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Contract - Gift v Loan

Barber v Magee (Ont CA, 2017)

Here the Court of Appeal briefly sets out some indicia distinguishing a cash gift from a loan:
[4] Generally, there are objective indicators that can assist in determining whether an advancement is a gift or a loan: Locke v. Locke, 2000 BCSC 1300 (CanLII), [2000] B.C.T.C. 681, at para. 21; Klimm v. Klimm, 2010 ONSC 1479 (CanLII), [2010] O.J. No. 968, at para. 28-32; Mora v. Mora, 2011 ONSC 2965 (CanLII), [2011] O.J. No. 2188, at paras. 38-40. A gift is a transfer in which the absence of an expectation of repayment tends to be reflected in the absence of security, recording, payments or efforts to collect payments. A loan often involves a formal, recorded transfer in which terms are set out and in which repayment is made or sought. In evaluating whether the presumption of resulting trust has been rebutted, a trial judge will naturally look at such indicia.

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