Court of Appeal for Ontario

Citation: Champion v. Guibord, 2007 ONCA 161 Date: 2007-03-12 Docket: C45548

Re: Suzanne C. Champion and Nicole J. Pchajek (Applicants (Respondents)) – and – Charles Andre Guibord (Respondent (Appellant))

A N D B E T W E E N: Charles Andre Guibord and Claudette Guibord (Applicants by Cross-Application (Appellants)) – and – Suzanne C. Champion and Nicole J. Pchajek (Respondents by Cross-Application (Respondents))

Before: Goudge, Gillese and Juriansz JJ.A.

Counsel: Maxime Faille, for the appellants Charles Andre Guibord and Claudette Guibord Julius Dawn, for the respondents Suzanne C. Champion and Nicole Pchajek

Heard: February 27, 2007

On appeal from the judgment of Justice Giovanna Roccamo of the Superior Court of Justice dated May 16, 2006 and from the supplementary reasons for judgment delivered May 31, 2006.

E N D O R S E M E N T

[1] The appellants argue that the severing of the joint tenancies here constituted a change in testamentary designation or disposition and is therefore prohibited by s. 31(1) of the Substitute Decisions Act because it is the making of a will.

[2] While we are inclined to the view that the severance of a joint tenancy is not a testamentary disposition, we need not decide that question in this case. Even if it were, we see no error in the disposition made by the application judge, because of s. 35.1(3)(a) of the Substitute Decisions Act.

[3] That subsection permits the guardian to dispose of property that is the subject of a specific testamentary gift in the incapable person’s will, if the disposition is necessary to comply with the guardian’s duties. In such situations of necessity, the guardian is empowered to dispose of property even though the property is otherwise the subject of a specific testamentary gift.

[4] The appellants also argue that in any event they are entitled to a trial at which to assert that Charles Guibord was gifted both properties, subject only to the right of survivorship in those listed with him as joint tenants.

[5] The application judge rejected this argument. She had before her affidavits of Charles Guibord that were contradictory on factual questions of some importance. These affidavits were also contradicted in several significant respects by objective independent evidence. Moreover, the affidavit evidence of others in support of his position also suffered from significant frailties. Finally, on the central point, Mr. Guibord’s affidavit amounts only to a bald assertion that in conveying these properties in joint tenancy, his mother intended him to have them except if he died first. He does not say that his mother undertook that she would never change her mind.

[6] In our view, it was open to the application judge in these circumstances to reject the appellant’s evidence, for the reasons he gave, without directing a trial. This was not a case where the determination of material facts require the choice between conflicting versions testified to by different witnesses. Here the appellant’s factual assertion was rejected because of his self-contradictions, the conflicting objective evidence and the overwhelming body of circumstantial evidence that pointed the other way. There is simply no conflict requiring resolution that would be assisted by a trial.

[7] Therefore, despite Mr. Faille’s helpful argument, we would dismiss the appeal with costs fixed at $6,000 inclusive of disbursements and G.S.T.

"S.T. Goudge J.A."

"E.E. Gillese J.A."

"R.G. Juriansz J.A."