IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Maxim v. Cameron,
	2008 BCSC 377

Date: 20080331

Docket: S90446

Registry: New Westminster

Between:

Lani Janine Maxim

Plaintiff

And

Laurence William Cameron and

Lori Jina Cameron

Defendants

Before: The Honourable Mr. Justice Scarth

Reasons for Judgment

Counsel for the Plaintiff:	Ross S.P. Davidson Sandeep Gill
Counsel for the Defendants:	Sharene D. Orstad
Date and Place of Trial/Hearing:	October 22, 23, 24, 25, 26 and November 7, 2007
	New Westminster, B.C.

[1]                The plaintiff, Lani Janine Maxim, claims that the transfer of her parents’ home at 2955 Pasture Circle in Port Coquitlam to her sister, Lori Jina Cameron, and her sister’s husband, Laurence William Cameron (the “defendants”), in 2002, was the result of undue influence exercised by the defendants over the parents, Jean Barnes (now deceased) and Cyril Howard Barnes.  The plaintiff seeks a declaration that the defendants hold a one‑half interest in the home in trust for her.  She claims damages for breach of trust and breach of fiduciary duty, and general damages.  Neither Mrs. Barnes, nor her estate, nor Mr. Barnes, is a party to this action, although Mr. Barnes’ testimony, recorded by way of video deposition on 12 May 2006, was before the Court at the trial. 

[2]                The factual background is as follows.  Mr. Barnes was born on 12 April 1922.  At the time of the trial, he was 85 years of age.  His wife, Jean Barnes, was born on 6 January 1928, and died on 11 August 2003, as a consequence of metastatic carcinoma‑ovary.  At the time of her death, Mrs. Barnes was 75 years of age.  Mr. and Mrs. Barnes were married in 1943.  They had two children, both of whom they adopted at their respective births:  the plaintiff Lani Janine Maxim, born 7 June 1967, and now 40 years of age; and the defendant Lori Jina Cameron, born 16 August 1964, and now 43 years of age.  Ms. Maxim and Ms. Cameron are not biological sisters. 

[3]                Mr. and Mrs. Barnes lived at 2955 Pasture Circle from 1962 until Mrs. Barnes’ death in August 2003.  Following Mrs. Barnes’ death, Mr. Barnes continued to live in the home with the defendants and their family.  Until 23 July 2002, title to the property stood in the joint names of Mr. and Mrs. Barnes.  On that day, the title in the names of Mr. and Mrs. Barnes was cancelled and a new certificate of title in the joint names of the defendants, Laurence William Cameron and Lori Jina Cameron, was issued as the result of the registration of a freehold transfer executed by Mr. and Mrs. Barnes in favour of the defendants on 4 July 2002.  It is this transfer which is impugned by the plaintiff in this proceeding on the ground that it was obtained by the exercise of undue influence on the part of the defendants over Mr. and Mrs. Barnes.

[4]                At the outset it is wise to keep in mind the principles relating to the law of undue influence.  They are set out in the judgment of Madam Justice Wilson, writing for herself and Mr. Justice Cory, in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, at p. 368 et seq., and are summarized by Madam Justice Satanove, of this Court, in Ogilvie v. Ogilvie Estate (1996), 26 B.C.L.R. (3d) 262 (S.C.); 27 B.C.L.R. (3d) 378 at ¶s 32‑39; affirmed (1998), 49 B.C.L.R. (3d) 277 (C.A.).  See also Tracy v. Boles, [1996] B.C.J. No. 52 (S.C.), at ¶37 et seq.; Tribe v. Farrell, 2003 BCSC 1758, 4 E.T.R. (3d) 288, at ¶19 et seq.

[5]                In Ogilvie Estate, supra, the trial judge, Madam Justice Satanove, at 26 B.C.L.R. (3d) 262 (S.C.), 27 B.C.L.R. (3d) 378, noted at ¶37 that in cases where the potential for domination inheres in the nature of the relationship between a donor and donee, a presumption of undue influence is triggered.  After reviewing certain passages from the judgment of Madam Justice Wilson in Goodman Estate, supra, Madam Justice Satanove wrote the following at ¶39:

39        Therefore, it appears that once the plaintiff has established that the nature of the relationship between the donor and the recipient was such that the potential for influence existed, the onus shifts to the defendant to rebut it. The defendant must show that the donor entered into the transaction as a result of his or her own "full, free and informed thought". This may entail establishing that no actual influence was deployed in the particular transaction and that the donor had independent advice. (Zamet v. Hyman [1961] 3 All E.R. 933 (C.A.)). It may also involve an examination of the magnitude of the benefit.

[6]                In essence, Madam Justice Satanove in Ogilvie Estate, supra, based on the reasoning of Madam Justice Wilson in Goodman Estate, supra, addressed two questions:  (1) Does the presumption of undue influence arise?  (2) Has the defendant been able to rebut the presumption?

[7]                Writing for the Court of Appeal in Ogilvie Estate, supra, Mr. Justice Goldie approved the approach taken by Madam Justice Satanove in the court below in the circumstances of the Ogilvie case.  In doing so, Mr. Justice Goldie noted at ¶s79‑85 the difference between Madam Justice Wilson, writing for herself and Mr. Justice Cory, Mr. Justice La Forest, writing for himself and Madam Justice McLachlin (as she then was), and Mr. Justice Sopinka, in the formulation of the question for the Court.  At ¶79 Mr. Justice Goldie stated that the difference between Madam Justice Wilson, on the one hand, and Mr. Justice La Forest, on the other hand, appears to be that Madam Justice Wilson saw in the very existence of the circumstances of the relationship sufficient to trigger the presumption, whilst Mr. Justice La Forest concluded the findings of the trial judge negated the very existence of the special relationship before the presumption applied.  Mr. Justice Sopinka approached the issue by considering that the presumption of undue influence is a presumption of law which disappears if the opponent offers some evidence to the contrary. 

[8]                At ¶85 Mr. Justice Goldie noted with approval the following passage from ¶39 of the reasons for judgment of Madam Justice Satanove in Ogilvie Estate, supra:

Therefore, it appears that once the plaintiff has established that the nature of the relationship between the donor and the recipient was such that the potential for influence existed, the onus shifts to the defendant to rebut it.

[9]                In my judgment my inquiry ought to begin with a consideration of the relationship between the defendants, Laurence William Cameron and Lori Jina Cameron, and Mr. and Mrs. Barnes, in order to determine whether the potential for domination inhered in the nature of their relationship.

[10]            From infancy the plaintiff, Lani Janine Maxim, and her sister, Lori Jina Cameron, were brought up by their adoptive parents, Cyril Howard Barnes and Jean Barnes, in the home at 2955 Pasture Circle.  Ms. Cameron is three years older than Ms. Maxim.  Mr. Barnes was a commercial artist with MacMillan Bloedel before his retirement in 1982.  Mrs. Barnes was a “homemaker”.  In cross-examination the plaintiff agreed her mother was independent, was the decision-maker and was strong-willed up to the time of her death in August 2003.  Her “word was law”; she was “the boss”.  In her examination in chief the plaintiff stated that her father deferred to Mrs. Barnes with respect to most things.  Her mother was in charge of financial matters, Ms. Maxim said. 

[11]            Other witnesses called by the plaintiff echoed this description of Mrs. Barnes’ character.  Giselle Blanck has known Mr. and Mrs. Barnes for about 23 years.  She lived with them for one year in 1986‑87, and became close friends with the plaintiff.  Later she met Ms. Cameron and became close to her until the dispute before the Court arose.  Ms. Blanck spent a year in Ontario in 1987‑88.  Following her return to the Lower Mainland to attend college she visited Mr. and Mrs. Barnes at Christmas, Easter, on Mother’s Day and Thanksgiving.  Mr. and Mrs. Barnes considered her a part of their family.  According to Ms. Blanck, Mrs. Barnes was gracious with the children; she loved everybody and was caring.  In cross-examination she agreed Mrs. Barnes was independent, a strong person, strong in her beliefs and decision making.  She was the person all members of the family went to.  She “stuck to it no matter what anyone thought”.  She was assertive.  Asked if Mrs. Barnes was strong-willed, Ms. Blanck responded by saying that she was “righteous”. 

[12]            Ms. Blanck’s husband, Erik Blanck, testified that he has known Ms. Maxim, her sister, Ms. Cameron, and her husband, Laurence Cameron, for 12 years.  He became acquainted with Mr. and Mrs. Barnes.  In his examination in chief Mr. Blanck stated that life for Mr. and Mrs. Barnes was very simple.  He never saw them leave their property.  They lived very frugally.  Mr. Barnes was on pension.  In cross-examination he agreed that Mrs. Barnes was independent, assertive, the decision-maker in the family, although not with the children.  She was the matriarch, the “one who wore the pants”.  Mr. Blanck denied, however, that Mrs. Barnes was strong-willed. 

[13]            Donald Gordon Caughy was married to Mrs. Barnes’ sister, Shirley, who died in 1990.  He observed Mrs. Barnes looking after the grandchildren in the upstairs of the home.  She was the “mother-figure” in the house, he stated.  She loved her grandchildren.  Mr. and Mrs. Barnes were “circumspect” in what they spent, and modest in their living. 

[14]            The defence painted a somewhat similar picture of Mrs. Barnes’ character.  According to the defendant, Lori Jina Cameron, her mother was the strongest, most loving person she has ever known.  Her door was always open.  She was a Christian who believed in keeping her word.  She ruled the house.  Her “word was law”.  In cross-examination Ms. Cameron stated that her father did what her mother told him to do. 

[15]            In his examination in chief, the defendant, Laurence William Cameron, described Mrs. Barnes as being “tough as nails”.  She was a “good old-fashioned prairie-girl” whom he grew to love as a grandmother.  Mr. Barnes was less engaging, Mr. Cameron stated.  They were not close. 

[16]            The defendants called as a witness Marie Alma Patricia Arias.  Ms. Arias has known Mr. and Mrs. Barnes since she came to Canada from Mexico as a student in 1980.  She lived with them from 1980 to 1985, and then, from 1987 to 1989, worked for them as a week-end nanny.  She had a very close relationship with Mr. and Mrs. Barnes and their two daughters, particularly with Mrs. Barnes, which she described as “spiritual”.  Following her own marriage in 1989, Ms. Arias stayed in contact with Mrs. Barnes.  Ms. Arias, in her examination in chief, described Mrs. Barnes as being very strong-willed, very spiritual, very generous and very assertive.  She knew right from wrong, and was law-abiding.  In cross-examination Ms. Arias agreed Mrs. Barnes “did things by the book”.  She was an honest person, Ms. Arias stated. 

[17]            Before attempting to draw any conclusions on whether Mr. and Mrs. Barnes were amenable to influence by the defendants regarding the disposition of their home, it is necessary to examine other aspects of the evidence. 

[18]            Both the plaintiff and her sister were rebellious in their teens.  In 1984 the defendant, Ms. Cameron, moved out of her parents’ home and moved in with her boyfriend, one Ollivier Rousseau.  In 1989 she returned to the family home.  Mr. Rousseau joined her there.  At the time the plaintiff, Ms. Maxim, was still living with her parents.  Ms. Cameron and Mr. Rousseau were married in August 1992.  They separated in 1993.  During the summer of 1995, Ms. Cameron and the defendant, Laurence Cameron, got back together.  He moved in to Mr. and Mrs. Barnes’ home in September of that year.  They were subsequently married, in 1996. 

[19]            In January 1991 Mrs. Barnes was diagnosed with ovarian cancer.  She underwent radical surgery in that month.  Thereafter she received chemotherapy treatments once every three weeks for 30 weeks, with “top‑ups” in 1992 and 1995.  Mrs. Barnes became immune to the chemotherapy in 2002.  So the drug was changed.  It caused extreme pain and residual side effects.  Mrs. Barnes went downhill until the time of her death in August 2003.  She was not, however, bedridden until the last three weeks of her life. 

[20]            Ms. Maxim testified that following her diagnosis of cancer her mother did not require care.  She was able to feed and bathe herself, do errands and care for Ms. Cameron’s four children.  Around the summer of 1991, following her mother’s diagnosis of cancer and the birth of Ms. Cameron’s son, Daniel, Ms. Maxim moved out of the home.  However, she testified, she saw her mother once a week and spoke to her regularly on the telephone.  They went to lunch, shopped and chatted.  Until he lost his licence to drive in 2002 or 2003, her father usually drove Mrs. Barnes for her chemotherapy treatments.  Occasionally Ms. Cameron or her husband would drive her to her appointments.  After Ms. Maxim got her driver’s licence in 1991 she offered to drive her mother.  But her mother refused to let her drive her because she had children.  Her mother told her that “Laurence and Lori were there for that.” 

[21]            During the last year of Mrs. Barnes’ life, Ms. Maxim testified, she tried to go to the house to visit her mother.  But her sister discouraged her.  When asked in her examination in chief if she felt her parents were being isolated, Ms. Maxim replied that her sister did not like her being at the home.  Lori would call to say that her mother was tired for three days after her last visit, and would tell her not to stay so long.  According to Ms. Maxim, she wanted to care for her dying mother, but her sister said:  “No.” 

[22]            Ms. Cameron testified with respect to the care she provided to her mother.  For a period of about four months she gave her mother injections three times daily, disposed of the needles and wrote down the side effects.  A nurse trained her how to give the needles.  Up to 1995 she mostly provided her mother with companionship and took her to her doctors.  She provided care for her hair.  In December 2001 there was a change in her mother’s condition.  The cancer had returned and spread.  Her mother suffered from hair loss and intense diarrhoea.  Her feet were painful so Ms. Cameron rubbed them.  She scraped her mouth when she suffered from thrush, and cleaned her when she was incontinent.  In 2002 the cancer was really strong.  Her mother had to be taken to her doctors at least once each week.  After her father lost his driver’s licence she drove him as well. 

[23]            During the last year of her life her mother became increasingly tired and frustrated, Ms. Cameron told the Court.  So she spent time with her.  In July or August she had a course of treatment.  Ms. Cameron scraped her mouth, ensured she ate and took her medication, took her to her doctors, wrote cards and did shopping for the children for her. 

[24]            Ms. Cameron denied that her sister cared for her mother.  When Ms. Maxim came over she sat on the back patio smoking.  A nephew of Mrs. Barnes, Dean Linden William Caughy, testified that shortly before his aunt’s death, he tried to visit the home once or twice each week.  He saw Ms. Maxim at the home only once.  Ms. Cameron was helping with her mother’s care; she lived with her mother. 

[25]            The defendant, Mr. Cameron, testified that during the last two years of Mrs. Barnes’ life she became weaker.  He carried her downstairs to the car.  From 1999 to 2001 he helped by caring for the children downstairs while his wife helped Mrs. Barnes upstairs.  Toward the end of Mrs. Barnes’ life he drove her and Mr. Barnes where required because Mr. Barnes’ eyesight was deteriorating.  Due to stress, Mr. Cameron took sick leave from his job as a labourer with the City of Vancouver two months before Mrs. Barnes died.  He was off work for one year.  Following Mrs. Barnes’ death Mr. Barnes required increasing care due to the disease with which he was afflicted and his increasing frailty.  Mr. Cameron stated that he and his wife refused to consider the suggestion of caregivers to put Mr. Barnes in a home.  They had, he said, agreed to care for him at home. 

[26]            In advancing her claim for an interest in the Pasture Circle property, the plaintiff told the Court that when she and her sister, Ms. Cameron, were in their teens their parents discussed with them that the home was to be sold when they died and the proceeds divided.  The house was all they had.  It was on a quarter to one-half acre of land. 

[27]            According to the plaintiff, in the 1990s, following Ms. Cameron’s return to the home in 1989 to live there, there was a discussion around the kitchen table involving Mr. and Mrs. Barnes, Ms. Maxim and Ms. Cameron.  What was discussed was that Ms. Cameron would live there and then buy Ms. Maxim out “to make sure I was taken care of at retail value”.  Ms. Maxim stated that she could not give specific dates.  The discussion would come up occasionally, Ms. Maxim said.  There was no discussion about the improvements Ms. Cameron had made to the property or about her receiving money. 

[28]            Ms. Maxim testified that her mother was not sophisticated in matters regarding the law.  She had no will of which Ms. Maxim was aware.  She believed in trust:  that Ms. Maxim and her sister would do the right thing. 

[29]            In cross-examination Ms. Maxim disagreed that her parents could have changed their minds about giving her half the house.  She agreed, however, that the answers she gave to the following questions on her examination for discovery held on 17 May 2006 are true:

[30]            Other witnesses called on behalf of the plaintiff testified with respect to their discussions with Mrs. Barnes regarding the intended disposition of the home. 

[31]            Erik Blanck testified that he had no discussions with either Mr. or Mrs. Barnes regarding the transfer of the property to Mr. Cameron and his wife.  Nor did he discuss with Mrs. Barnes any agreement with the Camerons regarding the house.  Following Mrs. Barnes’ death, however, he found Mr. Barnes was upset.  He asked him why he did not sell the house.  Mr. Barnes replied that he wished his daughters to share in the home.  He never mentioned the transfer of the home to Mr. Blanck.

[32]            Giselle Blanck testified that early on in her 23‑year friendship with the Barnes’ family, she had perhaps two discussions with Mrs. Barnes regarding the house.  Mrs. Barnes told her that when she and her husband passed on the house would be divided between the two girls.  Mrs. Barnes mentioned how they loved their home.  Following Mrs. Barnes’ death, Ms. Blanck telephoned Mr. Barnes just before Christmas regarding the transfer of the home to the Camerons.  Mr. Barnes told her that the house had been signed over to Ms. Cameron because of back taxes and that there was a mortgage, but when he passed on the property would be divided between his two daughters.  Ms. Maxim would get her fair share.  Ms. Blanck, in cross-examination, stated that she called Mr. Barnes because of her concern for Ms. Maxim who wanted no confrontation. 

[33]            Donald Gordon Caughy told the Court that between 1959 and 1993 he was in regular contact with Mr. and Mrs. Barnes.  They had open conversations, many of which concerned estate planning.  It was said many times that their house property was to go to the girls.  At the end of June, 1993, following the death in 1990 of his wife (Mrs. Barnes’ sister), Mr. Caughy moved from Pitt Meadows, where he had lived for 16 years, to Calgary.  He had no further discussions with the Barnes regarding their home after he moved. 

[34]            Margaret Maxim was married to the plaintiff’s husband’s brother.  She and her husband separated in 2002 and were later divorced.  Ms. Maxim has been a paralegal for seven years.  She worked as a legal secretary for 17 years.  She became acquainted with Mr. and Mrs. Barnes in 1994, and was close to Mrs. Barnes over the years. 

[35]            Ms. Maxim testified that Mrs. Barnes had a stroke in 2002.  Ms. Maxim understood from the plaintiff her mother had a question regarding estate planning.  So she called Mrs. Barnes.  She explained to Mrs. Barnes what a will was and the benefits of having one.  According to Ms. Maxim, Mrs. Barnes was less sophisticated in her knowledge of estates and how things, such as executors, worked than most people.  Mrs. Barnes wanted the house to be left to her two daughters, but appeared to Ms. Maxim not to wish to make a will.  She wanted to treat the girls equally.  Her plan was that one could buy the other out.  She did speak to a lawyer in Ms. Maxim’s office and asked questions.  But she was not keen to have a will.  Ms. Maxim testified that Mrs. Barnes “trusted in God”.  She and Mrs. Barnes also discussed reverse mortgages. 

[36]            Dean Linden William Caughy is the son of Donald Gordon Caughy and the late Shirley Caughy.  He is a cousin of the plaintiff and Ms. Cameron, and is a member of the Royal Canadian Mounted Police at the depot in Saskatchewan.  He married in 1995.  He and his wife have two children, aged eleven and nine years. 

[37]            In the mid-1990s, after he and his wife started a family, he had discussions, both in person and by telephone, with his aunt, Mrs. Barnes, regarding inheritances.  The subject of wills arose.  Mr. Caughy suggested a reverse mortgage in order to get value for the property.  Mrs. Barnes told him she did not want to reduce the value; the house property was to go to her daughters.  According to Mr. Caughy, Mrs. Barnes said that the value of the house, the equity in it, was to be split between her daughters when she and her husband “were no longer with us”. 

[38]            Mr. Caughy testified that shortly before Mrs. Barnes died he understood the house was to be their “legacy”.  It was never discussed, he stated, that it was to be for Ms. Cameron or for her and her husband. 

[39]            Mr. Caughy stated that he learned from the plaintiff of the transfer of the Pasture Circle property to Mr. and Ms. Cameron shortly after Mrs. Barnes’ death.  He telephoned Mr. Barnes in the Fall of 2003, and asked him about the transfer.  Mr. Barnes told him that it was done for tax purposes, that they had been deferring the taxes, and that it was better for them.  Mr. Barnes also told Mr. Caughy that it would not affect the sisters’ inheritance. 

[40]            Mr. Caughy told the Court that prior to the discussion with Mr. Barnes in the Fall of 2003 he talked to his uncle once regarding the matter of the inheritance.  His impression was that Mr. Barnes was not much interested. 

[41]            In her cross-examination the defendant, Ms. Cameron, disagreed with the testimony of Dean Caughy that he and Mrs. Barnes, from 1990 to the time of her death in 2003, discussed Mrs. Barnes’ suggestion that the home be shared equally.  Ms. Cameron stated that she did not think the witnesses were “privy to our agreement”.  She believed Mr. Caughy to be mistaken.  In 1999, Ms. Cameron testified, the intention was that “the home was to go to Ollivier and me”.  Her mother did not lie to Dean (Caughy), she stated. 

[42]            Ms. Cameron also disagreed with the testimony of Giselle Blanck that the home was being divided equally.  One would think it was a primary topic of conversation after listening to the evidence, she said.  But her mother would not discuss estate planning, she stated. 

[43]            According to Ms. Cameron, Gordon Caughy had minimum contact with her mother after 1982.  Mrs. Barnes’ discussions with Margaret Maxim concerned reverse mortgages and not leaving the house equally to the two daughters.  Her mother had no stroke in April, 2002 or thereafter, Ms. Cameron testified.  She was smart, and knew where to go to find out information.  She knew what she was talking about with respect to wills. 

[44]            In chief Ms. Cameron testified that after she moved back to her parents’ home in 1989, her mother suggested that the house was too big, that she and Ollivier Rousseau could purchase it later, and that they could put a suite in the basement.  They did a lot of construction over a two-year period for which she and Mr. Rousseau paid:  put windows and a shower in the basement, converted the recreation room to a bedroom for Rachel, their daughter, and put in a kitchen, ceilings and carpeting.  Mr. Rousseau’s mother contributed $1,000 toward the cost of the kitchen.  Ms. Cameron stated that she and Mr. Rousseau also paid for the cost of constructing a patio and sidewalk along side it. 

[45]            Ms. Cameron testified that her mother was incredibly close to Rachel and Daniel.  She was a surrogate mother, very involved with them.  The children would go to their grandmother if they were ill, and she would attend sporting and church events and baby showers.  The children, Ms. Cameron stated, were important to Mrs. Barnes.  In giving his evidence, Mr. Cameron stated that the relationship between Mrs. Barnes and the children was “symbiotic”.  They needed her and she needed them.  They gave her strength to live longer.  She was instrumental in their successes, always encouraging them. 

[46]            After she and Mr. Cameron got back together in the Summer of 1995, Mr. Cameron told her he did not want to live at the house.  He wanted privacy.  As well, the basement suite was not large.  She and Mr. Cameron intended to get their own condominium.  Her mother was aware of their plan.  But she wanted her grandchildren close and suggested the Camerons stay in the house.  Ms. Cameron testified she told her mother that “Laurence and I could not have our own lives”.  Her mother suggested a transfer of the home.  Ms. Cameron and her mother agreed that the Camerons would stay in the house, continue to look after Mr. and Mrs. Barnes to the end of their lives, pay off the back taxes and credit cards, and assist around the house in any way Mrs. Barnes requested.  Ms. Cameron told Mr. Cameron that is what they were going to do.  He was unhappy, but if he had refused, she stated, there would be no marriage. 

[47]            In 2001, Ms. Cameron testified, she and her sister had an argument.  Ms. Maxim followed Ms. Cameron to the bedroom, and told her “the house will never be yours; it will be sold”.  Following that discussion, the two sisters did not speak to one another for months.  According to Ms. Cameron, Mrs. Barnes said:  “That’s it.  The cancer is spreading.  Do the transfer now”. 

[48]            Her mother then called a notary public and discussed the transfer of the property with her.  Ms. Cameron called the notary public and arranged an appointment for July following her mother’s chemotherapy treatments. 

[49]            In cross-examination Ms. Cameron stated that her mother was keen the Camerons stay in the house so she had her grandchildren with her and perhaps help with the home.

[50]            With respect to the agreement allegedly made in 1995, it was put to Ms. Cameron it did not in effect make sense:  Ms. Cameron was to care for her parents when she had three children, aged seven, four and two years, and one on the way.  As well, she was looking to set up residence with a man (Mr. Cameron) with whom she had had an affair.  Ms. Cameron responded that she and her mother were discussing future care perhaps, and perhaps Ms. Maxim did help.  As for Mr. Cameron, he had raised their son Michael for 18 months, and thus is stable. 

[51]            It was put to Ms. Cameron in cross-examination that there was no agreement to transfer the property to her and Mr. Cameron or to look after Mr. and Mrs. Barnes or to pay the amounts due on the credit cards.  Ms. Cameron responded that she and Mr. Cameron were currently looking after Mr. Barnes, and that since the transfer of the property to them they had taken out $121,000 mortgage financing to pay the credit cards and back taxes. 

[52]            Mr. Cameron testified that he and his son, Michael, moved into Mr. and Mrs. Barnes’ home in September 1995.  He was apprehensive, but anxious to reunite the family.  He told the Court he would have preferred living elsewhere than with in‑laws.  He and Ms. Cameron hoped to get the down payment for a townhouse or condominium.  But it became apparent as a relationship was forged that it was best if they remain in the home.  The family came to include the Barnes.  Ms. Cameron presented to him as the “best option” paying the taxes and caring for her parents until their deaths.  She told him, “The house would eventually become ours.  We could stay”, meaning, he explained, that the house would be signed over to us. 

[53]            Mr. Cameron testified that he agreed it was the best option for everybody.  However, he “purposely” did not raise the issue with the Barnes so he was not being seen to influence them.  In cross-examination Mr. Cameron stated he and his wife were of benefit to the Barnes and helped them.  He did not want to hurry them regarding the transfer and did not want to be seen to influence them. 

[54]            The evidence leads me to conclude that insofar as the 1995 “agreement” between Mrs. Barnes and Ms. Cameron was concerned, Mr. Barnes took no part in any discussion between Mrs. Barnes and Ms. Cameron regarding its “terms”. 

[55]            The evidence further leads me to conclude that the Pasture Circle property was Mr. and Mrs. Barnes’ only significant asset.  On her examination for discovery held on 17 May 2006 Ms. Cameron deposed that her mother has some jewellery and her father has some paintings, but she had no idea of their value.  The house was the only asset of any significant value. 

[56]            Neither Mr. nor Mrs. Barnes had a will. 

[57]            Regarding the transfer of the Pasture Circle property to the defendants, Mr. and Ms. Cameron, Mr. Davidson, on behalf of the plaintiff, read-in to the evidence the following questions and answers from Ms. Cameron’s examination for discovery:

[58]            In her viva voce evidence in chief at the trial, Ms. Cameron testified that she was not present in the office of the notary public, Joseph Ho, when the transfer documents were signed by her parents.  She was in the reception area, visible to Mr. Ho but not to Mr. and Mrs. Barnes; their backs were to her.  She was not “hovering” in the doorway, Ms. Cameron stated.  In cross-examination Ms. Cameron testified that the door to Mr. Ho’s office was open and that she was outside wandering around the hall.  It is “not abnormal for me to stand around the doorway”, she stated. 

[59]            Mr. Ho was called as a witness by the defendants.  He has been a licensed notary public since 1994.  He identified his signature on the form of transfer, but has no specific recollection of its execution by Mr. and Mrs. Barnes.  Mr. Ho stated that in July 2002 his general practice was that the client came to his own office with no one else to ensure there was no influence.  In cross-examination he said that only clients were in his room.  There was a waiting room with a receptionist.  His practice was to close the door “every time”. 

[60]            The plaintiff, Ms. Maxim, testified that she did not find out the property had been transferred to her sister and her husband until after her mother’s death.  Her parents did not mention it to her, she stated.  The title in the name of Mr. and Ms. Cameron had issued on 23 July 2002.  In September 2003, following Mrs. Barnes’ death, the plaintiff went out to lunch with Ms. Margaret Maxim, the paralegal.  She did a title search and found out the property had been transferred from Mr. and Mrs. Barnes to the Camerons.  Ms. Maxim stated that she was very upset and angry.  She was not sure what to do.  She did not want a confrontation. 

[61]            Shortly after, in late September or early October, she telephoned her father and told him she had found out about the transfer.  He expressed surprise she did not know.  Her father told her he had to transfer the property for tax reasons, but nothing had changed:  “Lori would have to give me my share”.  Mr. Barnes said he would get back to her.  Ms. Maxim said she wanted to see it in writing. 

[62]            Ms. Maxim then went to the house to visit with her nephews and nieces.  Her sister noticed she was upset, but made no mention of the house. 

[63]            Mr. Cameron told the Court that it was not his place to tell Ms. Maxim about the transfer.  Mrs. Barnes was reluctant do so, he said, and never did.  She knew if she did there would be a blow‑up.  Mr. Cameron stated that Mrs. Barnes told him she did not want her last days spent in a dispute with her daughters. 

[64]            The evidence before the Court establishes that Mr. and Mrs. Barnes’ lifestyle was frugal.  Nonetheless, an examination of the Royal Bank of Canada credit statements from 1 February 1999 until 4 July 2002 (the date of the signing of the transfer of land by Mr. and Mrs. Barnes in favour of Mr. and Ms. Cameron) indicates outstanding monthly balances ranging from $3,700 to $5,214.80, with an apparent mean amount of $4,500.  The outstanding balance as at 2 July 2002 was $5,027.75.  Many of the purchases or charges to the account were plainly not made by Mr. and Mrs. Barnes for themselves, such as amounts paid to various recreation centres, for tickets for a “Back Street Boys” concert, and for certain items of clothing.  Ms. Cameron acknowledged that she used the card to purchase items for her children, but said she never used the card without her mother’s permission and paid her mother when asked to do so. 

[65]            Similarly with respect to the Sears account in Mr. Barnes’ name.  Between 1 May 2000 and 1 July 2002 the outstanding balances ranged from $1,470.98 as at 1 November 2000 to $3,716.57 as at 1 July 2002.  Again, many of the items purchased were clearly not for Mr. Barnes’ personal use. 

[66]            According to Ms. Cameron it was important to her mother to have the children with her.  Mrs. Barnes paid for a portion of their activities.  At Christmas she bought a dress for Rachel for the school play; she also bought a trampoline and special equipment.  She “helped as a family does”.  Her mother wanted the house to stay with the family, Ms. Cameron stated.  Asked if the house was transferred to her and Mr. Cameron “so you could borrow”, Ms. Cameron replied:  “Yes”.

[67]            I pause at this point to record my observations with respect to the credibility of the witnesses.  There were instances of irreconcilable conflict between the testimony of the witnesses called by the plaintiff and the testimony of the witnesses called by the defendants.  Moreover, the plaintiff manifested feelings of bitterness toward the defendants regarding the transfer and her sister’s closeness to her mother.  Nonetheless, I do not feel that any of the witnesses sought to deceive the Court.  The differences, in my view, are more the result of faulty recollection and re-construction than deception. 

[68]            Mr. Barnes’ testimony was recorded by video deposition on 12 May 2006.  This testimony was introduced into the evidence by the defendants.  At the time he testified, Mr. Barnes was 84 years of age and plainly was suffering from the effects of disease and loss of memory.  Nonetheless, I found Mr. Barnes to be an honest witness who endeavoured to recall matters as best he could.  In assessing the weight of Mr. Barnes’ evidence, however, I have had to bear in mind his difficulties with his memory and to consider his evidence in relation to the testimony of other witnesses and its harmony with the preponderance of the probabilities. 

[69]            In his deposition in chief Mr. Barnes was asked whether, prior to his wife’s death, he and his wife had had any discussions as to what he wanted done with the house after both he and Mrs. Barnes had died.  He replied that they discussed the matter years before his wife died. 

I wanted Lori to live there, keep the house, and keep me fed, which she has done a good job on.

[70]            Mr. Barnes stated that he always gave his wife what she wanted. 

[71]            Later Mr. Barnes was asked if there were ever any discussions or an understanding that both Lori and Lani would get half of the house on his and his wife’s death.  Mr. Barnes replied:  “No”.  He did not communicate that discussion to Ms. Cameron or her husband. 

[72]            Referring to the transfer of land in favour of the Camerons, Mr. Barnes acknowledged that he signed it of his own free will “according to what Jean [Mrs. Barnes] wanted”.  He said that he expected once the house was transferred the Camerons would:

… look after me, provide me with meals and food, and take care of Jean … .

[73]            Mr. Barnes was asked if he was pressured at all from Ms. Cameron or Mr. Cameron into signing the transfer.  He replied:  “No”.  He was asked whether it was his intention when he signed the transfer that Ms. Maxim would have some interest in the house.  He replied:  “No”. 

[74]            Mr. Barnes stated that since his wife died in August 2003 he had not heard from his daughter Ms. Maxim.  He felt “disturbed” about this lawsuit, but said the transfer was:

… mainly for the grandchildren, that they do not have to relocate.  I was more concerned about them. 

Mr. Barnes wanted to make sure Ms. Cameron’s four children lived in the house. 

[75]            In cross-examination Mr. Barnes denied that he and his wife had an understanding or intention that the house would be left to the two daughters.  He agreed that at some point in time there was an “expectation” that he and Mrs. Barnes had that if they died the house would go to the two daughters.  Mr. Barnes was asked:

And when you transferred the house into the name of Lori and Laurence, did you still have that intention, that ultimately your two daughters would be the heirs of the house?

Mr. Barnes replied:

Well, no, I didn’t, because Lori has been looking after me so well and Laurence had done so much work outside. 

[76]            I pause to note that Mr. Barnes, in my opinion, did not in the preceding questions agree there was an “intention” on the part of Mrs. Barnes and himself to leave the house to the two daughters equally; what he agreed with was the suggestion put to him that they [Ms. Maxim and Ms. Cameron] “are your two daughters and they would be your rightful heirs”.

[77]            Mr. Barnes confirmed that he generally tended to live within his means and did not spend more money than he had.  He had no explanation as to why he and Mrs. Barnes incurred credit card debt they could not pay.  It made no sense at all to him. 

[78]            Mr. Barnes stated he did not know why they transferred the title into the Camerons’ names in 2002.  He denied doing the transfer because he had no choice.  The Camerons, he stated:

… have been looking after me and doing so much work.  He did all the outside work …

[79]            The threshold question is whether the potential for domination of Mr. and Mrs. Barnes by Mr. and Ms. Cameron inhered in the nature of their relationship. 

[80]            In my judgment, the preponderance of the evidence before the Court establishes that the relationship between the defendants and Mr. Barnes and the late Mrs. Barnes was sufficient to raise a presumption of undue influence, and shift the burden to the defendants to disprove it. 

[81]            At least from the time of her return to the Pasture Circle home in 1989 a close and caring relationship between Ms. Cameron and her mother developed.  At the birth of Ms. Cameron’s daughter, Rachel, Mrs. Barnes comforted Ms. Cameron by stroking her hair.  A close bond developed between Mrs. Barnes and Ms. Cameron’s four children.  Both she and Mr. Barnes were anxious the Cameron family continue to live in the home.  After Mrs. Barnes was diagnosed with cancer in 1991 Ms. Cameron increasingly provided her mother with care, which became intensive after it was discovered in December 2001 the cancer had returned and was metastasizing.  This grim diagnosis and evident need for increasingly intensive home care by the Camerons occurred some six months before Mr. and Mrs. Barnes signed the transfer of land in July 2002. 

[82]            On the other hand, the plaintiff Ms. Maxim became increasingly separated from her parents.  She did not live in the home very long after her mother was diagnosed with cancer in 1991.  Apart from some visits and “chats”, there is no suggestion in the evidence Ms. Maxim provided her mother with personal care or care of a medical nature in the months preceding the signing of the transfer of land. 

[83]            By all accounts Mrs. Barnes was a strong character.  Mr. Barnes did what his wife told him to do, including signing the transfer of land. 

[84]            The defendant Ms. Cameron disagreed with the suggestion put to her in cross-examination that she influenced her parents to transfer the house to her and Mr. Cameron.  “I was contemplating leaving”, she replied.

[85]            In my view, Ms. Cameron’s testimony places the relationship between Mr. and Mrs. Barnes, on the one hand, and Mr. and Ms. Cameron, on the other hand, in perspective.  There is ample evidence both Mr. and Mrs. Barnes wanted the Camerons and their family to remain at Pasture Circle.  As Mr. Barnes testified:  “The transfer was … mainly for the grandchildren, that they do not have to relocate”.  The “threat” to leave would clearly be a powerful tool in Ms. Cameron’s hands in persuading her parents the transfer of the land to her and Mr. Cameron was in everyone’s best interest. 

[86]            There is another factor which would induce the Camerons to seek to have the land transferred to them.  (I bear in mind Mr. Cameron’s testimony, repeated several times, that he studiously avoided discussing the transfer with the Barnes so he could not be seen to influence them.)  Ms. Cameron related to the Court the extensive improvements she and her first husband had made to the home (a suite in the basement) and those made by her and Mr. Cameron.  It would make no sense to walk out and leave those behind.  On the other hand it would be equally senseless to risk having the house transferred to her and her sister and seeing her sister reap the benefit of improvements to which she made no contribution. 

[87]            Fundamentally I find the potential for domination of Mr. and Mrs. Barnes by Mr. and Ms. Cameron inhered in the nature of their relationship.  That relationship, I find, was sufficient to raise a presumption of undue influence on the part of the defendants with respect to the transfer of the Pasture Circle property to them. 

[88]            I now turn to a consideration of whether the defendants have discharged the onus upon them to rebut the presumption of undue influence. 

[89]            With respect to this issue, it is important to bear in mind that the Pasture Circle property was Mr. and Mrs. Barnes’ only significant asset.  The fair market value of the property at the time it was transferred to Mr. and Ms. Cameron in July 2002 was indicated on the transfer of land as being $254,000.  The consideration for the transfer was stated to be “$1.00 and other good and valuable consideration”.  In short, the defendants got this property, worth over one‑quarter of a million dollars, for nothing.  Nonetheless, initially they borrowed $85,000, secured by mortgage, to pay the outstanding and current real property taxes in the amount of $25,506.05 and Mr. and Mrs. Barnes’ credit card debt of $15,000, much of which was incurred by Ms. Cameron for items for her family. 

[90]            A second factor is that apart from advice from Mr. Ho regarding the effect of the transfer of land, Mr. and Mrs. Barnes received no independent legal advice prior to signing the document.  The presence of Ms. Cameron in the “background” at the time her parents executed the transfer is significant to the question of influence. 

[91]            A further factor is that Mr. and Ms. Cameron kept “secret” from Ms. Maxim the fact of the transfer until, following Mrs. Barnes’ death over one year after the transfer had taken place, the plaintiff, by happenstance, discovered what had happened. 

[92]            My consideration of the whole of the evidence leads me to conclude that the defendants have not discharged the onus upon them to rebut the presumption of undue influence. 

[93]            Accordingly, the plaintiff is entitled to an order re‑vesting the property in the name of Cyril Howard Barnes or his estate as surviving joint tenant of the interests of himself and Mrs. Barnes. 

[94]            Mr. Barnes is not a party to this action.  The Court does not have jurisdiction to declare what, if any, interest the plaintiff has in the property.  Whilst the discussions between Mr. and Mrs. Barnes and their daughters regarding the notion of dividing the property equally between the daughters might give rise to an expectation on Ms. Maxim’s part, they cannot form the basis of a legal entitlement to an interest in the property. 

[95]            The plaintiff is entitled to her costs at Scale C, subject to hearing counsel if requested. 

“Scarth, J.”