What is the onus of proof for a spouse arguing a debt that is owed to his or her family member?
British Columbia, Canada
The following excerpt is from Sargent v. Sargent, 2009 BCSC 375 (CanLII):
It is well settled that a spouse arguing a debt that is owed to his or her family member bears the onus of proof. The criteria for determining whether money was advanced by family as a gift or as a loan was set out in Locke v. Locke, 2000 BCSC 1300. At ¶20-21 in that case, Wilson J. considered and applied the following factors: 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.
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