Downey v. Downey, 2018 NSSC 284

SUPREME COURT OF Nova Scotia Citation: Downey v. Downey , 2018 NSSC 284 Date: 20181113 Docket: HFX425330 Registry: Halifax Between: Evangeline Downey as Litigation Guardian of Zelda Downey Plaintiff v. Cambridge Adam Downey, Wesley K.B. Downey, Mary Jo-Ann Neish, Unknown Defendant #1 and Unknown Defendant #2 Defendants Decision Judge: The Honourable Justice Michael J.

Wood Heard: July 17 to 19, 2018, in Halifax, Nova Scotia Counsel: Evangeline Downey, as Litigation Guardian of Zelda Downey, self-represented Mary Jo-Ann Neish and Wesley Downey, self-represented By the Court: [ 1 ] Lena Downey spent her life in North Preston, Nova Scotia. She lived at 14 Beals Crescent until she died in April 1994 at the age of 83.

According to her obituary she was survived by 13 of her 15 children, as well as 58 grand-children, 108 great grand-children, and 13 great great grand-children. [ 2 ] In the years prior to her death various family members lived with Lena at 14 Beals Crescent from time to time. One of those was the plaintiff, Zelda Downey, who was Lena’s daughter and lived in the home with her son. After Lena’s death Zelda continued to reside in the home with her son, however it appears that her health was deteriorating and by mid-1995 the adult protection branch of the Department of Community Services became involved.

There were medical opinions to the effect that, by this point, Zelda was not competent to look after herself. She moved out of the home and has lived with her brother, Texas, and his wife, Jennifer, since that time. [ 3 ] The current residents of 14 Beals Crescent are Lena’s son, Wesley Downey, and his spouse, Mary Neish. Wesley claims to be the owner of the property based upon a deed from his brother, Cambridge, dated April 28, 1999. Cambridge’s ownership of the

property arises from a deed dated September 8, 1970, which appears to be a conveyance from Lena to him, of lands that include 14 Beals Crescent. [ 4 ] In this litigation Zelda, through her litigation guardian Evangeline Downey, says that she is the owner of 14 Beals Crescent because of a Will signed by Lena on May 3, 1993, which leaves the “house (dwelling)” and “contents” to her as Lena’s youngest daughter. That document was admitted to Probate on June 26, 1995. [ 5 ] Obviously the Will could only transfer ownership of the property to Zelda if Lena owned it at the time of her death.

Zelda argues that Lena was the true owner of 14 Beals Crescent because the 1970 deed to Cambridge was not valid. She alleges that it was fraudulently obtained and not, in fact, signed by Lena. She also says the deed from Cambridge to Wesley in 1999, was fraudulent and not signed by Cambridge. [ 6 ] Cambridge Downey was named as a defendant in this lawsuit and was served with the amended Notice of Action and Statement of Claim on February 27, 2015. He was also served with the defence of Wesley Downey on May 6, 2015.

Cambridge did not participate in the lawsuit or appear at trial. [ 7 ] According to the parties, Cambridge Downey still lives in the Halifax area but neither chose to call him as a witness. Wesley said that he had spoken to him and was told that he did not want to participate in this dispute. [ 8 ] Neither party had a lawyer at trial, although the plaintiff had the assistance of at least two lawyers over the course of the litigation. She was represented by counsel between October 2014 and September 2015.

She had the assistance of a different lawyer in preparing her pre-trial brief which was filed in September 2017. [ 9 ] One of the arguments made by the plaintiff in support of the allegation that Lena did not sign the 1970 deed, involved comparing the signature on that document with other examples of Lena’s signature. Prior to this lawsuit the plaintiff’s lawyer obtained a report dated October 29, 2012, from a forensic document examiner by the name of Brian Lindblom of Document Examination Consultants Inc. with offices in Ontario.

The report expressed opinions based upon a comparison of signatures of various persons including Lena. A copy of this report was filed with the court at an early stage of the litigation. [ 10 ] In May 2017 a conference call was held with the parties to determine if they were ready for trial and to set trial dates. At that time the plaintiff did not have a lawyer and Evangeline Downey participated in the discussion as litigation guardian. She indicated that Mr. Lindblom would be testifying as one of her witnesses. The trial was set for October 10, 11, and 12, 2017.

On October 10 th the parties attended at trial and Evangeline Downey indicated that she had been unable to locate her expert, Brian Lindblom, and she wanted to rely on his report. The defendants objected because they wanted to be able to cross-examine him. At the request of Evangeline Downey the trial was adjourned in order to give her an opportunity to find Mr. Lindblom or obtain another expert opinion. It was rescheduled to July 17, 18, and 19, 2018. [ 11 ] By letter dated October 10, 2017, I provided both parties with a copy of Civil Procedure Rule 55 which deals with expert opinions.

I also set a deadline of January 31, 2018, for any new expert report from the plaintiff. [ 12 ] In January 2018 Evangeline Downey wrote requesting an extension of time for filing an expert report. She indicated that she was having difficulty finding a handwriting specialist and estimated that it would take until at least the middle of April to do so. I agreed to extend the deadline until April 30 th . [ 13 ] The plaintiff did not obtain a report from a new handwriting examiner, nor could Mr. Lindblom be located.

At the beginning of trial I explained to Evangeline Downey that she could not rely on the Lindblom report without his attendance and she agreed that it would not be part of the evidence at trial. This meant that there was no expert evidence about whether the signature on the 1970 deed was Lena’s. [ 14 ] Much of the trial testimony involved various allegations and disputes between members of the Downey family, as well as Ms. Neish. These included alleged assaults, threats, coercion, and lying. For the most part this was not relevant to the issue which I had to decide, which was the ownership of 14 Beals Crescent.

As a result I will not address those disputes in this decision. [ 15 ] The plaintiff’s case is based upon the claim that Zelda Downey is the owner of 14 Beals Crescent. In order to succeed she must show that Lena was the legal owner of that property at the time of her death in April 1994. There was some argument by the defendants that the Will was not properly signed by Lena, however I note that it was admitted to Probate.

I see no basis on the evidence in this case to conclude that the Will was not the lawful Last Will and Testament of Lena Downey. [ 16 ] I have concluded that the plaintiff’s claim will succeed or fail based upon a determination of the validity of the 1970 deed. If the deed is valid then Lena did not own the property at the date of her death and Zelda did not inherit it.

If the deed is invalid, then the land became part of Lena’s Estate and passed to Zelda under the Will. [ 17 ] In the pre-trial brief, which was prepared with the assistance of counsel, the plaintiff says that the 1970 deed was fraudulent and not signed by Lena. Alternatively, she argues that it should be set aside because of non est factum . This principle depends upon proof that the party who signed the document did not understand its nature and effect. In this case the plaintiff’s clear position is that Lena did not sign the deed.

There is no evidence about what Lena knew or didn’t know about the document, nor anything about the circumstances under which it may have been signed. There was no factual basis for an argument of non est factum and so the plaintiff’s claim depends upon proof that it was not, in fact, signed by Lena. [ 18 ] No witness testified about the creation the 1970 deed. The name Lena Downey is signed and there is a witness by the name of James E. Willis. There is also the certificate of a barrister, Bruce Waterfield, confirming that Mr. Willis swore that Lena Downey had signed the deed in his presence.

Despite the lack of evidence about the preparation and signing of the document, the plaintiff asked the court to infer that it was fraudulently prepared based upon other circumstances. According to the evidence the following facts can be

found: 1. Lena continued to live at 14 Beals Crescent after 1970 with various family members; 2. Lena signed a Will in 1993 which said she was leaving her home to her youngest daughter, Zelda; and 3. Evangeline and Jennifer said that it was the custom in Black families for the home to be left to the youngest child, which in this case was Zelda. [ 19 ] In her pre-trial brief, the plaintiff also refers to a survey plan and subdivision purportedly carried out by Lena Downey after 1970 and the conveyance of one of the subdivided lots to another child in June 1985.

None of these documents were introduced in evidence at trial and therefore, they are not matters that I can consider. [ 20 ] The burden on the plaintiff is to prove on a balance of probabilities that the 1970 deed was not signed by Lena. The fact that she continued to live in the property does not provide much assistance. There may be circumstances where a parent continues to live in a family home, even though it is owned by one of their children. [ 21 ] Lena signing the Will which left her home to her daughter certainly suggests that she believed she was the owner as of that date.

I do not have much information concerning the state of Lena’s health at the time she signed the Will, although there is some evidence to suggest that she was not well for a period of time prior to her death 11 months later. The question that I must decide is whether signing the Will proves on a balance of probabilities that Lena did not also sign the deed 23 years earlier. I am not able to come to that conclusion without something more.

Another inference that could arise is that Lena had simply forgotten the earlier deed in light of the passage of time, particularly if she was allowed to continue living in the home as she always had.

Lena may well have believed that she owned the land in 1993, but simply been mistaken. [ 22 ] The additional evidence from Evangeline and Jennifer about the custom in Black families to leave the home to the youngest child does not strengthen the plaintiff’s argument to the extent that I am prepared to set aside the 1970 deed as fraudulent. [ 23 ] Based on the history of this property some members of the Downey family may have had concerns about the potentially inconsistent documents apparently signed by Lena. Presumably that is why the plaintiff started this litigation.

The conclusion which I reach must be based upon the evidence presented at trial. That information leads me to conclude that the plaintiff has not proven that the 1970 deed is fraudulent and should be set aside. As a result I must dismiss the plaintiff’s action. Wood, J.