ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-16706
DATE: 20130425
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Robert Blanchard
Applicant
(Responding Party)
– and –
Henry Wayne Bober and Linda Bober
Respondent
(Moving Party)
Joseph Gyverson, for the Applicant (Responding Party)
Owen Thomas, for the Respondent (Moving Party)
HEARD: April 22, 2013
Carey j.:
[1] This is an application pursuant to rule 20.04 by the respondents for summary judgment dismissing the applicant’s claim that the will of the deceased Rita Anne Seguin is null and void, having been obtained through undue influence and in the alternative that the applicant was a dependant of the deceased pursuant to Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”), for whom no adequate provision has been made.
[2] This matter was transferred from Toronto to Windsor with an order for a trial of the issues set out above with no restriction on summary judgment proceedings by the order of Conway J., June 11, 2011.
[3] Following the transfer to Windsor examinations were conducted of both witnesses to Rita Seguin’s will, solicitors G. Dewar Laing and Laurie Parent, and the applicant Robert Blanchard.
[4] The applicable standard on this motion is set out in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764.
Background
[5] Rita Seguin died on December 27, 2010 and in her will dated April 15, 2008, appointed Henry Bober, her son-in-law, as her sole executor and left her estate to her daughter Linda Bober as her sole beneficiary. The applicant who is almost 60 is the only other surviving child of Rita Seguin. He was placed in foster care along with two other siblings now deceased when he was two, before Linda now 57 was born. She was raised by her mother with her step-father Robert Seguin, primarily in Windsor. Her half-brother was raised in foster homes and never lived again with his mother.
[6] The parties disagree on the amount of contact the applicant had with the deceased; the applicant says there was regular contact since he was about 15. Linda Bober calls the contact “very sporadic and minimal” and says there were no more than four visits to Windsor over the years. He only visited the family cottage near to his residence when it was being readied for sale. She says he received property including a truck and wood chipper from it.
[7] The applicant’s material states that he has been on Ontario Disability Support Payment (“ODSP”) since around 1998 because of mental and emotional disorders and currently receives $1,030 a month. He says he recently suffered a second heart attack.
Undue Influence
[8] The applicant’s allegations of undue influence by Linda Bober are unsupported by any other material. He argues that Ms. Parent’s cross-examination raises issues that are relevant to his assertion but it does not contain any information that contradicts her assertion that the deceased had full capacity, was seen independently of her daughter and knew exactly how she wanted her affairs ordered.
[9] Her law associate, Mr. Laing’s, cross-examination is explicit that Rita Seguin was very specific that she wanted the applicant to get nothing, that he already had gotten enough and was a “freeloader”. A specific acknowledgement and direction were provided to the law firm that confirms her wishes (Exhibit E, Affidavit of Linda Bober).
[10] Section 13 of the Evidence Act, R.S.O. 1990, c. E.23, requires that in an action involving an estate no opposite party may obtain a judgment on uncorroborated evidence. There is no corroboration here. The care provided to the deceased by her daughter, especially after the death of her husband in 2007, does not raise a presumption of undue influence: Smith Estate v. Rotstein, 2012 ONSC 2117, [2010] O.J. No. 1527 (S.C.J.). There is nothing in the material beyond the applicant’s belief and uncorroborated statements he said were made to him by the deceased. There is no evidence whatsoever of actual coercion as required: see Scott v. Cousins, [2001] O.J. No. 19 (S.C.J.).
[11] Counsel for Robert Blanchard advanced the argument that as Linda Bober conveyed the $5,109.19 proceeds of the Manulife G.I.F. (Death Benefit Guarantee) (Tab 2F – supplementary moving party’s record) according to her mother’s wishes, that this evidenced a wish to benefit the applicant contrary to that in the will and supported the claim of undue influence.
[12] In fact the deceased’s wish in this regard in respect of the applicant Blanchard is expressed in para. 39 of Linda Bober’s affidavit (Tab 2 – supplementary moving party’s motion record). She says her mother advised her to give the proceeds to the applicant “or he’ll never leave you alone”. As the sole beneficiary of this G.I.F. was Linda Bober, it was only because of her that Robert Blanchard knew about its existence or received the money. Far from indicating a contrary view to that expressed in Rita Seguin’s will, and proof of undue influence by Linda Bober, it shows Linda Bober’s intention to follow her mother’s independent mind, even when it resulted in a reduction of the total money to be received by her from her mother’s estate. Her intention to provide the applicant a further gift prior to his commencing this litigation, is consistent with her behaviour and referenced in the correspondence that accompanied the cheque to Robert Blanchard.
Dependent Claim
[13] Section 57 of the SLRA defines dependant. It is clear that the deceased was under no legal obligation to support the applicant and I find no evidence that the deceased was providing ongoing support to the applicant at the time of her death or at any time for that matter. In his affidavit the applicant swore that he received $2,000 to $3,000 a year from the deceased. On cross-examination he only recalled five times when he received money from his mother – Christmas, his birthday, and three times for gas money when he visited her. In referring to the gas money he said she insisted because “I never give you nothing.” The only cheque he produced was for $1,000 and signed by Linda Bober, her mother’s power of attorney, as a replacement for an earlier $1,000 cheque for Christmas that later turned up.
[14] According to Linda Bober he cashed the earlier cheque with her permission after it arrived subsequent to her mother’s death. There is no evidence here that the deceased was supporting the applicant and some evidence in his emails that he was running a firewood business, a camp for seniors, and owned property he was planning to build on.
[15] There is no basis in evidence that the applicant was at any time a dependant of the deceased.
[16] On both the issue of undue influence and dependants’ relief, I am fully satisfied that there is no genuine issue requiring a trial.
[17] Order to go pursuant to applicant’s notice of motion dated September 7, 2012, at paras. (i) a – d and (ii) e – g.
[18] If costs are requested and cannot be agreed upon, I will receive written submissions within 30 days of the release of this endorsement.
Original signed “Justice Carey”
Thomas J. Carey
Justice
Released: April 25, 2013
COURT FILE NO.: CV-11-16706
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Robert Blanchard
Applicant
(Responding Party)
– and –
Henry Wayne Bober and Linda Bober
Respondent
(Moving Party)
REASONS FOR JUDGMENT
Carey J.
Released: April 25, 2013