Brathwaite v. Harding, 2018 ONSC 2488

COURT FILE NO.: CV-17-572851-0000

DATE: 20180509

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID BRATHWAITE

Applicant

– and –

CHESTER HARDING

Respondent

COUNSEL:

Courtney Kazembe and Richard Gorrin, for the Applicant

Chester Harding, Self-represented

HEARD: December 1, 2017 and March 6 and 28, 2018

REASONS FOR DECISION

Mr. Justice T. McEwen

1The sole issue to be determined at this time is whether the respondent, Chester Harding (“Mr. Harding”), is entitled to $250,000.00 contained in the joint bank account (the “joint account”) that he and Virena Licorish held with the Royal Bank of Canada (“RBC”) at the time of her death. Ms. Licorish also used the surname “Brathwaite”. I will, for clarity’s sake, refer to her as the “Deceased”.

OVERVIEW

2The Deceased passed away on February 14, 2017. The applicant David Brathwaite (“Mr. Brathwaite”) is her nephew. Mr. Harding is her cousin. Mr. Brathwaite was named as the executor in her undisputed will dated February 20, 2012. Mr. Harding was named as the alternative executor. They both enjoyed good relationships with the Deceased.

3The Deceased’s will is a straightforward document. It provides for the payment of debts, six modest bequests to other beneficiaries totaling $20,000, and that the remainder of the estate (the “Estate”) be divided equally between Mr. Brathwaite and Mr. Harding.

4Also, in 2012, the Deceased granted Mr. Brathwaite continuing powers of attorney for both property and personal care (the “POA”). Previously, Mr. Harding had been the power of attorney.

5In August 2016, Mr. Harding was added to the joint account. Later, in October 2016, the Deceased sold her house for $750,000 and the net proceeds of the sale were deposited into the joint account.

6Subsequent to the sale and the deposit of the funds into the joint account, the Deceased transferred $250,000 from the joint account to Mr. Brathwaite’s son, Davin Brathwaite (“Davin”). There is a dispute between the parties as to whether this money was really for the benefit of Mr. Brathwaite.

7At the time of her death the Deceased had approximately $280,000 remaining in the joint account. Mr. Harding subsequently withdrew $250,000 claiming that he was entitled to the money based on the specific wishes of the Deceased and the provisions of the joint account. Mr. Brathwaite, as estate trustee, disputes this and claims that the $250,000 belongs to the Estate.

8For the reasons that follow I am of the view that Mr. Harding is entitled to the $250,000 that was in the joint account as of the time of the Deceased’s passing and that this money passes to him outside of the Estate.

PRELIMINARY ISSUES

9Prior to conducting my analysis I will deal with two preliminary issues.

10First, Mr. Brathwaite’s counsel did not properly serve the application upon the six beneficiaries. Counsel advised that there was difficulty in finding some of the beneficiaries and that those that were served, albeit late, had not responded in any fashion.

11After some discussion the issue was initially resolved to my satisfaction on the basis that Mr. Harding agreed that he would leave the amount of approximately $27,000 that remained in the joint account to satisfy those bequests if he was successful at this hearing.

12Initially, I was satisfied with this undertaking. After hearing further submissions from Mr. Brathwaite’s counsel, however, it occurred to me that even though the amount in the account would satisfy the bequests, there were other liabilities concerning the Estate (involving taxes and other expenses) which may result in a shortfall.

13Mr. Brathwaite’s counsel undertook to contact each of the beneficiaries to determine if they wished to make submissions.

14He did so and has provided the court with affidavits from the beneficiaries Eleanor Brome, Hartley Griffith, Henderson Brathwaite (all of her whom reside in Barbados), Ester Darko, who resides in Brampton, and a letter from Clement Lawrence.

15The beneficiaries who provided affidavits support Mr. Brathwaite’s position in this application and have provided some limited evidence as to their views with respect to the Deceased’s intentions. Clement Lawrence has simply indicated that he leaves the matter in the hands of the court. The only other remaining beneficiary, Christopher Brathwaite, could not be located by Mr. Braithwaite’s counsel with the assistance of Mr. Harding.

16On this basis I am now prepared to consider this matter. Neither party has asked to make any further submissions based on the upon the affidavit evidence now filed.

17Second, when the matter first appeared before me on December 1, 2017 I was concerned that there was additional, relevant RBC documentation concerning the joint account that had not been obtained by the parties. Furthermore, Mr. Harding indicated that he wished to serve Mr. Johnnie Him with a summons to witness so that Mr. Him could give viva voce evidence. Mr. Him, an RBC employee, met with Mr. Harding and the Deceased when the account was opened.

18I adjourned the motion to March 6 so that the RBC documentation could be obtained and Mr. Him subpoenaed.

19Subsequently, the RBC documentation was filed with the court on the consent of the parties and Mr. Him gave brief viva voce evidence.

THE LAW

Evidence of the Deceased

20Given the nature of this litigation section 13 of the Evidence Act, R.S.O. 1990 c. E. 23 applies.

21Section 13 provides as follows:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

22Based on my reasons below, I am of the view that the RBC documentation and the evidence of Mr. Him provide sufficient corroboration to the evidence of Mr. Harding.

23Both parties also relied upon the evidence of the Deceased without objection. I allowed the evidence on the basis that it is admissible.

24As stated by Doherty J. (as he was then) in R. v. P.(R.) (1990), 58 C.C.C. (3d) 334, 1990 CarswellOnt 2696 (H.C.J.), at para. 25: “The rules of evidence as developed to this point do not exclude evidence of utterances by a deceased which reveal her state of mind, but rather appear to provide specifically for their admission where relevant.”(cited under § 6.449 of Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, The Law of Evidence in Canada, 4^th ed. (Markham: LexisNexis Canada Inc., 2014), at p. 342.

25In any event, I find that the Deceased’s statements constituted declarations against interest. Declarations of a person, even if deceased, which were against her pecuniary or proprietary interest at the time that she made them, are admissible as evidence of the facts contained in the declarations, provided that she had competent knowledge of the facts stated: The Law of Evidence in Canada, at p. 285, § 6.166; Kirpalani v. Hathiramani, 1992 CarswellOnt 540, [1992] O.J. No. 1594 (Gen. Div.), at paras. 63-64. In my view, this principle applies in this case. The Deceased’s statements, generally speaking, were made against her pecuniary interest as they largely dealt with her giving away the bulk of her Estate while she was still alive.

Onus of Proof

26Insofar as entitlement to the joint account is concerned I accept the submissions of Mr. Brathwaite that, since Mr. Harding did not contribute to the joint account (a fact Mr. Harding does not dispute), payment from the joint account to him would constitute a gratuitous transfer. As a result, there is a presumption of a resulting trust: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795 (“Pecore”). The onus therefore falls upon Mr. Harding to demonstrate that the transfer of the $250,000 to him was intended to be gift.

27Mr. Brathwaite submits that the RBC documentation created to set up the joint account is not evidence of an agreement between the Deceased and Mr. Harding as to beneficial title. In this regard he relies upon para. 60 of Pecore wherein Rothstein J.A. stated:

In the past, this Court has held that bank documents that set up a joint account are an agreement between the account holders and the bank about legal title; they are not evidence of an agreement between the account holders as to beneficial title: see Niles and Re Mailman.

28Mr. Brathwaite, however, neglects the following paragraph (para. 61), wherein Rothstein J.A. further stated:

While I agree that bank documents do not necessarily set out equitable interests in joint accounts, banking documents in modern times may be detailed enough that they provide strong evidence of the intentions of the transferor regarding how the balance in the account should be treated on his or her death: see B. Ziff, Principles of Property Law (4th ed. 2006), at p.332. Therefore, if there is anything in the bank documents that specifically suggests the transferor’s intent regarding the beneficial interest in the account, I do not think that courts should be barred from considering it. Indeed, the clearer the evidence in the bank documents in question, the more weight that evidence should carry.

29Based on the comments of the court in para. 61, I am of the view that I can consider the RBC documentation and determine whether the documents suggest the intentions of the Deceased and, if so, what weight they should be given.

ANALYSIS

30As noted, the Deceased enjoyed good relationships with both Mr. Brathwaite and Mr. Harding. They had both been named as her POA in the past and as of 2012 that responsibility fell to Mr. Brathwaite. Neither Mr. Brathwaite nor Mr. Harding, however, acted as POA as the Deceased retained capacity up until the time of her death. The will, which was in place at the time of her death, provided generously for both Mr. Brathwaite and Mr. Harding.

31Nothing of consequence occurred thereafter insofar as this lawsuit is concerned until the Deceased and Mr. Harding attended upon the RBC bank in August 2016 to add Mr. Harding to the joint account.

32There was a practical reason to add Mr. Harding to the joint account. Mr. Harding was providing a lot of care and assistance to the Deceased and paying her bills. Mr. Harding maintains that when the joint account was opened the Deceased promised him $250,000 from the account upon her death. Mr. Brathwaite disputes this assertion although he has provided no direct affidavit evidence asserting that the Deceased made any claims to the contrary.

33In my view, the RBC documentation surrounding the opening of the joint account and the evidence of Mr. Him are significant in establishing Mr. Harding’s entitlement to the $250,000 for the following reasons:

• An authorization was executed by the Deceased and Mr. Harding to add Mr. Harding to the joint account. There is a signing line for each of their signatures. Just above each signing line it is plainly stated:

  You or each of acknowledges that upon the death of any joint owner, the right of survivorship will apply, which means the funds in the account shall be paid to the surviving joint owner(s) (except in Quebec).

  Both the Deceased and Mr. Harding signed the document.

• The RBC branch manager, Maria Cannarella (“Ms. Cannarella”), wrote to the Deceased on December 7, 2016. In that letter Ms. Cannarella confirmed that “RBC has clearly explained the risks to you with respect to your joint account with Mr. Harding”.

  Ms. Cannarella went on to explain that “as joint owners, you and the joint owner have the ability to withdraw all funds, or close the account at any time”.

• Mr. Him testified that he set up the joint account with the Deceased and Mr. Harding. Mr. Him further testified that it in the meeting with the Deceased and Mr. Harding he advised them, as was his usual practice, that there was a right of survivorship and the funds would pass to the surviving joint owner. He was not cross-examined on this evidence by Mr. Brathwaite’s counsel.

34Further, Mr. Harding in his affidavits, deposes that in or about this time that the Deceased clearly told him that she wished to gift the remaining contents of the account to him upon her death.

35On the above evidence alone I accept Mr. Harding’s claim.

36Further, in my view, the gift to Mr. Harding is also consistent with other Estate planning decisions that the Deceased was making at the time.

37Of significance, is the fact that in or about the time the Deceased added Mr. Harding to the joint account she also gave Mr. Brathwaite’s son, Davin, $250,000. Mr. Harding deposes this money was really intended for Mr. Brathwaite to purchase a home, but given Mr. Brathwaite’s potential matrimonial problems, it was decided the money should be given to Davin.

38At the application, Mr. Brathwaite hotly disputes this contention. I am of the view, however, that Mr. Harding’s evidence is credible and reliable. When one reviews the initial RBC bank documents it is clear that the Deceased advised RBC that Mr. Brathwaite (not Davin) was to receive $250,000 to purchase a house. At some point in time thereafter things changed so that the money was then going to go to Davin. This is consistent with Mr. Harding’s story.

39Further, when Mr. Brathwaite prepared his initial affidavit on this application in May 2017 he deposed that the money was provided to him. It was not until he prepared his November 2017 affidavit that he corrected this statement to indicate the money went to Davin. This is also consistent with Mr. Harding’s evidence.

40The Deceased’s decision to proceed in this fashion was consistent with the way she structured her will. Mr. Brathwaite and Mr. Harding were to receive equal amounts. By giving Mr. Brathwaite and/or Davin $250,000 and telling Mr. Harding that he could have $250,000 from the joint account, she was generally dealing with them in an equal fashion while she was alive. It also bears noting that Davin is mentioned nowhere in the will. It would be more than a little bit surprising, therefore, that the Deceased would have given him $250,000 if not for the reason of also benefiting Mr. Brathwaite. I am satisfied that, whether the money ended up with Mr. Brathwaite or Davin, or both of them, the Deceased satisfied her wish to treat Mr. Brathwaite and Mr. Harding in the same fashion.

41Further, the Deceased also instructed Mr. Harding to give another one of her friends Barbara Reinero (“Reinero”) $50,000. He did so. She further told Mr. Harding to give $5,000 to her sister Eleanor Brome. Interestingly, Ms. Brome was bequeathed $5,000 in the will. The money given to Ms. Reinero and Ms. Brome came from the joint account.

42All of this is consistent with the Deceased deciding to make arrangements to distribute the bulk of her wealth while she was alive. Mr. Harding deposed that he discussed with the Deceased that she had a will that dealt with bequests and she responded to him that, “the will is just a piece of paper, it was her house, and she worked hard for it, and that she can do what she wanted with her money because she was not dead yet.”

43Notwithstanding the above, it must be acknowledged that the transactions left the minor beneficiaries at risk and also left the risk of there not being enough money in the Estate to pay her debts. While there may not be a clear explanation for this, the overall method in which the Deceased distributed her money prior to her death is consistent with her desire to ensure that the major beneficiaries in the will were taken care of during her lifetime, along with Ms. Reinero, and her stated desire to “do what she wanted with her money”.

44In light of the foregoing, I do not accept Mr. Brathwaite’s evidence that it was clear between the Deceased, Mr. Brathwaite and Mr. Harding, that Mr. Harding was only to use money in the joint account to care for the Deceased and upon her death the joint account would become a part of the Estate. His affidavit evidence, for most part, consists of bald statements. He refers to no specific discussions in this regard. It is clearly inconsistent with the banking documentation and the evidence of Mr. Him. It also appears to be inconsistent with the other gifts the Deceased made during her lifetime.

45Mr. Brathwaite makes a number of further submissions in support of his position, which I also reject:

• Mr. Brathwaite submits that Mr. Harding’s position makes no sense since, if the Deceased had lived for a long period of time, a significant portion of the joint account would have been exhausted. Accordingly, Mr. Harding would have received much less than 50% as compared to the money given to Davin. In my view, this is a rather speculative argument and little turns on it. The Deceased was 89 years old when the joint account was opened. She died not long thereafter. Mr. Harding had agreed to care for the Deceased. In the event that she would have lived for a long period of time thereafter I accept that he would have gladly accepted this fact. Sadly, she did not. In my view, the fact that he agreed to use the money to care for her, which would have denuded his payment from the account, enhances his own credibility and demonstrates that he was acting in a rather selfless way.

• Mr. Brathwaite, without any case law to support this contention, submits that Mr. Harding was a fiduciary and breached his fiduciary duty to the Deceased. I disagree. I do not accept that, in law, Mr. Harding acted in a position of fiduciary. In any event, there is no evidence to suggest that he breached any fiduciary duties.

• There is one RBC note, prepared by Ms. Cannarella, that Mr. Brathwaite relies heavily upon in support of his case which reads as follows:

  December 2, 2016: CLIENT CONCERN;……..Client came into branch to clarify her wishes given amount of money being wdl from a/c by joint owner (previous POA on the account). It should be noted that Ms Licorish was aware of funds being given to nephew. Her wishes are that he be account owner as well to make this easier for her. He will be taking care of her. please see cart for full notes M.C. cannarella BM

  Mr. Brathwaite submits that the note suggests that she wanted him to become a joint account holder. I do not read the note in this fashion. The note is ambiguous. In any event, prior to her death, the Deceased did not add anyone else as a joint account holder other than Mr. Harding. The Deceased may have been musing about what she was going to do with the account but nothing further occurred. In any event, this submission is unsupported by the other RBC documents, which all point to Mr. Harding as remaining as the sole joint account holder.

• I do not accept Mr. Brathwaite’s suggestion that since he was granted POA in 2012 the Deceased did not intend to give the proceeds of the joint account to Mr. Harding upon her death. Mr. Harding has specifically deposed that the Deceased moved the funds beyond Mr. Brathwaite’s reach prior to her passing. Admittedly, had the Deceased become incapable in managing her own affairs Mr. Brathwaite could have exercised his rights as POA. I do not, however, find that this is significant given the way Deceased structured her affairs prior to her passing.

46I have reviewed the affidavit evidence that was filed by the four beneficiaries in support of Mr. Brathwaite’s position. In my view, it is of very limited assistance and does not alter my conclusion that the Deceased gifted the money to Mr. Harding. The affiants have very limited knowledge of the relationship between the Deceased and Mr. Harding. This is not entirely surprising given that three of them reside in Barbados. Furthermore, Ms. Brome, the Deceased’s sister, confirmed that she also received money from the Deceased prior to her passing which was the equivalent of the amount bequeathed in the will which is consistent with the Deceased carrying out her affairs while she was still alive. Of significance, Ms. Brome also deposes that the Deceased spoke to her about giving Mr. Brathwaite money to purchase a home which coincides with Mr. Harding’s evidence. Last, it bears noting that the beneficiaries appear to have been told that if Mr. Harding keeps the money their inheritance could be at risk. This likely helped influence their views.

47The Deceased did not organize her affairs in a completely coherent and logical fashion. As I have noted the minor beneficiaries seem to have been somewhat overlooked. There is a definite tension in the way the Deceased structured her affairs between Mr. Brathwaite and Mr. Harding, i.e. Mr. Brathwaite could have obtained control of the bank account pursuant to the provisions of the POA while Mr. Harding had a right of survivorship. And, she distributed a great deal of her wealth, referred to in the will, prior to her passing.

48That being said, however, I am satisfied that the evidence with respect to the creation of the joint bank account supports Mr. Harding’s contention that he was to enjoy the right of survivorship and that after the Deceased passed away the funds would pass to him outside of the Estate. This is clear in the RBC authorization to add Mr. Harding as a joint owner and the evidence of Mr. Him. It is also supported by the December 7, 2016 letter wherein the Deceased was aware that Mr. Harding had the ability to withdraw all of the funds from the account. The Deceased obviously had a great faith in Mr. Harding and his uncontradicted affidavit evidence is that he was of great assistance to her during her lifetime in helping her with her day-to-day finances and personal needs. It accords with common sense that she would have wanted him to have the contents of the account after her passing when she had distributed the same amount to Davin and/or Mr. Brathwaite, as well a significant payment of $50,000 to Reinero.

49What was done was imperfect in many ways, including the fact that it largely depleted or could have entirely depleted the Deceased’s assets prior to her death. In my view, however, Mr. Harding has satisfied the onus in demonstrating that the funds in the joint account at the time of death were intended to be a gift to him.

50It also bears noting that Mr. Harding had discussions with the Deceased that Mr. Brathwaite was not privy to. This was not surprising given the nature of the relationship between Mr. Harding and the Deceased. Mr. Brathwaite would not have been aware of all of their conversations on an on-going basis. He was also not present when the joint account was opened.

51In my view, all of the above supports Mr. Harding’s contention that the Deceased gifted $250,000 from the joint account.

DISPOSITION

52Based on the foregoing, Mr. Harding is entitled to retain the $250,000 he removed from the joint bank account based on the right of survivorship.

53The remainder of the funds, approximately $27,000, shall be paid by Mr. Harding to the Estate.

54Mr. Harding is also entitled to costs. Not surprisingly, being self-represented, he could not articulate a dollar sum. Given the numerous court attendances and the expenses he would have incurred, I award him costs of $1,000 payable by Mr. Brathwaite.