Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Aldwin Reano, Plaintiff
AND: Margarette Calo, Defendant
BEFORE: W.D. Black J.
COUNSEL: Marin Nati. for the Plaintiff Margarette Calo, Unrepresented Defendant
HEARD: November 9, 2021
ENDORSEMENT
1This matter came before me as an undefended trial, the defendant, Margarette Calo (“Ms. Calo”), having been noted in default in February of 2020.
Details of Claim
2The plaintiff, Aldwin Reano (“Mr. Reano”), claims that he and the defendant who is his sister-in-law, entered into an agreement pursuant to which the defendant agreed to pay to Mr. Reano certain proceeds of a policy of life insurance on the life of Mr. Reano’s late wife (the defendant’s sister).
3Tragically Marivic Reano, the spouse of Aldwin Reano, died of breast cancer on February 2, 2019.
4At the time of her death, Aldwin and Marivic Reano were in considerable debt, having over-extended themselves in a variety of ways, including spending to the limit of various credit cards. The Reanos, when Marivic died, were in the process of making a consumer proposal to various creditors. They were considerably in debt and their respective incomes were barely meeting their current living expenses as their debts mounted.
5For reasons that were not explained, in a policy of life insurance that Marivic held through her employer (Air Canada), Marivic’s sister, the defendant Ms. Calo, was the named beneficiary.
6While Mr. Reano did not appear certain about the precise proceeds of that policy, he believes that when Marivic died, Margarette received approximately $60,000.00 under the policy.
7He says that within a few weeks of Marivic’s death, he met together with his mother, with Ms. Calo and Ms. Calo’s mother, (also the mother of his late wife). The Statement of Claim pleads that the meeting took place on or about March 4, 2019.
Alleged Agreement
8Mr. Reano says that at the meeting, Ms. Calo agreed that she would transfer the life insurance proceeds to Mr. Reano to assist him with his debts and with the expenses associated with the funeral for Marivic. He says that it was also agreed that, if there were remaining proceeds from the life insurance proceeds, once Mr. Reano’s debts were paid any such remaining amounts would be split among the plaintiff, defendant and perhaps Mr. Reano’s children, in equal shares.
9Consistent with the alleged agreement, Margarette paid to Mr. Reano two amounts, $15,000.00 on or about March 12, 2019 and another $10,000.00 on or about March 14 or 15, 2019.
10Having read this narrative in the Statement of Claim (which was largely if not precisely replicated in Mr. Reano’s evidence), I asked plaintiff’s counsel at the outset of trial to ensure that in the evidence and argument the plaintiff addressed the issue of consideration.
11That is, I advised counsel that I was not able to determine, based on the pleading, what consideration Ms. Calo received in exchange for agreeing to pay proceeds of the life insurance policy to Mr. Reano.
Evidence Concerning Consideration
12During his testimony, the plaintiff was asked a few times and in different ways, what the defendant received or would expect to receive, in exchange for her largesse. Mr. Reano said repeatedly and steadfastly that Ms. Calo received nothing, did not expect to receive anything, and that he never told her he would provide anything in exchange for her willingness to pay the insurance proceeds to him.
13His answer to the question of consideration was really twofold. First, he reiterated that once his debts were paid from the proceeds, if there were remaining funds they would be split and Ms. Calo would receive a share. Given Mr. Reano’s ready concession that the funds in question belonged to Ms. Calo as the beneficiary of the life insurance policy, this did not strike me as true consideration.
14The second point that Mr. Reano emphasized was that Ms. Calo “is family” and that therefore there is an expectation that she would hand over the proceeds to help with Mr. Reano’s debts. Again, I was not persuaded that simply being related – in this case by marriage – would be sufficient or any consideration for gratuitously transferring the proceeds to Mr. Reano to allow him to escape from the debts that he and Marivic had amassed.
15Given counsel’s inability to elicit any evidence of consideration and given my overriding concerns about the implications of the lack of any such evidence to his claim, I too asked Mr. Reano some questions at the conclusion of his testimony, with a view to ensuring that he understood his counsel’s questions and to give him every opportunity to expand if there was in fact additional evidence suggesting any consideration. Mr. Reano was as steadfast in denying any consideration in answers to my questions as he was in answering his counsel’s questions.
16I revisited this issue during counsel’s submissions. Mr. Reano’s counsel to his credit, acknowledged the lack of evidence of consideration for the payments Ms. Calo allegedly agreed to make. He conceded he could do no better than to point to the two items discussed in paragraphs 13 and 14 above. In addition, he suggested that the two payments made by Ms. Calo were in fact confirmatory evidence that the alleged deal was in place. In the absence of evidence of consideration, in my view the payments by Ms. Calo are equally consistent and perhaps more consistent, with a gratuitous payment in the nature of a gift.
Opportunity for Additional Legal Submissions
17Counsel did not point to any authorities during his submissions and so I gave him the opportunity to provide written submissions, focusing on the consideration issue in case there are authorities of which I am not award finding consideration, and a valid contract in circumstances relevant to the circumstances at hand in this case.
18As such, the plaintiff is to provide written submissions on this point by November 30, 2021.
W.D. Black J.
Date: November 25, 2021