“In concluding that the advances were by way of gift, the motion judge applied the correct legal test and considered the relevant factors. He began his inquiry with the presumption of resulting trust and then weighed all the evidence to determine the parents’ actual intent at the time of the transfer: Pecore v. Pecore, 2007 SCC 17 (CanLII), [2007] 1 S.C.R. 795, at paras. 5 and 44.
Here the motion judge considered factors listed as relevant in a number of cases concerning monies advanced by parents. These include the following factors identified in the context of a loan vs. gift analysis in Locke v. Locke, 2000 BCSC 1300 (CanLII), [2000] B.C.J. No. 1850 at para. 21, and Kuo v. Chu, 2008 BCSC 504 (CanLII) at para. 78, aff’d 2009 BCCA 405 (CanLII), 97 B.C.L.R. (4th) 203, at para. 9:
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- whether there [are] any contemporaneous documents evidencing a loan;
- whether the manner for repayment is specified;
- whether there is security held for the loan;
- whether there are advances to one child and not others, or advances of unequal amounts to various children;
- whether there has been any demand for payment before the separation of the parties;
- whether there has been any partial repayment; and
- whether there was any expectation, or likelihood, of repayment.
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See also Barber v. Magee, 2017 ONCA 558 (CanLII), at para. 4.”