COURT FILE NO.: CV-15-524078 DATE: 20190628

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SUI SUN WONG, PETER GIM DOR ENG, KIM JOR ENG and PUI YUE WONG Plaintiffs – and – MEE FONG WONG Defendant

Counsel: Roger Gosbee, for the Plaintiffs Paul Neil Feldman, for the Defendant

Heard: April 9, 10, 12, 18, 2019

J. WILSON J.

This Action

1This case raises a host of estate, property and support issues including severance by one joint tenant in a three-way joint tenancy, what happens if property has been erroneously transferred in a probate to beneficiaries who have no entitlement, discoverability questions, and whether compound interest should be ordered for arrears of child support by way of set-off when a father abandons his children and fails to ever pay court ordered child support.

2The Property, 870 Bathurst Street was purchased in 1974 in the name of Sui Sun Wong (Sui), Mee Fong Wong (Mee), and Sui’s mother (the Mother) as joint tenants. It was the former matrimonial home of Sui, Mee, and the children. It was sold in 2014.

3A core question in this case is: who is entitled to the proceeds of sale of $705,852.41?

4In 1977, without any discussion or notice, Sui abandoned Mee and three young children to move to California to live with another woman. In 1979, Sui sought a divorce. He came to Canada to have Mee sign papers that she could not read. Mee asserts that Sui promised to transfer his interest in the Property to her as a term of the divorce. The parties were divorced in Nevada in 1979. The Nevada divorce judgment does not deal with the Property. It provides for child support, which was never paid. Mee was granted custody of the children.

5In 1980, after the divorce, without notice to Mee, Sui transferred his one-third interest in the Property held as joint tenant to the Mother in trust. Sui asserts that he was the beneficiary of the trust. Sui argues that this transfer had the effect of severing the three-way joint tenancy between all the parties.

6The Mother died in 1990. Probate was issued. Without notice to Mee, the executors of the Mother’s estate transferred the one-third interest held in trust by the Mother to Sui. The Mother owned her one-third of the Property as a joint tenant with Mee. The executors also transferred the Mother’s one-third interest in the Property to her heirs, treating the Mother’s one-third undivided interest in the Property as if it was held as a tenant in common.

7Each of the Mother’s three children received one-third of her one-third undivided interest in the Property pursuant to her will. This transfer failed to recognize that Mee was a joint tenant with the Mother at the time of her death.

The Claims

8There are four Plaintiffs in this action. They seek their share of the proceeds of sale of the Property based upon their interests registered on title. Sui claims a 4/9 interest in the proceeds of sale: his one-third interest held in trust, plus one-third share of the Mother’s one-third interest. The remaining Plaintiffs did not take an active part in this proceeding, but were represented by Mr. Gosbee, counsel for Sui. These Plaintiffs inherited their respective interests totaling 2/9 of the Property through various inheritances after the death of the Mother.

9On title, Mee has a registered one-third undivided interest in the Property. Mee became aware of the state of the title in 2013 before the Property was sold. She refused to allow the sale proceeds to be distributed based upon the interests registered title. Hence this proceeding.

10Mee claims that she is entitled to 100% of the proceeds. She is entitled to the Mother’s one-third interest in the Property as it was held by the Mother with Mee as a joint tenant at the time of the Mother’s death. The transfers of the Mother’s share in the Property were not valid. She also claims she is entitled to Sui’s interest in the Property based upon his oral agreement to transfer the Property to her, which she believed had been fulfilled. In the alternative, she advances a claim to the entire proceeds of sale based upon trust principles, as she maintained the Property from 1990 to the date of sale in 2014.

11Sui has not paid any child support. At the trial, counsel for Sui acknowledged that Mee is entitled to recover the arrears of court ordered child support by way of equitable set-off against Sui’s interest in the Property. Mee claims compound interest on the support arrears.

Law of severance with a three-way joint tenancy

12At trial counsel did not present any cases dealing with severance when there are more than two joint tenants. Counsel appeared to assume, as did I, that severance by one joint tenant severed the entire joint tenancy when there are three joint tenants. Counsel did not bring to my attention the recent Court of Appeal decision of Jansen v. Niels Estate, which explores the consequences when one joint tenant takes steps to sever the joint tenancy where there are three joint tenants registered on title.

13I had a meeting with counsel after the trial to bring to their attention this decision, which confirms Mee’s argument that in a three-way joint tenancy, steps taken by one joint tenant to sever her interest do not sever the joint tenancy interests of the remaining owners. In light of Jansen, I requested further written submissions from counsel. I thank counsel for their supplementary submissions.

14The Plaintiffs rely on a second Court of Appeal decision, Hansen Estate v. Hansen, which confirms that a joint tenancy may be severed between all joint tenants when there is a clear evidence of a course of conduct that confirms that the parties intended to treat their interests as being tenants in common. Hansen, at para. 57.

Further submissions on discoverability

15Both counsel made submissions on the issue of discoverability. Counsel for the Plaintiffs argued forcefully that Mee had actual knowledge of the facts relevant to title in 2004, engaging section 5(1)(a) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. Alternatively he argued that she had the means to obtain the facts. There were no specific arguments addressed by either counsel on the application of section 5(1)(c) of the Limitations Act, or the parameters of the modified objective test of when a person ought to know facts pertinent to their cause of action.

16Although they made reference to factors affecting the modified objective test, neither counsel provided case law to flesh out the contextual circumstances informing the analysis of when the toll of a limitation period may stop based upon concealment of facts, conduct and circumstances of vulnerability.

17As the relevant case law was not addressed, I provided counsel with the citations and asked if they wished to make further submissions. I will address these submissions when I consider the relevant issues.

Background Facts

18In 1970, Mee came from China at age 18 to marry Sui, age 32. It was an arranged marriage.

19Sui worked in the garment trade as a cutter at a factory, and also did piece work at home. He continued to work in the garment industry when he moved to California.

20At first Sui and Mee lived with Sui’s brother. Sui and Mee had three children, Kenny, Kelly and Lily, born in 1971, 1973 and 1975. During the marriage, Mee stayed home to look after the young children.

21The Property was purchased in 1974 for $85,000.00, and title was held as joint tenancy in the names of Sui, Mee and the Mother. The Mother provided cash in the amount of $35,000.00, and the balance was financed by private mortgages. The Mother never lived in the Property. Sui, Mee and the children lived in the Property on the first floor and rented the second and third floor.

22In 1977, Sui, without notice, abandoned Mee, then 25, and the three children, age 2, 4 and 6. Sui moved to live with his girlfriend in San Francisco. I accept Mee’s evidence that there were no discussions about separation. Sui simply disappeared.

23In 1979, Sui returned to Toronto wanting Mee to sign papers for a divorce. When Sui asked for a divorce Mee asked for three things: custody of the children, child support, and that Sui’s interest in the Property be transferred to her.

24It is this promise, undocumented and never again referred to until matters came to a head in 2013, that Mee relies upon in her claim for Sui’s share in the Property.

25Mee testified that she signed the divorce papers at the lawyer’s office, presumably Mr. Mark’s office, as he was the only lawyer acting in Canada for the Wong legal affairs. She could not read the papers. She had no independent legal advice. The papers were not before this court. Mee did not have a copy of the papers. I accept her evidence on this point.

26The Nevada divorce judgment confirms the presence of Sui, with his counsel, Richard Minor. Mee was not present but was allegedly represented by Jerome Wright. Mee has no recollection of this person, never retained him and never paid a lawyer’s bill. Mee signed papers in Canada. Clearly the Nevada divorce was orchestrated by Sui and his lawyers both in Canada and in Nevada.

27The 1979 Nevada divorce judgment gives Mee custody of the children, and provides for modest child support in the amount of $100.00 per month per child, which was never paid. There is no mention of the Property in the Nevada divorce judgment.

28At the time of the divorce, Mee did not have any independent legal counsel. She did not claim spousal support, to which she was obviously entitled, and did not claim a division of property under ss. 4 and 15 respectively of the then governing provisions of the Family Law Reform Act, 1978, S.O. 1978, c. 2.

29Sui married his girlfriend Eleanor in Nevada the same day he obtained his divorce.

Credibility and Lifestyle

30Both Mee and Sui are aging with memory issues. Sui, now 83, has virtually no memory of anything relating to these transactions. Neither speaks or reads English, and the trial was conducted with a Cantonese translator.

31Sui denied his promises to Mee about transferring his interest in the Property to her, as well as subsequent promises made to the children. I do not accept his evidence. He is not a credible witness. He confirmed many times during his testimony that “I do not care about her”, referring to Mee. That statement also applied to his attitude and actions toward his young children. He is a man with no scruples and apparently no guilt or regret for abandoning not only his former wife and his own Mother, but also his three young children.

32Eleanor, Sui’s wife, testified. She denied Sui’s conversation with the children when they visited the couple’s home, and denied that Sui promised that he would leave his interest in the Property to them. I do not accept her evidence. She must have known that Sui was not paying his child support and that he had abdicated all responsibility to his family. She benefited financially from his default and broken promises. Sui and Eleanor have one child together, and Eleanor has other children from a previous relationship.

33Mee, now age 67, has only a primary school education from China. She reads and speaks Cantonese. To this day, she speaks very little English and cannot read any English. She is unsophisticated, and has remained cloistered in the Chinese community with her sister in Toronto since she arrived in Canada many years ago. She has memory problems, but is clear on the essential facts of her case.

34Mee was a credible, naive witness. She did not make things up to embellish the facts, and candidly admitted that she could not remember many things that could not be contested by Sui that may have helped her case.

35I accept the evidence of Mee that Sui verbally promised her that she would have his interest in the Property at the time of the divorce. She thought that the papers she signed at the time of the divorce reflected this promise.

36The children confirmed that in their home, it was forbidden to speak about Sui after he deserted the family. Mee is a very private person. She never spoke to the children about Sui or her interest in the Property. From the time of the divorce in 1979, until Sui demanded the sale of the Property in 2013 through his counsel, Mee lived in a silo of silence, never speaking about Sui. He did not contact her for 36 years, prior to this proceeding.

37Mee signed two mortgages with the Mother, in 1984 and 1989. I accept Mee’s evidence that because Sui did not sign the refinancing of the mortgages in 1984 or 1989 as an owner, she understood that he had fulfilled his promise to transfer his interest in the Property to her. I accept Mee’s evidence that she did not realize that the Mother had signed the mortgage documents twice, once on her own behalf, and once as Sui’s trustee.

38Mee did nothing over the many years to confirm her understanding that Sui had in fact fulfilled his promise, either with Mr. Mark, a Cantonese speaking lawyer, or his staff, or with her children as they grew up and became responsible adults.

39Her inaction can be explained as she understood when she signed the mortgages that Sui was no longer an owner, and therefore she thought he had fulfilled his promise to her. As well, it is not surprising that she took no steps to assert her rights as Sui never asserted any ownership interest in the Property, and never sought any sort of accounting until 2013.

40I will discuss in detail a letter sent in 2004 to Lily, Mee’s daughter, from a beneficiary of Sui’s sister’s estate seeking information about the Property. For the reasons I will outline, I conclude that the state of title of the Property was not discoverable to Mee from the time of that letter, but rather only became discoverable when she retained counsel in 2013. I accept the evidence of Mee that she did not know about the contents of the letter, and I accept the evidence of Lily that she did not discuss title issues outlined in the letter with Mee. Lily’s limited knowledge cannot be imputed to Mee.

41The children, Kenny, Kelly and Lily, testified at the trial. They are quite remarkable young people, and a credit to Mee and her family. The children all have stable jobs and a positive perspective on life. They were loving and generous with Sui’s mother, their paternal grandmother, although Sui had disappeared. They were not bitter or angry.

42Kenny and Kelly completed two years of university but did not finish - I am sure due to financial pressures, as they are very bright and capable. It is a shame. Lily left high school to work to earn money, then returned to finish her university degree as a mature student. All three children were credible witnesses, and I accept their evidence.

43In 2007, out of the blue, Sui invited his three children to visit him in California. He paid their airfare and hotel. The children went as they were curious, and thought he may be dying.

44While in California, during a visit in Sui’s lovely home, in Eleanor’s presence, Sui promised to leave his interest in the Property to the children. I accept their evidence.

45Lily testified about her observations during the California visit. She was eloquent in her understatement. She confirmed that her father owned a comfortable spacious home with “nice things”, and drove a Mercedes. Lily could not help but think of the stark contrast between the standard of living in her life, and the life of her family over the years, and how they had suffered compared to the comfortable life enjoyed by Sui and his second wife.

46After Sui deserted the family, Mee, her three children and her family lived as a close family, but in abject poverty. Mee was 25 years old at the time of Sui’s desertion and the three children were age 2, 4 and 6. In 1980, Mee sponsored her mother and sister to come to Canada to live in the Property. Mee began work in a restaurant doing dishes and preparing food after her family came from China to assist with the child care.

47Six family members shared one large room on the main floor of the Property divided with curtains; Mee, Mee’s mother, the three children, and Mee’s sister. This “bedroom” was the living room on the main floor of the Property. The Property was old and run down, but was able to generate some modest rental income sufficient to pay expenses by renting rooms. I do not accept Sui’s evidence on the rental income. Although Mee could not remember how much the rental income was, she confirmed that “it was very cheap” due to the condition of the house. I accept her evidence.

48The lease filed by Sui with the bank in support of the increased mortgage was not an actual tenant, but a friend to show an elevated income to qualify for the mortgage.

49What is clear is that the Property was swarming with people living on the second and third floor of the rooming house. Later, as the children got older, they lived in some of the space on the second floor until they moved out and started their own lives.

Overview of Issues and Conclusions

50The issues raised in this case are many and somewhat convoluted. I outline at this juncture the issues to be decided, and by way of indicating my conclusions. I will outline the reasons for my conclusions as each issue is considered.

51The following is an overview of the issues and my conclusions:

Entitlement to the Property

1. Did Sui promise Mee at the time of the divorce in an oral agreement to transfer Sui’s one-third interest in the Property to her? I conclude that Sui did make this promise to Mee to obtain the Nevada divorce, never intending to keep his word.

2. Is an oral promise for the transfer of land enforceable? The Statute of Frauds, R.S.O. 1990, c. S.19, s. 1, requires a written document to transfer an interest in land. Lupul v. Carlson, at para. 19. Hence, an oral agreement is unenforceable.

3. Was there a document signed confirming the oral agreement to transfer Sui’s interest to Mee? No signed document was produced. Mee testified that she signed a document at the lawyer’s office when Sui came to Canada to seek his divorce confirming his agreement to provide support to the children, that she would have custody, and that Sui would transfer his interest in the Property to Mee. For the purpose of this trial, there is no document confirming Sui’s oral agreement. Mr. Mark’s files are not before the court to confirm that a document was signed by Sui to transfer his interest in the Property to Mee. A verbal promise made at the time of the divorce is not enforceable. Hence, without more, there is no enforceable agreement to transfer the Property.

4. What was the legal effect of Sui’s transfer on March 25, 1980, of his one-third joint tenancy interest to his Mother in trust for him? I conclude that this transfer severed the three-way joint tenancy between Sui, Mee and the Mother. The Mother therefore held Sui’s one-third undivided interest in trust as a tenant in common. However, this was a three-way joint tenancy. In accordance with the Jansen decision, the transfer from Sui to the Mother in trust did not sever the joint tenancy between Mee and the Mother. Therefore, prima facie, Mee as a joint tenant should have inherited the Mother’s joint tenancy share in the Property.

5. Did the parties in this case make clear that they intended to sever the joint tenancy between Mee and the Mother? A course of conduct that makes clear that the parties intended to sever the joint tenancy is required to effect a severance. I conclude that the Plaintiffs have not met their onus to prove that there was evidence of intention to sever the joint tenancy between Mee and the Mother.

6. Are Mee’s claims to Sui’s interest in the Property, and against the other Plaintiffs, barred by the ten-year limitation period for commencing claims for real estate? The ten-year limitation period applies to claims for real estate, as well as trust claims, and is subject to the principles of discoverability. I find that the ten-year limitation period began from the time Mee retained counsel prior to the sale of the Property in 2013. At that time she discovered that Sui had not fulfilled his promise to her, and that the Mother’s undivided interest in the Property had been transferred to the Mother’s children. I do not accept that Mee ought to have known the state of title from either a search from 2003 not linked to Mee, or from the date of Lily’s letter in September 2004. Therefore, her claims are not barred by a limitation defence.

Support Arrears

7. Is there a right of set-off for outstanding support arrears? Counsel for Sui acknowledges that Mee is entitled to claim the support arrears outstanding pursuant to the Nevada divorce, by way of set-off. Counsel for Sui acknowledges that the support arrears calculated based on simple interest of 5% per annum totals $131,685.83 US dollars.

8. What is the term of support? The child support should be calculated until each child attains the age of 21 years old, and is payable in US dollars.

9. What interest rate should be used to calculate the arrears of support? I accept the argument of counsel for Mee that the appropriate rate of post-judgment interest is that stipulated for arrears of support in Nevada in 1980 at 7.34%.

10. Is it appropriate in the facts of this case to order compound interest on the support arrears? I find that the facts of this case warrant an order for compound interest, subject to Mee’s entitlement for arrears of support, not to exceed Sui’s share in the proceeds of sale of the Property, given Sui’s age and the submissions made by Mee’s counsel at the trial.

Issue 1: Right of Mee to Claim Sui’s interest in the Property

Is an oral agreement to transfer property enforceable?

52I conclude that Sui promised Mee that he would transfer his interest in the Property to her in order to obtain the Nevada divorce, never intending to keep his word. All of Sui’s behavior post divorce is consistent with him misleading Mee to get his divorce, while continuing to hold a one-third interest in the Property.

53However, an oral promise for the transfer of land is not enforceable. The Statute of Frauds, R.S.O. 1990, c. S.19, s. 1, requires a written document to transfer an interest in land. Lupul v. Carlson, at para. 19.

54No such written document was produced. Mee testified that she signed a document at the lawyer’s office at the time Sui sought his divorce confirming his agreement to provide support to the children, that she would have custody, and that Sui would transfer his interest in the Property to Mee. However, for the purpose of this trial, there is no document confirming Sui’s oral agreement. Counsel for Mee did not bring forward any cases confirming oral agreements made at the time of a divorce to transfer property are enforceable. That Sui obtained his divorce does not make his broken oral promise enforceable.

55Although Sui misled Mee to obtain his divorce, the law is clear that an oral agreement to transfer property is not enforceable.

56As I will outline later in these reasons, Mee is not without a remedy, as she is entitled to claim the arrears of child support with interest by way of set-off against Sui’s interest in the Property.

What was the legal effect of the transfer from Sui on March 25, 1980, as a one-third joint tenant, to his Mother in trust?

57In 1980, after the divorce, Sui, did not transfer his interest in the Property to Mee as promised, but rather without notice to Mee, transferred his one-third interest as a joint tenant in the Property to his Mother in trust. The beneficiary of the trust is not named in the transfer documents.

58Sui had no recollection or understanding of why the transfer was made to the Mother in trust.

59Several possibilities arise. First, it is possible that Sui was in fact living up to his promise to transfer his interest in the Property to Mee as a term of the divorce. This possibility seems unlikely in light of Sui’s subsequent conduct, and his contemptuous attitude toward Mee. Second, it is also possible that, notwithstanding his promises, he was transferring his interest in trust to the Mother to avoid Mee advancing a claim for division of property against his interest in the Property. Third, is that Sui was transferring his interest in the Property to the Mother with the intent to sever his joint tenancy as Mee and Sui were divorced, so that if he died Mee would not inherit his interest in the Property. The most likely scenario is that Sui was taking steps to avoid Mee being able to realize on his promise to transfer the Property to her.

60Neither Sui nor the lawyer who prepared the document gave notice to Mee of this transfer. When asked if he told Mee that he was transferring his interest to the Mother in trust he stated: “I do not care about her”, referring to Mee.

61Counsel for Sui argues that the transfer in trust had the effect of severing the three-way joint tenancy, rendering ownership of the Property as tenants in common.

62Counsel for Mee challenges the bona fides of this transfer, arguing that it lacked the prerequisite intention to sever the joint tenancy. There were misrepresentations in the 1980 trust transfer deed. Sui swore he was not a non-resident of Canada. He further swore that the property has never been occupied by himself or his spouse as their matrimonial home. Both these assertions are untrue. Counsel for Mee suggested that the transfer may have been to protect against creditors. This makes no sense, as the Mother holding Sui’s interest in the Property in trust would not protect his interest against a claim by creditors. Further, there was no evidence that Sui had creditors, apart from the broken oral promise to Mee.

63Notwithstanding the misrepresentations in the transfer deed, I find that the transfer from Sui to the Mother in trust had the effect of severing Sui’s joint tenancy. Therefore, as of the date of the transfer, the one-third interest held in trust by the Mother was held by her as a tenant in common.

Mee and the Mother continue to hold their one-third interests in the Property as Joint Tenants

64In accordance with Jansen v. Niels Estate, prima facie if one party in a three-way joint tenancy severs his or her interest, the other two title-holders, in this case, Mee and the Mother, continue to hold their interest in the Property as joint tenants, unless the joint tenancy between the remaining two joint tenants is severed.

65Counsel for the Plaintiffs argued with respect to Jansen that “it is difficult to apply a 2017 Court of Appeal decision to a transaction that took place in the 1980s.”

66I note that Jansen does not create new law, rather it adopts age old principles from a prior decision where more than two joint tenants hold title to a property and issues of severance are raised: see Wright v. Gibbons (1949), 78 C.L.R. 313 (Australia H.C.), at p. 324-325; and Littleton’s Tenures, s. 294.

67The Plaintiffs argue that the principles outlined in Hansen Estate v. Hansen apply in the facts of this case, and that the joint tenancy between Mee and the Mother was severed by their conduct.

Is there a course of dealing consistent with a tenancy in common severing the joint tenancy between Mee and the Mother?

A review of the Hansen decision

68The Court of Appeal in Hansen, at para. 32, confirms the three ways a joint tenancy may be severed:

A joint-tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund — losing, of course, at the same time, his own right of survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested. You must find in this class of cases a course of dealing by which the shares of all the parties to the contest have been effected, as happened in the cases of Wilson v. Bell [(1843), 5 Ir. Eq. R. 501 (Eng. Eq. Exch.)] and Jackson v. Jackson [(1804), 9 Ves. 591 (Eng. Chancellor)]. [Emphasis added]

69The Plaintiffs argue that the third branch of the Hansen test applies: “the time-honoured test is whether there was a course of dealings sufficient to intimate that the interests of the parties were mutually treated as constituting a tenancy in common.” Hansen, at para. 5.

70The requirements to prove a course of dealing are outlined in para. 7 of Hansen:

A proper application of the course of dealing test for severing a joint tenancy requires the court to discern whether the parties intended to mutually treat their interests in the property as constituting a tenancy in common. It is not essential that the party requesting a severance establish that the co-owners' conduct falls into a formulation found to have had the effect of severing a joint tenancy in other cases. The court's inquiry cannot be limited to matching fact patterns to those in prior cases. Rather, the court must look to the co-owners' entire course of conduct — in other words the totality of the evidence — in order to determine if they intended that their interests were mutually treated as constituting a tenancy in common. This evidence may manifest itself in different ways. Each case is idiosyncratic and will turn on its own facts. [Emphasis added]

71Jansen, at para. 33, reaffirms the Hansen test, but concludes that it did not apply in that case. The court in Jansen, at para. 34, states: “In short, Hansen requires a court to determine, having regard to all of the evidence, whether the parties intended to treat their interests as constituting a tenancy in common. This is a fact-specific inquiry and is subject to deference on appeal”.

72There is no formula or class of cases to guide the application of this test. A course of dealing is a fact-specific inquiry, and the burden of proof is upon the party seeking to establish a severance, in this case the Plaintiffs. National Trust Co. v. McKee, at p. 618; Jansen, at para. 34.

73The Plaintiffs argue that this burden has been met given the facts of this case.

74Counsel for Mee argues that Hansen has no application to the facts of this case. I will review the transactions and evidence in some detail, and will then outline why, in my view, the third branch of Hansen has no application to the facts of this case.

75Although Sui’s interest in the joint tenancy was severed when he transferred his interest in trust to the Mother, it is clear that Mee and the Mother continued to hold their interests in the Property as joint tenants at the time of the Mother’s death.

Background Facts as to course of conduct

76Robert Mark, (the anglicized name for their Cantonese speaking lawyer), handled the purchase of the Property, and all other transactions for the Wong family.

77These include the transfer from Sui to his Mother in trust post-divorce in 1980, and the two mortgages in 1984 and 1989. Robert Mark also prepared and registered the transfer back to Sui of his one-third interest after the death of the Mother. He handled the probate of the Mother’s will. He was also the lawyer who transferred the Mother’s one-third interest in the Property after her death to her three children.

78He did not provide notice to Mee of any of the transactions, and did not ensure that she had independent legal advice.

79Robert Mark is now dead, and his files are not before the court.

80Mee and the children lived in the Property until the children left home and married. Part of the Property was rented. Over time, Mee and the children took over more space. At the time of the sale Mee and her sister were the sole occupants of the Property.

81Until the Mother’s death in 1990, Mee collected the rental income and gave it to the Mother, who paid the mortgage and Property expenses. After the Mother died, Mee managed the Property until the sale in 2014. At no time did any party, including Sui, ever seek an accounting from Mee.

Arguments of Plaintiffs as to a course of conduct treating the Property as being held as a tenancy in common

82The Plaintiffs in their written submissions confirm that the three parties, Sui, Mee and the Mother, were unsophisticated and did not read English. There is no evidence that any of them understood the difference between joint tenancy and tenancy in common. This submission is clearly confirmed in the evidence. Therefore there is no viva voce evidence that confirms a course of conduct severing the joint tenancy.

83The Plaintiffs suggest the appropriate approach is to review the documents with respect to the various transactions, and in particular, the mortgages that were registered against the Property in 1984 and 1989. In their written submissions Plaintiffs’ counsel asserts that Mr. Mark prepared these mortgages, which “clearly indicates that the parties owned the Property as tenants in common”. [Emphasis added]

84Counsel for the Plaintiffs then suggests that: “To find ownership in the property was anything other than as reflected in the land registry office documents would ignore the clear unequivocally written documentation.”

85Respectfully, Plaintiffs’ counsel is in error. There is no document anywhere confirming that any interest is held as a tenant in common. The two mortgages and all subsequent title documents until the Mother’s death refer to the parties holding an “undivided interest” in the Property, not as tenants in common.

Meaning of holding an “Undivided interest” in property

86The term “undivided interest” is used to describe an interest in title, including both joint tenancies and tenancies in common. The term is neutral and does not imply a preference for either a joint tenancy or tenancy in common.

87Ballentine's Law Dictionary, Third Edition by James Ballentine (Rochester, N.Y.: The Lawyers Co-operative Publishing Company; 1969), at p. 1314, defines an undivided interest as:

…The nature of the title held by a tenant in common or a joint tenant.

88Black's Law Dictionary, 10th Ed. by Paul Garner (St. Paul: Thomson Reuters, 2014), at p. 935, references the terms joint tenancy and tenancy in common in its definition of undivided interest. At p. 1694, Black’s includes the following in the joint tenancy definition:

…The rules for creation of a joint tenancy are these: ... The interests must be physically undivided interests, and each undivided interest must be an equal fraction of the whole…

89When the mortgage transactions occurred, each of Mee, Sui and the Mother had a one-third interest in the Property: an equal fraction of the whole.

90Courts have comfortably described joint tenancies as undivided interests. In Simpson v. Ziprick, 1995 CarswellBC 396 (C.A.), at para. 20; and Brook v. Brook, 1969 CarswellBC 108 (S.C.), at para. 8, the courts refer to a joint tenancy interest as an “undivided half interest”.

91Referring to an interest in the estate on the two mortgage documents as an “undivided interest” does not denote an intent to refer to a tenancy in common, if the interest was originally held as a joint tenancy. Undivided interest is a neutral term that is used to describe the interest held in both tenancies in common and joint tenancies.

Post-Divorce Transactions prior to the Mother’s Death

92After the divorce and the transfer of Sui’s interest to the Mother in trust, two mortgage transactions in 1984 and 1989 took place.

93Sui signed the mortgages as a guarantor but not as an owner.

94The first mortgage in 1984 with Guarantee Trust replaced the private mortgage that had been in place when the Property was purchased. It was for $47,000.00.

95Mee testified that, as Sui did not sign the 1984 mortgage as an owner, she understood that his interest in the Property had been transferred to her. She did not notice or understand that the Mother had signed in two places on the documents, one for her interest, and one for the trust. I accept her evidence. It makes logical sense.

96This mortgage refers to the title of the parties being “an undivided interest”. This description is consistent with both joint tenancy as well as tenancy in common. The interest of Sui held in trust by the Mother was held as a tenant in common, and the interests of Mee and the Mother continued to be held as joint tenants.

97Mee testified that the 1984 mortgage documents were signed at the lawyer’s office (Robert Mark), but the second mortgage in 1989 she stated was signed at the bank. It appears that she may be mistaken, as the witnessing affidavits to her signature were sworn by employees of Mark’s office. It is possible that someone from Mark’s office met her at the bank to obtain her signature. No one from Mark’s office testified.

98In 1989 the Property was refinanced and the principal was increased to $70,000.00. The increase in the mortgage principal was allegedly to pay for the Mother’s funeral.

99Again, title in the 1989 mortgage refers to the parties holding a percentage “undivided interest”. The interest of Sui in trust continued to be held as a tenant in common, and the interests of Mee and the Mother continue to be held as joint tenants.

100Sui acknowledged that he received the excess mortgage funds in the amount of at least $23,000.00 in 1989. The Mother died in 1990. Sui provided no proof that he paid for the Mother’s funeral, nor did he confirm what the funeral cost. It appears that Sui obtained funds personally from the increase in the mortgage principal in 1989.

101Mee has paid off the mortgage in its entirety. Therefore, she either provided funds to Sui, or paid for the Mother’s funeral, or both.

102Counsel for the Plaintiffs takes the position that Mee gets no credit for the repayment of mortgage capital in any accounting, as the limitation period for making such a claim has expired.

103Mee never retained a lawyer to clarify the situation until 2013 when Sui’s counsel requested the sale of the Property. Mee testified that she became aware that Sui had not transferred his interest to her as promised for the first time in 2013. I accept her evidence. This claim was commenced in 2015.

Care of the Mother and Probate of the Mother’s will

104Sui not only abandoned his family, but also his own Mother. He testified that “He did not really care about it”, when asked who was looking after the Mother.

105Sui’s brother and his family had moved to New York. His sister and her family had moved to Victoria.

106The Mother, who was blind, was cared for in her later years by Mee and the three children. Mee testified that the Mother treated her “almost” as a daughter. Mee cooked for the Mother, helping her every day. The children in turn each described the loving intensive care given to their grandmother over the years until her death.

107Sui’s mother died on March 31, 1990, and her will was probated.

108We have no direct evidence from the Mother as to what she wanted, understood or intended with respect to her interest in the Property. Sui confirmed that she was the instigator to purchase the Property in 1974, and she provided the entire deposit. Until her death, we know that the Mother administratively looked after paying the expenses on the Property from funds received from Mee. Mee collected rents, contributed her earnings and paid these funds to the Mother to cover the expenses of the Property. After his desertion, Sui contributed nothing to the Property.

109The Mother attended with Sui at the lawyer’s office in 1980 to sign the document transferring Sui’s interest in the Property to the Mother in trust.

110I have concluded that the reason for the 1980 transfer in trust of Sui’s interest to the Mother was to sever the joint tenancy after Sui’s and Mee’s divorce, or to insure that Mee could not claim his share in the Property. This step was done with the advice of Mr. Mark.

111The Mother appears to be worldlier than Mee, based upon her controlling the finance of the Property until her death. It is noteworthy that the Mother took no steps to sever her interest in the joint tenancy, in 1980 or subsequently.

112Mee and the children were living in the Property without any support or contact with Sui. Mee and the children had a close relationship with the Mother. The Property was not mentioned in the Mother’s will, which was signed in 1984.

113In these circumstances not only did Mee inherit the joint tenancy interest of the Mother as a matter of law, but it appears based upon the uncontested facts available that the Mother in all probability planned for the outcome of Mee inheriting her interest in the Property. Sui had deserted the family, including the Mother, and at the time of her death, Mee and the children continued to reside in the Property as their home.

114The evidence is clear that at the time of the Mother’s death on March 31, 1990, Mee inherited as joint tenant the Mother’s one-third interest in the Property

Probate and Mistaken Transfers made after the Mother’s death

115Sui and his two siblings were named as executors in the Mother’s will. Sui renounced as co-executor. After the Mother died, Sui reclaimed the one-third interest in the Property held in trust by the Mother.

116Mr. Mark, the lawyer, prepared various documents. The family, Sui and Mr. Mark failed to notify Mee of any of the documents or transfers. Mee did not have notice, or independent legal advice regarding any change in the registered owner on title on the Property where she was living with the children.

117When the transfers took place, Mr. Mark took instructions from the executors and Sui. He was under the mistaken understanding in law that the joint tenancy between the Mother and Mee had been severed.

118Sui’s siblings, as executors, signed a document prepared by Mr. Mark acknowledging and declaring that the one-third undivided interest in the Property held in trust by the Mother was beneficially owned by Sui.

119The letters probate were issued six months after the Mother’s death and were registered on title on September 12, 1990, as instrument CA107682, again without notice to Mee.

120The recitals in the transfer deed from the Mother’s estate in trust to Sui state:

Whereas the subject property was registered under the names of Sum Oy Wong, Sum Oy Wong in Trust, and Mee Fong Wong, each as to 1/3 undivided interest …

And whereas 1/3 undivided interest of the subject property registered under the name of Sum Oy Wong, in trust, was for the beneficial owner Sui Sun Wong…

121This transfer again refers to the interests of the parties being held as an undivided interest. The transfer to Sui from the Mother’s estate was a transfer of the one-third interest held in trust as a tenant in common.

122Given the promises made by Sui at the time of the divorce, it is arguable that the trust should have favoured Mee as beneficial owner, not Sui.

123As well, at this time, Sui was in significant arrears in his child support payments. The children were attending school and university.

124The failure to provide Mee notice of these transactions and independent advice seriously compromised the rights of Mee and the children.

125Mr. Mark prepared a second transfer deed registered as instrument 117822 signed by the executors, Shui and Tuey, conveying the 2/3 undivided interest in the Property held by the Mother (1/3 Mother, 1/3 Sui) as follows:

Sui San Wong as to a 4/9 undivided interest

Shui Nam Wong as to a 1/9 undivided interest

Tuey Sim Wong as to 1/9 undivided interest

126Obviously, and erroneously, at this juncture Mark was treating the title to the Property as if the Mother’s interest had been held as a tenant in common at the time of her death.

127Presently the title of the Property shows that Sui has a 4/9 undivided interest in the Property (1/3 as original owner and 1/9 inherited from the Mother), and Mee has a 3/9 undivided interest. Sui is the only surviving son of his Mother.

128The three other Plaintiffs in this action claim an undivided interest in the Property stemming from the inheritance received from the Mother to her three children (1/9 to Pui Yue Wong, wife of Shui, now deceased, and 1/18 to each of Kim Yor Eng and Peter Gim Dor Eng, children of Tuey, now deceased).

129Lily’s letter in September 2004 has no relevance to this issue, as the time to determine the course of conduct is as of the time of the Mother’s death.

Conclusion that Hansen has no application to these facts

130There is a total absence of viva voce or documentary evidence confirming a course of conduct by the parties at the time of the Mother’s death to sever the joint tenancy.

131Jansen confirms that severance by intention must be the intention of all parties with notice and understanding their respective rights. Severance by intention cannot apply based upon conduct “declared only behind the backs of the other persons interested”.

132The transfer by Sui to the Mother in trust in 1980, completed behind Mee’s back, severed his joint tenancy and therefore the Mother held Sui’s interest in the Property in trust as a tenant in common.

133All of the undisputed facts, and the documents confirm that between Mee and the Mother the Property continued to be held as joint tenants at the time of the Mother’s death.

134In the facts of this case, the Plaintiffs do not come close to meeting the burden of proof that there was a consistent course of conduct by the parties treating the Property as being held as tenants in common. To the contrary, all available facts support the conclusion that Mee and the Mother held their interest in the Property as joint tenants at the time of the Mother’s death.

135Therefore, the transfer registered by Mr. Mark of the Mother’s one-third interest in the Property held as joint tenant with Mee at the time of her death to the various beneficiaries was not valid or lawful, unless Mee’s claim to challenge title is barred by a limitation defence.

Issue 2: Limitation Issues: the 2003 Title Search and Lily’s letter

The Limitation Period issues

136This action began in 2015. The Plaintiffs argues that all claims are barred by the expiry of the ten-year limitation period applicable to property claims under s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 (RPLA).

137In 2013, Sui testified that his brother from New York was interested in selling the Property. Mr. Gosbee obtained an appraisal of the Property in 2013, and precipitated steps to sell the Property. Mee testified that she learned that she was not the owner of the Property in 2013.

138When these matters came to a head in 2013, Mee testified that she was interested in selling the Property as all the children had moved out, and the Property was run down.

139I accept Mee’s evidence that she did not have actual knowledge as to the state of title until 2013, when she retained counsel and discussions began about selling the Property. At that time she found out that Sui had failed to transfer his interest to her after their divorce, as promised. I also accept that at that time, Mee also became aware of the transfer of the Mother’s interest to the beneficiaries in 1990.

140Mee retained counsel. She claimed that she was entitled to 100% of the sale proceeds and refused to allow the sale proceeds to be distributed based upon the undivided interests registered on title.

141Based upon Mee’s actual knowledge as to the state of title, this action was initiated well within the limitation period.

142Counsel for the Plaintiffs argues that, at the latest, the 10-year period ran from the date of Lily’s letter in June 2004 for all issues, when Mee knew, or ought to have known sufficient facts as to the state of the title to initiate a claim.

143At issue is the application of the modified objective test: when would a person in Mee’s circumstances ought to have sufficient information to commence a claim?

144The modified objective test for discoverability test is contextual and fact-dependent. For reasons I will outline, I do not accept the Plaintiffs’ arguments. I conclude that it would be inappropriate to impute knowledge as to title issues to a person in Mee’s circumstances. The limitation period begins to toll when Mee had actual knowledge of the state of the title, when she retained counsel in 2013.

Discoverability principles and case law

145Perkins J., in McConnell v. Huxtable, 2013 ONSC 948, at paras. 81-83, highlighted the uncertainty in the law surrounding the application of the discoverability principles in limitations claims under the RPLA. On appeal, the issue of discoverability applying to the RPLA was not specifically canvassed. McConnell v. Huxtable, 2014 ONCA 86. However, Faieta J. commented in Wilfert v. McCallum, 2017 ONSC 3853, at para. 27, in obiter, that this court in Stravino v. Buttinelli, 2015 ONSC 1768, at paras. 71-79, has adopted the discoverability principles in the context of the RPLA.

146Based upon the case law and common sense I accept the Plaintiffs’ assertion that discoverability principles apply to cases under the RPLA.

147While discoverability principles are not specified in the RPLA, they are discussed in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (Limitations Act). Reviewing discoverability under the Limitations Act informs an application of discoverability principles applicable to the RPLA.

148According to the Limitations Act, s. 5(1), a claim is discovered on the earlier of:

(a) the day on which the person with the claim first knew

(i) that the injury, loss or damage had occurred;

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission;

(iii) that the act or omission was that of the person against whom the claim is made; and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it, and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to previously. [Emphasis added]

149Discoverability engages at the earlier of the dates when the claimant had sufficient facts to subjectively know about the claim in accordance with the test outlined in s. 5(1)(a), and the date from which a reasonable person with the abilities and in the circumstances of the plaintiff ought to have known about the claim. This second test is a modified objective test, under s. 5(1)(b) of the Limitations Act: Fehr v. Sun Life Assurance Company of Canada, 2018 ONCA 718, 84 C.C.L.I. (5th) 124, at paras. 146 and 188; Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851, 113 O.R. (3d) 401, at para. 70.

General Principles of Discoverability

150The majority in the Court of Appeal in Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, cites the test for discoverability at para. 41:

[The Limitations Act] involves, in part, determining when a claimant first knew that an injury, loss or damage had occurred and was caused by an act or omission of the defendant. The jurisprudence concerning when a claimant possesses such knowledge is summarized in Graeme Mew, Debra Rolph & Daniel Zacks, The Law of Limitations, 3rd ed. (Toronto: LexisNexis, 2016), at §3.50:

[I]t has been recognized that discoverability means knowledge of the facts that may give rise to the claim. The knowledge required to start the limitation running is more than suspicion and less than perfect knowledge. Or, to put it another way, the plaintiff need not be certain that the defendant’s act or omission caused or contributed to the loss in order for the limitation period to begin to run. The limitation begins to run from when the plaintiff had, or ought to have had, sufficient facts to have prima facie grounds to infer the defendant’s acts or omissions caused or contributed to the loss. It is reasonable discoverability – rather than the mere possibility of discovery – that triggers a limitation period.

151Feldman J.A. in dissent in Zeppa cites the purpose of the test for discoverability from the Hansard debates as a balance between competing interests: to allow the plaintiff with sufficient time to advance a claim, while allowing defendants peace of mind. Zeppa, at para. 110; Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess., No. 65A (2 December 2002) at 1550 (David Young).

152Discoverability is a rule of fairness, holding that a limitation period should not run against the plaintiff until he or she knows, or ought reasonably to know by the exercise of due diligence, the fact, or facts, upon which his or her claim is based: Peixeiro v. Haberman, [1997] 3 S.C.R. 549, at para. 34; and Smyth v. Waterfall (2000), 50 O.R. (3d) 481 (C.A.), at paras. 8-9. Determining the reasonable person for the purposes of discoverability requires an individualized and contextual analysis: Fehr, at paras. 174-175.

153What a plaintiff ought reasonably to know by the exercise of due diligence is contextual: Fehr, at para. 186. One examines what a reasonable person with the abilities and in the circumstances of the person with the claim ought to have known: Fehr, at para. 188. Facts and circumstances provide the context to apply the test.

154Reasonable diligence does not require plaintiffs to become experts in certain legal areas in order to assess whether misconduct has occurred: Fehr, at paras. 197-199; Lauesen v. Silverman, 2016 ONCA 327, at paras. 24-31.

155Determining when a limitation period begins to run is a question of fact. The application of the discoverability rule to the facts of a particular case necessarily requires findings of fact about when the plaintiff discovered the facts in respect of the remedy sought, or, through reasonable diligence, ought to have discovered the facts: Persaud v. Dass, 2018 ONSC 6540 (Div. Crt), at para. 22.

Factual Findings relevant to Discoverability

156The Plaintiffs argue that there are two facts that trigger the limitation period, and that regardless of her actual knowledge, Mee ought to have known the state of title by 2003 or, at the latest, 2004.

157First is a title search produced in Mee’s documents in 2003. Second is an exchange of letters involving Lily, Mee’s daughter, in 2004.

The 2003 title search

158One of Mee’s productions in her Affidavit of Documents is a search of the title of the Property done in 2003. The document notes that the search was prepared for dstephens on June 18, 2003. There was no evidence as to who dstephens is. Mee testified she had no knowledge or understanding of this document. She cannot read the document. Mee confirmed that she did not request this search. It is a mystery how it came into her possession. Perhaps one of the children requested the search, although the search is requested by the mystery dstephens, not one of her children. There is no evidence linking Mee to the search, apart from it being produced by her. There was little questioning on this document. I conclude that without more, the limitation period cannot run from the date of this search.

Lily’s 2004 letter

159Lily was helping Mee with the finances of the house. Mee said that the mortgage being paid off was handled by Lily. In 2004, Sui forwarded to Lily a letter Sui had received at his home in California, dated August 16, 2004. The letter was from the solicitor handling the estate of Sui’s sister, Tuey Sim Wong. A son of the deceased had brought to the solicitor a document dated from 1990 with respect to the Property confirming that Tuey had a 1/9 interest in the Property.

160It is of note that the letter was not sent to Mee requesting a response. Sui forwarded the letter to Lily, who was living with Mee at the Property. Sui did not explain why he referred the letter to Lily. At the time, there were no discussions between Lily and Sui, and certainly none between Sui and Mee.

161The letter to Sui requests information about title, value and management of the Property.

162The Plaintiffs argue that Mee ought to have known, by the exercise of due diligence, the state of the title from the date of Lily’s letter written in response in September 2004.

163For reasons that I will outline, I disagree.

164Lily sought the advice of a lawyer, Lawrence Zimmerman, and requested that he search title to be able to respond to the questions raised. She responded to the letter of inquiry directly, rather than engaging counsel to write the letter to save money. She stated in her letter of September 10, 2004, that according to a realtor the value of the Property was $400,000.00. She further states:

I believe the property shares are broken down as follows:

-Sui Sun Wong, 4/9 undivided interest

-Mee Fong Wong, 3/9 undivided interest

-Shui Nam Wong, 1/9 undivided interest

-Tuey Sim Wong, 1/9 undivided interest

165She further confirmed:

The property is managed by Mee Fong Wong and has been for over twenty years. I am her daughter, please forward any questions or concerns to my attention along with Sui San Wong so it will speed up the process.

166There was a response to Lily’s letter by the solicitor on September 14, 2004, asking about the $70,000.00 mortgage and seeking an accounting. No accounting was ever produced.

167Mee knew that Lily had received a letter about the Property, and knew that Lily was responding. That was the extent of Mee’s knowledge. The Plaintiffs argue that at this juncture, Mee should have asked more and been more diligent at this juncture.

168Lily confirmed that she did not discuss with Mee the contents of the letters, and did not explain to Mee how the state of title was held. Lily testified she did not explain the state of title to Mee, as: “I couldn’t explain it to her, I barely understood it myself”.

169I accept Lily’s evidence.

170Context is important. Mee forbade any discussion in their home about Sui. The children respected this rule of silence imposed by Mee. This rule was understandable in the context of Sui’s abandonment of his family, both emotionally and financially. Lily responded to the 2004 letter without involving Mee.

171Mee confirmed that she did not ever tell Lily, or her other children that Sui had promised her his interest in the Property, or that she understood that he had in fact transferred his interest to her. Any discussion about Sui was off limits.

172Lily responded to the letter and Mee and her family continued to live in the silo of silence vis a vis Sui. Daily life in their home continued uninterrupted.

173After 2004 there were no steps taken by the Plaintiffs to alert Mee to their claim. There was complete silence, and Mee and the children lived in the Property. Gradually the children moved off to live on their own. No one communicated with Mee about the Property until 2013 when counsel for Sui contacted Mee seeking the sale. At that time matters of title and ownership came to a head.

Discoverability and the unsophisticated plaintiff

174Counsel for Mee argued that Mee was uneducated and unsophisticated in assessing what she knew or should have known. He provided no caselaw in support of his argument.

175Case law interpreting the modified objective test under s. 5(1)(b) of the Limitations Act, confirms that when considering the factual context, vulnerability and lack of sophistication is important in assessing what a reasonable person with the abilities and in the circumstances of the person with the claim ought to have known.

176In Fehr, at para. 173, the Court of Appeal held that the motions judge erred by failing to take into account each plaintiff’s circumstances and experiences when assessing discoverability in a class action claim against an insurance company. The Court held, at para. 175, that a contextual discoverability analysis was important in Fehr because, among other things, the plaintiffs were unsophisticated in their knowledge about the insurance industry, the parties had a relationship of vulnerability, and the insurance policies were not easy to understand.

177In Ferrara, the Court of Appeal found that the plaintiff’s negligence claim against his long-time solicitor was only discoverable after a judicial decision was released that revealed the solicitor’s mistake that formed the basis of his cause of action (at para. 70). The Court found it relevant that the plaintiff was relatively unsophisticated: he was 60 years old, worked as a plumbing contractor, and had little formal education (at para. 68).

178In Ridel v. Cassin, 2014 ONCA 763, the Court of Appeal upheld a trial judge’s finding as to the limitation period. The trial judge correctly considered the plaintiff’s lack of sophistication in deciding what the plaintiff should have known about the investment dealer’s actions.

179One could not have a more unsophisticated, vulnerable person than Mee. She has a grade school education in China. She cannot read English. She was abandoned by Sui to fend for herself and the three children. Mee is presently 67 years old. At the time of Lily’s letter she was 53. At the time of trial, Mee had a very simplistic view of the facts. Sui had promised to her his share in the Property, and she believed as he did not sign the mortgages as owner, that he had fulfilled his promise. She was struggling, working doing dishes in a restaurant to raise the three children on her own. When asked why she did not retain a lawyer earlier, she responded quietly and clearly that she would not think of taking such a step, as she had no money, and her focus was the children.

Conclusions that section 5(1)(a) or (b) of the Limitations Act does not apply

180Clearly, Mee had no actual knowledge of the state of title until 2013 when she retained counsel. Hence, section 5(1)(a) of the Limitations Act does not engage.

181Lily had no discussions with Mee about the state of title, and did not confirm the contents or details of the search outlined in her letter sent with Mee.

182I conclude in the odd, and unique circumstances of this case, Lily’s limited knowledge about the title cannot be imputed to Mee to trigger a limitation period.

183Lily had no knowledge of Sui’s promise to Mee to transfer his interest to her. She had no knowledge of the Mother’s estate, and no knowledge about rights of joint tenants as opposed to tenants in common. When Lily wrote the 2004 letter she would not have understood the implications of title vis a vis the rights of Mee.

184Counsel for Mee raised concerns about the conduct of Mr. Mark. The Plaintiff suggests that an expert report is necessary to inform this issue. I disagee. Mee is not suing Mr. Mark for negligence. The undisputed facts are clear.

185The relationship between Mee and the lawyer Mr. Mark was seriously flawed. Mr. Mark prepared the transfers and provided the Wong family with legal services. He is dead, and his files were not before the court. He acted for the Wong family, including Mee.

186Mr. Mark failed to protect Mee’s interests at any juncture. His failure began at the time of the divorce in 1979, when Mee did not have any independent legal advice as to her rights at the time of the breakdown of the marriage, including her rights to spousal support and property. His failure continued when he prepared the transfer by Sui to the Mother in 1980, as it took place without notice to Mee.

187He was the lawyer acting for the 1984 and 1989 the mortgages, which resulted in funds going to Sui. Mee did sign these documents.

188He again prepared the transfer from the Mother’s estate in trust to Sui, without notice to Mee, when Sui was in serious arrears of child support.

189Finally, he prepared the transfer from the Mother’s estate to her heirs in 1990, again without notice to Mee.

190When the executors signed documents prepared by Mr. Mark recognizing Sui’s interest in the Property, Sui had broken his promise to transfer his share of the Property to Mee, and had not paid any child support for ten years. It is shocking that this transfer took place in favour of Sui, and that no steps were taken to protect Mee and the children.

191Mr. Mark was not aware of the law when there are three joint tenants, and one interest has been severed to become held as a tenant in common. Otherwise, he presumably would not have prepared the various transfers.

192While ignorance of the law alone is not enough to delay discoverability, here Mee had no knowledge of a potential claim for her loss of the Mother’s interest in the Property until 2013, when she sought counsel to contest Sui’s failure to keep his promise to transfer her his interest in the property, and she understood through counsel her rights as a joint tenant with the Mother at the date of death: see Filbey v. Ashe, 2018 ONSC 4615, at para. 68; and Fehr.

193The questionable transactions with respect to the Mother’s estate by Sui and his siblings took place behind Mee’s back.

194At the time, Mee should have been given notice by the lawyer handling these transactions. She should also have been given independent meaningful legal advice to understand the transactions and her rights. The Property was her home, and the home of the children.

195As the transfers from the Mother’s estate were done without legal foundation, based upon the mistake as to the law by the solicitor handling the transaction, without notice or independent advice to Mee, the limitation period and discoverability for this particular issue must run from the date that the mistake could reasonably be discovered.

196All issues came to a head steps began to sell the Property and Mee retained counsel in 2013.

197Mee lived in the Property uninterrupted from 1977 when Sui deserted the family for 36 years until steps were taken to assert an interest in the Property in 2013 based upon the title. Apart from the letter to Lily, no one took any active steps in relation to the Property for 36 years until 2013.

198Without considering fraudulent concealment specifically, and in the context of the undisputed facts and the failure to give notice of various transactions affecting her home, I conclude that the limitation period cannot begin to run until Mee retained counsel, in 2013.

Discoverability and the common law of fraudulent concealment

199I am reinforced in my conclusions reached when I consider in addition the principles enunciated in the recent Court of Appeal decision in Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47. I provided counsel with an opportunity to address this case, which was not brought to my attention during argument.

200Counsel for the Plaintiffs argues that fraudulent concealment was not specifically pleaded in the Statement of Defence, and therefore should not be considered by the Court. Discoverability was clearly in issue. The facts relevant to fraudulent concealment were clearly before the court and are relevant and important to the application of the test in section 5(1)(c) of the Limitations Act.

201Counsel for Mee asserted that the claims in this case were not discoverable until Mee retained counsel in 2013. The issues of Sui’s and Mr. Mark’s conduct failing to disclose transactions affecting the Property was clearly raised. Mee’s vulnerability was raised. It is not disputed that Mee was not informed by Sui, the family or by Mr. Mark of any of the transactions affecting the Property, with the exception of the two mortgages that Mee signed. The facts relevant to the concealment are not in dispute and were clearly before the court. Mr. Mark’s conduct failing to notify Mee of the various transactions was criticized in relation to the tolling of the limitation period, although fraudulent concealment was not specifically raised or pleaded by counsel for Mee.

202Counsel for the Plaintiffs objects to consideration of the cases concerning fraudulent concealment and vulnerability. Discoverability was clearly an important issue in this case, and all the relevant uncontested facts are before the court. The lawyer who handled the various transactions and failed to notify Mee is dead and his files were not before the court. Sui has virtually no memory of events, and Mee has a limited memory. She was questioned about why she did not retain counsel earlier. It is the responsibility of both counsel, including counsel for the Plaintiffs, to bring case law to the Court which is relevant to the issues they raise.

203The application of the equitable principles of fraudulent concealment provides another lens to analyze the relevant facts already before the court confirming the any limitation period should not toll until Mee had actual knowledge of the title of the Property when she retained counsel.

204The recent Court of Appeal decision in Zeppa confirms the parameters of fraudulent concealment as an equitable principle that may engage outside the rules of construction of limitation periods. If it applies, it suspends the tolling of the limitation period until the injured party can reasonably discover her right of action. Fraudulent concealment necessary to toll or suspend the operation of the statute amounts to a soft definition of fraud, and need not amount to deceit or common law fraud as we know it in the criminal law context: Guerin v. R., [1984] 2 S.C.R. 335, at para. 111; Giroux Estate v. Trillium Health Centre (2005), 74 O.R. (3d) 341 (C.A.), at para. 28.

205In Zeppa the majority decision, written by Brown, J.A. and adopted by Strathy, C.J.O., confirms the elements of fraudulent concealment as enunciated in the decision of Perell J. in Colin v. Tan, 2016 ONSC 1187, at paras. 44-47:

Fraudulent concealment will suspend a limitation period until the plaintiff can reasonably discover his or her cause of action.

The constituent elements of fraudulent concealment are threefold:

(1) the defendant and plaintiff have a special relationship with one another;

(2) given the special or confidential nature of the relationship, the defendant's conduct is unconscionable; and

(3) the defendant conceals the plaintiff's right of action either actively or the right of action is concealed by the manner of the wrongdoing.

Fraudulent concealment includes conduct that having regard to some special relationship between the parties concerned is unconscionable. For fraudulent concealment, the defendant must hide, secret, cloak, camouflage, disguise, cover-up the conduct or identity of the wrongdoing. The word fraudulent is used in its equitable (not common law) sense to denote conduct by the defendant such that it would be against conscience for him or her to avail himself of the lapse of time.

There is a causative element to the doctrine of fraudulent concealment because the legal policy behind fraudulent concealment is that if the plaintiff was unaware of his or her cause of action because of the wrong of the defendant, then the court will refuse to allow a limitation defence; i.e., the plaintiff must be ignorant of the cause of action because of the misconduct of the defendant. [Citations omitted; Emphasis added.]

206Zeppa, at para. 72, makes clear that it is the effect of the defendant’s concealment of the material facts which operates to delay discoverability.

207The Court confirmed that the equitable principles of fraudulent concealment have been applied in a broad spectrum of factual contexts to suspend the tolling of various limitation periods. Giroux Estate v. Trillium Health Centre; Roulston v. McKenny, 2017 ONCA 9; Anderson v. McWatt, 2015 ONSC 3784, appeal dismissed 2016 ONCA 553; Halloran v. Ontario (Employment Standards Act Referee) (2002), 217 D.L.R. (4th) 327 (Ont. C.A.), at para. 35.

Special relationship

208First, Mee and Sui are in a special relationship. They are former husband and wife with three dependent children. Mee is also in a special relationship with the Mother and Sui’s relatives as family. Mee was living in the Property with her young children at the time. Mee is also in a special relationship with Mark, as her lawyer, at least at the time the Property was acquired.

Evidence of unconscionable conduct

209Sui’s conduct was unconscionable. First, he made empty promises to get a divorce then failed to fulfill his promise to transfer the Property to Mee. Second, he abandoned his family and did not ever pay the nominal court ordered child support.

210Finally the conduct of the lawyer was seriously flawed and sufficient to “shock the conscience of the court”. The lawyer for the Wong family failed to ensure that Mee had independent legal advice throughout, beginning at the time of the divorce and thereafter to protect not only her rights, but the rights of the young children living in poverty. He failed to notify Mee of the various transactions and to provide her with independent legal advice when her home, her rights and the rights of her children were clearly affected.

All transactions affecting Mee’s home where she is residing with her children are concealed from Mee

211Mr. Mark prepared the transfer back from the Mother’s estate to Sui without notice to Mee in circumstances when Sui had failed to pay child support for over ten years, and when the children were still dependent. Mr. Mark also prepared the invalid transfer of the Mother’s interest in the Property held as a joint tenant with Mee to the heirs, again, without notice to Mee.

212Applying the overarching principle of fraudulent concealment: it would shock the conscience for Sui and the heirs to be able to avail themselves of the lapse of time in the circumstances of this case.

213Mee did not learn the material facts about her claims, which involve complex issues and legal principles, until she retained counsel in 2013.

214In the facts and contextual circumstances of this case, Lily’s letter and finding the search in the affidavit of documents cannot trigger the modified objective test of discoverability outlined in section 5(1)(b) imputing knowledge to Mee.

215Therefore, considering all arguments, including this alternative argument, this action commenced in 2015 was clearly brought in time.

Law re: setting aside mistaken transfers

216This Court has the jurisdiction to rectify errors in title to property which occur during probate (Andrade v. Andrade, 2016 ONCA 368, 131 O.R. (3d) 532, at para. 108; Cotter, Re (1915), 24 D.L.R. 289 (Ont. C.A.), at p. 293; Abram Estate v. Shankoff, 2007 BCSC 1368, at paras. 101-104; Diplock v. Wintle (1950), [1951] A.C. 251 (U.K. H.L.)).

217Therefore, the transfers to the Mother’s heirs pursuant to her will that failed to recognize Mee’s claim as a joint tenant should be rectified.

Sui’s promises to his children

218There is a further odd fact in this case.

219In 2007, after 25 years of abandonment and no contact whatsoever (apart from the 2004 letter), the three children unexpectedly received a phone call out of the blue from Sui and were invited to visit in San Francisco. The children thought that maybe their father was dying and wanted to make amends. They decided to go.

220Sui paid the airfare for the children, and invited them for meals. They visited his home. They noticed he was driving a Mercedes and lived in a comfortable, spacious home.

221During that visit, Sui told the children not to worry, that he would be leaving his interest in the Property to the children in his will. I accept the evidence of the three children that these discussions took place; again, empty promises. Kelly, the banker son, suggested getting papers confirming this, but Sui declined to confirm his oral representations in writing, and asked “you don’t trust me?” Sui and Eleanor deny any of these discussions.

222Kelly, who works as a bank manager confirmed that Sui came to Canada in 2009 to see his grandson. Again, Sui confirmed that he was going to leave his interest in the Property to the children. Kelly suggested they commit the promise to writing with a lawyer, but again Sui declined.

Not necessary to consider the alternative claim based upon a trust

223Mee claims in the alternative that she is entitled to 100% of the Property based upon principles of trust.

224The Limitation period for a trust claim for real property, including the alternative remedy of a monetary award, is 10 years, according to s. 4 of the RPLA, see McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561, at para. 38. Had the trust been a live issue, the limitation period would run from the date that Mee retained counsel in 2013.

225There is a bald allegation in the pleading claiming entitlement to the Property based upon trust principles. Little or no evidence was called by Mee to flesh out this complex claim. No submissions were made on this issue.

226Clearly all the Plaintiffs have benefited from Mee managing the Property and paying down the mortgage principal over the years.

227Mee has a remedy against Sui’s interest in the Property, as she can claim support arrears with interest. I have taken into account the circumstances and contribution by Mee in awarding compound interest against Sui.

228As Mee is able to make out her claims against the other Plaintiffs, and their claims to a share of the proceeds cannot be recognized in law, it is not necessary to consider the trust claim.

Issue 3: Set-off, support arrears, and calculating the appropriate post judgment interest

229Counsel for Sui acknowledges that the amount of support owing with interest should be paid to Mee from Sui’s share of the Property proceeds, applying the principles of equitable set-off.

230As the oral agreement to transfer Property is not enforceable, Sui has a one third interest in the sale proceeds in the Property.

231During the trial, and in the written submissions, counsel for Sui submitted a schedule confirming that Sui owes the sum of $131,685.53 US for arrears of child support pursuant to the Nevada judgment.

232Child support in the amount of $100 per month per child was calculated to age 21 for the sons, and to age 18 for Lily, as she left high school to work, and only returned to university later as a mature student. Simple interest at 5% was added to the principal outstanding as that was the applicable rate in 1979 when the divorce was obtained in accordance with the Judicature Act, R.S.O. 1960, c. 197, rate in 1979.

233Counsel for Mee agreed with the accuracy of counsel for Sui’s calculation, but does not accept either the interest rate used or that simple interest should apply. He suggests that a higher post-judgment interest rate should apply, and that compound interest should be payable in the egregious facts of this case. Counsel for Mee’s original calculation at the trial with a combination of simple and compound interest on the support arrears was a claim in the amount of $683,990. US.

234As the question of the method and rate of calculating interest was not adequately addressed at the trial, I requested that counsel file supplementary written submissions on this issue following the trial. I thank counsel for these submissions.

235In the written submissions, counsel for Mee argues that the appropriate interest rate is 7.34%, based upon the Nevada post-judgment interest rate for child support in 1979. Alternatively, he suggests that the average rate of post-judgment interest stipulated in the Courts of Justice Act, R.S.O. 1990, c. C.43, applies given the significant passage of time, and the significant fluctuations in interest rates should apply. The average rate of post judgment interest is 7%.

236I find that the appropriate interest rate for the post-judgment interest is the 7.34% applicable on support arrears in accordance with the Nevada post-judgment interest rate on the support arrears. It is close to the average rate of interest over the many years that the support arrears were not paid.

Principles of when compound interest may be ordered

237Sections 128 and 130 of the Courts of Justice Act confirm that the court has discretion to fix the rate of prejudgment interest.

238Clearly the usual rule for post-judgment interest is that it is simple interest, and not compounded annually. In Canadian Imperial Bank of Commerce v. Graat (1997), 39 O.T.C. 152 (C.A.), at para. 13, the Court of Appeal stated that “…compound prejudgment interest is not to be awarded absent circumstances calling for the exercise of equitable discretion”.

239Courts have traditionally exercised their discretion to award compound interest in cases where the plaintiff was deprived of the use of an actual sum of money.

240In the family law context, compound interest was awarded in Lev v. Lev, 1991 CarswellMan 42 (Q.B.). The respondent owed the wife support payments, which he intentionally delayed making in an attempt to avoid payment. The court held that compound interest was an appropriate method to compensate the applicant for the loss of control and use of the support payment money which the respondent delayed paying for 6.5 years (at para. 65). The court ordered the compound interest under Manitoba family legislation which allowed the court to fix the interest rate if it was “equitable under the circumstances” (at para. 64).

241Courts awarded compound interest in other factual contexts where the plaintiff was deprived of the use of an actual sum of money: Enbridge Gas Distribution Inc. v. Marinaccio, 2012 ONCA 650; Clarke v. Milford (1987), 78 N.S.R. (2d) 337 (C.A.); and Mathers v. Mathers (1989), 92 N.S.R. (2d) 271 (S.C. (T.D.)).

242Specifically, in Enbridge Gas, at para. 57, the Court of Appeal commented that it has consistently approved of decisions to award compound interest based on breaches of trust or fiduciary duty.

243The Supreme Court has recognized that the relationship between parent and child in the support context is fiduciary: S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231, at paras. 157-158; Kerr v. Barrow, 2011 SCC 10, at para. 208.

244There is a fiduciary duty between parent and child: S. (D.B.), at paras. 157-158. It seems clear that abandoning his children, failing to pay court ordered child support, and leaving the children in relative poverty while living in comfort is a breach of that duty.

Conclusions with respect to arrears of child support

245To calculate the support set-off, the term of support must be established. I conclude that it is reasonable to calculate child support for all three children to age 21. Lily left school earlier than 21 years, due to financial reasons, then returned later as a mature student to complete her university degree.

246Mee claims not only the arrears of child support in this action, but also claims for spousal support that she should have got had she not been misled by Sui’s promises that he had no intention of keeping.

247It would not be appropriate at this juncture to reopen the question of spousal support, although clearly on the facts, if spousal support had been claimed at the time Mee would have been entitled to both child and spousal support.

248A factor relevant to considering an award of compound interest is that clearly Mee would have been entitled to increases in the child support based upon Sui’s improved circumstances had she pursued the child support claim. As well, Sui did not contribute a penny to the children’s post secondary education by way of section 7 expenses.

249When Lily wrote the letter in 2004 the estimated value of the Property was $400,000.00. It sold for significantly more in 2014. I accept that the Property was too run down to rent and that in the later years Mee lived in the home with her sister paying all expenses. Sui has benefitted significantly by Mee retaining the Property, and paying all of the expenses in the face of an increasing real estate market, taking into account that Mee and her family were living in the Property, and notional occupation rent.

250Mee also paid down the capital of the mortgage of $70,000.00 taken out on the Property in 1989. A significant part of these funds (at least $23,000.00) were used to pay for the Mother’s funeral, or else the funds went directly to Sui.

251Sui enjoyed a carefree lifestyle not paying any support, and had the opportunity to build assets. He confirmed that he obtained employment immediately when he went to California, and that it was very easy as his trade as a garment cutter was in demand. He accumulated assets. He owns his home. He drives a Mercedes. Clearly Sui had ample ability to pay child support.

252In my view, simply repaying the arrears of child support, at the nominal amount of $100.00 per month per child with simple interest, is not adequate in the circumstances of this case. Payment in this fashion rewards Sui for abandoning his wife and three young children.

253Sui deprived Mee of the use of the support payments she was owed. I find that equitable jurisdiction allows me to order compound interest to compensate Mee for the loss of control and use of the money which was rightly owed to her and desperately needed to assist her to raise her family. Further, the support arrears are owed in US dollars pursuant to the Nevada judgment.

254Compound post judgment interest using the rate of 7.34% Nevada rate is appropriate in this case.

255Counsel for Mee confirmed in argument that Mee was seeking entitlement to the entire proceeds of the sale of the Property, but not more than this amount.

256I conclude that the amount of the set-off for child support arrears with accrued interest should not exceed Sui’s interest in the proceeds of the sale of the Property. He is 82 years of age, and although Sui’s conduct is appalling, Mee took no steps over these many years to pursue the support claim.

Conclusions

257The following is a summary of my conclusions:

1. Sui made the promise to transfer his interest to Mee. I conclude that Sui did make the promise to Mee to obtain the Nevada divorce, never intending to keep his word. All of Sui’s behavior post divorce is consistent with him misleading Mee to get his divorce, with him intending to continue to hold a one-third interest in the Property.

2. The promise made and broken is not enforceable. The Statute of Frauds, R.S.O. 1990, c. S.19, s. 1, requires a written document to transfer an interest in land. Lupul v. Carlson, at para. 19. As there is no written document signed confirming the oral agreement to transfer Sui’s interest to Mee, the oral agreement is unenforceable. That Sui obtained the divorce on a broken promise cannot change the age-old law.

3. The transfer from Sui to the Mother in 1980 severed Sui’s joint tenancy interest. I conclude that the transfer on March 25, 1980 from Sui to his Mother in trust severed the joint tenancy between Sui, Mee and the Mother. The Mother therefore held Sui’s one-third undivided interest in trust as a tenant in common.

4. Mee should have inherited the Mother’s share in the Property at her death. However, this is was a three way joint tenancy. In accordance with the Jansen decision, the transfer from Sui to the Mother in trust did not sever the joint tenancy between Mee and the Mother.

5. There is no course of conduct showing an intent by the parties to hold the Property as tenants in common. The principles of Hansen do not apply. I conclude that the Plaintiffs have not met their onus to prove that there was evidence of intention to sever the joint tenancy between Mee and the Mother. To the contrary, the evidence of the parties, and any registrations on title prior to the death of the Mother, confirm continued intention to hold the Property between Mee and the Mother as joint tenants. Any steps taken were done behind Mee’s back, without her knowledge or her consent. In these circumstances there cannot be a course of conduct to hold the Property as tenants in common. Therefore, Mee as a joint tenant at the time of the Mother’s death inherits the Mother’s interest in the Property, unless Mee’s claim is barred by a limitation defence.

6. There is no valid limitation issue. Mee initiated her claims well within the applicable ten-year limitation period. The ten-year limitation period applies to claims for real estate, including issues of title and trust claims, and is subject to the principles of discoverability. I find that the ten-year limitation period begins from the time Mee retained counsel at the time of the sale in 2013. At that time she discovered for the first time the state of title: that Sui had not fulfilled his promise to transfer his share of the Property to her, and that the Mother’s interest had been inappropriately transferred to the beneficiaries under her will. Mee, vulnerable and uneducated, who did not speak or read English, had no notice of the transfers in relation to the Property while she was living in her home with the three children. She should have been given notice, and independent legal advice at the time of the transfer from Sui to the Mother in 1980 and at the time of the various transfers in 1990 after the Mother died. The transfers done behind her back cannot trigger the modified objective test of discoverability in s. 5(1)(b) of the Limitations Act. Lily’s letter and any title search did not trigger the limitation period it is clear from the evidence that the first time Mee was aware of the state of title was in 2013.

7. The alternative claim in trust does not need to be considered.

8. Mee is entitled to set-off against Sui’s share in the Property, the unpaid child support arrears with compound interest. Counsel for Sui acknowledges that Mee is entitled to claim the support arrears outstanding pursuant to the Nevada divorce, by way of set-off against any interest he may have in the Property. The child support should be calculated until each child attains the age of 21 years old. I accept the argument of counsel for Mee that the appropriate rate of post judgment interest is that stipulated for arrears of support in Nevada in 1980 at 7.34%. I find that the facts of this case warrant an order for compound interest. Counsel for Mee confirmed that so long as she received the entire proceeds of the sale of the Property, with any accrued interest, that she was not seeking any additional award for support arrears.

Costs

258I have requested that the parties submit their Bills of Costs, with any offers to settle sealed prior to me releasing these reasons. If the parties are not able to agree on the appropriate award of costs within 30 days of the release of these reasons, the parties may make brief written submissions to me, not to exceed 5 pages, and I will determine the entitlement for costs.

J. Wilson J.

Released: June 28, 2019

REASONS FOR JUDGMENT

J. Wilson J.