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w w w . C A N A D I A N L a w y e r m a g . c o m M A R C H 2 0 1 6 41 by testing it against intent in the way it was done in Barber v. Magee," says Booth. "And the same thing was done in Byrne v. Byrne. In a family law context, the presumption operates fairly weakly." And while the general direction of family law reform may be to enhance certainty and reduce conflict, Booth says he's not sure legislative change in this area is called for. It could be difficult to change rules that govern the division of property between spouses, he notes, without also affecting the rights of third parties, namely, the parents who are making these transfers. The lesson is such transfers, if truly intended as loans, should be accompanied by full documentation. "This is a cautionary tale for inter-family advances," says the decision. "Spouses and their families can easily avoid disputes by exercising common sense. The simple solution is to document any advances as loans in a manner similar to what any lender would do, especially where, as here, the advances are significant." Indeed, Fitzpatrick writes it was a "mystery" to him why families would not "undertake the modest efforts" to do so. Education is likely the most effective route to avoid such con- flicts. "I don't think the legislature will ever intervene in matters involving parents and children, more than they do now," says Han- naford. "But I think there is an enormous service that could be done; say to these parents who are transferring money, stop having such disdain for lawyers and the legal system." Instead, seek legal advice when such transactions are in play, she advises. "The expen- diture of $500 can save [clients] $500,000 down the road." Brian Burke, a partner at Epstein Cole LLP, notes the special considerations that arise under Ontario law when the matrimonial home is the asset in dispute. While some gifts can be excluded from family property, usually by ensuring they are not mixed with shared property, using such gifts to purchase a home means they must be shared. While that may be unfair in some circumstances, he says, it's possible to avoid this result by putting a mortgage on the family home in favour of the parent advancing the funds, as per Barber. Burke agrees that efforts to avoid this type of litigation should remain focused on education, even though it remains a significant challenge to interest couples on the brink of marriage, or the acqui- sition of a home using funds from family members, in the potential consequences of marriage breakdown. Social values also come into play when it comes to Ontario's statutory scheme relating to the matrimonial home. Burke says the reality is that, for most families, the home is their main asset. If inter-family gifts are deducted from a home's value on disposition, many spouses would be "wiped out." And the effects on children can be lasting, with some left travelling between one parent in a large home and another living in a base- ment. "Quite rightly, non-legal matters come into play," he notes. Indeed, in Barber, the husband subsequently purchased another home, which was fully mortgaged in favour of his parents shortly after the case conference that preceded the trial. Prior to the most recent litigation, the wife had received "nothing" as a result of the marriage breakdown, says Stangarone. But, equipped with this new "road map," as Stangarone calls the decision, perhaps other dissolving marriages will avoid the costs and ill will that plagued this family. However, the husband has now filed a notice of appeal, so that outcome too may change. Untitled-1 1 2016-02-11 10:20 AM Essential Tools for Family Law Professionals For more information, visit www.divorcemate.com 1.800.653.0925 x407 | sales@divorcemate.com NOW AVAILABLE! ADD FREEDOM & FLEXIBILITY TO YOUR PRACTICE DM Tools Cloud Work anywhere, anytime, on any device. For child and spousal support calculations. Available for PC, Mac, tablets and smartphones. Untitled-5 1 2015-02-09 10:22 AM

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