, mental health, adoption, surrogate parenting, same-sex relationships, multicultural relationships, parenting after separation and divorce, mediation, child neglect and abuse, child and spousal support – and this is just the tip of the iceberg! Hosted by an actual sitting Ontario family court judge, this exciting show is the first of its kind anywhere. Justice Brownstone provides educational episodes in an informative, compelling and entertaining talk show format, with guests who are experts in their field and who – until now – have never been accessible to the public.

I would suggest taking a look at Justice Harvey Brownstone’s Family Matters episodes that are currently being broadcast.  If you missed a 2010 episode, or want a quick reference to a specific topic, the episodes are available online (you have to purchase them).  Some of my favorite episodes are “View from the Bench” with retired Judge Michael Porter and “Marriage Confidential”.

There are some free resources you can access as well.  An interview with Justice Brownstone is available on YouTube (as seen above) and you can get Justice Harvey Brownstone’s book “Tug of War A Judge’s Verdict on Separation, Custoyd Battles, and the Bitter Realities of Family Court” at a local library  or buy it online.   This book has been reviewed in the media over the past year including: the Globe and Mail, the CBC, and many others.