Henry Giesbrecht v. Corinne Penelope Giesbrecht, 2013 SKPC 18

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 018 Date: January 28 , 2013 Small Claim #: 62/2011 Location: Swift Current, SK _____________________________________________________________________________ Between: Henry Giesbrecht and Corinne Penelope Giesbrecht - and - Andrew James Slovinsky and Tanya Lyn Slovinsky Ms. Corinne Penelope Giesbrecht For the Plaintiffs Ms. Tanya Lyn Slovinsky For the Defendants DECISION L.A. MATSALLA , J [ 1 ] This case involves the unfortunate dispute between a stepmother (Penelope Giesbrecht) and her stepdaughter (Tanya Slovinsky). Ms.

Slovinsky has three children namely Chantal Vigueras, Mathew Slovinsky and Jordan Slovinsky. The action was commenced by both plaintiffs against both defendants, however, throughout only Ms. Giesbrecht had contact with Ms. Slovinsky.

[ 2 ] Ms. Slovinsky is the daughter of Henry Giesbrecht who is married to Ms. Giesbrecht. The plaintiffs allege that certain funds were lent to the defendants and the defendant (Ms. Slovinsky) takes the position that while a portion of the funds advanced to them was a loan, a portion of the funds constituted a gift. I will now review the evidence adduced by each party. The Position of the Plaintiff, Penelope Giesbrecht [ 3 ] Early in 2009, Mr. and Mrs. Giesbrecht wanted to take a trip to Disneyland in California. Some years prior another daughter had made a similar trip.

Penelope Giesbrecht spoke to Tanya Slovinsky about the Slovinsky family joining them on this occasion. By the end of the month, Ms. Slovinsky advised that all but her husband, Andrew, could go on the trip and Ms. Giesbrecht commenced to make all of the arrangements for the journey. She took steps to obtain all of the passports at her cost. Ms. Slovinsky encountered a difficulty in that she did not have sole custody of her daughter whose father had moved to Chile. [ 4 ] Ms. Giesbrecht obtained some legal advice in Swift Current and she referred Ms.

Slovinsky to counsel in Regina for the purpose of obtaining a court order providing the mother with custody of Chantal. An arrangement was reached whereby Ms. Giesbrecht offered to lend Ms. Slovinsky the sum of $3,500.00 to pay to the lawyer as a retainer. Each of the parties discussed the matter with their spouses and, subsequently, Ms. Giesbrecht testified that she told Ms. Slovinsky that she could obtain the funds from her line of credit and so Ms. Slovinsky agreed to borrow the money and to pay whatever interest was charged under the line of credit. The rate of interest at the time was 7% per annum. Ms.

Slovinsky agreed to make monthly payments in the amount of $500.00 a month or more if they could manage a higher payment. It was understood that the payments would commence after the parties returned from the trip to California so that Ms. Slovinsky could accumulate some funds for the trip. Accordingly, Ms. Giesbrecht forwarded a bank draft to counsel in Regina to cover the retainer and counsel was advised to communicate with the defendants. [ 5 ] Ms. Giesbrecht told the Court that on February 18, 2009, she received a telephone call from Ms.

Slovinsky who advised that her husband had a loan for which collection proceedings had been commenced and, in addition, they had a telephone bill that was in arrears and so Ms. Giesbrecht agreed to lend Ms. Slovinsky the further sum of $4,000.00. Ms. Giesbrecht drew on her line of credit, prepared a money order in favour of Ms. Slovinsky and deposited the funds into her account. [ 6 ] On March 2, Ms. Giesbrecht paid for passports and photographs and Ms. Slovinsky gave her the sum of $300.00 to cover the cost. On March 20, Ms.

Giesbrecht booked the flights to California for the Slovinskys at a cost to them of $1,531.44. Ms. Giesbrecht acknowledged that Mr. Slovinsky provided her with a sum of $1,000.00 to cover the costs. On April 23, she booked various attractions in California for Ms. Slovinsky and the children through a travel agent at a cost to them of $1,152.00. She told the Court that Ms. Slovinsky provided her with a sum of $225.00 on account of the cost. Then, on April 28, Ms.

Giesbrecht purchased tickets for the Slovinskys to attend a baseball game in California at a cost to them of $84.64. [ 7 ] On May 4, the two families left on the trip. On the way to California they had to spend a night in Calgary and Ms. Giesbrecht claims that the Slovinsky share of the hotel accommodation amounted to $173.31. The next day they arrived in California where they spent two weeks. Ms. Slovinsky brought the sum of $400.00 cash with her to cover expenses which was much less than was necessary to cover meals and other incidental costs and so Ms.

Giesbrecht paid for many of the meals at a cost to her of $353.71. While in California they stayed in a hotel and, according to Ms. Giesbrecht, it was agreed that they would divide the total cost into five portions making the Slovinskys responsible for the cost of $1,098.52. They then flew back to Canada on May 19. Ms. Giesbrecht paid a baggage fee on behalf of Ms. Slovinsky in the amount of $17.77. [ 8 ] Upon their return, Ms. Giesbrecht received a further account in the amount of $633.60 from the lawyer from Regina. Ms. Giesbrecht paid the account after speaking to the Slovinskys. Thereafter, Ms.

Giesbrecht received payments from the Slovinskys of $200.00 a month for five months in 2009, a payment of $160.00 in February of 2010, four more payments of $200.00 to the end of June 2010, a payment of $140.00 in August and the last payment on January 1, 2011, of $100.00. [ 9 ] Ms. Giesbrecht takes the position that interest continues to be charged on her line of credit and that at all material times the Slovinskys were aware of the interest and agreed to make payment of the interest. [ 10 ] Ms. Giesbrecht claims that the total amount that she spent on behalf of the Slovinskys amounted to $12,707.52.

The amount includes the expenses set out above. Payments of $3,425.00 were made and interest of $2,422.90 had accumulated. Leaving a balance

owing of $11,705.62. The Position Of The Defendant - Tanya Slovinsky [ 11 ] Ms. Slovinsky testified that her family lives in Camrose, Alberta. She admitted that she had discussions with Penelope Giesbrecht about a family trip to Disneyland who was most eager that the trip take place but her family had turned down the suggestion because they could not afford it. Ms. Giesbrecht advised that she had a line of credit with the bank and that she inquired about the indebtedness of the Slovinsky family. She offered to lend them $3,300.00 to cover Mr. Slovinsky’s (“insta-loan”) on the understanding that Mr.

Slovinsky would make payments. Ms. Slovinsky testified that an agreement was reached in which Ms. Giesbrecht would lend her the sum of $4,000.00 to cover the loan and a telephone bill that was in arrears. Ms. Giesbrecht was aware of both debts. Mr. Slovinsky himself could not go on the trip. [ 12 ] According to Ms. Slovinsky, the Giesbrechts offered to take the children only but Ms. Slovinsky wished to go along in order to help with them. For the children to leave the country it was necessary to retain counsel or to obtain a court order granting her sole custody and so she agreed to borrow the money from Ms.

Giesbrecht to cover the legal fees. She also understood that she would be responsible for the cost of any passport expenses relating to her children and herself. Ms. Giesbrecht advised Ms. Slovinsky that it would cost at least $1,000.00 for flights, hotel and tickets in order for her to go along and so that amount of money was given to Ms. Giesbrecht by Ms. Slovinsky. [ 13 ] Ms. Slovinsky told the Court that there were no further discussions with Ms.

Giesbrecht about her borrowing money for all of the other costs including the cost of accommodation, the cost for tickets to attend attractions, the cost of tickets to attend the ball game and the cost of food consumed during the trip. She went on to say that she believed that the plaintiffs had undertaken to take the children on this trip and, while she paid what she could, the Giesbrechts were prepared to cover the rest of the cost. [ 14 ] At the end of the day, Ms. Slovinsky acknowledged that she is responsible for the repayment of a $4,000.00 loan to cover the indebtedness of Mr.

Slovinsky and the sum of $3,500.00 and $633.60 to cover legal fees for a court order. She admitted that she had agreed to pay interest at the rate of 7% per annum on the outstanding balance. She acknowledged that she provided payment for the passports and for airfare. She said that no further payments were made on the debt because she had lost her job. Arguments [ 15 ] The plaintiff’s position is that all of the money spent by them on Ms. Slovinsky and her children constituted a loan to the defendants that the latter had agreed to repay with interest at a rate equal to the rate paid by Ms.

Giesbrecht, from time to time, on her line of credit. [ 16 ] The defendant’s position is that she had borrowed money from Ms. Giesbrecht only to the extent described above and that there was no arrangement made to borrow money to repay the remaining costs incurred by Ms. Giesbrecht. The Law [ 17 ] Generally, an agreement entered into by two parties is a contract that requires a meeting of the minds as to its terms.

It is preferable that such a contract be reduced to writing so as to identify the promises made and obligations incurred by each party including the amount lent, the details of repayment including the terms of repayment and the interest rate to be paid. Failure to do so can result in a divergence of opinion as to the precise nature of the agreement requiring the Court to determine the details from an examination of the circumstances. [ 18 ] If the existence of a loan arrangement cannot be established, the transfer of property from Ms. Giesbrecht to or on behalf of Ms.

Slovinsky created a presumption of a resulting trust rather than a gift made from one to the other. Mr. Justice Klebuc (as he then was) described the presumption and the nature of a gift as follows: A presumption of resulting trust arises when one person has gratuitously transferred his property into another party’s name, that party,

either because he is a fiduciary or gave no value for the property, is under an obligation to return the property to the transferor or theperson who gave value for it: Waters, at p. 300. Underpinning the doctrine is the premise that equity does not assume a gift and hencethe transferor of the property is presumed not to have given or advanced the property to another by way of gift: Dyer v. Dyer (1788), 30E.R. 42 (Eng. Chan. Div.). Such presumption is an evidentiary one that may be rebutted by clear and convincing evidence: Shephard v.Cartwright, [1955] A.C. 431, [1954] 3 All E.R. 649; Vaselenak v.

Vaselenak, (AB CA), [1921] 1 W.W.R. 889 at p. 892, 57 D.L.R. 370 (Alta, C.A.); Waters, at p. 311[1]. [19] The person receiving property from another must overcome the presumption that the property belongs to the transferor.

However, the law has recognized that a special relationship exists between a parent and child and so a presumption of advancement willhave application which, Judge Klebuc, at paragraph 17 of the judgment, described as follows: The presumption of advancement essentially provides that where a transferor transfers his property to his wife or child, it is presumedthat he intended to make a gift and therefore the presumption of a resulting trust does not arise. This presumption, like the presumptionof a resulting trust, is an evidentiary one which the transferor may rebut: Rupar v.

Rupar et al. (1964), (BC SC), 49W.W.R. (N.S.) 226, 46 D.L.R. (2d) 553 (B.C.S.C.). He went on to say that he had serious doubts that the presumption had much validity in modern times in a case in which property istransferred from an older parent to an independent child who is married and lives apart from his parent. In fact, the Legislature of this province has abolished the presumption in matters dealing with the ownership of property between spouses[2].

It is now clear that thepresumption does not apply as between a parent and an independent adult child although it continues to operate as between a parent and a child who is a minor or who is in need[3]. It was the case that in earlier times the presumption operated respecting the transfer of property from a father to child but not from a mother to child[4] however the latter has been called into question[5]. In Saskatchewan it can be said that the presumption applies equally to mother and father[6]. [20] Our Court of Queen’s Bench in R. v.

Bayoff Estate[7] set out the requirements necessary to establish a gift at paragraph 11 asfollows: 1. an intention to donate, 2. acceptance of the gift, and 3. a sufficient act of delivery. [21] The evidence adduced to overcome the presumptions and to prove the existence of a gift must be measured against a certainstandard. [22] A presumption of a resulting trust can be rebutted by the transferee (in this case Ms. Slovinsky) if she is able to prove that the transferor (in this case Ms. Giesbrecht) intended to make a gift to her[8].

In cases other than those in which a gift is suggested, the presumption can be rebutted by “clear and convincing evidence”[9]. It is clear that the extent of evidence necessary to attack the presumption of advancement “is to prove within a reasonable probability that there was no gift”[10].

In this case, the presumption ofadvancement cannot be raised by the transferee because she is an independent adult child - more accurately a stepchild. [23] Insofar as the extent of evidence necessary to establish a gift, at one time it was an established principle that the onus of proof onthe party who argued in favour of a valid gift was higher than the usual burden, that is, the balance of probabilities in a civil case [seeDell’Aquila Estate v. Mellof (1996), (SK KB), 143 Sask. R. 8]. However it is now accepted that the standard of proof is the usual standard in a civil case[11].

To satisfy that burden, a plaintiff is required to adduce evidence sufficient to show that there is agreater probability that she is correct than not. The same burden lies with a defendant to show on balance that a valid gift was made by the plaintiff to the defendant[12]. Analysis

[ 24 ] Ms. Slovinsky admits that she did have a discussion with Ms. Giesbrecht about a family vacation trip to Disneyland although, she said that she advised that the family could not afford the trip and so they turned it down. After some discussion, Ms. Giesbrecht proposed to lend Tanya Slovinsky funds sufficient to cover Mr. Slovinsky’s loan and the phone bill and so an arrangement was made whereby the sum of $4,000.00 would be lent by Ms. Giesbrecht to Ms. Slovinsky. Subsequently Ms.

Slovinsky agreed to borrow further funds to cover legal fees. [ 25 ] It seems to me that the timing of the discussion leading to the arrangement and the nature of the arrangement itself is such that it was intended that the arrangement be separate and apart from the other expenses incurred by Ms. Giesbrecht. [ 26 ] On the evidence, I believe that Ms. Slovinsky clearly advised Ms. Giesbrecht that the holiday was not affordable and Ms. Giesbrecht was well aware of that fact.

If a family faces collection proceedings regarding a loan and they cannot pay a telephone bill then it makes little sense to borrow money to pay off those debts only to incur another significant debt to go on a holiday. The payment of the insta-loan provided financial relief and the money paid for the legal fees to enable Ms. Slovinsky to obtain a court order had long term benefits to her and her family. [ 27 ] Ms. Slovinsky paid Ms. Giesbrecht $300.00 for the passports and identification expenses, $225.00 toward entertainment tickets and $1,000.00 toward airfare.

I am satisfied that the funds were likely requested by Ms. Giesbrecht. Ms. Giesbrecht purchased tickets for the family to attend the ball game without any consultation with or agreement from Ms. Slovinsky. In the circumstances, Ms. Giesbrecht’s actions are consistent with the making of a gift rather than that of someone lending money. I am not satisfied that Ms. Giesbrecht has established that any of the other expenses were part of any loan arrangement that was agreed upon by Ms. Slovinsky. [ 28 ] Since Ms.

Slovinsky has been unable to continue her payments on the loan, significant animosity has developed between the parties and I think that, but for this animosity, it is unlikely that Ms. Giesbrecht would now be claiming that all of the expenses (including baggage fees in the amount of $17.77) were also part of a loan. [ 29 ] On balance I have concluded that while there is sufficient evidence to establish a loan for some of the money advanced, Ms.

Giesbrecht, knowing that her stepdaughter and her step grandchildren would not have been able to go on a trip without assistance, intended to pay for much of the trip so that they could go. Once again, on the evidence, I believe that Ms. Slovinsky has rebutted the presumption of a resulting trust in this case. She understood and appreciated Ms. Giesbrecht’s efforts and she tried to cover as much of the costs as she could. Conclusion [ 30 ] The plaintiff, Mr. Giesbrecht, has not established that any arrangement was made that included him. The action against Mr.

Slovinsky is dismissed because there is no proof that he was party to any arrangement to borrow money from Ms. Giesbrecht. I do believe that Ms. Giesbrecht advanced funds on her line of credit to make the loan. There will be a judgment in favour of Ms. Giesbrecht in respect of the loan taken by Ms. Slovinsky to pay the insta-loan and phone bill (amounting to $4,000.00) and the funds paid for legal fees (amounting to $3,500.00 and $663.60). The total amount of the loan was $8,163.60.

The arrangement was not reduced to writing and, on balance, I cannot conclude that there was an agreement respecting the rate of interest that would apply from time however there seems to have been an understanding that a rate of interest would apply to any outstanding balance. I am unable to determine the precise rate of interest except to say that Ms. Slovinsky understood that rate to be 7% per annum. I will calculate interest accordingly at that rate. The amount of the judgment shall be calculated to date as follows:

a) Amount advanced on February 18, 2009 $8,163.60

b) Plus interest at 7% per annum calculated from February 18, 2009 to July 2, 2009 $ 211.36

c) Less payments of $1,900.00 - 2009 July 3 $ 200.00 August 18 $ 200.00 October 2 $ 200.00 November 9 $ 200.00 December 11 $ 200.00 2010 February 19 $ 160.00 April 16 $ 200.00 May 22 $ 200.00 June 18 $ 200.00 August 6 $ 140.00 $6,474.96

d) Plus interest from August 7, 2010 - January 23, 2011 $ 211.10

e) Less payment January 24, 2011 $ 100.00 $6,586.06

f) Plus interest from January 24, 2011 - January 25, 2013 $ 466.08 $7,052.14 [ 31 ] The plaintiff shall be entitled to her costs. Therefore, there will be judgment in favour of Penelope Giesbrecht as against Tanya Slovinsky as follows: Claim: $6,586.06 Interest: $ 466.08 Costs: $ 100.00 TOTAL: $7,152.14 ____________________________ L.A. Matsalla, J [1] Cooper v. Markwart (1999), S.J. No. 338 at para. 16 [2] Section 50(1) of The Family Property Act , S.S. 1997, c. F-6.3 as amended (formerly The Matrimonial Property Act , 1997 S.S. 1997, c. M-6.11) [3] Johnson v. Johnson , 2012 SKCA 87 , Klebuc C.J., para. 77, referring to Pecore v.

Pecore, (ON SC), [2004] O.J. No. 695 (Ont. S.C.) at 36 [4] Edward v. Bradley, (SCC), [1957] S.C.R. 599 [5] Mehta v. Mehta Estate, [1993] N.J. 354 (Man. C.A.) paragraph 18 [6] Nelson v. Little Estate, [2004] S.J. No. 466, Gunn J. [7] 2000 SKQB 23, [2000] 3 W.W.R. 455, Krueger J. [8] Goodfriend v. Goodfriend, (SCC), [1972] S.C.R. 640 at 646, Moody v. Ashton, [2004] S.J. No. 758, Bayton J. [9] Cooper v. Markwart, supra, at para. 16 [10] Pecore v. Pecore, supra, at para. 30 [11] F.H. v. McDougall (2008), SCC 53, 2008 SCC 53 , [2008] 3 SCR 41 at para. 40, Dyck Estate v. Olivier, 2010 SKQB 384 , [2010] S.J.

No. 602 Popescul J. at para. 36 [12] R. v. Findlay, (BC CA), [1944] 1 W.W.R. 609, [1944] to D.L.R. 773 at 776 (B.C.C.A.)