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40 M A R C H 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m British Columbia Supreme Court decision, Byrne v. Byrne, which lists, among other evidence, contemporaneous loan documents, a repayment schedule, security, interest rates, partial repayment, or demands for repayment. As a result of the focus on intention, much of the trial turned on the lack of contemporaneous loan documentation, says the wife's lawyer, Michael Stangarone, a partner at MacDonald & Partners LLP in Toronto. "That was the whole crux of the case," says Stanga- rone. "At no time did they ever show her a promissory note, at no time did they ever tell her that these were loans." Attempts by the husband and his parents to bridge the gap at trial were unsuccess- ful; while the husband's father testified that a promissory note had been executed by his son, he claimed that it had been inadvertently destroyed by his wife in an apparent house de-cluttering. It also appeared the husband's family was at some pains to ensure the husband ultimately retained the funds. The wife's demand that the husband and his family members produce bank statements for periods following the sale of the matrimonial home in 2009 yielded trial gold. The statements, which were only obtained after much resistance from the husband and his family, and which were heavily redacted, eventually revealed that sums totalling more than $200,000 were transferred back to the son in 2010 by his parents. "This appears to be the return of the monies repaid to the Respon- dent although this was denied . . ." says the decision. As in much family litigation, e-mails sent at the time of separa- tion were an issue. In Barber, the wife had sent a message shortly after separation suggesting the funds used to buy the home should be returned to the parents. However, the wife testified that when she sent the e-mails, she was not aware of the amounts in question, or even that the house was in her husband's name alone. She also said her e-mails were an attempt to calm a high-conflict situation. "The important point is that there needs to be contemporaneous evidence [of a loan]," says Stangarone. Her statements were made when the wife did not know what the home had sold for and had no idea of the amounts that had been advanced. "The judge said that this wasn't proof of a loan, it's just someone trying to get out of a really difficult situation," says Stangarone. While a presumption of resulting trust must be rebutted by evi- dence that a gift was intended, such evidence tends to be lacking in the context of family transactions, the decision notes. As a result, the case law has endorsed an analysis that relies on lack of evidence of a trust to rebut the presumption, an approach that Fitzpatrick termed "perplexing" but understandable. Fitzpatrick notes: "Requiring the applicant to rebut the presumption with affirmative evidence would be untenable, and would result in many gifts being unjustly charac- terized as loans after the parties separate." Scott Booth, a partner at Jenkins Marzban Logan in Vancouver, says the decision takes a "fresh" approach to resolving the problems that arise when a resulting trust is claimed in a family law context. While it may be possible for parents and their adult child to review the evidence of what took place between them should a dispute arise, it can be much more difficult for third-party spouses to establish the transferor's intent. "So, it could be that the courts have watered down the strength of the presumption [of resulting trust] L E G A L R E P O RT \ FA M I LY L AW Fe 2 Please refer to the Federation of Law Societies of Canada website www.À sc.ca then click on the link to the National. Family Law at the bottom of the home page for further information on registration, accommodation and tourism. All program material will be provided to registrants in digital format, and online. The material can be accessed on your mobile device during and after the program, and is available online for a period of two (2) years after the closing date of the program. Block room rates have been negotiated at the Delta St John's Hotel, which is connected to the new convention centre where all the program sessions will be held (rates apply 3 days pre and post conference). You can also contact the Delta St. John's at 1.709.739.6404 or book through the link on the website listed below. The location is located within walking distance of restaurants and shops. Federation of Law Societies of Canada 2016 National Family Law Program St. John's Newfoundland and Labrador July 11-14 2016 Location: New St. John's Conference Centre July 10 Conference Of¿ ce opens and late afternoon reception On line conference registration is now open! Registration fees include entrance to the conference, all program materials and light refreshments. Call to the Bar prior to 2011 registration fee is $850 plus 13% HST Call to the Bar after 2011 registration is $650 plus 13% HST FederationOfLaw_CL_Mar_16.indd 1 2016-02-11 12:19 PM

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