Just when we think our estate freeze shares are safe from Family Law Act claims because the appellate court overturned the trial decision in MacNamee v MacNamee, and found that the gift of the shares was a valid gift, the same Court of Appeal has released a very short decision which could have far-reaching effects on the validity of trusts, especially after the Antel. The case is Duca Financial Services Credit Union Ltd. v. Bozzo, 2011 CarswellOnt 4816.
On July 26, 2011, the Ontario Court of Appeal released reasons in McNamee v. McNamee, [2011 ONCA 533] given jointly by Blair, J.A. and Rouleau, J.A., which overturned the lower court decision of Tranmer, J.
The case involved a claim under Ontario's Family Law Act by a wife for a share of property of her husband, Mr. McNamee, comprising 500 common shares of a family business. The relevant shares had been transferred to Mr. McNamee by his father as part of an estate freeze undertaken by his father. The primary issue dealt with by the lower court was whether the transfer of the shares to the husband was a “gift” from his father, in which case, as a gift received after marriage, the value of the shares would be excluded from Mr. McNamee’s net family property.