Court File and Parties
COURT FILE NO.: CV-15-21758 DATE: 20161121 ONTARIO SUPERIOR COURT OF JUSTICE In the Estate of Louis Joseph Rocheleau, Deceased
BETWEEN:
Denise Leclerc, Power of Attorney for Rachel Simonne Rocheleau Applicant – and – Paul Rocheleau, Chantal Bondy and Nicole Rocheleau Respondents
COUNSEL: Elizabeth A. Papp, for the Applicant David M. Sundin, acting as agent for the Respondent, Nicole Rocheleau
HEARD: August 29, 2016
REASONS FOR JUDGMENT
verbeem J.:
Nature of the Application and Summary of Disposition
[1] The applicant seeks a determination of whether the proceeds of a joint bank account formerly held by her father Louis Rocheleau, deceased, and his daughter Nicole Rocheleau, passed to Nicole Rocheleau on Louis Rocheleau’s death, pursuant to a right of survivorship. If not, she contends that those funds are an asset of Louis Rocheleau’s estate.
[2] The parties agree that after Louis Rocheleau’s death, the proceeds of the joint account were presumptively impressed with a resulting trust. Based on the evidence before me and for the reasons that follow, I am of the view that the respondent, Nicole Rocheleau, has failed to rebut that presumption. Specifically, she has failed to establish that the proceeds of the joint account or the beneficial right of survivorship associated with the account were the subject of a valid and completed inter vivos gift made by Louis Rocheleau to her. As a result, the proceeds of the joint account properly form an asset of the estate of Louis Rocheleau and are subject to distribution in accordance with the terms of his last Will and Testament.
[3] Below, I will explain my finding by setting out the contextual background to the application, the evidence adduced by the parties, the legal principles applicable to the issues in dispute and my operative reasons for judgment.
Background
[4] Rachel Rocheleau is the sole residual beneficiary of the estate of the late Louis Joseph Rocheleau, her husband of 63 years. Louis Rocheleau died on April 14, 2014. Rachel and Louis Rocheleau have seven children, including the applicant, Denise Leclerc, and the respondents, Paul Rocheleau, Chantal Bondy and Nicole Rocheleau. The respondents are the named estate trustees of Louis Rocheleau’s estate. The respondents, Chantal Bondy and Paul Rocheleau, did not participate in the application.
[5] Rachel Rocheleau suffers from Alzheimer’s disease and is incapable of managing her own affairs. The applicant acts as her attorney for property and personal care. Prior to his death, Louis Rocheleau acted in that capacity.
[6] In August 2013, Mr. Rocheleau sold the matrimonial home that he historically shared with Rachel Rocheleau and deposited the net sale proceeds, totaling $150,101.12, into a joint bank account in his name and the name of the respondent, Nicole Rocheleau, at the financial institution PC Financial (the PC account). Subsequently, he made additional deposits in the amounts of $817.28 and $5,500 (from an inheritance from his sister), respectively, for total deposits in the amount of $156,418.40. Nicole Rocheleau did not deposit any of her own funds in the PC account. Nicole Rocheleau submits that her father always intended that the proceeds of the account would pass to her on his death.
[7] The respondents have not applied for a Certificate of Appointment of Estate Trustee with a Will. Nicole Rocheleau deposes that at the time of his death, her father did not have any debt. His assets were limited to the PC account, together with the sum of $400,000 which he held in a separate account at a different financial institution. As a result, the executors determined that it was not necessary to probate the Will.
The Evidence
[8] The evidence on the application consists of the following:
a) An affidavit sworn by Denise Leclerc on January 8, 2015, together with the exhibits referred to therein;
b) An affidavit of Nicole Rocheleau sworn March 25, 2015, together with the exhibits referred to therein;
c) Nicole Rocheleau’s answers to questions on written examination for discovery sworn December 9, 2015;
d) Nicole Rocheleau’s answers to additional questions on written examination for discovery sworn on December 23, 2015;
e) Denise Leclerc’s answers to questions on written examination for discovery sworn March 3, 2016; and
f) An affidavit of solicitor Claude McMillan, sworn June 27, 2016.
[9] I will summarize the relevant portions of that evidence below.
Affidavit Evidence of Denise Leclerc
[10] In her affidavit, Ms. Leclerc deposes to the following:
a) Pursuant to the Last Will and Testament (and codicils) of Louis Rocheleau, the respondents are the named estate trustees of his estate. Rachel Simonne Rocheleau (her mother), is the sole beneficiary of the residue of the estate;
b) Rachel Rocheleau is not capable of managing her own affairs as a result of advanced Alzheimer’s disease. Ms. Leclerc is her attorney for property and personal care pursuant to a power of attorney executed in February 2002;
c) In her capacity as an estate trustee of Louis Rocheleau’s estate, Nicole Rocheleau advised Ms. Leclerc that a Certificate of Appointment of Estate Trustee with a Will was never sought;
d) She requested that the estate trustees provide her with particulars of the estate assets and liabilities, including information with respect to any joint bank accounts that the deceased maintained with a third party other than her mother. She was advised that the deceased maintained a joint bank account with Nicole Rocheleau at PC Financial in which the proceeds of the sale of her parents’ matrimonial home were deposited after the sale closed in August 2013.
e) She was further advised by Nicole Rocheleau that their father gifted the proceeds of the PC account to Nicole Rocheleau in order to provide for the care for their mother. Subsequently, Nicole Rocheleau refused to transfer the proceeds of the PC account to Ms. Leclerc, in her capacity as Rachel Rocheleau’s attorney for property;
f) In response to inquiries made through Ms. Leclerc’s solicitor, Nicole Rocheleau authored correspondence dated November 11, 2014, in which she, among other things, confirms that her father opened a joint bank account with her at PC Financial with total deposits in the amount of $155,500. In an attachment to that correspondence, Nicole Rocheleau indicates, among other things, that she invested $70,000 of the aforementioned proceeds into segregated funds with her brothers, Roland Rocheleau and Paul Rocheleau, as the named beneficiaries and that she intended to donate the income generated from those investments to a charitable organization in their mother’s name. Nicole Rocheleau also disclosed that she used approximately $20,000 from the proceeds of the PC account to “buy back” two years of her pension and that after her father’s death she transferred the remaining balance of the PC account in the amount of $67,362.72 into a separate account that she controlled. (The banking documentation for the PC account, which was appended as an exhibit to Ms. Leclerc’s affidavit, evidences that the $90,000 which was invested in the segregated fund instruments and used to finance the pension buy back was withdrawn months before Louis Rocheleau’s death.)
g) On December 25, 2014, Nicole Rocheleau sent an email to all of her siblings, (including the applicant) indicating that she was willing to divide the amount of $130,000 derived from the proceeds of the PC account into eight shares of $16,250 with a share to be paid to each sibling on the condition that the applicant resile from her position as their mother’s attorney.
Affidavit Evidence of Nicole Rocheleau
[11] In her affidavit, Nicole Rocheleau deposes that:
a) She resides in the City of Sudbury.
b) She and her brother Paul Rocheleau and her sister Chantal Bondy, are the named executors of their father’s estate pursuant to the provisions of a second codicil to his Will. The estate was not probated.
c) Prior to his death, her father sold her parents’ matrimonial home and deposited the net proceeds into a joint account at PC Financial in his own name and in her name. He also maintained another bank account with an approximate balance of $400,000. At the time of his death, he had no other assets and no debts.
d) The parties’ mother, Rachel Rocheleau, suffers from Alzheimer’s disease and remains in the constant care of Nicole Rocheleau, in Nicole’s home.
e) The proceeds of the PC account are not property of her father’s estate because he intended to gift the money in the account to her (Nicole).
f) In 2002 her father made a Will appointing her mother as the executrix of his estate. Owing to the progression of Rachel Rocheleau’s Alzheimer’s condition, her father made a codicil to his Will on March 29, 2011, substituting the applicant Ms. Leclerc for Rachel Rocheleau as the executrix of his estate and naming Nicole Rocheleau as an alternative.
g) When her father made the March 29, 2011 codicil, he believed that Ms. Leclerc would continue to care for both he and Rachel Rocheleau (she does not identify the source of her information in that regard).
h) As her parents aged, they feared that they would be institutionalized. Shortly after Mr. Rocheleau made the first codicil, it became apparent that Ms. Leclerc intended to place both he and Rachel Rocheleau in an institutional care facility (she does not identify the source of her information in that regard). On July 28, 2011, Mr. Rocheleau revoked the appointment of Ms. Leclerc as his executrix and appointed the respondents as executors of his estate. He also appointed the respondents as his attorneys for property.
i) On July 21, 2013, Louis and Rachel Rocheleau began to reside with Nicole Rocheleau and her husband in their home in Dowling, Ontario.
j) Historically, she was employed as an elementary school teacher. When her parents moved in with her, she quit her job in order to care for them. She gave up a highly paid position and she was required to “buy back” two years of her pension or suffer a penalty.
k) Louis Rocheleau understood that Nicole Rocheleau “sacrificed” by agreeing to care for her parents. As a result, he insisted that she be gifted the net proceeds of the sale of the matrimonial home (she does not state the source of her information in that regard). Her parents’ matrimonial home was sold on August 23, 2013.
l) The proceeds of the PC account were intended to be a gift to her as a result of her day to day obligation of caring for her mother. The money was also intended to pay the approximate sum of $20,000 towards her pension buy back obligation (she does not state the source of her information in that regard).
m) Nicole Rocheleau and her husband were committed to caring for her parents even without a monetary gift from her father. She did not commit to providing ongoing care for her parents in exchange for monetary compensation. Instead, she did so for “moral reasons”. She deposes that “it was our father who genuinely wanted to make this gift of money to me for his own moral reasons and this is what he did” (she does not state the source of her information in that regard).
n) Rachel Rocheleau continues to reside with Nicole Rocheleau and Nicole continues to care for her.
Nicole Rocheleau’s sworn Answers to Written Questions for Discovery
[12] In her sworn answers to written questions for discovery, Nicole Rocheleau states, among other things, that:
a) She became her parents’ full-time caregiver in July 2013;
b) At the time her parents’ jointly owned matrimonial home was sold, her father was her mother’s attorney for property. He believed that her mother “would have wanted to gift the proceeds of sale” to Nicole Rocheleau (she does not state her source for that information);
c) Her father opened the PC account in her presence. During that process, the bank representative explained the manner in which the joint account would operate (she does not provide details of his advice in that regard). Her father asked a clarifying question, which the representative answered (she does not specify the question asked or the response received);
d) Her father disclosed his intention to gift the proceeds of sale to Nicole to his solicitor, Claude McMillan, and PC Financial manager Rob Fex, among others;
e) On the closing of the sale of her parents’ home, she and her father attended on solicitor Claude McMillan (who acted for her parents on the sale). Her father told Mr. McMillan that he intended to give Nicole Rocheleau “the sale of the house money”. Mr. McMillan advised him that “it wouldn’t be a good idea”;
f) At the time the PC account was opened, she “did not want the money” and “never considered keeping” the proceeds of the account. She did not accept her father’s gift of the funds held in the PC account until some time after he died;
g) She did not arrange for her father to document his donative intent at the time the PC account was opened or to change his Will to reflect his donative intent in that regard because she did not intend to accept the “gift” at that time;
h) Her father’s continuing intent, including when he opened the PC account and deposited the proceeds of the sale of the matrimonial home, was to “see to the care” of Rachel Rocheleau;
i) During his life Louis Rocheleau declared all of the interest generated from the PC account as income for tax purposes;
j) While he was alive, her father agreed to loan $90,000 to a third party from the proceeds held in the PC account and his consent was required to do so;
k) At the time Louis Rocheleau died (April 14, 2014), the balance of the PC account was $67,071.06. Shortly thereafter, she transferred those funds to a new PC Financial bank account solely in her name;
l) She believes that the proceeds of the PC account belong to her and she can use the money “any way [she] see[s] fit”;
m) She is not aware of the difference between legal ownership and beneficial ownership; and
n) Apart from the proceeds of the joint bank account, her father also periodically gave her some of the proceeds of the bank account that he held in his own name, including the full amount of the first payment required to “buy back” her pension, as well as an ongoing amount of $625 per month for household expenses.
Affidavit Evidence of Claude McMillan
[13] In his affidavit, Claude McMillan identifies himself as the solicitor who acted for Louis and Rachel Rocheleau on the sale of their matrimonial home. He deposes:
a) On August 23, 2013, Louis Rocheleau attended at his office to sign the final sale papers in his own capacity and on behalf of his wife for whom he held a power of attorney;
b) Mr. Rocheleau was accompanied by his daughter Nicole Rocheleau. After Mr. McMillan explained the statement of adjustments to Mr. Rocheleau, Mr. Rocheleau asked Mr. McMillan to make the net proceeds of the sale payable to his daughter Nicole Rocheleau “for her to have”;
c) Mr. McMillan advised Mr. Rocheleau that he should keep some control over the money before he gave it away since he did not know what the future would hold for he and his wife;
d) In response, Mr. Rocheleau indicated that he would open a joint account with his daughter Nicole Rocheleau which would allow him to keep some control over his account while he was alive.
Applicable Legal Principles and the Positions of the Parties
[14] In determining this application, I am guided by the principles that follow.
[15] The parties agree that in all of the circumstances, there is a rebuttable presumption that the proceeds of the PC account were impressed with a resulting trust in favour of the estate of Louis Rocheleau.
[16] A resulting trust arises when title to property is in one party’s name but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original owner. While the trustee almost always holds the legal title to the subject property, in exceptional circumstances it is possible for the trustee to hold equitable title as well: see Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 20.
[17] Since the respondent alleges that a transfer of property was made by Louis Rocheleau to her without consideration, the onus is on her, as the transferee, to demonstrate that a gift was intended and completed, failing which, the presumption of a resulting trust will prevail. Indeed, where a transferor’s proven intention in opening a joint account was to gift a withdrawal right to the transferee during his or her lifetime (regardless of whether or not the transferee chose to exercise that right) and also to give the balance of the account to the transferee alone on his or her death through survivorship, courts have 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: see Pecore, at para. 45.
[18] Additionally, in certain cases, the evidence may establish that the transferor gratuitously placed his or her assets into a joint account with the transferee with the intention of retaining exclusive control of the account until his or her death at which time the transferee alone would take the remaining balance through survivorship. Typically, a gift structured in that manner is designed to facilitate the transferee’s ability to assist with the ongoing management of the transferor’s financial affairs often because the transferor is aging or disabled. At the same time, the transferor may wish to avoid probate fees and/or make after death disposition of the remaining proceeds of the account to the transferee less cumbersome and time consuming. In such circumstances, the gift is the transferee’s survivorship interest in the account balance – whatever it may be – at the time of the transferor’s death, not to any particular amount since, by its nature, a joint account’s balance will fluctuate over time. The gift of both the legal and equitable rights of survivorship is inter vivos in nature and vests when the joint account is opened: see Pecore, at para. 45-48.
[19] As a result of the presumption of a resulting trust, it falls to the surviving joint account holder to prove that the transferor intended to gift the right of survivorship to the transferee. Otherwise, the assets will be treated as part of the transferor’s estate to be distributed according to the transferor’s Will: see Pecore, at para. 53.
[20] A gift is a voluntary transfer of property to another without consideration. The essential elements of a gift are:
a) capacity of the donor to make the gift;
b) intention of the donor to make a gift;
c) completed delivery of the subject matter of the gift to or for the donee; and
d) acceptance of the gift by the donee.
[21] Nicole Rocheleau submits that she has rebutted the presumption of a resulting trust. She claims legal and beneficial title to the funds held in the PC account because, in her submission, her father gratuitously transferred the funds into his name and her name with the expectation that upon his death the funds would be transferred to her for her own use.
[22] As Rachel Rocheleau’s attorney for property, the applicant submits that the evidence does not support that a valid inter vivos gift of the proceeds of the PC account or the beneficial right of survivorship to the balance of the PC account by Louis Rocheleau to Nicole Rocheleau was intended or completed. As a result the proceeds of the account must be treated as part of Louis Rocheleau’s estate.
[23] Ms. Leclerc submits that the court ought not act to complete an imperfect gift when essential elements of the alleged gift are absent.
Disposition
[24] For the following reasons, I find that Nicole Rocheleau has not discharged her onus to rebut the presumption that the proceeds of the PC account are the subject of a resulting trust.
[25] Ms. Rocheleau’s position that a valid and completed inter vivos gift of the proceeds of the account or the equitable right of survivorship to the proceeds of the PC account was made by Louis Rocheleau to her fails for three reasons.
[26] First, the totality of the evidence does not persuade me that Mr. Rocheleau opened and deposited funds into the PC account with the requisite intent to donate the proceeds of the account or the equitable right of survivorship associated with that account to Nicole Rocheleau. Second, on her own evidence, Ms. Rocheleau did not accept the alleged gift at the time it was made or at any time prior to Louis Rocheleau’s death. Third, the evidence does not establish that Mr. Rocheleau had the capacity to “gift” Rachel Rocheleau’s interests in the proceeds of the sale of the matrimonial home at the time he deposited those funds in the PC account.
i) Donative intent
[27] In order to rebut the presumption of a resulting trust, Ms. Rocheleau must establish, among other things, that her father intended to gift the proceeds of the account or the beneficial right of survivorship associated with the PC account to her. In my view, on a balance of probabilities, she has failed to do so. In arriving at that finding, I have considered the following.
[28] First, while not determinative of the issue, Ms. Rocheleau’s evidence establishes that: her father maintained control over the proceeds of the account during his lifetime; his consent was required to loan money from the PC account; and all of the interest generated from the account was declared by him for tax purposes, prior to his death.
[29] Second, Ms. Rocheleau provides contradictory evidence with respect to her father’s intended use of the PC account proceeds after his death. She testifies that all of her father’s actions, including opening and depositing funds into the PC account, were to further his intention to “see to the care of his loving wife of 63 years”. Yet, elsewhere in her evidence, Ms. Rocheleau states that her father wanted her to have the proceeds of the joint account for her own use on his death and, as a result, she has the right to use those funds any way that she sees fit.
[30] In my view, Ms. Rocheleau’s evidence that her father intended that the funds in the PC account would be used to support Rachel Rocheleau’s care, after his death, is not consistent with her position that Mr. Rocheleau intended to gift the proceeds of the joint account, whatever they may be, at the time of his death to her to use in any manner she desired. While I appreciate Ms. Rocheleau’s evidence that she is committed to providing for her mother’s care, such a gift would add an element of uncertainty about whether the funds in the PC account would, in fact, be used for that purpose.
[31] I accept that Louis Rocheleau’s intended that on his death, the PC account proceeds would be used, specifically, to provide for the care of his wife, as Ms. Rocheleau deposes. I find his intention in that regard to be consistent with a corresponding intention that the proceeds of the PC account would be included in his estate for use on behalf of Rachel Rocheleau, the sole residual beneficiary and, in particular, her care and support.
[32] Third, while Ms. Rocheleau repeatedly deposes that her father intended to gift the proceeds of the PC account to her, she does not provide evidence with respect to the specific manner in which he expressed that intention to her, including the actual words that he used to do so. In addition, there is no contemporaneous documentation expressly evidencing Mr. Rocheleau’s alleged intent in that regard. Ms. Rocheleau explains that because she did not intend to accept her father’s gift at the time the PC account was opened, she did not arrange for him to document his donative intent and she did not arrange for him to meet with his estate solicitor for the purpose of revising his Will to record his donative intent. In short, Nicole Rocheleau’s evidence regarding Louis Rocheleau’s donative intent amounts to a series of conclusionary statements without a specific account of the observations she made and interactions she had with the deceased that led her to reach her stated conclusions.
[33] Fourth, apart from Ms. Rocheleau’s general evidence with respect to her father’s donative intent, she submits that there is independent corroborative evidence on the point. In that regard, she relies on the banking documentation generated at the time the PC account was opened together with the affidavit evidence of Mr. McMillan.
[34] Ms. Rocheleau also suggests that an individual named Rob Fex, whom she identifies as a manager for PC Financial of Northern Ontario and as the banking representative involved in opening the PC account, is in a position to corroborate her father’s donative intent. Ms. Rocheleau did not adduce any evidence from Mr. Fex either by way of affidavit or through an examination of a witness on a pending application. She testifies that Mr. Fex has advised her that he recalls meeting with her father. She does not depose that Mr. Fex refused to provide evidence in this proceeding. Rather, she posits that Mr. Fex is bound by privacy laws and cannot provide sworn evidence unless summonsed to court to do so (that position is not expressly attributed to Mr. Fex). Ms. Rocheleau does not explain why she did not adduce evidence from Mr. Fex as a witness on a pending application particularly given the importance of his alleged corroborative evidence. In the circumstances, I find it is appropriate to draw an adverse inference that had Mr. Fex given evidence, it would not have supported Ms. Rocheleau’s position. I place no weight on Ms. Rocheleau’s suggestion that Mr. Fex can corroborate her evidence with respect to Mr. Rocheleau’s donative intent.
[35] Turning to the other sources of “corroboration” asserted by Ms. Rocheleau, Mr. McMillan’s evidence does not directly address Mr. Rocheleau’s donative intent with respect to the proceeds of the PC account or the legal and beneficial right of survivorship associated with that account. Indeed, the account was opened some time after the events deposed to by Mr. McMillan without any further direct or indirect advice or involvement on his part. Mr. McMillan does not provide evidence with respect to any statements by Mr. Rocheleau specifying his intent with respect to legal and beneficial right of survivorship to the proceeds of the PC account, which is the asset at issue on this application.
[36] While Mr. McMillan states that Mr. Rocheleau asked him to make the net proceeds of the sale of the matrimonial home payable to his daughter, Nicole Rocheleau, “for her to have”, he does not specify whether Mr. Rocheleau indicated that the money was to be payable to his daughter exclusively for her own use or for some other purpose. In any event, Mr. McMillan’s evidence establishes that Mr. Rocheleau ultimately decided not to make a gift of the net sale proceeds to Nicole Rocheleau at that time.
[37] Finally, while Ms. Rocheleau relies upon the “banking documentation” related to the PC account to corroborate her position with respect to her father’s donative intent, the limited documentation that is adduced as evidence does not assist her in that regard.
[38] As the Court observes in Pecore, at para. 61, banking documents may be detailed enough that they provide strong evidence of the intention of the transferor regarding how the balance in the account should be treated on his or her death. The clearer the evidence in the documents, the more weight that evidence should carry.
[39] In the case at bar, the “banking documentation” adduced as evidence consists of a single page dated August 27, 2013 entitled “your account agreement.” By the terms of that document, Louis Rocheleau is listed as the primary account holder and Nicole Rocheleau as a joint account holder of a joint “Interest Plus” savings account with PC Financial. The document, as adduced, is not executed by either of them. Ms. Rocheleau submits that the document alone is conclusive evidence that her father intended that the funds in the account would pass to her on his death, to use as she sees fit. I do not share that view.
[40] The document does not appear to set out the complete terms and conditions of the PC account. By its terms, the document states “for more information on the terms and conditions governing your account with us, please refer to the legal stuff brochure provided when you opened this account. The latest version is also available online at pcfinancial.ca.” The “legal stuff brochure” was not placed in evidence by either party.
[41] While the document indicates that the PC account was opened as a joint account, it does not contain any express reference to a joint account holder’s legal or beneficial right of survivorship. It may be that those things are the subject of the terms of the “legal stuff brochure”, but those terms are not in evidence. On the evidence before me, I am unable to infer the additional terms, if any, of the PC account that may be set out in the “legal stuff brochure” or elsewhere. Given the absence of any documentation on this critical point, I place little weight on the banking documentation as it relates to a joint account holder’s beneficial right of survivorship to proceeds of the PC account and more fundamentally Mr. Rocheleau’s inter vivos donative intent in that regard: see Madsen Estate v. Saylor, 2007 SCC 18, [2007] 1 S.C.R. 838, at para. 27.
[42] Finally, Ms. Rocheleau did not provide any evidence about her father’s donative intent with respect to the beneficial right of survivorship associated with the PC account. Instead, she testifies that she does not know the difference between legal and beneficial ownership of assets in a joint account.
[43] Ultimately, the evidence does not persuade me on a balance of probabilities that at the time the PC account was opened, Louis Rocheleau intended to make an inter vivos gift of the proceeds of that account or the beneficial right of survivorship to the proceeds of that account to Nicole Rocheleau.
ii) Lack of Acceptance
[44] The inter vivos gift by Louis Rocheleau, as alleged by Nicole Rocheleau, also fails because on her own evidence she did not accept the gift prior to Mr. Rocheleau’s death. She states that when her father opened the joint account she was appeasing him and never considered keeping the proceeds of the account as her own.
[45] She further deposes that it was only after a discussion she had with the applicant sometime after Mr. Rocheleau’s funeral that she decided to accept the alleged gift that he intended to make which, by her reckoning, included all the money that was deposited in the PC account, together with interest.
[46] In my view, by the time the respondent purported to accept the alleged gift, her ability to do so was already spent. She did not accept the alleged inter vivos gift prior to the donor’s death, therefore, the gift was not complete at that time. Accordingly, she did not have a beneficial claim to the PC account proceeds at that time. Instead, on Mr. Rocheleau’s death, Nicole Rocheleau held the proceeds of the PC account as a resulting trustee in favour of Louis Rocheleau’s estate.
(iii) Lack of Donative Capacity
[47] Third, on the issue of donative capacity, the applicant asserts that at the time Louis Rocheleau opened the PC account he lacked the power to gift Rachel Rocheleau’s one-half interest in the proceeds of the sale of the matrimonial home to Nicole Rocheleau. At the time, Louis Rocheleau acted as Rachel Rocheleau’s attorney for property. As a result, he was obligated to make expenditures from her property in accordance with s. 37 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30.
[48] Pursuant to s. 37(3) of the Substitute Decisions Act, 1992, as guardian of her property, Mr. Rocheleau was empowered to make gifts or loans to her friends and relatives, including her daughter Nicole Rocheleau, but only if:
Her property was and would remain sufficient to satisfy expenditures reasonably necessary for, among other things, her support and care;
There was reason to believe based on intentions Rachel Rocheleau expressed before becoming incapable she would have made the gift, if capable;
Rachel Rocheleau did not express a wish to the contrary.
[Emphasis added.]
[49] There is no evidence that establishes that prior to becoming incapable, Rachel Rocheleau actually expressed an intention to gift any portion of the net sale proceeds of her matrimonial home (or anything else) exclusively to her daughter Nicole Rocheleau.
[50] While Nicole Rocheleau deposes in her written responses to questions for examination for discovery that Louis Rocheleau “knew” his wife well and he was of the belief that she would have wanted to gift the sale proceeds of the matrimonial home exclusively to her, she does not offer any evidence with respect to the source of that evidence or the basis of Mr. Rocheleau’s alleged “belief” in that regard. Fundamentally, she has not adduced any evidence establishing that prior to becoming incapable, Rachel Rocheleau expressed an intention to gift to her the proceeds derived from the eventual sale of the matrimonial home.
Final Disposition
[51] For the foregoing reasons, I find that the respondent, Nicole Rocheleau, has failed to rebut the presumption of a resulting trust with respect to the proceeds of the PC account. She has failed to establish that the beneficial ownership in the proceeds of that account or the beneficial right of survivorship to those proceeds was gifted to her by Louis Rocheleau. The evidence does not persuade me on a balance of probabilities that Mr. Rocheleau possessed the requisite donative intent in that regard and, in any event, Nicole Rocheleau did not “accept” the alleged gift until sometime after Louis Rocheleau passed away. Therefore, I find that Nicole Rocheleau held the funds in the PC account in trust for the benefit of Louis Rocheleau’s estate as at the time of his death and continues to do so presently.
[52] To be clear, this application concerns the determination of entitlement to the funds held in the PC account on the date of Louis Rocheleau’s death (April 14, 2014). The application does not involve a determination of the propriety of any withdrawals from the joint account prior to Mr. Rocheleau’s death or an accounting of the corresponding amounts.
[53] The PC account statements (located at tab 13 of the Application Record), which are the best evidence of the historical balance of the PC account, establish an account balance of $67,071.66 on April 14, 2014, and I so find. For the foregoing reasons, that sum forms part of the estate of Louis Rocheleau and Nicole Rocheleau shall fully account to the estate for that amount, together with applicable interest, forthwith.
[54] On the issue of costs, the applicant’s counsel submitted a costs outline seeking approximately $50,000 for this half-day application. The respondent’s counsel (retained for the limited purpose of arguing the application) was not provided with the costs outline prior to the hearing and, therefore, had not received instructions or developed a position with respect to its content. As a result, the respondent, Nicole Rocheleau, is at leave to deliver a response to the costs outline of not more than four (4) pages within 60 days of the date of this judgment. The applicant is at leave to deliver a reply to any response provided by the respondent, Ms. Rocheleau, within twenty (20) days of the date of service of responding material on her or her solicitor.
Original signed by Justice Gregory J. Verbeem Gregory J. Verbeem Justice