Court File and Parties

COURT FILE NO.: CV-21-13

DATE: 20210907

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Danny Fletcher and Marvin Vansickle, Estate Trustees of the Estate of Dorothy Ethel Vansickle

Applicants

– and –

Howard Vansickle, Joan Pizzey, Allen Vansickle, Mary Ann Fletcher, Doug Vansickle and Charles David Goold

Respondents

Joan Kasozi, for the Applicants

Kayla Carr, for the Respondent Howard Vansickle

Junaid J. Malik, for the Respondents Joan Pizzey, Allen Vansickle and Mary Ann Fletcher

Derek Sinko, for the Respondent Doug Vansickle

HEARD: July 26, 2021

The Honourable D.A. Broad

reasons for judgment

Background

[1] The applicants are the Estate Trustees of the estate (the “Estate”) of Dorothy Ethel Vansickle (“Dorothy” or the “Testator”) who died on October 7, 2019 at the age of 95 leaving a will dated January 7, 1985 (the “Will”).

[2] The applicants have brought an Application seeking the court’s opinion and advice respecting the interpretation of clause 3(c)(ii) of the Will.

[3] The Will was a mirror will to that of the Testator’s late husband Thomas Bert Vansickle (“Thomas”), made concurrently with the Testator’s in January 1985. Thomas died on May 27, 1994.

[4] Dorothy and Thomas had seven children - Audrey Vansickle who died in 2013, the applicant Marvin Vansickle and the respondents Howard Vansickle, Allen Vansickle, Mary Ann Fletcher, Doug Vansickle and Joan Pizzey. The applicant and one of the Estate Trustees, Danny Fletcher, is the spouse of Mary Ann Fletcher. For brevity and clarity, in these Reasons will refer to the Testator’s children by their first names. No disrespect is intended by doing so.

[5] The respondent Charles David Goold is the lawyer who drafted the Will. He did not participate in the hearing of the Application.

[6] At the time of making their wills and for many years previously Dorothy and Thomas owned and operated a small farm in the Township of Onondaga in the County of Brant. The land upon which the farming operation was situate (the “farm parcel”) comprised 66.54 acres. Situate on the farm parcel are a large two-storey home, a 36 x 60-foot barn, and a 32 x 56 foot drive shed.

[7] Dorothy and Thomas’ farming operation did not comprise their main source of income as they were both employed off the farm as school custodians, but rather the farm operation supplemented their income through the commercial sale of farm produce and animals raised on the farm.

[8] The background circumstances and the issues to be determined by the court can be briefly summarized as follows.

[9] Clause 3(c)(ii) of the Will provided that, if he shall be living at the time of the Testator’s death, Howard was granted the option, to be exercised within one year of the Testator’s death or such further period as the Estate Trustees may consider reasonable, to purchase “the farm business carried on by [the Testator]” for the price of $85,300 “or such lower price to be agreed upon by [the Estate Trustees] and [Howard] having regard to the assessed value of the lands included hereby at the time of [the Testator’s death] and the assistance given to [the Testator] by [Howard] in the conduct of the farming business. ”

[10] Clause 3(c)(ii) went on to specify that the Testator desired, for the purpose of the clause that “the expression of my farming business shall include all assets, stock, plant, liabilities, in connection there with on the other (sic) and it shall include the estate in fee simple of the farm.”

[11] The clause provided that if Howard shall not purchase the farming business within the time specified, “the business shall fall into the form (sic) part of [the Testator’s] residuary estate.”

[12] Pursuant to clause 3(c)(iii) the residue of the Testator’s estate is to be divided among her issue in equal shares per stirpes, specifically, equally amongst the living children of the Testator being Howard, Marvin, Allan, Mary Ann, Doug and Joan.

[13] From in or about 1993 or 1994 to the present Howard rented the farm parcel from the Testator on an annual basis and operated a farm business thereon by subcontracting the work to third parties for his benefit.

[14] It is not disputed that the current value of the farm parcel is well in excess of the option price of $85,300 specified in the Will.

[15] Allen, Mary Ann and Joan take the position, inter alia, that on the date of her death the Testator did not carry on a farm business and therefore clause 3(c)(ii) is of no effect and the farm parcel forms part of the residue of the estate to be distributed among the Testator’s surviving children in equal shares. In the alternative, they take the position that Howard did not sufficiently assert a right to acquire the farm business for the sum of $85,300 within the one-year period following the Testator’s death specified in the Will

[16] Howard takes the position that, by virtue of renting the farm parcel to him with rent payable annually, the Testator carried on the farm business as of the date of her death, and that accordingly, he has the option to purchase the farm business, as defined in clause 3(c)(ii), for the sum of $85,300. He submits that he asserted his right to purchase the farm business within the time specified in the Will and the Estate Trustees are bound to convey it to him for the sum of $85,300.

[17] Doug supports the position of Howard in the litigation.

Issues and Determination

[18] The tasks of the court are:

(a) to ascertain the Testator’s intention in order to determine whether clause 3(c)(ii) confers on Howard the right to purchase the farm parcel from the estate for the sum of $85,300;

(b) if the foregoing is answered in the affirmative, whether Howard sufficiently exercised the right to purchase within the period specified in the Will.

[19] For the reasons set forth as follows I have concluded that clause 3(c)(ii) of the Will does not confer on Howard the right to purchase the purchase the farm parcel from the Estate for the sum of $85,300, or at all. In light of this determination it is not necessary to address the second question.

Facts

[20] The full text of clause 3(c)(ii) of the Will reads as follows:

c) If my husband should predecease me, or should survive me but die within a period of 15 days after my death, I direct my Trustees:

(ii) If my son, HOWARD VANSICKLE, shall be living at the time of my death, my Trustees shall sell the farming business carried on by me at R.R. #7 Brantford, Ontario, in the Township of Onondaga, in the County of Brant, to my son, HOWARD VANSICKLE, as soon as convenient for the price of $85,300.00 or such lower price to be agreed upon by my Trustees and my son, having regard to the assessed value of the lands included hereby at the time of my death and the assistance given me by my son in the conduct of the farming business. The payment of the purchase price shall be made to my Trustees in such manner as they think fit and I specially authorize them to accept any form of security of a promissory note or notes signed by my son and payable by such installments as my Trustees shall in their discretion determine, but not carrying interest at a rate exceeding 12%. And I desire that for the purpose of this clause the expression of my farming business shall include all assets, stock, plant, liabilities, in connection therewith on the other and it shall include the estate in fee simple of the farm. And further provided that if my son, who shall have the right to compel the exercise of the power by my Trustee which right shall be personal shall not purchase the farming business within one year from my death or within such further period as my Trustees may consider reasonable in the circumstances the business shall fall into the form part of my residuary estate discharged from all right to purchase by my son.

[21] The facts pertaining to the operation of the farm by Dorothy and Thomas prior to Thomas’ death, and the arrangements between Howard and Dorothy from that time until her death are not largely in dispute.

[22] Howard was 75 years of age at the time of making his affidavit. He deposed that he began working on the farm as a young child and, as he grew up, he was responsible for many tasks in the farm, as outlined in detail in his affidavit. He did not disclose whether he was remunerated by his parents for his work on the farm, or if so, the amount he was paid.

[23] Upon Thomas’ death in 1994 Howard began renting the field, barn and drive shed from the Testator pursuant to a series of written agreements, each having a term of approximately two years, providing for payment of fixed rental amounts on an annual basis. He continued to rent the land and buildings from the Testator until her death. He has continued to occupy the farm parcel and buildings following the Testator’s death and stated his intention to pay rent to the Estate until the end of 2020.

[24] The written rental agreements with the Testator required Howard to pay rent in the amount specified, farm the land according to standard recognized methods, not to sublet without permission and permitted him to cut trees along the edge of the field and to fix or repair the drainage as needed and to have free access to the farm at all times. The written agreements did not impose any duties on the Testator as landlord.

[25] Howard deposed that he paid $4800 as base rent in each of 2015, 2016 and 2017 and $6000 in each of 2018 in 2019. In each of 2017 and 2018 he paid to the Testator an additional $1200 as he had experienced good crops in those years. However, there was no obligation on him to do so pursuant to the rental agreements.

[26] Howard listed in his affidavit farming equipment located on the farm property and belonging to the Testator, however, he did not depose that he utilized any of the Testator’s equipment in his farming operation.

[27] Howard deposed that after Marvin, Alan, Joan and Mary Ann each moved away from home in their early teens or twenties they never assisted with any of the farming business. However, he said that Doug did assist his mother, father and him with some of the farming business.

[28] Mary Ann deposed that over the years as the children grew up the family as a whole helped out on the farm in varying degrees. Prior to about 1992 livestock activities on the farm came to an end and in 1993 or 1994 Howard began renting the field from the Testator. Until 1997 or 1998 Howard tended to cash crops and, thereafter, he began to independently subcontract the farming activities for his personal benefit.

[29] Mary Ann deposed further that much of the farming tools and equipment belonging to Dorothy and Thomas remain in a state of disrepair from lack of use, lack of maintenance and exposure to the elements.

[30] Doug filed an affidavit in support of Howard’s position that largely consists of argument rather than statements of fact. He did depose that Dorothy had a business with a GST/HST number and that, in her annual income tax returns, she always indicated that it was not the final year of farming and claimed farming income.

[31] The Estate Trustees filed an affidavit by Nanda Singh, a law clerk in the office of the lawyers for the Estate Trustees, appending the Testator’s income tax returns for the years 2017, 2018 and 2019 each of which included a Statement of Farming Activities disclosing “rent” as the only revenue for each of those years, in the sum of $6000 for 2017 and 2019 and $7200 for 2018.

Guiding Principles

[32] The most recent explanation by the Court of Appeal of the guiding principles governing the interpretation of a will was provided by Brown, J.A., writing for the panel, in Ross v. Canada Trust Company, 2021 ONCA 161, [2021] O.J. No. 1353 at paras. 36-41 as follows:

When interpreting a will, a court's task can be stated simply: it is to determine the Testator's actual or subjective intention as to how she intended to dispose of her property: Trezzi, [2019 ONCA 978] at para. 13.

The basic approach to the construction of a will was described by this court in Burke (Re), 1959 113 (ON CA), [1960] O.R. 26 (C.A.), at p. 30:

Each Judge must endeavour to place himself in the position of the Testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the Testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the Testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the Testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.

While a key element of Burke's approach to will interpretation is, of course, studying the document's contents — not only the provisions in dispute but the entire will — its approach also includes the use of what is known as the "armchair rule". Ian Hull and Suzana Popovic-Montag, Feeney's Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2020) at §§10.45 and 10.46, describes the "armchair rule" as follows:

In the first instance, the court may not be convinced that the Testator's intention can be discerned from the will itself. In such a situation, since the Testator must be taken to have used the language of the will in view of the surrounding circumstances known to him or her when he or she made his or her will, evidence of such circumstances is necessarily admissible, at least insofar as it corresponds to the facts and circumstances referred to in the will. It seems obvious that a court might conclude that admissible evidence of surrounding circumstances is not helpful in determining meaning.

The court puts itself in the position of the Testator at the point when he or she made his or her will, and, from that vantage point, reads the will, and construes it, in the light of the surrounding facts and circumstances. This approach is commonly referred to as the "armchair rule".

Sitting in the place of the Testator, the court assumes the same knowledge the Testator had, at the time of making the will, in regard to the nature and extent of her assets, the makeup of her family, and her relationship to its members: Stuart v. Stuart, 2019 ONSC 4328, 49 E.T.R. (4th) 306, at para. 9; Dobson Estate v. Dobson (2000), 32 E.T.R. (2d) 62 (Ont. S.C.), at para. 8; Shamas (Re), 1967 303 (ON CA), [1967] 2 O.R. 275 (C.A.), at p. 279, citing Perrin v. Morgan, [1943] A.C. 399 (U.K. H.L.), at pp. 420-21.

In the past, courts usually have resorted to the "armchair rule" where the Testator's intention cannot be ascertained from the plain meaning of the will's language: Dice v. Dice Estate, 2012 ONCA 468, 111 O.R. (3d) 407, at para. 37.

More recently, courts are treating the "armchair rule" as an over-arching framework within which a judge applies the various tools for will construction at his or her disposal. As put by the Court of Appeal of Manitoba in Zindler, [2015 MBCA 33], at para. 14:

Feeney's [Canadian Law of Wills] concludes that "the most recent trend in Canadian cases seems to indicate that evidence of surrounding circumstances should be taken into account in all cases before a court reaches any final determination of the meaning of words" (at para. 10.54). This is true even if the words, themselves, do not appear to be ambiguous or unclear . . .

[33] At para. 43 of Ross Brown, J.A. found that the approach taken by the motion judge in the decision below was sound. This consisted of trying to discern the Testator’s intention from the plain meaning of the will's language and finding himself unable to do so, he then took a step back to consider the "bigger picture" of the surrounding circumstances, applying the "armchair rule". This methodology tracked the approach described by the court in Dice, at paras. 36-38.

[34] In the case of Haidl v Sacher, [1979] S.J. No. 48 (Sask C.A.), which followed and applied Burke, the Court held at para. 8 that “surrounding circumstances” which may be considered by the court in interpreting a will consist of “such circumstances as the character and occupation of the Testator; the amount, extent and condition of his property; the number, identity and general relationship to the Testator of the immediate family and other relatives; the persons who comprised his circle of friends; and any other natural objects of his bounty.” It is axiomatic that these circumstances must be those prevailing at the time of the making of the will.

[35] For this reason I do not find the evidence led by the respondents Allen, Mary Ann and Joan respecting the estimated current value of the farm parcel, and the alleged differential between the rent paid by Howard to the Testator and prevailing market rent for comparable agricultural property in the County of Brant during the relevant years to be of assistance in determining the intention of the Testator in making the disposition that she did in clause 3(c)(ii) of the Will.

[36] It is important to note that the construction by the Court of other documents and decisions in other cases respecting the intention of other testators provides no assistance to the Court in forming an opinion as to the intention of the testator in the particular case under consideration. Other cases are helpful only in so far as they set forth or explain any applicable rule of construction or principle of law (see Dice at para 59, citing Burke, Re at para 30).

Discussion

[37] From a review of the available evidence, the relevant circumstances surrounding the making of the will by the Testator in 1985 included the following:

(a) the Testator and her husband were operating a farm consisting of the production and sale of crops and livestock, each of which were sold to generate income for the family to supplement their off-farm employment income;

(b) there was no history of the Testator and her husband having rented all or any part of the farm parcel, or any of the equipment, to Howard or to any other person;

(c) Howard assisted the Testator and her husband in the farming operation to a greater extent than any of his siblings, and worked on the farm continuously since he was a young child;

(d) although Marvin, Allen, Mary Ann, and Joan assisted their parents on the farm as children and adolescents, they largely ceased providing such assistance after each of them left home in their teens or twenties. Doug continued to provide some assistance to the Testator and her husband in relation to the farm operation;

(e) the Testator and her husband made mirror wills in 1985, each of which contained the identical clause 3(c)(ii);

(f) there is no evidence that at the time of the making of their wills, the Testator and her husband had formed any intention to dispose, transfer, change or discontinue the farm operation as they were operating it at any time in the foreseeable future;

(g) the Testator and her husband had seven children. The Testator and her husband provided in their mirror wills that, on the death of the survivor of them, the residue shall be divided among their surviving issue in equal shares per stirpes.

[38] In applying the approach outlined by the Court of Appeal in Burke, the circumstances that existed and which might reasonably be expected to have influenced the Testator and her husband in the disposition of their property by their mirror wills, include the fact that they had, for many years, operated an active farm business, growing and marketing crops and livestock. It can be inferred that they were devoted to operating the farm business and had no plans to change or discontinue it. Howard had worked with them in the farm operation since he was a young child performing a multitude of tasks. Their other children had not demonstrated the same interest in the farm operation as had Howard. At the time of the making of the Will, Howard was approximately 40 years of age. It can be inferred from Howard’s evidence that he had “worked” on the farm (rather than “volunteered” or “helped”) that he was remunerated for his work and derived at least part of his livelihood by working for his parents on the farm. From these circumstances, it may be expected that the Testator and her husband wished to provide Howard with the opportunity to continue upon their deaths the farm operation upon which he was at least to some degree dependent financially should he wish to do so. At the same time the Testator and her husband had other children they wished to benefit by their wills and sought to do so fairly while providing for the possible continuance of the farm operation by Howard.

[39] In studying the whole contents of the Will, the Testator sought to achieve the objectives referred to above namely, continuance of the farm operation while treating all of the children fairly, not by means of an outright gift of the farm operation to Howard, but by the granting to him of an option to purchase it for valuable consideration from the Estate.

[40] It is evident that the Testator sought to provide Howard with the option to acquire the farm operation as a going concern in the same form that she and her husband had operated it. This can be gleaned from the governing direction “my Trustees shall sell the farming business carried on by me” (underlining added). The fact that the Testator and her husband sought to provide Howard with an opportunity to continue the farm business as a going concern is also reinforced by the description of what they intended to be included in “the farming business” comprising not only assets but also liabilities, as follows: “I desire that for the purpose of this clause the expression of my farming business shall include all assets, stock, plant, liabilities, in connection therewith.” It also specifically included “stock” which would connote an inventory of crops and/or livestock.

[41] The fact that the Testator and her husband sought to provide Howard with the opportunity to continue the farm business in a way that was fair to him and to their other children is supported by the connection drawn in the clause between the stated option price and the assessed value of the “lands included.” The Testator appeared to contemplate the possibility of the option price exceeding the assessed value on the date of her death, opening the possibility, but not the binding direction, for a downward adjustment of the option price by agreement, but not the reverse. She also provided for the possibility, but not the direction, for a downward adjustment to recognize the assistance given to her by Howard in the conduct of “the farming business.” This connotes the farming business constituting an active, rather than a passive, enterprise.

[42] It is not evident from the terms of the Will why the Testator contemplated the possibility of the assessed value of the lands decreasing but not increasing following the making of her Will. It is possible that this assumption reflected prevailing conditions in the local farming economy at the time of the making of the Will. Nevertheless, the adjustment provision reflects, in my view, an intention to maintain a balance between the competing interests within the Testator’s family.

[43] After full consideration of all the provisions and language used by the Testator in the Will in the context of the circumstances that then existed, I find that the Testator intended phrase “the farming business carried on by me” in clause 3(c)(ii) to refer to the active farming business involving the cultivation of crops and/or the raising of livestock for commercial sale and profit that she and her husband had carried on for many years prior to the making of their wills. She intended to confer on Howard an opportunity to acquire the active farming business as a going concern at a stipulated price should he wish to do so.

[44] To construe “business” to mean the bare rental of farmland would be inconsistent with the qualifying phrase “carried on by me.” Renting land, with no accompanying obligations such as for maintenance or repair, and no benefits beyond fixed rent, such as to share in profits, does not, in my view, require “carrying on” and I find that the Testator did not intend the simple rental of land to come within the ambit of the phrase “farming business carried on by me.”

[45] In my view, since the Testator did not “carry on” “the farming business” (that is, the active farming business formerly operated by her and her husband) on the date of her death, no option to purchase may be exercised by Howard.

Disposition

[46] For the reasons set forth above, it is declared and adjudged as follows:

(a) clause 3(c)(ii) of the Testator Dorothy Ethel Vansickle’ s Will dated January 7, 1985 is ineffective in granting to the respondent Howard Vansickle an option to purchase from the Estate Trustees the farm property and the farm equipment owned by the Testator on the date of her death;

(b) the said farm property and equipment form part of the residue of the Estate of the Testator to be dealt with pursuant to clause 3(c)(iii) of the Will;

(c) the claims for relief sought at subparagraphs 1(b) and (c) of the Notice of Application are dismissed.

Costs

[47] The parties are strongly urged to settle the issue of the costs of the Application.

[48] If the parties are unable to do so, the applicants and the respondents Joan Pizzey, Allen Vansickle and Mary Ann Fletcher may make written submissions as to the costs of the Application within 21 days of the release of these Reasons for Judgment. The respondents Howard Vansickle and Doug Vansickle have 14 days after receipt of the applicant’s and the respondents’ Joan Pizzey, Allen Vansickle and Mary Ann Fletcher submissions to respond. The applicants and the respondents Joan Pizzey, Allen Vansickle and Mary Ann Fletcher shall have a further 7 days to make reply submissions. The initial written submissions shall not exceed five (5) double-spaced pages exclusive of Bills of Costs, offers to settle and authorities. Any reply submissions shall not exceed three (3) double-spaced pages. All such written submissions are to be forwarded to me via email to the Trial Coordinator at Brantford, at the same email address as was utilized for the release of these Reasons.

[49] If the parties are able to settle the question of costs or if a party does not intend to deliver submissions on costs or reply submissions, counsel are requested to advise the Trial Coordinator in writing accordingly.

D.A. Broad, J.

Date: September 7, 2021