Brianna Beauchamp - v. -, 2016 SKPC 17

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 201 6 SKPC 017 Date: February 3, 2016 File: 344/15 Location: Regina Saskatchewan _____________________________________________________________________________ Between: Brianna Beauchamp - and - Donna Stachura Michelle Owolagba For the Plaintiff (Defendant by Counterclaim) Self Represented For the Defendant (Plaintiff by Counterclaim) JUDGMENT P. DEMONG, J Introduction [ 1 ] Brianna Beauchamp is Donna Stachura’s twenty-three year old daughter.

She has sued her mother for the return of $1,950.00 which comprised insurance benefits that Brianna says she should have received by virtue of her status as an eligible claimant under a policy of insurance but which, she says, her mother converted to her own use. [ 2 ] Donna originally disputed the claim. At trial, however, she conceded that she had, in fact, converted the money to her own use, but

did so for the express purpose of applying that sum to a series of loans that she says were made to her daughter commencing in or about March of 2012, and continuing through until November of 2012. [ 3 ] Brianna has conceded that her mother did in fact lend her money from time to time and that at the date of trial, some of that money is still due and owing. She is prepared to allow a setoff of the monies that she concedes are due and owing, but disputes a number of the loans that were presumably made to her.

Specifically, she alleges that a number of items in dispute were gifts. [ 4 ] Brianna’s claim is predicated on the intentional tort of conversion. Donna’s counterclaim is predicated on a setoff of monies allegedly due and owing under a series of loans verbally entered into over time. Evidence - Brianna’s Claim [ 5 ] In the fall of 2014, Brianna and her sister were attending the Moose Jaw campus of Saskatchewan Polytechnic. Neither were insured. The insurance policies offered by the institution were too expensive for Brianna to afford.

She discussed this with her mother, Donna, and Donna agreed to designate each of them as eligible claimants on the health and dental insurance policy that she held through her employment at the Regina General Hospital. [ 6 ] Shortly thereafter, and upon confirmation that she was insured under the Great West Plan, Brianna had dental work done and also attended an eye examination. The dental work cost her $2,187.60. She paid for it with her credit card. The eye examination cost $127.00. She paid for that by way of debit card. [ 7 ] This work was done in the latter part of December, 2014.

The insurer calculated the eligible expenses to which Brianna would be entitled for each service, and remitted back the sum of $1,825.00 for the dental work and $125.00 for the eye exam. These monies were deposited directly into Donna’s account on the tenth day and thirteenth day of February, 2015. The monies were deposited to Donna’s account by oversight.

Brianna either overlooked or did not understand that she should have made arrangements with the insurer to have these sums deposited to her own account. [ 8 ] Shortly thereafter, Brianna contacted Donna in an effort to find out when, or if, the insurance monies had been paid. Donna confirmed that they had, in fact, been paid directly to Donna’s account.

Brianna asked if her mother would give the funds to her and Donna replied that she would not, and that Donna was keeping the money and applying that money to outstanding loans that Brianna had acquired from Donna in the past. [ 9 ] Donna was self-represented at trial. After attempting to cross-examine Brianna, she stipulated to the Court that she did not take issue with the fact that she had named Brianna as an eligible claimant under the insurance policy. She stipulated that she did not dispute that Brianna had incurred the charges for the dental work or the eye examination.

Nor did she dispute that Brianna had paid for these charges. She stipulated that she did not take issue with the fact that the monies deposited to her account belonged to Brianna.

She asserted, however, that she had the right to apply these monies to the loans that she said she had made to Brianna in the past. [ 10 ] On the strength of the evidence tendered by Brianna, and the stipulations made by Donna, I am satisfied that Brianna is entitled to judgment for the full amount of the principal that she has sought in her claim which equates to $1,950.00, which in turn is the amount of monies that the insurer had deposited to Donna’s account. Brianna was the rightful owner of the monies deposited to Donna’s account and Donna converted those monies to her own use.

Donna had no right to unilaterally seize money to satisfy the loans. [ 11 ] At trial, Brianna applied to amend her claim. She had originally sought pre-judgement interest on the principal amount due and owing to her. She sought to amend that claim seeking, instead, accrued credit card interest on the sum of $1,825.00, which was that portion of her claim that related to the dental work she had done, and for which she had paid by credit card. I allowed this amendment and I am prepared to grant this additional relief. Brianna is a student.

She has, since incurring these charges on her credit card, been unable to pay them off and her credit card carries a balance of $4,000.00. Had she received the monies due and owing to her when they were originally paid - on or about February 13 of 2015 - she could have applied these monies to her outstanding balance and would not have had to incur the interest charges which accrued at the rate

of 19.95 % per annum. I calculate that the amount of interest relief that Brianna is entitled to should run from February 13 of 2015, which is the date that the monies were first received by Donna. Interest on the sum of $1,825.00 equates to $333.74. The pre-judgment interest accruing on the remainder of the principal award is negligible and I decline to award any further interest on that amount. [ 12 ] In total, and subject to any offsetting provision in respect of the counterclaim, I tentatively award Brianna the sum of $2,283.74.

Evidence - Donna’s Claim [ 13 ] Donna maintains that she lent money to Brianna for a variety of purposes in 2012. She concedes that there is no written loan agreement between herself and her daughter, but rather, money was given to Brianna from time to time on the express understanding that Brianna would pay her back from time to time and as Brianna’s circumstances allowed. [ 14 ] In support of her counterclaim, Donna has submitted a handwritten list of monies advanced to Brianna dating back to March of 2012.

The list identifies both the amount of monies advanced and those monies which have been paid back to Donna over time. The list is detailed. The amounts advanced are identified not by the specific date that the monies were advanced, but rather into two distinct periods of time when Brianna came to live with Donna. The first period runs from March 20 until April 30 of 2012. The second period runs from June 27 until August 5 of 2012.

There is one further advance of funds in or about November of 2012. [ 15 ] There is no question in my mind that Donna and Brianna did, from time to time, enter into agreements whereby Donna would lend money to Brianna on the understanding that Brianna would pay her back as her financial circumstances permitted. Brianna concedes as much and she has identified those specific situations where an agreement was reached. Brianna asserts however, that except where she specifically confirmed the existence of a loan, any further advances constituted not a loan but rather a gift.

She invites the Court to employ what in law is known as a presumption of advancement .... that is to say, in the absence of a written loan agreement or some other compelling evidence, monies advanced by a mother to her daughter are intended as gifts. [ 16 ] I was not provided with any detailed information relating to the intimacy of the relationship between Brianna and Donna over time. Brianna says that she moved out of Donna’s home at ten years of age and thereafter lived with her father. At some point in time, she went to Whitehorse to live with her boyfriend and then followed him to Vancouver.

Brianna says that her relationship with Donna was ‘good’ and that she would phone her mother regularly. In or about early March of 2012, Brianna, then living in Vancouver, phoned her mom to ask if she could come to Regina and live with her for a while. The reasons why she wanted to come home were not spelled out at trial, but Donna mentioned that Brianna had a falling out with her boyfriend. Donna indicated that she had no hesitation in letting Brianna come back to stay with her for awhile, and in fact, she let Brianna use her bedroom while she slept on the couch.

Donna indicated at trial that “she would do everything that she could to help”. Donna stated, however that they had an understanding that this offer was not a carte blanche invitation. She says that Brianna agreed that she would “pay [her] back for everything”.

To put things into context, Donna was, at that time, a single parent, working at the Regina General Hospital with her son who was still residing at home. [ 17 ] Donna says that she intended to keep Brianna to her word, and with the exception of providing free room and board, as she advanced monies to Brianna or bought her things, she kept track of each of those outlays.

She says that she made a list of those expenses and wrote them down on a single sheet of paper that was submitted into evidence and marked as exhibit D-2 in these proceedings. [ 18 ] That list reads as follows: March 20 to April 30, 2012: $307.01 - Vancouver plane to here $24.38 - 2 bottles of wine $6 - lip gloss $4 - deodorant $13 - shirt

$10 - movie $53 - cash $23 - outing with friends $7 - extra for eye exam $18 - 4 books $4 - credit card cash advance fee $100 - cash to go back to Vancouver $24 - supper with Justine $30 - cash from ATM $189.13 - Vancouver plane back Total $812.52 June 27 to August 5 of 2012: $388.64 - plane Vancouver to here $72.55 - 1 month Usana supply $17 - July long distance phone $25 - renewal of driver’s license $40 - cash for Yorkton fair $15.77 - my credit card at Tim Hortons $299.96 - my credit card for her cell bill $25 - my credit card for gas $11.98 - credit card purchase finance charge $23 - gas $54.13 - Usana business cards $25 - Information Services regarding Usana business $15 - Jenn’s anniv. supper Yorkton $78.75 - Air Canada $117.60 - Air Canada $28 - restaurant $80 - spending money November, 2012: $351.00 - Money transfer to Brianna sent to Philippines Total $1,668.38

[ 19 ] The tally for all monies advanced equates to $2,480.90. [ 20 ] The list also recorded the amount of monies that were received by Donna from Brianna. It is a detailed account. Some of those amounts are identified as a setoff for work done around the house and some relate to cash payments. Some relate to a setoff of birthday and Christmas money that Brianna would otherwise have received but for the setoff.

The following is a list of those payments Donna identifies as having been made by Brianna: $150 - Dec. 6/14 $100 - Dec. 14/14 $100 - May 24/14 $100 - July 26/14 $300 - her painting 3 rooms $114 - July 4/14 bought groceries for me $30 - from my parents Christmas present for 2014 $20 - 2 hours staining for me July 24/14 $30 - her b’day May 10/13 $30 - her b’day May 10/14 $50 - Xmas ‘14 [ 21 ] These amounts total $1,024.00. Donna has also identified an interest component in her list which is set at 5% per annum.

Using that interest component she arrived at a net amount due and owing to her equal to the sum of $2,928.00. After deducting the amounts that were paid to her, she arrived at a figure of $1,904.00. From that amount she deducted the monies she had converted ($1,950.00), and came to the conclusion that the amount due and owing to Brianna would be $46.00. [ 22 ] As earlier indicated, Brianna concedes that there were express agreements between her and her mom that some of the items referred to above were, in fact, loans.

She acknowledges that the cost of the plane tickets in the respective sums of $307.01, $189.13 and $ 388.64 were loans. She acknowledges that the transfer of the sum of $351.00 sent to her while she was in the Phillipines was a loan, as was the sum of $25.00 to renew her driver’s licence. In total she acknowledges that $1,260.78 is due and owing to her mom. [ 23 ] Brianna further acknowledges all of the setoffs that Donna has identified in her list.

As stated earlier, these equate to $1,024.00. [ 24 ] The essential issue for determination of this Court is whether or not the additional monies given to Brianna while she stayed with her mom were in the nature of gifts or whether they were monies advanced to Brianna on the understanding that Brianna would pay for them at a later date. Analysis [ 25 ] Brianna did not take any serious issue as to whether or not the monies identified in the list were advanced. She suggested that one of the purchases for Usana (a health product) may have been for her mom because her mom was also using the product.

She invited the Court to conclude that the payment of her Telus cell phone bill in the sum of $299.96 may have been for one of her siblings. This, notwithstanding that she conceded that she did in fact have a Telus account cell phone, and notwithstanding that she led no evidence to indicate that it was she, and not her mom, who paid the account. [ 26 ] Brianna does, however, invite the Court to treat the list as suspect, as something that was made by Donna only after having been

served with Brianna’s statement of claim. Specifically, she notes that the list appears to have been made out with the same pen. Brianna suggests that it would be most unusual indeed, that if, as Donna suggests, these items were written down as they were incurred, rather than at a single instance, it is more likely that different pens would be used. Donna, however, denies this. She said that she had made it well before being presented with Brianna’s claim, and had it in hand in February of 2015.

She says that she attempted to present it to Brianna when Brianna came to the house demanding that her insurance monies be returned to her. Donna says that Brianna refused to look at the list and the accounting identified on that list, and left the house screaming and mad. [ 27 ] While I might be tempted to agree with Brianna, I do note that the advances made and sequentially written down do appear to be written in the same sequence as they were incurred. Reference to Donna’s credit card statements filed with the Court appear in the same sequence.

Even if I were to agree with Brianna, does it make any difference in the final result if they were written when they were incurred or at a later date? It may impugn, to some extent, Donna’s credibility, but it does not, in my view, negate the essential argument advanced by Donna, which is to say, that she was not going to be a free bank for Brianna while she stayed with Donna, and that Brianna knew this and indicated that she would “pay her back for everything” as and when she was able.

Furthermore, with the exception of the couple of items referred to earlier, Brianna did not lead any evidence to suggest that she was not the recipient of the monies and/or goods referred to in the list. [ 28 ] I had the opportunity to assess the demeanour of each of Donna and Brianna. Brianna painted the picture of a dutiful daughter who was in need and looked to her mother for help when she needed it. She presented the relationship as a good one. I am not certain that it was. Donna presented as a weary parent who was frustrated with a daughter who felt entitled.

She was frustrated that Brianna had purchased an expensive vehicle which she could not afford and for which Donna co-signed. She was frustrated that Brianna would not recognize her obligation to pay monies back when the insurance money came in, and, rather than look to her obligation to repay, had a temper tantrum. When confronted with questions regarding the use of her mother’s credit card, Brianna simply “could not recall”. She could not recall whether or not her mom bought her the health care products, she could not recall the amount of money that was due and owing on her cell phone.

She could not recall ever using the credit card to access ATM machines. She did not say that this did not happen, she simply ‘could not recall’. [ 29 ] Donna struck me as the kind of parent who holds her children to their promises. She has meticulously identified each advance made to Brianna during her stay. While to some people it may seem overly parsimonious, she carefully identified the value of the work that Brianna did around the house and offset that against monies advanced. She went so far as to deduct from those advances monies that would otherwise be applied for birthday and Christmas gifts.

Brianna not only accepted but acknowledged that these were offset. I am satisfied that the list that Donna presented to the Court is an accurate accounting of the monies advanced to Brianna, and the monies that Donna subsequently received or off-set against those sums. The question is, whether or not the monies so advanced were gifts, or monies advanced with the expectation that they be repaid. [ 30 ] Brianna’s defence seems to be predicated on two prongs. First, she did not expressly agree to treat all of the advances as loans. Second, the Court should presume that all of the other incidental sums were gifts.

She suggests that because she is Donna’s daughter, then, in law, there is a presumption of advancement. [ 31 ] When I look to the totality of the evidence I am satisfied that there was an understanding between Donna and Brianna that monies advanced to Brianna, and costs of goods which were covered by Donna for the benefit of Brianna, were not gifts but rather advanced or purchased in the expectation that they would be repaid. In my view, Brianna’s promise, upon being allowed to stay with her mother, that “she would pay her back for everything” is binding upon her.

I find it difficult to accept that a $25.00 advance to renew Brianna’s driver’s licence was a loan, but that payment of her cell phone bill in the sum of $299.06 was a gift ... or that according to Brianna’s legal counsel, I may find that the cash advances made to Brianna might be regarded as loans, but not monies that were obtained at ATM’s. [ 32 ] Brianna had separated from her mother’s care when she was ten years old. When she came to live with Donna in 2012 she was twenty years old and had been living away from home as an adult in an adult relationship.

I do not accept, as Brianna’s legal counsel invited me to conclude, that the mother-daughter relationship invokes a presumption of advancement. In Pecore v Pecore , [2007] SCC 17, our Supreme Court was called upon to examine the longstanding common law presumptions of advancement and resulting trust. The head note properly identifies the finding of that Court: ... The presumption of resulting trust is the general rule for gratuitous transfers and the onus is placed on the transferee to demonstrate that a gift was intended.

However, depending on the nature of the relationship between the transferor and the transferee, the presumption of advancement may apply and it will fall on the party challenging the transfer to rebut the presumption of a gift. The civil standard of proof is applicable to rebut the presumption. The applicable presumption will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities.

In the context of a transfer to a child, the presumption of advancement, which applies equally to fathers and mothers, is limited in its application to gratuitous transfers made by parents to minor children. Given that a principal justification for the presumption of advancement is parental obligation to support dependant children, the presumption does not apply in respect of independent adult children … [ 33 ] While Brianna may have called upon her mother to assist her when she had a falling out with her boyfriend, that alone does not make her a dependant, let alone a minor dependant. She was an adult.

The evidence before the Court was that Brianna had promised to pay Donna back for monies and cost of goods incurred. While some of the items in issue might be considered trite, there is no serious dispute that they were in fact advanced to Brianna. [ 34 ] Counsel for Brianna urged the Court to interpret Pecore in a manner which affirms a legal proposition that monies advanced by a mother to an adult non-dependant child is presumed to be a gift and that the onus of proof rests with a mother to prove otherwise.

In support of this proposition she invites the Court to read Madam Justice Abella’s dissenting opinion on this point in Pecore .

Justice Abella (paraphrased by me) concluded that the presumption of gift emerges no less from affection than from dependency, and since parental affection flows from the inherent nature of the mother-daughter relationship, and not from the dependency, the presumption of gift should logically apply to all transfers from parents to their children regardless of the age or the dependency of the child. [ 35 ] While Madame Justice Abella concurred in the result in Pecore , her comments and conclusions regarding the presumption of advancement between a parent and a child are not shared by the majority decision of that Court, and this Court is bound by the majority decision. [ 36 ] Therefore, it was Brianna’s obligation to lead evidence that the monies advanced were a gift.

It was not Donna’s obligation to prove these advances were not a gift. In my view, the evidence advanced by Brianna on this point was insufficient to rebut the onus of proof on a balance of probabilities. [ 37 ] I find that the monies advanced and the cost of goods purchased for Brianna were not gifts. The value of those monies and goods are due and owing by Brianna to her mother. After reviewing the series of set-offs identified on Donna’s list, the amount of money due and owing to Donna equates to $1,456.90. This is exclusive of the interest that Donna seeks.

I am not satisfied that Donna is entitled to charge interest on these sums, either in the amount set forth in her list or at all. There was no agreement between the parties that Brianna should pay interest, and in the absence of an agreement, Donna is not entitled to simply stipulate, after the fact, that interest would be charged. [ 38 ] Brianna is entitled to judgment in the sum of $2,283.74. Donna is entitled to judgment in the sum of $1,456.90.

After setting off these two amounts, Brianna is entitled to judgment in the reduced sum of $826.84 which I direct be paid immediately. [ 39 ] As success in these matters have been mixed, I decline to award costs to either party. P. Demong, J