Proznik and Smith v. Proznik Date:, 2011 BCPC 300

Citation: Proznik and Smith v. Proznik Date: 20111104 2011 BCPC 0300 File No: 19121 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DANIEL ANTHONY PROZNIK and SANDRA ADELE SMITH CLAIMANTS AND: NATASHA DAWN PROZNIK DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Claimants: C. L. Gleeson Counsel for the Defendant: W. C. Shields Place of Hearing: Abbotsford , B.C. Dates of Hearing: May 27, October 24, 2011 Date of Judgment: November 4, 2011 Introduction [ 1 ] The Claimants in this action are husband and wife.

The Claimant Daniel Anthony Proznik is the father of the Defendant Natasha Dawn Proznik. Between November of 2001 and February of 2005, the Claimants provided the Defendant with various sums of money for various purposes. The Claimants say that these were a series of loans, while the Defendant says that these were gifts. No clear documentation exists to settle this issue.

The relationship between the parties has been strained and they now look to this court to decide this issue. [ 2 ] At the trial of this matter each the parties testified, as well as an RCMP Constable who gave evidence about an alleged admission made by the Defendant. [ 3 ] In many cases of this nature, a problem arises because the parties do not clearly address the issue about whether money advanced was a gift or a loan at the time that the money is disbursed. Both sides walk away with different assumptions, but without ever having told the other side what each believes about the nature of the transaction.

This was not the case here. Both sides have testified that there was a spoken clarity about the nature of the transaction. Unfortunately, the evidence of each side is contradictory on this point. The Claimants say that these were clearly stated to be loans, while the Defendant says that they were clearly stated as being gifts. Both versions can not be true. Someone’s evidence on this important point is not credible. Following is a

summary of the evidence heard and of the applicable law, and the reasons for the judgement rendered in this matter.

Summary of Evidence

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a) Evidence of the Parties [ 4 ] The Claimants seek a judgement for $11,463.59, which they say represents the total amount of money that they loaned to the Defendant and for which they have not been repaid. The Amended Notice of Claim alleges that this money was transferred in nine different transactions. However from the testimony given, it was clear that at there was no evidence supporting the claim respecting one of these transactions. I will summarize the remaining eight transactions as follows: (

a) November 6, 2001: the Defendant received $1500 to help her meet expenses while she was off work for several weeks recovering from surgery. The money was paid by a cheque in the sum drawn on the account of the male Claimant’s business. The Defendant admits that she received this amount. (

b) December 2, 2004: The Defendant received $1500 by a cheque drawn on the personal account of the male Claimant. The Claimants say that this was to help the Defendant attend the Second City Comedy School in Toronto. The Defendant admits receiving this money. (

c) January 5, 2005: The Claimants paid $417.53 to Westjet using their joint credit card so that the Defendant could fly from Toronto to BC to see a specialist that she had been on a waiting list for. The Defendant believes this was for a round-trip but otherwise admits that the Claimants paid this expense for her benefit. (

d) January 7. 2005: The Claimants used their joint credit card to pay $235.00 so that the Defendant would have money. The money was sent by Western Union. The Defendant claims to know nothing about this. (

e) January 10, 2005: The Claimants deposited $2,265.00 in cash into the Defendant’s HSBC Bank Account. On the Deposit Slip, someone has written “Personal Loan”. The Defendant admits that she received this money, but can not explain why the notation “personal loan” appears on the deposit slip as well as on her bank statement. (

f) February 13, 2005: The Claimants used their joint credit card to pay Westjet $192.60, which they say was for a flight for the Defendant. The Defendant says that she has no idea what this is for, (

g) February 17, 2005: The female Claimant sent the Defendant a gift Certificate from Save-On Foods for $270 which the Claimants say was to help the Defendant pay for medicine from the Save-On Foods Pharmacy. The Defendant acknowledges that this occurred. (

h) February 28, 2005: The Claimants deposited $5,000 into the Defendant’s HSBC bank account. The deposit was made by a cash deposit of $2,500 and by the male Claimant’s personal cheque for $2,500. Both the deposit slip and the cheque contain the notation “Personal Loan” on them. The Defendant admits that she received this money, but has no recollection of the notations of “personal loan” on the deposit slip or on the cheque. [ 5 ] There is one other transaction set out on the claim, that being a February 12, 2005 charge on the Claimants’ joint credit card for $83.46 to Westjet.

In her evidence, the female Claimant testified “I sent a care package to [the Defendant], it might be that, I’m not sure.” The Defendant had no idea what this charge was or how it related to her. There was no clear evidence what this charge was for, or of any agreement on the part of the Defendant to repay for this and one does not normally send another a “care package” with the expectation of being repaid for it. This part of the claim is dismissed. [ 6 ] The evidence discloses a lot of tension in this family dynamic. The Defendant’s parents separated when she was a child.

She went to live with her mother at the time and her father was ordered to pay child support. The Defendant alleges that her father was violent towards her and also that he physically assaulter her when, as a child, she accused a business partner of his of sexually molesting her. He denies any violence or that he did not support her when the accusation was made. The Defendant also believes that the Claim is motivated out of spite because she is now in a same-sex relationship of which her father disapproves. His evidence is that this litigation is motivated in principle.

He says that his daughter has continually taken financial advantage of family members and that she must be held accountable for her actions. [ 7 ] On each of these transactions, the evidence of the parties is markedly different about the conversations had leading up to the advancing of the money. Concerning the $1500 paid by cheque on November 6, 2001, both of the Claimants testified that this was money loaned to the Defendant to help her meet expenses after she was recovering from some surgery.

Daniel Proznik testified that the Defendant told him that she would pay him this money back when she began working again. The Defendant testified that it was her father who called her to offer the money after he was contacted by the Defendant’s mother. She testified that the cheque was sent with a “Get Well” card and there was no indication that this was to be a loan. [ 8 ] Concerning the sum of $1500 disbursed on December 1, 2004, the Claimant Sandra Smith testified that Defendant called her to say that she had “the chance of a lifetime” to attend the Second City Comedy School. Ms.

Smith testified that the Defendant was very excited and asked for $1500, stating “this is a loan and I promise, promise, promise to pay it back. I know I owe the other money, and I promise to pay that back.” Ms. Smith testified that she spoke to her husband and while they were concerned that the Defendant had not been responsible in repaying the last money she was given, they felt that she was older and more responsible now. The decision was ultimately that of the Defendant’s father, who decided to lend the money. Ms.

Smith testified that when the money was disbursed, the Defendant promised to repay the money once she began working. Daniel Proznik testified that he was initially against loaning the money to the Defendant because she had not paid anything back from the first loan, but he changed his mind after Ms. Smith convinced him to do so. [ 9 ] This is at odds with the evidence of the Defendant.

She testified that this money was sent to her in a Christmas card with the note “Merry Christmas, treat yourself.” She testified that she did not save the card. [ 10 ] Sandra Smith testified that in early 2005 she received a phone call from the Defendant in which the Defendant said that she had suffered a stroke and needed to fly back to British Columbia to see a specialist, but had no money to get back. Ms.

Smith testified that she and the Defendant agreed that she would pay for a flight for the Defendant to fly to British Columbia and the cost of the flight would be added to the amount which the Defendant already owed them. Ms. Smith didn’t discuss the matter with her husband, and he also

confirmed in his evidence that he was not privy to the discussions about this airfare. Ms. Smith made the agreement directly with the Defendant. [ 11 ] The Defendant testified that Ms. Smith purchased a return flight for her from Toronto, following several episodes of stroke-like symptoms that she had been suffering from. She had the opportunity to be seen by a specialist in Vancouver. She asked Ms. Smith for financial help with this, to which Ms. Smith replied “of course I’ll help.” She testified that Ms.

Smith offered to book a flight for her, but that there was never any discussion of this being a loan. [ 12 ] Subsequently Ms. Smith spoke to the Defendant again and she says it was agreed between the two of them that the Claimants would lend the Defendant a further sum of money to help meet her school and living expenses. The sum of $2,265.00 was then deposited into the Defendant’s bank account and the deposit slip noted the transaction as being a personal loan. Mr.

Proznik confirmed this in his evidence, and said that he agreed to the loan because it was for a health-related issue. [ 13 ] The Defendant admits that she received this money, but says that in the same conversation that she had with Ms. Smith about the plane ticket, Ms. Smith inquired about whether the Defendant had any money to meet expenses. When the Defendant said that she did not, Ms. Smith told her “I’m going to put some money in your bank account to help you meet expenses.” She testified that there was never any discussion about this being a loan.

She had no explanation why the cheque contained the memo “personal loan” or why this was also recorded on her bank statement. [ 14 ] Ms. Smith testified that later that month, she was contacted by the Defendant, who was in Victoria. The Defendant needed money to buy medication for stroke prevention. The Defendant was going to get the medication at the Save-On Foods pharmacy, but did not have the money to do so, so she called Ms. Smith and asked if she could loan her the money to buy the medications. Ms.

Smith agreed to this and attended at a local Save-On Foods store where she tried to pay for the prescriptions directly. She was told that she could not do so, but that she could send the Defendant a gift certificate to use to pay for the prescription. Ms. Smith followed this procedure and bought a gift certificate for $270 so that Defendant could pay for her medication at the Save-On pharmacy. The Defendant agrees with much of this, but denies that there was ever any discussion about this being a loan. She thought that, since she received a gift certificate, this meant that it was a gift. [ 15 ] Ms.

Smith testified that she received a call from the Defendant near the end of February in 2005. The Defendant was now back in Toronto and was in a desperate financial position. According to Ms. Smith, the Defendant asked if she could borrow $10,000. Ms. Smith spoke with her husband. Together they decided that they would lend the Defendant $5,000 but there would be no further loans, Ms. Smith testified that she then spoke to the Defendant and conveyed this information, and that the Defendant said “I promise I’ll pay it back as soon as I start work.” Mr.

Proznik testified that he felt that a loan of $10,000 was too much money. He was working “up north” at the time and left the decision to Ms. Smith. [ 16 ] The Defendant testified that upon her return to Toronto she was met with some pressing expenses for her classes and for her housing. She called her father because he had promised to help his children with the cost of schooling. She testified that when she spoke with him, he said “the maximum I’m prepared to give you is $5,000, but never ask me for money again.” She denies ever having any discussion about this being a loan. [ 17 ] Mr.

Proznik testified that he raised the subject of repayment of the loan in the summer of 2006 when the Defendant was visiting at his home. The Defendant became upset and told him that all he cared about was money. He testified that she told him that when she returned home, she would arrange for a personal loan to repay him. The Defendant admits that when she visited the Claimants in 2007, there was an angry exchange, but there was never any discussion about any loan. (

b) Independent Evidence [ 18 ] From time to time the parties would exchange email communication. The email was generally cordial, although the subject of the parties’ health was a tense one at times. The Defendant’s father was diagnosed with a serious kidney ailment and required a donor for a transplant. The Defendant was asked to consider being the donor, but she advised that her doctors recommended against this because of her own health problems. On March 17, 2008 the Defendant wrote the Claimants an angry email in which she told them that she had been diagnosed with the same kidney ailment as her father.

Her email reads “I just want to let you and dad know that I have what dad has with his kidneys.” At trial, the Defendant testified that this was not the truth. She had only been told that it was possible that she might be suffering from the same condition. After being told that the Claimants resented the tone of the email, the Defendant wrote back and apologized for this. She also told the Claimants that she had been promoted at work and that she was “living well.” [ 19 ] On May 6, 2008 the subject of the money first surfaced in an email written by Ms. Smith to the Defendant.

In the email she told the Defendant that her father “wants me to tell you that he want (sic) you to start paying the money back you borrowed. I’ll leave that one up to you and him to work out.” The Defendant did not respond to this. The subject did not come up again until January 15, 2009, when the Claimant Daniel Proznik wrote an email to the Defendant in which he said: “I have to tell you that I am very disappointed in you about the money you borrowed from us three or four years ago. You insisted this was a loan and not a gift which is why we agreed to loan you the money.

In fact you promised more than once you would pay it back even if you had to take out a loan. It doesn’t matter how you spent the money, for what or on what, but it is your obligation to pay it back. You have had more than ample time to start making payments. I don’t want you to confuse this with love because I love you very much and always have; however, you repeatedly promised you would pay us back as soon as you started working. You have been working for quite a while now.

You have to learn to be responsible and not shirk your financial obligations, and especially not try to turn things around to make me feel guilty saying all I care about is money. That is not true, nor is it an excuse not to repay money you owe. I want you to get ahold of me either by phone or email and make arrangements to start repaying this money. I don’t work any longer and only get disability which isn’t very much. It’s not like it used to be when I was working.

So you know, the reason I haven’t phoned you is because I have not been wanting to harass you about this and been waiting for you to contact me to make arrangements like you promised. I feel I have been more than patient. Are you trying to hide your head in the sand and hope I will forget about it? That’s not going to happen.”

[20] Four days later, Ms. Smith sent an email to the Defendant telling her that she and her father “really need to work this thing out.”Later that day the Defendant sent an email to her father simply saying “received your email today. I will review your request and adviseaccordingly.” This prompted a long email from Daniel Proznik. In the email he itemized the amount owing which he calculated at$18,828. When the Defendant did not respond, he sent another email giving the Defendant two options. Option A was for her to applyher future inheritance from her grandparents against the debt.

Option B was for him to commence legal action. He demanded a responsewithin 48 hours, concluding in dramatic fashion “You MUST be stopped and I am going to stop you.” [21] The Defendant perceived this as criminal harassment. She testified that she took the last sentence in the email as a threat ofphysical harm, so she reported the matter to the Kelowna Detachment of the RCMP. She went to the detachment on February 2, 2009.The officer who investigated the matter, Constable Chris Joy, concluded that this was a civil matter, not a criminal one.

Constable Joytestified that when he interviewed the Defendant in connection with this matter, she told him that she was being harassed over of loan of$10,000. She told Constable Joy that the money had been loaned to her a number of years before. He testified that the Defendant referredto this as a loan and not a gift. His notes, which he made shortly after he dealt with the Defendant, state “Proznik advised that her fatherloaned her about $10,000 a number of years ago for school and now he wanted that money repaid...” On cross-examination, he testifiedthat there was no confusion for him on the issue.

He clearly recalled that the Defendant had referred to the transaction as a loan.Constable Joy was able to convince the Claimants not to contact the Defendant and to pursue any remedy they felt they had in a civilcourt. Applicable Law [22] When money is transferred between family members, disputes often arise about whether the money is intended to be a gift or aloan. The answer to this question will depend on what the parties intended and agreed to. In cases where the parties have set out theirintention and agreement in writing, the answer will usually be clear.

More typically, those family members will not set this out in writingat the time that the money is advanced. Sometimes they will rely on a spoken agreement. This can be problematic because months oryears later, the parties may disagree about what was said or what was agreed upon. Sometimes nothing will be said at the time that themoney is advanced. One party may assume the character of the transaction to be one thing (a gift or a loan) while the other party mayassume it to be the opposite.

In such a case no clear understanding will have been reached. [23] If money has transferred from one party to another without any consideration and without any clear evidence of a contraryintention, and the parties are unrelated, the law presumes this to be either a loan or a trust. This is because to presume otherwise wouldresult in the unjust enrichment of the party who received the money.

But if the parties in these circumstances are a parent and a minor ordependent child and the parent transfers money to the child, the law presumes this to be a gift, because it is usual for parents to provideeconomic support their dependent children. [24] The Supreme Court of Canada set this out in Pecore v. Pecore 2007 SCC 17 , [2007] 1 S.C.R. 795, where Rothstein J.wrote: 24 The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When atransfer is challenged, the presumption allocates the legal burden of proof.

Thus, where a transfer is made for no consideration, the onusis placed on the transferee to demonstrate that a gift was intended... This is so because equity presumes bargains, not gifts. 25 The presumption of resulting trust therefore alters the general practice that a plaintiff (who would be the party challenging thetransfer in these cases) bears the legal burden in a civil case. Rather, the onus is on the transferee to rebut the presumption of a resultingtrust... 27 The presumption of resulting trust is the general rule for gratuitous transfers.

However, depending on the nature of therelationship between the transferor and transferee, the presumption of a resulting trust will not arise and there will be a presumption ofadvancement instead... If the presumption of advancement applies, it will fall on the party challenging the transfer to rebut thepresumption of a gift. 28 Historically, the presumption of advancement has been applied in two situations. The first is where the transferor is a husbandand the transferee is his wife...

The second is where the transferor is a father and the transferee is his child, which is at issue in thisappeal. (Emphasis added) [25] The court qualified this however by concluding that the presumption of advancement does not apply in the case of a transfer ofmoney from a parent to an adult child. Rothstein J. came to this conclusion for two reasons: 36 ...First, given that a principal justification for the presumption of advancement is parental obligation to support their dependentchildren, it seems to me that the presumption should not apply in respect of independent adult children.

As Heeney J. noted in McLear,at para. 36, parental support obligations under provincial and federal statutes normally end when the child is no longer considered by lawto be a minor: see e.g. Family Law Act, s. 31. Indeed, not only do child support obligations end when a child is no longer dependent, butoften the reverse is true: an obligation may be imposed on independent adult children to support their parents in accordance with needand ability to pay: see e.g. Family Law Act, s. 32.

Second, I agree with Heeney J. that it is common nowadays for ageing parents totransfer their assets into joint accounts with their adult children in order to have that child assist them in managing their financial affairs.

There should therefore be a rebuttable presumption that the adult child is holding the property in trust for the ageing parent to facilitatethe free and efficient management of that parent’s affairs. (Emphasis added.) [26] The Supreme Court in Pecore went on to hold (at paragraph 43) that the standard of proof for the party seeking to rebut thepresumption of resulting trust is on a balance of probabilities. Mr.

Justice Rothstein stated (at paragraph 55) that “where a gratuitoustransfer is being challenged, the trial judge must begin his or her inquiry by determining the proper presumption to apply and then weighall the evidence relating to the actual intention of the transferor to determine whether the presumption has been rebutted.” Withoutintending an exhaustive list of what kind of evidence was best considered, he set out the following principles which I now summarize: 1. The acts and declarations of the parties before or at the time of the transfer are admissible in evidence either for or against the party

who did the act or made the declaration. 2. Evidence of the intention of one or both of the parties that arises after the transfer should not automatically be excluded. Such evidence, however, must be relevant to the intention of the transferor at the time of the transfer. The trial judge must assess the reliability of this evidence and determine what weight it should be given, guarding against evidence that is self-serving or that tends to reflect a change in intention. 3. If there is anything in the bank documents that specifically suggests the transferor’s intent, the court may consider it.

The clearer the evidence in the bank documents in question, the more weight that evidence should carry. [ 27 ] In Locke v. Locke 2000 BCSC 1300 , Mr. Justice Wilson summarized the factors to be considered in determining whether money advanced from a parent to a child is a gift or a loan. Those factors are: 1. Whether there were any contemporaneous documents evidencing a loan; 2. Whether the manner for repayment is specified; 3. Whether there is security held for the loan; 4. Whether there are advances to one child and not others, or advances of unequal amounts to various children; 5.

Whether there has been any demand for payment before the separation of the parties; 6. Whether there has been any partial repayment; and 7. Whether there was any expectation, or likelihood, of repayment. [ 28 ] In Hawley v. Paradis 2008 BCSC 1255 , Madam Justice Brown concludes at paragraph [30] that the presumption of advancement no longer applies between adult children and their parents and that in such transactions, there is a presumption of resulting trust when parents make gratuitous transfers of money to their children. She also concluded that the factors set out in Locke v.

Locke will assist the court in determining whether such transfer was a gift or a loan. [ 29 ] From the foregoing, I will summarize the law which I must apply in this case as follows: 1. Where money is transferred gratuitously, the general rule is that it is presumed that the recipient holds the money in a resulting trust for the donor. This is a rebuttable presumption of law. 2. This presumption may not apply in certain cases involving family members such as in the case of a transfer between spouses or a transfer from a parent to a child who is a minor.

In those cases the presumption is one of gift (also known as the presumption of advancement.) 3. The presumption of advancement does not apply in the case of a transfer of money from a parent to an adult child. In such case, the presumption is one of resulting trust, i.e. that the adult child is obliged to repay the money to the parent. 4. Such presumption may be rebutted by proof to the contrary. The burden of proof rests with the party seeking to rebut the presumption. 5. The standard of proof for the party seeking to rebut the presumption of resulting trust is on a balance of probabilities. 6.

The trial judge must begin his or her inquiry by determining the proper presumption to apply and must then weigh all the evidence relating to the actual intention of the transferor to determine whether the presumption has been rebutted. 7. The acts and declarations of the parties before or at the time of the transfer are admissible in evidence either for or against the party who did the act or made the declaration. 8. Evidence of the intention of one or both of the parties that arises after the transfer may be admissible against the interests of that party. 9.

Evidence of intention subsequent to the transaction may be admissible for or against either party, provided that such evidence is relevant to the intention of the transferor at the time of the transfer. The trial judge must assess the reliability of this evidence and determine what weight it should be given, guarding against evidence that is self-serving or that tends to reflect a change in intention. 10. If there is anything in the bank documents that specifically suggests the transferor’s intent, the court may consider those document.

The clearer the evidence in the bank documents in question, the more weight that evidence should carry. 11. In determining whether money advanced from a parent to a child is a gift or a loan, some relevant factors for a court to consider are whether: (

a) there were any contemporaneous documents evidencing a loan; (

b) the manner for repayment is specified; (

c) there is security held for the loan; (

d) there are advances to one child and not others, or advances of unequal amounts to various children;

(

e) there has been any demand for payment before the separation of the parties; (

f) there has been any partial repayment; (

g) there was any expectation, or likelihood, of repayment. Analysis [ 30 ] This is not a case where money was advanced without any spoken intention as to the character of the transaction. In their respective evidence, the parties all say that the intention was spoken, but they disagree on what that spoken intention was. The Claimants say that these transactions were clearly stated to be loans, while the Defendant says that they were gifts. Both versions can not be correct.

In the absence of any clear evidence on this point, the law presumes that this was a series of loans and that the Defendant must pay the money back to the Claimants, unless she is successful in rebutting that presumption. [ 31 ] Whether the presumption is rebutted or not may depend on whose evidence I accept. If I accept the evidence of the Claimants and reject the evidence of the Defendant, then the presumption has not been rebutted. If the reverse is true, the presumption will not apply because there will be clear evidence of a gift.

The factors set out in the case law I have referred to earlier will help to determine both the question of credibility and whether or not the presumption of resulting trust has been rebutted. [ 32 ] In considering the acts and declarations of the parties at the time of making of each of these transactions, the statements which the parties testify to making do not determine the issue because the evidence of each side is in conflict.

There are certain other pieces of evidence made at the time some of this money was advanced which suggest an intention on the part of the Claimants the lend the money rather than give it. [ 33 ] For example, when the sum of $2,265.00 was deposited into the Defendant’s bank account on January 10, 2005, the deposit slip contains the notation “personal loan.” This is not a subsequent alteration because the Defendant’s bank statement also contains the notation “personal loan” on the entry noting this deposit.

The deposit slip dated February 28, 2005 for $5,000 also contains the notation “personal loan”, although no similar comment appears with the corresponding entry on the Defendant’s bank statement. The cheque which the Claimants wrote on February 28, 2005, which was the other part of that deposit also, contains the notation “personal loan” in the memo

section of the cheque. All of these corroborative pieces of evidence, made at the time of advancement, support the conclusion that this money was advanced with the intention that it be a loan, not a gift. [ 34 ] With regard to any evidence of intention made subsequent to the time of disbursement, the email correspondence on the part of the Claimant refers to these transactions as loans, not as gifts.

Although there is some inconsistency on the part of the Claimants about the amounts of the disbursements, at no time do they ever refer to any of these as gifts. [ 35 ] It is significant that, when confronted with the demand that she repay the money transferred to her, the Defendant at no time disputes the characterization of the transfers as loans. While she never acknowledges them as such, one might reasonably expect a person in her position to correct this assertion by replying that these were gifts, not loans. But she never once asserts this.

Instead she states that she will “review your request and advise accordingly”, something she never does until she is sued in this action and filed a Reply. [ 36 ] I am mindful of the fact that, prior to the demands made for repayment in early 2009, there is no independent record of how the money was to be repaid. In the subsequent email correspondence however, the Claimants do state that the Defendant had promised to repay the money when she was working.

The Defendant never disputes this suggestion or even comments on it, aside from her general statement that she would “review and advise accordingly.” I also note that no security for repayment of the money was ever taken by the Claimants. I would also note that the evidence would suggest that the Claimants were very frugal and not in the habit of handing out money to any other family members. [ 37 ] An important piece of corroborative evidence comes from the statement of the Defendant to Constable Joy in which she acknowledges that her father loaned her the sum of $10,000.

Despite her evidence that she said no such thing, the evidence of Constable Joy is independent and unbiased. He also made a note of this admission relatively soon after the statement was made. On this point I prefer the evidence of Constable Joy because of its clarity, because it was recorded in his notes at a time when it was fresh in his memory and because he has no interest in the outcome of this action. [ 38 ] Finally, I am troubled by the conduct of the Defendant in telling the Claimants in an email that she had the same kidney ailment as her father, when this was untrue.

Although it is a falsehood on a collateral matter, it demonstrates a willingness on her part to fabricate on important matters. [ 39 ] A consideration of all of these factors leads me to conclude that where there is any conflict in the evidence, the evidence of the Claimants and of Constable Joy should be preferred over that of the Defendant. The independent evidence, including the deposit slips, the bank statement, the police file, and the email all lead me to the conclusion that it is the Claimants who are correct in their version of events.

A consideration of this evidence also leads me to conclude that when the advances of money were made to the Defendant by the Claimants, the intention was that these were to be loans not gifts, and that they were advanced with the mutual understanding that they would be repaid by the Defendant. I find that the Defendant has failed to rebut the presumption of resulting trust. Order [ 40 ] For the foregoing reasons, the Claimants shall have judgement against the Defendant for the sum of $11,380.13, along with costs in the sum of $216.00.

The Claimants are also entitled to interest pursuant to section 1(1) of the Court Order Interest Act. Dated at the City of Abbotsford, in the Province of British Columbia, this 4 th day of November, 2011.

___________________________________ The Honourable Judge K. D. Skilnick