What is the burden of proving that a party to a child was not aware of the consequences of the child’s parents’ actions?

British Columbia, Canada


The following excerpt is from Wood v. Porter, 2015 BCSC 2354 (CanLII):

… The presumption of resulting trust is a rebuttable presumption of law and a general rule that applies to most gratuitous transfers, including transfers to adult children. When the transfer is challenged, the presumption allocates the legal burden of proof. Thus where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: Pecore [Pecore v. Pecore, 2007 SCC 17].

The presumption of undue influence arises in circumstances where the relationship between the parties gives rise to the potential domination of one party by another. Once a dominant relationship has been established such that potential for influence exists, the onus moves to the defendant to rebut it and show that the plaintiff entered into the transaction as a result of his own “free, full and informed thought”: Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353 at paras. 42-45.

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