COURT FILE NO.: 17-73107

DATE: 2019/12/12

SUPERIOR COURT OF JUSTICE - ONTARIO

IN THE ESTATE OF JEANNE HAYWARD (ALSO KNOWN AS JEAN HAYWARD), DECEASED

RE: Leslie Ann Hayward as Estate Trustee and the Estate of Jeanne Hayward (also known as Jean Hayward), Applicants

AND

Alexander William Keith Hayward, Shawn Hayward, David Hayward, Kelly Hayward and Lori Hayward, Respondents

BEFORE: Mr. Justice Stanley Kershman

COUNSEL: Gail Nicholls, Counsel for the Applicants

Robert De Toni and Sarah Macaluso, Counsel for the Respondents

HEARD: October 24, 2018 and April 1, 2, 3, 4, 2019

Last of written submissions provided on June 28, 2019

REASONS FOR DECISION

Introduction

[1] This is an estate matter involving the late Jeanne Hayward, her former husband, Alexander Hayward (“Alex Hayward”), and their five children.

[2] The purpose of this trial among other things is to determine ownership of certain property and to determine if monies are owed to Alex Hayward. A Summary Trial was conducted pursuant to r. 76.12 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, (“Rules”) with the affidavits acting as examinations in chief. Cross-examination and re-examination were held at the trial.

[3] While the Rules state that cross-examination at a Summary Trial should be no more than 10 minutes per affidavit, the Court finds that the issues involved were numerous and complex. Therefore, the Court has allowed cross-examination on each affidavit to be longer than the times set out in the Rules.

Factual Background

[4] Jeanne Hayward also known as Jean Hayward (“Deceased”) passed away on January 21, 2017 in Ottawa, Ontario.

[5] She is survived by her adult children Leslie Hayward (“Leslie”), Shawn Hayward (“Shawn”), David Hayward (“David”), Kelly Hayward (“Kelly”) and Lori Hayward (“Lori”). All five siblings are named as beneficiaries in the Deceased’s will. Alex Hayward, her former spouse, is not named as a beneficiary under the will, dated February 5, 2015 (“Last Will and Testament”).

[6] Alex Hayward and the Deceased were married on October 27, 1956 and separated on January 1, 1996. They divorced on July 29, 2002. Notwithstanding the divorce, Alex Hayward did not move out of the matrimonial home. The matrimonial home was solely in the name of the Deceased. The Deceased and Alex Hayward continued to live in the home until her passing on January 21, 2017.

[7] Alex Hayward and the Deceased entered into a Separation Agreement dated May 6, 2002. Paragraph 6(a) of the Separation Agreement confirmed that the home located at 6929 Gallagher Road, Ottawa, Ontario (“Property”) would remain the property of the Deceased. Provisions were made allowing Alex Hayward the right to continue to reside in the matrimonial home until the earlier of:

• when Alex Hayward sold his property known as 1800 1 ERE Avenue, Quebec (“Quebec Property”) and found a suitable alternative property in which to reside; or
• five years from the date that the Separation Agreement was executed.

[8] The Quebec Property was transferred to an aunt, Doris McCune for another property. That other property was later sold in 2014.

[9] Notwithstanding the aforesaid conditions, Alex Hayward continued to live in the Deceased’s home until her passing.

[10] The Deceased made a last will and testament dated February 5, 2015. On March 27, 2017 Leslie was appointed as the Estate Trustee in Court File No. 34559/17 by way of Certificate of Appointment of Estate Trustee with a Will (“Certificate of Appointment”).

Viewing of the Premises (“View”)

[11] A View was taken at the Property on April 25, 2018. The Court, counsel for the parties and some of the parties were in attendance excluding Alex Hayward and David.

[12] The Property at this point could best be described as a junkyard or a hoarder’s property. There were items strewn all over the Property including vehicles, vehicle parts, construction materials and large amounts of other items.

[13] The inside of the house could be described similarly. An environmental company was hired to clean up the inside of the house. At the time of the viewing, a large amount of what was inside the house had been cleaned up.

[14] The Court inspected the Property at the View, including the buildings and labelled five Amish Sheds.

Issues

[15] The issues are as follows:

1. Is the document which the Court referred to as the Supplementary Separation Agreement dated May 4, 2002 (“Questioned Document”) authentic?

2. Who is the owner of the following tractors and vehicles?

a) Montana Tractor

b) Ferguson Tractor

c) 1931 Essex

d) 1930 Model A Ford (Blue)

e) 1921 TT Produce Truck (Red) – Purchased Circa 2009

f) 1916/17 Touring Black Convertible – Purchased 2015/2016

g) 1933 Pontiac (Blue)

h) 1927 Whippet (Olive Green)

3. Who is the owner of 13 items of furniture as between the Estate and Alex Hayward?

4. Does Alex Hayward have a claim to be reimbursed by the Estate for the new roof installed on the Property in 2010?

5. Does Alex Hayward have a valid claim against the Estate for the 2015 Chev Malibu?

6. Who is the Owner of Amish Shed #5?

Issue #1: Is the document which the Court referred to as the Supplementary Separation Agreement dated May 4, 2002 (“Questioned Document”) authentic?

[16] A digital scan and a photocopy of a fax paper photocopy was produced by the Estate and dated May 4, 2002. It was previously identified by the Court as the Supplementary Separation Agreement. Having read the document, the Court will refer to that document in this decision as the Questioned Document. The Court apologized for the confusion and for referring to it as the Supplementary Separation Agreement at trial.

[17] The Questioned Document is titled “Re Significant Assets for separation agreement between Jean Hayward and Alex Hayward. Copies for Trisha Schouten for supplement to Separation Agreement and divorce.”

[18] A Separation Agreement dated May 6, 2002 was prepared for the parties by Tricia Schouten, a lawyer then practicing in the Richmond, Ontario area. The document was signed by both Alex Hayward and the Deceased.

[19] The Separation Agreement stated that the parties had been living separate and apart since January 1996 although in the same dwelling and that they shared the home as a matter of convenience, and not as a couple.

[20] The Separation Agreement goes on to say that the matrimonial home will remain the property of the Deceased. Alex Hayward would have the right to remain in the Property for a period of time. The evidence was that notwithstanding the time limit by which Alex Hayward had to move out of the house, he did not. The evidence is that the parties continued to live separate and apart even though in the same house until the Deceased passed away in January 2017.

[21] Paragraph 6(b) of the Separation Agreement in part reads as follows: “The husband and wife have allocated all remaining net family property, including the contents of the matrimonial home, between themselves, and the husband shall remove his share of the said remaining net family property from the matrimonial home by the earlier of the dates referred to in paragraph 6(a) herein.”

[22] Notwithstanding wording of paragraph 6(b), Alex Hayward only moved some of his property to Shawn’s property while the rest of his property remained on the Property. There was no list of what was removed and what remained.

[23] The Separation Agreement indicated that the parties were advised to obtain independent legal advice, and they elected not to do so.

[24] There is no dispute that the Separation Agreement was signed by both parties.

[25] What is in dispute is whether the Questioned Document is authentic or whether it was created by manipulation of documents (e.g. cutting and pasting from other documents). If the Questioned Document is signed by the parties and is authentic, this would have a significant impact on the ownership of certain assets listed therein.

[26] The Respondents questioned the authenticity of the Questioned Document. Both parties retained experts to provide opinions as to its authenticity. The following is a summary and analysis of the expert evidence.

a) The Report of Marc Gaudreau

[27] Marc Gaudreau was the expert retained by the Respondents for the purpose of determining whether the Questioned Document is authentic. Mr. Gaudreau states that he is a Forensic Document Examiner, and that he received his formal training from the Royal Canadian Mounted Police’s Central Forensic Laboratory System. He states that he worked in this capacity since 1988.

[28] The Court found that Mr. Gaudreau was an expert witness in relation to forensic document examination.

[29] In his initial report, Mr. Gaudreau concludes that the Questioned Document is not authentic because the text therein is misaligned and because the signature of Jeanne Hayward was manufactured through a process that involved altering of the original document. Specifically, he opines that the document contains qualities not generally observed under normal operating conditions: irregular illumination, faint vertical lines, document skew, and distorted text lines. According to his report, these are predominantly the result of a copying process that involved shoddy document placement on a scanner. Further, the irregular margins, misaligned text, and faint horizonal lines present indicate that a “cut and paste” process was employed using a photocopier or a computer. The Jeanne Hayward signature area showed erasures and remnants of a previous signature line.

[30] For those reasons, Mr. Gaudreau’s expert opinion was that the Questioned Document was not authentic.

b) The Report of David Harrington

[31] David Harrington was the expert retained by the Applicants for the purposes of reviewing and replying to the report prepared by Mr. Gaudreau. Mr. Harrington’s qualifications are derived from his employment with Xerox Canada between 1975 and 1981, where he was in charge of the sale and support of the company’s photocopiers and facsimile machines.

[32] An objection to Mr. Harrington’s qualifications was raised during the proceedings. After hearing arguments, the Court found that Mr. Harrington was qualified as an expert in thermal fax machines, and, specifically, their quirks and deficiencies because of his knowledge of thermal fax machines. The Respondents argues that Mr. Harrington should not be qualified because he has never served as an expert witness before. The Court finds that was clearly outweighed by his years of experience in the field. The Court finds that his background provides him with significant knowledge regarding the technology in the thermal fax machine purportedly used to produce the Questioned Document.

[33] Mr. Harrington’s conclusions regarding the Questioned Document can be summarized as follows: given the shortcomings in the process and technology used to create the Questioned Document, he submits that it would be a “significant stretch” to conclude that the Questioned Document has been manipulated. Rather, the irregularities noted in Mr. Gaudreau’s report are firstly attributable to the fact that thermal copy technology used tends to create ghost lines like those apparent on the document because the document darkens after it is printed, leaving behind marks created by the paper having been pulled off the roll by the machine, fed into the out-tray and cut from the roll. The alleged manipulation would have left marks far more obvious than the faint lines present on the document.

[34] Secondly, Mr. Harrington concludes that the irregular margins and skew are not attributable to manipulation, but rather to defects in the printer’s machine rollers and the use of hyphens. The hyphens give only the appearance that the alignment of the text is changed.

[35] Finally, Mr. Harrington concludes that the typographical errors and inconsistencies in the document suggest that the document was prepared by one of the signatories to the document or a family member. A lay-drafter would be unfamiliar with the formatting and appearance standards, line spacings, and margins that one might expect to see had the document been professionally prepared.

c) The Responding Report of Marc Gaudreau

[36] In his Responding Report, Mr. Gaudreau rebuts many of Mr. Harrington’s conclusions. First, regarding the alleged effects of thermal technology, Mr. Gaudreau notes that typically observed defects in the output of this technology—such as reduced image and character quality—were not present in the Questioned Document. He further submits that the type of skew described in Mr. Harrington’s report is not present in the Questioned Document because the edges are square rather than trapezoidal.

[37] As regards the impugned lines, Mr. Gaudreau disputes the notion that image darkening from heat exposure was necessarily present in the Questioned Document, as the exhibit referenced by Mr. Harrington (Figure 2 in Mr. Gaudreau’s initial report) was a digital copy whose contrast had been increased on the computer to highlight the impugned lines—hence the apparent darkening. He further disputes that the impugned lines would necessarily be more pronounced if image manipulation had occurred because, in his experience, the technologies available to commit forgeries are sophisticated enough to be extremely subtle and convincing. The methods allegedly used on the Questioned Document were far from sophisticated—hence the observable lines.

[38] Finally, Mr. Gaudreau submits that the argument that typographical errors and inconsistencies in the Questioned Document indicate that it had been crafted by one of the signatories or a family member, falls into the field of forensic linguistics—outside Mr. Harrington’s stated areas of expertise.

d) Analysis

[39] For the reasons set out below, the Court finds that the Questioned Document is authentic. The Court finds that the expert evidence and context surrounding the creation of the Questioned Document weighs in favour of a finding on the balance of probabilities that the document is authentic.

[40] The original of the Questioned Document was not produced. The only document produced was a photocopy of a photocopy of a document on thermal fax paper. As mentioned previously, the technology used in creating the Questioned Document is said to be thermal.

[41] The evidence did not suggest that Mr. Gaudreau, in preparing his initial report, was aware that the Questioned Document was created using thermal technology. He did not consider the impact of this important fact in his initial report. The Court finds that this is ultimately fatal to the reliability of his analysis of the authenticity of the document.

[42] Mr. Gaudreau, on cross-examination, acknowledged that there is nothing in his initial report which refers to thermal fax machines and thermal production of the Questioned Document. He testified that, when he prepared his report, he saw no evidence that the Questioned Document was created on thermal paper.

[43] Underpinning this problem is that Mr. Gaudreau does not appear to have much if any experience with the thermal fax technology in question. When cross-examined, Mr. Gaudreau said that he had testified in forensic cases approximately 50 times, but he could not recall how many times if any were related to the issue of fax machines. The Court finds that, based on this evidence, Mr. Gaudreau has in all likelihood never testified in relation to the issue of fax machines and their product.

[44] Kelly Hayward testified that she saw the Questioned Document in 2002 on fax paper when her mother, Jeanne Hayward, showed it to her. This document would have likely been produced using the thermal fax machine in Jeanne’s home.

[45] Kelly also testified that she saw the Questioned Document when she and Leslie were at the Property cleaning the house, on her father’s desk, around the time that her mother passed away.

[46] The Court finds that Mr. Harrington is a properly qualified expert in thermal fax machines and the quirks and deficiencies of the thermal fax technology used. His explanation that the defects in the Questioned Document were caused by the thermal technology are credible and supported by the evidence. Any deficiencies regarding his reasons for believing that a thermal copying process was used in the first place, such as his commentary on the physical characteristics of the Questioned Document as it appears in Figure 2 of Mr. Gaudreau’s original report, are not fatal to his conclusions regarding the effects of the thermal copying process.

[47] The Court finds that Mr. Gaudreau’s Responding Report unsuccessfully attempts to diminish the significance of his failure to consider the impact of thermal fax technology in his initial analysis of the document.

[48] Notably, the Court disagrees with Mr. Gaudreau’s assertion that the skew present in the Questioned Document is the result of a cut and paste manipulation process, rather than a defect in the copying process that is characteristic of thermal printing technology.

[49] Kelly Hayward’s testimony makes clear that thermal technology was used because that was what was available in Jeanne Hayward’s home at the time it was produced.

[50] The Questioned Document is dated May 4, 2002, two days before the Separation Agreement was dated and signed. Part of the Questioned Document says, “copies for Tricia Schouten for supplement to Separation Agreement and divorce.” The Questioned Document is dated in advance of the Separation Agreement, which makes sense because it was prepared and signed before the Separation Agreement was signed. The Court makes a finding to this effect.

[51] Furthermore, in support of authenticity, there is a differentiation in the typing and signatures of the names “Jean Hayward” and “Jeanne Hayward” in the Questioned Document. The Court finds that these inconsistent spellings are not an indication that the Questioned Document is not authentic. Rather, it tends to support the argument in favour of authenticity.

[52] The following documents were also signed by the Deceased as “Jeanne Hayward”:

• The Separation Agreement dated May 6, 2002;
• The Affidavit for Divorce dated May 6, 2002; and
• The Last Will and Testament of the Deceased dated February 5, 2015.

[53] The Court notes that the typed versions of her name in each of these three documents is shown as “Jean Hayward”, while her signature is signed as “Jeanne Hayward”. The Court also notes that the typed name of the Deceased in the Certificate for Divorce is “Jean Hayward”.

[54] The Court finds that the inconsistent typing and signature of Jeanne Hayward’s name in the Questioned Document is not attributable to a spelling mistake. Rather, it is consistent with the spelling of her name in the other aforesaid documentation, none of which is at issue in terms of authenticity.

[55] In addition, the Court does not give significant weight to the other purported shortcomings of the Questioned Document highlighted by the Respondents and their expert. While the lawyer who ultimately drafted the Separation Agreement, Tricia Schouten, did not have the Questioned Document in her possession, she nonetheless made reference to a prior division of property at paragraph 6(b) of the Separation Agreement, which reads as follows:

The husband and wife have allocated all remaining net family property, including the contents of the matrimonial home, between themselves, and the husband shall remove his share of the said remaining net family property from the matrimonial home by the earlier of the dates referred to in paragraph 6(a) herein.

[56] Furthermore, the parties chose to sign the Separation Agreement without obtaining independent legal advice.

[57] Lastly, while the Respondent argued that items such as the organ and certain tools were sold prior to the time of the Questioned Document’s creation, the assertion that they were non-existent is impossible to confirm given that the property was cluttered with a tremendous amount of junk resulting from years of hoarding. The Court was able to observe the state of the Property at the View held on April 25, 2019. The appraiser, David Watson of Rivington Appraisers prepared a report dated February 22, 2017. He made the following comments:

Curb appeal is considered below average to fair for the immediate area. The interior of the dwelling is strewn with an abundance of personal property, the removal of which could result in substantial expense…

Due to the extent of the stored personal effects, this author was unable to fully inspect the interior of the dwelling.

[58] The Estate was required to retain the services of an environmental company to declutter and remediate the house due to various problems, including mould.

[59] Further to the Respondents’ argument regarding inconsistencies, while Alex Hayward provided uncontradicted affidavit evidence for the purposes of casting doubt on the existence of some of the items listed in the Questioned Document, the Court places little weight in relation to credibility to his evidence about the Questioned Document.

[60] Finally, it should be noted in the circumstances that the list setting out the distribution of items in the Questioned Document was consistent with the parties’ reasonable expectations regarding who would get what at the time of the signing of the Separation Agreement.

Issue #2: Who is the owner of the following tractors and vehicles?

[61] Given the foregoing finding regarding the Questioned Document’s authenticity, the Court will now proceed with an analysis of the ownership of various items presently in dispute.

1. Montana Tractor

(i) Alex Hayward’s Evidence

[62] Alex Hayward testified that the Montana tractor (“Montana”) was purchased on December 31, 2018 from Smiths Equipment Sales (“Smiths”) in Jasper, Ontario. A bill of sale in the name of Alex Hayward was produced. The sale price was $13,560 with $1,000 being paid in cash and the balance to be paid on delivery.

[63] Alex Hayward was adamant that balance due on closing came by way of cheque to Smiths from the Deceased. Alex Hayward said that his wife had probably borrowed the money from Leslie but that the cheque to Smiths was from the Deceased. He was adamant that he never would have borrowed any money from Leslie.

[64] He said that the Montana was in his name and that he owned it.

(ii) Jeff Dowdall’s Evidence

[65] Jeff Dowdall was the salesperson at Smiths who sold the Montana in this transaction. He testified that the he only dealt with Alex Hayward and never with Leslie. He acknowledged that the bill of sale was in the name of Alex Hayward and that he understood that the Montana belonged to the person who name was on the bill of sale, notwithstanding whose who paid for the tractor.

(iii) Leslie’s Evidence

[66] Leslie’s evidence is that Alex Hayward bought the Montana from Smiths and that it was delivered to the Property. She testified that Alex Hayward had paid the deposit of $1,000, and that the balance due on closing was paid by cheque #610, which was introduced into evidence. The cheque had come from her and she has never been repaid. She is claiming that, because she has never been repaid the $12,560, that the Montana belonged to her.

(iv) Analysis

[67] The evidence is clear that the bill of sale from Smiths is in the name of Alex Hayward.

[68] It is also clear that more then 90% of the purchase price came from Leslie as set out in her cheque #610 payable to Smiths, as opposed of coming from Alex Hayward or the Deceased. The Court finds that Alex Hayward is incorrect that the balance of the funds came from the Deceased. There is no doubt in the Court’s mind that it came from Leslie and makes a finding to this effect.

[69] The Court rejects Shawn’s evidence that he sat at the kitchen table at the Property and did a double counting of the monies that he says was a payment loan from the Deceased to Alex Hayward. This cannot be correct in light of the fact that Leslie paid for the balance of the tractor with her own cheque #610.

[70] In addition, the Court rejects the version put forward by Alex Hayward that he repaid Leslie in cash for cheque #610. The Court finds that there is not evidence that he did so.

[71] The question now becomes whether Leslie is the owner of the tractor because she paid for most of it, or whether it is Alex Hayward who is the owner of the tractor with monies owing to Leslie. The Court notes that this is not and never was an Estate asset; rather, it is a monetary dispute between Alex Hayward and Leslie.

[72] The Court is aware that the issue as relates to the Montana was not specifically pleaded in this matter as a non estate asset and may be outside of the scope of these pleadings. Notwithstanding that, both parties requested that the issue be resolved by the Court, which the Court will do.

[73] If required, this Court grants an amendment to the pleadings nunc pro tunc in order to deal with this matter. The parties treated the issue as if it was pleaded. Both sides included this issue in their evidence and written submissions. No additional evidence would be required to deal with this issue.

[74] The evidence is clear that Leslie paid the sum of $12,560 and that money paid for over 90 percent of the Montana. Since that money has not been repaid by Alex Hayward to Leslie, the Court finds that the sum of $ 12, 560 is owing to Leslie by Alex Hayward.

2. 1950 Ferguson Tractor

(i) Alex Hayward’s Position

[75] Alex Hayward testified that this tractor (“Ferguson”) belonged to his father-in-law, Mr. Wing, the Deceased’s father. Alex Hayward’s evidence is that he bought the tractor from a Mr. Lecuyer and paid cash sometime during the 1970’s. He said that the tractor has formerly belonged to the Deceased’s father, Mr. Wing, and that, when Alex Hayward and his family had moved to New Zealand in January 1973, after Mr. Wing passed away, his mother-in-law, Mrs. Wing began selling her late husband’s assets even though they were part of the residue of Mr. Wing’s Estate and belonged to the Deceased.

[76] Alex Hayward said one of the reasons they moved back to Canada was in order to recover these assets. Alex Hayward said that the residue of the assets from Mr. Wing’s Estate belonged to the Deceased and not to her mother. Mr. Wing had passed away in 1968 and therefore was not alive in 1973 when the Hayward family moved to New Zealand. Alex Hayward testified that he had the tractor refurbished at some point at his expense. He said that he used it for over 30 years and was the only farm tractor used until he purchased the Montana in December 2018.

(ii) Leslie’s Position

[77] Leslie testified that she has lived with her parents and grandparents for a number of years, starting when she was ages 3 to 14. She testified that Mr. Wing, her grandfather, had told Leslie and others that Leslie owned the Ferguson and that it was always Leslie’s.

[78] According to her evidence, all of her family members refer to it as “Leslie’s Tractor”. Leslie argues that the Questioned Document sets out that the Ferguson came from the Deceased’s father and that it was given to Leslie.

(iii) Analysis

[79] According to the parties, when David Wing passed away, he left a life interest in his estate to his wife Catherine Wing with the residuary beneficiary being the Deceased.

[80] Alex Hayward believes that the tractor was his because he says he repurchased it from Mr. Lecuyer after Mrs. Wing had sold the tractor. Mrs. Wing only had a life interest in this and with other assets of Mr. Wing’s Estate.

[81] The Court accepts the evidence of Leslie that her grandfather, David Wing, gave her the tractor and that the tractor belonged to her even though she was a minor. The Court finds the gift of a piece of farm equipment can be made to a minor. While Mrs. Wing may have sold the tractor, it ended up back with the family. How much Alex Hayward paid for the tractor is not known but the Court understands it to be a minimal amount. The Ferguson tractor had always been referred to as Leslie’s tractor by virtue of the Deceased being the residuary beneficiary of the David Wing Estate. Furthermore, the Questioned Document lists the “Ferguson tractor from her father [Deceased’s] (“given to Leslie”).” The Court finds that the Ferguson tractor came from the Wing side of the family and was part of the Deceased’s estate, which was given to Leslie in the Questioned Document.

[82] The Court prefers the evidence of Leslie with respect to this issue and finds that the Ferguson tractor belongs to Leslie.

3. 1931 Essex

[83] The 1931 Essex is registered in the name of Jeanne Hayward. Apparently, the vehicle (with the serial number 125751 on the engine block) is no longer on the premises.

(i) Alex Hayward’s Position

[84] Alex Hayward and Shawn maintain that the vehicle is not in their possession. They argue that in a previous Endorsement, dated August 20, 2018, the Court stated that it would not deal with any missing assets.

(ii) Leslie’s Position

[85] Leslie argues that the vehicle has disappeared from the Property and no one claims to know where it is.

[86] Leslie believes that it is either in the possession of Shawn and/or David. In support of this assertion she produced a Facebook post by Shawn showing Alex Hayward working on the automobile with the licence plate number 295 HVS. This license plate appears in the Ontario Ministry of Transport Registration for the 1931 Essex.

(iii) Analysis

[87] The evidence is clear that this vehicle is missing. As set out in the August 20, 2018 Endorsement, the Court will not deal with missing items. Notwithstanding that Endorsement, in order to resolve all matters, the Court will deal with the issue below.

[88] The Court notes that the 1931 Essex is specifically mentioned in the Questioned Document: “All antique cars (original 1931 Essex (Leslie)….currently in his (Alex) name with exception of those that came from the Wing side.”

[89] The Court finds that if the 1931 Essex is located at a later date, pursuant to the Questioned Document it properly belongs to Leslie.

4. 1930 Model A Ford (Blue)

(i) Leslie’s Position

[90] This vehicle is now registered in David’s name, having been transferred to him after the passing of the Deceased by Alex Hayward, whose name it was under and was listed in the Questioned Document as being excepted from those vehicles earmarked for Alex, but intended to be transferred to David. The Applicant argues that if the Questioned Document is authentic that vehicle should go to David. If the Questioned Document is not authentic then it should form part of the Deceased’s Estate and David should be compelled to transfer the registration.

[91] According to Leslie this vehicle was stored in a locked white truck box on the Property. The lock was cut off and the vehicle removed after Jeanne Hayward passed away by persons unknown. Alex Hayward secured replacement ownership on May 23, 2017 from the Ministry of Transport naming David as the owner of the vehicle. According to Leslie’s evidence the vehicle was owned originally by her maternal great-grandfather, John Wing who passed it on to her grandfather, David Wing who passed away in July 15, 1968 leaving everything to the Deceased. Leslie testified that there were Facebook postings by David and Shawn clearly identifying the vehicle as their grandfather’s vehicle and that vehicle was described in the Questioned Document.

(ii) Alex Hayward’s Evidence

[92] According to Alex Hayward, at the time of the Deceased’s death, he was the registered owner of the 1930 Model A bearing VIN no. CA28288. On May 23, 2017, he transferred ownership of the vehicle to David. Alex Hayward said that he purchased the vehicle on or about January 23, 1962 from David Wing and paid for it by cheque. Alex Hayward produced a copy of the bill of sale when the Deceased’s grandfather John Henderson Wing bought it from a third party on April 16, 1930 in Saint-Jean, Quebec and when the grandfather passed away, his son David Wing inherited this vehicle. Alex Hayward testified that he kept it in Stoneham, Quebec until 1978 when he moved to the Property. He said that it was always his intention to give it to David Hayward.

(iii) David Hayward’s Evidence

[93] David’s evidence was that he was named after his grandfather David Wing. He also understood that the vehicle would belong to him someday. He acknowledged that the ownership was transferred from his father to himself.

(iv) Analysis

[94] This vehicle is presently held in storage. The vehicle was registered in the name of Alex Hayward and that registration was changed to David subsequent to the passing of the Deceased.

[95] The Questioned Document makes reference to the 1930 Model “A” and that it should go to David. It also says that the vehicle was purchased by Jeanne’s grandfather who would be John Henderson Wing.

[96] The best evidence is that the vehicle was in Alex Hayward’s name at the time of the Deceased’s passing. Therefore, the Court finds that this vehicle should belong to David.

[97] The Questioned Document is consistent with the wishes of Alex Hayward and the Deceased’s in relation to this vehicle.

[98] Leslie acknowledges that if the Questioned Document is authentic then the vehicle should go to David. The Court has found that the Questioned Document is authentic.

[99] Therefore, the 1930 Model “A” properly belongs to David Hayward.

[100] Although it was agreed between Alex Hayward and the Deceased that the vehicle ownership would be transferred as soon as possible after signing of the Questioned Document, the Court accepts that it was not done in a timely fashion and that the late registration of the vehicle does not change the fact that it belongs to David.

5. 1921 TT Produce Truck (Red)

(i) Alex Hayward’s Evidence

[101] Alex Hayward’s evidence is that he and Shawn went to an Estate auction on May 30, 2009 in Edwards, Ontario and bought the vehicle from Stuart James of James and Hill Auction Services Ltd. for $12,000. He also purchased other items and received a bill of sale.

[102] According to Alex Hayward, the vehicle was registered as a 1924 and not a 1921 Ford Model “T” Garden Truck.

[103] Shawn provided evidence that he had done some research and found it to be a 1921 as opposed to a 1924 truck.

(ii) Auctioneer’s Evidence

[104] The auctioneer Stuart James testified that he sold the vehicle to Alex Hayward and that it was paid for at an auction. He understood it to be a 1924 Garden Truck.

(iii) Leslie’s Evidence

[105] Her only evidence is that the truck was on the Property since it was purchased in 2009.

[106] There is not registration available for this vehicle.

(iv) Analysis

[107] This vehicle is currently in storage. There is no registration for the vehicle. To Leslie’s knowledge it has been located on the Property since it was purchased in 2009. The evidence of Alex Hayward is persuasive that he bought the vehicle and paid for it. He has a bill of sale for the 1924 vehicle. The Court finds that notwithstanding the vehicle is a 1921 model, while the invoice says that it is a 1924 model, this is the vehicle in question. Based on the evidence, the Court finds that the vehicle is owned by Alex Hayward.

6. 1916/17 Touring Black Convertible - Purchased 2015/2016

[108] The issue with respect to ownership of this vehicle was resolved during trial on consent. It was to be released to the Respondents.

7. 1933 Pontiac (Blue)

(i) Leslie’s Evidence

[109] The vehicle was located at the Property at the time of the Deceased’s passing and is presently in storage. The vehicle was to be registered in Jeanne Hayward’s name as per the Questioned Document. There is no history of this vehicle at the Ministry of Transport of Ontario.

(ii) Alex Hayward’s Position

[110] Alex Hayward gave evidence about how he obtained this vehicle from a former Nepean police officer in the 1960’s. He recalls that when he purchased it, it had a Quebec registration. His evidence is that he did not register the vehicle in Ontario because he did not intend to keep it. Alex Hayward recounts how he sold the vehicle in April 2003 to a Mr. Charette who never paid the full price.

(iii) Analysis

[111] The Court notes that this vehicle is mentioned in the Questioned Document. A review of the Questioned Document shows that this vehicle was to go to Shawn. It did not say that it was to go to Jeanne Hayward. The Court is satisfied on the balance of probabilities, the vehicle belongs to Shawn based on the Questioned Document.

[112] The Court finds that the document from Mr. Charette in 2003 had little weight in this matter. He was supposed to purchase it 15 years prior and did not complete the transaction.

8. 1927 Whippet (Olive Green)

[113] The vehicle was located on the Property at the time of the Deceased’s passing. The vehicle is now located in storage.

[114] There is no registration history for the vehicle at the Ministry of Transport of Ontario.

(i) Leslie’s Position

[115] It is Leslie’s belief that these vehicles were all owned by her mother at her death, are part of the Estate, should be sold at public auction, and the net auction proceeds should be payable to the Estate.

(ii) Alex Hayward’s Position

[116] Alex Hayward’s evidence is that he stored this vehicle for the owner Eric Curnow and did some restoration work in 1984. He said that Mr. Curnow sold him the vehicle together with another vehicle for $1,100. He produced an undated Ministry of Transport of Ontario registration signed by John Curnow. The effective date on the registration is 14/03/20. The Court finds this date to be March 20, 2014.

(iii) Analysis

[117] The registration does not contain the name of the new owner. Based on Alex Hayward’s evidence, the Court finds on the balance of probabilities that this vehicle belongs to him.

Issue #3: Who is the owner of 13 items of furniture as between the Estate and Alex Hayward?

(i) Leslie’s Evidence

Leslie’s evidence is that she assumed that all of the items in dispute were owned by the Estate because they were on the Property at the time of the Deceased’s passing and they are referred to in the Questioned Document and therefore they belong to the Estate.

[118] Leslie acknowledged that Alex Hayward had some of his belongings at the Property and others at Shawn’s home.

[119] No receipts were put in as evidence as to who paid for the items or how much.

[120] Leslie argues that because the Deceased had provided a death bed wishes list that those items mentioned in the list belonged to her mother otherwise, they would not have included them on the list if she did not own them.

[121] Leslie argues that:

a. Items 1-5) came from the Wing side of the family and were included in the Death Bed Wishes List;

b. Items 6-7) came from her aunt Grace Turner who was her paternal great aunt and who was Alex Hayward’s aunt. She did not know where item 8 came from;

c. Item 9) Leslie was told that it was from the Wing side of the family and came from her aunt Rhoda MacFarlene, her mother’s aunt;

d. Item 10) Leslie said it belonged to her mother;

e. Item 11) Leslie always thought this was her mother’s but she was never told so by her mother;

f. Item 12) Leslie acknowledged that she had no idea who it belonged to; and

g. Item 13) Leslie’s evidence is that she wasn’t sure who it belonged to.

(ii) Alex Hayward’s Evidence

[122] With respect to items 1-5 Alex Hayward gave evidence that Mr. David Wing passed away in 1968. Alex Hayward and his family moved to New Zealand in around January 1973 and returned in October or November 1973 in part because Catherine Wing was selling off the assets for late husband for which she only had a life interest, and which were to devolve to the Deceased as the beneficiary.

[123] After the family’s return from New Zealand in 1973, Alex Hayward testified that he went around buying up the items sold by Catherine Wing. He claimed that he said that he used his own money to pay for these assets and paid cash for them and did not receive any cash receipts. The intention was to preserve the Wing Estate.

[124] In relation to items 6-7, his aunt Grace Turner originally owned items 6 and 7. She passed away in 1979 and appointed to Alex Hayward as Estate Trustee. According to him in the 1960’s these items were gifted by her to him. In relation to item 8, no evidence was provided as to who this belonged to.

[125] In relation to item 9, the pedestal table, he claims he received it as a gift from Rhoda MacFarlene Ms. Wing’s aunt and it was a gift directly from her to him.

[126] In relation to item 10, the butter churn, his evidence is that he purchased it at an auction in 1957 at L'Acadie Quebec and his wife used it as a fern stand.

[127] In relation to items 11 and 12 being the loveseat and the master bedroom set he testified that he purchased them at an auction in the 1970’s and paid for them in cash.

[128] In relation to item 13, the railroad clock he said he received it as a gift from an older gentleman in the 1950’s.

(iii) Shawn’s Evidence

[129] Shawn’s evidence is that he had personal knowledge of items 11 and 12 being the loveseat and the master bedroom set. He indicated that he personally helped load these items in a vehicle when he came back from an auction.

[130] According to Shawn, he distinctly remembers being at the auction where the loveseat was for sale and then bringing it home.

[131] Under cross examination Shawn said he believed he was at the auction when the loveseat was purchased (emphasis added). In addition, he did not recall whether he was at the auction when the master bedroom set was purchased.

[132] He also testified that items 1, 2, 4 and 5 were purchased by his father for the Wing Estate.

[133] With respect to item 3, the deacon’s bench, Shawn testified that was not sure where it came from.

[134] Shawn acknowledged that most of his knowledge in relation to these items is derived from his conversations with the family.

(iv) Analysis Items 1-13

[135] The Court has read the Affidavits in relation to this issue and has heard the evidence. Leslie, as Estate Trustee, made the assumption that the Estate owned these items because:

• they were on the Property at the time of her mother’s passing;
• the Questioned Document dealt with them; and
• that her mother’s Death Bed Wishes List included these items to be given to various people.

[136] Lori provided affidavit evidence and testified on this issue of the ownership of items. The Court finds that her evidence carries very little weight because paragraph 3 of her August 24, 2018 Affidavit says, “is my understanding that my father is the rightful owner.” The Court finds that this means she has no direct knowledge of the ownership of these items.

[137] The Court gives very little weight to the evidence of Shawn with respect to some of the items because in paragraph 4 of his Affidavit he says, “I read the Affidavit of Lori Hayward…and I agree with all of the contents.” The Court finds that Shawn has no direct knowledge of the ownership of these items, except in relation to items 1, 2, 4, 5, 11 and 12.

[138] The Court finds that the evidence of David with respect to these items carry’s very little weight because in paragraph 4 of his Affidavit, he says, “I read the Affidavit of Lori sworn on August 24, 2018 and I agree to all of the contents there of.” The Court finds that David has no direct knowledge of the ownership of these items.

Items 1-5

1. Summer Painting

2. Winter Painting

3. Deacon’s Bench

4. Gingerbread Clock

5. Kitchen Table

[139] The evidence of Alex Hayward is that Mr. Wing had passed away in 1968 and that they left for New Zealand in 1973. Alex Hayward argues that because Mr. Wing’s Estate was being sold while they were gone by his wife Catherine Wing, the family moved back to Canada to recoup the assets being sold by Catherine Wing because the Deceased residual beneficiary of the David Wing Estate. The Court finds that Alex Hayward’s intention was to purchase the assets to preserve the residue Estate of David Wing for the Deceased. Therefore, while Alex Hayward may have paid for these items, he did so with the intent that the Deceased would have the items returned to her.

[140] Furthermore, the Questioned Document prepared in May 2002 specifically states the Deceased was to get “all and any items from her side of the family (chisel, tools, farm equipment, sleigh, large paintings, organ, antiques and antique furniture etc.).” The Court finds that, whether Alex Hayward repurchased the items with his own money or not, by 2002 it was mutually decided by Alex Hayward and the Deceased that these items would belong to the Deceased.

[141] Alex Hayward made contact the curator of Canadian art at the National Museum of Canada enquiring as to the identity of the painter of the “summer” and “winter” paintings. The Court finds that this contact is not determinative of ownership. Rather it indicates an interest to identify the artist of the paintings in an attempt to determine their provenance and possible values. The Court does not find that this research done by Alex Hayward has anything to do with ownership.

[142] On the aforesaid basis, the Court finds that these items belong to the Estate.

Items 6-8

6. Dining Room Set

7. Tall Wardrobe

8. Large Golden Dresser

[143] Items 6-8 are the dining room set, the tall wardrobe in the basement and the large golden dresser in the basement. The evidence is that these came from Alex Hayward’s aunt, Grace Turner. Leslie’s evidence in relation to these items is that these items belonged to her mother based on them being on the Property and being in the Questioned Document.

[144] The Court notes that the two items that came from Grace Turner are the dining room set and the tall wardrobe in the basement but not the golden dresser.

[145] The Court finds that Alex Hayward’s evidence is uncontradicted as to which side of the family the dining room set, and the tall wardrobe came from, i.e., that they came from his side of the family. Based on the wording of the Questioned Document, “all his assets from his descendants of Hayward family as given” the Court finds that items 6 and 7 belong to him.

[146] As to the large golden dresser items in the basement, no evidence was tendered that this item received from Alex Hayward’s aunt. Therefore, the Court finds that it belongs to the Estate of Jeanne Hayward.

Pedestal Table

[147] Alex Hayward’s evidence is that this item belonged to Rhonda MacFarlene who was an aunt on the Wing’s side of the family, and that she gave it to him in approximately 1957.

[148] Leslie’s evidence is that belonged to her mother because it was from the Wing’s side of the family, and that her mother told her it was hers.

[149] The evidence on this point is conflicting. The only thing that the parties agree on is that it came from the Wing’s side of the family.

[150] The Court finds that this item is in the same category as items 1-5 because it was part of the Wing family. Therefore, the Court finds that the pedestal table belongs to the Estate.

Butter Churn

[151] Alex Hayward’s evidence is that he bought this butter churn in L’Acadie Quebec in 1957 and paid cash for it in the sum of $1.50.

[152] Leslie’s evidence is that her mother told her it was hers.

[153] On the balance of probabilities, the Courts finds that the butter churn belongs to Alex Hayward.

Loveseat and Master Bedroom Set

[154] Alex Hayward’s evidence is that he bought these items in the 1970’s at an auction and he paid cash for them. He testified that the bedroom set was in his bedroom and he has been using it.

[155] Leslie’s evidence is that she did not know who owned this bedroom set and that her mother never specifically told her that these items were hers.

[156] Therefore, since Alex Hayward was using the bedroom set and since the best evidence is that he bought both the bedroom set and the loveseat at the same auction, the Court finds on the balance of probabilities that these items belong to Alex Hayward.

Railway Clock

[157] Alex Hayward’s evidence is the railway clock was given to him by an elderly gentleman in the 1950’s. Leslie testified that she did not know who owned the clock.

[158] Therefore, the Court finds on the balance of probabilities that the railway clock belongs to Alex Hayward.

Issue #4: Does Alex Hayward have a claim to be reimbursed by the Estate for the new roof installed on the Property in 2010?

[159] A new roof was installed at the Property by Geertz Roofing Inc (“Geertz”). An invoice dated March 19, 2010 was provided by Geertz to Alex Hayward for $16,126.51 inclusive of HST. This was paid.

[160] There is no issue as to whether the new roof was actually installed.

(i) Alex Hayward’s Position

[161] Alex Hayward argues that he paid cash for the roof directly to Bill Geertz. He also says that he contributed to the Property and its upkeep over a number of years.

[162] He testified that cost of the roof repairs of $16,126.51 was a loan by him to the Deceased. He says there was no formal loan documentation and no money was ever repaid. He characterized it as a loan “between friends”. He acknowledged that he never made any demand for repayment of this amount.

[163] Alex Hayward said that he expected to be repaid when the Deceased sold a piece of property in Montreal.

[164] No documentation was produced to show that the new roof was to be paid out of sale proceeds for the Montreal property.

[165] In an affidavit, Alex Hayward claimed that he had never held a bank account since Brian Mulroney’s term as Prime Minister, as he lost all trust in banks. Subsequently, Alex Hayward changed his testimony to say he had in fact opened a bank account and safety deposit box with the Royal Bank of Canada in 2016.

[166] Later on, in his testimony, he claimed to have opened a bank account with the Royal Bank of Canada in 2014.

[167] The Court notes that Alex Hayward’s testimony in relation to him having a bank account has three different versions. The Court cannot be sure which one is correct. The only thing that is certain is that he did have a bank account after 2013. This contradicts his first assertion that he did not have a bank account after 1993.

[168] Alex Hayward says that he got the money for the roof from his bank account.

(ii) Bill Geertz’s Evidence

[169] Bill Geertz, the owner of Geertz Roofing testified that on March 19, 2010 Alex Hayward paid him $16,126.51 cash for the supply of materials and installation of a roof at the Property.

[170] On cross-examination, Mr. Geertz said that he had no idea where the cash came from, just that it was Alex Hayward’s money. He said that he only dealt with Alex Hayward and never with the Deceased.

(iii) Lori’s Evidence

[171] Lori, one of the daughters of the Deceased, has lived in Belleville for almost 18 years.

[172] Her evidence concerning the roof was based on her Affidavit that she verily believed that an amount was owing to Alex Hayward.

[173] Her information is that she was told by both her mother and her father that the money was owing to Alex Hayward.

(iv) Shawn’s Evidence

[174] Shawn testifies that Alex Hayward paid for the roof. Shawn says that he was present when his father counted out the money at the Property before his father’s meeting with Bill Geertz. Shawn acknowledges that he and Bill Geertz are good friends.

[175] In an email dated July 19, 2011 (“the July 19, 2011 Email”) from the Deceased to Leslie, in which the Deceased asked Leslie if she needed help paying for her new roof because the Deceased, had finished paying off the roof invoice on her own home.

[176] On cross-examination, when asked about this email, Shawn testified that Leslie had the ability to manipulate the Deceased’s computer and the email in question, in part because she had her mother’s password. Shawn insinuated that Leslie had gone into her mother’s computer and had made up the July 19, 2011 Email.

(v) David’s Evidence

[177] David, one of the sons of the Deceased has lived in Texas for many years. He agrees with Shawn’s Affidavit that Alex Hayward paid for the roof. He said that the monies would have come from lands sold by Alex Hayward. He also testified that he did not believe that the July 19, 2011 Email was true and authentic. He testified that his mother did not trust Leslie with money.

(vi) Leslie’s Evidence

[178] Leslie testified that her father never made a claim for payment of the purported roof loan until the commencement of eviction proceedings in July 2017. She says that there is no loan documentation for the debt, and that there was no demand for repayment until this litigation began. She argues that, even if Alex did pay for the roof, it was not a loan but rather a gift. She provided evidence by way of his 2010 income tax return which showed Alex Hayward’s income was $16,049. She argues that, based on his income, he did not have sufficient funds to pay for the roof.

[179] Leslie was the person who located the July 19, 2011 Email. She denies that she altered the July 19, 2011 Email, contrary to what was suggested by both David and Shawn.

(vii) Analysis

[180] There is no issue that the new roof was installed in 2010 by Geertz Roofing. The Court finds that the document dated March 19, 2010 is in fact an invoice and not a proposal, although the word “Proposal” appears on the document.

[181] The questions are therefore:

• who paid for the installation of the roof?
• was it a loan?
• if the roof was financed pursuant to a loan, is the loan statute-barred?
• if the claim is statute barred, can Alex Hayward claim unjust enrichment over the Property for the value of the roof replacement?

1. Who paid for the installation of the roof?

[182] All of the Respondents testified that Alex Hayward paid for the roof.

[183] The Court notes that the wording of the affidavits of Lori, David, and Shawn are evidence based on information obtained from Alex Hayward, their father. Their affidavits are made as “verily believe” affidavits, meaning they are qualified affidavits. Neither Lori nor David have any direct evidence as to whose money paid for the roof.

[184] The Court is aware that Shawn testified that he saw the money being counted for the roof at the Property, but this is not evidence as to the ownership of the cash.

[185] Considering the foregoing, the Court finds that the qualified affidavits and the testimony of Lori, David, and Shawn as they relate to this issue carry little weight.

[186] In his Affidavit, David says that his mother did not trust Leslie with money. The Court rejects this argument because the evidence is that Leslie was made power of attorney for both her mother and father. Leslie was also made the mother’s estate trustee. There was no evidence that either the will or the two powers of attorney were revoked prior to Jeanne Hayward’s passing.

[187] The Court finds that Leslie would not have been appointed power of attorney and estate trustee by her mother if she did not trust Leslie with money.

[188] Alex Hayward was unequivocal about the fact that he paid for the roof and he paid for it in cash.

[189] Bill Geertz said that he received cash for the roof installation from Alex Hayward.

[190] The only evidence of where the money came was from Alex Hayward who claimed he had sold some property and therefore he had cash.

[191] Mr. Geertz said that he did not check his records in relation to how this account was paid. However, under cross-examination he acknowledged that there may have been a discrepancy and admitted that he should have reviewed his records to see how the account was paid.

[192] Mr. Geertz admitted that there was a discrepancy between cash payments by Alex Hayward and payments made by the Deceased. This leads the Court to believe that both of them made payments on the roof and neither knew the other one had paid for it.

[193] There is also the inconsistency between Alex Hayward’s evidence and the July 19, 2011 Email.

[194] In the email, the Deceased asked Leslie if she could afford to pay for the roof or whether she needed a loan. In the email, the Deceased said, “I had to make payments on [mine] but it is finally done”. Leslie wrote on July 18, 2011 that “had Billy come over, just over $4,200”.

[195] The inconsistency is that Alex Hayward claims to have paid for the roof while the Deceased’s email states that she made payments on the roof and approximately one year later that she is finally completed payment for the roof. It is illogical to this Court that the Deceased would have said that she had just finished paying for the roof if she in fact did not pay for it. No issue was raised as to the Deceased’s competency when this email was written. As stated previously, a reasonable explanation could be that both Alex Hayward and the Deceased paid for the roof, and that neither knew the other had paid for it.

[196] In any event, the Court finds that Alex Hayward has not proven on the balance of probabilities that his money paid for the roof. The Court is aware that Shawn saw Alex Hayward counting out the money to pay Bill Geertz, but there is no evidence as to whether this money belonged to him.

[197] The Court is not obligated to place greater weight on oral evidence than written evidence. In addition, the Court is not obligated to place greater evidence on corroborating evidence if it does not accept such evidence, which it does not accept in relation to the roof.

[198] The Court is aware that there are affidavits from Alex Hayward, Shawn, David, Lori that Alex Hayward paid for the roof. Notwithstanding this, the Court places more weight on the July 19, 2017 Email than on the evidence of the Respondents.

[199] Given the contradictory Email, Shawn’s evidence alone is insufficient for Alex Hayward to discharge the burden of proving his claim. Therefore, the Court finds that this was not a loan made by Alex Hayward to the Deceased.

2. Was Payment by Alex Hayward a loan?

[200] If the Court is incorrect, and Alex Hayward did pay for the roof installation as a loan, the Court notes that section 4 of the Limitations Act, 2002, S.O. 2002, C-24, Sched. B provides that, unless the Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[201] The evidence is clear that the roof was installed and paid for in 2010. There is no loan agreement and no payments were ever made by the Deceased to Alex Hayward. In any case, the claim for repayment of this loan would be outside the limitation period. The Court therefore finds that, if there was a loan, that it would be statute-barred.

[202] As to the argument made by Alex Hayward regarding discoverability, he submits that the limitation period would have only started running as of the Deceased’s passing. This would have a) constituted the end of their hypothetical contractual relationship, b) would have been when the claim would have crystalized; and c) when the injury of damage would have occurred.

[203] The Court rejects this argument as being unreasonable in the circumstances. Based on the July 2010 Email, the Deceased understood that she had in fact finished paying for the roof.

[204] The Court finds that there has been no persuasive evidence produced to satisfy itself that the monies were a loan to the Deceased by Alex Hayward.

[205] The Court finds that the reasonable expectation of the parties would be that if the monies were a loan, they would have been paid back much earlier if, in fact, that was the arrangement.

[206] Had the Deceased lived an additional ten years, would it have been expected that, the 10 years would have extended the time for discoverability? The Court says no, it does not.

[207] In light of the foregoing, the Court finds that the roof loan would be statute-barred because:

• Alex Hayward knew it was a loan in 2010 when he lent the money;
• he received no payment on the loan; and
• he did not commence an action within the prescribed period under s. 4 under the Limitations Act.

[208] Therefore, the Court finds that, in the event that the monies used to finance the roof were given pursuant to a loan agreement, the claim for repayment is out of time.

[209] The Court finds that if Alex Hayward did use his money to pay for the roof, it was a gift.

3. Can Alex Hayward claim an unjust enrichment for the value of the roof?

(i) Alex Hayward’s Position

[210] Alex Hayward argues that the Estate has been unjustly enriched by him for the roof replacement.

[211] Alex Hayward described the relationship between the Deceased and himself as friendly, and that they were close. He did not testify that, after the divorce, they lived as husband and wife even though they lived in the same residence. He cites as vignettes of their relationship that they would go to McDonalds together on a regular basis, that Alex Hayward renovated the house after the divorce, and their having taken trips together.

[212] Notwithstanding the suggestion that the parties were on good term in one of the Affidavits, Alex Hayward provided an invoice dated September 5, 2002 that charged the Deceased $320,000 plus interest for the cost of raising five children for 16 years “that were other than mine.” Alex Hayward denied that he produced this invoice. The Court rejects this argument, noting that his signature appears on the invoice. The Court finds that the invoice is instructive of the relationship between the couple which was not particularly amicable.

[213] Furthermore, Ms. Schouten wrote to the Canada Revenue Agency on April 19, 2010 advising that the parties were living under the same roof solely for financial reasons and were not in a romantic relationship.

[214] Lastly, the Court notes that Alex Hayward was not a beneficiary under the Deceased’s Will made in 2015.

[215] The Respondents rely on of Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, para. 31. The Respondents argue that the heart of a claim for unjust enrichment lies in the notion of returning a benefit which justice does not permit one to retain. For recovery to be granted, something must have been given by one party and received and retained by another without a juristic reason.

[216] The test for establishing unjust and enrichment is set out in para. 32 of Kerr, which states that recovery is permitted when a plaintiff can establish three elements:

a) an enrichment or benefit to the defendant;

b) a corresponding deprivation of the plaintiff; and

c) an absence of juristic for the enrichment.

[217] The Court notes at para. 34 that the principles surrounding unjust enrichment must be applied in the particular factual and social context out of which the claim arises.

[218] The Respondents argue that, based on the evidence, the Deceased received an enrichment and Alex Hayward suffered a corresponding deprivation. As for the absence of a juristic reason, they argue that this means that there is no reason in law or justice for the Deceased’s retention of the benefit conferred by the plaintiff, making its retention unjust to the circumstances of the case.

(ii) Leslie’s Position

[219] Leslie denied that Alex Hayward was unjustly enriched. She said that her mother paid for the expenses related to the house.

(iii) Analysis

[220] The Court agrees that the test for unjust enrichment is as set out in Kerr v. Baranow.

[221] There is a three-pronged test for determining whether a finding of unjust enrichment can be made. For the doctrine to apply, there must be an enrichment, a corresponding deprivation, and the absence of any juristic reason for this to have occurred: Becker v. Pettkus (1980), 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834.

[222] In a domestic context, as opposed to a commercial context, the standard for evaluating enrichment is fairness and equality of the parties: Atlas Cabinets & Furniture Ltd. v. National Trust Co. (1990), 1990 CanLII 1312 (BC CA), 38 C.L.R. 106 (B.C. C.A.), at para. 32.

[223] In the present case, the benefit or enrichment obtained is clear: the Deceased obtained a roof without having to pay for it. The corresponding depravation to Alex Hayward was the monies used to finance the purchase of the roof.

[224] As for the absence of a juristic reason, however, the Court has previously found that the monies used to pay for the roof constituted a gift. A gift falls into what jurisprudence refers to as an “established category” of juristic reasons: Moore v. Sweet, 2018 SCC 52, [2018] 3 S.C.R. 303, at para. 57. Where this is the case, the analysis ends.

[225] The Court therefore finds that the claim for unjust enrichment fails because there was a clear juristic reason for the Deceased’s enrichment at the hands of Alex Hayward.

[226] Therefore, Alex Hayward’s claim with respect to the roof fails, and he is not entitled to repayment for that amount.

Issue #5: Does Alex Hayward have a valid claim against the Estate for the 2015 Chev Malibu (“Malibu”)?

[227] The Malibu was purchased on or about November 19, 2014 from a local automobile dealer. The issue is whether the monies provided for the purchase of the vehicle were given by Alex Hayward and if so, were they a loan or a gift.

(i) Alex Hayward’s Position

[228] Alex Hayward said that he provided the cash to fund the purchase of the Malibu even though the vehicle was registered in the Deceased’s name. He described the transaction as an informal loan between two friends, with no loan agreement.

(ii) Leslie’s Position

[229] The Estate argues that the monies provided to finance the purchase of the Malibu were a gift not a loan.

[230] It also asserts that the story presented by Alex Hayward about his loving relationship with the Deceased is a complete fabrication. Leslie and Kelly state that the relationship was anything but loving and was more of a relationship of tolerance.

[231] While the Estate argued that the evidence is that Alex Hayward turned over the cash, there is no evidence that the monies belonged to him.

(iii) Analysis

[232] The Court appreciates that the Deceased and Alex Hayward lived in the same house after they divorced. It also recognizes that Alex Hayward did not leave the Property in accordance with their arrangement, which would have had him leaving by 2007.

[233] The Court is also aware that the reason the parties saw each other seven days a week is because they lived in the same residence.

[234] There is no evidence that they lived together as husband and wife.

[235] The Court notes that, after the Deceased’s passing, Alex Hayward refused to leave the Property. It was not until an Order of the Honourable Justice McKinnon requiring him to vacate to the Property that he actually left. Until then, he was entrenched in the Property.

[236] The Court finds from the evidence that the Deceased did not force Alex Hayward to leave that Property because she did not have the desire to fight with him due to her advanced age. The parties appeared to tolerate each other.

[237] The Court has observed the demeanor of Alex Hayward while he gave his evidence. It notes that he had a very selective memory and, at times, was very combative. The Court makes a finding to this effect.

[238] According to the evidence, the family relationship between all five siblings and Alex Hayward appeared cordial and friendly until matters came to a head in April 2017. After that, there were several skirmishes between the parties, mostly verbal. At one point, however, Alex Hayward called police to remove Leslie from the Property.

[239] It appears that threats were made by both sides against the other. After that, the relationship between the parties crumbled.

[240] The McKinnon J. Order to vacate the Property demonstrates the intransigence of Alex Hayward throughout this process. Previously, the locks on the Property were changed by Shawn, preventing Leslie from entering the Property to carry out her fiduciary duties as Estate Trustee.

[241] Alex Hayward’s witnesses described his relationship with the Deceased as an involved one. They did everything together, including shopping, travelling and eating out.

[242] Alex Hayward testified that the Deceased no longer enjoyed driving the Ford Focus that was in her name. He said that he wanted to make her happy and agreed to buy the Malibu with the understanding she would ultimately repay him for it when she sold one of her properties.

[243] The question before the Court, then, is whether it is true that he was trying to make her happy by buying the car—which would suggest that this was a gift—or if the monies used to purchase the vehicle were a loan to her.

[244] The Court finds that Alex Hayward did have money to purchase the Malibu because he had sold several properties in Stoneham, Quebec around that time. Indeed, his evidence is that he gifted $20,000 to each of his children around the same time as the Malibu was purchased.

[245] The evidence from Tom Haskins, the employee of the Mike Fair vehicle dealership where the car was purchased, was that, when Alex Hayward and the Deceased attended at the dealership, he paid for the vehicle in cash. The vehicle was registered in the Deceased’s name.

[246] Leslie was also aware that her mother did not have the liquidity to pay for the Malibu and admitted as much during cross-examination.

[247] Each of Shawn, David, and Lori agree that the monies used to purchase the Malibu were a loan. The Respondents say that this testimony is credible because it is against the siblings’ own interests are beneficiaries of the Estate. They will lose out if the Court decides that the monies are found to be a loan. As a loan, the monies would have to be repaid, thereby reducing the total assets in the Estate available for distribution amongst the beneficiaries.

[248] The Court hears the Respondents’ argument in this regard to the extent that, if the monies were a loan, it would mean that they would have to be repaid back to Alex Hayward out of the Estate, thereby reducing the amount payable to the beneficiaries.

[249] On the other hand, if it was true that the Malibu was purchased as a gift, when sold there would be more funds available to be distributed to all of the beneficiaries including Shawn, David, and Lori.

[250] While the Court understands the Respondents’ argument on this point, the opposite argument is just as compelling.

[251] There was also contradicting evidence provided by Lori on this issue. She states that Leslie and her mother talked about repayment of the loan when her mother was in hospital. Leslie denies this.

[252] The Ford Focus was in the Deceased’s name, and, when the new vehicle was purchased, it too was placed in the Deceased’s name and was hers to drive.

[253] Given the finding that Alex Hayward had the money to give to the Deceased to buy the Malibu because he had sold some properties in the Stoneham, Quebec, the Court finds on the balance of probabilities that Alex Hayward did have the cash and did pay for the vehicle.

[254] Alex says that the monies used were a loan between friends, and that there was no paperwork for the repayment of this loan.

[255] The word “gift” is defined in the Merriam-Webster dictionary as “something voluntarily transferred by one person to another without compensation.” The word “loan”, on the other hand, is defined as “money lent at interest, something usually lent for the borrower’s temporary use.”

[256] As the person asserting the claim, it was for Alex Hayward to prove that the formalities required for establishing a loan contract exist. Like all contracts, this includes the rudimentary elements of offer, acceptance, and consideration.

[257] No evidence had been put before the Court suggesting that the Deceased accepted an offer to contract for the loan of monies to purchase the Malibu. There was only evidence that was self-serving on Alex Hayward’s part purportedly demonstrating that consideration had been given in exchange for the loan.

[258] The Court finds, therefore, that, on the balance of probabilities, this was not a loan; rather, it was a gift of monies to purchase the vehicle for the Deceased and put it in her name.

[259] This finding is consistent with each of the gifts that he had given his children.

[260] Accordingly, the claim by Alex Hayward to the repayment for the vehicle fails.

Issue #6: Who is the Owner of Amish Shed #5?

(i) Alex Hayward’s Evidence

[261] Alex Hayward’s evidence is that in 2014 he purchased two Amish Sheds from Jonas Miller, an Amish farmer in Ogdensburg, New York. He paid cash for each of these sheds, and the sheds were transported from Ogdensburg, New York and installed on the Property.

[262] In 2015, Alex Hayward testified that he purchased three more Amish Sheds from Mr. Miller. Again, he paid cash for the sheds. Those sheds were transported from Ogdensburg, New York and were installed on the Property.

[263] At trial, Alex Hayward was able to produce bills of sale for only four sheds, not five.

[264] Alex Hayward also produced four import invoices from Canada Border Services Shipping which indicated when each of the 5 sheds crossed the border from the State of New York into Ontario. One of the import invoices covered 2 sheds. Alex Hayward testified that the five sheds belonged to him and he paid for them all in cash. He acknowledged that he allowed Leslie to use one of the sheds but that it did not belong to her. He testified that David used one of the sheds but that shed also belonged to Alex Hayward.

[265] Alex Hayward testified that he did not sell Amish Shed #5 to Leslie.

(ii) Leslie’s Evidence

[266] Leslie testified that Amish Shed #5 belonged to her. She said that while her father had picked it up and transported it, that she had paid the wife of Jonas Miller for part of shed between $1,000-1,500 US in cash and she reimbursed her father for part of Amish Shed #5. Her evidence was the modus operandi in her family was to pay for things in cash whether for themselves or other members of the family and to obtain reimbursement at a later date.

[267] Leslie testified that at one point she had the bill of sale for Amish Shed #5 but she could no longer locate the bill of sale.

[268] Several people including Rhonda Barnes, Natalie Lalonde, Derek Bradshaw, Susan McNeil, Michelle Seaman, Kelly, Daniel Hayward (grandson) testified or gave Affidavit evidence that Amish Shed #5 was called Leslie’s Shed, and that belonged to her.

[269] Leslie testified that she stored numerous items in this shed together with items from other friends and that it had replaced a camper that she was using for storage. She and others gave evidence that this shed would allow her to live “off the grid” at a later date and that she stocked the shed with items to facilitate that plan.

(iii) Analysis

[270] There is no issue that Amish Shed #5 was purchased from Jonas Miller in Ogdensburg, New York. The Court finds that Alex Hayward had the five sheds transported from New York State to the Property where they were installed.

[271] The Court finds that the concept of who shipped the sheds is not determinative of ownership. Alex Hayward’s counsel argues that, since Alex Hayward made arrangements for shipping of the sheds that this bolsters his claim of ownership. The Court rejects this argument.

[272] Alex Hayward’s counsel also argues that one of the invoices for the purchase is in Alex’s name, and that the rest are missing. According to the evidence, at trial, Alex Hayward was able to produce bills of sale for four sheds.

[273] Based on the conflicting evidence, the Court prefers the evidence of Leslie, that she did in fact own the Amish Shed #5, and that she stored her items there and that she had the key to the shed.

[274] The Court also prefers the evidence of Leslie as to the payment of the shed, in that she paid Mrs. Miller for part of it in cash and that she repaid her father for the balance of the monies owing and for transporting of the shed. Furthermore, her goods were stored in the Amish Shed #5 and she had the only key for it. She locked the shed and kept her valuables in the shed, which included items that she planned to use when she began living off the grid.

[275] The Affidavit of evidence of David, Shawn, and Lori are all based on second hand knowledge. They have no direct or actual knowledge of the transaction; only what people have told them. Neither party provided any corroborative evidence about the purchase of the sheds; only about the claims to ownership thereafter.

[276] The Court prefers the evidence of Leslie about Amish Shed #5 and finds on the balance of probabilities that Leslie paid for the shed and is the owner of Amish Shed #5.

Death Bed Wishes List

[277] A Death Bed Wishes List (“List”) was prepared by Leslie in consultation with her mother several days before she passed away. This List was not signed by the Deceased. On the basis that the Estate became the owner of these assets after the Deceased passed away, some of the items on the List were distributed by Leslie as Estate Trustee prior to this litigation starting.

[278] The Court does not know which of the items in the List have been given away or the value of those items. The Court believes that most of the items have sentimental value as opposed to monetary value. No evidence was provided as to the Deceased’s testamentary capacity at the time the List was prepared.

[279] The Court finds that the List is not part of the instructions given by the Deceased when she made her Last Will and Testament. Furthermore, the Court finds that this is not a codicil to the Last Will and Testament because it is not signed and witnessed. Therefore, the Court finds that the List is to be given no further effect.

[280] At the same time, the Court finds that any items that have already been distributed by the Estate Trustee as per the List do not have to be accounted for. Furthermore, the Court finds that the Estate Trustee is not liable for any of these items to the Estate or any of the beneficiaries. The Court orders that any other items on the List which are not dealt with in this decision shall fall into the residue of the Estate and are to be disposed of by the Estate Trustee in the course of her duties.

Rita Atkins’ Estate

[281] The ownership of items belonging to the Rita Aitken’s Estate became a non-issue as the trial progressed. Therefore, the Court finds that any items that formerly belonged to Rita Atkins are not in issue.

Conclusion

[282] Based on the aforesaid analysis, the following are some of the major conclusions that the Court has reached:

• the Questioned Document is authentic;
• in relation to the roof, Alex Hayward’s claim fails;
• in relation to the Chev Malibu, Alex Hayward claim fails;
• the Amish Shed #5 is owned by Leslie;
• Alex Hayward owns the Montana and owes Leslie $12,560 for it;
• the ownership of the other vehicles is as set out in these reasons; and
• the ownership of the disputed items is as follows:

Item

Court Finding as to Ownership

Summer Painting

The Estate

Winter Painting

The Estate

Deacon’s Bench

The Estate

Gingerbread Clock

The Estate

Kitchen Table (aka. Drop Leaf Table)

The Estate

Dining Room Set (Oak)

Alex Hayward

Tall Wardrobe in Basement

Alex Hayward

Large Golden Dresser in Basement

The Estate

Pedestal Table (aka. Round Table in Living Room)

The Estate

Butter Churn (Fern Holder)

Alex Hayward

Loveseat in Basement

Alex Hayward

Master Bedroom Set

Alex Hayward

Railroad Clock

Alex Hayward

Costs

[283] The parties are encouraged to resolve the issue of costs. If they are unable to do so, they shall attend in Court on December 16, 2019 at 2:30 P.M. to argue the issue of costs. Each side will be allowed a maximum of 30 minutes. Cost Outlines and Rule 49 Offers to Settle should be provided to the Trial Coordinator and the opposite party at least 1 business day prior to the hearing.

[284] In the event that there are any issues as to the mechanics of what is ordered herein, they can be addressed in writing by counsel to the Trial Coordinator within 10 days after the release of this decision.

[285] Kershman J. remains the case management judge of this and any Estate related matters.

[286] Order accordingly.

Mr. Justice Stanley J. Kershman

Date: December 12, 2019

COURT FILE NO.: 17-73107

DATE: 2019/12/12

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF JEANNE HAYWARD (ALSO KNOWN AS JEAN HAYWARD), DECEASED

RE: Leslie Ann Hayward as Estate Trustee and the Estate of Jeanne Hayward (also known as Jean Hayward), Applicants

AND

Alexander William Keith Hayward, Shawn Hayward, David Hayward, Kelly Hayward and Lori Hayward, Respondents

BEFORE: Mr. Justice Stanley Kershman

COUNSEL: Gail Nicholls, Counsel for the Applicants

Robert De Toni and Sarah Macaluso, Counsel for the Respondents

REASONS FOR DECISION

Kershman, J.

Released: December 12, 2019