Family Gifts / Family Loans

In the case of Cade v. Rotstein, 2002 CarswellOnt 3871, affirmed on appeal 2004 CarswellOnt 363, the Husband claimed that advances totaling some $200,000.00 made to him by his parents during the course of his marriage to the Applicant constituted loans. The advances were made over a period of approximately 13 years to assist the Husband and Wife in their acquisition of family residences and were captured in promissory notes signed by the Husband. The trial judge, in rendering his decision, cited a passage from a 2001 judgment in which the unfairness that such post-facto re-characterizations work in the family law context was set out. Specifically, he noted that a debt serves to reduce the debt claimant’s net family property such that any equalization payment the spouse, who claims the debt, may owe the other will accordingly be reduced (an equalization payment is defined as one half the difference between the parties’ net family properties). The trial judge then went on to adopt the approach endorsed in the earlier case law: the value of the debt to be attributed to the debt claimant should be discounted to reflect the reality of whether the claimant will be called upon to pay the debt. Based on the facts before him – the debts were old and no demand had been forthcoming on these debts prior to the separation of the Husband and Wife and the Husband’s father testified that he would not look for the money nor take legal action against his son to recover the money – the trial judge concluded that only 5% of the face value of the debts should be included in the Husband’s net family property.

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