Reasons for Decision

Court File No.: CV-24-95311-00ES
Date: 2025-07-08
Superior Court of Justice – Ontario

Re: Alexander Buffa, Applicant
And
Laura Giacomelli (aka Laura Remme) in her capacities as Attorney for Property of Giuliana Buffa and as Estate Trustee to the Estate of Giuliana Buffa, and in her personal capacity, Respondent

Before: Marc Smith
Counsel:
Hala Tabl, Counsel for the Applicant
Erroll G. Treslan, Counsel for the Respondent
Heard: April 15, 2025

Overview

[1] This Application involves the Estate of Giuliana Buffa (“Mrs. Buffa”), late mother of two children, Alexander Buffa (“Applicant”) and Laura Giacomelli (“Respondent”). More specifically, it deals with whether withdrawals made by the Respondent from joint bank accounts she shared with Mrs. Buffa constitute valid inter vivos gifts.

[2] The evidence on this Application was based on affidavits and cross-examinations on those affidavits. A trial did not take place. Credibility was not raised as an issue.

[3] The Applicant seeks the following relief:

i. A Declaration that all accounts held jointly between the deceased and the Respondent from December 16, 2019 to October 17, 2023, are assets impressed with a resulting trust and form part of the Estate.

ii. An Order that the Respondent shall pay the Applicant the sum of nine-hundred-fourteen-thousand-and-twenty-eight dollars and eighty-four cents ($914,028.84) being his share of the Deceased’s estate withdrawn by the Respondent, within 30 days from the date the Order is issued.

iii. An Order that in the event the Applicant’s share is not paid as ordered, a tracing Order in accordance with Rules 44 and 45 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and section 104 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to ascertain assets for recovery in respect of property of the Deceased during her lifetime and the Estate.

iv. An Order that the Respondent shall distribute the balance remaining in the accounts as per the Deceased’s Last Will and Testament dated November 8, 2018 (“Will”).

[4] The Applicant submits that there is a presumption of a resulting trust regarding the joint bank accounts, and that the onus lies with the Respondent to prove the gift from her mother was intended to be excluded from the estate.

[5] The Respondent submits that to the extent that the Applicant seeks to set aside the inter vivos gifts, he must satisfy the test required to prove unconscionable procurement.

Brief Facts

[6] Mrs. Buffa passed away on October 17, 2023. Mrs. Buffa was predeceased by her spouse, Dr. Leonardo Buffa (“Dr. Buffa”) who died on December 16, 2019.

[7] Mrs. Buffa’s Will provided that the estate be divided in two unequal shares: 45% to the Applicant and 55% to the Respondent. The Respondent was appointed as Estate Trustee, with the Applicant being an alternate.

[8] Three days after the death of Dr. Buffa, the Applicant’s lawyer sent a letter to Mrs. Buffa’s lawyer alleging that (i) Mrs. Buffa was incapable of acting as trustee of her husband’s estate; (ii) he objected to Mrs. Buffa being appointed as estate trustee; (iii) he objected to the Respondent being appointed as an alternate trustee; and (iv) he agreed to the appointment of an arm’s length third party to act as estate trustee.

[9] The Applicant was not close to his mother. He last saw or spoke to his mother shortly before Dr. Buffa’s death in December 2019.

[10] The Applicant and the Respondent have been estranged for over thirty years.

[11] In late January 2020, Mrs. Buffa was diagnosed with breast cancer and opted not to follow a course of recommended treatment.

[12] Also in January 2020, Mrs. Buffa directed the TD Bank to transfer her investment account into an account to be jointly held by her and the Respondent, and she directed the Bank of Nova Scotia to open a joint bank account with the Respondent.

[13] In March 2020, Mrs. Buffa designated the Respondent as the beneficiary of her RRIF and TFSA.

[14] In May 2020, Mrs. Buffa signed notes indicating that it was her intention to gift the proceeds of the TD Bank investment account and eventual sale of her condominium to the Respondent.

[15] Between February 2021 and May 2022, the Respondent received approximately $1,700,000 from accounts sourced with Mrs. Buffa’s funds.

[16] Mrs. Buffa first showed signs associated with dementia in the fall of 2021.

Legal Principles

[17] To constitute a valid inter vivos gift, the recipient has the onus to prove three elements, on a balance of probabilities: (i) an intention to make the gift; (ii) an acceptance of the gift; and (iii) sufficient delivery of the gift: Foley v. McIntyre, 2015 ONCA 382, at para. 25.

[18] The law presumes that when a parent gratuitously transfers property to a child, then that child holds the property as a resulting trust for the parent. To rebut the presumption, the child that received the property must prove the contrary intent on a balance of probabilities. Emphasis must be placed on the parent’s actual intent at the time of transfer: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 36 and 44.

[19] The presumption of undue influence applies in cases with a “potential for domination” in the relationship between the gift transferor and the recipient transferee. The recipient transferee must prove that the transferor had “full, free and informed thought” when the gift was made. While evidence that the transferor received independent advice for the said gift can be used, it is not required in every case: Foley (Re), 2015 ONCA 382, at para. 28.

[20] When the donor is deceased, s. 13 of the Evidence Act, R.S.O. 1990, c. E.23, requires corroborative evidence. This evidence can be direct or circumstantial and can consist of a single or several pieces of evidence: Foley (Re), 2015 ONCA 382, at para. 29.

[21] The doctrine of unconscionable procurement is an additional equitable doctrine available to challenge the validity of an inter vivos gift. The inquiry in such circumstances hinges on the donor’s “necessary level of understanding to make a transaction conscionable when it takes place in circumstances that suggest, on a prima facie basis, the contrary.” The onus rests on the party attacking the transfer: Gefen v. Gaertner, 2019 ONSC 6015, at paras. 158 and 159.

Issues

[22] The issues to be determined are as follows:

i. Were the inter vivos gifts valid?
ii. Has the Respondent rebutted the presumption of resulting trust?
iii. Has the Applicant proven unconscionable procurement?

Analysis

Issue #1 – Were the inter vivos gifts valid?

[23] The Respondent needs to prove that Mrs. Buffa intended the gift, that it was accepted by the recipient, and that it was delivered or transferred before Mrs. Buffa’s death. The second and third element of the test are easily established because the joint bank accounts were created, in operation and had funds withdrawn while Mrs. Buffa was still living.

[24] The focus of the analysis is on the first element, Mrs. Buffa’s intention. I find that based on the totality of the evidence as set out below, Mrs. Buffa intended to make the gifts to her daughter:

i. The Respondent had a very close and loving relationship with her mother. There is no evidence to the contrary.

ii. The Applicant did not have a close relationship with his mother. While the Applicant attempts to paint a different picture such as by showing family pictures of his wedding in 2003, his direct evidence says something entirely different.

iii. The Applicant’s actions towards his mother in or around the time of Dr. Buffa’s death are quite telling. While in the hospital, the Applicant did not show any empathy towards his mother (i.e. did not embrace her). He acknowledged that he was not particularly close to his mother. Then, shortly after his father’s death, the Applicant inappropriately refused to provide his mother with the password to his father’s computer, despite knowing that his mother was the Estate Trustee to Dr. Buffa’s estate.

iv. The Applicant’s view of his mother was that she was incapable of properly dealing with any financial matters and according to the evidence, this opinion dated back to 2003. Three days after his father’s death, on December 19, 2019, the Applicant directed his lawyer to send a letter to his mother’s lawyer, reiterating his concerns regarding her abilities to properly manage Dr. Buffa’s estate. The Applicant alleged that his mother was “incapable of performing the duties and discharging the obligations of an estate trustee.” Through her lawyer, Mrs. Buffa responded that all assets were either held jointly or that she was sole beneficiary and that there was no need to probate Dr. Buffa’s Will.

v. The Respondent deposed that Mrs. Buffa was “shocked and rattled by the notion” that the Applicant attempted to override Dr. Buffa’s “wish for her to administer his estate and to dictate her living arrangements.” While this is hearsay evidence, I find this description of Mrs. Buffa’s reaction to be entirely plausible.

vi. Following the receipt of the letter from the Applicant’s lawyer, Mrs. Buffa proceeded to convert the bank accounts into joint bank accounts with her daughter. On January 27 and 30, 2020, forms were signed to create these joint bank accounts at the TD Bank and Scotiabank, respectively.

vii. In March 2020, Mrs. Buffa designated the Respondent as the beneficiary of her RRIF and TFSA, which is a clear intention of a gift, separate from the creation of the joint bank accounts.

viii. In May 2020, Mrs. Buffa writes two letters. The first is confirming her desire to sell her condominium and that the proceeds of sale be deposited into the joint bank accounts. The second relates to the investment accounts and that the proceeds from those be deposited into the joint bank accounts.

ix. While these foregoing actions taken by Mrs. Buffa could be a direct result of receiving the adversarial letter from the Applicant’s lawyer in late December 2019, I find that Mrs. Buffa acted in a manner that is consistent with the type of relationship that she shared with her daughter, as opposed to the non-existent relationship that she had with her son.

x. The evidence reveals that Mrs. Buffa struggled with health issues. However, there is no evidence before me that any of the actions taken by Mrs. Buffa were made when she had diminished capacity.

xi. Following Dr. Buffa’s death, the Applicant had no contact with his mother. It is not surprising that Mrs. Buffa would not speak or see the Applicant after his failed attempt to oust her as the Estate Trustee of her husband’s estate. It is yet another confirming example of the troubled and estranged relationship that existed between mother and son.

xii. I do not accept the Applicant’s evidence that he tried to contact his mother after his father’s death. The Applicant acknowledged that his mother had an answering machine and that he called her 40 times, without any success. The Applicant did not leave any messages claiming that he did not want any information to be given to his sister. I find this to be implausible. Based on the evidence before me, I find that the Applicant made no efforts in reaching out to his mother between Dr. Buffa’s death and her own, which is consistent with having a non-existent relationship with his mother.

xiii. During the last three years of Mrs. Buffa’s life, the Respondent remained living in Collingwood, approximately 400 kilometers away from Mrs. Buffa’s residence. There is no evidence before me that the relationship between mother and daughter was one of dependency or dominance.

xiv. There is no evidence before me to suggest that the creation of the joint bank accounts and any of the transfers made to the Respondent were done without the full approval and consent of Mrs. Buffa, or that the Respondent acted in any inappropriate matter to convince Mrs. Buffa of giving the gifts to her daughter.

xv. I accept the Respondent’s evidence that she enjoyed a very close relationship with her mother, speaking to her on most days and visiting her once per month. Mrs. Buffa was generous with the Respondent, and she was determined to help her daughter with buying a property in Florida.

xvi. I also accept the Respondent’s unchallenged evidence regarding her mother’s life after the death of her husband. Mrs. Buffa enjoyed living independently and she was responsible and made her own decisions with respect to her finances. She was active, enjoyed walks, grocery shopping and dining with her friends.

xvii. This Application appears to be fueled by the Applicant’s hatred of the Respondent. He described his relationship with his sister as follows: “My sister has never actually been very kind to me in childhood. It’s a lifetime, a very long period of time of essentially stepping down on the younger brother…this is a result of a lifetime of negativity during childhood to a point where you simply say when someone’s radioactive you just make distance and avoid as much contact as possible.”

xviii. The Applicant never trusted his sister. The evidence reveals that he addressed some of his concerns to his father in October 2003. These concerns were not shared by Dr. Buffa and Mrs. Buffa because the Respondent was named as the Estate Trustee if they passed away, demonstrating an element of trust in her to execute the estate. Moreover, Mrs. Buffa appointed the Respondent as her Power of Attorney for the management of her property. There is no evidence whatsoever that either Dr. Buffa or Mrs. Buffa were unduly influenced in appointing the Respondent as Estate Trustee or Power of Attorney.

xix. The Applicant’s distrust of his sister is misplaced with respect to Mrs. Buffa’s property. There is insufficient evidence before me to support any findings of wrongdoing on the part of the Respondent.

[25] I am mindful that a significant portion of Mrs. Buffa’s assets were transferred to her daughter during her lifetime, which appears to contradict Mrs. Buffa’s intentions as set out in her Will. At first glance, one may question the validity of the transfers. However, after carefully assessing and weighing several pieces of evidence before me, I am of the view that Mrs. Buffa’s wishes of transferring her wealth to the Respondent must be honoured.

[26] When considering the totality of the evidence, which includes the Applicant’s behaviour towards his mother, the strained and the more recent non-existent relationship between the Applicant and Mrs. Buffa, the very close relationship that the Respondent shared with Mrs. Buffa, the lack of evidence regarding undue influence, the lack of evidence regarding Mrs. Buffa’s mental incapacity to manage her financial affairs, and the various clear and unambiguous documents executed by Mrs. Buffa providing her instructions, I find that the circumstantial and direct evidence demonstrates Mrs. Buffa’s clear and unmistakable intention to make the inter vivos gifts to the Respondent.

Issue #2 – Has the Respondent rebutted the presumption of resulting trust?

[27] The Respondent has the onus of proof to rebut the presumptive resulting trust by establishing Mrs. Buffa’s intent to gift on a balance of probabilities.

[28] As I have set out above in detail, I have concluded that the Respondent has provided sufficient evidence to prove Mrs. Buffa’s intent. In other words, I find that the Respondent has adduced sufficient evidence to displace the presumption.

[29] For the sake of clarity and completeness, I conclude that Mrs. Buffa’s intentions to gift her wealth to the Respondent are supported by the evidentiary record. There is a long history of a strained and/or non-existing relationship between the Applicant and his mother. The Applicant did not trust his mother and he attempted to remove her as Estate Trustee of his father’s estate, contrary to his father’s wishes. Conversely, there is evidence of a strong, loving, and trusting relationship between the Respondent and her mother. The gifts made by Mrs. Buffa to the Respondent are consistent with the type of relationship that she shared with her daughter, but more importantly are reflective of the lack of relationship that she had with the Applicant. There is no evidence that Mrs. Buffa was mentally incapable of managing her financial affairs or that she was unduly influenced by her daughter in creating the joint bank accounts or designating the Respondent as the beneficiary of her RRIF and TFSA. Mrs. Buffa’s instructions of gifting her wealth to her daughter during her lifetime, as documented by bank forms and gift notes, were clear and unambiguous.

[30] In summary, I conclude that the funds transferred to the Respondent were gifts that did not create a resulting trust and were not the result of undue influence.

Issue #3 – Has the Applicant proven unconscionable procurement?

[31] There is much debate as to whether the doctrine of unconscionable procurement is a valid equitable doctrine to challenge the validity of an inter vivos gift: Gefen Estate v. Gefen, 2024 ONCA 174 at para. 61; The Estate of William Robert Waters v. Gillian Henry et al., 2024 ONSC 4190 at paras. 357-359.

[32] Despite its unstable status, the doctrine of unconscionable procurement is nonetheless available to the parties, and the Applicant has not persuaded me that it cannot be applied to this case.

[33] The Applicant has the onus to prove that Mrs. Buffa did not have a conscionable understanding of the transaction. He must prove two things: (i) the Respondent obtained a significant benefit from another gift or other voluntary inter vivos wealth transfer; and (ii) the Respondent was actively involved in procuring or arranging the transfer from the maker. If these criteria are satisfied, then a presumption is established that Mrs. Buffa did not truly understand the actions they were taking in completing these transfers. The onus would then shift to the Respondent to prove that Mrs. Buffa made the gift voluntarily and deliberately.

[34] It is undisputed that the Respondent received a significant benefit from Mrs. Buffa’s gift. However, the Applicant has failed to prove that the Respondent was actively involved in procuring or arranging the transfer. The Applicant has not provided any evidence whatsoever to support that the Respondent was actively involved in obtaining the gifts. There is evidence that the Respondent drove Mrs. Buffa to certain meetings, but nothing more.

[35] Moreover, I have already concluded that the Respondent has established that Mrs. Buffa freely and deliberately gave those gifts to the Respondent.

[36] Therefore, the Applicant has not proven unconscionable procurement.

Disposition

[37] For these reasons, I decline to declare that the assets transferred to the Respondent are impressed with a resulting trust and form part of the Estate. I also decline to order payment of any sums withdrawn by the Respondent, and furthermore, there is no basis for the issuance of a tracing order.

[38] I encourage the parties to agree on the issue of costs. If they are unable to do so, the Respondent shall file and serve her costs submissions within 15 days of these Reasons for Decision, limited to three pages, excluding the Bill of Costs and Offers to Settle. The Applicant shall file and serve his costs submissions, within 15 days thereafter, with the same page restrictions.

Marc Smith
Released: July 8, 2025