When a Person Within a Relationship Provides Money or Things to the Other, Must the Money Be Repaid or the Things Returned When the Relationship Ends?

When a Couple Breaks Up After a Relationship Wherein Money or Other Valuable Thing Was Provided By One of the People to the Other, Legally the Money or Thing Will Be Viewed As a Loan Unless the Person Who Received the Money or Thing Proves the Donative Intent to Show That the Money or Thing Was Clearly a Gift.

Determining Whether Monies or Things Provided During a Relationship Were Gifts or Loans

Young Couple With Relationship Breakdown After a dating relationship ends, it is a common that disputes about money arise. Typically this happens where one person within the relationship provided various monies to the other person for assistance in paying bills or buying goods, among other things. The resulting dispute is whether the money was a gift or a loan.

The Law
Defining the Difference Between Gifts and Loans

When money or a thing of value is transferred from one person within a dating relationship to the other person, the law presumes that such was a loan rather than a gift. This is stated without inferring that the final determination will be that what occurred was a loan; however, the initial legal presumption provides the starting point and once it is proven that one person in a relationship provided money or a thing of value to the other person, the loan presumption occurs and then the burden shifts to the person who received the money or thing of value to disprove that that such was a loan by proving instead that such was a gift.  This presumption that a loan occurred, rather than a gift occurred, and the duty upon the recipient to prove otherwise, was explained by the Supreme Court in the case of Pecore v. Pecore, [2007] 1 S.C.R. 795, and among many others including Colangelo v. Amore, 2010 ONSC 5657, Pietro v. Lampe, 2014 CanLII 15441, and Greco v. Frano, 2015 ONSC 7217 wherein these cases in was respectively stated:

24  The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers.  When a 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: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110.  This is so because equity presumes bargains, not gifts.

25  The presumption of resulting trust therefore alters the general practice that a plaintiff (who would be the party challenging the transfer in these cases) bears the legal burden in a civil case.  Rather, the onus is on the transferee to rebut the presumption of a resulting trust.

[59]  Halsbury’s Laws of Canada nicely summarizes the principles of law applicable to the issue of donative intent:

Donative Intent

To establish the requisite intention to donate, or animus donandi, it must be shown that the donor intended to part with the property and did not intend to reserve to himself or herself the ultimate right of disposal.  The evidence should be inconsistent with any other intention or purpose than that the donor intended to divest himself or herself of the possession of the property.  The intention of a donor may be inferred from an examination of that person’s acts along with various extrinsic factors, including the nature of the relationship between the parties to the transaction, the size of the gift as measured against the total of the donor’s property, and the importance of the gifted item in relation to the donor’s overall property.  There must be some evidence that a gift was intended other than a self-serving affidavit by the alleged donee.

Gift or loan

In considering whether a gift or a loan was intended, the court may look at the surrounding circumstances, as well as the evidence of the alleged donor.  If it is proven that the payment of money was made, the burden is on the recipient of the money to show that both parties knew and intended that the money not be repaid.  It is not sufficient that the recipient of the property assumed that a gift was being made: a donative intent must be clearly fastened upon the donor.[3]

The onus on the donee to prove a gift

[60]  The onus of proof to establish a valid gift rests on the donee.[4]  The cases reveal two schools of thought about the standard of proof a donee must meet in order to prove a gift.  In Johnstone v. Johnstone, a 1913 decision which is frequently quoted in current cases, the Court of Appeal stated that “the preponderance [of evidence] must be such as to leave no reasonable room for doubt as to the donor’s intention.[5]  More recently, however, in Burns v. Mellon[6] the Court of Appeal disapproved of the notion that some standard of proof approaching the criminal one should apply:

Admittedly, both Bayley and Johnstone have been followed in subsequent cases and neither has been expressly overruled by this court. In my view, however, a gift may be established under s. 13 [of the Ontario Evidence Act] and a presumption of resulting trust may be rebutted by proof on a balance of probabilities, recognizing that proof within the civil standard may vary depending on gravity of the issues. When a claim of gift is asserted against a deceased's estate, a trial judge is justified in carefully scrutinizing the cogency of the supporting evidence. A "healthy scepticism" may be appropriate. But it is the civil standard not the criminal standard that should be applied. The passage from Bayley relied on for applying the criminal standard has been taken out of context. Moreover, both principle and recent case law support the application of the civil standard.

[61]  In F.H. v. McDougall[7] the Supreme Court of Canada definitively settled the law about the standard of proof applicable in all civil cases:

…I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof. I am of the respectful opinion that the alternatives I have listed above should be rejected for the reasons that follow.

In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.[8]

[62]  In light of the Supreme Court’s decision in F.H. v. McDougall, the standard of proof which the recipient of a thing must meet to establish that the transfer of the thing was an inter vivos gift is the general standard of proof on the balance of probabilities applicable to all civil cases.

57.  The Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] 1 S.C.R. 269 discussed the remedies available to unmarried parties in domestic relationships who seek to address the property or financial consequences of a breakdown in the relationship.  The first mechanism, the doctrine of resulting trust, does not appear to be helpful on the facts of this case, and the plaintiff relies instead on the doctrine of unjust enrichment.

58.  I note that the parties here cohabited only briefly.  They can not be said to have been in a common-law relationship according to the law of Ontario.

59.  In any event, the requirements for a finding of unjust enrichment, whether in a family law context or not, are repeated in Kerr (at paragraph 32):

a.  The conferral of a benefit on the defendant;

b.  A corresponding deprivation to the plaintiff; and

c.  A lack of juristic reason for the enrichment.

60.  The Court in Kerr stressed that the analysis of the first two elements should be straightforward – and indeed, that process is quite simple on the facts of this case:  money was transferred to the defendant by the plaintiff, and the benefit and corresponding deprivation are easily established.

61.  The key question is whether there was a juristic reason for the conferral of the benefit.  It is in this analysis that the Supreme Court says that moral and policy questions should be considered.  (Kerr at paragraph 37)

62.  The Supreme Court in Kerr (paragraph 41) said:

Juristic reasons to deny recovery may be the intention to make a gift (referred to as a “donative intent”), a contract, or a disposition of law (Peter, at pp. 990-91; Garland, at para. 44; Rathwell, at p. 455). The latter category generally includes circumstances where the enrichment of the defendant at the plaintiff’s expense is required by law, such as where a valid statute denies recovery (P. D. Maddaugh and J. D. McCamus, The Law of Restitution (1990), at p. 46; Reference re Goods and Services Tax, 1992 CanLII 69 (SCC), [1992] 2 S.C.R. 445; Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737 (C.A.)). However, just as the Court has resisted a purely categorical approach to unjust enrichment claims, it has also refused to limit juristic reasons to a closed list.  This third stage of the unjust enrichment analysis provides for due consideration of the autonomy of the parties, including factors such as “the legitimate expectation of the parties, the right of parties to order their affairs by contract” (Peel, at p. 803).

63.  I have found that there was no contract.

64.  I do not find any legal obligation on the plaintiff to have provided the money to the defendant.  The real question is whether the transfer of money by the plaintiff to the defendant was a gift; if it was, that donative intent could support a finding of a juristic reason to deny recovery to the plaintiff.

65.  The evidence does not support a finding of a gift, or donative intent.  Even though Mr. Pietro might have been clearer in expressing his intentions to Ms. Lampe, I accept that he is not a person who would have given this sum of money away.  He intended the money to be a loan.

66.  If it could be said that the evidence of Mr. Pietro’s intention were unclear, I would still find that the defendant is obliged to repay the money to the plaintiff.

67.  In Pecore v. Pecore 2007 SCC 17 (CanLII), [2007] 1 S.C.R. 795 the Supreme Court confirmed the continued operation of the presumption of resulting trust in cases of gratuitous transfer (except for in certain relationships which are not present here).  Equity presumes a bargain.

68.  The onus of rebutting that presumption and showing that a gift was intended falls to Ms. Lampe, and on the evidence the presumption here was not rebutted.

69.  Accordingly I find that the money was a loan, and must be repaid.

[28]  Equity presumes bargains not gifts, see: Colangelo v. Amore, 2010 ONSC 5657, paras 59 - 62.  As a result, when as in this instance, money is advanced to the defendant, the onus is upon the defendant to rebut the presumption that this advance was a loan.  The burden is the general standard of proof on a balance of probabilities applicable to all civil cases, but it is a burden nonetheless that must be met by the defendant, Felice.  Mr. Greco does not have to prove the advance was a loan.  Felice has to prove the advance was a gift from Mr. Greco.  It is not enough for Felice to say that he intended to receive the $90,000 as a gift.  He must prove that both he and Mr. Greco knew and intended the $90,000 to be a gift rather than a loan.

As shown within the cases, where a person within an unmarried relationship or within a domestic relationship without common law status provides money or object or other thing of value, the law presumes that such was a loan and repayment will be required unless the recipient person is able to the balance of probability that there was a donative intention and thus a gifting occurred.

Evaluating the Difference Between Gifts and Loans

The principles applicable to cases of of loan versus gift were also well explained within the cases of Walker v. Farsijani, 2021 ONSC 5571 wherein it was said:

[16]  Where one person transfers money to another in circumstances where the payor is not indebted to the payee or where no presumption of advancement arises, once the transfer is proved, the burden then falls on the recipient of the money to show that it was not repayable. Rothstein J. in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 24 and 25 explained:

The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a 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: see Waters' Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts.

The presumption of resulting trust therefore alters the general practice that a plaintiff (who would be the party challenging the transfer in these cases) bears the legal burden in a civil case. Rather, the onus is on the transferee to rebut the presumption of a resulting trust.

Also see MacIntyre v. Winter, 2021 ONCA 516, 2021 CanLII 516 (Ont. S.C.), at para. 18.

[17]  Thus, the onus is on the defendant to establish on a balance of probabilities that the money transferred to her is a gift. Common-law relationships or romantic friendships do not give rise to a presumption of gift: Zachariadis Estate v. Giannopoulos, 2019 ONSC 6505, 2019 CanLII 6505 (Ont. S.C.), at para. 68. The court must look at all the circumstances to see if the requirements of a gift have been met. Three requirements are necessary to establish a valid gift inter vivos: (i) an intention to donate; (ii) a sufficient act of delivery; and (iii) acceptance of the gift.

[18]  As stated by the Court of Appeal in Chechui v. Nieman, 2017 ONCA 669, 136 O.R. (3d) 705, at paras. 59-60, the onus is on the recipient of the money to show that the transferor intended at the time of the transfer that the monies be a gift:

The Supreme Court emphasized in Kerr, at paras. 18 and 19, citing its earlier decision in Pecore v. Pecore, [2007] 1 S.C.R. 795, [2007] S.C.J. No. 17, 2007 SCC 17, at paras. 43-44 and 24, that in situations involving gratuitous transfers, as in this case, the governing consideration is the transferor's actual intention. The intention of the transferor alone counts, as “[t]he point of the resulting trust is that the claimant is asking for his or her own property back”: Kerr, at para. 25. As Rothstein J. explained in Pecore, at para. 44, in such cases,

The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor's actual intention. [Emphasis added in Chechui v. Neiman.]

[19]  More recently in MacIntyre v. Winter, the Court of Appeal again asserted that the onus is on the recipient, in this case the defendant, to establish on a balance of probabilities that the transferor intended for the monies to be a gift. After quoting from the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, [2011] S.C.R. 269, Nordehimer J.A. stated:

On this point, the nature of the onus or burden that rests on Ron, in terms of rebutting the presumption, is the civil standard of a balance of probabilities. In other words, Ron must establish, on a balance of probabilities, that it was Alex's intention to gift these monies: Pecore, at para. 43. The standard of proof on a balance of probabilities requires "clear, convincing and cogent" evidence: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 46.

[20]  Further, it is the transferor’s actual intention at the time of transfer that is the critical consideration: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at paras. 2, 30, and 41.

[21]  In Barber v. Magee, 2015 ONSC 8054, 2015 CanLII 8054 (Ont. S.C.), aff'd 2017 ONCA 558, [2017] O.J. No. 3409 (C.A), Fitzpatrick J. set out a list of the factors to assess in determining whether the advancement of a sum of money is a gift or a loan. He stated at para. 42:

The courts in British Columbia have been helpful in suggesting factors to look to when determining a resulting trust claim. The British Columbia Supreme Court recently reviewed the caselaw in Byrne v. Byrne, 2015 BCSC 318, 57 R.F.L. (ih) 215. The Court in Byrne referenced the factors adopted by their Court of Appeal that ought to be reviewed when determining whether a gift or loan was intended: see Kuo v. Chu, 2009 BCCA 405, 180 A.C.W.S (2d) 903, citing Locke v. Locke, 2000 BCSC 1300, [2000] B.C.J. No. 1850. Those factors are as follows:

a.  Whether there were any contemporaneous documents evidencing a loan;

b.  Whether the manner for repayment is specified;

c.  Whether there is security held for the loan;

d.  Whether there are advances to one child and not others or advances on equal amounts to various children;

e.  Whether there has been any demand for payment before the separation of the parties;

f.  Whether there has been any partial repayment; and,

g.  Whether there was an expectation or likelihood of repayment.

Summary Comment

When unmarried couples breakup from a relationship, disputes regarding money and things provided during the relationship often arise.  In such circumstances, once it is proven that money or thing was provided by a person to another person, the law presumes that the money or thing was provided as a loan.  However, if the recipient person can show to the civil law standard of balance of probability that the money or thing was provided with a donative intention, then what would otherwise be viewed as a loan will instead be deemed as a gift.

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