In B.C. civil dispute, two down pillows and a ‘Magic Wand’ vibrator test the legal definition of a ‘gift’
|National Post 15 May 2019 at 15:24|
Edwin Hughes, a retired miner from Timmins, Ont., had always been careful with his money. When he died just before Christmas, 1998, he had a bank account of over a million dollars, which he had made joint with his daughter Paula.
Twenty years later, in December of 2018, British Columbia resident Glen Pedersen’s romantic relationship of a few months with Rachel Hannaberry came to its conclusion.
According to a new lawsuit in B.C., those rules also now require Hannaberry, at her own expense, to return to her ex-boyfriend Pedersen two down pillows that he kept at her home because he did not like synthetic, and a Hitachi Magic Wand, a cordless vibrator that they used together, all of which he claimed belong to him.
This is the decision of British Columbia Civil Resolution Tribunal Member Trisha Apland, who did not believe her claim that he gave them as gifts. She must also pay him $125 plus interest for fees.
She cited the Hughes case in her ruling, because it affirmed, roughly, that it is the recipient’s duty to prove a disputed asset was a gift, as opposed to a trust.
After his death, when Paula’s marriage to Michael Pecore ended, their dispute over her late father’s intentions went through three levels of court. If the bank account was a gift, it was Paula’s alone. If it was held in trust and still part of his estate, it was rightly shared with Michael.
It took nearly a decade for the Supreme Court of Canada to finally rule in Paula’s favour. The onus was on her to prove it was a gift, which she was able tp do.
Usually, the person bringing a lawsuit has the burden of proof. But in Pedersen and Hannaberry’s case, it was clear that he bought the items, and she received them, so “the burden shifts to the person alleging the items were gifts, in this case the respondent (Hannabberry),” the tribunal found.
This put Hannaberry in the unusual legal position of having to prove, on a balance of probabilities, that items she possessed were gifts. Under the law, that means proving the transfer of the asset was “inconsistent with any other intention.”
I find this argument does not support her position. Instead, I find it suggests she may not have accepted the Magic Wand as a gift even though she had possession of it
On this point, the judge referred to the case of a family dispute over whether a $50,000 payment, taken against the value of a deceased woman’s house, was given to her daughter as a gift or a loan.
The types of evidence about the alleged gift-giver’s intent will vary, this Supreme Court said in the Pecore case, and the weight given to any one factor should be at the discretion of the trial judge.
In Pedersen and Hannaberry’s case, the fact they were in a romantic relationship was “relevant, but not determinative,” Tribunal Member Apland found.
“For there to be a legally effective gift, three things are required: an intention to donate, an acceptance, and a sufficient act of delivery,” Apland wrote.
Hannaberry’s evidence was that the couple “were originally pretending the Magic Wand was not a gift because she felt ‘weird’ about gifts.”
“I find this argument does not support her position. Instead, I find it suggests she may not have accepted the Magic Wand as a gift even though she had possession of it. Again, acceptance is required for a legally effective gift,” the Member wrote.
Hannaberry presented text messages in which she thanks Pedersen for the vibrator as evidence he intended it as a gift, but the Member said this was “not determinative.” In other texts, he refers to it as “his,” and she asks permission to use it, which the Member accepted was role play, and that Pedersen “meant to maintain control over the Magic Wand.”
She also tried to claim that the vibrator is gender specific for women, which the Member rejected. Originally marketed as a muscle relaxer, the Hitachi Magic Wand is better known as a sex toy.
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