COURT FILE NO.: CV-20-00634003-0000
DATE: 2020/08/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEAN MARGARET TAYLER
Plaintiff
- and -
LINSER DOUGLAS WAYNE
Defendant
Ross Macdonald for the Plaintiff
Linser Douglas Wayne, self-represented
HEARD: August 19, 2020
PERELL, J.
REASONS FOR DECISION
[1] Jean Margaret Tayler sues Linser Douglas Wayne, her transgender son, formerly Linda Wayne, over the ownership of condominium unit 1604 at 7250 Yonge Street, Vaughan, Ontario.
[2] In a counterclaim, Dr. Wayne, who has a doctorate in semiotics, alleges that his mother has discriminated, shown bias, and violated his human rights.
[3] The condominium unit that is the subject of Mrs. Tayler’s action is currently registered under the Land Titles Act[^1] jointly between Mrs. Tayler and Dr. Wayne. Mrs. Tayler moves for a summary judgment for a vesting order and for dismissal of Dr. Wayne’s counterclaim on the grounds that he has not pleaded a reasonable cause of action and that his counterclaim is frivolous and vexatious.
[4] For the reasons that follow, I grant Mrs. Tayler’s motion and grant her action, and I dismiss Dr. Wayne’s counterclaim.
[5] Mrs. Tayler is an 85-year old widow. She has four children; namely, Linser Wayne (age 61), formerly Linda Kift, Glenn Kift, Larry Kift, and Jason Kift.
[6] In September 2000, Mrs. Tayler and her late husband, James Gordon Tayler, who is the step-father of Mrs. Tayler’s children, purchased condominium unit 1604 at 7250 Yonge Street, Vaughan, Ontario.
[7] Mr. Tayler died in December 2006. Mrs. Tayler deposed that after her husband’s death, she was advised that for her own estate planning, it would be desirable if one of the children held title jointly with her. She was told that this would facilitate dealing with the property after her death. She says that the matter was discussed with her children, and it was agreed that the oldest adult child Linda, now Dr. Linser Wayne, then Linda Wayne, would be the joint tenant with Mrs. Tayler. It was understood that the title would be re-conveyed at Mrs. Tayler’s request. The condominium is Mrs. Tayler’s only asset and she says that she had no reason to prefer only one her four children.
[8] On February 2007, the condominium unit was transferred to a joint title of Mrs. Tayler and Dr. Wayne. Dr. Wayne paid no consideration for the transfer and has made no contributions for the carrying costs of the property. In his affidavit, Dr. Wayne does not suggest that he was gifted an interest in the condominium unit.
[9] On July 20, 2015, Dr. Wayne changed his name pursuant to the Change of Name Act[^2] to Linser Douglas Wayne. He had begun transitioning around 2013 when he was around 56 years of age.
[10] In November or December 2019, Mrs. Tayler asked Dr. Wayne to cooperate in transferring title back to her name alone, but he declined to do so, and this litigation followed.
[11] Dr. Wayne’s explanation as to how he came to be joint owner of the condominium unit is different from his mother’s explanation. Dr. Wayne’s version is that in the weeks leading up to Mr. Tayler’s death, he stayed with his mother and step-father and helped provide care for Mr. Tayler. He says that the conveyance of an interest in the condominium unit was in consideration or recognition for the care services he provided.
[12] In what I believe and find to be a sincere after-the-fact rationalization for the conveyance, Dr. Wayne’s account is not reliable or credible. I find as a fact that Dr. Wayne provided care for Mr. Tayler, but he did this as a generous act of human kindness and decency without thought of remuneration or compensation. I find as a fact that he understood that he was holding his mother’s major asset in order to avoid the cost and delay of having to probate what is a very modest estate that would be shared by her surviving children.
[13] In the immediate case, apart from the mere fact of the registered conveyance, there is no evidence of an intent to make a gift to Dr. Wayne. He admits that the conveyance of a joint title was voluntary, but he does not suggest that the conveyance was a gift. There are no facts to support a claim by Dr. Wayne for unjust enrichment. Neither the late Mr. Tayler nor the elderly Mrs. Tayler were unjustly enriched by the care and assistance provided by Dr. Wayne. The timing of the conveyance is only plausible and consistent with Mrs. Tayler’s explanation for the conveyance. Further, Mrs. Tayler’s version is corroborated by the evidence of Jason Kift. I find as a fact that Dr. Wayne knew that he was not receiving a gift of a survivorship and the possible ultimate absolute ownership of the condominium unit. I find as a fact that he orally agreed to hold the property in trust for Mrs. Tayler. I find as a fact that morally and legally, he was obliged to reconvey the property when Mrs. Tayler asked him to do so.
[14] In his affidavit and in his factum, Dr. Wayne relied on the provisions of the Land Titles Act, that do not provide for the registration of trust interests. As I explained, however, to him during the oral argument, these provisions of Land Titles Act do not assist him. They admit of exceptions, they do not negate the existence of trusts, and they are irrelevant to the circumstances of the immediate case.
[15] As a legal matter, by operation of law, the conveyance to Dr. Wayne was a resulting trust. There is a rebuttable presumption of a resulting trust when a parent gratuitously transfers property to an adult child, and in considering whether the presumption is rebutted, the court may consider: (a) evidence of the transferor's intention after the transfer; (b) the wording of the transfer documents; (c) control and use of the property; (d) the terms of any power of attorney; and (e) the tax treatment of the property.[^3] The evidence necessary to rebut the presumption depends on the facts of the case and evidence of the parent’s post-transfer conduct is admissible, so long as it is relevant to the parent’s intention at the time of the transfer.[^4]
[16] The evidentiary onus is on Dr. Wayne to rebut the presumption and prove that a gift to him was intended. In the immediate case, the presumption of a rebuttable trust has not been rebutted. I find as a fact that no gift was intended. I find as a fact that Mrs. Tayler’s version of the facts is the true version of what occurred in the immediate case.
[17] It follows from the above, that Mrs. Tayler’s summary judgment motion should succeed.
[18] Before turning to the counterclaim, I pause here to note that at the hearing of the summary judgment motion, Dr. Wayne argued that Mrs. Tayler’s reliance on the doctrine of resulting trust should be struck out because he submitted that the pleading of the doctrine first appeared in her factum and says he was taken by surprise. However, I saw no basis for this argument. Mrs. Tayler’s Statement of Claim is very brief, but it pleads the material facts for the legal argument that there was a resulting trust. In light of Dr. Wayne’s objection, I offered to adjourn the motion, if he wished time to research the law about resulting trust, but he wished the motion to continue.
[19] Before turning to the counterclaim, I also note that there was no argument that the case was inappropriate for a summary judgment. And from a procedural point of view, I am satisfied that there are no genuine issues that require a trial. No purpose would be served by a having a trial of the claim or the counterclaim in the immediate case.
[20] I turn now to the counterclaim. In 2015, at the age of 56, Dr. Wayne transitioned from Linda to Linser. Dr. Wayne deposed that it was because of this transition that Mrs. Tayler requested that the title of the condominium unit be changed from a joint ownership. Dr. Wayne, however, refused to reconvey the condominium unit. Mrs. Tayler then sued Dr. Wayne, and he sued his mother for “derogatory behaviour”. He alleges bias and pleads that his mother has breached the Canadian Human Rights Act and the Criminal Code. In support of his claim, he relies on: (a) the language of the Statement of Claim, which in a few instances, misapplies gender pronouns; (b) the circumstances of the claim to set aside the joint ownership; and (c) a dispute in bankruptcy court about an alleged joint and several loan made by mother to two sons, one of whom was Dr. Wayne.
[21] Mrs. Tayler flatly denies any bigotry, and she says that she did not concern herself with Dr. Wayne’s behaviour as an openly gay female nor with Dr. Wayne’s change of gender. She admits that their relationship has deteriorated, but she denies that she was retaliating in some way by reneging on her voluntary conveyance of the condominium unit. She has her side of the dispute about the loan, and about the bankruptcy proceedings.
[22] I do not doubt that the relationship between mother and son in the immediate case has deteriorated, but Dr. Wayne’s counterclaim has no basis either in law or in fact. The matter of the pronouns is regrettable, but not actionable. The dispute in bankruptcy court is just that, a legal dispute and not a human rights violation. I also do not doubt that subjectively Dr. Wayne feels that he has been mistreated and that his transition has something to do with that mistreatment. However, objectively, there is no legal or factual basis for a human rights violation and there is no precedent or foundation for Dr. Wayne’s “derogatory behaviour” cause of action.
[23] It follows that the counterclaim should be dismissed.
[24] I, therefore, order summary judgment vesting title to the condominium unit described in the Statement of Claim in the name of Mrs. Tayler and I dismiss Dr. Wayne’s counterclaim.
[25] In the circumstances of the Covid-19 emergency, these Reasons for Decision are deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.
[26] The parties may submit formal orders for signing and entry once the court re-opens; however, these Reasons for Decision are an effective and binding Order from the time of release.
[27] If the parties cannot agree about the matter of costs, then they may make submissions in writing beginning with Mrs. Tayler’s submissions within twenty days of the release of these Reasons for Decision followed by Dr. Wayne’s submissions within a further twenty days.
Perell, J.
Released: August 24, 2020
COURT FILE NO.: CV-20-00634003-0000
DATE: 2020/08/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEAN MARGARET TAYLER
Plaintiff
- and -
LINSER DOUGLAS WAYNE
Defendant
REASONS FOR DECISION
PERELL J.
Released: August 24, 2020
[^1]: R.S.O. 1990, L. 15.
[^2]: R.S.O. 1990 c. C.7.
[^3]: Kent v. Kent, 2020 ONCA 390; Re Foley, 2015 ONCA 382; Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101l; Pecore v. Pecore, 2007 SCC 17.
[^4]: Re Foley, 2015 ONCA 382 at para. 27.