Money advanced to a married person by a family member often becomes the subject of controversy in family law litigation. For example, it is not uncommon for parents to advance money to their adult child in order to help fund the down payment of a home for the adult child and his or her spouse. Invariably in these situations where the parties later separate, the recipient of the money takes the position the advance was a loan, while the other spouse takes the position it was a gift. The characterization of the money advanced has important implications with respect to the calculation of the recipient’s net family property calculation and equalization payment.
Fortunately, the recent decision of Barber v. Magee, 2015 ONSC 8054 (Ont. S.C.J.) by Fitzpatrick J. of the Ontario Superior Court of Justice provides a fulsome overview of leading authorities on this issue and sets out a concise list of the factors to be considered in determining whether the funds advanced are to be considered a gift or a loan, including
The recent decision in the matter of Nichols v. Herdman, 2015 CarswellOnt 9262 (Ont. S.C.J.), sets out what grandparents are required to prove in order to obtain a court order for custody/access of grandchildren. In this case, the grandparents brought a motion seeking several orders with respect to their grandchild, Megan, including joint custody, primary care of Megan during the weekdays, two access evenings per week and access with Megan every weekend. Unsurprisingly, Megan’s parents were not agreeable to the aggressive position taken by the grandparents. They refused to allow the grandmother any access to Megan, but they were prepared to allow supervised access by the grandfather.
Section 21 of the Children’s Law Reform Act requires custody and access questions to be determined on the basis of “the best interests of the child.” The Court also referred to the principle set out in the Ontario Court of Appeal decision of Chapman v. Chapman, 2001 CanLII 24015 (ON CA) which addressed the level of deference to be accorded to the decisions and judgments of parents: