Court File and Parties

Chatham Court File No.: 905275-14 Date: 2016-08-08 Ontario Superior Court of Justice

Between: Janine Therese Morris and Julianne Phyllis Rivard, Applicants And: Steven Duane John Rivard, Respondent

Counsel: Evert Van Woudenberg, for the Applicants Myron W. Shulgan, for the Respondent

Heard: May 16, 17, 18 and 19, 2016

Carey J.

[1] The respondent, Steven Rivard, along with his sisters, Janine Morris and Julianne Rivard, the applicants in this matter, are the Executors of the Last Will and Testament (“Will”) of Alex Rivard, their father. The applicants submit that the Will dated August 23, 2013, should be rejected as the result of capacity concerns and the undue influence of their brother Steven. For the reasons set out below, I have concluded that the applicants have not discharged their onus of proving undue influence and I am satisfied on all of the evidence that Alex Rivard was capable of making his Will on August 23, 2013 and that the last Will and Testament reflects his intentions.

The Law

[2] It is helpful in this trial of an issue to start with the legal authorities that set out the parameters of this process. It is common ground that a finding of undue influence is a finding of fact. [1] It is also clear that while there may be an overlap in terms of the issues of capacity and coercion or undue influence, the distinct findings of fact need to be made as stated by the Supreme Court of Canada in Vout v. Hay, 1995 CarswellOnt 186, 1995 CarswellOnt 528, [1995] S.C.R. 876, 125 D.L.R.(4th) 431, 7 E.T.R.(2d) 209, 183 N.R. 1, 82 O.A.C. 161 (S.C.C.) at para. 29:

A person may well appreciate what he or she is doing but be doing it as a result of coercion or fraud.

[3] It is also clear that the onus of proof for testamentary undue influence is upon the person or persons attacking the Will, and the standard of proof is the normal civil standard, proof on the balance of probabilities. [2]

Evidence and Findings

[4] It was urged upon counsel for the applicants that this fact finding exercise was all about credibility and that the evidence of the two sisters should be preferred over that of the brother. I essentially disagree for two reasons.

[5] First of all, each of the siblings came to this court with a vested interest in the result and clear convictions about the motives of the opposite party (parties). There is a clear animosity between Steven Rivard, the respondent, and Janine Morris that was of some duration. Undoubtedly, it was fed by untold issues and disagreements between them. Julianne Rivard, clearly for a long period, was more of a neutral party but by the time this litigation was commenced had sided with her sister. Family dynamics are complicated and it makes findings of credibility difficult.

[6] Secondly, and perhaps most importantly, most of the evidence from the parties is of secondary importance and relevance to the task at hand. Given the narrow period of time between the Will of August 1, 2013 and the Will dated August 24, 2013, the critical evidence in this case was provided by the lawyers Mr. Johnson and Mr. Taylor. Both are experienced solicitors who knew the late Alex Rivard very well and who had been advising him, in Mr. Taylor’s case, for decades. They were both well aware of the likelihood of a dispute arising over the 81 year old Alex Rivard’s decision to change his Will that he had only made three weeks earlier. Both solicitors were alive to factual and legal concerns over capacity and undue influence. Mr. Taylor thought changing the will was not a good idea.

[7] The evidence of both Janine and Julianne was of incidents that they said showed a pattern of behaviour on the part of Steven that caused their late father to be in fear of their brother. There was evidence of an incident while the two men were farming where a truck mirror was detached and evidences of loud arguments between the two. The sisters say that they overheard conversation at the hospital where their brother said, “You better...” on the issue of whether Alex remembered promising Steven the farm property. They interpreted that as a threat that in effect coerced Alex Rivard into changing his will.

[8] They also say Steven did not spend as much time at the hospital over the period of their father’s final illness as he should have. The suggestion was that this was done to punish Alex Rivard by withdrawal of affection and care aimed at changing their father’s mind. It was also argued by the applicants that the fact their father did not communicate the change in his will was indicative of the changes being involuntary.

[9] I accept that the “you better” statement was made but do not find it to be a clear threat. Taking it in context of the other evidence of the dynamics of this father/son business relationship, it appears to be more of an expression of frustration on Steven’s behalf.

[10] I accept that there was conflict between the two men over the years they worked side by side that escalated on rare occasion to physical altercations. I accept as well though, Father Louis Rivard’s assessment that Alex Rivard “gave as good as he got.” In my view, it would be unusual over the course of a quarter century or so of working close together over long hours in often tough, hot, physical work that there would not be tensions which could erupt into conflict. Father Rivard’s evidence was that these conflicts would blow over and the men would be back working together the next day.

[11] This evidence from the deceased’s brother was very helpful in getting a sense of the personal dynamics between Steven and his late father.

[12] It was clear on all of the evidence that the Rivard family was one of strong opinions that were not usually withheld.

[13] The experiences set out between father and son did not strike me as outside the norm for those working side by side in the family business. I was not able to conclude that the evidence of conflict and argument, including that over the contents of Alex Rivard’s will, support a finding of undue influence being exerted by Steven Rivard.

[14] Coming to that conclusion, I rely on the decision of Cullity J. in Scott v. Cousins, [2001] O.J. No. 19, [2001] O.T.C. 9, 37 E.T.R.(2d) 113, 102 A.C.W.S.(3d) 457, 2001 CarswellOnt 50, at para. 113. In concluding that beneficiaries “are entitled to press what they perceive to be their moral claims”, he cites a comment on a passage from Wingrove v. Wingrove found in Williams and Mortimer: Executors, Administrators and Probate (17th edition, 1993) at page 184:

“Thus undue influence is not bad influence but coercion. Persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded. Appeals to the affections or ties of kindred, to the sentiment of gratitude for past services, or pity for future destitution or the like may fairly be pressed on the testator. The testator may be led but not driven and his will must be the offspring of his own volition, not the record of someone else’s. There is no undue influence unless the testator if he could speak his wishes would say “this is not my wish but I must do it.”

[15] Cullity J. concluded, in a similar application, at para. 115:

“[T]he question is whether, on the basis of all of the evidence, I am satisfied that the dispositive provisions of the will were procured by undue influence. By itself opportunity to do this is not sufficient. However, certainty or proof beyond reasonable doubt is not required. The standard is the civil standard and it may be satisfied by circumstantial evidence.

[16] The evidence of Dr. Kenneth Schulman, an agreed expert in the area of undue influence, assisted the court. He had carefully reviewed the anticipated evidence of the medical records prior to his video evidence in this case. Importantly, he had reviewed the statements of Mr. Johnson and Mr. Taylor as well as their notes and a variety of other correspondence.

[17] In his report, Dr. Shulman set out seven indicators of undue influence:

1. A confidential relationship existed between the testator and the influencer that created an opportunity for the latter to control the testamentary act.
2. The influencer used that relationship to secure a change in the distribution of the testator’s estate.
3. There were unnatural provisions in the Will.
4. The change of distribution did not reflect the true wishes of the testator.
5. The testator was vulnerable to being influenced, either because of a neurologic or mental disorder or because of specific emotional circumstances.
6. The beneficiary actively participated or initiated the procurement of the Will.
7. There was undue benefit to the beneficiary.

[18] I have considered these seven indicators in my review of the evidence.

[19] I cannot conclude that the relationship between Alex and Steven Rivard was “confidential” in the sense used by Dr. Shulman. There seemed to be a closer relationship between the father and his daughters and evidence that he confided in them. When Alex was in the hospital, the complaint of Janine and Julianne was that Steven was not there alone with his dad enough. They did not perceive any threat to their father during that time that would cause them to be concerned about Steven spending more time with Alex.

[20] I conclude that Alex Rivard changed his will because he concluded it was the right thing to do. He did it in a way that he thought was fair to all of the children. It was not the way that Steven requested in the “wish list” he prepared at Alex’s request.

[21] There was nothing “unnatural” in the provisions of his will. The evidence of the lawyers, Messrs. Johnson and Taylor, is convincing that the revised will reflected his goal to keep the farm lands available to Steven to keep farming and keep the farms in the family, while being fair to his daughters.

[22] I conclude that Alex resisted Jay Johnson’s advice to forgo changing the will because of his desire to do the right thing and not because of any undue influence or fear of Steven. The urgency of the change seemed to be as a result of his very real concern that he might not survive the scheduled surgery. That fear was made clear to his brother, Father Louis Rivard. Both lawyers were clear that there was no evidence of neurologic or mental disorder, confusion or any specific emotional circumstances.

[23] It was clear that Steven had no involvement in arranging for Messrs. Taylor and Johnson to come to the hospital for new instructions. In fact, he remained ignorant of the changes until his father’s death. Despite being advised by the lawyers to let his children know of the changes, Alex apparently never did. Rather than indicative of a fear of Steven, in my view it is further evidence of the independent cast of Alex Rivard’s mind.

[24] The changes made, in my opinion, on the evidence, reflected Alex Rivard’s clear minded wishes to keep the farms in the family. They did not convey an undue benefit to Steven but rather reflected a scheme to keep the farms going as a viable business.

[25] In the result, the Will dated August 23, 2013 is upheld as the valid Last Will and Testament of Alex Rivard. The executors are instructed to take steps to bring about the conveyance of the properties in accordance with that Will no later than October 24, 2016.

[26] If costs cannot be agreed upon, I will receive written submissions limited to three (3) double spaced pages each no later than August 31, 2016. Should there be any other issues requiring my attention, I may be contacted after August 28, 2016.

“Original signed and released by Carey J.”

Thomas J. Carey Justice

Released: August 8, 2016

[1] Robins v. National Trust Co., 1927 CarswellOnt 41, [1927] A.C. 515 (Ontario P.C.) at p. 517 [A.C.]

[2] C.(R.) v. McDougall, 2008 SCC 53, 2008 CarswellBC 2041, 2008 CarswellBC 2042, (sub nom. F.H. v. McDougall) [2008] 3 S.C.R. 41, 83 B.C.L.R. (4th) 1, 60 C.C.L.T.(3d) 1, 61 C.P.C.(6th) 1, 61 C.R.(6th) 1, 297 D.L.R.(4th) 193, [2008] 11 W.W.R. 414, 260 B.C.A.C. 74, 380 N.R. 82, 439 W.A.C. 74 (S.C.C.)