ONTARIO

SUPERIOR COURT OF JUSTICE

SIMCOE COURT FILE NO.: 133-09
DATE: 2013-01-17

BETWEEN:

Jae Sun Park and Keun Jong Park
Plaintiffs

– and –

Hae Kyung Park and Hae Kyung Park, Estate Trustee for Young Bin Park
Defendants

Joan Mouland, for the Plaintiffs

Howard Shankman, for the Defendants

HEARD: November 19, 20, 21,
22, 23, 2012

The Honourable Justice c. a. tucker

reasons for judgment

overview

[1] Young Bin Park “Mr. Park” married Jae Sun Park “Mrs. Park” in 1950 in Korea. Five children were born of the marriage, the eldest being the defendant, Hae Kyung Park, “Pamela”, and the youngest being the plaintiff, Kuen Jong Park, “Andrew”. Mr. Park died on July 3, 2011, after this lawsuit was commenced. Mrs. Park is in a long-term care facility and was unable to testify at her trial given her medical condition. The issue here is a contest between Pamela and Andrew for ownership of their parents’ home.

[2] On November 29, 1990, Mr. Park and Mrs. Park purchased a home at 110 Ernest Avenue, Toronto, “110 Ernest”. Title was taken in the names of Mr. Park, Mrs. Park and Andrew as joint tenants. A few weeks prior to his death Mr. Park severed this joint tenancy by a conveyance to himself as a tenant-in-common. By his will he left his entire estate to Pamela.

ISSUES

[3] (i) Should the May 13, 2011 transfer by Mr. Park be set aside on the basis that he lacked the capacity to execute this deed or that he had been unduly influenced by Pamela to execute the deed?

(ii) Are the plaintiffs entitled to be paid occupation rent for 110 Ernest by Pamela?

(iii) Should Mrs. Park’s belongings be returned to her? This issue is now moot given that she no longer requires furniture. As such, I will not deal with it at all in my decision.

(iv) Did Andrew hold his interest in 110 Ernest as trustee for his parents; or, in the alternative, did the actions of the joint tenants result in a severing of the joint tenancy and the creation of a tenancy in common?

THE EVIDENCE

[4] Andrew said after his parents and his brother and he arrived in Canada in 1982 to join his sisters who already resided here, all the family worked long hours. The money that they earned was pooled together, other than for individual necessities, and distributed by his mother for family needs. He and his sisters, who testified for him, spoke of long hours of hard work in the family businesses; being first a convenience store and then a doughnut shop. Andrew did not like his father. He described him as an irresponsible person who drank too much, who was selfish, and who liked gourmet foods. He said Mr. Park only worked an hour a day at the doughnut shop making muffins. His description of his father’s personality and his work habits was echoed by the siblings who supported his claim. Andrew said in 1987 Pamela’s husband gambled away the family money, putting the family financially back to 1982.

[5] Andrew described working long hours at the doughnut shop as well as working at the Korean Trading Company and contributing all his earnings to the family. Andrew said he gave $1,800 a month from this employment income to his mother.

[6] Andrew testified in great detail the hours he worked to support the family. He said he had to be the man of the house given that his father had abdicated the role. He took a year away from school and saved $10,000, which he gave to his father to pay off the chattel mortgage on the doughnut shop. With the family debt reduced, his father was able to hire someone to replace him at the store so that he could attend college. He was able to complete his undergraduate degree and was accepted for a master’s degree, but family circumstances required him to work. He said he forever put his education on hold as a result. In 1987, he gave his father another $7,000. None of these amounts were repaid to him.

[7] Pamela had moved to Canada in 1975 or 1976. She worked the day shift in the doughnut store while Mrs. Park babysat her child, Grace. Twenty thousand dollars of the gambled money was repaid to the family by Pamela’s husband’s family according to Andrew. His other sisters Christine and Ellen worked in the family doughnut shop as well.

[8] In 1990, Mr. and Mrs. Park signed an agreement of purchase and sale to buy 110 Ernest. Andrew together with his parents held title in joint tenancy. This was done with the expectation, he said, that he would eventually inherit the property. The “family promise” that he would eventually become the owner of the home was made in recognition that he had given up his personal life for the family good. In addition to his earnings, he said he contributed his future in-laws wedding gift of $16,000 towards the $100,000 down payment of the home. He said he also made other financial contributions but these financial contributions were not documented until 1993 when his wife began to do so. According to the material filed by him, from 1993 until approximately 1995 Andrew made payments of approximately $500 a month to his parents. He also gave them approximately $5,000 for renovations to the doughnut shop and in 2006 he paid approximately half of a $6,000 roof repair to the home. He did not pay any other expense directly; he simply provided funds to his mother on a regular basis.

[9] After his mother collapsed in 2006 due to “malnutrition”, all the siblings, except for Pamela, decided to hire a nurse to care for her for a few hours each day. This service was cancelled by Pamela and Mr. Park a few months later. In 2008, his father requested Andrew remove his name from the title to 110 Ernest. Mr. Park said it would reduce the amount of property taxes. His father also said there was no reason for him to be on title. Andrew and his father never communicated again. He learned third hand of his father’s death and the severance of the joint tenancy.

[10] In retaliation for his suspicion that Pamela was behind the transfer request made by his father, Andrew demanded rent from her for occupation of the home. Pamela demanded that he release his interest in the home. She also demanded that he and her other siblings not deal with their mother without Mr. Park or her present. Andrew described his mother as under “house arrest” while he obtained orders against Pamela “returning” some $39,000 from his mother’s funds to his mother and a further $10,600, which is being held pending the outcome of this trial.

[11] On June 27, 2009, Mrs. Park moved from 110 Ernest; first, residing with William; then, moving to her own apartment; and finally, into long term care.

[12] Andrew testified, as did his brother, William, and his two sisters, Ellen and Christine, that his father had no friends in Canada. Mr. Park’s only social contacts were his family. He could not speak English. He could read it with assistance and he could write cheques.

[13] It was Andrew’s evidence, although he moved to Sault St. Marie in 1993, that his mother cooked all the meals and that his father drank at breakfast, lunch and supper. He did acknowledge that on a doctor’s advice Mr. Park had changed that habit.

[14] Andrew acknowledged that his tuition at university was paid in part from family funds. He lived with his parents until 1993 and he did not pay rent. Other than mentioned above, he paid no bills directly for the purchase of 110 Ernest, nor did he pay legal fees or land transfer taxes. He did not pay taxes, utilities or insurance after the purchase of the home some 22 years ago. He denied that he received a gift of one third of the purchase price of $270,000 saying instead it was a “family promise” that eventually he would receive the home. He did not wish to discuss his parents’ wills with them; he just wanted them to live comfortably in the house and when they died, to inherit it.

[15] Andrew acknowledged that rent had never been demanded or paid by Pamela until August 2008 although she had lived at 110 Ernest since it was purchased in 1990. He agreed that the property taxes are presently in arrears but says he will not contribute to the home until Pamela moves out. He has contested Pamela’s application for probate of his father’s will. He does not trust her and he does not believe probate is required to convey the property. As a result, he is suspicious that his father had assets other than the home. He wants the property to be sold. Andrew wants to set aside the transfer so that on his mother’s death he will become the sole owner of the property. He never had his mother obtain independent legal advice, notwithstanding his assertion as to one-third ownership. His claim reduces his mother’s ownership from one half to one third of 110 Ernest. Mr. Park claimed Mrs. Park owned half of the home.

[16] Kuen Chan Park “William” testified for his brother. William moved to the United States in 1995 and subsequent to that move only visited his parents once a year but he made almost daily phone calls to his mother speaking for a few minutes, sometimes an hour. He assisted his parents for a 10-year-period, from 1997 until 2007, by giving them $1,000 U.S. a month. His mother opened a U.S. account for these funds. He began to be concerned about his mother’s health after she was hospitalized in 2006. This concern for him was assuaged by Pamela and his father taking care of Mrs. Park.

[17] He testified that the house was put in his brother’s name along with his parents because Andrew was the main force at that time in dealing with the difficulties his family faced and he was a university student. He did not know the source of the funds used to purchase the house.

[18] In 2009, William decided that his mother’s care needed his attention and he decided to remove her from 110 Ernest. He said his mother was agreeable to the move. He had also discovered that his mother’s bank account had been closed and her funds transferred to Pamela’s account. The move was difficult as Mr. Park and Pamela did not want Mrs. Park to leave the home. The police were involved. He did not speak to his father after the summer of 2009. Pamela, in her testimony, said she had financial reasons for the transfer of her mother’s money. She is a financial planner. William spoke very emotionally about his upset at not being told of his father’s death and being deprived of his role as the eldest son to deal with such matters.

[19] By 2009 his father, who William described as usually very calm, was acting irrationally often arguing and irritated and even threatening to kill Andrew if he did not remove himself from the title to the house. William had tried to mediate a resolution to the dispute between his father and his brother but was unsuccessful. He did not suggest that his father get medical help because he said that his father would not listen to him.

[20] William was asked about his apparent lack of concern for his father. He said he assumed that Mr. Park would be well enough in his home and that he fulfilled his duty to his parents by caring for his mother.

[21] Kwung Chan Park “Christine” helped her mother locate 110 Ernest and did translation duties for her with the real estate agent. She knew that Andrew would be on title. She said since 1982 Andrew had worked very hard sacrificing his young life for his family’s financial need. It was Andrew who worked outside of the family business to obtain income. Accordingly, she said everyone agreed that it was normal and expected that Andrew would be on title to their parents’ home. She noted that at the time of its purchase she would not have wished to risk her family financially by signing the mortgage on 110 Ernest. She acknowledged now the home is debt free and worth a substantial amount she wished her name was on it.

[22] Christine said she made more money than Andrew at the time of the purchase so financial worth was not the reason for him being an owner. Mr Park apparently had suggested that Andrew was on title to meet the financial requirements of the mortgage company.

[23] She testified the money for the home came from Andrew’s sweat for many years and his wedding gift of $16,000.

[24] In 2008, Ellen and she suggested to Pamela that a Korean food service be arranged for her mother to be funded by Andrew. Pamela’s response was to tell them to leave the house and not to return.

[25] Christine said that her father’s character changed. Prior to 2006, Pamela and he did not get along; after that time, he began to praise her. He also started to act very “cruelly” saying he would burn the house down or kill someone. She said she loved her father very much and that he was happy and content if he had food and a drink.

[26] She learned of her father’s death from an aunt in British Columbia and was shocked because she believed he was healthy. She has not talked to Pamela since 2009.

[27] Eun Kuey Kim “Ellen” testified that she was aware at the time of the purchase of 110 Ernest that her brother was on title with her father and mother. She said that action was taken as a result of a “family promise” from the beginning because Andrew was such a hard worker for the family.

[28] Mrs. Park did not testify. A letter from her doctor indicated that she was not physically able to do so.

[29] Lucille Yates was qualified as an expert by the Court to provide her opinion as to rental rates for 110 Ernest in 2009. She based her opinion on the description of a real estate agent and photos taken by that agent. Ms. Yates never saw inside the house.

[30] She opined that the property could attract rent in the amount of $1,650 to $1,800 per month. She also testified that tenants usually pay hydro and gas while the landlord pays the taxes. She calculated the maximum rates in subsequent years using the increases permitted by the Landlord and Tenant Act. She acknowledged that rent is not always raised and not necessarily to the maximum. She agreed the basic rental rate could be impacted by the condition of the house, the parking, its amenities and its neighbourhood. She also said the value of the property itself is not necessarily a factor as that value is not proportionate to the rent that might be received.

[31] Dr. Micheline Gagnon was qualified as an expert in geriatric medicine and dementia. In her opinion, on May 12, 2011, when Mr. Park executed the transfer it was more likely than not that his mental condition would have prevented him from truly understanding the documents he signed. He would not be able to understand the intricacies of joint tenancy as compared to tenancy-in-common.

[32] She based her opinion on the records of the hospital when Mr. Park was admitted on May 14, 2011, which indicated he had suffered from confusion and shortness of breath for the prior several days or one week. She also said a Mini-Mental Screening Examination, “MMSE”, completed in 2008 by his family doctor is indicative of a concern about cognitive issues at that time. She said this is not a test routinely carried out by family doctors as they are not taught to screen for dementia. Dr. Gagnon also noted that the same MMSE conducted three weeks after Mr. Park’s admission to hospital revealed that his mental capacity had deteriorated greatly from 2008. She said that such deterioration would have not happened quickly but would have been more gradual.

[33] She acknowledged Mr. Park’s ability in a discovery a year prior to the transfer. She also read the affidavits sworn by Mr. Ryu. However she did not comment on either of these in her report and appeared to assess little weight to them.

[34] Dr. Gagnon also commented on Mr. Park’s low oxygen levels on admission and in the physiotherapist’s report and a doctor’s comments on his problems in the cognitive area. She noted that pulmonary fibrosis results in depleted oxygen and is a progressive disease and that this deterioration would not have occurred in a short period of time. Lack of oxygen can also cause cognitive issues according to Dr. Gagnon.

[35] The expert also testified the drop from a 28 to a 14 in an MMSE is very rare. Dr. Gagnon said that on his arrival at the hospital Mr. Park was a “sick guy” and was labelled as urgent on triage. Dr. Gagnon said it was difficult to believe someone could sign a title document and two days later be in the shape the hospital reports indicate without a catastrophic event occurring in between the signing and the admission and none was reported here.

[36] Dr. Gagnon agreed she had no basis upon which she could dispute the observations of Mary Lee or Mr. Ryu but noted a proper assessment of the capacity of a person can take an hour or more. She also noted that in casual conversation the diagnosis of a person with dementia can be missed.

[37] In 2009, Mr. Park brought an application to have his wife declared incompetent after she commenced divorce proceedings. This application was dismissed in May of 2010.

[38] Mr. Park was 83 at the time of his death.

[39] Aram Ryu acted for Mr. Park both in his family law proceedings and this law suit. He was the lawyer that acted on the severance of the joint tenancy. He witnessed Mr. Park signing the transfer two days before he was admitted to the hospital.

[40] Mr. Ryu was retained by Mr. Park in September 2010 after meeting with Pamela in August to obtain background information about his situation.

[41] Pamela, even when she was adverse in interest to her father, was the one who drove Mr. Park to his lawyer. She also remained in the room while her father discussed issues with his lawyer. Pamela commenced and then discontinued an action against her parents claiming that they held 110 Ernest in trust for her. She was present at the examination where her father was discovered.

[42] Mr. Ryu spoke with his client, Mr. Park, in Korean. He said he had at least three discussions with Mr. Park about title issues and the effect of joint tenancy and tenancy-in-common from September 2010 onward. Mr. Park expressed to Mr. Ryu that he wanted his interest in the home to go to Pamela. Mr. Park did not wish to sever the ownership initially as his wife was in poor health. Mr. Ryu was the one that suggested as a result that Mr. Park delay severing in the expectation that he would survive his wife and inherit her interest. On May 12, 2011, he described Mr. Park as coherent. Mr. Park was not fatigued, distressed, agitated or disorientated. Mr. Ryu said that Mr. Park’s ability to understand and to question him was the same as it had been previously. When Mr. Ryu testified he often paused after a question, I find, appearing to look inwardly to recall details rather than being evasive. Mr. Ryu had very little written record of his meetings with Mr. Park.

[43] He said that Mr. Park’s concern was that the transfer be registered as soon as possible on the day he signed it. Pamela testified that her father told her on the way home from the lawyer something to the effect that he had done all that he could. Mr. Ryu told him on May 12 the registration could not be effected that night. In fact, the transfer was not registered until May 18, 2011. No explanation was given for the delay.

[44] Pamela testified that she worked at the family doughnut shop from its purchase in 1987 until its sale for $110,000 in 2002. At the time of purchase of the doughnut shop her mother and a brother-in-law were the owners of the business. Shortly thereafter, her mother became an owner. In 1998, Pamela became the sole owner of the business.

[45] She said that all of the family except for William worked at the doughnut shop; some full-time, some part-time. Pamela said her father baked all night and went to the wholesalers and did bookkeeping during the day. She acknowledged Mr. Park’s limited abilities in writing and reading English. Prior to coming to Canada she said her father had completed high school and had worked in accounting at a Korean bank and at other large businesses.

[46] Pamela testified her parents bought 110 Ernest with $45,000 received from the settlement of her husband’s embezzlement; $30,000 from the doughnut shop and $20,000 that her mother borrowed from a friend. All of this information she said she learned from her mother. She did not believe Andrew contributed to the purchase price at all. She has lived in the home with her daughter since its purchase. During her occupation of the home she paid her parents $300 per month and contributed toward other expenses.

[47] She said the $100,000 received from the sale of the doughnut shop was used to discharge the mortgage on the home. Pamela said that her siblings hate her as a result without providing an explanation for this comment.

[48] She pointed out that her doughnut shop paid for improvements to the home including a driveway, a deck, hardwood flooring, painting both interior and exterior at a cost of approximately $10,000. She said that after 2002, when the doughnut shop was sold, she did the yard work and the house work and that she and her mother made the meals. She said her mother always had health challenges from high blood pressure in her 30s to Type 2 diabetes in her 50s and joint problems.

[49] Pamela said her father was very, very sad about his family situation and asked her not to tell her siblings about his hospitalization and death as his “last wish” because he felt those children were not his children anymore.

[50] Dr. Shulman was qualified by the court as an expert in geriatric psychiatry particularly in the area of testamentary capacity. He does not deal with physical issues. He analyzed the case from the perspective of determining whether Mr. Park had testamentary capacity determining that the severance of the joint tenancy was a testamentary act.

[51] It was Dr. Shulman’s clinical opinion that Mr. Park had the capacity to execute the severance of the joint tenancy and by this act express his testamentary wishes on May 12, 2011. He disagreed with Dr. Gagnon’s opinion that Mr. Park suffered from dementia prior to May 12, 2011, and that Mr. Park’s cognitive and mental state on May 12, 2011 was similar to his state on May 14, 2011.

[52] Dr. Shulman opined that Mr. Park understood the nature of a will and those who would be his possible beneficiaries as a result. In his opinion, Mr. Park understood the extent and nature of his assets and provided a reasonable explanation for why he wished to sever the joint tenancy. According to Dr. Shulman, no undue influence affected Mr. Park’s testamentary disposition. Mr. Park made changes in his will and tried to make changes in the home ownership even prior to his separation from his wife in 2009. Mr. Park consistently maintained his position that Pamela was the rightful beneficiary of all that he owned.

[53] Dr. Shulman said dementia alone does not necessarily deprive a person of testamentary capacity as some areas of mental cognition may be unaffected in a person’s capabilities.

[54] In his opinion, in assessing mental capacity of an individual you need: one, his understanding of the relevant facts; and two, his ability to appreciate the consequences of taking or not taking specific actions.

[55] Dr. Shulman relied in part upon the letter of Mary Lee, the lawyer who had prepared Mr. Park’s wills in 2008 and 2010, and the affidavit material of Mr. Ryu. He determined, based on these reports that Mr. Park’s intentions were consistent from 2008 onward in that he wished his daughter to benefit from any assets he had. Dr. Shulman placed great reliance upon consistency of attitude of Mr. Park.

[56] Parts of Mr. Park’s examination for discovery completed on October 26, 2010, were read into evidence. When asked, Mr. Park said that he last worked in 2002. That was the year the doughnut shop was closed. He said he had no income other than pensions from the government. He said he worked 16 hours a day at the store seven days a week and he was not paid. Mr. Park said that all the monies earned were used to pay down debt and the sale of the doughnut shop was used to retire the family indebtedness being the mortgage on 110 Ernest. He explained that Mrs. Park transferred the doughnut store to Pamela around 1998. According to him, Pamela worked in the family business and the monetary management of the family business was always done by Mrs. Park.

[57] He said Pamela paid $200 per month to her parents after the store closed as “rent”.

[58] Mr. Park explained that he believed that he had been deceived by Andrew and that he only learned in August of 2008 of Andrew’s co-ownership of 110 Ernest. I note he apparently had earlier that year demanded that Andrew return title to him. He said that the purchase of their home was funded from $45,000 received from the courts as a result of Pamela’s husband’s actions, $30,000 approximately from savings from the doughnut shop, and the balance of the $100,000 deposit he borrowed from friends. I note this discovery was completed just some six months before Mr. Park’s death. Although there may be some confusion as to details, for example the date when he learned of the “deception”, for the most part I find he appears to understand the questions and provide answers appropriate to them and consistent with the factual evidence of other witnesses.

ARGUMENT

[59] It is the submission of the plaintiffs that they are entitled to rent for 110 Ernest from the time of Mrs. Park’s departure from the home until Mr. Park’s death at 50 percent of the market rate. It is also their request that they receive 100 percent of the rent at the mid-range that the expert quoted or $51,292.63 in total. They acknowledge that the expert said the tenant normally pays the utilities while the landlord pays the real property taxes. Pamela paid the taxes in this case. They provide her with a credit therefore of $10,240 representing taxes paid by her leaving a net claim of $41,052.53 for “rent”.

[60] The defendants point out that rarely is occupation rent granted where the property is a matrimonial home. Mrs. Park was not ousted from the home but left voluntarily. In this case, Pamela maintained the home, cut the grass, cleaned and cooked. Mrs. Park made no contribution to the home after she left in 2009. It is the defendants’ position that the plaintiffs could have sought an order for partition and sale rather than claiming rent and that there would have been no defence to that application.

[61] I note that perhaps the plaintiffs, like the defendants, were anticipating receiving a greater share of the property depending on which party died first. There was never an order for exclusive possession and the claim for rent was really just made out of spite for Pamela; “to get back” at her as Andrew blamed her for his father’s request to release his interest in the home. Finally, there is no evidence to suggest that the home has increased in value from which Pamela has benefited.

[62] The plaintiffs also argue that Mr. Park was incapable of executing the deed and/or that he did so because of undue influence of Pamela. They point to the evidence of Dr. Gagnon which would indicate a gradual decline in Mr. Park’s health since 2008 and his condition upon arrival at the hospital which would make it more likely than not that he was incapable of severing the joint tenancy due to his lack of capacity. It is the plaintiffs’ position as enunciated by Andrew that he is legally entitled to 110 Ernest. He says it was a family promise to him that he would inherit the property after his parents died as a result of his hard work.

[63] The plaintiffs point to Mr. Park’s dependence on his daughter, Pamela, in the last few years of his life. His son, Andrew, had not spoken to him since 2008 and William had been estranged since 2009. I find that once the mother left the home any contact between Pamela and her siblings ended.

[64] The plaintiffs point out that Mr. Park had no friends and his family had provided the whole of his social life. After 2009, Pamela was the only family that he had left. He was no longer driving so that all appointments were attended by Pamela. She is the one who found “his” lawyers and she physically sat in on the meetings with the lawyers save and except for the May 12, 2011 meeting at which the severance was executed. She completed his forms for him.

[65] Mr. Park made a will in 2008, while still residing with his wife, leaving all his estate to Pamela with William as the residuary beneficiary. He later replaced William with Pamela’s daughter, Grace, in his 2010 will.

[66] The defendants point to the evidence of Mary Lee, Mr. Ryu and Dr. Shulman, as well as Mr. Park’s examination for discovery as proof that Mr. Park did have the capacity to execute the transfer and that he was not unduly influenced by Pamela.

[67] The defendants note Mr. Ryu testified that Mr. Park understood the nature and consequences of his actions in severing the joint tenancy. Mr. Park wished to benefit his daughter, Pamela. The defendants therefore argue that Mr. Park was fully aware of the consequence of his actions in severing the joint tenancy in 110 Ernest. He intended to benefit Pamela with his share of the home and had held this intention for a number of years prior to taking action. His evidence given on his discovery months prior to his death shows him to be competent. The lawyer also testified about Mr. Park’s physical condition on May 12, 2011, which Dr. Shulman said was not that of a person suffering from distress. It was Dr. Shulman’s opinion that Mr. Park suffered from delirium on the 14 of May which could have come upon him suddenly and not as a result of a gradual decline. Accordingly, the defendants submit the transfer is valid and I should make an adjudication to that effect.

[68] In the alternative, the defendants argue I should find a course of conduct that would lead me to a declaration that the parties had by their actions turned the joint tenancy into a tenancy in common. As such, I could find each held a separate one third interest and that Mr. Park’s capacity in May 12, 2011, is not relevant.

[69] Finally, it is the argument of the defendants that Andrew was never entitled to an interest in the home; that he was simply a trustee for his parents in its ownership.

ANALYSIS AND DECISION

[70] From the evidence, I find that Mr. Park did not believe Andrew was entitled to an interest in 110 Ernest. He spoke of deception on Andrew’s part. He requested a release of his interest in the home from at least the year 2008. It is equally obvious that he wished to have Pamela benefit from his interest in the home from his 2008 will.

[71] I find the evidence of Andrew and his sisters, who testified for him, to be too tailored to be credible. The description of their father’s limited work at the shop baking three dozen muffins only a day for one hour, or the use of the phrase “family promise” to Andrew, and his “sweat” are examples of this concern. I find that Andrew did work hard but it is apparent that all of the children other than William did so for many years. There were also substantial financial contributions by William, Andrew, and Pamela to their parents. There appears to be no logic in a plan that would result in Andrew receiving the entire estate of his parents to the exclusion of his siblings. The home was his parents’ sole asset.

[72] Pamela continued to work long hours in the family business after her siblings had left home and right up until the business was sold. The proceeds of the sale of the business, which was solely owned by Pamela at the time, were used to discharge the mortgage on 110 Ernest. In 2008 the residuary beneficiary of Mr. Park’s will was William and not Andrew. I acknowledge that Mr. Park had issues with Andrew by 2008.

[73] I find William’s evidence to be the most credible of the sibling witnesses for the plaintiffs. He was the one with daily contact with his mother. As such, I find he was aware of what was happening in the home as compared to infrequent visits by his siblings. He did not speak of a “family promise”. He did not appear to be interested in the property issue at all. His concern and his rationale for being involved in this matter centered in his concern for his mother and his upset at being deprived of his role as eldest son on the death of his father.

[74] By 2008, Mrs. Park had left Mr. Park and later sought to divorce him. None of Mr. Park’s children other than Pamela had anything to do with him. I find the evidence is clear that Mr. Park had no friends and his social life had centered in his family.

[75] At his examination for discovery I find Mr. Park is cogent and clear when he states that 110 Ernest is Pamela’s home. As noted, Pamela has resided at the property since its purchase. Mr. Park’s 2008 and the 2010 wills have as their primary beneficiary Pamela. The 2008 will was done prior to Mrs. Park leaving her husband. In reality, Mr. Park had no one else either in his family or otherwise to benefit from his estate. According to Pamela, Mr. Park’s instruction to her was not to inform her siblings of his hospitalization or death as he no longer considered them to be his children.

[76] Mr. Ryu was clear in his testimony that after his prior discussions with Mr. Park and his meeting with him on May 12, 2011 that Mr. Park understood the consequences of his act in severing the joint tenancy. He also testified that Mr. Park did not appear physically or mentally impaired in any way. The discovery of Mr. Park, his consistent intention to benefit Pamela, his isolation and rejection by his other children, and the testimony of his lawyer I find to be cogent evidence of both Mr. Park’s capacity and his lack of undue influence in taking the action he did. Dr. Shulman’s evidence would support that finding.

[77] Although Dr. Gagnon indicated that it would be more likely than not that Mr. Park was incapable of understanding his actions, her opinion is based upon his health on May 14, 2011 and thereafter. Little if any weight is attributed to the consistency of Mr. Park’s wishes beginning in at least 2008 when his capacity was unquestioned and according to his MMSE at that time properly so. The fact that the test was administered, although uncommon in a family practice, is not evidence that there was a concern as to his capacity. There could have been a number of reasons for the MMSE being performed. His doctor was not called as a witness leaving me with only speculation and no evidence as to why the test was conducted. Dr. Gagnon also did not attach significant weight to Mr. Park’s examination for discovery or the evidence of Mr. Ryu who was present when Mr. Park executed the transfer which I find undermines her conclusions as to his capacity.

[78] In all the circumstances, I find that Mr. Park wished to benefit Pamela and that he was legally capable of executing the transfer severing the joint tenancy. Accordingly, I find the transfer to be valid and enforceable in this regard.

[79] The claim for rent is dismissed. By my finding, Pamela is an owner of the home. By her work at the doughnut shop she contributed to its purchase and she physically contributed to its upkeep. I acknowledge that all family members at one point or another either by their work or financial payments contributed to the home. It would be impossible and certainly beyond the scope of this action to complete an accounting of the entitlement of the siblings as a result of their contributions over the years. William by his testimony alone gave his parents over $120,000 in a ten year period. There is no reason to have Pamela pay rent in these circumstances. She now owns one third of the home.

[80] Did Andrew hold his interest in trust for his parents in 110 Ernest? I acknowledge that he received his interest with little or no contribution to the down payment. His evidence is that his wedding gift from his in-laws of some $16,000 was used for the purchase. His father’s evidence on discovery would contradict that allegation.

[81] His father’s evidence is that none of the family received T-4’s as no one was paid by the business. The only male family member who was still residing at home and had outside reportable income was Andrew.

[82] I surmise that it would have been difficult, if not impossible, to obtain a mortgage in the circumstances without Andrew being a co-signer given his outside employment. To me, this is a logical reason for his “ownership” however it is speculation only on my part. As Christine stated she did not wish to risk her family savings by signing the mortgage. Andrew lived in the home even after his marriage up until 1993. Pamela also resided there but her only source of funds would be the family money. That leaves still open the question of why joint tenancy was chosen in lieu of tenancy in common but, again, I would suggest a financial institution would prefer the former but nothing I find turns on this speculation.

[83] Although there was limited, if any, financial contribution by Andrew toward the purchase, I find there is no evidence that the intention of the parties was that Andrew held the property in trust for his parents. Mr. Park speaks of “deception”. He does not say title was a matter of trust. Mr. Park elected to sever the joint tenancy, rather than relying on a finding of a declaration that Andrew held the property in trust for Mrs. Park and himself. In fact, I find he decided to choose his remedy when he severed the joint tenancy and take one third of the property to himself as a tenant in common.

[84] Accordingly, the plaintiffs’ claim is dismissed and I find the severance of the joint tenancy by Mr. Park on May 12, 2011 to be a valid transfer. On the evidence before me, I cannot find that Andrew held the lands in trust for his parents and I make no such order dismissing the claim of the defendants in that regard. For reasons noted above, I also dismiss the claim that a tenancy- in-common was created by the actions of the parties. I also dismiss the plaintiffs’ claim for rent in the reasons noted above.

[85] If the parties are unable to agree upon costs, I may be spoken to.

Tucker, J.

Released: January 17, 2013

SIMCOE COURT FILE NO.: 133-09

DATE: 2013-01-17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jae Sun Park and Keun Jong Park

Plaintiffs

– and –

Hae Kyung Park and Hae Kyung Park, Estate Trustee for Young Bin Park

Defendants

REASONS FOR JUDGMENT

Tucker, J.

Released: January 17, 2013