BARRIE COURT FILE NO.: CV-24-315-00 DATE: 20240812

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kelvin Troy Helmer, Personally, and as Estate Trustee for the Deceased, Elenore Helmer, and Kevin James Helmer, Plaintiff/Responding Parties

AND:

Randy Gliddon, Defendant/Moving Party

BEFORE: The Honourable Madam Justice S.E. Healey

COUNSEL: Marc Lemieux, Counsel, for the Plaintiffs/Responding Parties Kathleen Judd, Counsel, for the Defendant/Moving Party

HEARD: August 6, 2024

ENDORSEMENT

[1] The defendant Glidden moves to set aside the order of Justice Leibovich made on February 6, 2024, permitting the plaintiffs to register a Certificate of Pending Litigation (“CPL”) against the real property known as 400 Little Ave, Barrie (the “property”), an order that the plaintiffs pay the cost associated with the removal of the CPL on title and the costs of this motion.

[2] Preliminary submissions were heard from counsel with respect to whether the motion could proceed today. Mr. Lemieux still wished to cross-examine the defendant and felt he could not proceed with argument because he did not have access to the correct bundle in Case Center to have uploaded his material by the deadline last week. Ms. Judd opposed any adjournment.

[3] This motion was first returnable on March 19, 2024. After various delays it eventually proceeded to triage court before RSJ Edwards, who imposed a comprehensive timetable for the obvious purpose of ensuring that the motion moved forward and was heard in a timely way. There was a deadline for serving all notices of examination intended to be conducted. None were served by the deadline. The plaintiffs’ opportunity to cross-examine for this motion is terminated. Mr. Lemieux was able to deliver the affidavits and factum that he relied on for this motion to the court through the registrar, and I ordered that the matter would proceed in the afternoon to provide a chance to read the material.

Background

[4] Elenore Helmer and the defendant lived in a common-law relationship for over 10 years, until Elenore’s death on June 25, 2023. They owned the property together, holding title as joint tenants from the time of its purchase. The plaintiffs are two of Elenore’s three children from a former union.

[5] Elenore and the defendant purchased the property on July 5, 2013, and obtained a mortgage that same day which states that the parties are spouses. They lived in that property continuously until Elenore’s death.

[6] Elenore made a will with solicitor Doug Hill on May 26, 2022. Her Will contained the following provision:

It is my expressed wish and desire that upon my death, my property described as, 400 Little Ave. Barrie, Ontario, be sold immediately upon my death and the proceeds of property are to be divided and distributed into four (4) shares, to be given to, RANDY GLIDDON and KELVIN TROY HELMER and, KORY LEE HELMER, and, KEVIN JAMES HELMER. Should RANDY GLIDDEN predecease me, his share is to be divided and distributed equally among and KELVIN TROY HELMER and, KORY LEE HELMER, and, KEVIN JAMES HELMER.

[7] On September 5, 2023, Mr. Hill was advised by a paralegal, Cresteena Fernandes, that the defendant was preparing to refinance the property. As of that date, Mr. Hill was acting in his capacity as named executor pursuant to the Will. Mr. Hill’s response was to advise that the existing mortgage had been extended to allow for the property to be readied for sale, and that the refinancing was a surprise. The email exchange that continued the following day indicates that the defendant was asserting his right of survivorship. This prompted Mr. Hill to renounce, as he was then in a position of conflict and, Kelvin Helmer, who is listed as the alternative executor for the estate in the Will, took over.

[8] An email sent by Mr. Hill to Kelvin Helmer on September 20, 2023 was part of the evidence on the ex parte motion. The email states that Mr. Hill had explained to Elenore the options for severing a joint tenancy and Elenore elected not to change the title from joint tenancy. It went on to say:

She later told me she trusted that what she wanted would be done and left title as is, and then directed that final will. Randy was made aware that he holds title as joint tenants and therefore can claim he now owns the place as surviving joint tenant. He did confirm to me that he was aware that Elenore wanted the place sold and divided 25% to him and 25% to each of her three sons. He agreed that he would maintain the house costs from the existing Meridian account and would ready the house for sale which he expected would take three months. Then the house would be sold and the proceeds divided as Eleanor had directed. The difficulty is that the original copy of that will was never located. It should have her notes etc in the will envelope and would help.

[9] The defendant’s evidence is that he has resided at the property since its purchase, and has paid the mortgage, made upgrades and maintained the property since it was purchased. The couple never broke up or separated and were in a loving relationship until her death.

[10] The plaintiffs have never contributed any money to the property. The defendant maintains that he never agreed to give the property to Elenore’s children or told Elenore that he would agree to doing so. He never gave a promise to anyone that would result in him losing the property. He would not have agreed to put a house in trust for Elenore’s children, with whom he did not have a good relationship while their mother was alive, and has an adult child of his own.

Issues

[11] The defendant Glidden puts forward two bases for setting aside the order. First, that the CPL was obtained from the court without making full and fair disclosure, and by providing misleading information and second, that there is no triable issue in this case.

Law and Analysis

[12] Rule 39.06(6) requires the moving party on an ex parte motion to make full and fair disclosure of all material facts, “and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application”. The phrase “all material facts” are all those that might reasonably affect the outcome: Fox v. Fox, 2014 ONSC 1135, 2014 CaswellOnt 2452 (Div. Ct.); Shahbaz v Mizrahhi, 2018 ONSC 1915, at para. 18; Morris v. Lazaridis, 2009 39491 (ON SC); Hunter’s Square Developments Inc. v. 351658 Ontario Limited, 2002 49491 (ON SC).

[13] The defendant asserts that there are five omissions from the materials placed before Justice Leibovich. These are:

1. There is no affidavit evidence of agreement of the defendant severing the joint tenancy after death from the lawyer who took instructions for drafting the will.
2. The motion was brought before the statement of claim had been served.
3. There is no evidence of an oral implied trust as asserted by the plaintiffs being given to them by the defendant or the deceased, other than what is in the will, which jurisprudence has established does not allow for the severing of joint tenancy.
4. The plaintiffs did not include the parcel abstract of the property which would indicate that there was no need for urgency as the property had already been refinanced, which does not align with the statements in the motion material and factum that there was a need for urgency.
5. The material did not reference the applicable legal test to allow the property to be severed following death, which is material to their argument of a triable issue.

[14] I find that there was no material non-disclosure.

[15] It is clear from the affidavit of Kelvin Helmer submitted for the ex parte motion (the “original affidavit”) that the plaintiffs are relying on an oral trust agreement that they allege to have been made between their mother and the defendant. The original affidavit contains the email of September 20, 2023, by which Mr. Hill set out his understanding that Mr. Helmer had agreed to sell the house and divide the proceeds as deceased had directed. There is no evidence that would have led the court to believe that the severance of the joint tenancy had definitively occurred.

[16] A motion may be brought before an originating process is served, and in fact, in case of urgency, may be made even before the commencement of a proceeding: r. 37.17. The court was aware that the claim had not been served, as the original affidavit gave an undertaking that the claim would be served with the motion material and order if the motion was granted.

[17] There is arguable evidence of an oral trust, as set out through the emails delivered by Mr. Hill.

[18] The plaintiffs did not include a recent parcel register in the motion, but rather relied on one that had been printed in September 2023. The spectre of refinancing was first raised in September. The plaintiffs’ motion material was prepared in December. The defendant states in his affidavit that the court was misled because the plaintiffs did not advise that he had “refinanced months before”. There is no evidence in his affidavit as to when he refinanced, or that the transaction had been communicated to the plaintiffs at the time or at any time after it had been completed. During submissions the court was told that the refinancing occurred on December 15, 2023, a Friday, and the date on the original affidavit and motion is December 18, 2023, the following Monday. There is no evidence that the plaintiffs had learned between Friday and Monday that the new mortgage had already been registered. Further, even if this had been known and disclosed, I agree with the plaintiffs’ position that this would not have altered the outcome of the motion. It would only be further evidence that the defendant is acting without regard to the potential legal rights of the plaintiffs, and his unfettered ability to sell the property still threatened their position in the absence of a CPL.

[19] The fact that the material did not reference the test for severing a joint tenancy is not fatal. Judges are presumed to know the law.

[20] A joint tenancy may be severed in one of three ways: 1) by one joint tenant unilaterally acting on their own share, such as selling or encumbering it; 2) a mutual agreement between the co-owners to sever the joint tenancy; or 3) any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common: Bruce Ziff, Principles of Property Law, 5th ed. (Toronto: Carswell, 2010) at pp. 342 and 345; Robichaud v Watson, (1983), 1701 (ON SC); Walters and Walters (Re) (1977), 1977 1835 (ON SC), 16 O.R. (2d) 702, aff’d (1978), 1978 1691 (ON CA).

[21] A declared intention not communicated to a co-owner is, on its own, insufficient to establish a mutual intention to sever a joint tenancy. It is also well-established that a joint tenancy cannot be severed in a testamentary document.

[22] The defendant’s position is that there is no triable issue in this case that would justify maintaining the CPL on title. The establishment of a triable issue at this point in the case is a low threshold to meet.

[23] The plaintiffs are not relying on the will to sever the joint tenancy. Their position is that the will simply reflects the agreement that had been struck between their mother and the defendant and communicated to Mr. Hill, allegedly by both of his former clients. The plaintiffs’ case hinges almost entirely on the evidence of Mr. Hill, who has not yet provided sworn evidence. As such, the strength of the plaintiffs’ case cannot be determined. Whether the alleged oral trust can be established, which is a heavy onus, and whether it is sufficient to sever the joint tenancy by constituting “a mutual agreement between the co-owners to sever the joint tenancy” is not able to be evaluated at this time. However, the information that has been conveyed in Mr. Hill’s email messages as to his understanding of the agreement between Elenore and the defendant is enough to at least raise triable issues on these points.

[24] The defendant has not satisfied the test to set aside the order, and accordingly this court orders that the motion is dismissed.

Costs

[25] Both parties uploaded a cost outline to Case Center as directed by the court, and Ms. Judd included written submissions, all of which I have now reviewed.

[26] There have been numerous steps required to get the motion to a hearing date on August 6, 2024, none of which I have been involved with. Both lawyers blame the other for driving up costs unnecessarily. It was obvious at the hearing of the motion that their professional relationship is impairing their ability to work cooperatively to try to conduct the litigation efficiently to keep costs in check for their clients; whether one counsel bears more responsibility for this is not a matter that I can decide on the written material. In the result I am restricting costs to the normal preparation of motion material and the attendance on August 6 only.

[27] Taking into account all of the factors in r. 57.01(1), the reasonable expectation of the unsuccessful party and an amount that this court considers fair and reasonable for a motion of this nature, this court orders that the defendant shall pay costs of this motion to the plaintiffs fixed in the amount of $11,300 inclusive and payable within 30 days.

Healey, J. Date: August 12, 2024