What is the standard of proof required to discharge the onus of a gift?

Manitoba, Canada


The following excerpt is from Klimashewski v. Klimashewski, 1985 CanLII 3891 (MB CA):

In determining the standard of proof required to discharge the onus, the learned trial judge referred to needing only ... a little evidence ... . Although, in some circumstances, very little evidence of intent to make a gift may be required, all of the cir cumstances must be looked at: Edwards v. Bradley, [1957] S.C.R. 599, per Cartwright, J. (as he then was), at p. 605. I do not, with respect, agree with the learned trial judge that there was a great deal of evidence to rebut the presumption of trust. On the contrary, a consideration of all of the circum stances leaves me unconvinced as to the mother's intention. The transfer is just as consistent with an intent to facilitate the son's immigration to Canada and to provide him with an in heritance on his mother's death as it is with an intent to bestow on him im mediately a fully disposable interest. The learned trial judge confused possi ble motives for making a gift with evi dence of actual intent, and at the same time ignored other factors which were more likely to motivate the mother against an absolute immediate gift.

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