Court File and Parties

CITATION: Guerin v. Shoultz, 2010 ONSC 3014

COURT FILE NO.: 08-DV-1390 (Ottawa)

DATE: 2010-06-21

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Warkentin J.

RE: Anita Guerin (Appellant) v. Janet Mary Shoultz (Respondent)

BEFORE: Madam Justice B. R. Warkentin

COUNSEL: Douglas G. Menzies for the Appellant Paolo Giancaterino for the Respondent

HEARD: May 19, 2010

Endorsement

[1] This is an appeal to a single judge in the Divisional Court by the plaintiff, Anita Guerin from the Small Claims Court decision of Deputy Judge Houlahan on the 10th day of January, 2008.

[2] The appellant has alleged that the trial judge made errors of both law and of fact.

[3] The standard of review regarding findings of law is that of correctness whereas the standard for review for findings of fact is that the trial judge must have made a palpable and overriding error.[^1]

[4] The trial judge’s reasons contained detailed analysis of the evidence and based upon that evidence he made certain findings of fact including accepting the evidence of some witnesses and rejecting the evidence of other witnesses.

[5] The issue at the trial was whether certain funds on deposit in a joint bank account into which only one of the joint owners made deposits should pass to the surviving joint owner or to the estate of the deceased. The surviving joint owner of the account was Ms Shoultz, the defendant and now the respondent in this proceeding. Ms. Guerin, the plaintiff and appellant was the Estate Trustee and the sole beneficiary of the estate.

[6] The balance on deposit in the joint account was $9,000.00 at the time of the deceased’s death. Ms Shoultz made no contributions of her own into the joint account.

[7] Ms Guerin, the appellant was the spouse of the deceased but they had been separated for some years prior to the deceased’s death although they remained on good terms. The respondent, Ms Shoultz was the niece of the deceased.

[8] It was the position of Ms Guerin that the funds on deposit in the joint account should have rightfully passed to the estate of the deceased and been dealt with in accordance with the terms of his will.

[9] The legal issues for the trial judge were whether there was a presumption of resulting trust or a presumption of advancement of the funds held in the joint account. If the trial judge had found there was a resulting trust, the, surviving joint account holder, Ms Shoultz, would have been in a position as a trustee of the funds, holding them for the estate and thus for Ms. Guerin as the Estate Trustee and beneficiary of the estate.

[10] Deputy Judge Houlahan instead found that the presumption of advancement applied to the funds on deposit, thus becoming the property of the surviving joint account holder, Ms Shoultz and not of the estate.

[11] In addition to the trial judge’s findings of fact regarding the credibility and evidence of the various witnesses, he also made the following finding regarding the joint account:

“On the evidence before me, I find that the late Mr. Shoultz was aware of the consequences of creating a joint account with his niece. It was his intention that he alone would contribute to the account and Ms. Shoultz would provide her guidance and assistance in the payment of his expenses out of the account. I accept Ms. Shoultz’s evidence that her uncle never expected her to deposit into the account and actually allowed her to withdraw funds out of it without ever requesting her to enter into an arrangement to reimburse him.

I also find it very telling based on the evidence of Ms. Bellout of the Royal Bank that the nature and effect of the right of survivorship applicable to joint accounts was explained to him by a representative of the Royal Bank at the time the account was opened.

I therefore conclude that the disposition to be made of a claim where the transferee (the Defendant in this case) has clearly demonstrated the deceased joint owner’s intention was to create a true joint account with the right of survivorship and thereby rebutted the presumption of resulting trust as I find the Defendant has done, must be as stated by Rothstein, J. in Precore at paragraph 45 of his judgment[^2] where he wrote:

‘In cases where the transferor’s proven intention in opening the joint account was to gift withdrawal rights to the transferee during his or her lifetime (regardless of whether or not the transferee chose to exercise that right) and also to gift the balance of the account to the transferee on his or her death through survivorship, courts have had no difficulty finding that the presumption of a resulting trust has been rebutted and the transferee alone is entitled to the balance of the account on the transferor’s death.’ ”

[12] Counsel for the appellant has alleged a number of factual errors made by the trial judge. After reviewing the evidence and considering the submissions of counsel as well as reviewing the trial judge’s reasons, I am not satisfied that errors of fact that might have been made by the trial judge were palpable or overriding errors that would result in the reversal of his decision.

[13] I am satisfied that the trial judge did understand the tests in determining whether a resulting trust applied to the funds in the joint account or whether the presumption of advancement applied and he correctly applied the test.

[14] As such, I dismiss the Appellant’s Appeal.

[15] I find that the Respondent is entitled to her costs of this appeal. I have reviewed the parties’ respective Bills of Costs. Counsel for the Respondent is seeking fees and disbursements on a substantial indemnity basis of $11,110.48.

[16] The issues in this application were not complex issues of fact and law. Both counsel repeated arguments that had been made at trial and as such I award the respondent costs in the amount of $3,000.00.

Warkentin J.

Released: June 21, 2010

[^1]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.)

[^2]: Precore v. Precore, 2007 SCC 17, [2007] 1 S.C.R. 795 (S.C.C.)