Timing & Property Claims – Themistocleous v. Themistocleous (CA)

The appellant in this case was the father/father-in-law of the couple who was separating. The appellant was appealing a decision of Justice Borkovich, who on February 6, 2008, dismissed his action for the return of money he claimed was a loan, not a gift, made to his son and former daughter-in-law during their marriage to one another. The Appellant further argued that the trial judge had made palpable and overriding errors in certain factual findings, which led to an unjust result that should be overturned on appeal.

The Court of Appeal, however, disagreed with the appellant’s arguments, deciding that there was in fact no reversible error made by the Trial judge. The Court of Appeal commented on how “there [was] support in the record, including the suspicious timing of the father’s demand for repayment (mere days before the separation of his son and former daughter-in-law) for the trial judge’s decision”. Evidently, the timing of the appellant’s claim was a legitimate issue for both the trial judge and the appeal judge. The appeal was dismissed.

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  1. This is an all too common scenario where parents/parents-in-law loan or gift monies to a couple and then, upon that couples separation, claim that the money is a loan and demand repayment. This is an area of family law where there is much litigation as there is no clear cut test regarding whether monies paid are a loan or a gift. Any person accepting money from a parent during marriage under the agreement that it is a loan would be well advised to ensure that certain steps are taken to document that the loan is in fact a loan. Some of the factors court will consider include, but are not limited to, the following:

    1. Is the loan registered on title of the matrimonial home?
    2. Have any payments been made with respect to the loan?
    3. Have the same parents made any loans to their other children and demanded repayment?
    4. What is the timing of the demand for repayment?

    No one answer to any of above mentioned questions is in itself conclusive of the issue, but the way that these and other relevant questions are answered will help the trier of fact determine the issue.

    In the case at bar I believe the trial judge and Court of Appeal made the correct decision. None of the above mentioned indicia of loan v. gift helped lead the court to the conclusion that the monies were in fact a loan.

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