Presumption of Advancement Barely Alive Between Spouses In BC

M. Dhaliwal Holdings Inc. v. Pacific Blue Farms Ltd. 2014 BCSC 1482 discussed amongst other things, the presumption of advancement post the SCC case Pecore in 2007, and held that the presumption is still barely alive between spouses in BC

Madame Justice Dardi stated in  Anderson v. Anderson, 2010 BCSC 911:

[152] This analysis must begin with a consideration of the common law approach to ascertaining the intent of the transferor. Historically, when A gratuitously transferred property to B, the “presumption of resulting trust” arose. Because equity presumes bargains not gifts, it was presumed that A only intended to convey the legal title to B and that B held the beneficial interest in the property on a “resulting trust” in favour of A. It follows that the onus was on B to prove that A had intended to give the beneficial title along with the legal title. However, when the transfer was made by a husband to wife or father to child it was presumed that he intended to make an absolute gift of the legal and beneficial interest. This presumption came to be known as “the presumption of advancement”. If the presumption of advancement applies, the party challenging the transfer has the onus of rebutting this presumption: Pecore at paras. 20-27.
[153] The Court in Pecore concluded that the longstanding common law presumptions continue to have a role to play in disputes over gratuitous transfers. The Court summarized the governing principles at paras. 23 and 44:
[23] … The presumptions provide a guide for courts in resolving disputes over transfers where evidence as to the transferor’s intent in making the transfer is unavailable or unpersuasive. This may be especially true when the transferor is deceased and thus is unable to tell the court his or her intention in effecting the transfer.
. . .
[44] As in other civil cases, regardless of the legal burden, both sides to the dispute will normally bring evidence to support their position. 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. Thus, as discussed by Sopinka et al. in The Law of Evidence in Canada, at p. 116, the presumption will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities.
[154] The presumption of advancement has historically been applied in a case such as this when the transferor and the transferee are husband and wife. However, in light of the jurisprudence from the Court of Appeal, it is necessary to address whether this presumption continues to have any application in British Columbia.
[155] In Aleksich v. Konradson (1995), 5 B.C.L.R. (3d) 240 (C.A.), Prowse J.A. for the Court of Appeal rejected the notion that the presumption of advancement no longer applies between spouses in Canada. Rather, she expressed the view that “the presumption no longer has the significance it once enjoyed”: para. 24.
[156] The Court of Appeal in Zhu v. Li, 2009 BCCA 128at para. 51, recently observed that:
[51] First, there is considerable support for the view that the presumption of advancement has lost its force in the contemporary matrimonial context. The editors of Waters’ Law of Trusts describe its origins in the 18th century, rooted in the assumption that when a husband or father transfers an asset to his wife or child, his intention is to make a gift due to the donee’s financial dependence on him and the reasonable expectation that the donee would share in his estate. They observe that this premise has lost its persuasiveness in contemporary society, to the point that the presumption of advancement has been eliminated by express legislation in the majority of Canadian provinces and territories. While it has not been abolished in British Columbia, they say that legislation dealing with the division of matrimonial property has “reduced the presumption to no significance”: D.W.M. Waters, Q.C., Mark R. Gillen, and Lionel D. Smith, Waters’ Law of Trusts in Canada, 3d ed. (Toronto: Thomson Carswell, 2005) at 377-381.
[157] In Zhu, the Court ultimately concluded that the presumption of advancement was of “little assistance” in the context of the transfers made on the day before the parties’ separation. However, the Court stated at para. 54:
[54] In this case, the presumption of advancement might provide some support for a finding that the transfers by Mr. Zhu to Ms. Li of a half interest in each of the three condominiums soon after their marriage were made as gifts, in contemplation of a long and happy marriage. Mr. Zheng testified that Mr. Zhu told him he made those transfers because he was a “family man” and believed his wife should be treated as part of the family unit.
[Emphasis added.]
[158] Based on the recent jurisprudence it appears to be an open question in this jurisdiction as to whether, in circumstances where there is no evidence of marital discord or impending separation, the presumption of advancement might apply to transfers between husbands and wives during the currency of a marriage.
51      As the petitioner made much of the fact that the respondent did not provide any contemporaneous evidence to rebut the presumption of advancement, and I will therefore include the continuation of Dardi J.’s analysis on this issue:
[159] In Pecore, the Supreme Court of Canada confirmed that the civil standard of the balance of probabilities applies to rebut the presumed gift or trust: para. 43.
[160] The defendant’s position is that any declarations of intent attributed to the Deceased that were not made contemporaneously or nearly contemporaneously to the transfer of the Property in September 1999 should not be admissible.
[161] The traditional rule was that evidence adduced to show the evident intention of the transferor at the time of the transfer “ought to be contemporaneous or nearly so” to the transaction. In Pecore at para. 56, the Court cites the articulation of the traditional rule from Shepherd v. Cartright, [1955] A.C. 431 (H.L.):
The acts and declarations of the parties before or at the time of the purchase [or transfer], or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration … But subsequent declarations are admissible as evidence only against the party who made them …
[162] In Pecore, the Court observed that the reason that the court had traditionally viewed subsequent acts and declarations with mistrust was because the transferor could have changed his or her mind after the transfer. In general, donors are not permitted to revoke gifts. Huband J.A. in Dreger v. Dreger (1994), 97 Man. R. (2d) 39 at para. 33 (C.A.), aptly expressed the concern: “[s]elf serving statements after the event are too easily fabricated in order to bring about a desired result”.
[163] However, this rigid rule has lost much of its force, and the Supreme Court of Canada concluded at para. 59 of Pecore:
[59] Similarly, I am of the view that the evidence of intention that arises subsequent to a transfer should not automatically be excluded if it does not comply with the Shephard v. Cartright rule. Such evidence, however, must be relevant to the intention of the transferor at the time of the transfer: Taylor v. Wallbridge (1879), 2 S.C.R. 616. The trial judge must assess the reliability of this evidence and determine what weight it should be given, guarding against evidence that is self-serving or that tends to reflect a change in intention.
[164] The court therefore must approach any evidence of intention that arises subsequent to the transaction at issue with considerable caution and carefully assess the weight it ought to be accorded.
52      Accordingly, such evidence can be considered with caution.
53      I also include the following excerpts from D.W.M. Waters, Mark R. Gillen and Lionel D. Smith: Waters’ Law of Trust in Canada, 4th ed., (Toronto: Thomson Reuters Canada Limited, 2012) [Waters]:
In Canada, the presumption of advancement may actually have declined to the point of insignificance, so that it can be rebutted by very little evidence of contrary intent. … (at 414).
… In British Columbia and Manitoba, the presumption of advancement between husband and wife appears still to be in place; in Alberta, it is in place except for proceedings under the matrimonial property division legislation. In these three provinces, therefore, the burden of proof is still upon the husband to show that he did not intend a gift. It does not matter how weak that presumption is today. In the absence of other admissible evidence, the burden upon the husband remains undischarged. … (at 428).

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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