Reasons for Judgment

Court File No.: CV-23-32935-ES
Date: 2025-02-07
Ontario Superior Court of Justice

Between:
Martin Douglas Atkins and Tammy Christine Drazilov, Estate Trustees of the Estate of Christine Black, also known as Christine Dorothy Black
Applicants
– and –
Bruce Albert Chamberlain
Respondent

Appearances:
Elizabeth A. Papp, for the Applicants
Dean Clark, for the Respondent

Heard: October 1, 2024

Justice: Jacqueline A. Horvat

Overview

[1] On January 13, 2023, Christine Black, also known as Christine Dorothy Black (“Christine”), died at the age of 75. Martin Douglas Atkins (“Martin”) and Tammy Christine Drazilov (“Tammy”) are Christine’s children and her Estate Trustees.

[2] On December 14, 2023, Martin and Tammy commenced this application in their capacities as Estate Trustees seeking a determination of whether certain accounts, and the funds, investments, and other deposits therein, that were jointly held by Christine and the respondent, Bruce Albert Chamberlain (“Bruce”), who is Christine’s brother, are assets of the Estate and form part of the residue of the Estate for distribution to the residual beneficiaries.

[3] There was no dispute between the parties that the Joint Accounts, as defined below, were presumptively impressed with a resulting trust on Christine’s death and that Bruce had the burden on a balance of probabilities to rebut that presumption. In my view, Bruce has failed to rebut the presumption of a resulting trust and failed to establish that the proceeds of the Joint Accounts were the subject of a valid gift made by Christine to him. As a result, the proceeds of the Joint Accounts are assets of the Estate and form part of the residue of the Estate for distribution to the residual beneficiaries.

Evidence and Positions of the Parties

[4] In support of the Estate’s application, Martin filed three affidavits. In response, Bruce; Bruce’s wife, Linda Brydges (“Linda”); and Sue Chechak (“Sue”), Christine and Bruce’s sister, each filed an affidavit. Each of the affiants were cross-examined.

Background

[5] Martin says that Christine exhibited signs of forgetfulness, confusion, uncertainty, paranoia and overall distrust of people beginning in about 2013 until her death. The Estate Trustees rely on Christine’s medical records to establish Christine’s declining cognitive abilities from 2013 until 2023. The medical records also make it clear that Tammy attended nearly all of Christine’s medical appointments with her.

[6] Following a serious fall that Christine had in September 2016, Bruce and Linda regularly visited Christine and assisted her with things like medical appointments, cleaning, shopping, laundry, and yard work. Bruce and Linda say that Martin and Tammy did not provide any meaningful ongoing care or assistance to their mother following her fall.

[7] In December 2019, Christine’s doctor noted that there was a rapidity of decline in Christine that year and based on her trajectory, if she had not already developed mild dementia, she would soon do so. Also in 2019, Christine’s longtime financial professionals noticed changes in Christine. One requested that her children begin attending meetings with her as Christine was becoming confused and uncertain when dealing with her banking and investments, while Christine’s accountant suggested that she consolidate her multiple accounts and consider updating her will. During his cross-examination, Bruce acknowledged that he noticed that Christine was declining and had some confusion in 2019.

Spring 2020

[8] In Spring 2020, Martin says that a meeting was held between him, Tammy and Bruce to discuss consolidating Christine’s bank accounts on the recommendation of Christine’s accountant. Given that both Martin and Tammy worked, Bruce advised that he could drive Christine to the various banks to assist with the consolidation. Martin says that the following was agreed to at this meeting:

(a) Bruce would drive Christine to the various banks to assist with the consolidation of accounts;
(b) All accounts would be transferred to the Toronto-Dominion Bank in LaSalle, Ontario with Christine’s account manager who had managed Christine’s accounts for many years; and
(c) At Bruce’s suggestion, Bruce would be added to one of Christine’s bank accounts and this account would be used for Christine’s care, living expenses and enjoyment of life expenses while Christine was living with Bruce at his home. Either Tammy or Martin would also be added to the account, and it would be established in the amount of $150,000 at CIBC.

[9] Bruce denies that he met with Martin and Tammy in the Spring of 2020 to discuss the consolidation of Christine’s assets. He also denies that he agreed to drive Christine to the various banks to assist with the consolidation of her accounts and that he suggested that he be added to one of Christine’s accounts for banking convenience.

[10] In 2020, Christine began staying at Bruce and Linda’s home for four days per week. Bruce assisted Christine with paying her bills during this time. Linda says that she was present for conversations when Christine spoke about adding Bruce to her CIBC account to help her pay bills. Linda adds that Christine told Bruce that if there was any money in her CIBC account on her death, he would be entitled to that money. Linda claims that Christine told Bruce that Tammy was angry with Christine because she did not have full control of her assets and Tammy would likely take Bruce to court to recover the money in the joint account. No particulars such as date, location, and other individuals present were given regarding these discussions.

The Creation of the Joint Accounts

[11] On April 23, 2020, Bruce drove Christine to a CIBC branch in LaSalle. During this visit to the branch, Bruce was added jointly to two of Christine’s existing accounts: account number 00182/0840335 with opening balance of $26,442.00; and account number 06382/8741131 with opening balance of $251,504.03 (collectively, the “Joint Accounts”).

[12] There is no dispute that the funds in the Joint Accounts originated only from Christine’s money. The only contribution that Bruce made to the Joint Accounts was a deposit of $1,500.00, which originally was paid out of the one of the Joint Accounts to Bruce for “wages” related to his care of Christine.

[13] Bruce’s evidence regarding the Joint Accounts is as follows:

(a) Christine made the appointment with the LaSalle CIBC branch;
(b) creating the Joint Accounts is what Christine wanted to do;
(c) at the LaSalle CIBC branch on April 23, 2020, Bruce and Christine were placed in separate offices;
(d) there was no documentation waiting for Christine and Bruce when they attended the LaSalle CIBC branch;
(e) during his cross-examination, Bruce speculated that Christine chose the LaSalle CIBC branch because he and Christine were at a nearby grocery store three or four months before April 23, 2020 and she withdrew some money from that branch;
(f) the Joint Accounts were created to avoid probate fees upon Christine’s death;
(g) the Joint Accounts were not created for convenience but rather because Christine intended that whatever was left in the Joint Accounts after her death was for him;
(h) Christine knew that the Joint Accounts would pass to him by right of survivorship on her death;
(i) Christine knew that Bruce could empty the Joint Accounts at any time;
(j) Christine told Bruce that if there was any money left in the Joint Accounts on her death, Bruce would be entitled to it;
(k) Martin and Tammy were aware of the Joint Accounts as well as the amount of the funds, and neither voiced an objection nor any concerns about Christine’s intentions or mental acuity;
(l) Bruce had complete control and use of the funds in the Joint Accounts from the time the Joint Accounts were created; and
(m) Christine did not access the funds in the Joint Accounts without Bruce being with her.

[14] There is no evidence before me concerning the LaSalle CIBC branch visit on April 23, 2020, apart from Bruce’s evidence. No documents were produced relating to the Joint Accounts, and no employees from the LaSalle CIBC Branch provided an affidavit. There is no evidence before me that would point to why Christine and Bruce went to the LaSalle CIBC branch to create the Joint Accounts. Bruce says he went to CIBC to retrieve a copy of the Joint Accounts documentation but was told the bank did not have it or could not find it. And there is no evidence before me, independent of Bruce’s, that corroborates Bruce’s evidence concerning what Christine knew, intended, or said to him concerning the Joint Accounts.

[15] The Estate’s evidence regarding the Joint Accounts is as follows:

(a) Christine had always dealt with a CIBC branch on Huron Church Road in Windsor, Ontario and not the LaSalle CIBC branch;
(b) any account to which Bruce was to be added jointly should also have had Martin or Tammy added jointly per their agreement;
(c) any account to which Bruce was to be added jointly was to be used for Christine’s expenses and care while she was in Bruce’s care; and
(d) Christine did not know anyone at the LaSalle CIBC branch, and they would not know her or about her cognitive decline.

[16] The Estate also argued that Christine did not have the capacity in April 2020 to fully understand what she was doing with the Joint Accounts as her cognitive state declined to a diagnosis of dementia and, at a minimum, she exhibited signs of forgetfulness and confusion with no memory recall.

[17] Around the time that the Joint Accounts were opened, Christine also opened accounts with Martin and Tammy as joint account holders. Bruce attended with Christine, Martin and Tammy to open these accounts at Scotiabank and TD Canada Trust. No explanation was offered as to why Martin and Tammy were not present when Bruce opened the Joint Accounts with Christine at the LaSalle CIBC branch.

Christine’s Will

[18] In April 2020, Christine contacted the lawyer she had since 2008 regarding updating her Will. Christine did not request changes to her powers of attorney, and she did not amend her Will to reflect any intentions with respect to Bruce, the Joint Accounts, or any intended joint accounts with Bruce.

[19] On May 4, 2020, Christine executed her Last Will and Testament (“Will”). Christine names Martin, Tammy and Bruce as her estate trustees. The Will bequeaths funds to each of Christine’s grandchildren and leaves the residue of her Estate to be shared equally between Martin and Tammy. Neither the Joint Accounts nor the accounts opened with Martin and Tammy as joint account holders are mentioned in Christine’s Will. Apart from being named as an estate trustee, the Will does not mention Bruce.

[20] Bruce says in his affidavit that he was present for this meeting and that Christine’s lawyer told Christine not to include Bruce in her Will but instead to take care of him on her own. Bruce says that Christine responded that she had already done so by adding Bruce to the Joint Accounts. There is no evidence supporting Bruce’s claims that he was present for Christine’s conversation with her lawyer. It was open to Bruce to obtain the evidence of Christine’s lawyer by a r. 39.03 examination to corroborate his recollection of the meeting and Christine’s statements; however, he did not do so: Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[21] Martin includes in his affidavit an email from Christine’s lawyer to Christine explaining that “only Christine will be allowed into the office for signing” and if someone drives her to the office, “they will have to wait outside for her.”

Events Following the Creation of the Joint Accounts

[22] In May 2020, Bruce took Christine to the Royal Bank to close her accounts and investments. These funds (approximately $182,000) were deposited to one of the Joint Accounts. Martin says that these funds were to be transferred to a TD account. Bruce says that these funds were deposited into the Joint Accounts pursuant to Christine’s wishes. There is no evidence concerning the circumstances of this transfer, why the transfer was made, or what Christine’s intentions were with these funds. And no independent evidence corroborates Bruce’s position.

[23] At some point in the spring or early summer of 2020, Martin learned that Bruce was added to the Joint Accounts.

[24] On July 17, 2020, Christine’s doctor noted that she had progressed to mild dementia “which is most likely an Alzheimer subtype and now seems to be progressing further”. Her doctor suggested that Christine be moved to a retirement home.

[25] On August 24, 2020, Bruce took Christine to his lawyer to execute new powers of attorney for property and personal care, removing Tammy and adding Bruce as a joint Power of Attorney with Martin. Bruce says that this was in accordance with Christine’s wishes. There is no evidence, apart from Bruce’s, concerning the circumstances surrounding the execution of the new powers of attorney or why Christine used Bruce’s lawyer rather than her own. No evidence concerning the terms of the retainer or who paid the invoice for the legal work was produced.

[26] About six months after Bruce was added to the Joint Accounts, Bruce says that he was present for a conversation during which Martin and Tammy asked Christine to remove Bruce from and add them to the Joint Accounts. Bruce says that Christine refused to do so because she did not trust Tammy. Bruce added that Christine told him that she refused to add her children’s names to all her bank accounts because she did not support Tammy. Apart from Linda saying in her affidavit that Christine did not trust Tammy, there is no evidence that supports Bruce’s claims.

[27] Martin says that at some point in either 2020 or 2021, Christine wanted to add Martin to the Joint Accounts; however, she was told by CIBC that she could not do so without Bruce being present. Martin also says that Christine was upset when she learned that she could only withdraw $100 without Bruce being present. There is no evidence that supports Martin’s recollection.

[28] On August 19, 2021, Christine’s doctor reported in writing that Christine was unable to manage her financial matters independently.

[29] In December 2021, Bruce took Christine to a TD bank branch to empty her safety deposit box. Martin held jointly the safety deposit box with Christine. Bruce says that this is when Christine learned that Tammy obtained a medical diagnosis that Christine was incompetent to deal with her finances. Bruce and Linda say that Tammy did this after Christine and Tammy had a falling out after Christine told Tammy that she was not removing Bruce’s name from the Joint Accounts and that she would not allow Tammy to take over her life. Apart from the affidavit evidence of Bruce and Linda, there is no evidence to support this claim.

[30] Martin says that he asked Bruce to return the contents of the safety deposit box to him, but Bruce refused to do so. Bruce says that he took Christine to empty the safety deposit box at her request and because Christine was estranged from Martin and Tammy. There is no independent evidence in the record supporting this alleged estrangement. And there is no evidence, apart from Bruce’s, regarding the safety deposit box or Christine’s intentions.

[31] On February 16, 2022, KPMG wrote to Christine’s lawyer to advise that they were working with Bruce “who is acting as [Christine’s] power of attorney.”

[32] On March 24, 2022, Christine’s doctor noted that when asked about her powers of attorney, Christine was not aware if she had powers of attorney or who they were.

[33] On June 2, 2022, Christine executed a codicil to her Will appointing Martin and Tammy as Estate Trustees and removing Bruce.

[34] On July 8, 2022, Martin’s lawyer wrote to Bruce’s lawyer requesting a certified copy of the Power of Attorney for Property.

[35] On July 10, 2022, Martin wrote to Bruce stating: “I am also asking again for statements from the CIBC Acct for the last 3yrs and need a detailed amount of what mom’s care is costing us[.] This is my 3 request and it has been unanswered and information has not been provided.”

[36] On July 11, 2022, Bruce’s lawyer responded to Martin’s lawyer to advise that Bruce and Christine “share a joint bank account” and “the joint bank account is used to access funds spent by [Bruce] for the benefit of [Christine].” The letter also states that Bruce “is aware that [Christine] has been diagnosed as being mentally incompetent.” This letter caused Martin to become concerned with what Bruce was doing with the money in the Joint Accounts.

[37] On July 13, 2022, Martin wrote to Bruce, copying Tammy, requesting the Joint Account statements, an outline of Christine’s care costs when she is out of her home, and the return of the items in the safety deposit box.

[38] On July 25, 2022, Bruce withdrew $120,000.00 and $81,500.00 from account number 06382/8741131 and deposited the amounts into separate investments, including $81,500 into a Tax-Free Savings Account in his name only. Linda, Bruce’s wife, was the designated beneficiary. Bruce says this was done on advice from financial advisors at the LaSalle CIBC branch and that he did not know at the time that Christine’s doctor determined that she was unable to manage her financial affairs. This is Bruce’s position in his affidavit despite the July 11, 2022 letter in which Bruce’s lawyer advises Martin’s lawyer that Bruce is aware that Christine was diagnosed as being mentally incompetent.

[39] Again, there is no corroborating evidence for Christine’s instructions or intentions. There is also neither evidence before the court from the financial advisors at the LaSalle CIBC branch nor an explanation as to whether Christine was aware of and approved Linda as a beneficiary.

[40] On September 8, 2022, Christine’s doctor noted that she escalated to Alzheimer’s dementia, moderately severe functional stage.

[41] On September 29, 2022, Martin’s lawyer wrote to CIBC requesting information about the Joint Accounts, including current balances and statements of all activity in the accounts commencing January 1, 2020. CIBC did not provide the requested information.

[42] On November 7, 2022, Martin’s lawyer wrote to Bruce’s lawyer requesting the Joint Account information and a list of monthly expenses incurred caring for Christine. Bruce’s lawyer did not respond to the request.

[43] On November 23, 2022, Martin’s lawyer again wrote to Bruce’s lawyer requesting information about the Joint Accounts and an accounting by Bruce regarding Christine’s care expenses. This letter attaches an October 28, 2022 letter from Christine’s family doctor stating that Christine suffers from dementia and is deemed incompetent to make medical and personal/finance decisions. Again, Bruce’s lawyer did not respond.

[44] In November 2022, Martin and Tammy took over the primary care of Christine from Bruce.

[45] Martin says that he continually requested that Bruce report to either him or Tammy about the funds placed in the Joint Accounts and an accounting of expenditures. Bruce refused to provide this information. Email correspondence in the record corroborates that Martin sought this information from Bruce. Bruce does not explain why he did not provide the information to Martin. In his affidavit, Bruce denies that Martin made these requests.

[46] On November 29, 2022, Bruce’s lawyer wrote to Martin’s lawyer stating that the Public Guardian and Trustee should be engaged to advocate for Christine if she was mentally incapacitated.

[47] On January 13, 2023, Christine passed away.

[48] On January 27, 2023, Martin and the Estate’s lawyer wrote to CIBC advising of Christine’s death and requesting that the Joint Accounts not be distributed to Bruce. The Estate’s lawyer also wrote to Bruce’s lawyer on January 27, 2023, stating that the funds in the Joint Accounts were those of the Estate.

[49] On January 30, 2023, the Estate’s lawyer wrote to CIBC requesting information regarding the accounts and investments that Christine held with CIBC.

[50] On February 21, 2023, CIBC wrote to the Estate’s lawyer to advise that as of January 13, 2023, Christine held the following with CIBC:

• Joint chequing account #00182/0840335 with a balance of $16,766.44 with Rights of Survivorship
• Joint Savings account #06382/8741131 with a balance of $91,054.53 with Rights of Survivorship
• Retirement Income Fund #8100174 with a balance of $13,938.62 with designated beneficiaries
• Retirement Savings Plan #17701632 with a balance of zero with designated beneficiaries

[51] On July 20, 2023, the Estate’s lawyer wrote to Bruce’s lawyer requesting that Bruce attend at CIBC to execute the documentation necessary to pay the funds from the Joint Accounts to the Estate and again requesting an accounting of the Joint Accounts. Bruce’s lawyer again did not respond.

[52] On August 15, 2023, the Estate’s lawyer left a voicemail for Bruce’s lawyer repeating her request for an accounting and that Bruce attend CIBC to execute documentation.

[53] On August 17, 2023, Bruce’s lawyer finally responded by way of email advising that Bruce would not sign over the funds in the Joint Accounts and that “the evidence is overwhelming” that Christine intended for Bruce to be entitled to these funds upon her death.

The Evidence of Linda and Sue

[54] Both Linda and Sue indicated in their affidavits that Christine did not trust her daughter Tammy and that Christine was not happy about her daughter and grandchildren moving in with her. In response, Martin points to Christine’s medical records that show that he and Tammy were present with Christine for nearly all her medical appointments and cared for her until her death.

[55] Sue, who resides in Port Dover, also filed an affidavit in which she took the position that Bruce and Linda were better caregivers for Christine than Tammy was. Sue also attested to the close relationship between Bruce and Christine. There is also much speculation and irrelevant information in her affidavit that, in my view, does not assist in supporting Bruce’s position with respect to the Joint Accounts.

[56] With respect, Linda’s evidence should be viewed with caution given that she is Bruce’s wife and has an interest in seeing the Joint Accounts declared a gift to Bruce. Further, her evidence does not provide specific details of conversations with Christine or any independent evidence that supports Bruce’s position that Christine intended to gift the Joint Accounts to Bruce.

Law and Analysis

[57] The issue before me is: are the funds in the Joint Accounts an asset of the Estate for distribution pursuant to the Will or are they a gift to Bruce?

[58] The parties agree that there is a presumption of a resulting trust over the Joint Accounts in favour of the Estate and that Bruce has the onus of showing, on a balance of probabilities, that Christine intended the Joint Accounts to be a gift to him: see Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 24-26, 43 and 53; Madsen Estate v. Saylor, 2007 SCC 18, [2007] 1 S.C.R. 838, at para. 17; Burns Estate v. Mellon, 48 O.R. (3d) 641 (C.A.), at paras. 4 and 17-21; Johnston v. Song, 2018 ONSC 1005, at para 23; McLear v. McLear Estate, [2000] O.T.C. 505, at paras. 26, 38 and 40-41. The legal principles applicable to the analysis are as follows:

• Equity assumes bargains, and not gifts: Burns Estate v. Mellon, 48 O.R. (3d) 641 (C.A.), at para. 4;
• Section 13 of the Evidence Act, RSO 1990, c E.23, requires Bruce to corroborate his evidence “by some other material evidence” and bars him from a finding in his favour based on his evidence alone;
• Bruce must positively prove that Christine created the Joint Accounts with a donative intention: MacIntyre v. Winter, 2021 ONCA 516, 158 O.R. (3d) 321, at para. 25;
• The standard of proof on a balance of probabilities requires “clear, convincing and cogent” evidence: MacIntyre, at para. 25, citing F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 46. Absent clear documentation, statements to third parties, or conduct from the transferor, the presumption of a resulting trust will not be defeated: Madsen Estate, at paras. 17-18;
• The rights of survivorship, both legal and equitable, vest when the joint account is opened, and the gift of those rights is inter vivos in nature: Pecore, at para. 48;
• The court must weigh the evidence relating to the actual intention of Christine in order to determine whether the presumption has been rebutted: Pecore, at paras. 44, 55;
• Evidence of Christine’s intentions that arise subsequent to the transfer should not be automatically excluded, but the court must assess the reliability of this evidence and determine what weight it should be given, guarding against evidence that is self-serving or that tends to reflect a change in intention. And such evidence must be relevant to the intention of Christine at the time of the transfer: Pecore, at para. 59; Andrade v. Andrade, 2016 ONCA 368, 131 O.R. (3d) 532, at para. 63; MacIntyre, at para. 41;
• The bank documents that set up a joint account are an agreement between the account holders and the bank as to legal title. They are not evidence of an agreement between account holders as to beneficial title: Pecore, at para. 60;
• Evidence of use and control of the funds in the joint accounts may be of marginal assistance only and, without more, will not be determinative: Pecore, at para. 63; Madsen Estate, at para. 19;
• The granting of a power of attorney to Bruce will not be determinative, and courts should use caution when relying upon it: Pecore, at para. 68;
• The finding of a gift fully rebuts the presumption of unjust enrichment. The gift is the juristic reason for the enrichment: Johnston v. Song, 2018 ONSC 1005, at para. 33;
• The nature of a joint account is such that the balance will fluctuate over time. The gift in these circumstances is the transferee’s survivorship interest in the account balance at the time of the transferor’s death, not to any particular amount: Pecore, at para. 50; and
• A gift is a voluntary transfer of property to another without consideration, with the essential elements being: (i) capacity of Christine to make a gift; (ii) intention of Christine to make a gift; (iii) completed delivery of the subject matter of the gift to or for Bruce; and (iv) acceptance of the gift by Bruce: Leclerc v. Rocheleau, 2016 ONSC 6396, at para. 20; Johnston, at para. 26.

[59] For the following reasons, I find that Bruce has not discharged his onus on a balance of probabilities to rebut the presumption that the proceeds of the Joint Accounts are the subject of a resulting trust and are instead a gift.

[60] First, a note about Christine’s capacity. A review of the medical records relied on by the Estate shows that Christine’s doctors recorded a steady decline in her cognitive abilities and capacity from at least the time of her fall in 2016 until her passing. Based on the evidence before me, however, in my view, it would not be appropriate for me to make any findings or conclusions with respect to when or if Christine may have lost her capacity to make decisions, specifically decisions related to her finances or bank accounts. A fuller record would be required to make those findings. In any event, a finding that Christine did or did not have the capacity to make decisions regarding the Joint Accounts would not change my decision and would not assist Bruce in rebutting the presumption of a resulting trust.

[61] Turning to the analysis, I am not satisfied that Bruce has provided sufficient corroborating evidence, as required by s. 13 of the Evidence Act, to rebut the presumption of resulting trust and to show that Christine intended the funds or the survivorship interest in the Joint Accounts to be a gift to him. There is no evidence, apart from Bruce’s own evidence, that Christine’s intention with the creation of the Joint Accounts was to create a gift for Bruce.

[62] The record lacks any evidence, apart from Bruce’s, as to Christine’s intention with respect to the Joint Accounts, both at the time the Joint Accounts were created and at any point following. It is not even clear to me that Christine was aware of the creation of the Joint Accounts, the deposit into the Joint Accounts in May 2020 or the withdrawals and deposits into investments in July 2022, let alone that she approved them or intended them to be gifts to Bruce. No documents were produced relating to the creation of the Joint Accounts and no independent evidence or witness from the LaSalle CIBC branch was produced that could speak to anything about the day on which the Joint Accounts were created. Similarly, there is no evidence that speaks to the circumstances surrounding the closing of the Royal Bank accounts in May 2020, the withdrawals from the Joint Accounts on July 25, 2022, or the deposits into investments with Linda as the sole beneficiary.

[63] It made good sense to create an account that Bruce could easily access to cover Christine’s expenses when Christine was with him and in his care. But there is no evidence that assists in understanding what Christine’s intention was with respect to the Joint Accounts and any funds that would remain in the Joint Accounts upon her death. There is no evidence, apart from Bruce’s, to suggest that Christine ever even contemplated what would happen to the remaining funds in the Joint Accounts, nor whether she even contemplated that there may be remaining funds in the Joint Accounts on her death. The Joint Accounts could have been completely drained within her lifetime depending on her needs and expenses. There is a void in the record on all these points.

[64] Bruce acknowledges that he attended at the banks with Martin and Tammy when joint accounts were created with them and Christine as the account holders. But Bruce offers no explanation as to why at least one of Martin or Tammy were not present at the time of the creation of the Joint Accounts or why he did not report to either of them of the fact of the creation of the Joint Accounts, the transfer into the Joint Accounts in May 2020, or the investments that were created from funds in the Joint Accounts in July 2022. This lack of transparency and even secrecy, in my view, creates suspicion around these events. If it was Christine’s intention to gift to Bruce the funds in the Joint Accounts and she had the capacity in Bruce’s mind to make these decisions, it would be reasonable to inform Martin and Tammy of the creation of the Joint Accounts in these circumstances.

[65] Bruce argues that since Christine’s Will did not mention the accounts with Martin and Tammy as joint holders, this explains why there is no mention of him or the Joint Accounts in the Will. After bequeaths to each of her grandchildren, the Will leaves the residue of Christine’s estate to be divided equally between Martin and Tammy. There would be no need to mention the accounts held jointly with Martin and Tammy in the Will given that the residue of the estate is left to them to share equally. There would be reason, however, to include Bruce and the Joint Accounts in the Will had Christine intended for the Joint Accounts to be a gift to Bruce.

[66] Bruce states that he was present for conversations between Christine and Christine’s lawyer on the execution of the Will and that Christine’s lawyer told Christine not to include Bruce in her Will but instead to take care of him on her own. Bruce goes on to say that Christine responded that she had already done so by adding Bruce to the Joint Accounts. Again, there is simply no independent evidence that supports Bruce’s recollection or position. It was open to Bruce to examine Christine’s lawyer, but he did not do so. I can only conclude that Bruce’s recollection is not an accurate one.

[67] On whether the Joint Accounts were created as a gift to Bruce, the totality of evidence does not persuade me that Christine created the Joint Accounts with the requisite intent that they be a gift to Bruce. The complete lack of evidence surrounding the Joint Accounts makes it impossible to come to any other conclusion, and the argument that the Joint Accounts were a gift to Bruce must fail. In summary, there is a complete void in the evidence as to the circumstances: (i) under which the Joint Accounts were created; (ii) of the closing of the Royal Bank Accounts in May 2020; (iii) regarding the July 25, 2022 transfers out of the Joint Accounts; and (iv) under which the money was invested in July 25, 2022 and Linda was made the sole beneficiary. In my view, based on the evidentiary record before me, Bruce has failed to rebut the presumption of a resulting trust.

[68] When the Joint Accounts were created, a resulting trust was formed whereby Bruce held the funds in trust for Christine and subsequently her Estate. Bruce must provide an accounting, within 90 days of this judgment, for the funds, including those transferred into the Joint Accounts in May 2020 and those funds invested in July 2022, and reimburse the Estate any money not used directly for the care of Christine.

Costs

[69] The applicants submitted a costs outline dated September 19, 2024. The applicants may deliver updated costs submissions if they wish of no more than five pages within 10 days. Responding submissions of no more than five pages may be delivered by the respondent within 10 days following. Any reply submissions of no more than three pages shall follow within five days thereafter.

Order

[70] These findings should allow the parties to agree as to the form and content of a judgment. I will remain seized to deal with any outstanding issues, including the accounting of funds.

Jacqueline A. Horvat