What are the factors used by courts to determine whether a child has received a loan?

British Columbia, Canada


The following excerpt is from Krupa v. Krupa, 2008 BCSC 414 (CanLII):

In Locke v. Locke, 2000 BCSC 1300, Wilson J. summarized the factors to be considered by the courts in the characterization of such advances at para. 20 as follows: 1. whether there were any contemporaneous documents evidencing a loan; 2. whether the manner for repayment is specified; 3. whether there is security held for the loan; 4. whether there are advances to one child and not others, or advances of unequal amounts to various children; 5. whether there has been any demand for payment before the separation of the parties; 6. whether there has been any partial repayment; and 7. whether there was any expectation, or likelihood, of repayment.

In Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, the court concluded that the presumption of advancement with respect to gratuitous transfers from parent to child is limited to transfers involving minor children. There is a presumption of resulting trust with respect to gratuitous transfers from a parent to an adult child. That presumption can be rebutted by evidence that the transfer was a gift. Justice Rothstein, speaking for the majority, described the approach to be taken as follows at para. 55: Where a gratuitous transfer is being challenged, the trial judge must begin his or her inquiry by determining the proper presumption to apply and then weigh all the evidence relating to the actual intention of the transferor to determine whether the presumption has been rebutted. It is not my intention to list all of the types of evidence that a trial judge can or should consider in ascertaining intent. This will depend on the facts of each case.

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