Barrister and Solicitor
Legal Writing and Research
Equity - Gifts
Foley (Re) (Ont CA, 2015)
In this estate case, the Court of Appeal made the following salutory comments on the law of gifting:
C. The Law Pertaining to Gifts
 A valid inter vivos gift is one that is intended to take effect during the lifetime of the donor. It consists of a voluntary transfer of property to another with the full intention that the property will not be returned. To establish a gift, one must show intention to donate, sufficient delivery of the gift, and acceptance of the gift: McNamee v. McNamee, 2011 ONCA 533 (CanLII), 106 O.R. (3d) 401, at para. 24.
(1) Presumption of Resulting Trust
 Equity presumes bargains, not gifts. Thus, when a parent gratuitously transfers property to an adult child, the law presumes that the child holds the property on a resulting trust for the parent: Pecore v. Pecore, 2007 SCC 17 (CanLII),  1 S.C.R. 795, at para. 36. The onus shifts to the adult child to rebut the presumption by proving the contrary intent on a balance of probabilities: Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101 (CanLII), 119 O.R. (3d) 81, at paras. 56-57; Mroz (Litigation Guardian of) v. Mroz, 2015 ONCA 171 (CanLII), at para. 72. The trial judge must begin her inquiry with the presumption and then weigh all the evidence in an attempt to determine the parent’s actual intent at the time of the transfer: Pecore, at para. 44; Sawdon, at para. 57; Mroz, at para. 72.
 The evidence necessary to rebut the presumption depends on the facts of the case: Pecore, at para. 55. Evidence of the parent’s post-transfer conduct is admissible, so long as it is relevant to the parent’s intention at the time of the transfer: Pecore, at para. 59.
(2) Presumption of Undue Influence
 Where the potential for domination inheres in the relationship between the transferor and transferee, the presumption of undue influence applies: Goodman Estate v. Geffen, 1991 CanLII 69 (SCC),  2 S.C.R. 353, at p. 378. The transferee must establish on a balance of probabilities that the gift was the result of the transferor’s “full, free and informed thought”: Goodman Estate, at p. 379. Evidence that the transferor received qualified, independent advice can be used to rebut the presumption: Goodman Estate, at p. 379. However, this is not to say that evidence of independent advice is required in every case: Laird v. Mulholland (1998), 21 E.T.R. (2d) 204 (Ont. S.C.), at paras. 36-37; Bank of Montreal v. Duguid (2000), 2000 CanLII 5710 (ON CA), 47 O.R. (3d) 737 (Ont. C.A.), at paras. 26-27, leave to appeal to S.C.C. allowed,  S.C.C.A. No. 298, appeal discontinued August 2, 2001.
(3) Corroborative Evidence
 The common law requires corroborating evidence to rebut the presumptions. The corroborating evidence can be direct or circumstantial, and it can consist of a single piece or evidence or several pieces considered cumulatively: Burns Estate v. Mellon (2000), 2000 CanLII 5739 (ON CA), 48 O.R. (3d) 641, at para. 29.
 In addition, where the donor is deceased, the Evidence Act, R.S.O. 1990, c. E.23 requires corroborative evidence. Section 13 provides:
In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.