What is the test for the presumption of advancement between a father and his dependent child?
Ontario, Canada
The following excerpt is from Saylor v. Brooks, 2005 CanLII 39857 (ON CA):
As a starting point it is important to remember that: Equity does not assume a gift; rather, a donee is required to prove that a gift was intended: Waters’ Law of Trusts in Canada, 3d ed. (Toronto: Carswell, 2005) at 362 [“Waters”]. From this tenet two equitable principles have evolved: the presumption of resulting trust, and advancement. The trial judge in this case held that: [I]t is time for the presumption of advancement from father to child to be abandoned in favour of the presumption of resulting trust in all but the most limited cases. I agree with the views of Heeney J. [in McLear v. McLear, [2000] O.T.C. 505 (S.C.J.)] that because the presumption of advancement was historically grounded in relationships of dependency, then logically it should apply equally to mothers and fathers with respect to dependent children but should not apply to either mothers or fathers in situations where the recipient children are independent adults. (para. 24)
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