Reasons for Judgment

Court File No.: CV-23-00092444-00ES
Date: 2025-06-11
Ontario Superior Court of Justice

Between:
Elisa Chieffallo and Patrick Briggs, in their capacity as Estate Trustees in the Estate of Yvonne Chieffallo, deceased
Applicants
– and –
Michael Blair, also known as Michael Chieffallo, Gregory Carter, Justin Chieffallo, Christina Chieffallo Matthews, Paul Matthews, Nykia Ingram, Patrick Jelani Briggs, Patrick Jalen Briggs, Elianna Matthews, and Ethan Matthews
Respondents

Appearances:
Peter Liston, for the Applicants
Jonathan Collings, for the Respondents Michael Blair (Chieffallo) and Gregory Carter
Margot Pomerleau, for the Respondent Christina Chieffallo Matthews, in her capacity as litigation guardian for Eliana Matthews and Ethan Matthews, and in her personal capacity
Paul Matthews, appearing in person
Other Respondents not appearing

Heard: October 15 and December 12, 2024

Justice Ryan Bell

Overview

[1] This is an application for directions brought by Elisa Chieffallo and Patrick Briggs in their capacity as estate trustees of the estate of Yvonne Chieffallo, Elisa’s mother. Yvonne passed away on December 26, 2021. In broad strokes, the issues on the application are who should administer the estate, how the residue of the estate should be distributed, and what assets form part of the estate for distribution.

[2] In addition to Elisa, Yvonne had four other children: the respondents Michael Blair, also known as Michael Chieffallo, Gregory Carter, Justin Chieffallo, and Christina Chieffallo Matthews. Elisa is married to Patrick. Christina is married to the respondent Paul Matthews.

[3] The remaining respondents are Yvonne’s five grandchildren: Nykia Ingram, Patrick Jelani Briggs, and Patrick Jalen Briggs (Elisa’s children), and Eliana Matthews and Ethan Matthews (Christina’s children). Christina appears in her personal capacity and as litigation guardian of Eliana and Ethan.

[4] Michael and Elisa were named as joint executors and estate trustees in Yvonne’s Last Will and Testament. Patrick was named as the alternate trustee.

[5] On March 23, 2022, Michael executed a renunciation of his right to apply for a certificate of appointment. As the named alternate, Patrick assumed the role of estate trustee. Within days, Michael sought to retract his renunciation. Michael says he was not aware of the contents of Yvonne’s Will, was not given an opportunity to obtain legal advice, and was misled about the purpose and consequences of the renunciation. Elise and Patrick take the position that Michael knew what he was signing and, despite their urging, refused to attend a lawyer’s office to sign the document. They say that Michael must be held to the consequences of his actions.

[6] Section III(d) of Yvonne’s Will provides that the estate trustees pay, transfer, and assign the residue of the estate “as my Trustees, with a view to the best interests of my family, in their absolute and unfettered discretion deem fit and appropriate.” Section III(d) defines “my family”:

Christina Chieffallo
Michael Chieffallo
Justin Chieffallo
Elisa Chieffallo
Gregory Carter
Eliana Matthews
Nukia Ingram [sic]
Patrick Jalen Briggs
Patrick Jelani Briggs
Paul Matthews
Patrick Briggs
And all future grandchildren.

[7] The Will specifically provides that Justin’s share of the estate be administered as a Henson Trust. How the residue of the estate should be distributed among the beneficiaries is in dispute.

[8] The parties do not agree on whether or not the following assets form part of the estate: (i) 2142 Valley Drive, Ottawa (the property purchased by Frank Chieffallo and Yvonne when they were married); (ii) 3011 Courtyard Crescent, Ottawa (where Yvonne resided from 2008 to 2021); (iii) the BMO account ending in 585 (opened by Elisa in 1990, with Yvonne being added at a later date); and (iv) the proceeds of sale of the RAV4 automobile (purchased by Yvonne, with assistance from Elisa and Patrick, in 2020).

[9] For the following reasons, I confirm Elisa and Patrick as estate trustees. The estate shall be divided in equal shares among the named beneficiaries as defined in paragraph III(d) of Yvonne’s Will. The Valley Drive property does not form part of the estate. Michael holds his interest in the Valley Drive property as trustee for the benefit of Elisa and Michael is to cooperate in the transfer of his legal interest to Elisa forthwith. The Courtyard property does not form part of the estate. The Courtyard property shall pass legally and beneficially to Patrick, as the surviving joint tenant. The BMO account ending in 585, which Yvonne held jointly with Elisa, does not form part of the estate. The BMO account shall pass by right of survivorship to Elisa. Of the proceeds of sale of the RAV4 and the car’s winter tires, $20,083.39 shall vest in Elisa, and the balance of $19,566.61 shall form part of the residue of the estate.

Elisa and Patrick are Confirmed as Estate Trustees

[10] Michael executed a renunciation of his right to apply for a certificate of appointment as estate trustee on March 23, 2022, approximately two and a half months after Yvonne’s death on December 26, 2021. He attended Patrick and Elisa’s home to sign the document.

[11] On March 30, 2022, Michael sent Elisa a text stating that he wanted to revoke his renunciation. Michael claims in his affidavit:

If I had been aware of the contents of the Will and had been given an opportunity to obtain legal advice, I never would have signed a renunciation as Estate Trustee. I had no intention to give up a role as trustee which granted great discretion over distributions. I was not given an opportunity to seek advice on my role as Estate Trustee. I was misled about the purpose and consequences of the document and would not have signed it if I had known.

[12] Michael and Gregory also rely on the doctrine of “intermeddling” to say that Michael could not have renounced without a court order because, before his renunciation, Michael had begun to take steps to administer the estate.

[13] Elisa and Patrick say that Michael must be held to the consequences of his own actions in signing the renunciation. In the alternative, they argue that Michael must be “passed over” as a potential trustee because Michael’s “reinstatement” as trustee would result in a deadlock between Michael and Elisa on the issue of distribution. Elisa and Patrick say that Michael cannot rely on the doctrine of intermeddling because he was acting under Elisa’s express instructions in taking the steps he did in relation to the estate.

[14] Christina takes no position on this issue.

[15] Section 34 of the Trustee Act, RSO 1990, c T.23 provides:

Where a person renounces probate of the will of which the person is appointed an executor, the person’s rights in respect of the executorship wholly cease, and the representation to the testator and the administration of the testator’s property, without any further renunciation, goes, devolves and is committed in like manner as if such person had not been appointed executor.

[16] There is no provision in the Trustee Act for a “cooling off” period when the renouncing trustee can reverse their decision.

[17] I have not been directed to any Ontario decisions regarding the revocation or retraction of a renunciation by an estate trustee. However, Michael relies on MacDonald v. MacIsaac and MacIsaac, 1983 NSCA 70, as persuasive authority. In MacDonald, the respondent was named executor of the deceased’s 1978 will, as well as the deceased’s 1979 will. The respondent testified before the trial judge that he thought he was renouncing as executor of the 1979 will. The trial judge found that the respondent’s retraction of his renunciation should be granted, taking into account the manner in which the renunciation was obtained, and the manner in which the estate had been handled.

[18] On appeal, the Nova Scotia Court of Appeal upheld the decision of the trial judge that the respondent could retract his renunciation, but did not agree with the trial judge’s reasons. The appellate court saw nothing objectionable in the manner in which the respondent’s renunciation was obtained. Initially, the respondent did not wish to act as executor and so advised the appellants’ solicitor. It was for this reason the respondent was not notified when the appellants applied for and were appointed administrators pendente lite. The respondent was of the same mind – that he did not wish to act as executor – after the 1978 will was found in May 1982. However, after six months went by and no action or proceedings had been taken with respect to the estate, the respondent decided to become involved again. The court concluded that the reasons given by the respondent for wanting to withdraw his renunciation were sufficient to justify the probate judge in permitting him to do so.

[19] On the issue of retraction of a renunciation, the court in MacDonald cited the following passage from Walker, A Compendium of the Law Relating to Executors & Administrators, 6th ed. at p. 23:

An executor is not necessarily concluded by a renunciation once declared. The rule has long been that he may retract his renunciation at any time before a grant of administration has passed the seal, but not afterwards, from the possible inconvenience that might accrue in other quarters, if the chain of executorship once broken were thus suffered to revive. In any case the Court is not bound to allow a retraction.

[20] The court has the power to allow a retraction of a renunciation in a proper case: Feeney, The Canadian Law of Wills, 2nd ed. (1982, Butterworths), vol. 1, at pp. 139-140.

[21] I conclude that this is not a proper case to allow Michael to retract his renunciation. Michael says he executed the renunciation “quickly” and without the opportunity to seek legal advice. I do not accept that he executed the renunciation “quickly.” Michael signed the document approximately two and a half months after Yvonne’s death.

[22] I also do not accept Michael’s evidence that he was denied the opportunity to seek legal advice with respect to the renunciation. I do not find Michael’s claim credible because he had more than two months to seek legal advice and he attended at Elise and Patrick’s home voluntarily – no one forced him to attend. Patrick Jelani’s evidence is that Elise and Patrick asked Michael to attend at a lawyer’s office to sign the renunciation, but Michael refused to do so. Patrick Jelani’s uncontested evidence, which I accept, is that Elisa warned Michael not to come back later and claim a lack of knowledge in the document or a lack of legal advice. That is precisely what has occurred.

[23] Patrick Jelani’s evidence is that the Will was on the table, in front of Michael, when Michael chose to sign the renunciation. Michael claims he was not aware of the contents of the Will and Elise misled him as to the nature of the document. I reject Michael’s claims for two principal reasons. First, Michael had the opportunity to obtain legal advice; he chose not to avail himself of the opportunity to consult with a lawyer.

[24] Second, regardless of whether the Will was in front of Michael when he signed the renunciation, Michael’s evidence that he did not know where the Will was (and therefore, was not aware of its contents) is expressly contradicted by Gregory’s evidence. On cross-examination, Gregory confirmed that Michael knew that Yvonne kept the Will under her bed at the Courtyard property. Given that Michael knew the location of the Will, had a key to the Courtyard property, and, as co-executor, had access to the Will if he wished, there is no credible basis for Michael to claim that Elise was obliged to locate the Will for him and ensure that he read it.

[25] Michael also claims he did not understand the purpose and consequences of the renunciation – seemingly, a plea of non est factum. Under the principle of non est factum, a party can claim that a document is fundamentally different as to content or character from what they thought they signed. The party claiming non est factum must demonstrate that they were not careless in signing the document: Marvco Colour Research Ltd. v. Harris, [1982] 2 S.C.R. 774, at 780.

[26] I reject Michael’s claim that he did not understand what he was signing. The document is short (one-page) and clear. The document’s title is “Renunciation of Right to A Certificate of Appointment of Estate Trustee (or Succeeding Estate Trustee) with a Will.” The title is repeated in the document itself, together with the sentence, “I renounce my right to a certificate of appointment of estate trustee (or succeeding estate trustee) with a will.” If Michael did not understand the renunciation, he was provided the opportunity to consult with a lawyer. He chose not to.

[27] In the alternative, Michael and Gregory submit that Michael could not renounce without a court order because he had already intermeddled in the estate, that is, he had begun to take steps to administer the estate. Renunciation is generally not available if a party has already intermeddled in the estate: Chambers Estate v. Chambers, 2013 ONCA 511, at para. 66. While even a “slight act of intermeddling” with a deceased’s assets may preclude an executor from subsequently renouncing, the rule has been applied with some flexibility: Chambers Estate, at para. 66.

[28] Michael and Gregory submit that Michael’s transfer of estate assets – the withdrawal of money from Yvonne’s Scotiabank accounts and consolidation with the RBC funds, at Elisa’s request – and the payment of household bills on behalf of the estate, constitute “clear intermeddling” such that renunciation was not legally available to Michael.

[29] I am not persuaded that the doctrine of intermeddling applies in this case. It is not disputed that Michael’s withdrawal of money from certain of Yvonne’s accounts and consolidation with another account was at Elisa’s request. Indeed, Michael says he cooperated with Elisa’s instruction to avoid further family drama.

[30] In addition, I would characterize Michael’s actions – the consolidation of Yvonne’s accounts under Elisa’s direction, and the payment of some household bills – as a few minor steps to preserve the estate. They do not amount to deemed implied acceptance of the role of estate trustee: Chambers Estate, at para. 67, citing Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters Canada Limited, 2012), at p. 884. By contrast, there is evidence that prior to his renunciation, Michael demonstrated an unwillingness to deal with the administration of the estate and stated that he would not serve as trustee of the Henson Trust set up under the Will for Justin.

[31] I distinguish Dueck v. Chaplin, 2015 ONSC 4604, on which Michael and Gregory rely. In Dueck, the application judge was persuaded that the applicants undertook “several meaningful actions in their capacity as Trustees”: Dueck, at para. 36. The actions included: applying for a certificate of appointment of estate trustee with a will; realizing the assets of the deceased; paying some expenses of the deceased; commencing the application for an order giving directions; delivering a notice to objector; and corresponding with the respondent: Dueck, at paras. 36-7. In taking these meaningful actions to administer the estate, the applicants in Dueck were not acting under the direction of another party.

[32] Given my finding that this is not a proper case to permit Michael to retract his renunciation, it is unnecessary for me to consider whether Michael should be passed over as estate trustee.

[33] Elisa and Patrick are confirmed as estate trustees.

The Residue of the Estate Shall Be Divided in Equal Shares Among the Named Beneficiaries

[34] Elisa and Patrick seek an order that the residue of the estate be distributed in equal shares to the named beneficiaries (with Ethan in the category of “all future grandchildren”). They note that the Will does not distinguish between Yvonne’s children, sons-in-law, and grandchildren, and say that an equal distribution would be consistent with their fiduciary duty to each named beneficiary. Christina agrees with Elisa and Patrick on this issue.

[35] Michael and Gregory’s primary position is predicated on Michael’s reinstatement as estate trustee: they contend that Michael and Elisa should attempt to fulfill their fiduciary obligations as estate trustees and should seek further directions from the court as required. If the court makes an order for distribution, Michael and Gregory request an order that distribution be to Yvonne’s biological children only.

[36] I have confirmed Elisa and Patrick as the estate trustees. Under the Will, the estate trustees are left to decide how much each beneficiary should receive, in an exercise of their absolute and unfettered discretion, with a view to the best interests of Yvonne’s family. Yvonne defined “my family” in her Will. There is simply no basis to restrict the distribution to Yvonne’s biological children or to impose different levels of beneficiaries as Michael and Gregory propose. The estate trustees propose that the residue of the estate be distributed in 12 equal shares to the named beneficiaries in s. III(d) of the Will, including Ethan. This proposal is not only within their discretion, in my view, it is in accord with the best interests of Yvonne’s family as defined.

[37] The residue of the estate shall be distributed in 12 equal shares to the named beneficiaries in the Will, including Ethan. The distributions to Eliana and Ethan will be made to Christina, in trust, for her two minor children.

2142 Valley Drive Does Not Form Part of the Estate

[38] Yvonne and Frank Chieffallo purchased the Valley Drive property as the matrimonial home in 1976. In 1981, as part of their separation and subsequent divorce, Yvonne and Frank agreed to place the Valley Drive property in trust for the benefit of their two minor children, Elisa and Christina. Frank transferred his interest in the property to Yvonne, personally and as trustee, for nominal consideration. At the time of Yvonne and Frank’s separation, and for many years thereafter, Yvonne lived at the Valley Drive property.

[39] In the April 13, 1989 trust agreement between Yvonne, as trustee, and Elisa and Christina, as beneficiaries, Yvonne declared that the Valley Drive property “is not the property either directly or indirectly of the Trustee but is the property of the Beneficiaries” and that “[the Trustee] has no personal or beneficial interest in the said property.” In the trust agreement, Yvonne undertook to transfer the property to Elisa and Christina on their request.

[40] In 2002, Yvonne transferred the Valley Drive property to Elisa and Christina as joint tenants, with Yvonne retaining a life interest in the property. The transfer document was registered on title, but incorrectly recorded Yvonne, Elisa, and Christina as joint tenants. Yvonne’s life interest in the property ended upon her death.

[41] In September 2007, at Elisa’s request, a transfer of title was registered, removing Elisa’s name from title, and putting Michael on title as joint tenant with Christina. Yvonne’s life interest in the Valley Drive property was registered on title to correct the prior error at the time of the 2002 transfer. The transfer of Elisa’s interest in the Valley Drive property to Michael was for nominal consideration.

[42] From approximately August 2008 to March 2022, Michael lived rent-free at the Valley Drive property. Michael says he contributed to the property by making some capital improvements, including the purchase of a new furnace, paid the property taxes and utilities, and provided regular maintenance work, including yard work and shovelling snow.

[43] The Valley Drive property is currently vacant but unsold, pending determination of ownership on this application.

[44] Michael and Gregory contend that Michael holds the Valley Drive property as bare trustee for the benefit of the estate, and the proceeds should form part of the residue of the estate for distribution to the beneficiaries. Michael and Gregory say the terms of Yvonne’s Will demonstrate her intention to treat all assets as “pooled family assets” and rely on the fact that in the past, Yvonne purchased a home for Gregory.

[45] Elisa and Patrick argue the Valley Drive property does not form part of the estate. Christina retains her one-half interest in the property and Michael holds his interest in the property as trustee for Elisa. Christina agrees with Elisa and Patrick on this issue.

[46] It is clear from the evidentiary record that Yvonne had long ceased to have any interest in the Valley Drive property by the time of her death in 2021. Section III(c) of the Will provides “[i]n the event I hold any interest in the lands and premises…known municipally as 3011 Courtyard Crescent…and known municipally as 2142 Valley Drive…such interests shall be disposed of as my Trustees, in their sole and unfettered discretion deem fit and appropriate.” Yvonne could not bequeath what she did not own. As is evident from the 1989 trust agreement, as well as the 2002 transfer document, Yvonne did not hold any interest in the Valley Drive property at the time of her death in 2021. Therefore, Michael cannot be holding the property, or any portion of it, in trust for Yvonne’s estate.

[47] Weise v. Weise, 2023 ONSC 5227, on which Michael and Gregory rely, has no application to this case. While the court in Weise confirmed that a bare trust may be formed without the requirement of a written document, Yvonne could not have transferred Valley Drive to Michael as trustee because Yvonne retained only a life interest in the property.

[48] The only issue in relation to the Valley Drive property is whether Elisa intended the transfer of her interest in the property to Michael in September 2007 as a gift, or whether Michael holds his title in the property as trustee for Elisa. Christina’s interest as joint tenant in the property is not in issue; Christina was registered on title as a joint tenant with Elisa in 2002 and Christina has not transferred her interest.

[49] Based on the record before me and the doctrine of resulting trust, I have no hesitation in finding that Michael holds his interest in the Valley Drive property as trustee for the benefit of Elisa.

[50] The presumption of resulting trust is a rebuttable presumption of law that applies to gratuitous transfers. Where a transfer is made for no consideration and that transfer is challenged, the onus is placed on the transferee to demonstrate that a gift was intended. Equity presumes bargains, not gifts: Pecore v. Pecore, 2007 SCC 17, at para. 24.

[51] The essential ingredients of a gift are:

(i) an intention to make a gift on the part of the donor, without consideration or expectation of remuneration;
(ii) an acceptance of the gift by the donee; and
(iii) a sufficient act of delivery or transfer of the property to complete the transaction: McNamee v. McNamee, 2011 ONCA 533, at para. 24.

[52] Elisa was diagnosed with an aggressive stage 4 cancer and was compelled to pursue legal action against her insurer because of their denial of critical life insurance benefits. Elisa’s uncontroverted evidence is that she placed her interest in the Valley Drive property in Michael’s name due to her life-threatening medical issues and the legal battle with her insurance company, so as to safeguard her beneficial interest in the property. Elisa’s intention was to protect the property against any cost awards or liens should she be unsuccessful in her litigation against her insurance company.

[53] On cross-examination, Michael confirmed that he did not contribute toward the down payment or the mortgage on the property. Elisa paid the legal costs associated with the transfer to Michael. Michael also confirmed that Elisa never told him the property was a gift. He stated that he had no recollection why he was “given” the house, and acknowledged that he was told on multiple occasions that the house was not his.

[54] There is no evidence that Elisa intended to gift her interest in the Valley Drive property to Michael. The evidence is overwhelming that she did not intend a gift. As Michael has failed to rebut the presumption of resulting trust, I find Michael holds his interest in the property as trustee for the benefit of Elisa. He shall be required to cooperate in the transfer of his interest in the property to Elisa forthwith.

3011 Courtyard Crescent Does Not Form Part of the Estate

[55] Yvonne lived at the Courtyard property from 2008 to 2021. The property has now been sold, with the proceeds of sale placed in trust pending the outcome of this application.

[56] It is not disputed that Yvonne asked Elisa and Patrick for assistance in purchasing the Courtyard property. Patrick and Elisa together contributed $75,893.72 to the purchase price, with Yvonne providing the remaining down payment of $201,373.72. The balance of the purchase price was secured by a mortgage of $100,000, held jointly by Patrick and Yvonne. Patrick and Yvonne took title to the property as joint tenants.

[57] Elisa and Patrick’s position is that Yvonne’s interest in the Courtyard property passed to Patrick on Yvonne’s death pursuant to a right of survivorship. They argue the Courtyard property does not form part of the estate.

[58] For their part, Michael and Gregory contend the joint tenancy was severed as a result of a course of dealing, and Yvonne’s one-half interest in the Courtyard property forms part of the estate.

[59] Christina contends the Courtyard property should be considered an asset of the estate, but submits Patrick should receive compensation for his improvements to the property.

[60] Patrick’s interest in the Courtyard property was not a gift from Yvonne. Patrick contributed just over $70,000 to the purchase price of the property. Patrick was jointly responsible with Yvonne for the mortgage. Patrick, Yvonne, and Elisa agreed that Yvonne and Patrick would take title as joint tenants. Yvonne and Patrick obtained a joint life insurance policy to cover the outstanding balance in the event of the other’s death. The mortgage payments on the property were debited from an account jointly owned by Elisa, Patrick, and Yvonne. Because Patrick’s interest in the Courtyard property was not a gift from Yvonne, the presumption of resulting trust does not arise: Malkov v. Stovichek-Malkov, 2017 ONSC 6822, at para. 81.

[61] The issue in relation to the Courtyard property is whether the joint tenancy was severed such that Yvonne and Patrick held their respective interests in the property as tenants in common. As tenants in common, Patrick would not have a right of survivorship to Yvonne’s interest in the Courtyard property.

[62] In Pecore v. Pecore, 2007 SCC 17, the Supreme Court of Canada stated at para. 48:

I am of the view that the rights of survivorship, both legal and equitable, vest when the joint account is opened and the gift of those rights is therefore inter vivos in nature.

[63] Elisa and Patrick submit that Patrick’s right of survivorship to Yvonne’s interest vested in 2008 when Patrick and Yvonne agreed to purchase the property as joint tenants. They argue, in the alternative, that if the right of survivorship is testamentary in nature, and only vested on Yvonne’s death, the so-called gift was in fact “earned” by virtue of the mortgage payments made, the joint life insurance on the property, and Patrick’s contributions to or payments for renovations to the Courtyard property. No attempt was made by Yvonne to pay for these services or to reimburse Patrick for his expenses in relation to Yvonne’s one-half interest in the property.

[64] Michael and Gregory argue that the course of dealing test for severing a joint tenancy has been met in this case, such that Yvonne’s one-half interest in the Courtyard property should form part of the estate. In Hansen Estate v. Hansen, 2012 ONCA 112, the Court of Appeal for Ontario observed that the course of dealing test for severing a joint tenancy requires the court to discern, based on the totality of the evidence, whether the parties intended to mutually treat their interests in the property as constituting a tenancy in common: Hansen Estate, at para. 7.

[65] Severance based on a course of dealing operates so as to prevent a party from asserting a right of survivorship, where doing so would not do justice between the parties: Hansen Estate, at para. 35. A course of dealing that is sufficient to establish a severance of a joint tenancy requires that the co-owners knew of the other’s position and that they all treated their respective interests in the property as no longer being held jointly. The rationale for severing the joint tenancy relates to the inappropriateness of the right of survivorship in circumstances where the co-owners have mutually treated their interests in the property as being held in common, but the rationale is not contingent on the fact that one party relied on the representation to their detriment: Hansen Estate, at para. 49.

[66] Michael and Gregory point to Yvonne’s failure to repay Patrick for the renovations and the work done in relation to the Courtyard property as well as the history of unequal financial contributions in support of their position that the joint tenancy was severed. Michael and Gregory also rely on a “falling out” between Elisa and Yvonne when they were not on speaking terms, and Yvonne took back Elisa’s key to the property, and Elisa’s recorded “admission” that the Courtyard property formed part of the estate. They also allege that Yvonne asked Patrick to sign a legal document removing his name from title to the property.

[67] I reject Michael and Gregory’s submission that the joint tenancy was severed by a course of dealing. That there were unequal contributions to the purchase price does not negate the agreement that Yvonne and Patrick would be registered on title as joint tenants. All the evidence points to Yvonne having been a sophisticated property owner. Yvonne’s failure to reimburse Patrick for his contributions is not evidence that Patrick and Yvonne were mutually treating their interests as tenants in common.

[68] I place little to no weight on the other matters relied on by Michael and Gregory. The falling out between Yvonne and Elisa does not appear to have been of long duration. The court must determine the issue of whether the Courtyard property forms part of the estate, whatever Elisa might have said in the recorded conversation. And as for the allegation that Yvonne asked Patrick to sign a legal document removing his name from title, the document has never been produced. Again, I note that all the evidence points to Yvonne being a sophisticated property owner. Had she wished to sever the joint tenancy, she had 13 years to do so. She did not. There is no reliable evidence that Yvonne did not intend for title to the Courtyard property to pass to Patrick by right of survivorship.

[69] Based on Pecore, I find that Patrick’s right of survivorship to Yvonne’s interest vested in 2008 when Patrick and Yvonne agreed to purchase the Courtyard property as joint tenants. The joint tenancy was never severed. Accordingly, Yvonne’s interest in the Courtyard property passed to Patrick on Yvonne’s death. The Courtyard property does not form part of the estate.

The BMO Account Does Not Form Part of the Estate

[70] The BMO account ending in 585 was opened in 1990 by Elisa, with Yvonne being added as a joint account holder at a later date. At the time of Yvonne’s death, the account contained $98,197.10.

[71] Elisa and Patrick argue that the BMO account does not form part of the estate. They say there was nothing gratuitous regarding the account and it is clear on the evidence that Yvonne intended for the account to pass by survivorship to Elisa.

[72] Matthew and Gregory contend that Elisa and Patrick have failed to establish that the entirety of the BMO account was intended by Yvonne to be a gift to Elisa.

[73] Christina agrees that the presumption of resulting trust applies to the BMO account. If Yvonne intended to gift the funds in the account solely to Elisa and Patrick upon her death, the onus is on them to show why.

[74] Elisa opened the BMO account in 1990, with Yvonne being added as a joint holder of the account at a later date. It is uncontested that Patrick and Elisa deposited tens of thousands of dollars into the account over the years. They contributed the majority of the funds in this account. Usage of the account was intermingled as between Yvonne and Patrick and Elisa.

[75] Based on this evidence, I agree with Elisa and Patrick that there was nothing gratuitous regarding the BMO account and the presumption of resulting trust does not arise. It was Yvonne who was added to the account after it was opened by Elisa. The account was held jointly by Yvonne and Elisa. The rights of survivorship, both legal and equitable, vested when the account became a joint account: Pecore, at para. 48. There is nothing in the evidence to suggest that Yvonne did not intend the account to pass by right of survivorship to Elisa.

[76] The BMO account ending in 585 does not form part of the estate.

Proceeds of RAV4 to Be Allocated Between Elisa and the Estate

[77] In July 2020, Yvonne purchased a new RAV4 automobile. Yvonne paid $6,869.79 toward the purchase price. On Yvonne’s request, Elisa and Patrick contributed $17,000 toward the purchase price so as to reduce the monthly payments. The $17,000 was withdrawn from the BMO account ending in 585. The monthly payments of $349.99 were also withdrawn from the BMO account.

[78] In June 2022, Elisa and Patrick paid out the balance of the car loan, in the amount of $12,696.82, from the estate bank account. The car was sold in July 2022 for $38,750. The winter tires were sold separately for $900.

[79] Elisa and Patrick take the position that because they were the major contributors to the BMO account, the proceeds of sale of the RAV4 should be allocated such that $19,566.61 ($6,869.79 paid by Yvonne toward the purchase price and $12,696.82 from the estate account to pay off the car loan) falls into the residue of the estate, with the balance of $20,083.39 vesting in Elisa and Patrick. It is not disputed that the monthly payments and the majority of the purchase price for the RAV4 came from the BMO account.

[80] Michael and Gregory argue that if the BMO account is found to be asset of the estate, the proceeds from the sale of the car should also be considered an asset of the estate. In the alternative, they argue that Elisa and Patrick have not successfully rebutted the presumption of resulting trust.

[81] Christina takes no position on this issue.

[82] For the reasons I have already given, the BMO account does not form part of the estate. The entirety of the funds in the BMO account pass by right of survivorship to Elisa. The allocation proposed by Elisa and Patrick is consistent with the amount paid by Yvonne or from the estate account, with the balance having been withdrawn from the BMO account. Accordingly, I order that the RAV4 proceeds be allocated such that $19,566.61 falls into the residue of the estate, and $20,083.39 vests in Elisa.

Conclusion

[83] In summary, the application is granted. I make the following orders:

(i) Elisa and Patrick are confirmed as estate trustees.
(ii) The residue of the estate shall be distributed in 12 equal shares to the named beneficiaries in the Will, including Ethan. The distributions to Eliana and Ethan will be made to Christina, in trust for her two minor children.
(iii) Michael holds his interest in the Valley Drive property as trustee for the benefit of Elisa. Michael shall be required to cooperate in the transfer of his interest in the property to Elisa forthwith.
(iv) Yvonne’s interest in the Courtyard property passed to Patrick on Yvonne’s death. The Courtyard property does not form part of the estate.
(v) The BMO account ending in 585 does not form part of the estate; the account passes by right of survivorship to Elisa.
(vi) The RAV4 proceeds shall be allocated such that $19,566.61 falls into the residue of the estate, and $20,083.39 vests in Elisa.

[84] Elisa and Patrick are the successful parties and are presumptively entitled to their costs of the application. The parties are encouraged to reach an agreement with respect to costs. In the event they are unable to agree, they may provide their submissions in writing. Elisa and Patrick are to provide their submissions by June 25, 2025. The respondents are to provide their submissions by July 9, 2025. Costs submission are not to exceed three pages. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as amongst themselves.

Justice Ryan Bell
Released: June 11, 2025

Notes

[1] Because some of the parties share the same last name, I have used first names to refer to the parties. I do so for ease of reference and mean no disrespect to the parties.

[2] Eliana’s name is misspelled in the title of proceedings.

[3] Paul Matthews did not file materials on the application and did not make submissions at the hearing.

[4] The parties agree that the ownership of all other accounts identified in the notice of application is not in dispute and that they form part of the estate. Yvonne’s life insurance policy with Sun Life Assurance names Elisa as the beneficiary. Payment of the policy to Elisa is not contested by the respondents. There is also no dispute that the TFSA does not form part of the estate.