CITATION: Khemraj v. Khemraj, 2016 ONSC 7796
COURT FILE NO.: CV-15-124529
DATE: 20161214
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHANDERDAI KHEMRAJ, KENNY KHEMRAJ AND CHANDERDAI KHEMRAJ as contemplated Litigation Guardian for Tyler Khemraj, the minor child of the Deceased
Applicants
– and –
BHARAT KHEMRAJ, KEMRAJ KHEMRAJ, RAOUTI KHEMRAJ and HARDAT KHEMRAJ, personally and as Estate Trustee de son tort of the Estate of Deodat Khemraj, deceased
Respondents
Wendy Greenspoon-Soer, for the Applicants
Roma Mungol, for the Respondents
HEARD: May 24-27, 2016 and November 21-22, 2016
REASONS FOR DECISION
Gilmore J.:
Overview
[1] This tragic case involves legal issues arising after the untimely death of the deceased, Deodat Khemraj (“Deodat”). Deodat died in a trucking accident on May 30, 2014 at age 51. Touching testimony from his family members demonstrated the emotional impact his death has had on his parents, siblings, wife and children.
[2] The case involves sharply contradictory evidence related to whether Deodat and the Applicant, Chanderdai Khemraj (“Chanderdai”), were living in a spousal relationship on the date of his death and whether a trust agreement and will allegedly executed by Deodat on October 6, 2013 are fraudulent.
Litigation Background and Issues to be Determined
[3] These proceedings were initially commenced by an application brought by Chanderdai, her son, Kenny Khemraj (“Kenny”), and her minor child, Tyler Khemraj (“Tyler”). Chanderdai is the wife of Deodat. At the time of Deodat’s death, on May 30, 2014, the co-Applicants, Kenny and Tyler, were 16 (d.o.b. August 17, 1997) and six years old (d.o.b. December 11, 2007), respectively.
[4] The Respondents in these proceedings are the parents of Deodat, Kemraj Khemraj (“Kemraj”) and Raouti Khemraj (“Raouti”), and his brothers, Bharat Khemraj (“Bharat”) and Hardat Khemraj (“Hardat”).
[5] The primary relief sought in the Application, as set out in the Amended Amended Notice of Application (amended at the commencement of the trial on May 24, 2016), is:
(a) A declaration as to the validity of the purported Last Will and Testament of Deodat dated October 6, 2013 (the “Purported Will”), which appoints Hardat as the Estate Trustee;
(b) A declaration as to the validity of the Purported Acknowledgment of Trust dated October 6, 2013 by which Deodat declares his one quarter interest in the property known municipally as 11 Simsbury Court, Markham, Ontario (“Simsbury”) to be held in trust for his father, Kemraj;
(c) A declaration that Chanderdai was Deodat’s spouse immediately preceding Deodat’s death;
(d) In the event the Purported Will and the Purported Acknowledgment of Trust are declared invalid:
(i) An order appointing Chanderdai as Estate Trustee Without a Will; and
(ii) An order for the partition and sale of Simsbury; and
(e) In the event the Purported Will and the Purported Acknowledgment of Trust are declared valid:
(i) A declaration that Chanderdai, Kenny and Tyler are dependants of Deodat’s Estate.[^1]
[6] The Application sought additional relief in connection with the Dependant’s Relief claims and further disclosure of the estate’s potential assets, which relief is to be addressed in a subsequent proceeding once the initial determination as to the validity of the Purported Will has been made.
[7] The Respondents brought a cross-application for a declaration that the Purported Will and the Purported Acknowledgment of Trust are valid and, in the event that they are declared invalid:
(a) For a declaration that Chanderdai was separated from Deodat immediately prior to his death and therefore not entitled to be appointed as Estate Trustee without a Will;
(b) For an order that Hardat be appointed Estate Trustee Without a Will and permitted to proceed to make application for same;
(c) For an order that the registered owners of Simsbury be entitled to purchase Deodat’s one-quarter share at fair market value as of the date of his death;
(d) For an order that the Applicants be held personally liable for the cost of repairs to the Cadillac Escalade; and
(e) For an order that any damages received by Kenny and Tyler in their pending wrongful death proceedings be included in the computation of their claims to entitlement for Dependant’s relief.[^2]
[8] There are also companion proceedings commenced under Court File No. 2014-28165, involving the application by Hardat for a Certificate of Appointment of Estate Trustee with a Will (“the Hardat Estate Proceedings”). Chanderdai filed a Notice of Objection in those proceedings, and they, essentially, have been stayed pending the outcome of the within application.
[9] By order of McCarthy J. dated December 15, 2015, the Hardat Estate Proceedings were consolidated with the within application and a trial was directed to determine the validity of the Purported Will and Purported Acknowledgment of Trust and the entitlement to the Dependants’ relief.
[10] For the reasons that follow, I find the Purported Will and Purported Acknowledgement of Trust to be invalid. Moreover, I find that Chanderdai was Deodat’s spouse at the time of his death. As such, Chanderdai will be appointed Estate Trustee Without a Will. She, Kenny and Tyler are the dependants of Deodat’s estate.
Background Facts
[11] Deodat was born in Guyana and immigrated to Canada in 1989. Chanderdai and Deodat married in Guyana in September 1992. After the marriage, Deodat returned to Canada. After her immigration documents were processed, Chanderdai came to Canada in November 1993.
[12] When Chanderdai came to Canada she stayed at the Khemraj family home on Clydesdale Road (“Clydesdale”). The length of her stay at Clydesdale is in dispute. The Respondents allege she remained there for only 10 days after which she and Deodat separated and have remained separated ever since. Chanderdai testified that she lived at Clydesdale with her husband, his parents, his siblings and their families until Clydesdale was sold in July 1994. She lived with Deodat continuously thereafter.
[13] Deodat was a 25% owner of Clydesdale along with his father and brothers. In July 1994, Clydesdale was sold and the proceeds used to buy Simsbury. On the transfer document for the sale of Clydesdale, Chanderdai consented to the transfer as Deodat’s spouse.
[14] Deodat, Hardat, Bharat and Kemraj each owned a 25% interest as tenants in common in Simsbury. While Bharat and Hardat testified that the three brothers held their respective 25% shares in Simsbury in trust for their father, there was never any written trust agreement to this effect other than the impugned trust agreement in this proceeding. Kemraj, Raouti, Bharat, and Bharat’s wife and son still live at Simsbury. Hardat lived there with his wife and children until 1997 when he bought his own house in Markham.
[15] The brothers were also co-chargors on the Clydesdale and Simsbury mortgages. This was necessary as Kemraj did not earn enough income to qualify for a mortgage on his own. Chanderdai’s evidence was that Kemraj never worked. Kemraj testified that he did work but at low paying jobs.
[16] The Simsbury mortgage was refinanced in 2006 to allow for some renovations to be done to the property. On the charge document, Bharat, Hardat and Deodat declared that they were “not a spouse.” All three were married at the time. In 2008, Simsbury was re-financed again. At that time, Bharat’s spouse consented to the new charge, and Deodat declared his status as separated.
[17] Kemraj testified that he paid the mortgage, taxes and insurance on both the Clydesdale and Simsbury properties. His children, who were living at those properties at the time, shared the cost of utilities and groceries. After Hardat left, Deodat and Bharat shared equally the cost of all utilities and groceries notwithstanding that there were three people in Bharat’s family and Deodat (according to the Respondents) lived alone at Simsbury. Only the telephone bill was in Kemraj’s name. All other household bills were in his children’s names.
[18] The mortgage transaction history shows the mortgagor names as Bharat and Deodat Khemraj with the mailing and property address as Simsbury. Kemraj testified that he had a joint bank account with Bharat and Deodat. He gave Bharat the money to make the required payments in cash. However, there was no documentary evidence provided at trial that Kemraj made such payments or that Bharat made the payments on his behalf. The mortgage transaction history simply shows that the mortgage payments were paid.
[19] Chanderdai testified that after living at Simsbury for a few months, she and Deodat moved to an apartment at 4750 Bathurst Street. Kenny was born in 1997 while they lived there. After that, they moved to an apartment on Chalkfarm Road and in 2000 to 31 Kirby Road (“Kirby”), where the family was living when Deodat died. The Respondents dispute that Deodat has ever lived anywhere other than with his parents and brother(s) on Clydesdale and then Simsbury.
[20] Chanderdai testified that there was an incident that occurred on September 8, 1994 which led to her and Deodat being asked to leave Simsbury. One evening, while intoxicated, Deodat threatened her with a knife. Police were called (not by Chanderdai), and Deodat was arrested and charged with assault and possession of a weapon. He was also charged with several breaches of bail including failing to provide a change of address, possessing a weapon and contacting Chanderdai. His bail conditions from the September 8, 1994 arrest did not permit contact with Chanderdai. However, according to Chanderdai, neither she nor Deodat abided by those conditions and they continued to live together. While Deodat was on bail, Kenny was conceived. In 1997, the charges against Deodat were stayed because Chanderdai did not appear to testify.
[21] The Respondents testified that Deodat lived at Simsbury at all times including the period that he was on bail. Chanderdai testified that there was another incident between her and Deodat when the police were called, but she gave few details. She described her relationship with Deodat as one in which there were ups and downs which she considered normal for spouses.
[22] Chanderdai testified that Deodat’s parents controlled his finances, and that this was partly why she and her husband left Simsbury. He was required to give them his paycheque, which was put into a joint account owned by him and his father. Deodat would give Chanderdai $800 a month for household expenses. Chanderdai and Deodat did not have a joint account. Bharat, Hardat and Kemraj denied that the Khemraj parents were in any way involved in their children’s finances. Income earned by their sons was theirs to keep. They were only obligated to share household utilities and groceries.
[23] Kirby was purchased on August 10, 2000. Chanderdai and her brother, Nardeo Ramsahai, are the registered owners as joint tenants. Mr. Ramsahai was living in the basement of Kirby on the date of Deodat’s death and had been living there for several years. Deodat has never been on title to Kirby. Mr. Ramsahai was not called as a witness at trial, although he attended court at various times during the trial.
[24] On the mortgage document for Kirby, Chanderdai lists her marital status as “not a spouse.” Her evidence was that she cannot recall why she indicated her spousal status in that manner.
[25] Deodat worked with Hardat in their trucking business. Hardat started the business in 1993 and incorporated the business in 2004 as 2045003 Ontario Inc. Simsbury was the mailing address for the business. Hardat started to train Deodat as a driver in 2004 and made him an equal partner in the business. The business owned Deodat’s truck, which was purchased for $61,801.25 in 2008. Hardat sold the truck on June 22, 2014 for $18,080.
[26] Hardat testified that he and Deodat parked their trucks in a lot on Kennedy Road in Markham each night. This was because you could not park such large trucks in residential driveways. According to Hardat, Deodat would drive his Escalade to the parking lot and pick up his truck each morning. He would then drive the Escalade back to Simsbury each evening. Chanderdai testified that Deodat’s truck was parked in the driveway at Kirby each evening without any neighbour complaints. The Escalade was also parked in the driveway at Kirby. Deodat was teaching Kenny to drive on the Escalade around the time of this death.
[27] Hardat described Deodat’s relationship with Chanderdai as “volatile” but did not really ask his brother about it. He agreed that once Deodat left work for the evening he did not know where he went or what he did, but he was certain that at all times Deodat was living at Simsbury and not Kirby.
[28] Chanderdai and Kenny testified that Deodat came home to Kirby each evening. He sometimes picked the children up from school if he was home early enough. He would help them with homework, eat with them and help with their bedtime routines. Chanderdai and Kenny testified that Deodat and Chanderdai shared the master bedroom together at Kirby.
[29] Hardat, Bharat and Kemraj testified that Deodat’s bedroom was on the second floor of the Simsbury home. Deodat’s friend and real estate agent Raymond Lutchmansingh (“Raymond”) testified that he had been in Deodat’s room at Simsbury and never saw any women’s clothing or belongings there. He had also never seen Chanderdai at Simsbury when he visited at least twice a week. No photographs were produced corroborating that Deodat’s belongings and clothing had been in the bedroom at either Simsbury or Kirby.
[30] Deodat’s income tax returns for 2009, 2010, 2011 and 2012 note his marital status as “Single.” Chanderdai testified that he used Simsbury as his address so he could claim “Single” status on his tax return. His parents wanted him to do things this way. He did this throughout the time he was living at Kirby.
[31] Chanderdai has worked as a hair stylist since she came to Canada. She worked in a salon in a mall near Jane Street and Finch Avenue West until 2013 when she started her own business. Chanderdai’s income tax returns for 2004 to 2014 indicate her marital status as “Separated.” Chanderdai testified that her in-laws told her to show her marital status as “Separated” even though she was not.
[32] Chanderdai was not aware that Deodat had made a will. She initially applied to be appointed as Estate Trustee Without a Will on July 16, 2014. She first heard of the will when she received Hardat’s application to be appointed Estate Trustee with a Will on August 7, 2014. When she attended a meeting with the family at the funeral home shortly after the funeral, no mention was made of any will.
[33] The impugned will dated October 6, 2013 appoints Hardat as Estate Trustee. It leaves Deodat’s RBC account no. 8166050 equally to his children, Kenny and Tyler. The value of that account on the date of death was $1469.98. The will leaves Deodat’s share in the trucking business to Hardat and his 25% interest in Simsbury to his father. The Hummer vehicle parked at Simsbury was owned by the business. No part of the estate is left to Chanderdai in the will.
[34] The estimated net value of Deodat’s share in Simsbury is approximately $155,000, assuming a value of $669,000 for the property. The approximate value of the entire estate is $176,000.
[35] The impugned Acknowledgment of Trust was allegedly signed by Deodat and Kemraj on October 6, 2013. It stipulates that Deodat holds his 25% share in Simsbury in trust for his father. It also stipulates that Kemraj is responsible for payment of realty taxes, insurance and mortgage payments on Simsbury.
[36] The original Proof of Death document dated June 6, 2014 noted Deodat’s marital status as “Separated.” Chanderdai called the funeral home (Glendale Funeral Home and Cemetary) and had them change the marital status on the Proof of Death to “Married.” The amended Proof of Death was dated June 30, 2014.
[37] Deodat’s address on the Proof of Death is noted as Simsbury. Chanderdai’s address on the Proof of Death is recorded as Kirby.
[38] Deodat had a life insurance policy for $100,000. The beneficiary was his sister, Radhika. Radhika has received the policy proceeds. Bharat and Hardat testified that they were not aware of the policy. Chanderdai testified that her lawyer had to write to every life insurance company in Canada to obtain the particulars of the policy as the Khemraj family did not acknowledge its existence until Manulife confirmed the payout. The Khemraj family is not aware of what Radhika did with the life insurance proceeds. It is clear that no proceeds were offered for the support of Kenny and Tyler.
[39] Deodat owned a Cadillac Escalade on the date of his death. Chanderdai paid off the outstanding $14,000 debt owing on the Escalade and had it transferred to her name as she was noted as Deodat’s next of kin on the financing documents.
[40] The Respondents disputed Tyler’s paternity. A DNA report dated September 16, 2015 confirms that Deodat is his father.
[41] After Deodat’s death, Bharat and Kemraj emptied Deodat’s possessions from his truck in preparation for its sale. They testified that they found an envelope in the truck which contained a photocopy of the Acknowledgment of Trust and two originals of the will. They also found the keys to the Escalade in a bag Deodat left in the truck.
[42] Meena Persaud (“Ms. Persaud”) is a real estate agent. Between 2005 and 2007, she owned the Cane Grove Restaurant, a bar/restaurant located at Weston Road and Finch Avenue. She testified that she met Deodat during this period. Ms. Persaud’s evidence was that she met Kemraj when he came to sign the trust document, but had never met any other member of Deodat’s family until after his death. Ms. Persaud and Deodat became friends, as they were both part of the Guyanese community. Deodat would come to the bar with friends. He never came there with his family. Sometimes, when he had had a lot to drink he would talk about troubles with his “ex” or his long work hours. Twice, Ms. Persaud drove him to Simsbury when he had had too much to drink, even though she lives in Brampton.
[43] During this time period, Deodat spoke of wanting to have certain legal documents prepared. After she sold the Cane Grove, Ms. Persaud kept in touch with Deodat by phone from time to time. She was very involved in fundraising for the Guyanese community and kept in touch with everyone. Once, she invited Deodat to a community picnic.
[44] Deodat continued to ask Ms. Persaud about the legal documents he wanted. Based on what he told her, Ms. Persaud assessed that he needed a will and a trust agreement. She encouraged him to go to a lawyer. According to Ms. Persaud, Deodat told her he could not afford to hire a lawyer. He asked her if she could draft the documents for him. She agreed and the documents were prepared in October 2013.
[45] Ms. Persaud’s evidence was that she drafted the will and the Acknowledgment of Trust on her home computer. She used precedent documents to do so as she has no legal training. She did not save them after printing them out. She testified that it took her several hours to prepare these documents. She did not charge Deodat for her time.
[46] According to Ms. Persaud, on October 6, 2013 (a Sunday), Deodat and his father attended at Ms. Persaud’s home. Deodat and his father signed two copies of the Acknowledgment of Trust. Kemraj was then asked by Deodat to go and sit in the car. Deodat then signed the will, which was witnessed by Ms. Persaud and her tenant, Mr. Tybalt Edwards. Ms. Persaud and Mr. Edwards swore affidavits of execution on July 29, 2014. Mr. Edwards was unavailable to testify because he has since returned to his home in St. Vincent and Ms. Persaud has no contact information for him.
[47] When Chanderdai saw the will she did not think the signature on it was that of her husband’s. The Respondents testified that they were unaware that Deodat had a will until it was found in his truck after his death. The Respondents testified that the signatures on Deodat’s will and the Acknowledgment of Trust were his.
[48] Kemraj testified that he was unaware that his son had signed a will after he left the Persaud residence. He understood that he had signed a trust agreement but did not tell anyone about it, as he thought it was a personal matter between him and his son.
[49] The Applicants and Respondents commenced separate wrongful death claims in 2015. The manner in which those claims proceed will be affected by this ruling. A settlement meeting for both cases is scheduled for December 15, 2016.
Issue One – Validity of the Will and the Acknowledgment of Trust
Background
[50] Deodat purportedly executed a will and an Acknowledgment of Trust on October 6, 2013. The Applicants challenge the execution of these documents on the grounds that the signature on them is not Deodat’s. The Applicants rely on the expert evidence of Graham Ospreay who concluded without reservation that the signature was not Deodat’s. The Respondents rely on their expert, Linda Pitney, who concluded that the signature was Deodat’s.
[51] It is important to understand the genesis of these documents in order to comprehend the underpinnings to the will challenge. As indicated in the outline of facts above, Ms. Persaud’s evidence was that Deodat asked her to prepare the will and the Acknowledgment of Trust for him. She told the court that Deodat said he wanted to protect himself and his father. His relationship with his “ex” was difficult and he told her that she had “put him in jail a few times.” After Ms. Persaud sold her bar, they continued to talk about these documents from time to time, but in 2012, the plan to prepare them began to crystallize. Ms. Persaud took more formal instructions about the documents from Deodat by phone in October 2013. She took notes with respect to the Simsbury property description and Deodat’s father’s name, but she threw the notes away after she drafted the documents.
[52] Ms. Persaud testified that she used her own will as a precedent. She did the same with the Acknowledgment of Trust as she had prepared something similar for her own father. She called Deodat on Friday, October 4, 2013 to review his instructions. On Saturday, October 5, 2013, she typed the documents, dated them and printed them out, but did not save them to her computer. She and Deodat had arranged to meet that Sunday (October 6th) in order to sign the documents.
[53] Deodat and his father arrived on October 6th at the prescribed time. The Acknowledgment of Trust was signed first by Deodat and his father. Kemraj was then asked to leave and Deodat signed the will. Ms. Persaud and her downstairs tenant, Mr. Edwards, witnessed the will. Ms. Persaud put two original signed copies of each document in an envelope and gave it to Deodat. Ms. Persaud kept no copies of the documents in any form. Ms. Persaud did not charge Deodat for preparing these documents. He was a member of her community who could not afford a lawyer. She wanted to help him.
[54] Ms. Persaud went to the viewing at the funeral home when she learned of Deodat’s death. She spoke to Kemraj briefly at the viewing but not about the will or the trust agreement. About two weeks after the funeral, she contacted Kemraj to tell him that she had prepared a will for his son. According to Ms. Persaud, he was not aware that Deodat had a will.
[55] While there was some confusion about the number of computers Ms. Persaud had at the relevant times, it appears that when she drafted the documents in question, she had a desktop and a laptop computer. She drafted the documents on the desktop and never saved them. In December 2013, she replaced the desktop with a new tablet and disposed of the desktop. She testified that both the laptop and the desktop were slow and had viruses.
The Forensic Expert Evidence
[56] John Bradley gave evidence on behalf of the Applicants. He is the CEO and Chief Technical Officer for SiQuest Corporation. He was qualified to give expert evidence in the area of forensic examination of laptop computers. His report dated May 6, 2016 was filed as Exhibit 2. The Applicants asked him to examine the hard drive of Ms. Persaud’s laptop computer. He copied the contents of the hard drive to use as a working copy and was able to verify that the laptop belonged to Ms. Persaud.
[57] Mr. Bradley testified that he found six folders in the recycle bin of that computer which contained software used for the permanent deletion of data. These “cleaners” were all created within the period of October and November 2015. He testified that in his experience it is unusual to find so much cleanup software on one computer. He agreed that such software can also be used as anti-virus software, and may be used by a computer technician for that purpose.
[58] Ms. Persaud testified that her laptop computer had a virus and she took it to a computer technician to have it fixed at some point in 2015. She was unaware of what software programs were used to fix the virus. She was also unaware whether those programs still remained on her computer.
[59] Mr. Bradley did not find any copies of the will or the Acknowledgment of Trust on the computer. By using keyword searches, he did find the following documents:
(a) A JPEG copy of the Acknowledgment of Trust created on September 2, 2014.
(b) A high-resolution scanned copy of Deodat’s Ontario Motor Vehicle Permit dated in 2007. The file was created on July 3, 2014.
(c) A JPEG copy of a cemetery purchase agreement between Glendale Funeral Home and Hardat for cremation services for the deceased. The file was created on March 25, 2015.
(d) A JPEG copy of a payment receipt from Glendale Funeral Home issued June 1, 2014. The file was created on March 25, 2015.
(e) A JPEG copy of a funeral service agreement between Glendale Funeral Home and Hardat dated June 1, 2014. The file was created on March 26, 2015.
(f) An unsigned letter dated July 3, 2014 from Hardat to Chanderdai authorizing the transfer of the Escalade to Chanderdai. The letter was created on July 3, 2014. It is formatted with a border.
[60] In addition to the above documents, Mr. Bradley found an email in the inbox of Ms. Persaud’s YAHOO account. The email is dated March 25, 2015 and is from Meera Tirbhawan, one of Kemraj’s granddaughters. Attached to the email are seven documents which Mr. Bradley indicated were documents associated with Deodat’s funeral and appear to be the same as (c), (d) and (e) above.
[61] Ms. Persaud was asked why Ms. Tirbhawan emailed the funeral documents to her. She answered that she only asked for a copy of the Acknowledgment of Trust and Ms. Tirbhawan sent her that plus a number of other documents she did not ask for. Ms. Persaud was unable to answer why she asked for this document when her testimony was that she had received a copy of both the will and the Acknowledgment of Trust on July 29, 2014 when she attended the lawyer’s office to sign the affidavit of execution for the will. She testified that she thought she asked for it because she knew there was going to be litigation.
[62] Ms. Persaud was also asked about the scanned motor vehicle permit and transfer letter created on July 3, 2014. She testified that she could not recall creating the letter and in any event she never creates letters like this with a border around the edge.
The Handwriting Experts
[63] Each party called a handwriting expert witness to deal with the central issue in this case: did Deodat sign the impugned documents or were the signatures forged?
[64] Mr. Ospreay testified on behalf of the Applicants. He authored two reports: his original report dated June 18, 2015 and his reply report dated February 11, 2016. Ms. Pitney testified on behalf of the Respondents. Her report was dated August 10, 2015. Both experts were qualified to give opinion evidence in forensic handwriting analysis, and both acknowledged their duties as expert witnesses.
[65] Mr. Ospreay has been a forensic document examiner and forgery analyst since 1990. He has been qualified as an expert over 50 times. In his first report, Mr. Ospreay reviewed the signature on copies of the will and the Acknowledgment of Trust. He came to the Newmarket courthouse to review the original signature on the will filed with the court. He then compared those signatures to the signatures on the five documents in his report which he called “standards”, or known signature specimens. No original of the Acknowledgment of Trust has ever been located.
[66] The standards he used were a travel consent letter dated July 15, 2010, a vehicle plate permit dated July 20, 2012, two travel consent letters dated August 14, 2012 and a travel consent letter dated July 29, 2012. All of the standards were original documents. After comparing the standards to the documents in question, Mr. Ospreay concluded that Deodat did not sign the will or the Acknowledgment of Trust. He testified that his opinion was unqualified and that he had the highest degree of certainty about his conclusion. While noting that he only had a copy of the Acknowledgment of Trust, this did not affect his opinion.
[67] Mr. Ospreay examined the standard and the questioned documents using microscopy, illumination and measurement techniques. His findings indicate 17 dissimilarities between the will document and the five standards, and 15 dissimilarities between the Acknowledgment of Trust and the five standards.
[68] Mr. Ospreay was asked how he could come to such a definitive conclusion using only five standards for comparison. His evidence was that he was able to do so because the signature on the standards is fundamentally different from the signature on the questioned documents. He agreed that within the five standards there was a natural variation in Deodat’s signature; however, that variation is not as significant as the variation between the signature on the questioned documents and the standards.
[69] Ms. Pitney gave evidence on behalf of the Respondents. She received her training at the International Graphoanalysis Society in Chicago and obtained her certificate in 1970. At that time, that was the only place to obtain such training. She has testified in court as an expert over 100 times and acknowledged her duty to the court as an expert.
[70] Ms. Pitney used computer scanning, photography and microscopy in her analysis. She had 46 standards to which she compared the signatures in the questioned documents. She had read Mr. Ospreay’s reports. Her evidence was that Mr. Ospreay used a different methodology to come to his conclusions that concentrated more on the individual strokes in the handwriting.
[71] Ms. Pitney compared the signature on the questioned documents to the signatures on the 46 standards she was given. She looked at specific letters in the questioned signatures and compared those letters to the ones in the signatures in the standards. She agreed there was some variance, but not to a great degree. She focused on the similarities as opposed to the differences in the signatures. She concluded that the signature on the questioned documents was the same as the signature on the standards. While there was variation in Deodat’s signature, Ms. Pitney was satisfied that he signed all of the standards and the questioned documents. She concluded that while Deodat signed his name differently each time, there was consistency in his letter formation and the dissimilarities in the signature were not an indication of a forgery.
[72] Ms. Pitney recalled that she was given an original of the will document. She seemed fairly certain that standards 2-4 and 34-38 were originals. However, she was unable to recollect exactly which of the remaining standards she was given were originals.
[73] Ms. Pitney testified that signatures on standards from five to ten years earlier should not be disregarded entirely, but acknowledged that signatures change over time. With respect to the passport signature, she gave it 85/100 in terms of its weight for comparison purposes. Ms. Pitney agreed that there can be familial tendencies in handwriting and that siblings’ handwriting may show strong similarities, but some differences are still likely to come through.
[74] In Mr. Ospreay’s reply report dated February 11, 2016, he reviews and critiques Ms. Pitney’s report. Mr. Ospreay reviewed the 42 standards in Ms. Pitney’s report and was not shaken in his unqualified conclusion that the signatures on the questioned documents were not Deodat’s. Mr. Ospreay conceded that he used copies of the documents in Ms. Pitney’s report. His evidence was that he asked Ms. Pitney for the originals, but they were never provided.
[75] Mr. Ospreay commented that standards K11b and K12 in Ms. Pitney’s report were not Deodat’s signature so he omitted them from his analysis. He also suggested caution regarding standards 2 and 3 given the ages of those signatures. He did not agree that the passport signature was useful, because the signature must be altered to fit within a limited space. He disagreed with Ms. Pitney that the variations in Deodat’s signatures could be labelled as “extreme” and questioned her contradictory conclusion that his signature could be both naturally variable and inconsistent at the same time. Mr. Ospreay also sets out detailed reasons why he does not agree with Ms. Pitney’s conclusions about the formation of Deodat’s “D”, “t” and “K” in his signatures.
Analysis and Conclusion – Validity of the Will and the Acknowledgment of Trust
[76] The Applicants’ counsel contends that the propounder of a will has the onus of proving its validity. The validity will depend, in part, on the witnesses’ proper attestation (Chahayda v. Alberta (1980), 29 A.R. 199 (Surrogate C.), at paras. 31-32). Counsel submits the subject will is not valid because the witnesses have not proved proper attestation.
[77] The Respondents’ counsel asserts that the party that is attacking the will by alleging fraud has the burden of proving the will is invalid on a balance of probabilities (Vout v. Hay, 1995 105 (SCC)).
[78] It is well known that where suspicious circumstances exist, the presumptions of capacity, knowledge and approval are spent and the legal burden of proving these elements reverts to the propounder of the will, in this case the Respondents. The standard of proof is the civil standard of the balance of probabilities. I find that there is insufficient evidence in this case to meet that standard. That is, I find that it is highly probable that Deodat signed neither the will nor the Acknowledgment of Trust.
[79] In coming to that conclusion, I rely on a variety of evidence that was given at this trial, but the most weight is given to Mr. Ospreay’s evidence based on his reports. I found Mr. Ospreay to be an articulate and credible witness who was unshaken in cross-examination. He is experienced and has given expert evidence many times in the area of forensic handwriting analysis. The certainty with which he arrived at his original conclusion and his clear rejection of Ms. Pitney’s conclusions simply cannot be ignored.
[80] I reject Ms. Pitney’s conclusions entirely. I found her to be unprofessional, disorganized and at times fumbling in her evidence. I highlight the following with respect to my concerns about her evidence.
(a) There was considerable evidence given by her about who prepared her report. It was disconcerting to the court that such an issue even came up in the context of an expert witness. At first, she said her assistant prepared her report. She then changed that and claimed with some certainty that her assistant assembled the documents based on her instructions.
(b) Ms. Pitney did not bring a copy of her signed report with her when she came to court. That seemed odd given that she was well aware of why she was being called to testify.
(c) Ms. Pitney failed to note in her report whether or not the standards she examined were originals or copies. When asked to go through them to see if she could recall which were originals, she was hesitant and indecisive in her answers. While she was critical that Mr. Ospreay used copies of her standards for his reply report, it is unclear how many of her own standards were copies.
(d) Shockingly, Ms. Pitney was unaware that the signed report was sent out from her office with four of the 46 standards missing from it. She based her report on a comparison of the questioned documents with 46 standards, but four of the standards were not available to the court. Ms. Pitney claimed she could get them and bring them back to court. By then, of course, the entire point was moot.
(e) I accept Mr. Ospreay’s critique that some of the standards Ms. Pitney used were either too old, too small or were not Deodat’s signature at all. Ms. Pitney was unwilling to concede that any of these issues presented a problem and went on to use the standards as if each should be given similar weight despite their age or other obvious flaws.
(f) I also accept Mr. Ospreay’s opinion that Ms. Pitney incorrectly started her analysis with the premise that the signatures on the questioned documents were authentic and then worked backwards to justify discrepancies when comparing them to known signatures. This approach was made clear when Ms. Pitney said that writers often take more time with their signatures on important documents such as the ones in question. She testified that they tend to sign “slower and neater” on such documents. This essentially presumes that the signatures on the impugned documents were authentic before starting her comparison with the standards. She also refers to the “signature” page of the will and pages of the will which contain several initials including those of “DK”, which is misleading to say the least.
(g) Ms. Pitney critiqued Mr. Ospreay’s report and referred to him having concluded that a forgery had been perpetrated. Mr. Ospreay made no such conclusion. Such legal findings may only be made by the court.
(h) Ms. Pitney concluded that there was extreme natural variation and inconsistency in Deodat’s signature. I agree with Mr. Ospreay that this appears to be a contradiction in terms. Natural variation would be, as Mr. Ospreay describes it, “habitual.” How then can it at the same time be inconsistent? This part of Ms. Pitney’s conclusions was confusing and unreliable.
[81] One further comment must be made regarding the will document. It is undisputed that there were two originals. One was filed with the court office with the Application for Appointment of Estate Trustee with a Will. The other was apparently in the Respondent counsel’s possession. Mr. Ospreay was not given an opportunity to examine that original. This was typical of the unreasonable resistance met by the Applicants from the Respondents throughout this case. Instead, Mr. Ospreay was forced to go to the court office and submit to their requirements in terms of the length of time he could examine the document and what equipment he could use to do it.
[82] In addition to my unqualified acceptance of Mr. Ospreay’s conclusions, there is other evidence that gives this court pause concerning the genesis and validity of the impugned documents.
[83] Chanderdai was invited by the Khemraj family to attend a meeting at Glendale Funeral Home in early June 2014 for a funeral planned for June 6th. The meeting was set to discuss arrangements for the funeral and cremation. There was no mention of a will at that time. Kemraj’s testimony was that he did not find the will until mid-June when he went to clean out Deodat’s truck.
[84] Ms. Persaud’s evidence was troubling. Starting with the creation of the will and the Acknowledgment of Trust, the timing of it must be questioned. Based on Ms. Persaud’s evidence, she and Deodat began talking about these documents sometime between 2005 and 2007. However, the documents were allegedly not created until October 2013, some six months before his accidental death and six or potentially eight years from when they started to discuss the documents. The timing would be innocuous except in the context of a will challenge.
[85] Next, Hardat insisted that he had not met Ms. Persaud or contacted her in July 2014. Ms. Persaud testified that she did not recall preparing the letter for the transfer of the Escalade from Hardat to Chanderdai dated July 3, 2014. She did not know why there was a scanned copy of Deodat’s plate permit in her computer dated the same day. Her responses in this regard rang hollow as did Hardat’s evidence when it became known that the Khemraj family lawyer intended to file the Notice of an Application for a Certificate of Appointment of an Estate Trustee with a Will on July 4, 2014. A will was needed in order to file that application.
[86] I make no particular finding with respect to these circumstances other than it is curious that Ms. Persaud would have a high resolution copy of Deodat’s signature on her computer the day before it was necessary for a will to be produced for the Application. Given the documents found on Ms. Persaud’s computer, the lack of recollection on the part of both Hardat and Ms. Persaud concerning whether they met or contacted one another in July 2014 is difficult to accept.
[87] Ms. Persaud’s involvement in this matter is curious. If she was indeed a stranger to the family as she claimed, why did she ask Ms. Tirbhawan to send her copies of documents in March 2015? Why did she need a scanned copy of the Acknowledgment of Trust in March 2015 when her evidence was that she received one when she went to sign her affidavit of execution in late July 2014?
[88] Although it is not, strictly speaking, unheard of not to have affidavits of execution signed at the same time as the will, it is common practice in the event of the disappearance or death of the witness. The affidavits of execution in this case were not signed until late July 2015, almost two years after the will was allegedly signed.
[89] Ms. Persaud was uncooperative with respect to necessary disclosure for this proceeding. The Applicants’ counsel wrote to her at least three times asking for a Word copy of the documents in question. Ms. Persaud refused to provide them. In her letter to counsel dated April 5, 2016, she writes that she does not know much about computers or how to get the information requested. Interestingly, she does not say that she deleted the documents from her computer, which is why she could not send them. That only came out in her evidence at trial. While it is true that she was not a party to this proceeding and she had valid privacy concerns about client files on her computer, all of these issues could have been resolved with a consent court order. Instead, Ms. Persaud necessitated a pre-trial motion (heard by me) insisting that she should not have to produce her computer. Her resistance was puzzling given the alternatives available for dealing with the Applicants’ counsel’s reasonable request.
[90] Ms. Persaud did not mention that she had sent her computer out for anti-virus work until trial. There is a concern that this evidence was tailored to respond to queries raised in Mr. Bradley’s report about the number of “cleaning” software programs found on her computer for the purpose of permanently deleting items on her hard drive.
[91] The sequence of events leading up to the signing of the questioned documents at her home left this court ill at ease. As a real estate agent, Ms. Persaud was not unfamiliar with creating legal documents and agreements. The fact that she would create the questioned documents, date them in advance, print them off and then delete them from her computer makes no sense. What if the documents were wrong in some substantive aspect? She would have to recreate them from scratch since she had not saved them. Her evidence was that it took her several hours to create them. By deleting them from her computer, she risked having to repeat that work again.
[92] The testimony of Mr. Edwards would likely have been helpful in providing some objective evidence of the circumstances of the will’s execution. Although he was Ms. Persaud’s tenant for many years and contacts her regularly when he returns to Canada, somehow he was unable to be called as a key witness for the trial.
[93] While Ms. Persaud testified that she did the work for Deodat as a favour to someone in her community, there are aspects about the creation of these documents and the timing of their creation that are concerning. There is insufficient evidence to directly implicate Ms. Persaud in what this court has found to be forged documents; however, the unanswered questions raised by her evidence combined with the confirmatory evidence of Mr. Ospreay solidifies this court’s finding that the Respondents have not met their burden of proving that the will was properly executed. The same findings can be applied to the Acknowledgment of Trust for the same reasons.
[94] Kemraj testified that he was present and saw his son sign the Acknowledgment of Trust in Ms. Persaud’s presence. His evidence was that he signed one copy. Ms. Persaud’s evidence was that he signed two copies. She also said she gave Deodat two originals of both the will and the Acknowledgment of Trust. Both original copies of the will have been located, yet only a photocopy of the Acknowledgment of Trust has been found.
[95] Bharat and Hardat testified that they do not have any written trust agreement with their father. According to them, that is not necessary, because they trust one another and their spouses, and everyone is aware of the arrangement to hold their 1/4 share in trust for their father. However, it was clear from the Respondents’ evidence that there is mistrust and animosity on their part towards Chanderdai. They inferred that she was responsible for putting Deodat in jail. Despite photographs and the evidence of the Applicants, as well as the DNA evidence concerning Tyler’s paternity, there was unwillingness on their part to concede any meaningful contact or relationship between Deodat and Chanderdai.
[96] I infer that the concern, of course, is that without a written trust document Deodat’s share of Simsbury would form part of his estate, since he owned a 25% share as a tenant in common with his two brothers and his father. Without a will, that share would go to Deodat’s dependants, not his father. This was not the arrangement the family apparently intended and in particular Kemraj, who, had the most to lose if there was no written trust document. Absent a trust agreement, even if Kemraj’s evidence is accepted at face value, 1/4 of his contributions towards mortgage payments, taxes and insurance resulting in the building of equity since the purchase of Clydesdale would then benefit Chanderdai, Kenny and Tyler.
[97] While I again make no particular finding with respect to Kemraj’s involvement with the forgery of the Acknowledgment of Trust, it cannot be ignored that he stood to benefit the most from the existence of that document. That fact, combined with timing of its creation (only six months prior to Deodat’s death) and the animosity towards Chanderdai are underlying circumstances that solidify this court’s view that Mr. Ospreay’s opinion about the signature must be accepted.
[98] While not specifically argued by the Respondents, there can be no other form of trust in relation to this property. The presence of a fraudulent document prevents the law of equity from intervening by way of either a resulting or constructive trust in these circumstances.
[99] Given all of the above, the registered title document governs the ownership of Deodat’s share in Simsbury. His share of that property will form part of the estate on what is now an intestacy.
The Issue of Dependency under the [Succession Law Reform Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-s26/latest/rso-1990-c-s26.html), R.S.O. 1990, c. S.26 (SLRA)
Background
[100] The remaining issue in this trial concerns whether or not Chanderdai meets the definition of a dependent spouse under the SLRA. Section 57 of the SLRA defines a dependant as “(a) the spouse of the deceased…to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death”.
[101] Chanderdai and Deodat were never divorced. However, there is contradictory evidence as to whether they were living in a spousal relationship. Chanderdai testified that she and Deodat lived at Clydesdale when she first came to Canada. As a result of the criminal incident in September 2004 and what she described as the controlling nature of Deodat’s father, she and Deodat moved out shortly after the family moved to Simsbury. She and Deodat then moved together to two different apartments and finally to Kirby, where they resided together until Deodat’s death.
[102] Chanderdai explained that her husband did not go on title to Kirby because of his 25% interest in Simsbury. He was contributing to Simsbury and therefore could not afford to pay the deposit for Kirby. The Respondents questioned this evidence given that Hardat purchased his own home without difficulty notwithstanding his 25% interest in Simsbury.
[103] A mortgage was put on Kirby when it was purchased. Chanderdai did not obtain Deodat’s consent for the mortgage registration and indicated on the mortgage document that she was not a spouse. She could not recall if the lawyer acting on the purchase and mortgage asked her about her spousal status.
[104] Chanderdai testified that she and her husband slept in the master bedroom. They had sexual relations about three times a week. Deodat parked his truck in the driveway at Kirby. Each morning he would leave for work at 5:00 a.m. Chanderdai denied that Deodat parked his truck on Kennedy Road each night and drove his car to it each day.
[105] In terms of daily routine, Deodat would pick up the children from school on most days and then care for them until Chanderdai got home from work. His work hours were flexible, and he was generally able finish work at 3:00 p.m. If he was not able to leave work early, Tyler could stay at the school daycare until 6:00 p.m. The family would then eat dinner together. Deodat also cared for the children on weekends, as Chanderdai worked in her salon most weekends. While his wife was at work on Saturday or Sunday, he would take the children to visit his parents. In terms of financial arrangements, they did not have a joint account, but Deodat gave her $800 a month for household expenses.
[106] Deodat owned a Cadillac Escalade, which he parked in the driveway at Kirby. He would keep a steering wheel lock on it, as the house did not have a garage. Chanderdai drove her own Honda CR-V. After Deodat’s death, Chanderdai arranged to pay off the $14,000 loan on the Escalade and have it transferred into her name. The financing company permitted this because Chanderdai was shown as the next of kin on the loan documents. Deodat’s address was shown as Kirby.
[107] Chanderdai explained that Deodat was required to give his paycheque to his parents. They controlled all of his money. She and her husband would have to drive to Markham to get money from Deodat’s parents for expenses. She explained that she was excluded from Khemraj family discussions about money.
[108] It was Chanderdai’s father-in-law and her husband who told her to show her marital status as “Separated” on her tax returns between 2004 and 2015. They were also the ones who insisted that Deodat show his home address as Simbury and his marital status as “Single” on his tax returns. Chanderdai could not recall if she discussed her marital status with her accountant or whether she reviewed the contents of her tax returns before signing them.
[109] Chanderdai testified that she talked to her husband’s family and had a good relationship with them. However, she saw them only occasionally for family celebrations as she worked on weekends.
[110] Chanderdai was adamant that Deodat did not have a will before his death. He would have told her about it if he had made one. He would never have made a will leaving virtually nothing to his children. He never mentioned Ms. Persaud and, in any event, he was not a person to go out to bars. He shared his life with Chanderdai and their children. His parents were controlling about money issues, but he did not discuss this with her.
[111] Chanderdai made reference to a number of photos in her evidence. Forty-seven colour photos were contained in the joint document brief at Tab 40. These photos ranged over a number of years and depicted family outings with the children; birthday parties at Kirby with the children and members of Deodat’s family; intimate moments of Deodat and Chanderdai feeding cake to one another at family birthday celebrations; Kenny and Tyler with their paternal grandparents; Deodat, Chanderdai and their children with Chanderdai’s relatives when they visited Canada and the children with the Khemraj family at their home.
[112] In reply, the Applicants submitted Exhibit 16, a photo of Kemraj and Raouti with Chanderdai and her mother (now deceased) at the Kemraj family home in 1994. This photograph directly contradicted Kemraj’s evidence that Chanderdai left Clydesdale after living there for 10 days, never to return.
[113] Chanderdai was challenged on these photographs in cross-examination. She was asked why she was never in any of the photographs (other than Exhibit 16). Her response was that she took the photos. This was corroborated by Kenny but disputed by the Respondents in their evidence. The Respondents submitted that the photos were dated and many were photos of Chanderdai and Deodat with her relatives. There were no photos depicting the Deodat’s parents at Kirby.
[114] The Respondents’ position is that Chanderdai and Deodat have been separated since shortly after she came to Canada in 1993. They all testified that Deodat lived full-time at Clydesdale and then Simsbury. While they did not deny that he visited with his children and brought them to Simsbury from time to time, Deodat always had his bedroom at Simsbury and contributed to household expenses.
[115] The Respondents also rely on the evidence of their real estate agent and friend, Raymond, who testified that he became friends with Deodat over the years. He would drop by the Khemraj home at least two times a week, especially in the summer. He would find Deodat washing his car, and he would sometimes stay for a BBQ with the family. Sometimes, he went to Deodat’s room at Simsbury. He did not see any signs that a woman was living with him. Deodat often asked Raymond if he could find “a girl” for him. Close to the date of Deodat’s death, Raymond said that he had been planning to introduce Deodat to a woman he knew through his church.
[116] Credibility is an issue in this case. I found everyone’s evidence to be, in different degrees, self-serving. This necessarily coloured their testimony and did not permit me to give any of the parties’ evidence the full weight it might have had in other circumstances.
[117] The Respondents were clearly bitter towards Chanderdai and concerned about the financial repercussions of losing the 25% interest in Simsbury. Chanderdai would benefit financially from the estate and her wrongful death claim so long as she had status as a dependant spouse. I find that financial motivation and long-standing family resentments marred the parties’ testimony in this case and made it generally unreliable.
Analysis and Conclusion
[118] In order to be a dependant under Part V of the SLRA, Chanderdai must have been Deodat’s spouse on the date of his death. The definition of spouse includes persons who are married to one another on the date of death. Clearly that criteria is met in this case.
[119] However, the matter does not end there. Pursuant to ss. 57-58 of the SLRA, being in a certain relationship to the deceased (i.e., as a spouse, parent, grandparent, child, grandchild or sibling) is only one of the criteria that must be satisfied before dependants’ relief is awarded (Theano v. Hinrichsen Estate, 2006 3279 (ON SC), at para. 8). Based on the facts in this case, Chanderdai must additionally demonstrate that Deodat was providing support to her and was under a legal obligation to do so on the date of his death (Theano, at para. 8).
[120] Support need not be direct financial support; it can also be providing basic human needs (e.g., shelter). A testator’s conduct can also suggest an intention to provide support (Reid v. Reid, 2005 20793 (ON SC), at para. 21, rev’d on other grounds 2008 8274 (ON SCDC)).
[121] As Dymond Surr. Ct. J. wrote in Re Davis and Davies, 1979 1979 (ON SC):
[S]upport…includes not only furnishing food and sustenance and supplying the necessaries [sic] of life, but also the secondary meaning of giving physical or moral support…”is the provision sufficient to enable the dependant to live neither luxuriously nor miserably, but decently and comfortably but decently and comfortably according to his or her station in life”…I am inclined to the view that the word “support”…extends that meaning to include what might by some be considered as non- essentials or luxuries.
[122] For the reasons set out below, I find that Deodat was providing both financial and moral support to Chanderdai because they were in spousal relationship.
[123] The Respondents dispute that there was any such relationship between Deodat and Chanderdai. They rely on Molodowich v. Penttinen, 1980 1537 (ON SC) with respect to an analysis of the indicia of a spousal relationship. In para. 16 of that case, the court refers to several subheadings of indicia for its analysis including shelter, sexual and personal behaviour, services, social, societal, economic support and children.
[124] The Respondents made detailed submissions about the lack of indicia in this case. I agree that there does appear to be a lack of indicia of a spousal relationship in some areas. However, overall, I find that such a relationship existed, although perhaps not in a traditional form.
[125] With only contradictory evidence available on this point, I find that none of it is completely reliable. That is, it appears that Deodat was trying to please everyone. He knew that his parents and brothers were not fond of Chanderdai and blamed her for his criminal record. He knew that Chanderdai found his father controlling. Chanderdai testified they left Simsbury for this reason.
[126] I find that Deodat was living a form of double life. That is, he may well have stayed at his parents’ home at times, but Chanderdai either did not know this or turned a blind eye. His parents and brothers did not question him about his comings and goings, so it is also likely he spent time at Kirby and did not reveal this to his family. None of this means he was not in a spousal relationship with Chanderdai, although it is conceded that the relationship may not have been as traditional as most.
[127] Dealing with the issues the Respondents have raised, the following findings of fact underpin my decision in this regard:
(a) Deodat and Chanderdai were never divorced. There was no evidence that either of them was in a relationship with anyone else. Raymond testified that Deodat asked him to find a girl for him. Raymond’s evidence must be approached with caution. He was the family’s long time real estate agent. He likely had some motivation to maintain that relationship.
(b) At several points in Kemraj’s evidence, he referred to Chanderdai as his daughter-in-law.
(c) Bharat testified that his mother cleaned Deodat’s room and washed his clothes. However, the mother was never called to testify as she was in ill-health. Curiously, there were no photographs of Deodat’s room at either Simsbury or Kirby.
(d) Hardat and Bharat testified that Deodat contributed towards utilities at Simsbury. However, Bharat’s evidence was that when Hardat left, he and Deodat split those expenses. This is curious given that there were three people in Bharat’s family and Deodat was allegedly on his own. Why would Deodat agree to this arrangement when he was paying $800 a month to Chanderdai for household expenses and, according to Hardat, the trucking business was not doing well?
(e) I am not persuaded that the fact that Chanderdai requested Deodat’s cell phone, keys to the Escalade and his jewellery back from the Respondents is significant. I accept Chanderdai’s evidence that he had these items with him when he died. Many photographs showed Deodat wearing a large gold necklace. Chanderdai did not receive any of Deodat’s jewellery back from his family, which she intended to keep for her sons.
(f) I accept that Deodat used Simsbury as his mailing address, perhaps at his father’s insistence, as Chanderdai suggested. Interestingly, he showed Kirby as his address on the Alphera documents related to his Escalade loan and on the travel consents. The fact that Deodat had a different mailing address from Kirby does not mean that he and Chanderdai were not in a spousal relationship.
(g) None of the Respondents could say with certainty that Deodat slept at Simsbury every night. He was an adult living with his parents. He was free to come and go. Sometimes, his job kept him late. His father went to bed at 8:00 p.m. every night and was unaware when and if Deodat was there in the evening. Hardat’s evidence was that he had no idea where his brother went or what he did once they parted at the end of the workday. Bharat and his family lived in the basement. Deodat’s room, according to the Respondents, was on the second floor. Bharat conceded that he was uncertain when Deodat came home every day.
(h) There was no evidence from Chanderdai that Deodat gave her cards or gifts. There were some photos of them sharing cake at birthday celebrations. It is not for this court to define a spousal relationship based on cards and gifts. Some couples no doubt exchange such things as tokens of affection or love. Some may not for many reasons which could be financially or culturally related.
(i) Chanderdai did not testify that she and Deodat shopped together, shared household chores or that she performed any domestic services for him. The evidence was that this couple worked long hours. Deodat complained of his work hours, according to Ms. Persaud. Chanderdai worked in a hair salon. Her peak hours tended to be the opposite of Deodat’s – evenings and weekends. There was no evidence at all about how their household was run; however, Kenny’s evidence was there was dinner each evening and he did not complain about lacking in any necessities. Somehow, the household chores were done. We do not know which parent did what. That fact does not mean that Deodat and Chanderdai were not living as spouses.
(j) Mention must be made of the nature of their relationship. Hardat called it “volatile.” Chanderdai conceded that they had ups and downs just like every couple. Ms. Persaud’s evidence was that Deodat complained that Chanderdai “put him in jail.” There is no doubt that this relationship was a difficult one at times. However, there was clearly some bond between them. There was evidence that Deodat breached his bail in order to contact Chanderdai (and continue to live with her according to Chanderdai), that they socialized with her family visitors and held birthday parties for their children. They conceived two children well after the Respondents insisted that they were separated.
(k) There was contradictory evidence about whether Chanderdai ever went to the Respondents’ home after the alleged separation. She testified that she went on occasion and that once she took some pictures of a religious ceremony at the Khemraj home (see exhibit 40-431 and 40-432). The Respondents denied that Chanderdai was ever there after she left Clydesdale. There is, of course, Exhibit 16, which confirms that Chanderdai was at Simsbury on at least one occasion. The Respondents objected to this evidence. They complained that they were unable to call Kemraj with respect to his evidence about the photograph. However, Kemraj’s evidence in chief was that Chanderdai never came back to his home, ever (my emphasis), once she left Clydesdale after living there for only 10 days. The photograph entered in reply by the Applicants therefore complies with the rule in Brown v. Dunn (1893), 1893 65 (FOREP), 6 R. 67, (H.L.), and I see no reason not to give it full weight. As such, Exhibit 16 undermines the Respondents’ evidence about how often Chanderdai was at their home and under what circumstances.
(l) I attach no weight whatsoever to the fact that Chanderdai noted her spousal status as “Separated” on her income tax returns and declared that she was “not a spouse” on the Kirby mortgage document. Deodat noted his spousal status as single for tax purposes. Hardat, Bharat and Deodat declared themselves as single on the 2006 Simsbury mortgage documentation when they were all married. There is a concern with respect to all of these parties and the veracity of their declarations on important documents. None of them appeared to take such declarations seriously or read through the documents. Chanderdai’s evidence was that she made such false declarations because her husband asked her to. She did not question him on such things. It was not acceptable within her culture to do so.
(m) The Respondents submitted that there was no evidence of Chanderdai and Deodat socializing together or representing themselves as husband and wife to the world at large. They suggested that neighbours and Chanderdai’s brother (who lived in the basement apartment) should have been called to verify the relationship. However, other than Raymond, the Respondents did not call any independent witnesses to verify that Deodat lived full time at Simsbury. I have already indicated my concerns with Raymond’s evidence. It is true that Ms. Persaud testified that Deodat told her of his troubled relationship with Chanderdai and called her his “ex.” However, there are many questions about Ms. Persaud’s evidence as outlined previously in this judgment. As such, I do not give any significant weight to the evidence of either Raymond or Ms. Persaud with respect to the existence of a spousal relationship between Chanderdai and Deodat.
(n) There was much evidence about the location of Deodat’s work truck. Hardat insisted it was parked in a truck yard, because neighbours complained and local by-laws did not permit parking it at Simsbury. Chanderdai testified that the truck was parked at Kirby at night. Their driveway was in inferior condition because of this. There were some photos of the truck in the driveway at Kirby (Joint document brief, at pp. 425-26, 432, 436). There were no photos of the truck in the driveway at Simsbury. Therefore, based on the evidence at trial, the truck migrated between three different places: Simsbury, the truck yard at Old Kennedy Road and the driveway at Kirby. Again, I find that Deodat likely parked his truck at various times at all three locations. Whether he parked it at the Kennedy Road location or at Kirby is not a deciding factor in determining whether there was a spousal relationship. As Hardat testified, he had no idea what his brother did when they parted at the end of the work day.
(o) There was no evidence that Deodat had anything but a close relationship with his children. Indeed, both Hardat and Bharat testified that their brother had an excellent relationship with his nieces and nephews. He was apparently an involved and devoted father. Apart from the forgery, it defies logic that Deodat would make a will leaving in essence $700 to each of his children.
[128] Given all of the above, I find that Deodat was providing both moral and monetary support to Chanderdai on the date of his death because they were in a spousal relationship. This, combined with the fact that they were legally married, provides the necessary foundation to find that Chanderdai was a dependant of Deodat on the date of death.
Costs
[129] The parties shall provide written submissions on costs of no more than three pages in length exclusive of any Offers to Settle or Bill of Costs. The Applicants shall provide their submissions within seven days of the date of release of this judgment and the remaining submissions shall be provided on a seven day turnaround including any reply submissions. If no costs submissions are received within 35 days of the release of this judgment, the issue of costs shall be deemed to be settled. Costs submissions shall be submitted by email to my assistant Ms. Pope at robyn.pope@ontario.ca.
Madam Justice C.A. Gilmore
Released: December 14, 2016
CITATION: Khemraj v. Khemraj, 2016 ONSC 7796
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHANDERDAI KHEMRAJ, KENNY KHEMRAJ AND CHANDERDAI KHEMRAJ as contemplated Litigation Guardian for Tyler Khemraj, the minor child of the Deceased
Applicants
– and –
BHARAT KHEMRAJ, KEMRAJ KHEMRAJ, RAOUTI KHEMRAJ and HARDAT KHEMRAJ, personally and as Estate Trustee de son tort of the Estate of Deodat Khemraj, deceased
Respondents
REASONS FOR DEcision
Madam Justice C.A. Gilmore
Released: December 14, 2016
[^1]: See Amended Amended Notice of Application, filed at the commencement of trial.
[^2]: See Cross-Application Record, Tab 1.