What is the test for determining whether a gift is a loan or a gift?

British Columbia, Canada


The following excerpt is from Shimosaka v. Sweeney, 2007 BCSC 1413 (CanLII):

In Locke v. Locke, 2000, 99 A.C.W.S. (3d) 629, 2000 BCSC 1300, the court considered factors identified in the case law that provide indications as to whether the provision of funds is a gift or a loan. At para. 20, Wilson J. identified the following factors: (1) whether there were 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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