Court File and Parties

Court File No.: CV-24-312-ES
Date: 2025/05/26
Court: Ontario Superior Court of Justice

Between:
Amanda Morden (Applicant)
and
Ingrid Niwranski (Respondent)

Applicant Counsel: David Smith and Mark Lahn
Respondent Counsel: Jennifer Krotz

Heard: April 29, 2025
Judge: G. E. Taylor

Reasons for Judgment

Introduction

[1] The applicant is the daughter of Giuseppe Lagana who died intestate on January 22, 2021 (“the date of death”). The respondent was co-habiting with Giuseppe Lagana at the date of death. At the date of death, Giuseppe Lagana held a Mutual Fund Investment Account and a Guaranteed Investment Certificate (together “the Investment Accounts”) in joint ownership with the respondent. The total amount held in the Investment Accounts at the date of death was $206,551.33. The funds deposited into the Investment Accounts were the proceeds from the sale of Giuseppe Lagana’s home in British Columbia.

[2] The issue is whether the respondent holds the Investment Accounts subject to a resulting trust in favour of the estate of Giuseppe Lagana or if the respondent has rebutted the presumption of resulting trust in which case she is the beneficial owner entitled to the proceeds of the Investment Accounts.

The Evidence

[3] Giuseppe Lagana was 59 years old at the date of death. He died intestate. The applicant is the only daughter of Giuseppe Lagana. They were not close.

[4] Giuseppe Lagana and the respondent met and began dating in June 2018 at which time Giuseppe Lagana was living in British Columbia and the respondent was living in Cambridge, Ontario.

[5] In her affidavit in support of this application, the applicant deposed that Giuseppe Lagana was largely absent during her childhood.

[6] The applicant states that she was advised by Franco Lagana, Giuseppe Lagana’s brother, that the respondent and Giuseppe Lagana separated on October 6, 2018 and Giuseppe Lagana returned to British Columbia. She also states that she was told by Franco Lagana that the house was sold on March 1, 2019 for $342,000.

[7] The applicant deposes that she was told by Franco Lagana that from the fall of 2020 until his death, Giuseppe Lagana slept separately from the respondent in the basement.

[8] The respondent swore three affidavits on this application. She deposed that she and Giuseppe Lagana began dating in June 2018 and began co-habiting in her home in Cambridge in August 2018. At this time Giuseppe Lagana owned a home in British Columbia. In or around October 2018, a decision was made by Giuseppe Lagana and the respondent that he would sell his house in British Columbia and return to Ontario to live with the respondent. Giuseppe Lagana then returned to British Columbia in October 2018 for the purpose of making arrangements to sell his house. Giuseppe Lagana entered into an agreement to sell his home in mid-January 2019.

[9] The respondent disputes the applicant’s assertion that she and Giuseppe Lagana separated on October 6, 2018. Her evidence is that she travelled to British Columbia in January 2020 to assist Giuseppe Lagana in the sale of his house.

[10] In March 2019, after completing the sale of his house, Giuseppe Lagana moved to Ontario and lived with the respondent in her home. The respondent states that they lived together as spouses and referred to each other as husband and wife. The respondent also denies the allegation by the applicant that she and Giuseppe Lagana slept in separate bedrooms in the fall of 2020.

[11] Giuseppe Lagana was admitted to the hospital on January 7, 2021 and died on January 22, 2021.

[12] The respondent deposes that, in anticipation of a planned extended vacation, she asked Giuseppe Lagana about preparing a will and power of attorney. He declined because he did not wish to incur the legal fees. He said he would deal with the bank to ensure that his affairs were in order. It is uncertain as to when this conversation took place.

[13] According to the respondent, on May 9, 2019, Giuseppe Lagana attended at the Royal Bank branch in Cambridge and executed documentation designating the respondent as beneficiary of his Registered Retirement Savings Plan (“RRSP”) and his Tax-Free Savings Account (“TFSA”). She was not present. The respondent states that she was not aware that Giuseppe Lagana was going to make her beneficiary of his RRSP and TFSA until after he had done so. It is not disputed that the respondent is entitled to the funds in the RRSP and TFSA at the date of death.

[14] The respondent deposes in her Supplemental Affidavit that she and Giuseppe Lagana met with Grant Bowering, a financial planner with the Royal Bank in Cambridge on August 16, 2019. The purpose for this meeting was to discuss the investment of the remaining proceeds from the sale of the house in British Columbia. At this meeting Giuseppe Lagana was given a questionnaire to be completed in advance of a second meeting to be arranged.

[15] On September 10, 2019, the respondent states that she and Giuseppe Lagana met for a second time with Grant Bowering, at which time the Investment Accounts were opened in their joint names. Although the respondent never saw the completed questionnaire that Giuseppe Lagana had been given on August 16, she says he brought it to the September meeting. The respondent deposes that Giuseppe Lagana told Grant Bowering he wanted her to receive the funds he was about to invest upon his death. Grant Bowering explained that to accomplish that objective, a joint account with right of survivorship would have to be opened.

[16] According to the respondent, she asked Giuseppe Lagana, in the presence of Grant Bowering, if he wanted to leave anything to members of his family and he responded “Fuck ‘em. It all goes to Ingrid”. When she was cross-examined, the respondent was not asked any specific questions about the colourful language used by Giuseppe Lagana in expressing his intention to leave the funds in the Investment Accounts to the respondent upon his death.

[17] The respondent says Grant Bowering explained that for her to receive the funds in the Investment Accounts upon Giuseppe Lagana’s death, it would be necessary to open a joint account with a right of survivorship. The respondent states that Giuseppe Lagana was adamant that the Investment Accounts should be set up so that she would receive the funds upon his death.

[18] The respondent acknowledges that the money deposited in the Investment Accounts was Giuseppe Lagana’s alone. She made no contribution to the Investment Accounts.

[19] The respondent states that Grant Bowering explained that the words “joint or” on the Account Application mean either joint account holder can deal with the account without the other. The respondent makes no mention, in her Supplemental Affidavit, of Grant Bowering explaining the meaning of “JWROS” on the same Account Application.

[20] The signed Account Application contains the following wording:

I/We hereby acknowledge that I/we have received and retained a copy of RMFI’s Account Agreement and have read, understood and agree to the terms and conditions contained therein…

[21] The respondent states that Grant Bowering provided she and Giuseppe Lagana with a link to the Account Agreement which they reviewed together online. The following clause is contained in the Account Agreement:

For joint accounts opened outside of Quebec with rights of survivorship, the deceased accountholder’s share of the account will pass automatically to the surviving accountholder(s) once RMFI receives notice in writing of the death. The surviving accountholder(s) and the estate of the deceased accountholder will be jointly and severally liable for all of the account’s debts and liabilities. The terms of this Agreement will continue to apply to the account.

The respondent also states that the description of the right of survivorship in the Account Agreement is consistent with what Grant Bowering told them at the September 10 meeting which was that the deceased account holder’s share of the account would pass automatically to the surviving account holder.

[22] The respondent and Giuseppe Lagana signed a Signature Card for the Guaranteed Investment Certificate which stated that the depositors were the respondent and Giuseppe Lagana and that they had received and agreed to the terms of the Client Agreement which contained the following wording:

A GIC account with more than one owner will be owned jointly with right of survivorship, … The surviving owner(s) will own all the GIC funds remaining … If one of you dies, the surviving owner(s) must let us know and provide us with acceptable proof of your death. Then, the surviving owner(s) may either direct us to remove your name from the GIC and place it into a GIC account in the surviving owner name(s) or request that we pay the surviving owner(s) the GIC principal and any interest. We shall be entitled to follow the direction of any surviving owner without inquiring whether they have the beneficial right to the monies and without recognizing any claims of third parties.

The respondent states in her Supplement Affidavit that the description of the right of survivorship in the Client Agreement was consistent with what Grant Bowering told she and Giuseppe Lagana at the September 10 meeting.

[23] The applicant was cross-examined on this application. She testified that from 2018 until the date of death she had no direct communication with her father and that in the 10 years before the date of death she had not received any gifts or financial contributions from her father.

[24] The respondent was also cross-examined on this application. She testified that when she discussed with Giuseppe Lagana about making a will, he said he did not want to spend money making a will and that he would just get his beneficiaries in order. She understood him to say that he could make an estate plan without a will by aligning his beneficiaries at the bank (transcript page 19, questions 42 and 43).

[25] The respondent testified that it was Giuseppe Lagana’s idea to open a joint account. She stated that Grant Bowering asked Giuseppe Lagana who he wanted to be his beneficiaries and Giuseppe Lagana stated that he wanted everything to pass to the respondent (transcript page 25, question 67).

[26] Grant Bowering was examined as a witness on the application. He said he met the respondent and Giuseppe Lagana on September 10, 2019. He made notes of the discussion at that meeting. Those notes are reproduced at paragraph 14 of the Applicant’s Factum as follows:

I with Joe and Ingrid to review investment options for the sale of Joe’s house in B.C. Discussed the implications of joint accounts, and client decided that he prefers to make the non-registered portion joint at this time (emphasis added). “Clients would like to keep 70 to 80,000 for upcoming home renovations and their vacation later this year. I also recommend they hold an additional 20,000 in cash for emergencies to cover any unexpected cost in the home reno. Joe’s pension income is more than sufficient to cover his costs, and Ingrid will continue to work eight to nine years, providing a surplus of income for the household. Primary invest-investment objectives include moderate growth and liquidity, because they want to be able to use these funds to pay down their mortgage at maturity in 2022, or for an additional down payment on a condo they are purchasing in 2021. They have already deposited enough for their required down payment. They do not expect to use these funds in the time frame, but want flexibility to do so if the mortgage rates increase drastically at that time. Recommended select conservative portfolio for stability and moderate growth for the non-registered portion, which would potentially be used for the down payment, if needed. Joe’s tax free savings account to be invested in the aggressive growth portfolio, as this portion of the investment will not be used in the short or medium term, and he prefers to get maximum growth potential on this account. Combination of conservative and aggressive portfolios align with the overall balanced objectives, as determined by the asset allocation.

[27] At page 27, question 97 of the transcript, Grant Bowering was asked what he discussed with Giuseppe Lagana and the respondent about the implications of joint ownership. He answered:

Yes, I would have talked to Joe about the potential implications of him opening a joint account with Ingrid, and those implications being a number of different things. Like her having immediate access to the money. Because it’s joint either one can, can access the accounts. Either person having signing authority on the accounts. Potential for implications on a separation of the, the relationship. If she has creditors or is involved in a lawsuit, as well as the estate implications. Those would be the, the implications that I would refer to in any meeting when I talk to people who are, are adding joint owners onto an account.

[28] At page 32, question 113 of the transcript, Grant Bowering was asked what he would tell clients about the right of survivorship. He stated:

…when the account, when funds get deposited into a joint account, the funds essentially become both people’s property, in that should either of the, the owners pass away, then the funds would just automatically default to the ownership of the survivor of the account.

[29] At page 35, question 120 of the transcript, Grant Bowering stated that he did not recall any discussions between Giuseppe Lagana and the respondent about who would receive the funds being deposited into the Investment Accounts when Giuseppe Lagana died. Grant Bowering was not asked any questions about the statement by Giuseppe Lagana referred to in her Supplementary Affidavit “Fuck ‘em. It all goes to Ingrid”.

[30] Grant Bowering stated that he would have explained one of the benefits of joint ownership was that it allows the money to pass directly to the survivor without the cost of probate. He said that is the primary benefit of joint ownership (transcript P 41, question 139).

[31] At page 42, question 142 and page 43, question 143 of the transcript, Grant Bowering was asked to explain the meaning of the words “joint or” and “JWROS” on the Royal Mutual Funds Inc. Investment Account Application. He answered as follows:

So there’s two things that I would say that are on there. So “joint or” typically refers to a signing authority, so that either account holders can sign, but I typically talk more to the JWROS, which is beside their names. That stands for “joint with rights of survivorship”, so I will always highlight that, just to make sure that, again, they understand that this is a joint account. That both parties own the money and that there’s rights of survivorship attached to it.

And,

So “joint with rights of survivorship” means that the money in the account belongs to both individuals. That if either should pass away, that the account just defaults to a sole account, in the name of the survivor of the account.

[32] Grant Bowering said he would have had the same discussion about survivorship in relation to the GIC as he did about the mutual fund investment (transcript page 48, question 166).

[33] Grant Bowering testified that there were notes of a meeting, at which he was not present, which took place on May 19, 2019. He said the notes state that two bank employees were present along with Giuseppe Lagana and the respondent. The notes indicate that Giuseppe Lagana changed the beneficiary designation on his Registered Retirement Savings Plan and Tax Free Savings Account to the respondent. Documents effecting those beneficiary changes were included in the evidence on the application.

[34] Grant Bowering’s recollection was that he met with the respondent and Giuseppe Lagana a couple of times before September 10, 2019 to get some information and to provide recommendations before they made their decision. His only notes are made on September 11 which referenced the meeting on the previous day.

Legal Principles

Resulting Trust

[35] Equity presumes bargains, not gifts.

[36] The presumption of a resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended on the part of the transferee (Pecore v. Pecore, 2007 SCC 17, para 24).

[37] At paragraph 43 of Pecore, with respect to the standard required to rebut the presumption, the court stated:

The weight of recent authority, however, suggests that the civil standard, the balance of probabilities, is applicable to rebut the presumptions:... This is also my view. I see no reason to depart from the normal civil standard of proof. The evidence required to rebut both presumptions, therefore, is evidence of the transferor's contrary intention on the balance of probabilities. (authorities omitted)

[38] Subsequently, in F. H. v. McDougall, 2008 SCC 53, para 49:

… in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.

[39] The presumption of resulting trust means that the surviving joint account holder will be required to prove that the transferor intended to gift the right of survivorship to the transferee, failing which, the asset will be treated as part of the transferor’s estate (Pecore, para 53). The standard of proof required to rebut the presumption is on a balance of probabilities.

[40] Pecore directs that the trial judge must first determine if the presumption of resulting trust applies, and if it does, then the judge is required to weigh all the evidence in relation to the actual intention of the transferor to determine if the presumption has been rebutted (para 56).

[41] The general rule is that evidence of the transferor’s intention should be contemporaneous or nearly contemporaneous with the transaction under scrutiny. However, Pecore held that evidence of intention that arises subsequent to a transfer should not automatically be excluded from consideration, but the reliability of such evidence ought to be assessed and given the weight that the trial judge thinks it deserves (Pecore, para 59).

[42] It was also held in Pecore that banking documents can be considered on the issue of the transferor’s intent. Banking documents may be sufficiently detailed to provide evidence of the transferor’s intent to gift the right of survivorship to the transferee. Banking documents that suggest the transferor’s intent regarding the transfer of the right of survivorship should be considered and given appropriate weight by the trial judge (para 61).

[43] In Renwick Estate v. Stanberry, 2023 ONSC 5970, para 33, it was held that banking documents establishing joint accounts with right of survivorship are insufficient, standing alone, to rebut the presumption of resulting trust.

[44] In Gastle v. Gastle Estate, 2017 ONSC 7797, para 30, it was held that the checking of a box on a bank signature card designating the account to be joint with a right of survivorship is not proof that the transferor intended to gift the right of survivorship to the transferee. In that case, there was no evidence from any bank employee about conversations with the transferor at the time the accounts were made joint.

[45] Although the court in Pecore did not identify the nature of the relationships between the transferor and the parties to the lawsuit when dealing with the types of evidence that can be considered on the issue of the transferor’s intention, it did take such evidence into consideration. The court relied on evidence that the transferor had a very close relationship with his daughter, who was the transferee, and that the transferor was estranged from one of his other daughters (para 71). The court specifically stated that evidence of the quality of the relationship between the transferor and the transferee is relevant in determining if the presumption of resulting trust has been rebutted (para 37).

Corroboration

[46] Section 13 of the Evidence Act, RSO 1990, c E.23 provides:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or 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.

[47] Corroboration has been described as:

Not every particular of the party's evidence need be corroborated but the material evidence in corroboration must be independent of the opposite or adverse party and must appreciably help the judicial mind to accept one or more of the material facts deposed to. It must materially enhance the probability of the truth of the adverse party's statement. (Orfus Estate v. Samuel and Bessie Orfus Family Foundation, 2011 ONSC 3043, para 15)

Analysis

[48] The parties are in agreement that the doctrine of resulting trust applies in this case. Therefore, the respondent must rebut that presumption. Secondly, there is no dispute that s. 13 of the Evidence Act applies and that the respondent’s evidence that Giuseppe Lagana intended to gift her the Investment Accounts on his death must be corroborated.

[49] For the reasons that follow, I have reached the conclusion that there is evidence which corroborates the testimony of the respondent, and that the respondent has rebutted the presumption of resulting trust.

[50] I accept the evidence of the respondent that she and Giuseppe Lagana lived as a couple from August 2018 until the date of death. They considered themselves spouses and referred to each other as wife and husband. The applicant’s evidence about what she was told by Franco Lagana about the relationship between the respondent and his brother is hearsay and inadmissible. I therefore do not accept that the respondent and Giuseppe Lagana separated in October of 2018 and were sleeping in separate bedrooms when Giuseppe Lagana was admitted to hospital in January 2021. I find that the reason for Giuseppe Lagana leaving Ontario in October 2018 was to return to British Columbia to arrange for the sale of his house with the intention of returning to Ontario to continue cohabitation with the respondent. I also find that Giuseppe Lagana and the respondent continued to live as common law spouses until his hospital admission in January 2021.

[51] There are two aspects of this case which, to my mind, distinguish it from other cases to which I have been referred. The first point is that Giuseppe Lagana did not have a will. Therefore, type of evidence about instructions given to a lawyer about a deceased’s intention to distribute the residual assets of the estate, is absent in this case. This is not a case of attempting to determine if the asset in dispute was intended as an inter vivos gift or a disposition by will following death. It seems unlikely that Giuseppe Lagana made a decision to not make a will knowing that the result would be a gift by way of intestate succession to the applicant.

[52] Secondly, this is not a case of the deceased appearing to favour one family member over others. In this case the applicant had no relationship at all with her father. The evidence of the applicant is that she had no direct communication with her father from 2018 to the date of death and that she had received no gifts or financial contributions from him in the 10 years before the date of death. This would suggest that it was more likely that Giuseppe Lagana intended to gift the Investment Accounts to the respondent.

[53] The respondent’s evidence is that Giuseppe Lagana attended at the Royal Bank on May 9, 2019 and designated her as beneficiary of his RRSP and TFSA. She was not present at the time the beneficiary designations were made. The Change Acknowledgement forms signed by Giuseppe Lagana on that date are evidence of an intention to gift these assets to the respondent on his death.

[54] Although not necessary to make a finding about whether the respondent was present when the Change Acknowledgements were signed, I accept the respondent’s evidence that she was not present at the bank on May 19, 2019. Grant Bowering testified that there were notes made by another bank employee which indicated that the respondent was present. The notes were not made part of the evidence on this application. Grant Bowering was not present. The respondent was not cross-examined on her assertion that she was not present at the bank on May 19, 2019.

[55] There is also a potential discrepancy about whether Grant Bowering met with the respondent and Giuseppe Lagana before September 10, 2019. As with the meeting on May 19, I do not find it necessary to resolve this issue to decide the application. That said, I accept the evidence of the respondent that she and Giuseppe Lagana met with Grant Bowering on August 16, 2019. Grant Bowering has no notes of that meeting, but he did testify that his recollection was that he met Giuseppe Lagana and the respondent a couple of times before September 10. I think it likely that one of those times was August 16.

[56] The evidence of the respondent is that Giuseppe Lagana did not want to incur the expense of making a will and thought he could dispose of his assets on his death by bank documents. The respondent stated in her Supplemental Affidavit that at the meeting on September 10, Giuseppe Lagana told Grant Bowering that he wanted the respondent to receive the funds he was about to deposit, upon his death. She says Grant Bowering explained that in order to have the funds in the Investment Accounts pass to the respondent when Giuseppe Lagana died, they would need to open a joint account with right of survivorship. She says that Giuseppe Lagana’s clear wish was to have her receive the Investment Accounts upon his death.

[57] The respondent stated in her affidavit that Grant Bowering explained the meaning of “joint or” on the Account Application form but she did not mention anything about “JWROS” on the same form. She was not asked any questions when she was cross examined about whether Grant Bowering explained “JWROS”.

[58] The respondent’s evidence is that Grant Bowering provided a link to the Account Agreement which she and Giuseppe Lagana reviewed together online. The online Account Agreement states that the deceased account holder’s share of the account will pass automatically to the surviving account holder. She said the description of the right of survivorship in the Account Agreement was consistent with the description with what Grant Bowering explained to them on September 10.

[59] Grant Bowering testified that he discussed with Giuseppe Lagana and the respondent, the implications of opening a joint account including estate implications. Later he said he could not recall any discussion about who would receive the funds in the Investment Accounts when Giuseppe Lagana died.

[60] Grant Bowering said that he would tell clients who were opening a joint account that should either of the joint owners pass away then the funds automatically default to the ownership of the survivor. He said he would have described that one of the benefits of joint ownership is that it allows the funds in the account to pass directly to the survivor without the cost of probate. He described that as the primary benefit of joint ownership. Grant Bowering testified that the letters “JWROS” on the Investment Account Application stand for “joint with rights of survivorship”. He said he would highlight that to make sure the clients understand that both parties own the money and that there are rights of survivorship which means the money in the account defaults to the surviving account holder, if either passes away.

[61] The signature card for the GIC which was signed by the respondent and Giuseppe Lagana on September 10 stated that they had received the Client Agreement which explained that the surviving owner will own all the funds remaining in the GIC. The respondent stated that they were given the Client Agreement on September 10 and the description of the right of survivorship in the Client Agreement is consistent with what they were told by Grant Bowering at the meeting.

[62] This is not a case of banking documents alone being relied on to establish the intent of the transferor and to rebut the presumption of resulting trust. I find that Grant Bowering did discuss with Giuseppe Lagana and the respondent, the estate implications of the Investment Accounts being held in joint ownership. In his testimony he said he discussed the implications of opening a joint account but later said he could not recall any discussion about would receive the funds in the Investment Accounts when Giuseppe Lagana died. However, his evidence is clear that his normal practice was to discuss and explain the right of survivorship when a joint account was opened. He was clear that he would explain the meaning of the letters “JWROS”.

[63] I find that the above facts corroborate the testimony of the respondent that Giuseppe Lagana said he wanted her to receive the Investment Accounts upon his death. I also conclude that the evidence sufficiently rebuts the presumption of resulting trust.

[64] During oral submissions, it was suggested that I should find the respondent’s evidence to be less credible than the evidence of Grant Bowering because he would have remembered if Giuseppe Lagana had used the expletive which the respondent said was used when declaring his intention to leave the Investment Accounts to the respondent upon his death. It is not necessary for me to make a finding one way or the other about what type of language was used by Giuseppe Lagana at the September 10 meeting. In any event, I am not inclined to make a negative finding about the overall credibility of the respondent based on this allegation. Grant Bowering was not specifically directed to the wording allegedly used by Giuseppe Lagana nor was the respondent challenged or asked to expand on the allegation during her cross-examination.

[65] As I have stated, I find there is ample evidence of Giuseppe Lagana’s intent to rebut the presumption of resulting trust. I do not rely on the evidence of the respondent that Giuseppe Lagana used vulgar language to express his intent to leave the Investment Accounts to the respondent when he died.

Conclusion

[66] For the foregoing reasons, judgment shall issue declaring the respondent to be the sole owner of the proceeds of the Royal Mutual Funds Inc., account number 444296149 and the Royal Bank of Canada Guaranteed Investment Certificate, account number 00170192541.

[67] The parties are encouraged to resolve the issue of costs.

[68] If the parties are unable to agree on costs, they may make written submissions. Written submissions are to be limited to three pages exclusive of a Bill of Costs, Costs Outline and any relevant Offers to Settle and are to be filed electronically on Case Centre and delivered electronically to my attention to mona.goodwin@ontario.ca and Kitchener.SCJJA@ontario.ca. The respondent’s submissions are to be submitted within 20 days of the release of these Reasons. The applicant’s submissions are to be submitted within 40 days of the release of these Reasons. If written submissions are not submitted within 45 days of the release of these Reasons, it will be assumed that the issue of costs has been resolved and the file will be closed.

G. E. Taylor
Released: May 26, 2025