COURT FILE NO.: CV-21-86599 & CV-21-88099
DATE: 2024/05/31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HERMINIA BADA
Applicant
– and –
ERNESTINA BADA
Respondent
Keith A. MacLaren/Noémie Ducret, Perley-Robertson, Perley-Robertson, Hill & McDougall LLP, for the Applicant
Cheryl Letourneau/Morgan McCartney, Vice and Hunter LLP, for the Respondent
AND BETWEEN:
ERNESTINA BADA
Applicant
– and –
HERMINIA BADA, MICHELLE BADA and FERNANDO BADA
Respondent
Cheryl Letourneau/Morgan McCartney, Vice and Hunter LLP, for the Applicant
Keith A. MacLaren/Noémie Ducret, Perley-Robertson, Perley-Robertson, Hill & McDougall LLP, for the Respondent
HEARD: March 27, 28, 29, 30 and 31, 2023; closing submissions in writing.
REASONS FOR DECISION
Williams J.
Overview
[1] This was the trial of a mother-daughter dispute over a life interest in a home in Ottawa’s Sandy Hill neighbourhood.
[2] Ryan Bell J. ordered that two applications, one started by the mother and one by the daughter, be tried together:
Application #1:
Court file # CV-21-86599.
Parties: Herminia Bada (applicant); Ernestina Bada (respondent)
Notice of application issued May 27, 2021.
Relief sought:
a) A declaration that Herminia retains a life interest in the Marlborough property;
b) An order restraining Ernestina from evicting Herminia from the property;
c) A declaration that Ernestina cannot unilaterally force Herminia from her living accommodation; and
d) An order for the accounting of funds Ernestina borrowed on a line of credit, obtained from Herminia’s rental property and withdrew from Herminia’s bank accounts.
Application #2:
Court file # CV-21-88099
Parties: Ernestina Bada (applicant); Herminia Bada, Michelle Bada and Fernando Bada (respondents)
Notice of application issued December 9, 2021.
Relief sought:
a) A declaration that Herminia has relinquished her life interest in the Marlborough property;
b) A declaration that Ernestina is the sole owner of the property;
c) A declaration that Ernestina may deal with the property, including the sale of the property, in any manner that she determines at her sole discretion;
d) An order that Michelle and Fernando are restrained from entering onto and/or trespassing at the property during the time that Ernestina is the sole owner of the property; and
e) Damages in the amount of $25,000 for the damage to the property caused by Michelle and/or Fernando.
[3] Herminia Bada is the mother of Ernestina Bada and Fernando Bada. Michelle Bada is Fernando Bada’s wife.
[4] In these reasons, only because the parties have the same last name, I will be referring to them by their first names.
The evidence
[5] The four parties and a lawyer gave evidence in chief through affidavits and were cross-examined and re-examined in court.
[6] The parties had been cross-examined on their affidavits prior to trial, before Ryan Bell J. ordered that the applications should be tried. A dispute arose late in the trial in respect of whether the transcript of Ernestina’s pre-trial cross-examination could be used at trial. The parties interpreted a reference to “read-ins” in a pre-trial timetable differently. I ruled that, in the circumstances, it would be unfair not to permit Herminia to file excerpts from Ernestina’s pre-trial transcript. I invited Ernestina’s counsel to include any submissions about this evidence in her written closing submissions.
[7] Two other witnesses, Charles Page, and Richard Mailly swore affidavits and were cross-examined before trial. Their affidavits and the transcripts of their cross-examinations were filed on consent.
[8] Ernestina filed affidavits of four other witnesses, including one of her daughters and her sister. Herminia argued that the evidence of these witnesses was irrelevant.
[9] At the outset of the trial, Ernestina’s counsel presented a list of facts she understood to be agreed. Herminia’s counsel took issue with the list and filed a list on behalf of Herminia. Herminia’s list included reworded or abbreviated versions of some of Ernestina’s “agreed” facts and several outright denials of facts on Ernestina’s list. Although these lists were intended to streamline the fact-finding process, they were not very helpful because of the cross-referencing required to identify which facts or subsets of facts were not in dispute. Unless I say otherwise, I proceeded on the assumption there were no agreed facts.
[10] Herminia also took issue with portions of Ernestina’s affidavit evidence and several exhibits. Herminia included in her written submissions a chart which set out the parties’ positions with respect to each objection. My rulings in respect of these objections will be released separately.
The facts
[11] The property at issue is a single-family home at 98 Marlborough Ave. in Ottawa.
[12] Herminia and her late husband purchased 98 Marlborough in the late 1970s. Herminia became the sole owner of the property when her husband died in 1983.
[13] At the time of the trial, Herminia was 96 years old.
[14] In 2014, Ernestina and Herminia were close. Herminia trusted Ernestina. Herminia owned two rental properties on Somerset St. East in Ottawa. Ernestina had managed the properties for Herminia for many years. Herminia and Fernando were estranged at the time. Ernestina and Fernando have a sister, Honorina, who was living in the United States.
[15] In October 2014, Herminia transferred title to 98 Marlborough to Ernestina and took a life interest in the property. Herminia and Ernestina also signed a life interest agreement.[^1] The plan was that Ernestina and her two daughters would move into 98 Marlborough and live there with Herminia. Ernestina would pay all of the expenses associated with the property. Herminia would continue to live at the property for the rest of her life or for as long as she wanted to. The life interest would end when Herminia no longer lived at the property on a permanent basis.
[16] Also in October 2014, Herminia prepared a will, in which she named Ernestina as her executor and left some jewelry to Ernestina but divided the residue of her estate, which included the two rental properties, between Fernando and Honorina.
[17] In October 2014, Ernestina and her two daughters lived in a home on Cargrove Private in Ottawa. Ernestina said she was not willing to move into 98 Marlborough unless the property was renovated. Ernestina said that Herminia knew this, and that Herminia also knew that Ernestina could only afford to renovate the property if she obtained financing.
[18] In early 2015, Ernestina applied for financing from the Bank of Nova Scotia to pay for renovations to 98 Marlborough. The loan would be secured by a mortgage against 98 Marlborough.
[19] BNS would not lend Ernestina money for the renovations unless she agreed to pay approximately $50,000 in credit card and other debt.
[20] When BNS later learned about Herminia’s life interest in 98 Marlborough, it refused to advance funds unless the life interest was discharged.
[21] On February 20, 2015, Herminia and Ernestina met with a lawyer and Herminia signed an acknowledgement and direction in respect of the termination of Herminia’s life interest in the property.
[22] Herminia’s life interest was discharged from the title of 98 Marlborough, when a transfer of her interest in 98 Marlborough to Ernestina was registered on February 26, 2015. The same day, BNS registered a mortgage against 98 Marlborough in the principal amount of $390,000.
[23] Ernestina then renovated 98 Marlborough. Herminia lived with Ernestina and her daughters at the Cargrove Private property during the renovations. Herminia, Ernestina, and Ernestina’s daughters all moved into 98 Marlborough in December 2015, after the renovations had been completed.
[24] More than four and a half years later, in the summer of 2020, the relationship between Herminia and Ernestina began to break down. The primary source of tension appears to have been Ernestina’s boyfriend. Herminia did not approve of him. She felt that he drank too much and that he was spending too much time at the property. Herminia also no longer wanted to pay the $1,000/month for living expenses she had been paying Ernestina since January 2016.
[25] Ernestina said that, around this time, Herminia became both verbally and physically abusive. She said that Herminia would hit her and spit at her. Ernestina said she began to have concerns about Herminia’s cognitive capacity.
[26] Ernestina’s observations about the change in Herminia were echoed by her sister Honorina. In her affidavit, Honorina said that she and Herminia had always had a model mother/daughter relationship and that Herminia had never said a mean word or voiced any concerns about their relationship or about her relationship with Ernestina. Honorina said that in 2020, Herminia’s behaviour became erratic, that Herminia yelled obscenities at her over the telephone and accused her and her daughter of colluding with Ernestina to put her in a nursing home so that Ernestina could move her boyfriend and his children into 98 Marlborough.
[27] In early August 2020, one of Ernestina’s daughters called an ambulance because she was concerned about Herminia’s behaviour and well-being. Paramedics took Herminia to hospital. A physician recorded in an emergency department record that Herminia did not appear to be demented or delirious.
[28] Ernestina concluded that she could not longer live under the same roof as Herminia.[^2] Ernestina said she reached out to Fernando to let him know what had happened and to ask for help. Ernestina wanted Fernando to take over Herminia’s care and the management of her rental properties and finances.
[29] Ernestina and her daughters moved out of 98 Marlborough and returned to live at the Cargrove Private property, which Ernestina had been renting to tenants.
[30] Fernando assumed responsibility for Herminia’s finances and the rental properties and Herminia named Fernando as her attorney for property.
[31] The relationship between Ernestina and Fernando and Ernestina and Michelle then became fraught. Fernando accused Ernestina of having taken advantage of Herminia financially and of attempting to make others believe that Herminia was mentally incapable. Ernestina accused Fernando of trying to destroy her and of being more concerned about Herminia’s money than about her well-being. Fernando and Michelle changed the locks at the Marlborough property and did not give Ernestina a key. Ernestina installed a ring camera at the front door of the property. Michelle covered the camera, using black plastic and screws. On one occasion, Michelle turned on all the lights at 98 Marlborough and covered the windows with garbage bags and pillows. Herminia was staying with Fernando and Michelle at the time. Ernestina said that Michelle was trying to harass her by running up the electricity bills even when Herminia was not home. Michelle admitted her conduct had been “juvenile”. Michelle said she was trying to give Herminia the impression that she was doing something to protect her belongings, although Michelle she was unable to articulate how turning on the lights and blacking out the windows would achieve this.
[32] After Ernestina and her daughters moved out of 98 Marlborough, Ernestina’s financial situation was precarious. Ernestina was no longer receiving $1,000/month from Ernestina or rent from the Cargrove Private property. She was responsible for expenses at 98 Marlborough and Cargrove Private, which included payments on the $390,000 BNS mortgage.
[33] In March 2021, Ernestina threatened to evict Herminia from 98 Marlborough. A lawyer representing Ernestina wrote to Herminia’s lawyer and said that Herminia was required to leave the property within 30 days. This prompted Herminia to start her application in May 2021. Ernestina started her application in December 2021.
[34] In July 2022, without notice to Herminia, and while the two applications were outstanding, Ernestina signed a listing agreement to sell 98 Marlborough. Herminia learned of the sale when a real estate agency attempted to put up a “for sale” sign on the property. Ernestina said that when she attempted to sell the property, she did not turn her mind to Herminia’s claim that she had a life interest in the property. Ernestina said she could not afford the two properties and had to do something.
The evidence of Herminia and Ernestina
[35] Despite her 96 years, Herminia was an energetic and forceful witness. Herminia testified through a Spanish interpreter, although at times she did not wait for questions to be translated into English before answering them and at other times she answered questions in English.
[36] Herminia had difficulty with dates but had a good memory of many events. She was able to answer questions about her rental properties and about her finances with ease. She said she trusted Ernestina and that she had expected to continue to live with Ernestina at 98 Marlborough. She admitted to having spit on Ernestina and to having had other physical altercation with her but denied having slapped her. She said that she had been depressed. She admitted that she did not approve of Ernestina’s boyfriend and to having called him highly offensive names.
[37] Although Herminia’s notice of application stated that Ernestina brought Herminia to see a lawyer to execute the documentation required to discharge her life interest in 98 Marlborough, at the trial, Herminia denied having met with the lawyer. In her affidavit, she said that she believed she had been at the lawyer’s office but did not recall signing any documents. At trial, she was adamant that it was not that she did not recall meeting with the lawyer or signing documents, she had not been at the lawyer’s office. She said the lawyer was lying about having met her.
[38] I do not accept Herminia’s evidence about not meeting with the lawyer. This evidence was contradicted by Ernestina and by the lawyer, Anthony Boyle. Given the clarity and strength of Herminia’s evidence in other areas, I am satisfied that she was not mistaken about not having met with Mr. Boyle. I am satisfied that she was not telling the truth. Herminia’s suggestion that it was Mr. Boyle who was lying about the meeting reflects very poorly on her.
[39] I did not have similar criticisms of Ernestina’s testimony. I found that Ernestina answered questions directly and to the best of her ability. Ernestina’s conduct did not always reflect well on her, for example, her attempt to remove Herminia from 98 Marlborough and her attempt to sell the property. Ernestina owned up to her conduct and did not attempt to sugar-coat it. She explained that after moving out of 98 Marlborough, she was trapped. She was required to pay for both Cargrove Private and 98 Marlborough, including the mortgage on 98 Marlborough. She could not sell 98 Marlborough because Herminia was living there. She had two daughters to support. She was in litigation against family members who might otherwise have been expected to help her.
The issues
[40] The applications raise the following issues:
The issues raised by Herminia
Did Herminia relinquish her life interest in 98 Marlborough?
Is Herminia entitled to an order restraining Ernestina from evicting Herminia from the property?
Is Herminia entitled to a declaration that Ernestina cannot unilaterally force Herminia from the property?
Is Herminia entitled to an accounting?
The issues raised by Ernestina
Is Ernestina entitled to a declaration that she is the sole owner of the property?
Is Ernestina entitled to a declaration that she may deal with the property, including the sale of the property, in any manner that she determines at her sole discretion?
Is Ernestina entitled to an order that Michelle and Fernando are restrained from entering onto and/or trespassing at the property during the time that Ernestina is the sole owner of the property?
Is Ernestina entitled to damages from Herminia, Fernando and/or Michelle?
Issue #1: Did Herminia relinquish her life interest in 98 Marlborough?
[41] I find that Herminia did not relinquish her life interest in the Marlborough property.
[42] Herminia and Ernestina agreed to the life interest in October 2014, when they signed the life interest agreement and Herminia conveyed a remainder interest in 98 Marlborough to Ernestina and a life interest to herself.
[43] Herminia was represented by a lawyer at the time. Ernestina was not.
[44] The agreement provided that Herminia would retain a life interest in the property, that Ernestina would be responsible for all costs, expenses and maintenance and that the life interest would terminate if Herminia no longer lived at the property permanently.
[45] Just four months later, Ernestina and Herminia met with a lawyer retained by Ernestina, Mr. Boyle. On February 20, 2015, Ernestina and Herminia signed an acknowledgment and direction with respect to the termination of a life interest.
[46] On February 26, 2015, Mr. Boyle registered a transfer which had the effect of discharging Herminia’s life interest from the title to 98 Marlborough. He then registered a BNS mortgage in the amount of $390,000.
[47] Herminia argues that the acknowledgment and direction and the associated transfer that discharged her life interest are not valid based on the doctrines of undue influence and non est factum.[^3]
[48] There is a presumption of undue influence in circumstances where the potential for domination exists. (Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 SCR 353.) I am satisfied that, at the time they met with Mr. Boyle in February 2015, the relationship between Herminia and Ernestina triggered the presumption of undue influence. Herminia was in her late 80s at the time. Four months before the meeting with Mr. Boyle, she had transferred ownership of 98 Marlborough to Ernestina, in exchange for a life interest in the property, on the understanding that Ernestina would move in with her. Ernestina would only move into 98 Marlborough if the property was renovated. Ernestina needed financing to renovate the property and BNS would only lend her money if Herminia agreed to discharge her life estate. Herminia trusted Ernestina. Although I accept Ernestina’s evidence that, at the time, she had every intention of ensuring that she and Herminia would continue to live at 98 Marlborough as long as Herminia was alive and capable of continuing to live there, I nonetheless find that these were circumstances where the potential for domination existed. Herminia was somewhat dependent on Ernestina at the time and anticipated being more dependant on her in the future. Herminia may well have felt compelled to do whatever needed to be done to ensure that Ernestina could renovate 98 Marlborough.
[49] To rebut the presumption of undue influence, Ernestina must show that Herminia signed the acknowledgment and direction in respect of the termination of her life interest in 98 Marlborough as a result of her own “full, free and informed thought.” (Geffen, citing Zamet v. Hyman, [1961] 3 All E.E. 933 at p. 938.)
[50] Ernestina has failed to satisfy me that Herminia signed the acknowledgement and direction as a result of her own “full, free and informed thought.”
[51] I have already found that Herminia’s evidence about not having met with Mr. Boyle on February 20, 2015 was incredible. I find that Herminia and Ernestina met with Mr. Boyle at his office that day. Herminia said, variously, that she did not recall signing the acknowledgment and direction, that she did not sign the document, that it was not her signature on the document and that it looked like her signature. I accept the evidence of Ernestina and Mr. Boyle that Herminia signed the document in Mr. Boyle’s office on February 20, 2015.
[52] I find Herminia’s insistence that Mr. Boyle lied when he testified about having met with her to be outrageous but also to reveal a degree of naivete. I do not believe that Herminia would have said that Mr. Boyle lied unless she believed that there was a chance she would be believed. In my view, this glimpse of Herminia’s naivete underscores the potential for domination in this situation.
[53] Although I have no doubt that Herminia signed the acknowledgment and direction, I am not satisfied that she understood the implications of doing so.
[54] Mr. Boyle testified that he recommended that Herminia obtain independent legal advice before signing the acknowledgment and direction. Although Mr. Boyle had no notes of his meeting with Ernestina and Herminia, I nonetheless accept his evidence that he recommended ILA. Mr. Boyle testified that although he had been retained only by Ernestina, when Herminia arrived at his office with Ernestina, he considered Herminia also to be a client. It was evident to me that Mr. Boyle understood that he owed a duty to Herminia. Mr. Boyle knew that Herminia had conveyed title to her property to Ernestina just a few months earlier, on the understanding that she would have a life interest in the property. Mr. Boyle also knew that it was Ernestina who wanted to mortgage the property.
[55] Mr. Boyle said that Ernestina and Herminia were very cordial with each other. He said that Ernestina told Herminia that she would not kick her out of the house. Mr. Boyle said that when Ernestina said this, he told Herminia that if she gave up her life interest, she could be removed from the home at any time at the will of Ernestina, and that she should give that consideration.
[56] Mr. Boyle said he saw no signs of coercion or pressure to conclude the transaction.
[57] Although Ernestina and Herminia signed the acknowledgment and direction in his office on February 20, 2015, Mr. Boyle did not register it until February 26, 2015. Mr. Boyle said he told Herminia when she signed the document that she had four days to change her mind. He said that this would give her time to ask any further questions or to obtain independent legal advice. He said he did not communicate with Herminia after February 20, 2015.
[58] Mr. Boyle said that he typically sends a reporting letter to clients at the conclusion of a transaction but that he had been unable to find a reporting letter in this case.
[59] Although I have accepted Mr. Boyle’s evidence that he recommended that Herminia obtain independent legal advice, and that he told Herminia that, if she gave up her life interest, Ernestina could remove her from 98 Marlborough, Ernestina has not satisfied me that Herminia’s decision to agree to the discharge of the life interest was a result of full, free and informed thought.
[60] Herminia had very little formal education. The level of her facility with the English language was not entirely clear to me. As I have noted, although she testified through a Spanish interpreter, she repeatedly insisted on answering questions asked in English before the interpreter could translate them into Spanish. She also repeatedly answered questions in English. That said, she had difficulty reading documents in English, claiming that she did not have her glasses. When she was given the glasses she had in her purse, she said they were not the correct glasses. I was left to wonder how well she was able to read English.
[61] Even if Herminia’s understanding of English had not been an issue, it was not clear to me that she understood the implications of giving up her life interest in 98 Marlborough or that, although Ernestina was saying that she would never force Herminia to leave 98 Marlborough, Ernestina could change her mind. There was also no evidence that Herminia had been advised that she had options. For example, she could have told Ernestina that she was not willing to give up her life interest in the house and if Ernestina was unable to obtain financing to renovate the property, the property would not be renovated. Ernestina’s interest in 98 Marlborough could have been transferred back to Herminia. Herminia and Ernestina could have agreed that Herminia would live with Ernestina and her daughters at the Cargrove Private property, while the Marlborough property was leased to tenants or sold. There was no evidence that any alternatives to giving up her life interest in 98 Marlborough were presented to Herminia.
[62] There was also no evidence that anyone had recommended to Herminia that she turn her mind to what would happen if she gave up her life interest and she and Ernestina subsequently had a falling out and concluded that they could no longer live together, in other words, if what eventually happened, were to happen.
[63] Herminia appears to have relied on Ernestina’s oral promise that she would not force Herminia to leave the Marlborough property. At the time Ernestina made the promise, she intended to keep it. Circumstances changed.
[64] For these reasons, I find that Herminia did not appreciate the consequences of signing the acknowledgment and direction. Ernestina has not satisfied me that Herminia would have signed the acknowledgement and direction if she had had independent legal advice or that, when she signed it, and had a complete understanding of the possible consequences of doing so.
[65] I also find that there was no evidence that Herminia ever agreed to give up her rights under the life interest agreement she and Herminia signed in October 2014. As I have previously indicated, I am satisfied that both Ernestina and Herminia signed that agreement. Although Herminia’s life interest had been discharged from title, there was no document in evidence that suggested that the October 2014 agreement had been set aside.
[66] For these reasons, I find that, although Herminia’s life interest was removed from title, her life interest in the Marlborough property was not extinguished and remains in force.
[67] In light of the findings I have made, I do not intend to consider Herminia’s argument that that the acknowledgment and direction is not valid on the basis of the of non est factum.
Issue #2: Is Herminia entitled to an order restraining Ernestina from evicting Herminia from the property?
[68] As I have found that Herminia has a life interest in 98 Marlborough, it follows that Ernestina has no right to evict Herminia from the property.
Issue #3: Is Herminia entitled to a declaration that Ernestina cannot unilaterally force Herminia from the property?
[69] As I have found that Herminia has a life interest in 98 Marlborough, it follows that Ernestina has no right to unilaterally force Herminia from the property.
Issue #4: Is Herminia entitled to an accounting?
[70] In her written closing submissions, Herminia alleges “financial abuse” on the part of Ernestina. Specifically:
• Herminia says that on January 23, 2018, Ernestina obtained a line of credit in the amount of $46,750 and secured it against one of Herminia’s Somerset St. rental properties. Herminia says that she did not believe that the line of credit was necessary, but agreed to it, on the understanding that the line would be used only for emergencies relating to the rental properties. Herminia says that approximately $25,000 was withdrawn from the line of credit to pay Ernestina’s credit card debt. Herminia says she is now responsible for “the monthly interest on the total amount withdrawn from the Line of Credit being approximately $65,000.”
• A chequing account in Herminia’s name was opened on March 29, 2018. Herminia says she did not know about the account and does not remember opening it. She says that Ernestina’s email address is connected to the account.
• Herminia says between 2018 and 2020, Ernestina used both the line of credit and the Bank of Nova Scotia account for her own benefit by withdrawing funds from the line of credit and transferring them to her personal accounts, using the line of credit and the Bank of Nova Scotia account to pay for her personal credit cards and using the line of credit to pay for expenses relating to the Marlborough property which she was obliged to pay personally under the “life interest agreement.”
[71] In her written closing submission, Herminia requested an order that Ernestina “provide an accounting of the expenses and receipts on Herminia’s accounts, the Line of Credit, the Mortgage, and the Nova Scotia Account for the period of October 2014 to September 2020.” (Herminia signed a power of attorney for property naming Ernestina as her attorney in October 2014.)
[72] Ernestina says that although Herminia signed a power of attorney naming Ernestina as her attorney for property, Ernestina never used the power of attorney. Ernestina also says she has already provided a detailed explanation of all the transactions in Herminia’s bank accounts and the line of credit which the respondents identified as being unexplained or suspicious.
[73] Ernestina says that until the summer of 2020, she and Herminia had a close relationship, that Herminia was both fully involved in and aware of how Ernestina was managing her finances and that they made financial decisions together. Ernestina also said that Herminia continued to take care of some of her own banking until late 2017 or 2018.
[74] Ernestina says that the chequing account opened in 2018 was opened so that she could make e-transfers on Herminia’s behalf. Ernestina said that e-transfers could not be made to third parties directly from the line of credit. Ernestina said she attached an email address to the account that she uses for Herminia’s affairs. Ernestina said that Herminia does not use email and therefore does not have an email address that could have been attached to the account.
[75] Although I accept Ernestina’s evidence that she never relied on Herminia’s power of attorney, I am satisfied that, where an adult child is acting in a fiduciary role vis a vis a parent, the adult child has a duty to account. (Wedemire v. Wedemire, 2017 ONC 6891, at para. 114.) I find that Ernestina was acting in a fiduciary role vis a vis Herminia, at least as of late 2017 or 2018, when Herminia stopped doing her own banking. I find that Ernestina has a duty to account in respect of the January 23, 2018, line of credit and the March 29, 2018 chequing account. I find that the mortgage was not one of Herminia’s accounts, that Ernestina was not acting in a fiduciary role vis a vis Herminia in respect of the mortgage and has no duty to account in respect of the mortgage.
[76] Although Ernestina has provided evidence of her explanations in respect of both the January 23, 2018 line of credit and the March 29, 2018 chequing account, it was not clear to me whether the explanations she was able to provide were hampered because she did not have access to Herminia’s financial records at the time she provided the explanations.
[77] Ernestina shall provide an accounting of deposits and withdrawals: (a) in respect of the line of credit registered against 345 Somerset St. East from January 23, 2018, to August 31, 2020; and (b) in respect of the Bank of Nova Scotia chequing account from March 29, 2018 to August 31, 2020. Ernestina shall have 90 days to supplement the accounting she has provided to date. If, to prepare this accounting, Ernestina requires records that are not in her possession, Fernando shall provide any assistance necessary to obtain these records. The 90-day deadline may be extended, on consent or by further order.
Issue #5: Is Ernestina entitled to a declaration that she is the sole owner of the property?
[78] As I have found that Herminia has a life interest in 98 Marlborough, Ernestina is not entitled to a declaration that she is the sole owner of the property.
Issue #6: Is Ernestina entitled to a declaration that she may deal with the property, including the sale of the property, in any manner that she determines at her sole discretion?
[79] As I have found that Herminia has a life interest in 98 Marlborough, Ernestina is not entitled to a declaration that she may deal with the property, including the sale of the property, in any manner that she determines at her sole discretion.
Issue #7: Is Ernestina entitled to an order that Michelle and Fernando are restrained from entering onto and/or trespassing at the property during the time that Ernestina is the sole owner of the property?
[80] As I have found that Herminia has a life interest in 98 Marlborough, Ernestina is not entitled to an order that Michelle and Fernando are restrained from entering onto the property. Herminia, as life tenant, may invite whomever she chooses to enter onto the property, including Fernando and Michelle.
Issue #8: If Ernestina entitled to damages from Herminia, Fernando, and Michelle?
[81] Ernestina’s claim for damages evolved over the course of the litigation. More specifically:
• In her notice of application, Ernestina claimed damages of $25,000 for damage to property. In the grounds for her application, Ernestina said that Fernando and Michelle Bada damaged the Marlborough property by destroying cameras, locks, and other property. Ernestina referenced Fernando and Michelle storing their belongings at the property, but then specifically said that she was seeking damages “as a result of the damage done” by Fernando and Michelle.
• In her opening address at trial, Ernestina’s counsel referred to damages for damage to the property caused by Fernando and Michelle, and more specifically to a camera Ernestina installed having been covered up and damaged. Ernestina’s counsel also said that the garden at the property had been changed and the locks had been changed. Ernestina’s counsel repeated the reference to Fernando and Michelle having brought their belongings to the property.
• Under cross-examination at trial, Ernestina admitted that she had not presented any evidence of damages. She said she knew that Fernando and Michelle had caused damage to the property but admitted that she did not see them damage the property.
• In her written closing submissions, Ernestina said that Herminia, Michelle and Fernando had excluded her from the property, damaged the property, used the property in a manner contrary to ownership and made changes to the property without her consent. She did not quantify the damage or request an order for a specific amount of damages relating to any of these allegations.
• In her written closing submissions, Ernestina requested payment from Herminia of the $1,000/month Herminia had paid for expenses until September 2020, or, alternatively, $1,000/month to compensate her for lost of use of the property beginning in September 2020. Ernestina’s counsel said in oral closing submissions that this amount would not have been included in the $25,000 in damages requested in the notice of application, but rather under the catch-all request for “such further and other Relief as to this Honourable Court may seem just.”
[82] Ernestina has not satisfied me that she is entitled to an order for damages. She has not provided any evidence in support of the request for $25,000 in damages that was set out in her notice of application.
[83] Ernestina’s request for payment of $1,000/month for loss of use of the property was not made until she included it in her written closing submissions. Ernestina suggested that I consider this relief to fall under the “further and other relief” she requested in her notice of application. In my view, this would not be fair to Herminia, Michelle, and Fernando, who did not have an opportunity to respond to this request at any time during the trial.
[84] Ernestina’s request for damages is dismissed.
Disposition
[85] For these reasons, I make the following orders:
I declare that Herminia Bada retains a life interest in the property at 98 Marlborough Ave.
Ernestina Bada shall provide an accounting of deposits and withdrawals: (a) in respect of the line of credit registered against 345 Somerset St. East from January 23, 2018 to August 31, 2020; and (b) in respect of the Bank of Nova Scotia chequing account from March 29, 2018 to August 31, 2020. Ernestina Bada shall have 90 days to supplement the accounting she has provided to date. If, to prepare this accounting, Ernestina Bada requires records that are not in her possession, Fernando Bada shall provide any assistance necessary to obtain these records. The 90-day deadline may be extended, on consent or by further order.
Ernestina Bada’s application is dismissed.
Costs
[86] The parties have filed costs outlines. If the parties are unable to agree on costs, Herminia, Fernando, and Michelle shall deliver brief (no more than five pages, not including attachments) costs submissions within three weeks of the date of this decision. Ernestina shall then deliver similarly brief costs submissions within three weeks of the date of receipt of the submissions of Herminia, Fernando, and Michelle.
Date: May 31, 2024
Williams J.
COURT FILE NO.: CV-21-86599 & CV-21-88099
DATE: 2024/05/31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HERMINIA BADA
Applicant
– and –
ERNESTINA BADA
Respondent
AND BETWEEN:
ERNESTINA BADA
Applicant
– and –
HERMINIA BADA, MICHELLE BADA and FERNANDO BADA
Respondent
REASONS FOR DECISION
Williams J.
Released: May 31, 2024
[^1]: A signed version of the life interest agreement was not in evidence. Herminia and Ernestina both said they signed the agreement. Herminia said that Ernestina had a signed copy of the agreement. Ernestina said the lawyer who represented Herminia at the time, John Piazza, would have a signed copy of the agreement. I am satisfied that the life interest agreement was signed by Herminia and Ernestina.
[^2]: The parties agree that Ernestina and Herminia are unable to live together.
[^3]: Ernestina argues that Herminia should not be entitled to rely on these doctrines because they were not pleaded in her notice of application. Herminia’s notice of application requested a declaration that Herminia retains a life interest in 98 Marlborough. In her notice of application, Herminia pleaded that Ernestina wanted Herminia’s life interest to be removed from title, that Ernestina assured Herminia that the life interest would continue even if discharged from title, that Ernestina brought Herminia to meet with Ernestina’s lawyer, that Herminia was told that nothing would change if the life interest were discharged, that Herminia did not understand what she was signing and that Herminia trusted Ernestina’s intentions to honour the life interest. I am satisfied that Herminia’s notice of application raises both the doctrine of undue influence and non est factum. Herminia’s affidavits provide further factual foundation for her reliance on both doctrines.