Court File and Parties

COURT FILE NO.: 01-2225/16ES

DATE: 20211223

ONTARIO SUPERIOR COURT OF JUSTICE

ESTATES LIST

IN THE MATTER OF THE ESTATE OF FELICE PEPITO, deceased

BETWEEN:

RITA ANGELA HARRISON Applicant

– and –

RITA LISA PIPITO AND tirrell michael gordon Respondents

Counsel: Self-represented Applicant Sheldon Tenenbaum, for the Respondents

HEARD at Toronto: December 8, 9 and 10, 2021

Reasons for judgment

S.F. Dunphy J.

[1] Felice Pepito passed away on January 4, 2016. His only material[^1] asset was an interest in his home of approximately 29 years on Silverstone Drive in the north end of Etobicoke that he shared with his granddaughter and great-grandson, the respondents Rita Pipito and Tirrell Michael Gordon. When he died, the house was mortgage-free and registered in the name of all three as joint tenants. At its core, this litigation concerns who ought to be the owner of that house.

[2] There are a lot of family members to be discussed in these reasons some with similar names raising the risk of confusion. The applicant and her generation – Ms, Rita Harrison, Mr. Giuseppe (Joe) Pipito and Ms. Fiorella Panton – shall be referred to as I have just done. Their parents, Felice Pipito and Francesca Flora Pipito shall each be referred to by their first names only unless it is otherwise clear in the context. The next two generations of children, including the two respondents - shall be referred to by their first names as well with last names where needed to avoid confusion.

[3] The applicant, Ms. Harrison, is the daughter of Felice and the sole member of her generation of the family still alive. Her brother Giuseppe or “Joe” and sister Fiorella died in 2002 and 2017 respectively. She asks that the transactions by which the respondents became joint tenants of Felice’s Silverstone Drive home should be set aside and the home either vested in her as the original purchaser or in the estate of her father which should be administered as an intestacy with his will declared invalid. She bases this claim on two foundations. First, she alleges that her father was simply unable to understand English well enough to have known and understood the significance of what he was doing when making his will in 1995 and when granting a joint tenant interest to the two respondents in 2003 and 2013. Second, she claims that Rita exerted undue influence over her father on those occasions.

[4] For the reasons that follow, I dismiss the application with costs and dissolve the Certificate of Pending Litigation that the applicant has caused to be registered against the title to the home. Having examined the totality of the evidence carefully, I have concluded that the 1995 will was validly made by a testator with capacity who had, was able to and did utilize that capacity when making his will. His was able to understand English sufficiently to make his will and to enter into the transactions whereby a joint tenancy interest was conveyed to the two respondents in 2002, 2003 and 2013. I have found that his will was not dominated or overpowered by any person including the respondents when those transactions were entered into. He entered into both transactions freely, with deliberation and with legal advice that he was able to access and understand.

[5] Certain transactions involving the applicant’s mother Francesca have been called into question during the course of this trial. I have concluded that Ms. Harrison has no standing to question those transactions at all events but insofar as Felice’s involvement in one of them is concerned, he understood the nature and effect of the transaction and was not subject to undue influence or coercion when he participated in it.

[6] The application must be dismissed in its entirety with cots payable to the respondents.

Background facts

(a) Trial procedure and evidence

[7] This trial proceeded on a modified hybrid basis. Following the pre-trial, the parties each filed affidavits representing the evidence in chief of the relevant witnesses. Felice’s family doctor (Dr. Deitcher) was requested by the pre-trial judge to prepare a letter outlining her expected evidence and to make her file of notes available. She affirmed the truth of the contents of her letter at trial and was cross-examined by the applicant thereafter. The parties were permitted a brief examination in chief of their witnesses to clarify or supplement their affidavits followed by cross-examination from the adverse party. This process greatly streamlined the trial and simplified the process without impairing the ability of the parties to present or challenge the evidence as they thought fit.

[8] The pre-trial judge attempted to secure from the parties a joint document brief that both sides could refer to in making their respective cases. It had been my expectation that the lengthy joint document brief that emerged was understood by both sides to consist of documents the authenticity of which was agreed. The applicant Ms. Harrison – who represented herself throughout – indicated to me that she had some reservations about the authenticity of some of the documents and wished to lead evidence contradicting statements in others of them. I secured from her a list of documents in the brief about which she had such reservations and explained to her that she was not in any way precluded from leading evidence to contradict the contents of otherwise authentic documents. In essence, she had questions about the truth of the contents of some public record documents but did not challenge the authenticity of the registered documents themselves. She also had questions about certain documents attached to the affidavit of the lawyer who provided an ILA Certificate on one of the transactions, Ms. Mungol. I required the plaintiff to prove those documents as to authenticity which was done through Ms. Mungol during her testimony in chief. Once again, Ms. Harrison’s objections were directed primarily at the contents of the documents rather than their authenticity. Ms. Mungol was cross-examined by Ms. Harrison and my finding takes all of the evidence into account. I was satisfied by the evidence led as to the authenticity of the handful of documents about which Ms. Harrison raised questions and the balance were admitted into evidence without objection.

(b) The Pipito family

[9] Felice Pipito was born in Sicily in 1922. He was twice married and twice divorced from Francesca Flora Pipito who was born in 1925. The couple emigrated to Canada in or about 1952. As was common in those days, Felice came first and sent for his family as soon as he was able thereafter. Francesca is frequently referred to in her family by her second name, Flora.

[10] There were three children of the marriage: Giuseppe (“Joe”) (born in 1948), Rita (born in 1949) and Fiorella (born in 1957). Giuseppe died in 2002 and Fiorella (Panton) died in 2017. Rita is thus the sole surviving child of Felice and Francesca.

[11] Each of these three first generation children of the marriage had children of their own, and some of these have had children as well. The full family tree is not material here beyond noting the existence of descendants along each of the three initial lines that would have to be taken into account in the event of an intestacy of Felice.

[12] The respondent Rita has two children, one of whom is the respondent Tirrell Michael Gordon (born in 1991).

[13] Ms Harrison has three children. Two of these – Jason and Jonathan testified along with their mother at the trial.

(c) Observations regarding family relationships and credibility

[14] This family has more than its share of deep divisions and these have endured for many years.

[15] Francesca and Felice were divorced twice during the course of a relationship that endured, off and on for more than sixty years. Francesca moved back in with and was cared for by Felice and Rita in 2002 during her final years as she gradually succumbed to dementia and other physical ailments before passing away in 2008.

[16] There were clearly periods of strain in that relationship – the history of two divorces speaks for itself. The descriptions of a fractious or dysfunctional household that Ms. Harrison’s sons Jason and Jonathon provided dates primarily from the time frame immediately prior to the second divorce for example. However, I am quite entirely satisfied that the final years of the life of Francesca were characterized by bilateral warmth and tenderness. Despite the degenerative nature of Francesca’s illness that intervened in the last years, Francesca was aware of her surroundings and the people around her and was able to communicate her feelings reasonably well.

[17] The nature of both Ms. Harrison’s and Rita’s relationship with Francesca and Felice in particular was an on-going issue in the trial.

[18] There is no question that Ms. Harrison’s contacts with both parents were comparatively few and far between after Francesca moved back in with Felice in late 2002. I do not accept the inference the respondents would appear to wish me to draw that the applicant never visited her mother after she was accepted as a resident of a long-term care home in 2005, but I do accept that Rita and Felice were very frequent and, in the case of Felice, almost daily visitors. By contrast, Ms. Harrison and her sister visited relatively seldom.

[19] The evidence regarding the degree to which that strain was also operative prior to 2002 is somewhat more contentious. Whether this situation was a consequence of Ms. Harrison being actively excluded from contact with her parents by a domineering and controlling Rita as Ms. Harrison alleges or a result of the direct request of Felice who had grown fearful of Ms. Harrison and wished to avoid conflict with her as Rita alleges has a bearing on the principal issues before me and requires a careful consideration of the credibility of each given the starkly different portraits of the relationship described by each. As shall be expanded upon in my reasons, I do not accept the applicant’s characterization of the relationship during that time-frame and I do accept in its broad terms the description of the state of the family relationships during that same time frame given by the respondents.

[20] There is ample evidence that Ms. Harrison had a quite strained relationship with both of her parents dating back many years.

[21] “Strained relationship” does not imply “no relationship”. I have found, for example, that the $50,000 mortgage Francesca placed on her home with Ms. Harrison’s guarantee was intended to assist Ms. Harrison and I reject as implausible fiction in Ms. Harrison’s testimony that her presence as a guarantor on a mortgage placed on a debt-free home for a fraction of its value was simply a convenience offered by Ms. Harrison to help her mother access some needed liquidity from her equity in the home. Her explanation for why the mailing address for statements on this loan was soon changed to her own address (or that of one of her sons when she was out of the country) is implausible while Rita’s explanation that this was done so that Francesca would not be aware of when Ms. Harrison had allowed the loan to go into default was credible and quite consistent with the remainder of the evidence that I accept. Nevertheless, both accounts of this contested transaction confirm that there was some voluntary mother-daughter interaction going on in the early 1990’s and that their relationship was not entirely in the deep freeze whatever rifts and strains existed.

[22] The poor state of relations between Ms. Harrison and both of her parents during this era is confirmed by the terms of the formal wills that each of them separately executed before different lawyers (in 1989 in the case of Francesca and in 1995 in the case of Felice). Both parents – then divorced and living separately although on apparently friendly terms - independently decided to leave Ms. Harrison with nothing (or a nominal amount in the case of Felice). Ms. Harrison did not have copies of either will but became aware of the existence of both. The seeds of deep discord clearly pre-date Francesca’s illness and her moving into the Silverstone Drive home with Felice in 2002.

[23] Of particular importance in terms of assessing credibility is the relationship between Ms. Harrison and her niece Rita. The details of the venom directed at the latter by the former in some of the evidence filed by her shall not be repeated here beyond noting its existence. The term “poison pen” letter seems wholly inadequate to describe some of these communications.

[24] It is not my task to diagnose or untangle the rights and wrongs of such deep and troubled family history. Instead, I note the state of affairs and exercise caution in my assessment of credibility the closer to the epicentre of the clash a witness lies. My assessment of the evidence must take into account all of the evidence with an appropriate appreciation for the differing frailties associated with each element of it.

[25] Without attempting to point fingers at any party as regards to the causes of the deep veins of antipathy I have seen, I have concluded that I must approach the evidence of Ms. Harrison with the greatest of caution. The evidence clearly convinced me that Ms. Harrison harbours a deep resentment of her niece who very enjoyed the kind of relationship with her own parents that she did not. There is no doubt that there was very significant hostility directed by Ms. Harrison towards Rita during substantially all of the time frames relevant to this case but at much more incandescent levels after 2002. Its cause is of much less relevance than the fact of its existence. On most of the key issues raised in this case, I found myself unable to credit Ms. Harrison’s testimony where it conflicted in any material way with that of the non-family witnesses (Ms. Kurylo, Dr. Deitcher, and Ms. Mungol) or that of the respondents.

[26] I have much less hesitation when approaching the testimony of the respondent Rita but must do so attentive to the distortions that can creep in when time and strong emotions have the ability to go to work on memories. I am most comfortable with Rita’s evidence when it is broadly consistent with the more dispassionate descriptions of events emanating from the non-family witnesses or documents in which third parties have had a significant hand. She clearly feels both traumatized and abused by Ms. Harrison but I found that her evidence was less distorted, more frank and represented in all cases to her best recollections. It was not without being defensive on occasion, but I had little difficulty in sorting the wheat from the chaff in what she had to say. For example, I found that she exaggerated her lack of Italian. She clearly understood far more Italian than she was able to express but enough witnesses consistently described the half Italian, half English conversations that sometimes occurred between Rita and Felice over the years to persuade me that he frequently resorted to Italian when speaking to her if he had difficulty in expressing himself otherwise and she was usually able to understand him in either language.

[27] Rita certainly had the best and longest-standing relationship of any of the witnesses with Felice. She was placed into foster care as a very young child when her parents proved unable to care for her. Her mother was not a presence in her early life. Her father moved back home with his parents and then with his father for much of the time and struggled with addictions and ultimately died of an overdose in June 2002. The authorities ultimately placed Rita her with her grandparents and she was, for all intents and purposes raised by her grandparents thereafter. Her childhood and indeed most of her adult life was spent living under the same roof as her grandparents and, after their divorce, with her grandfather. Her children were born and raised in their great-grandfather’s house.

[28] While living with Felice in the later years, Rita worked as a full-time teacher, raised her children and helped run the household smoothly assisting both Felice and Francesca during the years she lived there. She paid rent to her grandfather and thereby contributed to the household finances while living there.

[29] Two of Ms. Harrison’s three children, Jonathon and Jason, testified. Both testified as to their impressions of the limitations in their grandfather’s comprehension of English and more generally as to the state of family relations they observed. Both testified that they exchanged very few words with Felice and considered that he was unable to communicate or make himself understood in English except at a very simple level.

[30] There were limitations on the opportunities both Jason and Jonathon had to make useful observations which must be appreciated. While not questioning the sincerity of either, I discount quite heavily the quality and reliability of the evidence they gave.

[31] Ms. Harrison returned with her three young children after living several years abroad in or about 1985. Jonathon was then in his mid-teens (Jason was four years younger). She and the children stayed in Francesca and Felice’s Orpington Crescent home for a few months while she was arranging for a place to live.

[32] Jonathon and Jason thus lived in their grandparent’s house at a time when their grandparents’ relationship was heading towards the divorce that occurred three years later. After the separation, Felice came to live with Ms. Harrision and her children for a few months before his own home on Silverstone Drive was purchased. It was during this time frame that both Jonathon and Jason observed a dysfunctional and fractious family life. Those early impressions unsurprisingly colour their accounts.

[33] Most of Jonathon’s contact with his grandfather was during his youth and through the eyes and ears of his age. He had relatively few contacts with his grandfather after 1997 and described his relationship with both grandparents thereafter as becoming “more estranged”. Jonathon described his relationship with his grandfather as being relatively distant by contrast with the closer and warmer relationship he had with his grandmother.

[34] I formed the view that Jonathon’s impressions have also been clouded by views received from his mother over the years while his opportunities to make independent observations during his adult years were relatively few and scattered. For example, he suggested that his grandmother “hated” Felice. That may well be the view he formed as a child from observing the relationship of a couple headed for divorce a short while later. It contradicts observations of the gradual re-warming of that relationship after their separation from other sources including his mother. There are observations of objective third parties such as Ms. Kurylo that suggest a very close, affectionate relationship was re-established between the two in their last years together. I discount quite heavily the impressions formed by a child and teenager that were carried forth in the memory of the adult with only occasional opportunities to reconfirm or refresh them.

[35] Jason is approximately four years younger than Jonathon. However, Jason developed a somewhat closer relationship with his grandfather in his early adulthood (but before his grandmother returned to live there in 2002). Felice had a basement apartment in the house that he rented out to tenants to help pay the expenses. Between 1994 and 1998, Jason was that tenant and was thus in more or less daily contact with his grandfather and that contact was in his early adult years (from age 20). Jason was thus living with Felice when Felice made his will in February 1995. Jason borrowed some money from his grandfather in 2003 and stopped by to make the agreed monthly payments for about a year after that as well. He got along well with his grandfather but described their conversations as limited. Over time, his contact became less and less frequent. He was, for example, unaware that a personal caregiver, Ms. Kurylo, was coming by several times per week to help care for his grandmother after 2003.

[36] Overall, I found that Jason was also attempting to be a truthful witness but suffered from some of the same impairments that affected Jonathon’s testimony, including the influence of his mother who was estranged from Felice for substantially all of Jason’s adult life. He was rather quick, for example, to suggest that the promissory notes in the document brief purportedly signed by him in the document brief were forgeries simply because he remembered the loan they evidenced as having been made a few years earlier than the year (2003) appearing on them. Other than the date, the loan evidenced by the note in question was precisely as he described it. Nothing in particular turns on the date of that loan but I attach no weight whatever to his too-swift and almost casual assertion that the promissory notes in the document brief were forgeries. That being said, I do attach somewhat greater weight to Jason’s observations regarding his grandfather in contrast to that of his brother. In the case of both brothers, the more general the observation the more likely I found it to be susceptible to having been influenced by years of other less objective inputs. Jason’s observations, though closer in time and exposure than Jonathon’s, were also quite dated.

[37] The fact of the matter is that Jason did communicate with Felice despite his own (Jason’s) lack of fluency in Italian. Jason may have found Felice difficult to understand and quite possibly lacked the patience of maturity to make sure he was understood. However, he did communicate with Felice as did others who reported little trouble in understanding Felice or making themselves understood by him with a little patience and effort. He did not observe Rita speaking Italian but confirmed that Felice did speak Italian to her from time to time and she appeared to understand him when this happened. While he suggested that Rita may sometimes have been abrupt or cross with Felice when he saw them interacting, he did not describe anything like a relationship characterized by dominance, coercion or control during his years of living in the same house.

[38] The next family witness I must consider is the respondent Mr. Tirrell Michael Gordon, generally known within the family as “Mikey”. Tirrell is clearly close to his mother and has stayed in the family home. I must of course allow a degree of caution when approaching his evidence by reason of his loyalty to her and of course his pecuniary interest in the outcome of the case. That being said, Tirrell lived with his grandfather for most of his life, having been raised in the same house from his first days (he was born in 1991). Tirrell also provided significant one-on-one care for his grandfather for seven years prior to his death, seeing to his daytime medications and lunch, driving him to medical appointments and the like. He was in a far superior position to observe and comment on his grandfather over the relevant time frame than either of his two cousins who testified. When being cross-examined by the applicant, it was clear that there was no love lost between them. Nevertheless, I found that his answers were always careful and thoughtful. With due regard being had for his loyalty to his mother and his own pecuniary interest, I found him to be candid, careful and frank. He too has little to no spoken Italian but was able to converse with his grandfather and to listen to and understand his stories.

[39] I must also comment on the affidavit evidence of a deceased family member, the applicant’s sister Ms. Fiorella Panton. The affidavit in question was sworn on June 16, 2016 in connection with an application for the Certificate of Pending Litigation that was ultimately placed on title to the Silverstone Drive home. She passed away in 2017. She was thus not able to testify at the trial nor to be cross-examined. The respondents had grave reservations about the admissibility of this evidence but ultimately agreed that it should be admissible subject to their stated reservations as to its appropriate weight (which they submitted should be vanishingly slight).

[40] The comments directed at Ms. Harrison’s testimony are applicable with even greater force to Ms. Panton’s affidavit given the lack of opportunity to test her statements through cross-examination and the very large portions of the affidavit that are little more than hearsay. It is clear from Ms. Panton’s affidavit that she bore a level of animosity to her niece similar to that of her sister. It is also clear that she too was quite estranged from both of her parents to the same or a similar degree and for a similar length of time.

[41] Ms. Panton was on the receiving end of a law suit brought by her mother around the time of her divorce seeking to collect on a $9,100 loan. The merits of the suit are of less relevant than the fact that Francesa’s relationship with her daughter had deteriorated to the point that legal proceedings erupted. Ms. Harrison’s evidence was that Francesca was not on speaking terms with either of her daughters in the aftermath of the divorce for a period of time.

[42] Ms. Panton moved to London Ontario after her mother died and appears to have had only sporadic face-to-face contact with either of her parents in the years prior to moving. Her comments about what was going on in a house she seldom if ever visited cannot be attributed any significant weight. In particular, her description of her mother’s physical and mental state at the Silverstone Drive house is confusing as to the time frames she purports to describe and stands in direct contradiction of the balance of the evidence I do accept. I find myself discounting Ms. Panton’s affidavit evidence on this topic quite completely. The foregoing being noted, Ms. Panton’s affidavit made no significant comments regarding Felice’s capacity to speak English and in no way suggests any diminution in Felice’s mental capacity at the time of any of the interchanges with him that she described.

[43] There were three non-family witnesses about whose evidence I had no qualms whatsoever. Each was detached and objective, careful to note any limitations applying to their evidence and rarely, if ever, venturing into the realm of speculation. Dr. Carol Deitcher, Ms. Roma Mungol and Mr. Valentyna Kurylo each provided objective evidence that I accept qualified only by the limitations on their ability to make some observations that they described. In a general way, the testimony of each of these was broadly corroborative of significant aspects of Rita’s testimony.

(d) Chronology of events

[44] The following is a summary of the principal events of most relevance to this case:

a. 1967: Rita Pipito was born to Felice and Francesca’s son Giuseppe (Joe). Her parents were unable to care for her and she was placed in foster care eventually being placed in the care of her grandparents from about the age of five.

b. 1976: Francesca and Felice re-married. They purchased a house on Orpington Crescent in Rexdale as the family home leaving the downtown Little Italy neighborhood the family had grown up in.

c. April 1985: Ms. Harrison returned to Canada with her children from Bermuda. She lived for several months in the Orpington Crescent family home of Francesca and Felice with her three children.

d. 1987: Francesca separated from Felice and commenced proceedings for the couple’s second divorce. Ms. Harrison described her parents as getting along much better divorced than married.

e. January 4, 1988: Francesca had a lawyer send a demand letter to her daughter Ms. Panton regarding repayment of $9,100 remaining due on a loan from 1982.

f. August 1988: Felice transferred his joint tenancy interest in the family home on Orpington Crescent to Francesca in connection with the separation and divorce proceedings. The home was then mortgage-free.

g. October, 1988: Francesca sued her daughter Ms. Panton in District Court for $9,100.

h. December 22, 1987: The Silverstone Drive, Etobicoke property was purchased for $164,300 with a $123,000 mortgage. Ms. Harrison was the purchaser and mortgagor of record and acted as real estate agent on the transaction. She did not provide any of the funds to purchase the house or to service the mortgage although she did contribute value to the purchase in the form of her credit. She testified that the house never would have been purchased but for her assistance – I cannot say what else Felice may have done in that case, but it is clear that the house was initially placed in Ms. Harrison’s name and her credit was “on the line” for a while at least. Felice had been living with Ms. Harrison for several months before this time following his separation and (second) divorce from his wife Francesca. Felice had also loaned Ms. Harrison funds to help her purchase her townhouse. He moved into the house soon after closing and lived there continuously until his death in January 2016. The lawyer who acted for the Ms. Harrison on this purchase transaction was Mr. John Damery.

i. Early 1988 – Rita and her family moved into the Silverstone Drive home at or shortly after the purchase was completed and she has lived there continuously since that time. She paid rent to Felice while living there.

j. October 30, 1989: Francesca’s will was executed before a lawyer. The will named Rita and Rita’s father Giuseppe Pipito as sole heirs with Giuseppe’s share going to Rita should he predecease Francesca. There is no credible suggestion that Francesca was in any way incapable of making a will at this time and Ms. Harrison testified that neither she nor her now-deceased sister Ms. Panton challenged the will after their mother died in 2008. Her affidavit states that she became aware of her mother’s will in that time frame.

k. May 14, 1990: A $50,000 mortgage was placed on the Orpington Crescent home owned by Francesca. Felice had paid off the mortgage on this property prior to his divorce according to Ms. Harrison. I accept Rita’s evidence that this loan was for Ms. Harrison’s benefit, that she was responsible for servicing it as between herself and Francesca but that she paid back only a portion of this loan. I also accept Rita’s evidence that Francesca, discovering that Rita had defaulted on some payments under the mortgage, was a source of significant family discord and the mailing address for statements was changed to Ms. Harrison’s address to prevent this from recurring.

l. 1991: Felice was diagnosed with cancer. Rita escorted him to numerous medical appointments during his successful course of treatment. Ms. Harrison stated that she too accompanied her father to some of her appointments during this time frame. Rita and Ms. Harrison each minimizes the contribution of the other to Felice’s care during this difficult time. That is not a dispute that I find necessary to decide for purposes of this case. I accept that Ms. Harrison accompanied her father to at least some of his appointments.

m. March 18, 1994: Francesca executed a General Power of Attorney appointing Rita as her attorney with full authority to act during any subsequent legal incapacity on her part. The document was witnessed before the same lawyer who prepared her will. Once again, there is no credible evidence to suggest that Francesca lacked capacity to execute this document at this time. Ms. Harrison became aware of this document long before her mother passed away in 2008 and very likely at or about the time it was executed. If Francesca’s rift with her daughter had healed to the point that Francesca repented of excluding Ms. Harrison or Ms. Panton from her will by that time, she had the opportunity to revise her will then. She did not do so.

n. 1994-1997: This is the approximate time frame during which Jason Harrison rented the basement apartment in Felice’s home and lived in the home seeing his grandfather regularly.

o. February 17, 1995: Felice executed a will and a General Power of Attorney. The will and power of attorney were both prepared by Mr. Damery – the same lawyer used by Ms. Harrison on the Siverstone Drive acquisition. Mr. Damery passed away prior to trial and his file was part of the document brief. The will granted bequests of only $1 to each of Ms. Panton and Ms. Harrison and to two of Ms. Harrison’s sons, Jonathon and Jason. Rita was named executrix and sole residual beneficiary (failing her, her children were named) and was also named Felice’s attorney. I shall discuss the issue of the validity of this will further below. The power of attorney from Felice was not used in any of the principal transactions under review in this case.

p. 1998 – Francesca sent a birthday card to Ms. Harrison recalling happy times together and written in her own hand in English.

q. June 29, 2002: Giuseppe Pipito, father of Rita died of a drug overdose at the Silverstone Drive home that he was living in with his father, his daughter and her family.

r. July 22, 2002: Dr. Zorzito provided a “To Whom it May Concern” letter stating that Francesca “has an organic brain syndrome and is not capable of managing her finances or estate. This organic brain syndrome is irreversible and progressive.”

s. September 2002: Francesca moved to Felice’s house on Silverstone Drive. She shared a room with Felice who participated actively in her care along with Rita.

t. September 3, 2002: Francesca’s Orpington Crescent family home was sold for $230,000. The deed was signed for Francesca by Rita under the power of attorney that she held. The outstanding balance of the $50,000 mortgage obtained for Ms. Harrison’s benefit from 1990 ($38,642) was repaid with the sale proceeds.

u. October 28, 2002: Felice transferred a one-third interest in the Silverstone home to Francesca for $75,000 as tenant-in-common. The purchase price was sourced from proceeds of the sale of Francesca’s home on Orpington Crescent and was used to discharge the only outstanding mortgage on the Silverstone Drive home. The transfer was signed on Francesca’s behalf by Rita using the same Power of Attorney. The transaction was carried out by the Capo, Sgro law firm who have Italian speaking lawyers. Felice and Rita (on behalf of Francesca under her POA) signed a waiver of independent legal advice. Mr. Capo’s reporting letter confirmed his discussion with Felice and Rita that $75,000 represented the fair market value of a one-third interest. The applicant has not challenged this valuation.

v. 2003: Ms. Kurylo began to provide in-home care to Francesca as a personal support worker while she completed her RPN studies in school. She attended two or three times per week for two or three hours per day. She did so for approximately two years. She is not an Italian speaker and was able to provide evidence that both Francesca and Felice were able to understand her and be understood by her. Felice chatted with her and told her stores. She was also able to observe first-hand the close and affectionate bond that existed between Francesca and Felice during that era and that, while Francesca had cognitive impairment and deteriorated over the time Ms. Kurylo knew her, she was well able to express herself and say what she did or did not like for example.

w. January 13, 2003: Jason Harrison and his wife signed a $5,000 acknowledgement of debt promising to repay same monthly until March 15, 2004.

x. April 24, 2003: Francesca (acting through Rita as her POA) and Felice transferred their respective interests in the Silverstone Drive home as follows:

i. Francesca transferred her one-third interest to herself and to Rita as joint tenants; and

ii. Felice transferred his two-thirds interest to himself and to Rita as joint tenants.

The Land Transfer Tax statement indicates consideration of $2.00 and described the reason for nominal consideration as “members of the family” and “gift”. The documents were prepared by Mr. Capo’s law firm. Rita approved the transaction on Francesca’s behalf using the POA and stated that she did so on the advice of Mr. Capo who recommended and arranged the transaction.

y. September 8, 2003: Second acknowledgement of debt, this time for $5,250 from Jason Harrison. It is unclear whether this is a supplement to the January 2003 note or a fresh debt. This is not material to the case and is included only in relation to Jason’s allegation that one or the other of the notes was a forgery which I have rejected.

z. April 26, 2004: Ms. Panton and Ms. Harrison signed a letter to Rita demanding that Rita account in full for all actions taken as Power of Attorney for Francesca including in relation to Francesca’s investment in Silverstone Drive.

aa. April 2005: Francesca was admitted to long-term palliative care at Leisureworld Etobicoke. Felice signed the request for admission as her common law spouse for the three previous years. The admission form indicates multiple health issues present at the time including dementia. The admission documents also indicate that Francesca’s two daughters approved the admission.

bb. October 1, 2008: Francesca passed away.

cc. January 21, 2009: Ms. Harrison sent a letter to the Office of the Chief Coroner seeking further information concerning her brother Giuseppe’s death. The Coroner’s response dated January 27, 2009 confirms that he died of a drug overdose and enclosed the Coroner’s Report dated September 30, 2002. Other letters in this time frame indicate that Ms. Harrison was attempting (without success) to interest authorities in investigating Rita.

dd. April 28, 2010: Ms. Harrison wrote to Mr. Capo’s office a lengthy letter that was highly critical of Rita and asked for a copy of Francesca’s will that her letter indicates she was aware had been drawn up by a different lawyer (Mr. Bernstein). Mr. Capo’s office responded on May 6, 2010 that Mr. Capo had passed away and that his office has no copy of a last will of Francesca nor did his office prepare one.

ee. September 19, 2013: Ms. Mungol met with Rita and Felice to provide independent legal advice regarding a draft Deed of Transfer proposing to transfer the interest of both of them in the Silverstone Drive home to a joint tenancy comprised of Rita, Felice and Tirrell.

ff. September 20, 2013: Ms. Mungol provided an ILA Certificate to the referring solicitor Mr. Sikder regarding the proposed transfer by Felice and Rita of title in the Silverstone Drive home to Felice, Rita and Tirrell. Her reporting letter to Felice and Rita confirms that she reviewed the draft Deed of Transfer with them and that “you both confirmed to me that you fully understood the nature and effect of the said document and acknowledged that you were executing the said document freely and voluntarily…without any fear, threat, influence or compulsion of, from or by any other party”.

gg. September 21, 2013: Felice and Rita signed an Acknowledgement and Direction authorizing Mr. Sikder to file a Survivorship Application acknowledging that the effect of the document had been explained to them.

hh. September 23, 2013: The Survivorship Application in respect of the death of Francesca on October 1, 2008 was registered on title. Felice was identified as a spouse of Francesca and the application was on behalf of Rita and Felice as surviving joint tenants. It does not appear that Felice was a joint tenant with Francesca as to her one-third interest at the time of her death but the matter is not material because all owners transferred their entire ownership interest to the described joint tenancy of the three owners.

ii. September 26, 2013: Mr. Sikder’s firm registered the transfer from Rita and Felice to Rita, Felice and Tirrell as joint tenants. The deed was signed by Ms. Mungol as solicitor for the transferors and Mr. Sikder as solicitor for the transferees.

jj. January 4, 2016: Felice passed away.

kk. September 28, 2017: Mr. Damery, the lawyer who prepared Felice’s will having passed away, the law firm with charge of his files forwarded to the parties copies of Mr. Damery’s file including his handwritten notes, a Power of Attorney for Personal Care, a Continuing Power of Attorney for Property, a Statement of Account and The Last Will and Testament of Felice Pepito.

Issues to be decided

[45] The procedural history of this case is somewhat convoluted. Ms. Harrison originally filed an application to be appointed administrator of Felice’s estate without a will. She withdrew that application when Rita’s lawyer filed an objection based on the existence of a will naming Rita as Executor and beneficiary. Ms. Harrison was aware of the existence of a will but had not seen a copy of it.

[46] The current application was commenced by Ms. Harrison as applicant on July 14, 2016 and was amended thereafter three times. It names Rita and Tirrell, the surviving joint tenants of the Silverstone Drive property, as respondents. As drafted, the Notice of Application seeks conclusions on matters that are plainly beyond the scope of this proceeding such as a request to have Rita incarcerated for alleged violations of s. 331 and 380 of the Criminal Code. The list of issues below reflects those issues underlying the Notice of Application for Directions that I am able to deal with in this trial, distilled from a document drafted by a self-represented litigant but read with a broad and generous approach sensitive to that origin:

a. Is the applicant Ms. Harrison entitled to have the Silverstone Drive property revert to her as the original purchaser?

b. Is the applicant entitled to any remedy in respect of the transactions involving Francesca?

c. Is Felice’s will valid?

d. Is there a basis to set aside the transfer by Felice of a joint tenancy interest to Rita and to Tirrell disclosed in the evidence?

e. Is there a basis to conclude that the joint tenancy was severed after 2013?

Analysis and discussion

(a) Is the applicant Ms. Harrison entitled to have the Silverstone Drive property revert to her as the original purchaser?

[47] There is no credible basis on which to award Ms. Harrison the resulting trust that her application claims in respect of the Silverstone Drive property. While Ms. Harrison provided value in the sense that her personal covenant was on the mortgage that financed a considerable part of the purchase price, there is simply no evidence that she paid any amount at all for the purchase of the home from her own funds. Her evidence was to the effect that her father, emerging from divorce and separation proceedings that saw him transfer his interest in a mortgage-free matrimonial home was unable to satisfy the bank’s requirements for a mortgage. Accordingly, she testified that she was put forward as the mortgagor because of her ability to qualify by reason of her ownership of her own home. She does not claim to have actually purchased the home with any of her own funds. The arrangements were made by her, but she did not contribute her own funds – certainly not at a material level. Her father supplied the balance of the funds needed and serviced the mortgage thereafter. She transferred the property to her father who assumed the mortgage just over a year later on January 4, 1989 (again using Mr. Damery as the solicitor to complete the transaction). While Ms. Harrison did assist her father in this fashion, he had provided her with assistance in purchasing her townhouse a few years earlier. There is nothing in these facts that could form the foundation of a resulting trust claim in favour of Ms. Harrison. Her transfer of the home to him in 1989 was not gratuitous – Felice assumed the debt, supplied all or substantially all of the purchase price and paid all of the running costs of the home from his own pocket.

[48] This aspect of the applicant’s claim cannot be sustained and is rejected.

(b) Is the applicant entitled to any remedy in respect of the transactions involving Francesca?

[49] I cannot find any basis to sustain Ms. Harrison’s attacks on the validity of the transactions between Rita and Francesca or between Francesca and Felice that resulted in Francesca acquiring a one-third interest in the Silverstone Drive home and in Rita becoming a joint tenant of that one-third interest.

[50] Among other things, Ms. Harrison has no standing at all to inquire into those transactions almost twenty years after the fact. There is no question that she was aware of them at or about the time they occurred. Her claim in this proceeding is in relation to Felice’s estate and not in relation to that of her mother. She is not a named executor of her mother’s will and has expressly disclaimed any intention to challenge her mother’s will. There is no proceeding pending to challenge the validity of Francesca’s will and Ms. Harrison has no entitlement to any part of Francesca’s estate under that will. The foregoing is sufficient to dispose of this unadvanced claim.

[51] While the validity of Francesca’s will is not challenged in these proceedings (or at all), there is nothing in the evidence that I accept in this case that would cast any shadow upon it. It is telling that neither Ms. Harrison nor Ms. Panton took any steps to challenge Francesca’s investment in Silverstone Drive when they learned of it (not later than their angry letter of April 26, 2004) nor to challenge the validity of her will before or after her death in 2008.

(c) Is Felice’s will valid?

[52] Felice’s will was made on February 17, 1995. As with Francesca’s will, Felice made his will with the assistance of a lawyer. There is no proceeding to probate his will per se. With nothing in the estate beyond a small amount of money and personal effects that might have necessitated probate, this is not a surprising state of affairs. However, Ms. Harrison’s application does seek a declaration invalidating Felice’s will and appointing herself as administrator of what she alleges is an intestacy. The question of the validity of his will must therefore be addressed.

(i) Is the will formally valid?

[53] No issue has been taken with the formal validity of the will. It was very clearly prepared by a solicitor and appears in all respects to satisfy the formal requirements of the Succession Law Reform Act, R.S.O. 1990, c. S.26. The signature appears on its face to have been affixed in February 1995 before Mr. Damery and another witness whose name is not entirely legible. A review of Mr. Damery’s solicitor’s file as produced confirms the general timing of the will and the instructions that are reflected in its contents. Neither witness provided an affidavit of execution at the time of execution. Mr. Damery has since died and it is not known whether the other witness is still alive – some correspondence is contained in Exhibit 1 that suggests that the witness was located and potentially willing to testify if subpoenaed. Neither party called her at all events.

[54] I am able to determine that the signature of the testator on the will appears to be consistent with the signature of Felice found on numerous other documents in evidence. The applicant has not suggested that the signature is not genuine and her testimony confirmed that she learned of the existence of the will from her father even if she did not actually see it. She cannot have learned from Felice the existence of a will if Felice himself was unaware of the nature of what he had signed.

[55] I conclude that Felice made the will that is before me on February 17, 1995.

(ii) Did Felice have testamentary capacity when he made the will?

[56] The will was made when Felice was only 72 years of age.

[57] Dr. Deitcher was Felice’s doctor throughout the relevant time frame. Her notes record office visits from Felice in the same time frame as the execution of the will including a visit less than one week after the will was executed. While she has no present recollection of that specific office visit among so many others, her notes reveal nothing of more than routine concern. In particular, her notes do not suggest any concerns arising with respect to his mental state at that time. Indeed, throughout over twenty-five years of history with Felice, Dr. Deitcher never felt the need to perform a formal capacity assessment of him and she saw him with reasonable frequency.

[58] Jason Harrison lived in the basement apartment at Silverstone Drive in 1995 and saw his grandfather frequently during the time frame when the will was executed by Felice. His testimony contains no suggestions that Felice lacked testamentary capacity in 1995 (I shall discuss the question of understanding separately below).

[59] Both respondents also lived with Felice at that time and neither of them gave evidence suggesting any lack of capacity of Felice. Rita described Felice as being sharp and alert throughout his life.

[60] Ms. Harrison described her father as illiterate in English and simple. The issue of Felice’s ability to understand the will shall be addressed below. However, I found nothing in her evidence that cast any material doubt on the question of Felice’s testamentary capacity in 1995.

[61] Ms. Mungol assessed Felice for competence more than eighteen years later in 2013. At that time (obviously more advanced in years), Felice was still well able to relate to her something of his family history and could describe his relatives. He knew his living arrangements and readily related important dates in his life. He was able to explain to her what he was proposing to do and his reasons for doing it. She concluded at the time that he had full capacity and described him in the interview as “chatty, provided all information which I asked, knew extent of property”. She testified at trial and while not able to add very much beyond what was recorded in her notes, she was quite clear and convincing. While this testimony obviously concerns a much later time period than the time when the will was executed, it is of some relevance given the fact that Ms. Mungol conducted a professional testamentary capacity in 2013 and there is nothing to suggest that Felice’s testamentary capacity had improved in the intervening years.

[62] Felice well understood the extent of his property. His only material asset was his house and Ms. Harrison testified the degree to which he could be zealous about protecting what he viewed as his. The will he drafted revealed an understanding of what he owned and the ability to comprehend and appreciate claims that he might consider as well as his considered decision in relation to those potential beneficiaries: he left only $1 to his two daughters and $1 to Ms. Harrison’s two sons. He left nothing to his son either, but indirectly provided for him by providing for his daughter. There is nothing to suggest that Felice was not of sound mind or under the influence of any kind of delusion that might influence his dispositions. All of the evidence concurs in painting the portrait of an alert and cautious man well aware of what he owned and of the state of his relationships within his family. None of the evidence detracts from this materially beyond the questions regarding his ability to understand English more generally that I shall enter into below.

[63] I find that Felice had testamentary capacity when he made the will in February1995.

(iii) Did Felice understand the contents of the will he signed sufficiently to assent to them?

[64] The answer to this question requires me to examine whether Felice, though possessing testamentary capacity when he signed the will, actually exercised that capacity when he made his will in the sense of knowing and understanding the nature and contents of the document he signed.

[65] Ms. Harrison testified that she discussed the will with Felice and that Felice told her that he had changed it later. Leaving aside the suggestion of the existence of a later will[^2], this exchange related by her corroborates that Felice well knew that he had in fact made a will. This, at the very least, is evidence that Felice understood the nature of the document he signed as being a will.

[66] I find that Felice knew that he had made a will and fully understood the dispositions that it contained. Felice had a sort of stubborn streak that emerges from the testimony of all of the witnesses who had dealings with him. While he obviously did not testify before me, the composite portrait of the man that emerges from the testimony of those who had dealings with him cannot readily be reconciled with the suggestion of a man who would sign a legal document, knowing that it was a will and yet failing to ensure that it accurately recorded what he wanted it to record.

[67] Ms. Harrison’s testimony that Felice did not understand English sufficiently to make a will is simply not borne out by the rest of the evidence that I do accept and attribute weight to:

a. He was able to be “chatty” with Ms. Mungol in English in 2013;

b. He interacted frequently (and without an “interpreter”) with Ms. Kurylo and was able to relate various stories to her in 2003 – 2005 and otherwise chat with her make himself understood;

c. He read English language newspapers at home, including the Etobicoke Guardian;

d. He was able to communicate with Dr. Deitcher who was his family doctor for more than 25 years including throughout the relevant time frame and who interacted with him both with and without Rita being present;

e. He was able to talk to and develop a relationship with his grandchildren Jason Harrison and Tirrell Gordon over a period of multiple years; and

f. While Ms. Harrison described Rita as her father’s “translator”, Rita was not able to speak Italian to him even if she was able to understand at least some of his Italian when he spoke to her.

[68] While Mr. Damery is no longer able to give evidence of his meeting with Felice when the will was drafted, it is worth noting that he acted on the original purchaser of the Silverstone Drive property and on the transfer of it from Ms. Harrison to Felice the next year. His notes of the meeting when the will was taken are not detailed, but they do reflect the simple instructions given and the will accurately reflects what his notes record. There is no reason to expect that Mr. Damery would have been unable to make himself understood when explaining the will to his client and still less to expect that Felice would have signed the document being unsure as to what it provided.

[69] I do not consider the occasional reference in some of the reports of other health care provides that are contained in Dr. Deitcher’s notes to Rita providing translation assistance to be at all inconsistent with my findings. Felice’s spoken English was certainly somewhat thickly accented and likely fairly broken and simple in structure. Any long-term resident of a multi-cultural city such as Toronto will be well-familiar with the level of fluency I am describing. It takes a willingness and patience to listen and to respond in simple but accurate language to communicate in those circumstances. That Rita occasionally helped others who had infrequent contact with Felice to communicate with him is not at all surprising and in no way detracts from my observations.

[70] I find that Felice knew and understood the nature and contents of the will when he signed it as his last will and testament. He knew what property he owned and where and how the will distributed it. He was well able to ask any questions he had and to understand the answers received. I reject Ms. Harrison’s evidence and that of Jason and Jonathan to the extent any of these suggest that he was unable to understand a document such as his will even if explained to him by someone seeking to be understood.

(iv) Is there a basis to conclude that the will was the product of undue influence?

[71] The mere fact that Rita lived with Felice does not imply that she dominated his will to the point of exerting undue influence upon him. In 1995 he was still comparatively fit. He had renovated parts of the Silverstone Drive property to enable it to be rented out. Ms. Harrison’s evidence suggests quite strongly that Felice had a stubborn independent streak, describing him as someone who would count the fruit on his tree and being upset if anyone had “touched his stuff”. There is no suggestion that Rita was immune to such outbursts when they occurred.

[72] This is not a case that turns of where the burden of proof lies. Whether a close analysis of the facts suggests that Rita bore the burden of discharging a presumption of undue influence or whether Mr. Harrison has demonstrated sufficient grounds to find that undue influence or coercion existed, I am fully satisfied on the evidence that the relationship between Rita and Felice (and between Tirrell and Felice) was not in any way characterized by dominance of Felice’s will or coercion. Felice knew full well that Rita was a principal beneficiary of his will and his decision to so provide was freely made for reasons that are easily understood.

[73] There were numerous professionals who interacted with Felice over the years, with and without Rita’s presence. None of them raised any concerns about undue influence in their dealings. Obviously some of them – Ms. Mungol and Ms. Kurylo in particular – interacted with him after 1995, the relationship with Rita that they observed in those latter years in no way suggests the a relationship where Felice’s will was in danger of being overborne.

[74] Felice had sound and understandable reasons for making the will he made in 1995. Rita had been raised in his household from her earliest years due to Giuseppe’s addiction problems. Giuseppe was struggling with drug addiction and needed a place to live more often than not in his adult years. Rita clearly got along well with Felice and had also been living with him for five years in the new house at that point. Co-ownership of the home after he was gone between Giuseppe and Rita made sense in that context. The household was described as a harmonious one when witnessed over numerous visits by Ms. Kurylo over multiple visits per month and over approximately two years – albeit several years later. His specific bequests of $1 to each of Ms. Harrison and Ms. Panton as well as to two of Ms. Harrison’s children reflects particular thought being given to their relationship with him and what an appropriate disposition of his property would be. Dispositions such as these suggest reflection and thought went into the will and they are not at all hard to understand given an understanding of the family dynamic then existing.

[75] Even Jason Harrison’s evidence of the relationship between Rita and Felice in that era does not go as far as suggesting a relationship between them where undue influence of coercion of Felice’s was present. The occasional brusque interchange between them is a long way from undue influence.

[76] Considering the evidence as a whole, I am well satisfied that Felice made the will he made of his own free will without coercion or undue influence operating to overcome his will in whole or in substantial part. While he may have preferred to avoid confrontations with Ms. Harrison for example, he was not a shrinking violet. He was possessed of a strong independent streak with a not insignificant side-order of stubbornness. Neither Rita nor anyone else was in a position to lead him anywhere he did not want to go.

[77] I conclude that Felice’s 1995 will was validly made and understood by him and in the absence of any undue influence. Such a conclusion is never the product of a single piece of evidence but is arrived at after a consideration of all of the evidence presented.

[78] For the foregoing reasons, I conclude that the 1995 will was formally valid, made by a testator with testamentary capacity who knew and understood the nature and contents of the document he was signing and was not tainted by the presence of undue influence or coercion.

(d) Is there a basis to set aside the transfer by Felice of a joint tenancy interest to Rita and to Tirrell disclosed in the evidence?

[79] In October 2002, Felice sold a one-third interest in the Silverstone Drive home to Francesca in return for $75,000 derived from the proceeds of the sale of Francesca’s home, which proceeds were used to retire the remainder of the mortgage on his home.

[80] The transaction was not in any way gratuitous or even disadvantageous to Felice. It benefitted Felice in that he was able to retire the mortgage outstanding and no longer needed to service the mortgage. He even mentioned that fact (and the year) to Ms. Mungol more than a decade later when being interviewed by her. The fair market values used were not challenged by the applicant. Felice was not only generally able to understand the nature and effect of the transaction, the lawyer selected to document the transaction and make the appropriate registrations – Mr. Capo from the Capo Sgro law firm – had the ability to give him an explanation of any necessary details in the Italian language if desired. He was not then under Rita or anyone else’s thumb – he was as sharp and capable in 2003 as he was in1995.

[81] Ms. Kurylo’s evidence concerns a time period only a short while later. However, the household she witnessed, and in particular the interplay between Felice and Rita that she saw, confirms a relationship displaying no signs of dominance or overcoming of Felice’s will by Rita.

[82] Rita’s “benefit” arising from the transaction was at all events indirect: she was then the sole beneficiary of Francesca’s will following the death of Giuseppe in June of that year and would thus foreseeably inherit Francesca’s interests at some point. Felice was clearly delighted to have Francesca back with him and to be able to care for her even if providing that care did wear him down somewhat in later years. Further, Rita was the sole beneficiary of his own estate. The indirect benefit to Rita was a by-product of this transaction and not a feature.

[83] It is not at all clear that the applicant is seeking to set aside this initial transaction. However, to the extent her application can be so construed, no basis to do so has been shown to exist. Felice could and did understand what he was doing. No basis to challenge this transaction has been made out. The suggestion that the 2002 transaction was intended to be linked to the transaction that took place in 2003 is the product of pure speculation on the applicant’s part.

[84] I shall now review the two subsequent transactions that contain elements of a gratuitous transfer to one or the other of the applicants.

[85] In April 2003, Felice conveyed to Rita a joint tenancy interest in the two-thirds interest he then had in his home.

[86] By 2013, Rita had inherited Francesca’s one-third interest in the home and was also a joint tenant in respect of the other two-thirds interest with Felice by reason of the 2003 transaction. Rita and Felice as owners of the Silverstone Drive home conveyed title to a joint tenancy consisting of Tirrell, Felice and Rita (as to one-third each). In the result, Rita’s interest was diluted somewhat, falling from a two-thirds interest in the aggregate to one-third after the transaction was completed and only 50% today.

[87] The 2003 transaction thus resulted in an inter vivos gift from Felice to Rita and the 2013 transaction resulted in an inter vivos gift from both Felice and Rita to Tirrell who is Rita’s son. Both of the transactions were gratuitous and thus give rise to a requirement to demonstrate the capacity and intent of the donor to make a gift.

[88] Ms. Harrison attacks both of these transactions as being the product of undue influence by Rita and as having been entered into by an uncomprehending grantor, Felice.

[89] Did Felice have capacity and, if so, did he understand the nature and effect of the conveyances he participated in in 2002, 2003 and 2013 and in particular the aspects of each that amounted to a gift?

[90] I find that he did. I shall not repeat my discussion above concerning Felice’s testamentary capacity and understanding of the will. The same factors cited in respect of the 1995 will also apply to support a finding that Felice had the mental capacity to enter into those two transactions at the relevant times and that he was able to understand the nature and effect of the documents he was signing in the circumstances in which he signed them. I would add the following additional factors in support of this conclusion:

a. Ms. Mungol’s capacity assessment was specifically directed to the 2013 transaction and I fully accept as accurate the conclusions she made then regarding his capacity and understanding of the 2013 transaction and the reasons he expressed for undertaking it;

b. While the lawyer who conducted the 2002 and 2003 transactions – Mr. Capo – has passed away, his firm had numerous Italian-speaking lawyers and would have been well able to explain both of those transactions to Felice in his native language had there been any need to do so;

c. Dr. Deitcher saw Felice in her office very close in time to both the 2003 and 2013 transactions. Once again, she has no independent recollection of those particular visits but repeated her general observation that she never formed the view that a capacity assessment was called for during her entire period of working with Felice;

d. Ms. Kurylo’s exposure to the family was on-going at or near the time of the 2003 transaction and her evidence broadly supports Felice’s capacity and his ability to understand the nature and effect of the documents he signed that day;

e. Tirrell’s observations from close and extended contact with Felice in the time leading up to the 2013 transaction also strongly support the conclusion that Felice came up with the idea of the transaction on his own, expressed cogent reasons for wanting to undertake the transaction and understood quite well enough what was being done and why;

f. Tirrell and Rita both provided credible evidence regarding Felice’s desire to insulate the house from the potential claims of his daughters and in particular Ms. Harrison in order to ensure that Rita (and later Rita and Tirrell) would be able to continue to live there in peace;

g. There is significant evidence that Felice intended to benefit Rita and Tirrell as the case may be:

i. Rita was providing significant help to Felice both in terms of helping him manage his own affairs and in helping him care for Francesca in 2002 and 2003 – she kept the house running in the smooth fashion described by Ms. Kurylo, helped Felice manage his medical appointments etc while both of Felice’s daughters had largely ceased to play an active or positive role in his life;

ii. Tirrell provided very significant amounts of one-on-one care and assistance to Felice for three or four years before the 2013 transaction and thereafter and Felice spontaneously expressed the strong desire to help provide for him and to protect him from possible attempts by Ms. Harrison to have him removed from the house after he was gone.

[91] Were any of these transactions the product of undue influence?

[92] Rita in fact held a Power of Attorney from Felice but this was not used on any of the three transactions in question. Felice appeared in each case before the relevant lawyer and executed the relevant documents.

[93] There is evidence that Rita generally assisted Felice with his finances and that she had access to Felice’s bank account and credit cards using the credit cards for her own expenses on at least some occasions primarily after 2003. On the other hand there is also evidence that Rita contributed to household expenses throughout her time living at Silverstone Crescent and thus indirectly helped Felice retire the mortgage. There is her uncontradicted evidence that she repaid her father for any expenses she incurred on his credit cards.

[94] Zeroing in on 2002 and 2003 and 2013, I would repeat all the comments I made regarding Felice’s capacity and understanding above. He was under frequent observation by his family doctor who raised no more concerns about his capacity in 2002, 2003 or 2013 than she did in 1995. Unsurprisingly, Dr. Deitcher had no specific recollection of his visits in 2002, 2003 or 2013 either.

[95] Jason Harrison was no longer present on a regular basis in the home in any of these latter time periods. His evidence does not confirm the existence of undue influence by Rita in the 1995 frame. While this does not in and of itself speak to 2002, 2003 or 2013, it is of some relevance absent evidence of a material change in the relationship between Rita and Felice and I find no credible evidence of this.

[96] Ms. Kurylo worked as a personal support worker from 1999 until her graduation from a three-year Registered Practical Nurse program in 2005. She was present for two or three hours per visit, two or three times per week. By coincidence, she also worked as an RPN at the long-term care home to which Francesca was admitted in 2005 and was able to see the care that Felice continued to take of Francesca even after she was admitted to the home in 2005.

[97] Ms. Kurylo’s evidence stands in stark contrast to the portrait of an oppressive, conflict-filled home dominated by Rita to which an unwilling and uncomprehending Francesca was forcibly taken that emerges from Ms. Harrison’s evidence. I reject Ms. Harrison’s description entirely.

[98] Ms. Kurylo was aware that Felice and Francesca were separated but was able to observe first-hand the loving care and attention he gave to Francesca. Francesca was described by her as being in a state of “gradual decline”. While she found Francesca to be generally unable to make competent long-term decisions, she was able to communicate and make her wishes known. Ms. Kurylo was able to communicate in English with both Francesca and Felice and was able to observe the loving relationship between them during those years. Felice spoke English well enough to tell her stories. She observed the family life, including after Rita came home from work, and noted the very close relationship that Felice had with his great-grandson Tirrell (called “Mikey” in the family). She never witnessed any conflict or fighting. In her experience, the house was always neat and well-managed as far as she could ascertain. She never saw either Ms. Harrison or Ms. Panton whether before or after Francesca’s move to the institution in 2005.

[99] I find that Ms. Kurylo’s evidence is both reliable and credible. It is to be preferred in every respect to that of Ms. Harrison in particular and is substantially corroborative of Rita’s evidence.

[100] I am satisfied on the totality of the evidence and for the reasons expressed above that Felice was able to understand what he was doing when he participated in the conveyances that resulted in Rita and then Tirrell becoming joint tenants along with him as owners of the Silverstone Drive property. He was able to understand the documents that I find were adequately explained to him by Ms. Mungol in 2013 and by Mr. Capo who had the added capacity to provide any necessary Italian language assistance in 2002 and 2003. I find that he had reasoned views as to why he wanted to benefit Rita and Tirrell with ownership of the only real asset that he owned after he was no longer able to use it and acted on those views consistently and consciously. I find that he fully understood and considered the possible claims of either or both of his daughters to some interest in that same asset and was quite determined that they should have no interest in his home and wanted to take steps to insure against that possibility.

(e) Is there a basis to conclude that the joint tenancy was severed after 2013?

[101] Ms. Harrison’s disputed the validity of the joint tenancy by which Felice held title to the Silverstone Drive property prior to his death. Given my findings in relation to the will, her objections would appear to be academic in that she would not be entitled to any interest in the house directly or indirectly.

[102] The 2002 transaction did not create a joint tenancy. Ms. Harrison’s objections that the resulting interests of Felice and Francesca were uneven are beside the point. The interest created was expressly a tenancy in common with one-third owned by Francesca and two-thirds owned by Felice.

[103] The 2003 transaction created two separate joint tenancies. The first was between Felice and Rita as to the two-thirds tenant-in-common interest held by Felice immediately before the completion of that transaction and the second was between Francesca and Rita as to the one-third tenant-in-common interest owned by Francesca immediately prior. Thus the transferors were Felice and Francesca and the transferees listed on the deed were Felice and Rita in the one case and Francesca and Rita in the other.

[104] The 2013 transactions took place in two stages. By the first stage, the Survivorship Application, Rita was recognized as the full owner of Francesca’s former one-third interest by right of survivorship. The registration of the Survivorship Application did no more than to confirm the effect of what had already occurred on Francesca’s death in 2008.

[105] The second stage transaction was the registration of a deed of transfer from the two owners (Felice and Rita) as transferors to a joint tenancy consisting of Felice, Rita and Tirrell as transferees. The transfer deed does not list consideration paid by any party beyond a reference to the land transfer tax and registration fee (no land transfer tax was paid). Ms. Mungol who signed the form on behalf of Felice and Rita as their solicitor was clear in her evidence and from her review of her file that there was never any question that this was other than a gift to Tirrell.

[106] Exhibit 1 contains a Provincial and Municipal Land Transfer Tax Statements form. It is not at all clear that the form contained in Exhibit 1 is not a draft – there is no indication of registration on the face of the form. Exhibit 1 contained other draft documents including a draft of the Survivorship Application in addition to the registered document. The Land Transfer Tax Statements appear to indicate that $50,000 in consideration was “paid or to be paid” (emphasis added) for the transaction and contains other statements regarding Tirrell’s eligibility for a first home purchaser exemption.

[107] Whatever lies behind the confusing Land Transfer Tax form – be it in draft or in final, registered form – does not have any impact on the question of whether the joint tenancy was validly created. The transfer to Tirrell was effective when it was made. I am satisfied that Tirrell never agreed to pay $50,000 and that Ms. Mungol, in providing independent legal advice knew and understood at all times that this was and was intended to be a gift to him. Nothing in that sequence of events could in any way operate to sever any joint tenancy affecting Felice’s ownership. Felice’s entire ownership interest in the home was subject to Rita’s right of survivorship before the transaction and his entire interest in the home was subject to Rita and Tirrell’s rights of survivorship afterwards.

[108] This claim for a declaration that the joint tenancy was severed is without merit and must be dismissed.

Disposition

[109] In the result, I find as follows:

a. The applicant has established no basis to assert a resulting trust in the Silverstone Drive home and that claim must be dismissed;

b. The applicant has no standing in this proceeding to advance claims on behalf of the estate of Francesca arising from the alleged misuse by Rita of the Power of Attorney she possessed including any claims relating to the acquisition by Francesca of a one-third interest in the Silverstone Drive home or the transfer by Francesca of a joint tenancy interest over that one-third interest to Rita or Rita’s subsequent acquisition of that interest by right of survivorship;

c. Felice’s February 17, 1995 will was formally valid, freely made by a testator with testamentary capacity who knew and understood the nature and effect of the document he was signing and was not tainted by the presence of undue influence or coercion;

d. Felice knew and understand what he was doing when he freely and willingly participated in the conveyances that resulted in Rita and then Tirrell becoming joint tenants along with him as owners of the Silverstone Drive property and intended the transactions to have the legal effect they had and to confer upon Rita and Tirrell the rights thereby transferred;

e. The claim that the joint tenancy by which the Silverstone Drive property was held was severed at any time prior to his death in 2016 is without merit; and

f. The applicant’s claim must be dismissed with costs.

___________________________ S.F. Dunphy J.

Released: December 23, 2021

[^1]: Felice had a very small ($1,714) bank balance that was transferred to the respondent Ms. Rita Pipito as Executor shortly after his death. No issue has been raised concerning the value of personal effects or furniture in the home. There are no other known assets.

[^2]: For the avoidance of doubt, there is no convincing evidence of the existence of a second or later will. I do not discount the possibility that this suggestion is simple fiction. However, a simple and plausible explanation is that Felice was seeking to avoid confrontation with his daughter in this fashion given the state of their relationship in that era and in particular Felice’s expressed fear of confrontations with her.