Andreacchi v. Andreacchi, 2023 ONSC 4877

COURT FILE NO.: CV-18-00005037-00ES

DATE: 20230831

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATES OF VINCENZO ANDREACCHI, DECEASED, AND ELISABETH ANDREACCHI, DECEASED

BETWEEN:

RAFFAELE ANDREACCHI, ROSA MARCHELLETTA, JEREMY ANDREACCHI, and VINCENT ANDREACCHI

Applicants

– and –

JOE ANDREACCHI and CONNIE FIGLIUZZI

Respondents

Bradley Phillips and James J. Dunphy, for the Applicants, Jeremy Andreacchi and Vincent Andreacchi

Raffaele Andreacchi, acting in person

Rosa Marchelletta, acting in person

Joe Andreacchi, acting in person

Connie Figliuzzi, acting in person

HEARD: March 6, 7, 8, 9, 10, 14 and 17, 2023

REASONS FOR JUDGMENT

A.A. SANFILIPPO J.

Overview

[1] Vincenzo Andreacchi and Elisabeth Andreacchi were born in Italy, married there, and had five children: in birth order, Teresa Andreacchi; Consolata (“Connie”) Figliuzzi; Raffaele (“Ralph”) Andreacchi; Rosa Marchelletta; and Fortunato Andreacchi. In 1956, they all immigrated to Canada and settled in Toronto. Vincenzo and Elisabeth would have two more children: Francesca Andreacchi and Giuseppe (“Joe”) Andreacchi. Because several of the family members share the same surname, I will refer to each of them by their first names, respectfully.

[2] Elisabeth[^1] and Vincenzo purchased several commercial and residential properties. They established a retail hardware business with their eldest daughter, Teresa, and her husband, Gaspare Galati and, along the way, raised their seven children. In January 1986, Vincenzo, then 72 years old, and Elisabeth, then 64 years old, severed their business relationship with Teresa and Gaspare, and transferred property to Teresa. Teresa did not participate in these proceedings.

[3] Elisabeth and Vincenzo experienced tragedy. On September 18, 1987, their beloved son, Fortunato, died suddenly of a heart attack, leaving his wife, Olivia Bella, and their two young sons, the Applicants: Vincent Andreacchi and Jeremy Andreacchi. There was no dispute that Elisabeth and Vincenzo grieved mightily for their lost son, and for their grandsons’ loss of a father. In addition, Elisabeth and Vincenzo’s youngest daughter, Francesca, suffered from debilitating mental illness, requiring family care and support.

[4] Vincenzo died on January 9, 1998, after an illness. Vincenzo did not leave a will, and his estate was not probated. Two days before he died, Elisabeth and Vincenzo transferred title to a property known municipally as 675 College Street, Toronto[^2] (the “675 College Property”) to four of their adult children, Connie, Ralph, Rosa, and Joe, in equal shares, for no monetary consideration. Two of the four owners, Joe and Connie, claim that they received their interest in the 675 College Property from their parents as a gift, free of any obligation in favour of any other sibling, and without any obligation to Fortunato’s children. The other two registered owners, Ralph and Rosa, testified that they received title in trust for the beneficial interest of all children except Teresa, to share equally. Regarding Fortunato’s share, Ralph and Rosa say that their deceased brother’s share was to be held in trust for his children, Vincent and Jeremy.

[5] At the time of Vincenzo’s death, the family resided in a house at 626 Shaw Street, Toronto[^3] (the “Shaw Street Property”). Upon Vincenzo’s death, the Shaw Street Property passed by right of survivorship to Elisabeth, who lived there together with Francesca and, at times, Rosa and Joe, and Joe’s spouse, Deborah Andreacchi. Almost two years after Vincenzo’s passing, on November 8, 1999, Elisabeth transferred title to the Shaw Street Property to Ralph, Connie and Joe, for no monetary consideration.

[6] The registered owners of the Shaw Street Property dispute the nature of their ownership in the same way that they dispute the nature of their registered ownership in the 675 College Property. Joe and Connie contend that they received registered title in the Shaw Street Property from their mother as a gift, free of any obligation in favour of any other sibling or Fortunato’s children. Ralph claims that he received title to the Shaw Street Property from his mother in trust to be shared equally with all children except Teresa. He says that Elisabeth did not include Rosa as a joint owner only because she was mired in matrimonial litigation at that time, and that Elisabeth did not include Vincent and Jeremy because they were minors.

[7] By the time of trial, the 675 College Property had long-been sold and the proceeds distributed, in a manner that, according to Ralph, Rosa and Jeremy, shows that all siblings understood, and demonstrated by conduct, that the registered ownership of the 675 College Property was held in the beneficial interest of all siblings except Teresa.

[8] Elisabeth died on May 12, 2008. No will was identified, and her estate was not probated. Although Elisabeth conveyed title to the Shaw Street Property in 1999, she lived there as her home until her death, as did Francesca until her death on January 13, 2015. Upon Francesca’s death, Rosa, Jeremy and Vincent, supported by Ralph, sought to take steps to sell the Shaw Street Property and share in its equity, as they had done before with the 675 College Property. Joe and Connie claimed the Shaw Street Property as a gift and disclaimed any beneficial interest on the part of Rosa, Jeremy and Vincent.

[9] The foundational question that split the Andreacchi family and spawned years of conflict is whether Elisabeth conveyed the Shaw Street Property to Ralph, Joe and Connie as a gift, free of any obligation to any other family member, as contended by Joe and Connie; or whether Elisabeth conveyed the Shaw Street Property to Ralph, Joe and Connie to be held in trust for the benefit of all children except Teresa, as contended by the Applicants.

[10] On the basis of the reasons that follow, I find that Joe and Connie failed to establish that Elisabeth intended to convey the Shaw Street Property to them as a gift. I also find that the Applicants failed to establish that Elisabeth settled a valid inter vivos trust at the time of the conveyance of the Shaw Street Property. I find, on the basis of the principles set out by the Supreme Court in Pecore v. Pecore, that the registered owners of the Shaw Street Property hold legal title to the Shaw Street Property in resulting trust for Elisabeth’s estate.[^4]

I. FACTUAL BACKGROUND

[11] The family history in terms of properties purchased and shared life experience was largely uncontested. I will set this out first for context and will return later to the parties’ conflicting evidence regarding Elisabeth’s intentions at the time of the conveyance of the Shaw Street Property.

A. The Family in the Early Days

[12] Vincenzo and Elisabeth were born in Italy in 1914 and 1922, respectively. By 1956, they immigrated to Canada with Teresa, Connie, Ralph, Rosa and Fortunato, and settled in Toronto. In short order, Vincenzo and Elisabeth bought houses on Manning Avenue, and then a duplex on Riding Avenue. They had two more children, Francesca and Joe, and over time bought and sold other properties. In or about the early 1960’s, Vincenzo and Elisabeth purchased two adjacent properties at 673 College Street, Toronto (the “673 College Property”) and 675 College Street, Toronto (the “675 College Property”) (collectively, the “College Properties”). Elisabeth and Vincenzo took title to the College Properties together with Teresa.

[13] The College Properties are classic, old Toronto three-storey brick buildings with a storefront at street level and a residential living space on the upper levels. Together with Teresa and Gaspare, Vincenzo removed the dividing wall between the main floor of the College Properties, creating one large retail space that would become the family’s hardware store: Universal Hardware. Vincenzo operated Universal Hardware, together with Teresa and Gaspare. Vincenzo, Elisabeth, and the rest of the family lived above the 675 College Property while Teresa and Gaspare moved into the apartment in the 673 College Property.

[14] By 1986, Vincenzo and Elisabeth severed their business relationship with Teresa and Gaspare. The dividing wall was re-built between the main floors of the 673 College Property and the 675 College Property. The two properties were severed. On March 14, 1986, Elisabeth and Vincenzo conveyed the 673 College Property to Teresa for $2.00 and “natural love and affection”, and Elisabeth and Vincenzo continued as joint owners of the 675 College Property.

[15] Joe would be left with the belief that Teresa had taken advantage of Vincenzo and had “taken the inheritance” of the other children. Ralph deposed that there was resentment amongst the siblings that Teresa had received “more than her fair share” from the parents. Ralph, Rosa, Connie and Joe testified that Vincenzo declared that Teresa would have no further inheritance from her parents.

[16] On February 26, 1987, Elisabeth and Vincenzo bought the Shaw Street Property and took title as joint tenants.[^5] By that time, Ralph, Connie, Rosa and Fortunato had all married and moved to live with their own families. Vincenzo and Elisabeth would move into the Shaw Street Property as the new family home, together with Francesca, and Joe and Deborah. Francesca had always lived with her parents and would do so until her death. Rosa would return, from mid-1997 to 2000, when separated from her husband. Joe and Deborah moved out of the Shaw Street Property in the late 1980’s or early 1990’s, but then returned to live in the Shaw Street Property where they remain today.

B. Fortunato’s Death

[17] On September 18, 1987, Fortunato died suddenly. All the family members who testified at trial spoke glowingly of Fortunato. Vincenzo and Elisabeth were proud of Fortunato’s accomplishments and his generous and kind nature. He was a university graduate, married with Olivia, whose first son, Vincent - named after Vincenzo - was 4 at the time of his father’s death, while Jeremy was 2 years old. Vincenzo and Elisabeth would grieve Fortunato’s untimely passing for the rest of their lives.

[18] Ralph testified that Vincenzo and Elisabeth stated that the family had to do what they could to assist Fortunato’s young children. I did not see any disagreement on this point. The pivotal disagreement is that Joe and Connie argue that neither Elisabeth nor Vincenzo intended or directed that Fortunato’s share in any family inheritance be passed to Fortunato’s children.

C. Transfers of Property Upon Vincenzo’s Death in 1998

[19] On January 9, 1998, Vincenzo died after a battle with cancer, without a will. There was no probate of Vincenzo’s estate. Upon Vincenzo’s death, the Shaw Street Property passed to Elisabeth by operation of the right of survivorship in their joint tenancy.

[20] Two days before his death, Vincenzo and Elisabeth transferred title to the 675 College Property to four of their adult children: Connie, Ralph, Rosa and Joe. The Transfer Deed states that the consideration for the transfer was “NIL – natural love and affection” and that each of the four registered owners took “an undivided 25% interest” (the “College Transfer Deed”).[^6] Ralph and Joe carried on the hardware business until the 675 College Property could be sold. This did not take long.

[21] On May 7, 1998, Connie, Ralph, Rosa and Joe entered into an Agreement of Purchase and Sale to sell the 675 College Property to Teresa Pires for the sale price of $590,000.00. Ms. Pires agreed to pay, on closing, the amount of $200,000.00 and to provide a vendor take back mortgage in the principal amount of $390,000.00, which was registered against title upon the closing on August 14, 1998 (the “Pires Mortgage”).

[22] The four registered owners of the 675 College Property took equal shares of $50.000.00 from the $200,000.00 paid by Ms. Pires on closing. At that time, Vincent and Jeremy were about 13 and 15 years old, respectively. Ralph testified that he, Rosa, Joe and Connie opened a joint bank account to receive the mortgage payments made under the Pires Mortgage and to hold for Vincent and Jeremy the share of the 675 College Property that would have gone to Fortunato.

D. The Joint Bank Account

[23] Joe, Ralph, Rosa and Connie together opened a Scotiabank bank account (the “Joint Account”). Ralph testified, supported by Rosa, that this Joint Account was referred to, for many years, as the “Kid’s Account”, as it was understood between them and Joe and Connie, that Fortunato’s share of the proceeds from the 675 College Property would be held in this account for the benefit of Vincent and Jeremy until they became adults.

[24] Joe and Connie admit the establishment and the use of the Joint Account. Indeed, Joe had a key role in its management. Joe and Connie denied that the Joint Account served the purpose of preserving funds for Vincent and Jeremy, or that Vincent and Jeremy had any interest in it.

E. The 1999 Transfer of the Shaw Street Property

[25] On November 8, 1999, Elisabeth transferred the Shaw Street Property to three of her adult children: Ralph, Connie and Joe. The Transfer Deed states that the consideration for the transfer was “NIL – natural love and affection” (the “Shaw Transfer Deed”).[^7]

[26] Ralph, Connie and Joe signed a letter addressed to Francesca, dated October 27, 1999, which states as follows (the “October 1999 Letter”):

We, the registered owners of [626 Shaw Street], have recently received a transfer from Elisabetta Andreacchi.

It is our mutual intention that you shall be entitled to live in the premises at 626 Shaw Street, Toronto, as long as you are able to.

It is our further intention that we shall take no steps to either sell our individual shares in this property or the property itself until such time as you no longer are able to live in the subject property.

[27] All parties agreed that, like the conveyance of the 675 College Property, Francesca did not receive a registered interest in title to the property because her mental illness rendered her incapable of managing property. The October 1999 Letter made clear that Francesca would have the use of the Shaw Street Property until she was no longer able to live there. Although unwritten, the parties did not contest that their registered legal ownership of the Shaw Street Property was subject to Elisabeth living in the Shaw Street Property for as long as she was able. Accordingly, I saw no dispute that the registered ownership by Ralph, Joe and Connie of the Shaw Street Property was subject to its lifelong use by Francesca and Elisabeth.

[28] In addition to holding the Shaw Street Property for the lifelong use by Elisabeth and Francesca, Ralph testified that Elisabeth directed that the registered owners also hold the Shaw Street Property in trust for the beneficial interest of Rosa, and of Fortunato’s children. Ralph testified that Elisabeth did not include Rosa as a registered owner in the conveyance of the Shaw Street Property because she was mired in a divorce proceeding, and that Elisabeth did not transfer title to the property to Vincent and Jeremy because they were minors. Joe and Connie disagreed. They contended that Elisabeth intended that they, together with Ralph, receive the Shaw Street Property as a gift free of any obligation to any other family member.

[29] Elisabeth continued to live in the Shaw Street Property from its transfer in 1999 until her death on May 12, 2008.

F. The Transfer of Funds to Vincent and Jeremy

[30] On October 20, 2009, Joe wrote a cheque drawn on the Joint Account, payable to Jeremy and Vincent Andreacchi in the amount of $216,330.83 (the “October 2009 Cheque”).[^8] There was no dispute that Ralph handed the October 2009 Cheque to Vincent and Jeremy, along with a document titled “Agreement”, prepared by Ralph and signed by Vincent, Jeremy and Olivia (the “October 2009 Agreement”). This document stated that the funds constituted “an inheritance from their grandparents Vincenzo and Elisabeth Andreacchi”. Vincent and Jeremy received the cheque and deposited the funds into their own bank account.

[31] As the October 2009 Cheque was drawn on the Joint Account, they constituted funds held jointly by Ralph, Connie, Rosa and Joe. Ralph and Rosa say that the October 2009 Cheque represented Fortunato’s share of the 675 College Property, as increased by the interest earned since the sale of the property over ten years earlier in August 1998. Joe and Connie testified that the October 2009 Cheque constituted a loan advanced by Joe and Connie to Vincent and Jeremy. Joe and Connie disclaimed any knowledge of the October 2009 Agreement.

G. The Emergence of the Dispute

[32] Francesca continued to live in the Shaw Street Property from its transfer in 1999 until her death on January 13, 2015. As all parties had agreed that the Shaw Street Property would be held for Francesca and Elisabeth to live in during their lifetimes, and as they had now both died, Ralph, Connie and Joe engaged in discussions to address the sale of the Shaw Street Property. Joe and Deborah wanted to continue to live in the Shaw Street Property, and sought to purchase Ralph’s interest, without success.

[33] Ralph, Rosa and Jeremy testified that they understood that the value of the Shaw Street Property would be divided in equal one-fifth shares, with Jeremy and Vincent receiving the one-fifth share that would otherwise have gone to Fortunato. Indeed, Jeremy testified that after Francesca’s death, Connie offered to purchase his interest in the Shaw Street Property. By January 1, 2017, the parties’ dispute over the Shaw Street Property had become hostile and would worsen over time. The Applicants initiated this Application on February 21, 2018.

II. THE ISSUES

[34] By Order of Justice Penny issued September 25, 2018 (the “2018 Order”),[^9] this Application was ordered to proceed to adjudication by way of a trial before a judge, with viva voce evidence. The Application Records were filed in the Amended Supplementary Trial Record, containing the affidavit evidence tendered by the parties.[^10] Each of the affiants testified at trial viva voce except for Connie and Deborah.

[35] The issues to be tried in this Application were pleaded in the Notice of Application,[^11] and were set out in the 2018 Order and in the Trial Management Report prepared on December 16, 2021 (the “Trial Management Report”).[^12] The issues requiring determination at this trial were as follows:

1. Are the Applicants’ claims statute barred by expiry of the applicable limitation period?

2. Is registered title to the Shaw Street Property held subject to a trust?

3. Is Ralph, either alone or together with Rosa, Vincent and Jeremy, entitled to an Order that the Shaw Street Property be sold, in accordance with the Partition Act, R.S.O. 1990, c. P.4 (the “Partition Act”)?

4. Have the Applicants established the basis for an Order that Joe initiate an Application to pass accounts for Vincenzo’s estate and/or Elisabeth’s estate?

[36] The Respondents listed, as a further issue, that a Judge sitting in the Toronto Region’s Estates List does not have jurisdiction to grant an order for partition and sale of property. The Respondents did not make any substantive submissions on this issue and cited no law. There is no basis for this position. This issue is dismissed.

III. ARE THE APPLICANTS’ CLAIMS STATUTE BARRED?

[37] The Respondents contended that all the relief sought by the Applicants is statute barred because this Application was brought beyond the two-year limitation period prescribed by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Limitations Act”). To the extent that this submission pertains to the Applicants’ claim under the Partition Act, and for an Order that Joe pass accounts, it is dismissed. These are not “claims” for the purpose of the two-year limitation in the Limitations Act.[^13]

[38] The Respondents’ defence that the Applicants’ claim in trust is statute barred is based on the passage of almost 19 years between Elisabeth’s conveyance of the Shaw Street Property on November 8, 1999, and the initiation of this Application on February 21, 2018. Alternative to their submission that this Application is in contravention of the two-year limitation period set out by the Limitations Act, the Respondents submitted that this Application is statute barred as contravening the ten-year limitation period provided by the Real Property Limitations Act, R.S.O. 1990, c. L.15 (the “RPLA”).

[39] I find that the Respondents failed to establish a limitation defence. I will explain why.

[40] The Applicants’ claim that the Shaw Street Property is held in trust is based on two grounds.[^14] The Applicants contend that Elisabeth established an inter vivos oral trust that directs that the Shaw Street Property be held for the beneficial interest of Rosa, Jeremy and Vincent in addition to its registered owners. The Applicants contend, further, that because Elisabeth did not gift the Shaw Street Property to Ralph, Joe and Connie, it is held by these legal owners in resulting trust. These claims in trust seek an interest in land, specifically, a share of the Shaw Street Property.

[41] Section 4 of the RPLA imposes a ten-year limitation period on actions to recover land, which, as applicable to this case, provides as follows:

No person shall … bring an action to recover any land … but within ten years next after the time at which the right to … bring such action, first accrued to … the person making or bringing it …

[42] In Waterstone Properties Corporation v. Caledon (Town), at para. 32, the Court of Appeal explained, relying on its findings in McConnell v. Huxtable, that an action to obtain an ownership interest in land is an action to “recover any land” for the purposes of s. 4 of the RPLA, including through a resulting trust, stating as follows:

The words “action to recover any land” in s. 4 of the RPLA are not limited to claims for possession of land or to regain something a plaintiff has lost. Rather, “to recover any land” means simply “to obtain any land by judgment of the Court” and thus these words also encompass claims for a declaration in respect of land and claims to the ownership of land advanced by way of resulting or constructive trust.[^15]

[43] The RPLA is thereby applicable to the claim advanced by the Applicants for the recovery of land, whether seeking the finding of an inter vivos trust or a resulting trust. The Limitations Act is inapplicable because s. 2(1)(a) of the Limitations Act provides that the Limitations Act does not apply to proceedings governed by the RPLA.

[44] The Respondents’ contention that the ten-year limitation period set out in the RPLA expired before the initiation of this Application on February 21, 2018, is based entirely on Elisabeth’s conveyance of the Shaw Street Property having taken place more than ten years before: indeed, almost 19 years before on November 8, 1999. I do not accept this submission for reasons that I will now explain.

[45] Section 42 of the RPLA provides that where land is vested in a trustee upon an express trust, the right of a beneficiary to bring an action against the trustee “shall be deemed to have first accrued, according to the meaning of this Act, at and not before the time at which the land … has been conveyed to a purchase for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through such purchaser.” Ralph, Joe and Connie have not conveyed the Shaw Street Property. Accordingly, the claim for an express trust, being the claim for an inter vivos trust, is not statute barred.

[46] This analysis applies equally to the limitation defence regarding the claim for a resulting trust. In McConnell, at para. 28, the Court of Appeal declined to interpret the term “express trust” narrowly and distinct from other types of trusts and held that since s. 4 of the RPLA was broad enough to apply to other forms of trusts, including constructive trusts, s. 42 must be interpreted similarly. As the Court of Appeal held in Waterstone that s. 4 of the RPLA was applicable to claims in resulting trust then, similarly, s. 42 of the RPLA is applicable to a claim in resulting trust.

[47] Even if s. 42 of the RPLA were inapplicable to the claim in resulting trust, the right to bring this claim to recover land did not “first accrue”, under s. 4 of the RPLA, until Elisabeth’s death on May 12, 2008. This is the date on which the Shaw Street Property would, on the Applicants’ pleading, result back to Elisabeth’s estate. This Application was brought on February 21, 2018, which is within ten years of May 12, 2008.

[48] Last, even if s. 42 of the RPLA were inapplicable to either trust claim, and even if the Applicants’ claims accrued upon conveyance of the Shaw Street Property by Elisabeth in 1999, the beneficiaries of a trust involving real property cannot be expected to bring a claim to “recover the land” until they discover, or reasonably ought to have discovered that they had a claim to advance.[^16] In my view, the earliest discoverability was upon Elisabeth’s death on May 12, 2008. As explained, this Application was brought within ten years of this occurrence.

[49] This finding renders unnecessary my determination of the other two discovery dates urged by the Applicants, but I will explain them for completeness of analysis.

[50] First, the Applicants knew that the Shaw Street Property was being held by the registered owners for the benefit of Francesca and Elisabeth to use for as long as Francesca and Elisabeth were alive. If it had been necessary, I would have determined whether the Applicants did not discover, and could reasonably not have discovered, the need to advance a legal proceeding for recovery of their interest in the Shaw Street Property until after Francesca’s death on January 13, 2015.

[51] Second, for reasons that I will explain in my credibility determinations, below, I accept Jeremy’s evidence that the first time that he learned that Joe and Connie denied that he and Vincent had a beneficial interest in the Shaw Street Property was when Joe and Connie tendered this evidence in their Responding Application Record filed in this proceeding on May 26, 2018. Had it been necessary, I would have applied this evidence as part of my determination of discoverability in the period after Elisabeth’s death.

[52] For these reasons, I conclude that this Application is not statute barred.

IV. IS REGISTERED TITLE TO THE SHAW STREET PROPERTY HELD SUBJECT TO A TRUST?

[53] The three registered owners of the Shaw Street Property are sharply divided on how they hold title. Joe and Connie contend that they, together with their co-owner, Ralph, received legal title as a gift from Elisabeth, free from any obligation to any other party.

[54] Ralph disagrees. Ralph contends that Elisabeth conveyed legal title to him, Joe and Connie subject to an undocumented, oral trust that was established by Elisabeth immediately at the time of the conveyance of the Shaw Street Property in November 1999. Ralph, supported by the Applicants, states that he and his co-owners are required to hold title to the Shaw Street Property in trust for the lifelong use by Francesca, and then to be shared in equal one-fifth shares by its three registered owners, Ralph, Joe and Connie (each as to a one-fifth share), with Rosa (as to a one-fifth share) and Vincent and Jeremy (as to a one-fifth share, combined), but to the exclusion of Teresa. I will refer to this as the “Alleged Oral Trust”.

[55] In the absence of establishing the Alleged Oral Trust, the Applicants claim that Ralph, Joe and Connie hold legal title to the Shaw Street Property in resulting trust. Although the Applicants submitted that a determination could be made that the registered owners hold title to the Shaw Street Property in resulting trust subject to the terms of the Alleged Oral Trust, this submission was flawed, at law. If the Applicants fail to establish that the owners of the Shaw Street Property hold title subject to a valid inter vivos trust but establish that title is held subject to a resulting trust, the Shaw Street Property resulted back to Elisabeth’s estate upon her death.

[56] I will deal first with Applicants’ claim that the registered owners of the Shaw Street Property hold title subject to an oral inter vivos trust and will then turn to their claim that the Shaw Street Property is held in resulting trust.

A. The Claim for an Oral Inter Vivos Trust

[57] The Applicants framed their case for the establishment of an oral inter vivos trust principally on the Court of Appeal’s decisions in Sawdon Estate[^17] and Mroz v. Mroz.[^18]

[58] In Sawdon, a father transferred his bank accounts, which had a right of survivorship, into joint ownership with two of his five adult children. The Court accepted that the father had instructed the two children on title that upon his death, he wished the money in the joint bank accounts to be shared equally amongst all five children. The Court found that the two children on title assured their father that they would carry out this request. The Court held that the father’s actual intention in making these two children account holders was to impose on them an immediate trust obligation to hold the amounts in the joint accounts on his death for the benefit of all five children in equal shares. The Court found that the father had created an oral, inter vivos trust, that would be executed, or acted upon, on the father’s death. The Court of Appeal explained this as follows:

When Arthur transferred the bank accounts into joint names with Wayne and Stephen, he created a trust. Legal title to the bank accounts vested in Arthur, Wayne and Stephen jointly, immediately upon transfer into their joint names. Based on the trial judge’s unassailable findings of fact, when Arthur, Wayne and Stephen became the legal owners of the bank accounts, they did so on the understanding that on Arthur’s death, they were to distribute the contents of the bank accounts to the children in equal shares. In legal terms, when the bank accounts were opened, Arthur made an immediate inter vivos gift of the beneficial right of survivorship to the children. Thus, from the time that the bank accounts were opened, those holding the legal title to the bank accounts held the beneficial right of survivorship in trust for the children in equal shares.[^19]

[59] The Court of Appeal explained that the trial judge had erred in finding that all children were entitled to share in the bank accounts on alternate grounds of gift or trust, as follows:

…one cannot find that a gift of the beneficial right of survivorship has been made and, at the same time, find that the recipient holds it in trust for others. Where the legal title holder of property is obliged to hold the property for the benefit of another, a trust has been created … and [the] gift analysis … was no longer available.[^20]

[60] Therefore, in Sawdon, the two children jointly on title to the bank account were found to hold the joint bank account subject to an oral trust in favour of all five children in equal shares to be executed upon the father’s death. The Applicants argued for a similar result in this case. Specifically, that upon Elisabeth’s conveyance of the Shaw Street Property to Ralph, Joe and Connie on November 8, 1999, Elisabeth settled an immediate, inter vivos oral trust in the terms of the Alleged Oral Trust. To establish the constituent elements of a trust, the Applicants relied on the discussion of trusts contained in Sawdon and on the principles stated in Elliott (Litigation guardian of) v. Elliott Estate.[^21] In Elliott, Justice Lauwers, as he then was, explained that “[a]s a matter of law, the creation of a valid express trust requires the following:

1. the person creating the trust (the settlor) and the trustee must have capacity.

2. the three certainties must be met:

a. certainty of intention to create a trust;

b. certainty of subject matter; and

c. certainty of objects;

3. the trust must be constituted, that is, the trust property must be transferred to the trustee; and

4. any necessary formal requirements must be met.”[^22]

[61] In Elliott, the Court analysed whether the deceased parents intended to create an inter vivos trust in respect of monies held in the form of guaranteed investment certificates, referred to as the “GIC Fund”. The alleged trust was not in writing, but rather was alleged to have been established orally. Justice Lauwers found that the elements of the oral trust were established in that the settlor and the trustee had capacity, the three certainties were proven, and the trust property was transferred to the trustee. Regarding the formalities of the trust, the Court held that the formal requirements of an oral trust were met because the trust “does not deal with land or an interest in land” and thereby did not have to be in writing:

Finally, the formality requirements of an express trust must also be met. These depend on the type of trust that is alleged to be created. An inter vivos trust that does not deal with land or an interest in land has no formality requirements and it may be made orally or in writing. See Statute of Frauds, R.S.O. 1990, c. S.19, ss. 4, 9-11; Oosterhoff, supra, at 244-53.[^23] (emphasis added)

[62] This finding by Justice Lauwers in Elliott was applied by the Court of Appeal in Rubner v. Bistricer.[^24] There, the Court of Appeal affirmed the four requirements for establishing a valid express trust.[^25] In regard to their analysis of the fourth requirement, formalities, the Court of Appeal held that there were no formal requirements because the alleged trust was not over land or an interest in land:

Additionally, because the alleged trust is over two bank accounts and not over land or an interest in land, there are no formal requirements that the trust be evidenced in writing: Statute of Frauds, R.S.O. 1990, c. S.19, ss. 4, 9-11; see also In the Estate of Jean Elliott (2008), 2008 ONSC 63993, 45 E.T.R. (3d) 84 (Ont. S.C.), at para. 42. There is therefore no issue as to formalities.[^26] (emphasis added)

[63] This is where the Applicants’ assertion of an oral inter vivos trust in this case falters, at law. The Applicants contend that Elisabeth established, orally, at the time of conveyance of the Shaw Street Property, an immediate, undocumented trust affecting “land or an interest in land”. This express trust cannot be established orally because it does not comply with the formal requirements set out by the Statute of Frauds.[^27] Paragraphs 9 and 10 of the Statute of Frauds provide as follows:

9. Subject to section 10, all declarations or creations of trusts or confidences of any lands, tenements or hereditaments shall be manifested and proved by a writing signed by the party who is by law enabled to declare such trust, or by his or her last will in writing, or else they are void and of no effect.

10. Where a conveyance is made of lands or tenements by which a trust or confidence arises or results by implication or construction of law, or is transferred or extinguished by act or operation of law, then and in every such case the trust or confidence is of the like force and effect as it would have been if this Act had not been passed.

[64] Paragraph 9 of the Statute of Frauds requires that the express trust urged by the Applicants must be in writing, failing which it is void and of no effect. The oral inter vivos trust sought by the Applicants cannot be established, at law, due to lack of compliance with the formal requirement set out in paragraph 9 of the Statute of Frauds. I pause to comment that the resulting trust sought by the Applicants arises by “implication or construction of law, or is transferred or extinguished by act or operation of law” and does not have to be in writing, in accordance with paragraph 10 of the Statute of Frauds.

[65] The Applicants’ reliance on Sawdon to establish an inter vivos trust affecting the Shaw Street Property was misplaced because Sawdon found an inter vivos oral trust affecting joint bank accounts: not over land or an interest in land. The express trust in Sawdon met formal requirements. The oral inter vivos trust sought by the Applicants does not.

[66] The Applicants’ reliance on Mroz was similarly flawed. In Mroz, an aging mother transferred title of the family home to herself and her daughter as joint tenants. This was her only significant asset. At about the same time, the mother executed a will in which she made bequests to several family members. The question was whether the family home passed to the daughter by right of survivorship, or became part of the mother’s estate to be distributed as part of her will (which was found to be valid), or whether the daughter took title to the family home as a trustee with an obligation to distribute the family home in accordance with the wishes that the mother had expressed during her lifetime.[^28] The trial judge concluded that the mother’s will made the daughter a joint tenant of the family home on the condition that she pay each grandchild the bequest set out in the will, thereby creating a trust obligation that the daughter had breached. This is the outcome sought by the Applicants in this case: that on conveyance of the Shaw Street Property, Elisabeth created an express oral trust in favour of all her children except Teresa.

[67] In Mroz, The Court of Appeal found that the trial judge erred in principle. Having found that the mother intended that her conveyance of the family home was to be used by her estate to satisfy her wishes, the daughter could not have received title to the family home as a gift. Rather, the Court of Appeal held that the daughter received the family home in resulting trust, to be returned to the mother’s estate upon her death to fund the bequests that the mother had set out in her will.

[68] While Mroz assists my analysis in resulting trust, Mroz does not support the Applicants’ claim for an oral inter vivos trust. Mroz shows that when a resulting trust is established, the asset subject to the resulting trust results back to (jumps back to) the deceased’s estate. In Mroz, when the family home was returned to the estate, it was then distributed in accordance with the mother’s will, not an oral trust. Here, in the absence of a will, the Applicants’ urge that if the Shaw Street Property results back to Elisabeth’s estate in resulting trust, it should then be distributed in accordance with the Alleged Oral Trust.[^29] Since the Applicants cannot establish a valid inter vivos trust, if the Shaw Street Property results back to Elisabeth’s estate it will be distributed either by Elisabeth’s will, if one should be identified and proven, or by the principles of intestate succession set out in the Succession Law Reform Act.[^30]

[69] The Applicants’ claim for an inter vivos trust affecting the Shaw Street Property was not established because it is oral and thereby in contravention of formal requirements. This claim is therefore dismissed.

[70] By reason of this finding, it is not necessary to determine whether the Alleged Oral Trust would have met the other requirements of an express trust, as set out in Elliott and confirmed by the Court of Appeal in Rubner.[^31] However, had it been necessary to determine the other requirements of an express trust, I would have had considerable doubt that the Applicants established the requirement of certainty of objects. Certainty of objects requires “that the beneficiaries of the trust must be sufficiently described to allow for trust performance.”[^32] Certainty of objects was straightforward in Sawdon, as the express trust was for the benefit of all children.[^33] Here, the Applicants’ contention that Elisabeth established an express trust that was for the benefit of some, but not all her children fell short in a material way. The Applicants did not tender reliable evidence that Elisabeth directed Teresa’s exclusion from the alleged inter vivos trust.

[71] First, the Applicants did not lead any credible or reliable evidence that Elisabeth expressly instructed, at the time of the conveyance of the Shaw Street Property, the exclusion of Teresa. Second, there was no written direction or, indeed, any document written or attributed to Elisabeth that supports the exclusion of Teresa. Third, the evidence that Elisabeth intended to exclude Teresa from a share of her estate was provided only by those who would benefit from Teresa’s exclusion: Ralph, Joe, Rosa and Connie. This evidence was self-serving and rendered unreliable by the palpable resentment held by Joe and, to a lesser extent others, that Teresa received more than she was entitled to in the 1986 conveyance of the 673 College Property. And last, I would not have accepted the submission that I can find a certainty of objects by drawing an inference that if Elisabeth intended that Rosa and Fortunato’s children benefit in the Shaw Street Property in addition to Ralph, Joe and Connie, then Elisabeth must have meant to exclude Teresa.

B. The Claim for a Resulting Trust

[72] Having determined that the Applicants did not establish a valid inter vivos trust, I will explain my determination of the Applicants’ claim for a resulting trust.

(a) Applicable Legal Principles for Resulting Trust

[73] A resulting trust arises where the property is in one party’s name but impressed with an obligation to return the property either because the holder is a fiduciary, or because the transferee gave no value for the property.[^34] The Supreme Court explained that “the underlying notion of the resulting trust is that it is imposed ‘to return property to the person who gave it and is entitled to it beneficially, from someone else who has title to it. Thus, the beneficial interest ‘results’ (jumps back) to the true owner.’”[^35]

[74] To determine whether the transfer of property was made for no value, the actual intention of the transferor at the time of the transfer is the governing consideration.[^36] Where a gratuitous transfer is made, there is a rebuttable presumption that the transferor intended to create a trust rather than to make a gift, on the principle that “equity presumes bargains and not gifts”.[^37] The onus is on the person receiving the transfer to demonstrate that a gift was intended, failing which the transferee holds the property in trust for the transferor.[^38]

[75] Despite the apparent limitation that the presumption of resulting trust arises between “unrelated” persons, the Courts have applied the presumption where funds are advanced between a parent and an adult child, particularly in matrimonial claims.[^39] In Andrade v. Andrade, the Court of Appeal referred to Pecore, where the Supreme Court abolished the presumption of advancement between parents and adult children and put in place the presumption of resulting trust.[^40] The Court of Appeal explained that “[e]xcept where title is taken in the name of a minor child”, which was not the case in this trial, “where property is acquired with one person’s money and title is put in the name of another, there is a presumption of resulting trust.”[^41]

[76] The presumption of resulting trust is of “greatest value in cases where evidence concerning the testator’s intention may be lacking” such as where the testator is deceased.[^42] As the Supreme Court emphasized in Pecore, because the focus in any dispute over a gratuitous transfer is the “actual intention of the transferor at the time of the transfer”, the presumption of resulting trust “will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities.”[^43]

[77] Joe and Connie say that Elisabeth transferred the Shaw Street Property as a gift. The essential requirements of a legally valid gift were set out by the Court of Appeal in McNamee v. McNamee, as follows:

There must be (1) an intention to make a gift on the part of the donor, without consideration or expectation of remuneration, (2) an acceptance of the gift by the donee and (3) a sufficient act of delivery or transfer of the property to complete the transaction.[^44]

[78] All three requirements are essential to establishing a gift.[^45]

(b) The Legal Principles Applied

[79] The Respondents’ position that the conveyance of the Shaw Street Property was a gift, and that Rosa, Vincent and Jeremy thereby have no beneficial interest, rests primarily on the Shaw Transfer Deed. They contend that since the Shaw Transfer Deed states that Elisabeth conveyed the Shaw Street Property to them and Ralph for “NIL” monetary consideration but instead for “natural love and affection”, there is no further analysis to be conducted to establish that the transfer of the Shaw Street Property was a gift. This submission misunderstands the law.

[80] Elisabeth’s gratuitous transfer to Ralph, Joe and Connie gives rise to rebuttable presumption that these legal owners hold title to the property in trust for Elisabeth. To rebut the presumption of resulting trust, Joe and Connie have the burden of establishing, on a civil balance of probabilities (more likely than not), that in November 1999, Elisabeth intended to confer beneficial ownership of the Shaw Street Property on the legal title owners, Ralph, Joe and Connie to the exclusion of Elisabeth herself, and to the exclusion of Elisabeth’s other children. Put differently, Joe and Connie have the burden of proving that Elisabeth intended to gift the Shaw Street Property to them and Ralph.

[81] The focus then is on the actual intention of Elisabeth at the time of the transfer of the Shaw Street Property in 1999.[^46] The analysis of Elisabeth’s actual intention cannot begin and end with reading the Shaw Transfer Deed, as Joe so adamantly argued. The Shaw Transfer Deed is some evidence of Elisabeth’s intention, but Elizabeth’s actual intention at the time of the transfer of the Shaw Street Property is a question of fact to be determined on the whole of the evidence, including assessment of the credibility of the witnesses.[^47]

(c) The Evidence of Elisabeth’s Intention at the Time of Transfer

[82] In Pecore, the Supreme Court instructed that the most important evidence of intention is the evidence that is contemporaneous to the transfer.[^48] Evidence of intention that arises subsequent to the transfer should not automatically be excluded, but rather must be relevant to the transferor’s intention at the time of the transfer and must be assessed as to reliability and weight.[^49]

(i) The Shaw Transfer Deed

[83] In my analysis of Elisabeth’s intention at the time of transfer of the Shaw Street Property, I turn first to the events leading to her execution of the Shaw Transfer Deed. This is the only document executed by Elisabeth in relation to this conveyance, and it is the foundation of Joe and Connie’s position that the conveyance of the Shaw Street Property was a gift.

[84] The Shaw Transfer Deed was prepared by lawyer Harry S. Goldstein, who also acted in the 1998 transfer of the 675 College Property. Mr. Goldstein died before any evidence could be obtained from him. Without explaining who retained Mr. Goldstein and directed him to prepare the transfer documents either in relation to the 1998 conveyance of the 675 College Property or the 1999 conveyance of the Shaw Street Property, Joe testified that he “was summoned” to Mr. Goldstein’s office to execute documents regarding the transfer of the Shaw Street Property, as he had been “summoned” almost 2 years earlier in relation to the transfer of the 675 College Property. I do not accept Joe’s evidence regarding Mr. Goldstein’s involvement, for reasons that I will explain below.

[85] The Shaw Transfer Deed and the College Transfer Deed both state that the transferees’ address for service is Connie’s home address.[^50] Additionally, all the letters exhibited at trial prepared by Mr. Goldstein, both in relation to both the 1998 and 1999 real estate transactions, were addressed to the transferees “care of” Connie’s home address. None were addressed to Elisabeth. The evidence showed that the 1998 conveyance of the 675 College Property took place three days before Vincenzo’s death, while he was gravely ill, and that Elisabeth was not fluent in English. There was no evidence regarding whether Mr. Goldstein spoke Italian. Vincenzo and Elisabeth had retained a different lawyer to act in the 1986 conveyance of the 673 and 675 College Properties. Ralph testified that he only met Mr. Goldstein upon receiving a titled interest in the 675 College Property and that Mr. Goldstein was retained by Connie.[^51] Connie did not tender evidence regarding Mr. Goldstein’s involvement in her affidavit evidence and did not testify at trial. I accept that Connie engaged Mr. Goldstein to act in her parents’ transfer of the 675 College Property and her mother’s transfer of the Shaw Street Property.

[86] The College Transfer Deed conveyed “an undivided 25% interest” to each of Ralph, Rosa, Connie and Joe. The Shaw Transfer Deed was silent as to the percentage ownership of Ralph, Joe and Connie. In the case of each Deed, they are the only exhibited conveyancing document for the 675 College Property and the Shaw Street Property signed by Elisabeth and Vincenzo. The Land Transfer Tax Affidavits (“LTT Affidavit”), sworn by each of the registered owners in both transactions, state that the transfer was for “NIL” consideration and was being made for “natural love and affection”. In each case, all the registered owners indicated that they were “transferees’ and none selected the designation on the LTT Affidavit form for a “trustee”.

[87] In Pecore, the Supreme Court instructed that while documents can inform an analysis of the transferor’s intention at the time of the transfer, in that case bank documents, the clearer the evidence in the document in question the more weight that the evidence should carry.[^52] In Pecore, although the bank document contained an express right of survivorship, the Court found that the document was unclear, and thereby attributed to it little weight in analysing the transferor’s intention, and thus the beneficial entitlement to the assets in the account.

[88] Similarly, I find that the Shaw Transfer Deed is unclear in establishing Elisabeth’s intention in the transfer of this property, and I thereby attribute to it little weight in my assessment of Elisabeth’s intention at the time of the conveyance. I will explain why.

[89] First, Joe and Connie did not establish the instructions that Elisabeth provided to Mr. Goldstein in the transfer of the Shaw Street Property, including the preparation of the LTT Affidavits. There was no reliable and trustworthy evidence of instructions provided to Mr. Goldstein by Elisabeth. The only document signed by Elisabeth, the Shaw Transfer Deed, specifies only that Elisabeth is transferring legal title to Ralph, Joe and Connie. The LTT Affidavits are sworn by the transferees, not Elisabeth as the transferor.

[90] Second, although Ralph, Joe and Connie executed the Shaw Street LTT Affidavit as “transferees” without designation as “trustees”, they then conducted themselves as trustees acting in the protection of the interest of beneficiaries. This is evident from the October 1999 Letter in which the three registered owners confirmed that Francesca was able to live in the Shaw Street Property for the entirety of her life. Indeed, Francesca would live in the Shaw Street Property for almost 16 years after its conveyance in 1999. And it is uncontested that Ralph, Joe and Connie’s legal ownership of the Shaw Street Property was subject to Elisabeth living in the property until her death about 9 years after the 1999 conveyance.

[91] Third, my analysis of the parties’ conduct after the execution in 1998 of the College Trust Deed reinforces my finding that Elisabeth intended in 1999 that the registered owners would hold the Shaw Street Property for the beneficial interest of Vincent and Jeremy, notwithstanding the wording of the LTT Affidavit. After Elisabeth and Vincenzo’s 1998 conveyance of the 675 College Property, the four registered owners sold the property and opened a joint account that was used to preserve and grow funds transferred in 2009 to Vincent and Jeremy. I will explain later my determination that this was a payment of Fortunato’s share of the 675 College Property to his issue, and not a loan, as sworn by Joe and Connie. The payment of these funds corroborates the evidence of Ralph, Olivia, Rosa and Jeremy, that Elisabeth told them that Vincent and Jeremy would receive their deceased father’s share of the 675 College Property.

[92] For these reasons, I conclude that Joe and Connie’s reliance on the Shaw Transfer Deed was of little weight in supporting their claim that Elisabeth intended that the conveyance of the Shaw Street Property to them was a gift.

(ii) The Hearsay Evidence Regarding the Parents’ Intentions

[93] Ralph tendered evidence of directions provided by Vincenzo and Elisabeth regarding the transfer of the 675 College Property and the Shaw Street Property. Ralph deposed that his parents made an inter vivos transfer of the 675 College Property in 1998 to put in motion the “estate plan” that his father had described to him and his siblings.[^53] Specifically, Ralph deposed that since Teresa had received the 673 College Property, Vincenzo and Elisabeth intended that she receive no further inheritance. Further, Ralph deposed, and then testified that leading to the conveyance of the Shaw Street Property, Elisabeth instructed that the Shaw Street Property be transferred to Ralph, Joe and Connie subject to the right of Francesca and Elisabeth to reside in the property until their deaths, and subject to the beneficial interest of Rosa and Fortunato’s children. Ralph deposed that Elisabeth did not direct that Rosa receive legal title to the Shaw Street Property, as she had in regard to the 675 College Property, because Rosa was involved in a divorce proceeding.

[94] Joe objected to Ralph providing this evidence based on hearsay. Ralph’s evidence, while relevant to the trust claim,[^54] was hearsay and thereby presumptively inadmissible.[^55] “Hearsay is an out-of-court statement tendered for the truth of its contents.”[^56] This evidence is presumptively inadmissible because in the absence of the declarants, Elisabeth and Vincenzo, there is no ability for Joe and Connie to cross-examine the declarant, making it difficult to assess the truth of the statements.[^57]

[95] Joe’s objection based on hearsay was made in an unusual context. First, Joe agreed with two aspects of the objected hearsay evidence. Joe deposed, identical to Ralph, that Vincenzo intended that Teresa would receive no further inheritance. Joe also agreed that Vincenzo and Elisabeth intended that Francesca would continue to reside in the Shaw Street Property, and be supported there by the family, but not receive any property through inheritance due to her inability to manage property caused by her mental illness.[^58] In these instances, Joe objected to the admission of the same evidence that he tendered.

[96] Second, Joe also tendered hearsay evidence and engaged in a debate through affidavits of what his parents said or did not say. In his affidavit sworn May 26, 2018, Joe deposed, in addition to the two points agreed upon with Ralph, that Elisabeth transferred the Shaw Street Property to Ralph, Joe and Connie on their agreement to provide for Francesca and Elisabeth within that home for the entirety of their lifetimes. Joe also deposed that: Elisabeth did not transfer any interest in the Shaw Street Property to Rosa “because she did not wish to”; that Vincenzo and Elisabeth “did not state any intention” to transfer any interest to Fortunato’s children; and that Elisabeth “communicated no wish that any provision be left for” Vincent and Jeremy.[^59] Joe testified that he never heard – “not once in [his] life” – Vincenzo or Elisabeth say that they intended that a share of their property would pass to Vincent and Jeremy.

[97] After conducting a voir dire on Joe’s challenge of Ralph’s hearsay evidence, I ruled that the challenged evidence tendered by Ralph was relevant but hearsay, and although presumptively inadmissible, the evidence would be admitted in accordance with the principled exception to the hearsay rule because the Applicants established, on a balance of probabilities, the twin criteria of necessity and threshold reliability.[^60] The death of Vincenzo and Elisabeth is sufficient to prove the necessity at common law for the purpose of the principled exception to the hearsay rule.[^61] Applying the factors identified by the British Columbia Supreme Court in Gutierrez v. Gutierrez,[^62] I determined that there were sufficient safeguards to admit the hearsay evidence for the purpose of threshold reliability, subject to my later determination of ultimate reliability once all the trial evidence could be considered.

[98] I also was mindful of the guidance provided by the Supreme Court that categorical exceptions to the hearsay rule, like the principled exception, have been developed because some hearsay evidence “presents minimal dangers and its exclusion rather than its admission, would impede accurate fact finding.”[^63] In Elliott, the Court held that in determining certainty of intention, “the Court may examine what the settlor said prior to his or her death”.[^64] All parties sought to testify as to out of court statements made by their parents in the search for Elisabeth’s intention at the time of transfer of the Shaw Street Property.

[99] I admitted, without objection, the hearsay evidence tendered by Joe on the same reasoning and, again, subject to my determination of the ultimate reliability of the evidence. This included Joe’s hearsay evidence of statements allegedly made by Mr. Goldstein.

[100] Rosa, Jeremy and Olivia all provided hearsay evidence on the issue of Vincenzo’s and Elisabeth’s intentions for their properties. Rosa conversed with her parents in Italian dialect. Rosa swore that she heard her parents say – “a million times” – that they intended that the 675 College Property and the Shaw Street Property be shared equally between Ralph, Joe, Connie, Rosa and Fortunato, with Fortunato’s share going to his children.

[101] Jeremy was about 14 years old when Elisabeth and Vincenzo conveyed the 675 College Property, and about 15 years old when Elisabeth conveyed the Shaw Street Property. Jeremy could speak with Vincenzo, who spoke rudimentary English, but only communicated with Elisabeth with translation by an aunt or uncle as Jeremy does not speak Italian and Elisabeth was not fluent in English. Jeremy testified that Vincenzo told him that he and Vincent would receive “an inheritance”, and that Elisabeth told him that he and Vincent would receive their deceased father’s share of the properties. Jeremy stated that Elisabeth said this to him frequently, as translated by his aunts and uncles. Jeremy swore that Joe and Connie “beat into his head” from for the many years from when he was a young child until the onset of this litigation, that he and Vincent would receive their father’s share of the inheritance.

(d) Assessment of The Evidence – Credibility Determinations

[102] The parties’ evidence regarding Elisabeth’s intentions at the time of transfer of the Shaw Street Property, which followed by less than 2 years her transfer of the 675 College Property, could not have been more polarized. Ralph, Rosa and Jeremy testified that Elisabeth, like Vincenzo, stated that they, together with Joe and Connie, would share in the Shaw Street Property just like the 675 College Property. Rosa heard this “a million times”, Jeremy had this “beaten into his head” and Ralph was adamant. Joe testified that he never heard Elisabeth or Vincenzo voice any such intention: “not once in [his] life”. Connie did not testify but deposed that her “parents did not leave any instructions for any ’inheritance’ for any grandchildren” without commenting on her parents’ intention regarding Fortunato’s share. The conflicting evidence of Elisabeth’s intention - between Ralph, Rosa, Jeremy and Olivia on the one side, and Joe and Connie on the other - was irreconcilable and will be determined on my assessment of the credibility and plausibility of the parties’ evidence.

[103] The Supreme Court instructed that “credibility must always be the product of the judge or jury’s view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter”.[^65] In considering the plausibility of witness testimony, the British Columbia Court of Appeal explained that: “In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”[^66] To be credible, a witness’ evidence must be internally consistent, logical or plausible.[^67]

[104] Along with my assessment of the witnesses’ testimony, I will analyse the ultimate reliability of the out of court statements attributed to Elisabeth and Vincenzo. Ultimate reliability concerns whether the Court can rely on the evidence as part of its adjudication of the issues in the trial.[^68] I will assess the trustworthiness and reliability of these hearsay statements by analysis of the circumstances in which the statements were made and any evidence that conflicts with or corroborates the statement (substantive reliability).[^69] There are no video recordings of the out of court declarations or sworn statements that would assist in determining procedural reliability.[^70]

(i) Joe Andreacchi

[105] Joe gave inconsistent testimony. At trial, Joe denied that he wrote the October 2009 Cheque, whereas he had conceded this point in his out of court examination.[^71] Joe testified, in his out of court examination, that the Joint Account contained both monies received from the sale of the 673 College Property and other money, whereas at trial Joe testified that the Joint Account only contained money received from the sale of the 673 College Property. In his affidavit evidence, Joe deposed that the $200,000.00 received from Ms. Pires was split between him, Ralph, Rosa and Connie, but at trial testified that these funds were deposited into the Joint Account and then into a Guaranteed Investment Certificate.

[106] Joe even gave inconsistent evidence on the core issue of Elisabeth’s intention at the time of transfer of the Shaw Street Property. In his affidavit, Joe swore that Elisabeth transferred the Shaw Street Property to him, Connie and Ralph in consideration of their commitment to provide for Elisabeth and Francesca.[^72] In his direct examination, Joe testified that the Shaw Street Property was a “straight transfer gift” conveyed by an “irrevocable gift deed” purely for “natural love and affection” without any conditions on its transfer.

[107] Apart from being inconsistent, Joe provided evidence at trial that had not been tendered in the lengthy history of this litigation. In the affidavits filed by Joe in this Application, he made no mention of any meetings with the late Mr. Goldstein regarding the conveyance of either the 675 College Property or the Shaw Street Property. At trial, Joe narrated in significant detail the steps taken by Mr. Goldstein, including attributing to Mr. Goldstein the specific legal advice that the Shaw Transfer Deed was an “irrevocable gift deed” that “cannot be challenged by anyone in the future” and was granted by Elisabeth in this form “to prevent anyone in the future from claiming a share”. This hearsay evidence was admitted on the Applicants’ concession that it met threshold reliability.

[108] Having considered all the evidence, I find that the out of court statements that Joe attributed to Mr. Goldstein are inherently untrustworthy and unreliable. This hearsay evidence suggests that Elisabeth purposefully set out to instruct Mr. Goldstein not only to disinherit certain of her children, but also to take active steps to prevent her children from challenging her conveyance. This is uncorroborated, and implausible as it is inconsistent with all other evidence of Elisabeth’s conduct and circumstances at the time of the transfer of the Shaw Street Property. This hearsay evidence does not satisfy ultimate reliability, will be accorded no weight, and will not be relied on.

[109] Although these considerations were sufficient to question the veracity of Joe’s evidence, the fulcrum on which Joe’s credibility decisively tipped was his testimony that the transfer to Vincent and Jeremy of $216,330.83 by the October 2009 Cheque was a loan and not the transfer to his nephews of their deceased father’s share of the sale proceeds of the 675 College Property. Not a single characteristic of a loan was present in this transfer.[^73] There were no contemporaneous documents evidencing a loan. There was no record of an agreement on the terms for repayment or the interest rate or term. There was no evidence of any demand for repayment, or payments in the 14 years since the funds were transferred. Joe’s evidence that the alleged loan was to assist Vincent and Jeremy with the purchase of a home was not plausible because the amount of the funds has no arithmetic relation to a down payment or to a purchase price or to the ability of the alleged borrowers to repay. The specificity of the amount transferred ($216,330.83) is far more suggestive of an accounting reconciliation than the typically rounded amount of a loan advance. Further, there was no temporal connection to the eventual purchase of property by Jeremy, which occurred over two years later on November 15, 2011.

[110] If these findings were not decisive to the rejection of Joe’s evidence, provided repeatedly, that the $216,330.83 was a loan,[^74] there is another consideration. The funds drawn on the Joint Account could not be a loan to Vincent and Jeremy when Ralph and Rosa, two of the co-Joint Account holders from which the funds were drawn, denied that the $216,330.83 was a loan. Joe could not loan money that was not his. And Joe’s persistent questioning of Ralph, Rosa and Jeremy of how the amount of $216,330.83 was derived was insincere and troubling considering that Joe wrote the number on the cheque and had, together with his siblings, management of the Joint Account since its establishment some 10 years earlier.

[111] I find that this transfer of funds by the joint account owners – Ralph, Rosa, Joe and Connie – to Jeremy and Vincent was not a loan. It was the transfer of Fortunato’s share of the sale of the 675 College Property, as managed over the years by the joint account holders.

[112] On this analysis, I was left with serious concerns about the credibility, plausibility, and reliability of Joe’s evidence.

[113] I reach this credibility determination without the need to rely on the video recording made by Jeremy of a meeting on January 1, 2017, involving Joe, Jeremy, Vincent, and Ralph and his spouse.[^75] I admitted the video recording into evidence after rendering a ruling on a voir dire conducted to determine Joe’s objection to the admissibility of the video recording. The video records an impromptu meeting wherein Joe assures Vincent and Jeremy that they would “be put on title” to the Shaw Street Property and that the only reason why Rosa was not on title was because she was going through a divorce at the time of Elisabeth’s transfer of the property. Joe referred to Vincent and Jeremy’s share of the proceeds from sale of the 675 College Property as “your share” and that they “gave away their inheritance” by the premature sale of the 675 College Property, before it later increased in value. Joe testified that he made these statements because he was intoxicated, and was being intimidated, harassed, or physically threatened by Ralph and feared for his safety. This explanation was not supported by Joe’s poised, deliberate and engaged presentation in the video, including the recording of his collaborative discussions with his nephews and Ralph on how to maximize their return on the Shaw Street Property. The video does not show any protest by Joe of being recorded. Joe’s submission that the video was edited, dubbed or otherwise unreliable was not established.

(ii) Ralph Andreacchi

[114] I found Ralph’s evidence to be sincere and credible on the issue of Elisabeth’s intentions insofar as Ralph testified that Elisabeth did not intend that the Shaw Street Property would be a gift to him, Joe and Connie, but rather would be held by them for the beneficial interest of other family members. In providing this evidence, Ralph testified against self-interest. This evidence had the effect of reducing Ralph’s interest in the Shaw Street Property from his registered one-third (33.33%) interest to a one-fifth (20%) entitlement. This supported the trustworthiness and reliability of Ralph’s testimony on Elisabeth’s intentions at the time of transfer.

[115] However, Ralph’s evidence was at times unreliable. I will provide some examples.

[116] First, Ralph testified that Vincenzo wanted Jeremy and Vincent to each have distinct shares in the properties equal with Ralph, Rosa, Connie, and Joe, meaning one-sixth each as opposed to one-fifth each. Even Ralph’s Co-Applicants did not agree with this evidence. Ralph recognized the frailty of this evidence by seeking, in cross-examination, to re-frame it as a passing thought by Vincenzo as opposed to an instruction.

[117] Second, while I accept as credible Ralph’s evidence that the provision of the October 2009 Cheque to Vincent and Jeremy was their father’s share of the 675 College Property, I see the additional terms that Ralph engrafted in the October 2009 Agreement to be of Ralph’s making, and not instructions from Elisabeth or Vincenzo. I do not accept as plausible or reliable that Elisabeth and Vincenzo instructed, some nine years earlier at the time of conveyance of the 675 College Property, that Vincent and Jeremy must only use their father’s inheritance to buy a home, that the home must be in their joint names, and that the funds are not to be applied to any existing debt, failing which the funds were to be returned to their grandparents’ estate. I do not accept Ralph’s evidence on these points.

[118] And there is a third area. Ralph’s testimony that neither Elisabeth nor Vincenzo intended that Teresa share in the Shaw Street Property was self-serving, as it was for the other siblings who provided this evidence: Joe, Rosa and Connie. This element of Ralph’s evidence was not tendered against self-interest. I had serious concerns about the trustworthiness of Ralph’s testimony on Teresa’s exclusion, as I did with the evidence of his siblings on this point.

[119] While this analysis affected the weight that I attributed to Ralph’s evidence on certain points, this did not diminish the credibility, reliability and trustworthiness of his testimony that Elisabeth’s actual intention, at the time of transfer of the Shaw Street Property, was that the property is not a gift to the registered owners.

(iii) Connie Andreacchi and Deborah Andreacchi

[120] Connie and Deborah filed affidavit evidence that supported Joe’s testimony, but they did not testify at trial and were not cross-examined in court. The credibility of the affidavit evidence tendered by Connie and Deborah is diminished by their sworn evidence that “the $216,330.83 extended to Jeremy and Vincent was a loan, not to be construed as an advance or inheritance.”[^76] I already explained my rejection of this evidence, which taints the weight that I attribute to Connie and Deborah’s affidavit evidence. Further, Deborah had no direct evidence on this point, or on other matters that she deposed to in her affidavit.

[121] Connie provided a glimpse into her evidence through her affidavits, but her decision not to testify did not allow for clarification of some of the general statements set out in her affidavit. Further, I do not accept Connie’s evidence that she “never communicated to [her] nephews that they were entitled to any inheritance”, based on my assessment of the evidence provided by Olivia and Jeremy, which I will explain next.

(iv) Olivia Bella

[122] Olivia testified honestly and sincerely of her role in raising Vincent and Jeremy as a single parent, and later while managing a second marriage that began in about 1994 and ended five years later. She spoke fondly of all members of the Andreacchi family, and of her efforts to keep Vincent and Jeremy connected with them. This despite being separated by distance in her Markham residence, and even though her second husband was not welcome at Andreacchi family gatherings.

[123] I accept Olivia’s evidence that Elisabeth and Vincenzo were loving, kind and respectful grandparents who adored Vincent and Jeremy, and reject Joe’s evidence to the contrary. Olivia testified that she took her children to see their grandparents when possible, including at family events and the Holidays, and heard Vincenzo and Elisabeth say, at times through translation by Ralph, Francesca or Connie, that her children would receive Fortunato’s “inheritance”. Olivia scoffed at the suggestion that the $216,330.83 provided to her sons by Ralph, Connie and Joe was a loan (“definitely not a loan”). Olivia swore that Ralph and Connie told her that Jeremy and Vincent would receive their father’s share of the Shaw Street Property upon Francesca’s death.

(v) Jeremy Andreacchi

[124] Jeremy was about 15 years old when Elisabeth conveyed the Shaw Street Property but recalled that both his grandparents told him that he would receive the inheritance that would have gone to his father. Jeremy testified that in the years leading to 2009, he spoke to Ralph, Joe and Connie about receiving his father’s share of the 675 College Property and they always assured him that it would be provided. When Ralph gave him and Vincent with the cheque in October 2009 for $216,330.83, he and his brother preserved the funds until they could purchase a property, which they did some two years later.

[125] I found Jeremy to be a credible and reliable witness. I accept Jeremy’s evidence that the October 2009 Cheque was the transfer to him of his father’s inheritance, and that the first time that he discovered that Joe and Connie were taking the position that the October 2009 Cheque was the advance of a loan was in 2018 when they so deposed in their responding affidavits in this proceeding. I also accept Jeremy’s evidence that Joe and Connie, like Ralph, had acknowledged that he and Vincent would receive a share of the Shaw Street Property.

(vi) Rosa Marchelletta

[126] Rosa adamantly denied Joe’s evidence that her relationship with Elisabeth was “not strong” and that at times she “did not maintain a relationship at all,” which was offered to explain Rosa’s exclusion from a titled interest in the Shaw Street Property. Rosa lived at the Shaw Street Property from mid-1997 to 2000 due to her separation from her husband. Rosa testified that she cared for Vincenzo in the late stage of his cancer, and tended to Elisabeth, throughout the period leading to Elisabeth’s and Vincenzo’s execution of the College Transfer Deed and Elisabeth’s execution of the Shaw Transfer Deed. I accept Rosa’s evidence, supported by phone call logs and doctor’s appointment slips, that she supported and provided care for her mother and Francesca (“my sister and friend”).

[127] The evidence showed that Rosa was involved in matrimonial issues at the time of the conveyance of the Shaw Street Property. Rosa separated from her husband in 1995, and received a titled interest in the 675 College Property in January 1998, while living at the Shaw Street Property with her parents. Rosa initiated divorce proceedings on February 20, 1998,[^77] but did not receive a divorce judgment until January 29, 2002.[^78] Rosa was living with her mother and Francesca in the Shaw Street Property, estranged from her husband, when Elisabeth conveyed title on November 8, 1999. Rosa did not conclude her property settlement with her former husband until some two years later, on April 6, 2000.[^79]

[128] Rosa testified that she knew that Elisabeth had excluded her from the transfer of the Shaw Street Property but understood that this was to protect her while she was seeking to resolve matrimonial issues with her estranged husband. Rosa knew that the property would not be sold so long as it was needed by Elisabeth and Francesca and trusted that her siblings would some day share with her the proceeds from its eventual sale.

[129] I found Rosa to be a credible and reliable witness who presented her evidence in a straightforward and sincere manner. In cross-examination she readily conceded that Joe was instrumental in the care of her mother and sister and that Joe properly managed money held jointly by the siblings in the Joint Account. Rosa was adamant, however, that she understood from both her parents that she was to have an equal share of the 675 College Property and the Shaw Street Property with her siblings, except Teresa, with all under an obligation to care for Francesca during her lifetime.

(vii) Conclusions – Credibility and Ultimate Reliability of Hearsay

[130] Having considered all the evidence, and on the reasoning now explained, I find the evidence of Rosa, Olivia and Jeremy to be honest, sincere, and forthright, and not affected by cross-examination. I also find that Ralph’s evidence was credible and trustworthy that, at the time of conveyance of the Shaw Street Property, Elisabeth did not intend to gift the property to him, Joe and Connie.

[131] I have serious concerns about the credibility, plausibility, and reliability of Joe’s evidence and, to the extent that their evidence is tendered in corroboration, the affidavit evidence of Connie and Deborah. I thereby accept the evidence of Rosa, Olivia, Jeremy and Ralph over the evidence of Joe, Connie and Deborah in all areas where their evidence diverges.

[132] Having now considered the hearsay evidence comprised of out of court statements attributed to Elisabeth and Vincenzo at the time of the conveyance of the 675 College Property and the Shaw Street Property, I find that I have sufficient corroborative and contextual evidence to conclude that the hearsay evidence provided by Rosa, Olivia, Jeremy and Ralph is trustworthy and reliable. I thereby find that the ultimate reliability of this hearsay evidence has been established, and that I will therefore rely on it.

(e) Analysis – Resulting Trust

[133] Since the conveyance of the Shaw Street Property to Ralph, Joe and Connie was a gratuitous transfer, there is a rebuttable presumption that Elisabeth intended that they hold the property in resulting trust. Since Joe and Connie contended that they received legal title to the Shaw Street Property as a gift, they had the burden to prove, on a civil balance of probabilities that Elisabeth intended at the time of its transfer, to make a gift to them of the Shaw Street Property. As part of their proof of Elisabeth’s intention at the time of the transfer of the Shaw Street Property, Joe and Connie were required to satisfy all three parts of the test set out by the Court of Appeal in McNamee, including that Elisabeth intended a gift.[^80]

[134] Having considered and weighed all the admissible evidence, I am left with no doubt that Joe and Connie failed to discharge their burden of proof. Joe and Connie did not establish that Elisabeth intended to convey the Shaw Street Property to them as a gift. Joe and Connie’s case that Elisabeth intended that the conveyance of the Shaw Street Property as a gift rested largely on a misunderstanding that the Shaw Transfer Deed was dispositive of the issue of Elisabeth’s intentions. Joe had no evidence of Elisabeth’s intentions at the time of transfer that I accepted or on which I placed weight. Joe’s evidence was not saved by corroboration in affidavit form by Connie and Deborah, as their evidence shared the same frailties as that tendered by Joe. Instead, I accept the evidence of Ralph, Rosa, Jeremy and Olivia that Elisabeth did not intend that only Ralph, Joe and Connie benefit from the Shaw Street Property.

[135] In preferring the evidence of Rosa, Ralph, Olivia and Jeremy, I find that at the time of the transfer of the Shaw Street Property, Elisabeth formed the intention to convey to Ralph, Joe and Connie the legal title to the Shaw Street Property, but not possession or occupancy. I find that Elisabeth needed the Shaw Street Property to live in as her home and as a home for Francesca for the duration of their lives. Elisabeth did not name Rosa as a titled owner to the Shaw Street Property, as Elisabeth had done in the transfer of the 675 College Property, not for the purpose of excluding Elisabeth from a share of this property, but rather with the intention of protecting Rosa’s share in the Shaw Street Property from her estranged husband. I find, further, that Elisabeth did not intend to exclude Vincent and Jeremy from the share in the Shaw Street Property that would have gone to their deceased father, but rather did not include them in the conveyance because they were minors in November 1999. These findings establish that at the time of the transfer of the Shaw Street Property, Elisabeth did not intend that Ralph, Joe and Connie own the Shaw Street Property to the exclusion of all other family members.

[136] Although the most important evidence of intention is evidence that is contemporaneous to the transfer, Elisabeth’s conduct after the conveyance of November 8, 1999, strongly reinforces these findings. Elizabeth continued to live in the Shaw Street Property for almost 9 years after its conveyance. Elisabeth, together with Joe, Rosa and at times others, provided for Francesca in the property during this time. And Francesca continued to reside in the Shaw Street Property for the almost 7 years that she survived Elisabeth, cared for by Joe, who resided with Deborah in the Shaw Street Property, and by Rosa and other family members who would attend periodically.

[137] The evidence that I have accepted of Elisabeth’s intention at the time of the conveyance of the Shaw Street Property, reinforced by subsequent conduct, established convincingly that Elisabeth intended that the Shaw Street Property be shared more broadly amongst her children than the three legal owners. I accept that Elisabeth intended to benefit herself and Francesca through continued occupancy, and that Elisabeth intended that the legal owners share in the equity with, at least, Rosa and Fortunato’s children. Although it was material to the analysis of express trust, and although it had a role in the credibility determinations, it does not matter for the purpose of the Pecore analysis whether Elisabeth intended to benefit all her children or all her children except Teresa. Rather, it is sufficient for the Pecore analysis to find, as I have, that Joe and Connie did not establish that Elisabeth intended to confer the benefit of the Shaw Street Property only on Ralph, Joe and Connie, as a gift, to the exclusion of all other family members.

[138] The Respondents therefore failed to rebut the presumption of resulting trust.

(f) Conclusion – The Registered Owners Hold the Shaw Street Property in Resulting Trust for Elisabeth’s Estate

[139] In this case, as in Pecore, there were only two “ownership choices” for the Shaw Street Property. Either it is owned in legal and beneficial interest by Ralph, Joe, and Connie, or these parties own the registered title to the Shaw Street Property in resulting trust for Elisabeth’s estate. I conclude that the Applicants established the requirements set out in Pecore for a resulting trust. Ralph, Joe and Connie received title to the Shaw Street Property for no monetary consideration. This gives rise to a rebuttable presumption that Elisabeth intended to create a trust rather than a gift. Joe and Connie failed to rebut this presumption. As a result, Ralph, Joe and Connie are required “to return property to the person who gave it and is entitled to it beneficially, from someone else who has title to it.”[^81]

[140] I conclude that Elisabeth conveyed legal title to the Shaw Street Property to Ralph, Joe, and Connie subject to a resulting trust for Elisabeth. Upon Elisabeth’s death on May 12, 2008, the Shaw Street Property resulted to Elisabeth’s estate. Ralph, Joe and Connie hold legal title to the Shaw Street Property in resulting trust for Elisabeth’s estate. The Applicants did not establish any express trust affecting the Shaw Street Property or any interest in the Shaw Street Property. The Shaw Street Property shall be distributed in accordance with any will left by Elisabeth, if identified and proven, or in accordance with the principles of intestate succession set out in the Succession Law Reform Act.

V. ARE THE APPLICANTS ENTITLED TO AN ORDER FOR PARTITION?

[141] Considering my determination that the Shaw Street Property results back to Elisabeth’s estate, the registered owners of the property hold the property in trust for Elisabeth’s estate. The Applicants are not entitled to an order for sale under the Partition Act. The Shaw Street Property shall form part of Elisabeth’s estate to be administered, managed, and distributed by an estate trustee, once appointed.

[142] There was no evidence that Elisabeth left a will. If a will is identified and proven, the executor(s) can apply for a Certificate of Appointment of an Estate Trustee With a Will. In the event of an intestacy, if the parties agree on an estate trustee, the parties can jointly apply for a Certificate of Appointment of Estate Trustee Without a Will. If the parties cannot agree on an estate trustee to bring an Application for a Certificate of Appointment of an Estate Trustee Without a Will, they can seek the appointment of a neutral estate trustee. The sale of the Shaw Street Property will be addressed upon the appointment of the estate trustee of Elisabeth’s estate.

[143] The order sought by the Applicants under the Partition Act is thereby dismissed.

VI. HAVE THAT APPLICANTS ESTABLISHED THE BASIS FOR AN ORDER THAT JOE PASS ACCOUNTS?

[144] The Applicants pleaded entitlement to an Order that the Respondents, Joe and Connie, “pass their accounts for all actions taken as de facto estate trustees for the estates of Vincenzo and Elisabeth.”[^82] At trial, the Applicants did not seek this relief against Connie. The Applicants submitted that under the trustee de son tort principle, a person who is not appointed a trustee, but who takes upon himself to act as such and to possess and administer trust property may nonetheless be treated as one, relying on Chambers Estate v. Chambers.[^83] There, the Court of Appeal affirmed the principle stated in Re O’Reilly (No. 2), as follows: “[i]t is trite law that a person not lawfully appointed an executor or administrator may by reason of his intrusion upon the affairs of the deceased be treated for some purposes as having assumed the executorship, as having constituted himself an executor de son tort.” [^84]

[145] The Applicants submitted that a finding can be made that Joe was acting as executor of Elisabeth’s estate on two grounds. First, the Proof of Death Certificate, issued by the funeral home, lists Joe as the “Declared Responsible Person”.[^85] Second, Joe is recorded as boasting to his nephews, Jeremy and Vincent, on one occasion that he was the executor of Elisabeth’s and Vincenzo’s estates. This evidence does not establish that Joe acted as executor of Elisabeth’s estate. The funeral home’s certificate is not dispositive. I do not accept that Joe’s boast that he acted as executor is trustworthy or reliable, for the same reasons that I provided in rejecting other parts of Joe’s evidence. The Applicants did not establish that Joe acted as a trustee de son tort.

[146] And there are two further reasons for dismissing the Applicants’ claim that Joe has an obligation to account to the beneficiaries of Vincenzo’s and Elisabeth’s estate as trustee de son tort. First, the Applicants did not establish that either Vincenzo or Elisabeth had any assets that were susceptible to intermeddling by Joe. Second, the management and sale of the 675 College Property upon its conveyance from Elisabeth and Vincenzo was managed by Ralph, Rosa and Connie in addition to Joe. The four siblings were also joint account holders of the net sale proceeds from the sale of the 675 College Property. Similarly, Ralph, in addition to Joe and Connie, have been joint registered owners of the Shaw Street Property since its conveyance by Elisabeth. As joint account holders and joint property owners, they each had access to the accounting that they are seeking from Joe.

[147] The order sought by the Applicants that Joe pass accounts as a de facto estate trustee is dismissed. This order is without prejudice to the estate trustee seeking an order for accounting in the estate of Elisabeth Andreacchi.

VII. DISPOSITION

[148] On the basis of these Reasons, a Judgment shall issue as follows:

(a) This Court declares that Raffaele Andreacchi, Connie Figliuzzi and Joe Andreacchi hold registered title to the property known municipally as 626 Shaw Street, Toronto, in resulting trust for the estate of Elisabeth Andreacchi, deceased.

(b) The Applicants’ claim for an Order under the Partition Act for the sale of the property known municipally as 626 Shaw Street, Toronto, is dismissed.

(c) The Applicants’ claim for an Order that Joe Andreacchi pass his accounts as trustee de son tort for both the estate of Vincenzo Andreacchi and the estate of Elisabeth Andreacchi is dismissed, without prejudice to the estate trustee seeking an order for accounting in the estate of Elisabeth Andreacchi.

(d) The Respondents’ limitation defence is dismissed.

[149] The parties may deliver to my judicial assistant a form of draft Judgment, after agreeing on its form and content and filing on CaseLines, comprising the disposition set out in these Reasons for Judgment. In the event of disagreement, the parties may request the scheduling of a Case Conference to settle the form of the Judgment.

VIII. COSTS

[150] The parties are encouraged to agree on the issue of costs. If the parties cannot agree on the issue of costs, any party seeking costs may, by September 28, 2023, deliver by email to my judicial assistant, after service and filing on CaseLines, written costs submission of no more than eight (8) pages, plus a Bill of Costs. Any party against whom costs is sought may, by October 26, 2023, deliver by email to my judicial assistant after service and filing on CaseLines, responding cost submissions of the same length. If no party delivers any written cost submissions by October 26, 2023, I will deem the issue of costs to have been settled.

A.A. Sanfilippo J.

Released: August 31, 2023

[^1]: Elisabeth was identified and referred to in this trial as “Elisabetta”, “Elisa” and “Elizabeth”. I use “Elisabeth” in these Reasons because this is how she is identified in the title of proceedings, acknowledging that all variations of her first name refer to the same person. [^2]: Known legally as Part of Lots 3 and 4, Plan 748, in the City of Toronto, in the Municipality of Metropolitan Toronto. [^3]: Described as PT LT 68, BLK 2, PL D198, Toronto as in CA635496, City of Toronto, PIN 21270-0280 (LT), in the Land Registry Office #66. [^4]: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795 [Pecore]. [^5]: Instrument number CT850894, registered on February 26, 1987. [^6]: Transfer/Deed of Land, signed on January 6, 1998, and registered on January 9, 1998, as Instrument number CA517877 against title to 675 College Street, Toronto. [^7]: Transfer/Deed of Land, signed on October 30, 1999, and registered on November 8, 1999, as Instrument number CA635496 against title to 626 Shaw Street, Toronto. [^8]: Cross-examination of Joe Andreacchi conducted on January 16, 2019, at q. 220: “No, but I do have a cheque that I wrote to them. So, that proves I gave them a loan.” [^9]: Exhibit #1, Amended Supplementary Trial Record, Tabs 10 and 11. [^10]: Affidavits of Raffaele Andreacchi sworn February 9, 2018, and June 14, 2018; Affidavits of Jeremy Andreacchi sworn February 9, 2018, and June 14, 2018; Affidavits of Joe Andreacchi sworn May 26, 2018, and July 10, 2018; Affidavits of Connie Figliuzzi sworn May 26, 2018, and July 10, 2018; Affidavit of Rosa Marchelletta sworn June 14, 2018; Affidavit of Deborah Andreacchi sworn May 26, 2018. [^11]: Exhibit #1, Amended Supplementary Trial Record, Tab 1, Notice of Application. [^12]: Exhibit #2, Trial Management Report to Trial Judge, prepared under Rule 50.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, dated December 16, 2021. [^13]: Armitage v. The Salvation Army, 2016 ONCA 971, 406 D.L.R. (4th) 563; Wall v. Shaw, 2018 ONCA 929, 406 D.L.R. (4th) 563. [^14]: Exhibit 1, Amended Supplementary Trial Record, Tab 1, Notice of Application, para. 1(b) “A Declaration that the Shaw St. property is held in trust for Rosa Andreacchi (as to 1/5), Vincent Andreacchi (as to 1/10), Raffaele (“Ralph”) Andreacchi (as to 1/5), and the respondents (as to 1/5 each), and impressing the proceeds of sale with a trust in their favour.” Exhibit 1, Amended Supplementary Trial Record, Tab 11, 2018 Order, para. 2(d); Exhibit 2, Trial Management Report, p. 5, “List of Issues Remaining in Dispute: … 2. Whether there was an oral trust with respect to the ownership of the property at 626 Shaw Avenue, Toronto.” [^15]: 2017 ONCA 623, [2017] O.J. No. 4087, at para. 32, relying on McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561, at paras. 38-39; and Hartman Estate v. Hartfam Holdings Ltd. (2006), 2006 ONCA 266, 263 D.L.R. (4th) 640 (Ont. C.A.), at para. 56. [^16]: Sinclair v. Harris, 2018 ONSC 5718, [2018] O.J. No. 5029, at paras. 28-29; Chopra v. Vincent, 2015 ONSC 3203, 126 O.R. (3d) 77, at para. 10; McCracken v. Kossar (2007), 297 D.L.R (4th) 431, 2007 ONSC 4875, at paras. 54-56. [^17]: Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, 119 O.R. (3d) 81 [Sawdon Estate]. [^18]: Mroz v. Mroz, 2015 ONCA 171, 125 O.R. (3d) 105 [Mroz]. [^19]: Sawdon Estate, at para. 67. [^20]: Sawdon Estate, at para. 70. [^21]: Elliott (Litigation guardian of) v. Elliott Estate, 2008 ONSC 63993, [2008] O.J. No. 4941, 45 E.T.R (3d) 84 [Elliott]. [^22]: Elliott, at para. 24. [^23]: Elliott, at para. 42. [^24]: Rubner v. Bistricer, 2019 ONCA 733, [2019] O.J. No. 4713 [Rubner]. [^25]: Rubner, at para. 49: “There are four requirements for establishing a valid express trust. The relevant parties to the trust must have capacity; there must be certainty of intention to create a trust, certainty of subject-matter, and certainty of objects; the trust must be constituted, meaning the trustees must hold legal title to the trust property; and the required formalities must be met.” [^26]: Rubner at para. 51. See also Soleimani v. Karimi, 2023 ONSC 3890 (Div. Ct.), [2023] O.J. No. 3123, at para. 9: “The motion judge then went on to find that, in any event, the alleged oral trust agreement was inconsistent with ss. 9 and 10 of the Statute of Frauds, RSO 1990, c. S.19 (Decision, paras. 47-50). I see no reversible legal error in this conclusion.” [^27]: Statute of Frauds, R.S.O. 1990, c. S.19. [^28]: Mroz, at paras. 1-2. [^29]: Exhibit E, Written Closing Submissions of the Applicants, para. 108: “While the trust governing the distributions in Mroz was a last will and testament, the trust in the present case is an undocumented oral trust. The concept and the legal principles are the same.” [^30]: Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 47. [^31]: Rubner, at para. 49: “There are four requirements for establishing a valid express trust. The relevant parties to the trust must have capacity; there must be certainty of intention to create a trust, certainty of subject-matter, and certainty of objects; the trust must be constituted, meaning the trustees must hold legal title to the trust property; and the required formalities must be me.” [^32]: Rubner, at para. 59. [^33]: Sawdon, at para. 76. [^34]: Pecore, at para. 20. [^35]: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 16 [Kerr]. [^36]: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at para. 2. [^37]: Kerr, at para. 19, citing Pecore, at para. 24. See also, Belokon v. Kyrgyz Republic, 2016 ONCA 981, 136 O.R. (3d) 39, at paras. 54-58. [^38]: Kerr, at para. 19, citing Pecore, at para. 24. [^39]: Studzinski v. Studzinski, 2020 ONSC 2540, [2020] O.J. No. 2259, at paras. 153-154; Bao v. Mok, 2019 ONSC 915, [2019] O.J. No. 587, at paras. 66-73; Prtenjaca et al. v. Wells-Prtenjaca et al., 2022 ONSC 438, [2022] O.J. No. 1521; Lee v. Starinovich, 2013 BCSC 1557, [2013] B.C.J. No. 1866, at paras. 72-73. [^40]: Andrade v. Andrade, 2016 ONCA 368, 131 O.R. (3d) 532, at para. 59 [Andrade]. [^41]: Andrade, at para. 59. [^42]: Andrade, at para. 61. [^43]: Pecore, at paras. 5 and 44, as cited in Andrade, at para. 61. See also, Schwartz v. Schwartz, 2012 ONCA 239, 349 D.L.R. (4th) 326, at paras. 41-42. [^44]: McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 24. Applied by the Court of Appeal in Teixeira v. Markgraf Estate, 2017 ONCA 819, 137 O.R. (3d) 641, at para. 38 [Teixeira]. [^45]: Teixeira, at para. 38. [^46]: Kerr, at para. 18: “[I]n these gratuitous transfer situations, the actual intention of the grantee is the governing consideration”, quoting Pecore, at para. 44: "[t]he trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor's actual intention". (Emphasis in original.) See also, Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, at para 27, Pecore, at paras. 43-44; Schwartz v. Schwartz, 2012 ONCA 239, 349 D.L.R. (4th) 326, at paras. 41-42. [^47]: Saylor v. Brooks, 2005 ONCA 39857, 261 D.L.R. (4th) 596 (Ont. C.A.), at para. 74 as quoted in Madsen Estate v. Saylor, 2007 SCC 18, [2007] 1 S.C.R. 838, at para. 43: “As demonstrated, the factors a court may take into account in its attempt to determine the transferor’s intention at the time of transfer will be given different weight. This will depend on how the trial judge views the whole of the evidence, including the credibility of the witnesses, and the trial judge’s view of the evidence may be affected by the onus of proof he or she applies.” See also, Elliott, at paras. 29 and 30, and Pecore, at para. 44: “As in other civil cases, regardless of the legal burden, both sides to the dispute will normally bring evidence to support their position. The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention.” [^48]: Pecore, at para. 56: “The traditional rule is that evidence adduced to show the intention of the transferor at the time of the transfer “ought to be contemporaneous, or nearly so”, to the transaction … The reason that subsequent acts and declarations have been viewed with mistrust by courts is because a transferor could have changed his or her mind subsequent to the transfer and because donors are not allowed to retract gifts.” [Citations omitted.] [^49]: Pecore, at para. 59: “Similarly, I am of the view that the evidence of intention that arises subsequent to a transfer should not automatically be excluded if it does not comply with the Shephard v. Cartright rule. Such evidence, however, must be relevant to the intention of the transferor at the time of the transfer. The trial judge must assess the reliability of this evidence and determine what weight it should be given, guarding against evidence that is self-serving or that tends to reflect a change in intention [citation omitted].” See also, Mroz, at para. 73: “A court may consider evidence of the transferor’s conduct after the transfer, so long as it is relevant to the transferor’s intention at the time of the transfer.” [^50]: Connie’s home address for service is set out in the Order of Justice McEwen dated December 17, 2020, exhibit #1, Amended Supplementary Trial Record, Tab 16. [^51]: Transcript of Cross-Examination of Raffaele Andreacchi, January 15, 2019, at p. 67, q. 364-365: “Well, [Mr. Goldstein] was my sister’s lawyer and she orchestrated everything to Goldstein and transfers and this and that and everything. Q. Okay. Your sister, Connie? A. Yes.” [^52]: Pecore, at para. 61. See also, Madsen Estate v. Saylor, 2007 SCC 18, [2007] 1 S.C.R. 838, at para. 21: “The clearer the evidence in the documents, the more weight that evidence should carry.” [^53]: Exhibit #1, Amended Supplementary Trial Record, Tab 1, Affidavit of Ralph Andreacchi sworn February 9, 2018, paras. 18-20. [^54]: R. v. Schneider, 2022 SCC 34, 418 C.C.C. (3d) 137, at para. 45 [Schneider]: “judges determine relevance by asking whether, in light of all the other evidence, the at-issue evidence logically tends to make a fact in issue more or less likely.” See also para. 38 of the same decision. [^55]: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 2-3 and 34 [Khelawon]: “The basic rule of evidence is that all relevant evidence is admissible. There are a number of exceptions to this basic rule. One of the main exceptions is the rule against hearsay: absent an exception, hearsay evidence is not admissible” (emphasis in original). [^56]: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 1 and 20 [Bradshaw]; R v. MacKinnon, 2022 ONCA 811, 164 O.R. (3d) 535, at para. 27. [^57]: Schneider, at para. 47: “Hearsay evidence has three components: (1) a statement (or action) made outside of court by a declarant; (2) which a party seeks to adduce in court for the truth of its content; (3) without the ability of the other party to contemporaneously cross-examine the declarant (Khelawon, at para. 35; R. v. Evans, 1993 SCC 86, [1993] 3 S.C.R. 653, at pp. 661-62; see also R. v. Smith, 1992 SCC 79, [1992] 2 S.C.R. 915, at p. 924).” [^58]: Exhibit #1, Amended Supplementary Trial Record, Tab 2, Affidavit of Joe Andreacchi sworn May 26, 2018, para. 6: “In 1986 my father arranged for my sister and husband to assume full title to 673 College Street, while my parents assumed full title to 675 College Street, and ended their business relationship with Teresa and her husband. After this transfer, my father told the rest of the siblings that this transfer would be all my sister would receive as an “inheritance”.” Paragraph 10: “Frances did not receive any “inheritance” because she suffered from a severe mental illness. Instead of transferring property to Frances, my parents made other arrangements to provide for her, by way of an agreement between three of their children, including myself, described below.” [^59]: Exhibit #1, Amended Supplementary Trial Record, Tab 2, Affidavit of Joe Andreacchi sworn May 26, 2018, paras. 12-13 and 44. [^60]: Khelawon, at para. 47; Bradshaw, at para. 23. [^61]: R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 34; R. v. Candir, 2009 ONCA 915, [2009] O.J. No. 5485, at para. 57, leave to appeal to SCC refused, [2012] S.C.C.A. No. 8. See also Brisco Estate v. Canadian Premier Life, 2012 ONCA 854, 113 O.R. (3d) 161, at para. 52. [^62]: 2015 BCSC 185, [2015] B.C.J. No. 217, at para. 34. [^63]: Khelawon, at para. 2, applied in Bradshaw, at para. 22 (emphasis in original). [^64]: Elliott, at para. 29, relying on Jones v. Lock (1865), 1 Ch. App. 25; Paul v. Constance, [1977] 1 All E.R. 195 (C.A.). [^65]: R v. Marquard, 1993 SCC 37, [1993] 4 S.C.R. 223, at p. 248. [^66]: Faryna v. Chorny (1951), 1951 BCCA 252, [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 357 [Faryna], per O’Halloran J.A. See also the criteria set out by Cameron J. in Prodigy Graphics Group Inc. v. Fitz-Andrews, 2000 CarswellOnt 1178 (S.C.), at para. 46. [^67]: Borrelli v. Chan, 2018 ONSC 1429, [2018] O.J. No. 1436, at para. 186, aff’d 2019 ONCA 525, 147 O.R. (3d) 145, leave to appeal to SCC denied, [2019] S.C.C.A. No. 314, citing Faryna, at p. 357. [^68]: Bradhsaw, at para. 39. [^69]: Bradshaw, at paras. 30 and 108, relying on Khelawon, at paras. 4, 62 and 94-100, and at para. 40: “…where procedural reliability is concerned with whether there is a satisfactory basis to rationally evaluate the statement, substantive reliability is concerned with whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement other than the declarant’s truthfulness or accuracy (emphasis in original).” See also, MacKinnon, at paras. 57-60. [^70]: Bradshaw, at paras. 28 and 109. [^71]: Cross-examination of Joe Andreacchi conducted on January 16, 2019, at q. 220: “No, but I do have a cheque that I wrote to them. So, that proves I gave them a loan.” [^72]: Exhibit #1, Amended Supplementary Trial Record, Tab 2, Affidavit of Joe Andreacchi sworn May 26, 2018, para. 11(c). [^73]: Barber v. Magee, 2015 ONSC 8054, [2015] O.J. No. 6818, at para. 42, aff’d 2017 ONCA 558, 139 O.R. 78, at para. 4. [^74]: Exhibit #1, Amended Supplementary Trial Record, Tab 4, Affidavit of Joe Andreacchi sworn July 10, 2018, para. 19: “Vincent and Jeremy were never entitled to any share of the proceeds of 675 College Street, as expressly demonstrated by my parents’ decision not to transfer anything to them, in trust, or otherwise, and the $216,330.83 funds loaned to them was, I reiterate, a loan.” [^75]: Exhibits 8 and 9, Video recordings entitled “Uncle Joe v. Uncle Ralph”. [^76]: Exhibit #1, Amended Supplementary Trial Record, Tab 2, Affidavit of Connie Figliuzzi sworn May 26, 2018, at para. 4(b); Affidavit of Deborah Andreacchi sworn May 26, 2018, at para. 3(a). [^77]: Exhibit 10, Petition for Divorce, issued in Court file number 98-FP-23932 on February 20, 1998. [^78]: Exhibit 11, Letter from MacDonald & Partners dated June 6, 2002, notifying of Judgment of Justice Wright dated January 29, 2002. [^79]: Exhibit 11, Letter from MacDonald & Partners dated April 6, 2000. [^80]: McNamee, at para. 24: “There must be … an intention to make a gift on the part of the donor, without consideration or expectation of remuneration.” [^81]: Kerr, at para. 16. [^82]: Exhibit 1, Tab 1, Notice of Application, para. 1(e). [^83]: Chambers Estate v. Chambers, 2013 ONCA 511, 367 D.L.R. (4th) 151, at para. 75 [Chambers]. [^84]: Chambers, at para. 76, quoting Re O’Reilly (No. 2) (1980), 28 O.R. (2d) 481, at p. 486, aff’d 1981 ONCA 1906, 33 O.R. (2d) 352 (C.A.) [^85]: Exhibit 1, tab 1, page 110, Proof of Death Certificate dated February 27, 2014, issued by Ward Funeral Home.