COURT OF APPEAL FOR ONTARIO

CITATION: Foley (Re), 2015 ONCA 382

DATE: 20150528

DOCKET: C58300

Doherty, Juriansz and Huscroft JJ.A.

In the Estate of Vera Eileen Pearl Foley, Deceased, and in the Matter of the Property of Edward Walter Foley under Power of Attorney, and in the Estate of Edward Walter Foley, Deceased

BETWEEN

Donald Edward Foley

Plaintiff (Appellant)

and

Dorothy Eileen McIntyre

Defendant (Respondent)

Gregory M. Sidlofsky and B. Donovan, for the appellant

Barry L. Evans, for the respondent

Heard: January 12, 2015

On appeal from the judgment of Justice Anne Mullins of the Superior Court of Justice, dated January 9, 2014, with reasons reported at 2014 ONSC 194.

Juriansz J.A.:

[1]          The appellant, Donald Foley, appeals from the trial judge’s dismissal of his action seeking to set aside three money transfers and a bequest of Canada Savings Bonds that his father, Edward Foley, made to his sister, the respondent Dorothy McIntyre. McIntyre was the father’s power of attorney for property during the last few years of his life. The trial judge found the father was not subject to undue influence and had sufficient capacity to make the gifts and bequest.

[2]          The appellant claims that the trial judge erred in finding there was sufficient corroborating evidence to rebut the presumptions of resulting trust and undue influence that arose when the gifts were made. The appellant also challenges the respondent’s entitlement to the proceeds of the Canada Savings Bonds. He submits that the trial judge erred in finding that the testamentary gift did not adeem when Mr. Foley deposited his Canada Savings Bonds into a joint account.

[3]          For the reasons that follow, I would dismiss this appeal.

A.           Background

[4]          The appellant and respondent are the only children of Mr. Foley. They grew up on a dairy farm, owned and operated by their father. Throughout high school, the appellant helped his father tend the farm, and the respondent assisted her mother, Eileen Foley, with domestic aspects of farm life.

[5]          After high school, the respondent left home but maintained a close relationship with her parents. The appellant continued to work on the farm, and he and his wife built a house on the farm parcel. The appellant eventually entered into a partnership with his father. He acquired his partnership interest through sweat equity.

[6]          In 1987, the farm was transferred to the appellant. In exchange for the farm, the appellant was obliged to cover certain expenses. He gave one dollar consideration for the milk quota.

[7]          In 1990, Mr. Foley appointed the respondent as his power of attorney. He also executed his last will and testament (the “Will”). The Will contains the following specific bequest to the respondent:

To transfer and deliver to my daughter, DOROTHY EILEEN McINTYRE, all Canada Savings Bonds registered in my name only at the time of my death, together with all unpaid and accrued interest owing thereon. [Emphasis added.]

[8]          The Will further directs that the residue of the estate be distributed in equal shares to the respondent and the appellant.

[9]          Mr. Foley’s power of attorney was activated in December 1992, after he suffered a stroke. The respondent managed her father’s general financial affairs during his recovery, but Mr. Foley resumed responsibility of his finances shortly thereafter.

[10]       On April 10, 1996, Mr. Foley suffered another stroke and was admitted to hospital. The respondent once again assumed her responsibilities as power of attorney. She managed Mr. Foley’s banking and general finances, but did not manage his investment portfolio. She continued in this role until her father’s death.

[11]       On April 24, 1996, Mr. Foley established a joint “Investor’s Edge” account at CIBC, with a right of survivorship, naming the appellant and respondent as joint tenants (the “Joint Account”). Ms. Conway, Mr. Foley’s financial advisor, testified that Mr. Foley opened the Joint Account because he was looking for a way to avoid probate costs, and he assured her that his children would know how to divide the assets.

[12]       Mr. Foley later deposited his Canada Savings Bonds in the Joint Account. The bank placed the following stamp on the back of the bonds:

For deposit only to the account of the registered holder. CIBC WOOD GUNDY SECURITIES INC. 

[13]       Mr. Foley was the only person to make contributions to or withdrawals from the Joint Account, and the respondent and appellant both testified they were unaware that the Canada Savings Bonds had been placed in the account.

[14]       Between 1994 and 1997, the respondent received the following monetary transfers from Mr. Foley:

1)   November 2, 1994 – $80,000, that the respondent says originated from a matured bond. The proceeds of the bond were used to purchase a GIC in the respondent’s name. When the GIC matured on November 4, 1997, the principal with interest, totalling $98,032.88, was deposited into one of Mr. Foley’s bank accounts. That same day, the $98,032.88 was transferred to the respondent’s bank account;

2)   November 10, 1997 – $53,062.62, representing proceeds from a Canada Savings Bond registered in Mr. Foley’s name. There is a typewritten letter dated October 31, 1997, prepared by Ms. Conway, giving instructions to transfer the sum to the respondent for her use. The letter is signed by Mr. Foley;

3)   November 14, 1997 – $80,704.27 was transferred to the respondent from Mr. Foley. The funds derived from Canada Savings Bonds previously held by Eileen Foley.[1] There was a handwritten letter, dated November 6, 1997, authorizing the transfer. It too was drafted by Ms. Conway and signed by Mr. Foley.

[15]       Mr. Foley died on March 26, 1998. Mr. Foley’s estate redeemed the Canada Savings Bonds held in the Joint Account after his death and distributed the proceeds of $275,390.53 to the respondent on December 22, 1998.

B.           The decision below

[16]       The trial judge found that that Mr. Foley possessed the capacity to make gifts at the time the inter vivos transfers were made, and he was not prompted to make the gifts by undue influence.

[17]       She was satisfied that Mr. Foley was well aware of the extent of his investments and made all of his own investment decisions up to the time of his death. Although the respondent acted as Mr. Foley’s power of attorney and managed his day-to-day financial affairs, the trial judge found there was ample evidence the respondent was not involved in Mr. Foley’s investment arrangements. She accepted the evidence of Ms. Conway, that the respondent was not present during Ms. Conway’s meetings with Mr. Foley. On rare occasions, the respondent would inform Ms. Conway that Mr. Foley wished to discuss his investments. However, for the most part, Ms. Conway was responsible for initiating meetings with Mr. Foley and would do so whenever one of his investments matured. In her role as financial advisor, Ms. Conway would present Mr. Foley with options, but she would never make decisions for him. Mr. Foley was a conservative investor, and Ms. Conway did not notice changes in his investment strategy in the years leading to his death.

[18]       The trial judge also relied on the evidence of the respondent’s expert, Dr. Schulman, a geriatric psychiatrist. Dr. Schulman was of the opinion that Mr. Foley possessed donative capacity and was not particularly susceptible to undue influence at the time of the gifts were made. He acknowledged that Mr. Foley lacked the capacity to consent to long-term care; however, he explained that capacity is context specific. In Dr. Schulman’s view, it was significant that Mr. Foley was never put on medication for brain function or diagnosed with a mentally impairing condition. Rather, the evidence showed that Mr. Foley was able to make and understand important decisions such as consenting to an advanced directive and managing his investment portfolio.   

[19]       The appellant’s wife, Virginia Foley, testified that Mr. Foley told her a delusional story on October 31, 1997, the same day he instructed Ms. Conway to make the second transfer to the respondent. The trial judge rejected this evidence as well as the appellant’s evidence that Mr. Foley was unable to recognize his family members. She also did not accept the testimony of Dr. Silberfeld, a psychiatrist expert called by the appellant who gave his opinion that Mr. Foley was susceptible to undue influence. The trial judge found that Mr. Foley knew the respondent, and he alone initiated the gifts to her.

[20]       The trial judge also noted that, with respect to the latter two gifts, Mr. Foley had the independent advice of Ms. Conway. This further rebutted the presumption of undue influence. The trial judge found that Ms. Conway was not obliged to “discuss the obvious” with Mr. Foley, that is, whether the transfers to the respondent would imperil his ability to support himself. Nor did the trial judge take issue with the fact that Ms. Conway did not ask Mr. Foley if he was pressured to give the gifts or discuss the implications of giving the gifts to his daughter. She found that Ms. Conway would not have overlooked exploitive conduct of those that were attempting to subvert Mr. Foley’s will.

[21]       The trial judge also found that the respondent rebutted the presumption of resulting trust. With respect to the second and third gifts, the trial judge found corroboration of the gifts in the written instructions provided to Ms. Conway, which she found expressed an intention to give the funds for the respondent’s use absolutely. She also found corroboration in the Will because the funds were the proceeds of Canada Savings Bonds. In addition, Ms. Conway testified she recalled Mr. Foley telling her that his daughter was to receive the Canada Savings Bonds, and his son would receive the farm. Moreover, the trial judge noted that Mr. Foley was known to carefully track and record loans made to his family members. She inferred that he would have kept a record of the transfers to the respondent if he intended them as loans rather than gifts. Given these findings with respect to the latter two gifts, the trial judge found it would be “incongruous” to find that the first transfer was anything other than a gift.

[22]       The trial judge found the transfer on November 4, 1997 of $98,032.99 from Mr. Foley’s account to the respondent’s account was made to correct a bank error. According to the respondent, her father told her in 1994 he wanted her to have the proceeds of $80,000 of a Canada Savings Bond that had matured. She said she accompanied her father to the bank and invested the proceeds in a GIC in her name. The trial judge accepted the opinion of Norman Sexsmith, a chartered accountant retained to prepare the estate accounts for Mr. and Mrs. Foley, that when the GIC matured, the bank had mistakenly deposited the proceeds into Mr. Foley’s account rather than the respondent’s and then corrected its own error. 

[23]       With respect to the testamentary bequest, the trial judge rejected the submission that the gift adeemed when the bonds were deposited into the Joint Account. She found that the appellant had not rebutted the presumption of resulting trust that arises when a parent transfers property into a joint account with his children. She found that Mr. Foley organized his investments in the Joint Account as a way to avoid probate costs. Neither the respondent nor the appellant had intimate knowledge of the contents of the account, and Mr. Foley was the only account holder to make contributions or withdrawals from the account. She concluded that Mr. Foley remained the sole beneficial owner of the assets in the account and did not intend to make an inter vivos gift to his children of those assets.

[24]       The trial judge further found that the bonds became negotiable instruments when they were endorsed by the teller’s stamp to be deposited into the Joint Account. However, in her view, the endorsement did not result in an ademption of the gift because the bonds continued to be registered in Mr. Foley’s name only, and they were not redeemed until after his death. Thus, the respondent was entitled to the proceeds of the redeemed bonds in accordance with the Will.

C.           The Law Pertaining to Gifts

[25]       A valid inter vivos gift is one that is intended to take effect during the lifetime of the donor. It consists of a voluntary transfer of property to another with the full intention that the property will not be returned. To establish a gift, one must show intention to donate, sufficient delivery of the gift, and acceptance of the gift: McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 24.

(1)         Presumption of Resulting Trust

[26]       Equity presumes bargains, not gifts. Thus, when a parent gratuitously transfers property to an adult child, the law presumes that the child holds the property on a resulting trust for the parent: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 36. The onus shifts to the adult child to rebut the presumption by proving the contrary intent on a balance of probabilities: Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, 119 O.R. (3d) 81, at paras. 56-57; Mroz (Litigation Guardian of) v. Mroz, 2015 ONCA 171, at para. 72. The trial judge must begin her inquiry with the presumption and then weigh all the evidence in an attempt to determine the parent’s actual intent at the time of the transfer: Pecore, at para. 44; Sawdon, at para. 57; Mroz, at para. 72.

[27]       The evidence necessary to rebut the presumption depends on the facts of the case: Pecore, at para. 55. Evidence of the parent’s post-transfer conduct is admissible, so long as it is relevant to the parent’s intention at the time of the transfer: Pecore, at para. 59. 

(2)         Presumption of Undue Influence

[28]       Where the potential for domination inheres in the relationship between the transferor and transferee, the presumption of undue influence applies: Goodman Estate v. Geffen, [1991] 2 S.C.R. 353, at p. 378. The transferee must establish on a balance of probabilities that the gift was the result of the transferor’s “full, free and informed thought”: Goodman Estate, at p. 379. Evidence that the transferor received qualified, independent advice can be used to rebut the presumption: Goodman Estate, at p. 379. However, this is not to say that evidence of independent advice is required in every case: Laird v. Mulholland (1998), 21 E.T.R. (2d) 204 (Ont. S.C.), at paras. 36-37; Bank of Montreal v. Duguid (2000), 47 O.R. (3d) 737 (Ont. C.A.), at paras. 26-27, leave to appeal to S.C.C. allowed, [2000] S.C.C.A. No. 298, appeal discontinued August 2, 2001.

(3)         Corroborative Evidence

[29]       The common law requires corroborating evidence to rebut the presumptions. The corroborating evidence can be direct or circumstantial, and it can consist of a single piece or evidence or several pieces considered cumulatively: Burns Estate v. Mellon (2000), 48 O.R. (3d) 641, at para. 29.

[30]       In addition, where the donor is deceased, the Evidence Act, R.S.O. 1990, c. E.23 requires corroborative evidence. Section 13 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.

D.            Discussion

(1)         The November 10, 1997 and November 14, 1997 Transfers

[31]       The trial judge’s findings that Mr. Foley did not lack capacity and there was sufficient evidence to rebut the presumptions of resulting trust and undue influence are findings of fact, which are entitled to deference from this court absent an error of law or principle or unreasonableness.

[32]       The trial judge was entitled to reject the testimony of the appellant and his wife concerning Mr. Foley’s incapacity. It was her task to assess the expert evidence, and she was entitled to prefer the opinion of the Dr. Schulman over that of Dr. Silberfeld. There is no basis to interfere with her conclusions that Mr. Foley was capable of making gifts and understood the consequences of doing.

[33]       Both the November 10, 1997 and November 14, 1997 transfers were executed pursuant to written instructions signed by Mr. Foley. The letter authorizing the November 10, 1997 transfer clearly states that the funds are to be transferred to the respondent “for her use”. The handwritten letter authorizing the November 14, 1997 transfer does not have the words “for her use”, but it was open to the trial judge to infer that Mr. Foley had a similar intention in mind.

[34]       Corroboration for the November 10, 1997 gift also comes from Mr. Foley’s Will. The $53,062.62 represented the proceeds of Canada Savings Bonds registered in Mr. Foley’s name only. This gift is consistent with the intention expressed in his Will to gift his daughter the bonds registered in his name only at the time of his death.

[35]       The $80,704.27, transferred on November 14, 1997, derived from matured Canada Savings Bonds Mr. Foley had inherited from his wife. Although the registration of the bonds does not perfectly match the description of the specific bequest in the Will, it was open to the trial judge to find that the Will provided at least some corroboration for the gift. The trial judge also found that Ms. Conway’s testimony and Mr. Foley’s own financial records, which did not record the transfer as a loan, provided corroboration for this gift.

[36]       Ms. Conway’s testimony that Mr. Foley told her the respondent was to receive his Canada Savings Bonds because the appellant got the farm provided further corroboration for these gifts.

[37]       The trial judge was entitled to consider that Mr. Foley was frugal and carefully recorded the loans he made to members of his family. In Burns, for example, Laskin J.A. found the fact a transfer was not recorded as a loan corroborated the respondent’s evidence that the transfer was intended as a gift.

[38]       There was ample evidence that Mr. Foley was well versed in investments and capable of making investment decisions up until the time of his death. There was no evidence that the respondent was in any way involved in Mr. Foley’s investment decisions or influenced him to make gifts in question. The trial judge found that the respondent was not present at the meetings with Ms. Conway, and she did not have any discussions with Ms. Conway about the gifts before they were made. The trial judge accepted the respondent’s testimony that she did not learn about the gifts until they were made.

[39]       Mr. Foley also had the benefit of Ms. Conway’s independent advice when executing the 1997 transfers to his daughter. Unfortunately, Ms. Conway did not ask Mr. Foley many of the questions one would expect an independent advisor to ask when an elderly individual is making a significant gift to his child and power of attorney. Nonetheless, it was open to the trial judge to find Mr. Foley received sufficient independent advice in this case. Ms. Conway acted as Mr. Foley’s investment advisor for close to eight years. She was very familiar with his investment strategy and did not notice a change in his investment choices to suggest he was under the influence of another. Moreover, Ms. Conway met with Mr. Foley privately, and they reviewed his investment portfolio at each meeting. It was not unreasonable to conclude that Ms. Conway was not obliged to discuss the obvious with her financially astute client, that is, whether the gifts would imperil his ability to sustain himself.

[40]       I would, therefore, dismiss the appellant’s appeal with respect to the 1997 transfers.

(2)         November 2, 1994/November 4, 1997 Transfer

[41]       On November 4, 1997, the sum of $98,032.88 was transferred from Mr. Foley’s bank account to the respondent’s account. There is no documentation from Mr. Foley instructing the bank to make the transfer. However, the respondent testified that in late 1994, her father gave her $80,000, constituting the proceeds of a Canada Savings Bond. The respondent says she invested that sum in a GIC in her name. When the GIC matured, the bank deposited the proceeds, totalling $98,032.88, into an account in Mr. Foley’s name. The same day, the bank transferred the funds into the respondent’s account. The respondent testified that she did not instruct the bank to make the transfer. Mr. Sexsmith gave the opinion that the bank acted to correct its own error in depositing the proceeds in Mr. Foley’s account.

[42]       The appellant pointed to a CIBC Archived Product History “as at Feb/08/2001” that indicates that the proceeds of the GIC were to be deposited in account #0816035 on maturity. Account #0816035 belonged to Mr. Foley. The appellant insists that this bank document provides evidence that Mr. Foley did not intend to gift the $80,000 to his daughter, but rather wished for her to hold the funds in trust.

[43]       However, there was no evidence that Mr. Foley ever gave instructions that the proceeds of the GIC in the respondent’s name be deposited into that account. It was open to the trial judge to accept the opinion of Mr. Sexsmith that the bank deposit into account #0816035 was made in error and corrected by the bank. If anything, the Archived Product History provides corroboration for the respondent’s testimony by verifying that $80,000 was deposited into a GIC in her name.

[44]       The 1994 gift was made at a time when Mr. Foley was his least vulnerable. The respondent was not actively acting as his power of attorney at that time, and the appellant admitted that Mr. Foley had capacity to gift. Thus, it was reasonable to conclude that Mr. Foley understood the nature of the transaction and was not subject to undue influence.

[45]       The trial judge was entitled to note that Mr. Foley did not record a loan of $80,000 to his daughter and to consider that the Will provided further corroboration for the gift because the funds were the proceeds of a Canada Savings Bond.

[46]       I see no basis to interfere with the trial judge’s finding that Mr. Foley made a gift of $80,000 to the respondent on November 2, 1994. I would dismiss this ground of appeal.

(3)         The Testamentary Bequest

[47]       The appellant argues that the gift of the Canada Savings Bonds adeemed when the bonds were deposited into the Joint Account with a right of survivorship. He acknowledges that a presumption of resulting trust arose when Mr. Foley gratuitously transferred his property to himself and his children jointly. However, he contends that the trial judge erred in finding that the presumption was not rebutted. The appellant submits that, in opening the Joint Account, Mr. Foley intended to gift both the respondent and appellant the legal and equitable rights of survivorship to whatever assets were left in the account at the time of his death. Thus, upon Mr. Foley’s death, the contents of the account, including the Canada Savings Bonds, ceased to form a part of Mr. Foley’s estate and passed to the appellant and the respondent by right of survivorship.

[48]       In the alternative, the appellant submits that, upon deposit into the Joint Account, the bonds ceased to meet the description of the specific bequest in Mr. Foley’s Will. He says that the teller’s stamps were restrictive endorsements that had the effect of making the proceeds of the bonds payable to CIBC, rather than Mr. Foley. They were no longer registered in Edward’s name only. Thus, even if the contents of the account were held in trust for Mr. Foley’s estate, the specific bequest in the Will adeemed. The bonds formed part of the residue of Mr. Foley’s estate and should have been distributed equally amongst the parties, as per the Will.

[49]       The respondent submits that the appellant has not rebutted the presumption of resulting trust. Moreover, she submits the teller’s stamp should be read differently. It should be read as confirming that the bonds could only be deposited into the account of the registered holder, Mr. Foley. The words “CIBC WOOD GUNDY SECURITIES INC.” in smaller font below the words “FOR DEPOSIT ONLY TO THE ACCOUNT OF THE REGISTERED HOLDER”, merely identify the institution to which the bonds had been delivered and do not indicate that the institution is the registered holder.

[50]       The quality of evidence about how the bank held the Canada Savings Bonds in the Joint Account is poor. However, like the trial judge, I would reject the appellant’s arguments, but on a somewhat different basis. I do not agree the bonds became negotiable instruments.

[51]       In my view the respondent’s reading of the stamp on the back of the bonds is to be preferred. Mr. Foley never endorsed the bonds. Without his endorsement, the bonds could not become negotiable instruments and the bank could not become the registered holder. Furthermore, the bank’s “Receipt for Securities” dated April 22, 1996 indicates the “Name of the Registered Holder” is “Edward Foley”. It is clear the Mr. Foley remained the registered holder of the bonds.

[52]       There is no basis for interfering with the trial judge’s finding that the presumption of resulting trust was not rebutted. To the extent the appellant and respondent had an interest in the bonds in the Joint Account, they held that interest in trust for Mr. Foley. At the time of Mr. Foley’s death, the bonds had not yet matured, and since they remained registered “in his name only” they would have passed to the respondent under the Will, despite his wish to avoid probate fees.

[53]       On this reasoning I would not interfere with the trial judge’s decision to treat the Canada Savings Bonds in the Joint Account as a bequest to the respondent.

E.           Disposition

[54]       I would dismiss the appeal. I would uphold the trial judge’s finding that the funds Mr. Foley transferred to the respondent in 1994 and 1997 were valid gifts. I would also uphold the trial judge’s finding that the Mr. Foley bequeathed the Canada Savings Bonds in the Joint Account to the respondent.

[55]       If the parties cannot agree on costs, they may make written submissions no longer than five pages within 30 days.

Released: May 28, 2015

          (DD)

“R.G. Juriansz J.A.”

“I agree Doherty J.A.”

“I agree Grant Huscroft J.A.”