COURT FILE NO.: 05-336/19
DATE: 20230227
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MELISSA HENDERSON
Applicant
– and –
SHERYL SANDS, personally and in her capacity as Estate Trustee of the Estate of Dayle Colette Solivo (also known as Dayle Colette Henderson and Dayle Colette Cusson) and in her capacity as Attorney for Property for Dayle Colette Solivo (also known as Dayle Colette Henderson and Dayle Colette Cusson), JUDITH NORRIS in her capacity as alternate Estate Trustee of the Estate of the Estate of Dayle Collette Solivo (also known as Dayle Colette Henderson and Dayle Colette Cusson) and MARNIE HENDERSON
Respondents
Jacob B. Kaufman, for the Applicant
Stephanie Turnham, for the Respondent, Sheryl Sands
HEARD: January 18, 2023
reasons for decision
dietrich j.
Overview
[1] The late Dayle Collette Solivo (the “Deceased”), a widow, died on March 22, 2019. The Deceased was survived by her two adult daughters, the Applicant, Melissa Henderson (the “Applicant”) and the respondent, Marnie Henderson (“Marnie”). The Applicant is a real estate agent in the City of Toronto. Marnie does not work and receives ODSP benefits. The Deceased was also survived by her sisters, the respondents Sheryl Sands (“Ms. Sands”) and Judith Norris (“Ms. Norris”).
[2] In her Last Will and Testament dated February 13, 2019 (the “Will”), the Deceased appointed Ms. Sands, a retired school teacher, as the sole Estate Trustee of her estate (the “Estate”). In the alternative, the Deceased appointed Ms. Norris as her sole Estate Trustee. The beneficiaries of the Estate are the Applicant and Marnie. Together, they are equally entitled to the entirety of the residue of the Estate.
[3] The Applicant, with Marnie’s support, brings this application for an order removing Ms. Sands as the Estate Trustee, and an order appointing the Applicant in Ms. Sands’ place. Marnie did not respond to the application and is unrepresented in this matter.
[4] The Applicant submits that Ms. Sands is utterly unfit to act as Estate Trustee and that she has mismanaged the administration of the Estate. The Applicant also submits that Ms. Sands’ animus towards the beneficiaries rises to the level of hostility. In addition, the Applicant submits that Ms. Sands wrongfully transferred the Deceased’s 2015 Hyundai Santa Fe S SUV (the “Vehicle”) to herself.
[5] Ms. Sands submits that she has not mismanaged the administration of the Estate. Ms. Sands also submits that, if even it were found that there is animosity between Ms. Sands and the Deceased’s two daughters, animosity is not grounds for removal of an Estate Trustee. Further, Ms. Sands submits that she did not wrongfully transfer the Vehicle to herself. Rather, she asserts that the Deceased made an inter vivos gift of the Vehicle to her.
[6] For the reasons that follow, I decline to order the removal of Ms. Sands as Estate Trustee and to appoint the Applicant in her place. I find that the Deceased did not make a gift of the Vehicle to Ms. Sands.
A. The removal and replacement of the Estate Trustee
Law regarding removal of a trustee
[7] The court has the authority to remove and replace an estate trustee pursuant to s. 5 and s. 37 of the Trustee Act, R.S.O. 1990, c. T.23. Subsection 37(3) of the Trustee Act allows “any person interested in the estate” to bring a removal application.
[8] The principles that guide the court’s discretion in removing an estate trustee chosen by the deceased are set out by Quinn J. in Radford v. Radford Estate (2008), 2008 45548 (ON SC), 43 E.T.R. (3d) 74 (Ont. S.C.), at paras. 97-113. They can be summarized as follows:
a) The court should not interfere lightly with the testator’s choice of estate trustee;
b) Such interference must be not only well justified but must amount to a case of clear necessity;
c) Removal of an estate trustee should only occur on the clearest of evidence that there is no other course to follow;
d) The court’s main guide is the welfare of the beneficiaries;
e) It is not every mistake or neglect of duty that will lead to removal. It must be shown that non-removal will likely prevent the trust from being properly executed. The acts or omissions must be such as to endanger the trust property or to show a want of honesty, capacity or reasonable fidelity;
f) Removal is not intended to punish past misconduct but to protect the assets of the trust and the interests of the beneficiaries; past conduct that is likely to continue will often be sufficient to justify removal; and
g) Friction alone is not itself a reason for removal. The question is whether it would be difficult for the trustee to act with impartiality. The friction must be of such a nature or degree that it prevents, or is likely to prevent, the proper administration of the trust.
[9] In Chambers Estate v. Chambers, 2013 ONCA 511, 367 D.L.R. (4th) 151, at para. 95, the Court of Appeal confirmed the high threshold for removal, such that a court should not lightly interfere, should only remove an estate trustee on the clearest of evidence, and noted that the passing over of an estate trustee is an unusual and extreme course.
[10] In Kinnear v. White, 2022 ONSC 2576, at paras. 7-8, this court described the passing over of an executor as an “extreme remedy” and one of “last resort.”
[11] In Meuse v. Taylor, 2022 ONSC 1436, 161 O.R. (3d) 30, at para. 14, this court held that the test is not whether the estate trustee executed her functions perfectly or ideally, but rather whether the trust estate is likely to be administered properly in accordance with the fiduciary duties of the trustee and with due regard to the interests and welfare of the beneficiaries.
[12] If the relationship between the trustee and the beneficiaries is such that the trustee cannot carry out his or her duties in an impartial and objective manner, the trustee may be removed. However, the mere fact of dissension with a beneficiary is not enough. Nor are general allegations of malice and personal hostility. To justify removal, it must be shown that it is the animosity between the trustee and the beneficiaries that motivated the trustee, and as a result, there is a likelihood that the trust cannot be carried out in accordance with the wishes of the deceased as expressed in the will: Crawford v. Jardine (1997), 20 E.T.R. (2d) 182 (Ont. Gen. Div.), at paras. 19-20.
[13] An Applicant is in a stronger position to succeed in a bid to remove a trustee if the animosity arose after the deceased’s death. Otherwise, it may be inferred that the deceased, being aware of the animosity, nonetheless was content to appoint the trustee: Crawford, at para. 20.
[14] The standard of care for an estate trustee is the standard of care “of a person of ordinary care and diligence in managing their own affairs.” The estate trustee is expected to exercise “ordinary skill and prudence” along with the “application of common sense”: Buran v. Cranston, 2022 ONSC 6636, 82 E.T.R. (4th) 292 (Div. Ct.), at para. 14.
Analysis
Deceased’s Choice of Estate Trustee
[15] As shown in the jurisprudence, interference with the Deceased's choice of Estate Trustee should only occur where it is well justified and a clear case of necessity, and where, on the clearest of evidence, there is no other course to follow. As noted in Kinnear, passing over an executor is an extreme remedy and one of last resort.
[16] I am satisfied that the Deceased gave careful consideration to her choice of Estate Trustee. Based on the evidentiary record, the Deceased’s first choice was Candice-Jane Burns, a friend of the Deceased for over 20 years. Ms. Burns deposed that the Deceased had asked her to act as Estate Trustee of the Estate, but she preferred not to take on the responsibility unless no family member was willing and able to do so.
[17] The Deceased did not choose either of her daughters for the role of Estate Trustee. Instead, she chose her sisters. First, Ms. Sands, and in the event that Ms. Sands was unable or unwilling to act, then Ms. Norris. Ms. Norris deposed that she is not interested in acting as Estate Trustee, and would renounce the role, if required to act.
[18] Ms. Sands’ evidence is that the Deceased made her choice of Estate Trustee knowing that the Applicant would not be pleased with her choice and that the Applicant would likely feel that she ought to have been appointed Estate Trustee. Ms. Sands also deposed that the Deceased did not trust the Applicant and did not have confidence in the Applicant’s ability to sell the Deceased’s residence at 128 Brookhaven Court, Welland, Ontario (the “Property”). According to Ms. Sands, the Deceased had been disappointed with the Applicant’s efforts to sell another real property owned by the Deceased and the Deceased’s late spouse. Ms. Sands also deposed that the Deceased was concerned that Marnie’s interests in the Estate be protected, and that the Applicant was known to bully Marnie. Ms. Burns deposed that the Deceased did not trust either of her daughters.
[19] I am satisfied that when the Deceased made the appointment, she did so mindful of the fact that Marnie would likely benefit from the administration of the Estate by an estate trustee who did not also have a beneficial interest in the Estate. It is undisputed that the Applicant had borrowed $12,000 from the Deceased and her late spouse, which had not been repaid at the time of the Deceased’s death. The Applicant’s evidence is that the Deceased forgave the loan by not cashing the Applicant’s cheque given in repayment. But this evidence is disputed. Ms. Sands included the $12,000 as a receivable in her listing of assets and liabilities of the Estate.
[20] Though Marnie is not represented in these proceedings, each of she and her now late spouse swore an affidavit in support of the Applicant’s application. On examination, Marnie deposed that she has not received any advice from the Applicant’s lawyers. Marnie did, however, sign an Authorization and Direction to the Estate Trustees of the Estate in which she agreed that any entitlement she may have in the Estate would go directly to the Applicant’s former lawyers, in payment of the Applicant’s debt to them. On examination, Marnie confirmed that she had no independent legal advice regarding the Authorization and Direction before she signed it, and she signed it because the Applicant asked her to do so.
Estate Trustee Conduct
[21] Ms. Sands’ administration of the Estate has not been perfect. She was unreasonably slow to provide the beneficiaries with a copy of the Will when they asked to see it, and she misled them as to its whereabouts. Ms. Sands did not review the Deceased’s bills in a timely way, which resulted in late payments. Ms. Sands was also late in paying the insurance on the Deceased’s mobile home in Florida (the “Mobile Home”), which resulted in the cancellation of the policy; and she was late in paying the insurance on the Property. In the latter case, the insurers forgave the late fees and backdated the coverage.
[22] Marnie and her late spouse deposed that Ms. Sands claimed the Property as her own despite the fact that her interest in the Property was limited to legal title to the Property, which she held on trust for the beneficiaries of the Estate. Ms. Sands denies this allegation. Ms. Sands did not keep the beneficiaries apprised of her administration of the Estate, including timely disclosure of the Estate’s assets and liabilities, and the sale of the Mobile Home. She has since provided them with an accounting as part of her application to pass her accounts, which she was ordered to bring.
[23] These shortcomings, and others, and alleged hostility between the Estate Trustee and the Applicant, caused the Applicant to bring this application. On February 11, 2020, on consent of the parties, McEwen J. ordered disclosure by Ms. Sands, and made a preservation order over the assets of the Estate, except for the purposes of paying the Estate’s legitimate taxes and liabilities. On August 17, 2021, Conway J. ordered Ms. Sands to pass her accounts as attorney for property (for the period January 1, 2019 to March 22, 2019), and to pass her accounts as Estate Trustee (for the period March 22, 2019 to August 17, 2021). Ms. Sands brought her application to pass her accounts on July 25, 2022.
[24] Ms. Sands was also found by Gilmore J. on May 17, 2022 to have wrongly used Estate funds to pay her personal legal and accounting fees for this litigation arising from the Estate.
[25] The Applicant is particularly critical of Ms. Sands’ sale of the Mobile Home. The Applicant asserts that Ms. Sands let the insurance lapse and was then forced to sell the Mobile Home quickly because it was uninsured. The Applicant also asserts that Ms. Sands ought to have made a counteroffer to the purchasers as opposed to selling it for the price they offered. The Applicant submits that Ms. Sands did not consider renting the Mobile Home or properly marketing it and advertising it for sale. Under cross-examination, Ms. Sands admitted that she did not take any independent steps to verify the value of the Mobile Home, but she accepted US$85,000 as fair value. This is the price that had been offered in a written offer made to the Deceased shortly before her death at a time when the Deceased had set an asking price of US$140,000. Ms. Sands’ evidence is that she relied on the advice of Nancy Marion, the manager of Walden Shores, where the Mobile Home was situated. According to Ms. Sands, Ms. Marion’s advice was that the Mobile Home was a depreciating asset, more like a vehicle, and that the Mobile Home had had little routine maintenance to keep it in top shape. Ms. Marion received a commission on the sale.
[26] Unfortunately, no expert evidence was proffered by either party regarding how mobile homes in Florida are typically valued, priced for sale, or marketed, or whether they are sold as real property or personal property. I agree with the Applicant that Ms. Sands’ evidence regarding the sale of mobile homes in Florida, as conveyed to her by to Ms. Marion, who had a vested interest in the sale of the Mobile Home, is hearsay, unreliable and inadmissible.
[27] Ms. Sands openly admitted that she is inexperienced in the area of estate administration. Evidently, she did not appreciate that she has a duty to keep the beneficiaries informed and to provide them with information relating to the Estate assets. Under cross-examination, Ms. Sands admitted that, as an Estate Trustee, she has a duty to maximize the value of the Estate. However, she also testified in the context of the sale of the Mobile Home: “I would not know where to begin to maximize an estate. I am not an investor, a financier.” Further, on cross-examination, when she was challenged on her decision to accept the purchasers’ offer to buy the Mobile Home without making a counteroffer, she stated: “I am not a real estate person. I am not equipped to quibble about money. I figured it was a fair offer, and I left it at that.”
Animosity
[28] All parties agree that there is considerable friction between Ms. Sands and the beneficiaries. Apart from failing to keep them informed of her administration of the Estate on a timely basis, Ms. Sands has shown some hostility toward them. For example, Ms. Sands wrote a letter to the Office of the Independent Police Review Director, after she had enlisted the assistance of the police to remove the beneficiaries from the Property following the Deceased’s death. In that letter, Ms. Sands described the Applicant and Marnie as “greedy liars and thieves” and stated that she took “great pleasure in having the police blindside [her] relatives.”
[29] Ms. Sands’ conduct and her animosity toward the beneficiaries causes the Applicant to doubt that Ms. Sands will adequately protect their beneficial interests and the remaining Estate assets. The Applicant urges the court to remove Ms. Sands as Estate Trustee and to appoint the Applicant to complete the administration of the Estate.
[30] In my view, the Applicant has not met her heavy burden to show that this case is one of clear necessity, where there is no other course to follow, but to remove Ms. Sands as Estate Trustee. The Estate Trustee has filed an application to pass her accounts, and the Applicant has already filed her objections to the accounts. The passing of accounts forum is an appropriate one which to address many of the concerns raised by the Applicant regarding Ms. Sands’ administration of the Estate (e.g., payment of late fees on overdue bills, alleged payment of excess estate administration tax, alleged overpayment of maintenance fees for the Property; and alleged sales of Estate assets at less than fair market value). The passing of accounts process will give the beneficiaries an opportunity to challenge any transaction Ms. Sands made on behalf of the Estate. Ms. Sands will be held accountable in that process.
[31] Ms. Sands made mistakes in her administration of the Estate, and she did not, at least initially, fully appreciate the nature and extent of her fiduciary duties to the beneficiaries. But as set out in Radford, not every mistake or neglect of duty will lead to removal. Setting aside for the time being, Ms. Sands’ handling of the SUV, which I will address below, I do not find that Ms. Sands’ acts or omissions are such that they have endangered the trust property or that she has shown a want of honesty, capacity or reasonable fidelity. It appears that Ms. Sands now appreciates the need to keep the beneficiaries informed of the Estate administration, to provide them with relevant documents, to account for her actions, and to be transparent in her dealings.
[32] Also, as noted in Radford, removal is not intended to punish past misconduct but to protect the assets of the trust and the interests of the beneficiaries; only past conduct that is likely to continue will justify removal.
[33] Based on the record and the submissions of the parties, I find that the Applicant has not demonstrated that Ms. Sands’ past conduct as an Estate Trustee is likely to continue. I am not satisfied that Ms. Sands’ non-removal will likely prevent the trust from being properly executed. I am satisfied that Ms. Sands now appreciates that all decisions she makes regarding the Estate must be made with regard to the interests and welfare of the beneficiaries.
[34] The principal task that remains to be completed in the Estate administration is the sale of the Property. The Property is, by far, the most valuable asset of the Estate. The Applicant is, naturally, most concerned about the protection of that asset.
[35] Ms. Sands has admitted that she is not a “real estate person”, that she is not “equipped to quibble about money”, and that she was unaware of how to maximize the value of the Estate in the context of the sale of the Mobile Home. These admissions would reasonably cause the Applicant and Marnie to be concerned that Ms. Sands’ past conduct regarding the sale of the Mobile Home could, in respect of the sale of the Property, potentially put this Estate asset at risk. Perhaps Ms. Sands would realize less than fair market value for the Property.
[36] To mitigate this risk, as an alternative to removing and replacing the Estate Trustee, I find that there is another course to follow to ensure that the Property and the beneficiaries are protected. As set out in Kinnear, removal and replacement of an Estate Trustee should be considered as a last resort; and in Radford, the court held that removal should only occur on the clearest of evidence that there is no other course to follow.
[37] I am satisfied that it is not necessary to remove Ms. Sands as an Estate Trustee. There is another course to follow. Out of an abundance of caution, I find that her continued trusteeship should be subject to certain terms to better protect the beneficiaries’ interest in the Property. These terms would require Ms. Sands to hire an accredited real estate agent with experience selling residential real estate in the Welland, Ontario area, and to seek the written approval of the Applicant and Marnie to the sale of the Property to a willing purchaser and failing their approval, approval from this court.
[38] Regarding the animosity between Ms. Sands and the beneficiaries, based on the record, I am satisfied that the Deceased appreciated that in choosing her sister to act as Estate Trustee over either of her daughters, there would likely be tension between them. The Deceased nevertheless appointed Ms. Sands. Further, as set out in Crawford, general allegations of malice and personal hostility are not sufficient to justify removal. To obtain an order for removal, it must be shown that there is outright or marked animosity, which has motivated the trustee, and that as a result there is a likelihood that the trust cannot be carried out in accordance with the wishes of the deceased as expressed in the will. While the record makes it clear that there is no love lost between Ms. Sands and her nieces, the Applicant and Marnie, I am not satisfied that the animus she has shown toward them is motivating or will motivate her to complete the administration of the Estate improperly and contrary to their best interests.
B. The gift of the Vehicle
Law regarding gifts
[39] A gift is a voluntary transfer of property to another without consideration: McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 23.
[40] The Court of Appeal for Ontario, in Teixeira v. Markgraf Estate, 2017 ONCA 819, 137 O.R. (3d) 641, at para. 38, set out the three-part test that a donee must meet to prove a gift. The donee must show (1) an intention to make a gift on the part of the donor, without consideration or expectation of remuneration; (2) acceptance of the gift by the donee; and (3) a sufficient act of delivery or transfer of the property to complete the transaction.
[41] The donor must divest himself or herself of all power and control over the property and transfer such control to the donee: McNamee, at para. 25.
[42] A claimant may not obtain a decision “on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence”: s. 13 of the Evidence Act, R.S.O. 1990, c. E.23, s. 13.
[43] For the reasons that follow, I find that Ms. Sands has not met her onus to prove that the Deceased made a gift of the Vehicle to her.
[44] In this application, Ms. Sands swore an affidavit on April 6, 2020 and a Supplementary Affidavit on January 19, 2022. Ms. Sands was cross-examined on these affidavits. Ms. Sands also swore a second Supplementary Affidavit on January 12, 2023 (the “Second Supplementary Affidavit”), following cross-examination, and days before the hearing. Ms. Sands seeks leave to file the Second Supplementary Responding Record. The Applicant submits that the Second Supplementary Responding Record should not be admitted into evidence because it was filed after cross-examinations had been completed, and she did not have the opportunity to forensically test, or cross-examine on, the evidence contained in the Second Supplementary Record.
[45] Ms. Sands’ evidence about the Vehicle, as set out in her April 6, 2020 affidavit, is that she offered to buy the Vehicle, but the Deceased refused and said that the car was hers (meaning Ms. Sands’). In that affidavit, Ms. Sands also deposed: “I had all the documents for the car given to me by Dayle plus the portion where she signed over the transfer of the car. I promised Dayle that I would leave the car at her home so that the PSW or her friend/neighbour, Tina Muller had a means to take her out for doctor appointments or to the pharmacy when she came home.” There are no documents relating to the Vehicle attached as an exhibit to Ms. Sands’ April 6, 2020 affidavit.
[46] Ms. Sands submits, as set out in her April 6, 2020 affidavit and the Supplementary Affidavit, that she drove from Toronto to Welland on Friday, January 18, 2019, so she could attend with the Deceased at a meeting with the Deceased’s estate planning lawyer, Mark LaRose, on January 21, 2019. She deposed that the Deceased and she “discussed the issue of the car at Dayle’s home on January 19, 2019.” No documents relating to the Vehicle are attached as an exhibit to the Supplementary Affidavit. In neither affidavit does Ms. Sands indicate the date on which the alleged gift of the Vehicle took place.
[47] When cross-examined on these Affidavits, Ms. Sands deposed that the documents relating to the Vehicle, allegedly signed by the Deceased, were lost.
[48] Attached to the affidavit sworn by Ms. Sands on January 10, 2023, contained in her Second Supplementary Responding Record, is an “Application for Vehicle Transfer”, allegedly signed by the Deceased. Ms. Sands’ evidence, as set out in the January 10, 2023 affidavit, is that the document had been lost, but she found it a week earlier in a miscellaneous file at her home. Ms. Sands deposed that she had filled out the form, and the Deceased signed it at the Deceased’s home on January 19, 2019.
[49] I agree with Ms. Sands’ submissions that the evidence contained in the Second Supplementary Record is relevant, and it is responsive to a matter raised on her cross-examination. However, its admission at this stage in the proceedings would, in my view, be prejudicial to the Applicant.
[50] I agree with the Applicant that in the circumstances of this case, in which Ms. Sands’ evidence and conduct regarding the transfer of the Vehicle is inconsistent and suspicious, it would be unfair to the Applicant for the court to admit evidence contained in the Second Supplementary Responding Record, which has not yet been tested on cross-examination or forensically.
[51] Ms. Sands asserts that the Deceased made a gift to her of the Vehicle on January 19, 2019 and that the gift was made on that date at the Deceased’s home. However, certain of Ms. Sands’ evidence, the evidence of others, and Ms. Sands’ conduct regarding the Vehicle are inconsistent with these assertions. They include the following:
a) Ms. Sands made no mention of the date of the alleged gift of the Vehicle to her in either her April 6, 2020 affidavit or in her Supplementary Affidavit. While she deposed that the Deceased had given her all the documents for the Vehicle, including transfer documents, none of those documents were attached as an exhibit to either affidavit. Nor did she depose that those documents were lost.
b) It was in Ms. Sands’ reply to the Applicant’s objections in the passing of accounts application that Ms. Sands definitively took the position that the Deceased gave her the Vehicle on January 19, 2019, and she confirmed that date on her cross-examination.
c) However, in the April 6, 2020 affidavit, Ms. Sands deposed that she discussed with the Deceased leaving the Vehicle at the Deceased’s home so that it could be used by others to take the Deceased to medical appointments or the pharmacy “when she came home.” But it was not until February 4, 2019 that the Deceased was admitted to hospital. Ms. Sands deposed that the transfer documents were signed by the Deceased, in the Deceased’s home, on January 19, 2019. There is no evidence to suggest that the Deceased was not residing in her home on January 19, 2019, when the transfer is alleged to have taken place. When asked about this inconsistency on cross-examination, Ms. Sands did not have a persuasive explanation.
d) January 19, 2019 was two days before the estate planning meeting with Mr. LeRose at the Deceased’s home, which both the Deceased and Ms. Sands attended. However, there is no evidence to suggest that the Deceased or Ms. Sands alerted Mr. LeRose to the fact that the Vehicle had been given away two days earlier. Nor does it appear that was he asked to prepare a deed of gift or otherwise paper the transfer that was alleged to have just occurred.
e) Ms. Sands also deposed that on March 20, 2019, she and Ms. Norris made many trips together in the Vehicle, but Ms. Sands never told Ms. Norris that the Deceased had gifted the Vehicle to her or that it belonged to her. Ms. Norris’ evidence on examination is that Ms. Sands and she looked for the ownership and insurance documents for the Vehicle on that day. Ms. Sands’ evidence on the same point is that she told Ms. Norris that the insurance information was in the Vehicle, and it was “Dayle’s insurance”, which she had pulled out and showed to Ms. Norris. This conduct is inconsistent with Ms. Sands’ statement that she had all documents relating to the Vehicle. Ms. Sands disputes Ms. Norris’ evidence and states that there was no discussion with Ms. Norris about ownership papers, only insurance.
f) Nearly five years later, on the eve of this hearing, Ms. Sands claims to have found a Vehicle transfer document that the Deceased allegedly signed. As noted, I agree with the Applicant that this evidence is inadmissible because the document was produced after Ms. Sands had already been cross-examined, and the Applicant did not have the opportunity to examine the document or retain a handwriting expert to test its authenticity.
g) Despite Ms. Sands’ position that she received the Vehicle as a gift on January 19, 2019, in her role as Estate Trustee, she included the value of the Vehicle in the value of the Deceased’s personal property in her application for a Certificate of Appointment of Estate Trustee with a Will made later in 2019. This action is entirely inconsistent with Ms. Sands’ position that the Vehicle was gifted to her prior to the Deceased’s death.
h) Following the Deceased’s death, on April 17, 2019, Ms. Sands insured the car as a “parked car”, and named the Deceased as an owner.
i) Ms. Sands did not register the transfer of the Vehicle until August 1, 2019, several months after the Deceased’s death. She did not advise the beneficiaries of this registration.
j) In the Vehicle transfer documents prepared for the Ministry of Transportation, and dated August 1, 2019, Ms. Sands, in her capacity as “Executor” transferred the Vehicle to herself.
[52] To corroborate her evidence of the gift of the Vehicle, Ms. Sands relies on the sworn evidence of the Deceased’s neighbour, Tina Muller. Ms. Muller deposed that the Deceased told her that the Deceased was giving her car to Ms. Sands. I do not find this evidence helpful. Even if the Deceased had told Ms. Muller that she “was giving” the Vehicle to Ms. Sands, this is not proof that she did in fact give it to her. I do not find this evidence material. Further, I find that Ms. Muller is not an unbiased witness in these proceedings. Ms. Sands, as Estate Trustee, has hired Ms. Muller and her husband to do some maintenance and other work relating to the Property and the Estate for which she is paying them. The Applicant claims that Ms. Sands’ payments to Mr. and Ms. Muller for this work are excessive.
[53] In light of the inconsistencies in Ms. Sands’ statements and her conduct regarding the Vehicle, both prior to and after the Deceased’s death, I find that Ms. Sands has not met her burden to show that the Deceased intended to make a gift of the Vehicle to Ms. Sands. Further, I do not find Ms. Muller’s evidence sufficiently reliable to corroborate Ms. Sands’ evidence on the Deceased’s intention to make a gift of the Vehicle to Ms. Sands.
[54] The same inconsistencies lead me to conclude that there was no acceptance of the gift by Ms. Sands. Acceptance of a gift involves an understanding of the transaction and a desire to assume title. This is a requirement that is treated with little rigour in the ordinary case; acceptance is presumed to exist: McNamee, at para. 48. In my view, the present case is not an ordinary case.
[55] The evidence does not support an actual transaction, and a desire by Ms. Sands to assume title. There is no evidence that Ms. Sands, herself, told anyone about the gift, including Mr. LeRose. She did not notify the Vehicle insurers of the gift. Rather, she listed the Deceased as the primary driver until August 1, 2019, and it was not until July 6, 2019 that Ms. Sands even added her name to the insurance policy as a “driver.” Ms. Sands treated the Vehicle as an Estate asset by including its value in the value of the Estate assets when applying for the Certificate of Appointment of Estate Trustee with a Will, and by transferring the Vehicle, after the Deceased’s death, from herself, as “Executor”, to herself. In addition, Ms. Sands continued to make Vehicle insurance payments from the Estate, and only later took steps to reimburse the Estate for such payments. Accordingly, I find that there was no acceptance of the Vehicle by Ms. Sands at the time of the alleged gift.
[56] Based on the evidentiary record, I also find that the Deceased did not deliver the Vehicle to Ms. Sands. Legal ownership of the Vehicle remained in the Deceased’s name until she passed away, and for several months thereafter.
[57] As an alternative to a transfer of legal ownership, I find that the Deceased, as donor, did not do “everything necessary and in her power to effect the transfer of the property”, as described in Teixeira, at para. 44. According to Ms. Sands’ own evidence, the Vehicle remained with the Deceased after January 19, 2019, as did the keys, and Ms. Sands did not take possession of the Vehicle during the Deceased’s lifetime. Accordingly, I find that the Deceased did not do all that could be done to divest title in favour of Ms. Sands and to effect the transfer of the Vehicle.
[58] In summary, I find that Ms. Sands has not met her onus to show that the Deceased intended to make a gift of the Vehicle to Ms. Sands, that Ms. Sands accepted the gift, and that the Deceased delivered the Vehicle, or did all that could be done to divest title to the Vehicle in favour of Ms. Sands and to transfer the Vehicle to her. Accordingly, I find that the Vehicle is an asset of the Estate and must be returned to the Estate by Ms. Sands, forthwith.
Disposition
[59] Ms. Sands shall not be removed as Estate Trustee and replaced with the Applicant. However, the following terms shall apply to Ms. Sands’ ongoing role as Estate Trustee insofar as her administration of the Property is concerned:
a) Unless otherwise agreed, in writing, among Ms. Sands, the Applicant and Marnie, Ms. Sands shall arrange to list and sell the Property this spring. In doing so, Ms. Sands shall retain an accredited real estate agent with experience in selling residential real estate in the Welland, Ontario area to assist her in the listing, marketing and selling of the Property.
b) Ms. Sands shall be required to obtain the written approval of the Applicant and Marnie to the sale of the Property pursuant to an Agreement of Purchase and Sale entered into between Ms. Sands, as Estate Trustee, and the offeror(s). Approval by the Applicant and Marnie shall not be unreasonably withheld. Failing their approval within 24 hours of Ms. Sands’ written request, Ms. Sands shall, on notice to the Applicant and Marnie, bring an application before this court for an order approving the sale pursuant to the Agreement of Purchase and Sale.
[60] The preservation Order of McEwen J., dated February 11, 2020, shall be lifted, and a Certificate of Appointment of Estate Trustee with a Will shall issue to the Applicant upon her filing all requisite application materials, if not already filed.
[61] A declaration shall issue that the Deceased did not make a gift of the Vehicle to Ms. Sands, and Ms. Sands shall, within 21 days of these Reasons for Decision, arrange for ownership and possession of the Vehicle to be transferred to the Estate or, alternatively, to the Applicant or Marnie, as they can agree between themselves and on their written direction to Ms. Sands.
[62] Any issue of damages regarding Ms. Sands’ transfer of the Vehicle to herself shall be addressed on her application to pass her accounts.
Costs
[63] Success has been divided in this application. The parties are encouraged to agree on the matter of costs between themselves. If the parties cannot agree, anyone seeking costs shall serve and file written cost submissions not exceeding three pages (double-spaced), not including a costs outline, bill of costs or offers to settle, within 14 days of these Reasons for Decision. Any reply submissions, not exceeding three pages (double-spaced) shall be served and filed 14 days thereafter.
Dietrich J.
Released: February 27, 2023
COURT FILE NO.: 05-336/19
DATE: 20230227
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MELISSA HENDERSON
Applicant
– and –
SHERYL SANDS, personally and in her capacity as Estate Trustee of the Estate of Dayle Colette Solivo (also known as Dayle Colette Henderson and Dayle Colette Cusson) and in her capacity as Attorney for Property for Dayle Colette Solivo (also known as Dayle Colette Henderson and Dayle Colette Cusson), JUDITH NORRIS in her capacity as alternate Estate Trustee of the Estate of the Estate of Dayle Collette Solivo (also known as Dayle Colette Henderson and Dayle Colette Cusson) and MARNIE HENDERSON
Respondents
REASONS FOR DECISION
Dietrich J.
Released: February 27, 2023