SHARON ANN THORNE, JOHN FREDERICK THORNE, RICHARD VINCENT THORNE, ROSE ANNE THORNE WALSH, LEONARD THORNE, Viki Marie Duffenais v. SEAN MICHAEL THORNE, 2018 NLSC 220

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Thorne v. Thorne , 2018 NLSC 220 Date : November 6, 2018 Docket : 200901T4649 Between: SHARON ANN THORNE, JOHN FREDERICK THORNE, RICHARD VINCENT THORNE, ROSE ANNE THORNE WALSH, LEONARD THORNE, Viki Marie Duffenais AND SEAN MICHAEL THORNE PlaintiffS And: MICHELLE THORNE , GREGORY THORNE AND RONNIE THORNE DefendantS Before: Justice Carl R. Thompson Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: October 24-26, 2018

Summary: Findings of facts confirmed three joint bank accounts and two investment accounts of the Deceased were intended to be held in trust for all ten children of the Deceased, and on the basis of Pecore (SCC), the presumption of resulting trust otherwise favouring the three residual legatees was rebutted.

Appearances: Jillian A. Hewitt Appearing on behalf of the Plaintiffs, Sharon Ann Thorne and Sean Michael Thorne D. Lynne Butler and Gregory A. French Appearing on behalf of the Plaintiffs, John Frederick Thorne, Richard Vincent Thorne, Rose Anne Thorne Walsh, Leonard Thorne and Viki Marie Duffenais Nicholas J. G. Avis, Q.C. Appearing on behalf of the Defendant, Michelle Thorne D. Lynne Butler Appearing on behalf of the Defendant, Gregory Thorne Wayne White Appearing on behalf of the Defendant, Ronnie Thorne, but not participating Authorities Cited: CASES CONSIDERED: Pecore v.

Pecore , 2007 SCC 17 ; Madsen Estate v. Saylor , 2007 SCC 18 ; Sawdon Estate v. Watch Tower Bible and Tract Society of Canada , 2014 ONCA 101 . REASONS FOR JUDGMENT Thompson, J. : BACKGROUND [ 1 ] Therese Thorne (the “Deceased”) died on May 7, 2009, leaving ten adult children surviving her. Her husband, John Thorne, predeceased her. The Deceased left a Will naming two of her children, Michelle Thorne and Gregory Thorne, as co-executors. Probate of the Will was granted on April 24, 2014 with Estate No. 200901E7768.

The residue of the Estate of the Deceased was left equally among Michelle Thorne, Gregory Thorne and Ronnie Thorne. The parties do not dispute the validity of the Will or the distribution of assets set out in the Will. The residence and other assets of the Estate have already been transferred to the three defendants, the residual legatees. The plaintiffs had agreed to the payment of investment account #9361, which had been in dispute, to Michelle Thorne as executor for the payment of Estate bills. [ 2 ] There are still two investment accounts (known as “4400” and “4778”) that are in dispute.

The plaintiffs believe that these assets were intended by their mother, the Deceased, to be divided amongst all ten of her children and that such pass outside of the Estate.

Michelle Thorne takes the position that both of the accounts are assets of the Estate that should be distributed, pursuant to the Deceased’s Will, to the three defendants as residual legatees. [ 3 ] Also in dispute is the ownership of three bank accounts at Bank of Nova Scotia held jointly between the Deceased and her son, Richard (Ricky) Vincent Thorne, a plaintiff to this action. [ 4 ] The Deceased held investment accounts at CI Investments and AIM Trimark, both of which were managed by Desjardins Financial Security.

While the Deceased and her husband, John Thorne were both alive, they named their son, Sean Thorne, one of the plaintiffs, as their attorney. Sean Thorne resided and continues to reside in Mississauga, Ontario. [ 5 ] John Thorne, the parties’ father, passed away on May 27, 2007. There was some delay in the processing of the Thorne account for Mrs. Therese Thorne.

[ 6 ] The CI Investments’ portion of the RRIF was transferred on May 1, 2008. This became the account ending in #4400; however, the AIM Trimark portion was not transferred at that time. The documentation that became #4478 was signed by Sean Thorne as attorney for his mother. AIM Trimark advised Desjardins Financial Security that they would not accept documentation signed by an attorney under a Power of Attorney when that attorney was listed as one of the beneficiaries.

AIM Trimark advised Desjardins that they wanted Therese Thorne to sign the application herself. [ 7 ] As to the joint bank accounts held at Bank of Nova Scotia, Churchill Square, St. John’s, these are jointly held in the names of Richard Thorne and the Deceased. The plaintiffs submit that, based on the fact that these were joint accounts with a “right of survivorship” and, on the evidence of the intentions of the Deceased, the funds in the accounts should be shared equally amongst all ten of the Deceased’s children, including Michelle Thorne.

Michelle Thorne claims these funds were to pass to the residue of the Estate and be transferred to the three defendants. THE EVIDENCE Bank of Nova Scotia - Three Accounts Evidence: Madonna Hoddinott [ 8 ] Madonna Hoddinott received the late Therese Thorne and her son, Richard Thorne, at Bank of Nova Scotia, Churchill Square, St. John’s, on August 14, 2007. She testified that the Deceased wanted to add her son, Ricky, to her account, that she had ten children, and Ricky was going to look after the accounts. She stated she wanted the ten children to have the account.

Ricky wanted her to take a holiday and she said no, that the money is for the ten children. Ms. Hoddinott testified she was certain of this understanding. She then brought both the late Mrs. Thorne and Richard Thorne to meet with a manager to discuss joining her son on the accounts. Evidence: Tina Fowler [ 9 ] Tina Fowler was the manager at Bank of Nova Scotia who saw Mrs. Thorne and her son, Richard Thorne. She knew the family for some time as she had worked at Giant Mart next to where they resided in Churchill Square.

She testified that she explained to them that the money would be owned by the surviving owner, and it would not form part of the Estate as required by bank regulations. She told Mrs. Thorne that when you add Ricky to the account, you cannot change it unless you close the account and open another; that if you died, the money goes to Ricky. She testified that Mrs. Thorne responded that it’s OK as Ricky knows what to do with this—it’s for the ten children.

Evidence: Richard Thorne [ 10 ] Richard Thorne testified that as far back as June 1980, his mom kept a safety deposit box with his and his mother’s signature on it. [ 11 ] Richard Thorne testified that following their father’s death, he went to Bank of Nova Scotia in Churchill Square with his mother. On the way, they talked about him and his mother going on the account. At the bank, the right of survivorship was explained to them both. He was not aware of this information beforehand, but his mother was comfortable.

It was explained to them both that in a joint account, Richard Thorne could withdraw all of the money. He testified that he knew from his mother that on her passing, the money was to be split among all ten of the children. He testified that he is sure that this is what his mother wanted. Evidence: Michelle Thorne [ 12 ] Michelle Thorne testified that she believed that shortly after her father’s death, her brother, Richard Thorne, came to know that her mother had done something to have him taken out of his getting the home, and for that reason, he took her to the bank to have his name put on the accounts.

She testified that she didn’t know how he came to know or what her mother may have told him about this decision. This appears as an honest belief on her part. It also appears she is not then in receipt of any other basis for that belief. [ 13 ] As part of a basis for a complaint by her to Bank of Nova Scotia dated June 7, 2010, Michelle Thorne again affirms in her testimony that she was then of the belief that Richard Thorne knew that his mother was going to leave him out. At the same time, she testified that it didn’t seem to her that he was trying to influence or force their mother.

Also, at the same time, she testified it became a problem for her, Michelle Thorne, when her mother told her Ricky was going on her accounts. Again, concurrent with that evidence, she agreed that she was not familiar with joint accounts and that it was done to ensure nothing was taken out.

Concurrent again, she testified that Ricky’s motive in going to Bank of Nova Scotia was to get complete control of the $100,000. [ 14 ] Michelle Thorne testified that Ricky told her that he had taken their mother to Bank of Montreal, opened a joint account, obtained a credit card for her and intended to move the Bank of Nova Scotia accounts to Bank of Montreal.

She testified this angered her mother. [ 15 ] Michelle Thorne testified that Ricky told her and another sibling that their father’s name had to be taken off the accounts at Bank of Nova Scotia, and he would have managing authority over the accounts, that there would be an account for managing the home and another for emergencies. Desjardins Financial Security: Two Accounts Evidence: Jeffrey Gregory

[ 16 ] Jeffrey Gregory is a financial investment agent with Desjardins Financial. He became involved when AIM Trimark when attempting to reach Michael Dunn who had been the agent for Desjardins on the Thorne account in May 2008. He forwarded AIM Trimark’s inquiry to Mr. Dunn who had been ill. On July 8, 2008, he took over Mr. Dunn’s block of business. AIM Trimark was contacting him to have an outstanding application completed as soon as possible. He telephoned Mrs.

Thorne in early July and spoke with her to tell her the application had come back for her signature as her son, Sean, had signed the previous one and that he couldn’t as he was also a named beneficiary. Mr. Gregory testified that his assistant prepared the document and sent it out with the Estate named as the beneficiary, and he had not seen this. It came back signed in October 2008, and on his examination, he saw the discrepancy between the first application which Sean had signed naming the ten beneficiaries and the replacement one signed by Mrs. Thorne naming the Estate. He testified that he telephoned Mrs.

Thorne in October 2008 to discuss this and to confirm her intentions. She wanted the ten beneficiaries as were in the earlier application. She also asked about the mailing address being used. [ 17 ] Because AIM Trimark was wanting this as soon as possible, Mr. Gregory chose not to resend the application to Mrs. Thorne for re-execution, but, on his own, crossed out the beneficiary description of the Estate and replaced it with the same

schedule naming the ten beneficiaries as had been completed in the earlier application signed by Sean Thorne. He also noted that this was a busy time, that he was just picking up these additional clients, and the market was in a serious recession—a crash as he noted it to be. He made the change to designate the ten children as beneficiaries based upon his phone conversation with Mrs. Thorne. Evidence: Sean Thorne [ 18 ] Sean Thorne became Power of Attorney in the late 1990s for his parents’ investments with Desjardins. There were two accounts: a RIFF and a spousal account. His mother was beneficiary.

When his father died, Sean Thorne started the paperwork as his mother had inherited the funds. He testified that when his father died, the Deceased was adamant that the ten siblings be beneficiaries. He testified that when the delay occurred by his having signed AIM Trimark’s application in his name as Power of Attorney when he was one of the beneficiaries, he proposed to her that he take his name off the beneficiary list, but she did not want this. He was present with Mr. Gregory when Mr. Gregory telephoned his mother and the ten beneficiaries were named on his mother’s instructions.

Evidence: Michelle Thorne [ 19 ] Michelle Thorne testified that she took her mother to Bank of Nova Scotia with the Trimark investment application form. She testified that her mother was livid as all ten children were stated; it angered her mother.

She testified that her mother wanted it changed to the Estate of Therese Thorne. [ 20 ] Michelle Thorne testified that her mother was dissatisfied with not receiving her statements from Trimark, her address not being on the statements, the decreasing value of the investments, and a failure in 2009 to have been able to deduct a loss on investment when completing her income tax return as she had not received the information. [ 21 ] Michelle Thorne testified that she first found out there were ten beneficiaries in September 2009 through the lawyer.

PASSING OF THERESE THORNE [ 22 ] Shortly before the passing of the Deceased, Michelle Thorne testified that during her mother’s stay in hospital preceding her death, she told her mother that the children, naming: Rose Anne, Ricky and Freddie were trying to have her tested for competency. She testified that she and Gregory Thorne had Power of Attorney from her mother on the basis that it was only to be used as necessary.

She testified that she then asked her mother if she could use it so she, Michelle Thorne, could go to the medical caregivers and instruct them they were to take direction only from her and Gregory Thorne; her mother agreed. She testified that she told her mother that her siblings as above noted were trying to get her declared mentally incompetent. Michelle Thorne testified that she and her brother had been told by her mother that if any ill will was being brought against her mother, she and Gregory Thorne were to step forward using the Power of Attorney.

THE ISSUES [ 23 ] The issues in this particular case are: 1. Were the three Bank of Nova Scotia accounts, joint, in trust, or forming the Residue of the Estate of the Deceased? and 2. Were the two Desjardins Investment accounts, in trust or forming the residue of the Estate of the Deceased?

THE LAW Resulting Trust [ 24 ] The presumption of resulting trust is a common law tool created to assist in the ascertainment of a deceased’s intentions in having set up a joint account with another prior to death. [ 25 ] We must first recognize that a resulting trust of itself means the added party to the account who gave no value to that account is therefore a fiduciary and is required to return it to the original owner, the creator of the account, and so, therefore, the Estate (see Pecore v. Pecore , 2007 SCC 17 at paragraph 20 ).

Advancement [ 26 ] The presumption of advancement is another common law tool created as well to support the deceased’s intentions in having set

up a joint account with another, a spouse or a child. The presumption at law serves to support the presumed intent of the creator to give to the spouse or child as a moral obligation of support after death. In this case, its effect is taken to be a gift during the creator’s lifetime (see Pecore at paragraph 21 ).

Rebuttable Presumptions / Resulting Trust and Advancement [ 27 ] To both resulting trust and advancement, the common law attaches the principles of rebuttable presumption; as such, both carry legal assumptions that a court will make if insufficient evidence is addressed to displace that assumption (see Pecore at paragraph 22 ). However, the burden of proof falls to the parties differently. The assumption will stand unless evidence is adduced to rebut it and so displace it. The burden shifts to the party who opposes the presumption.

The Burden of Displacement of Presumptions Resulting Trust [ 28 ] Thus, in the case of the presumption of resulting trust where, as noted, the transfer to the joint account is made for no consideration, the onus is on the surviving party to the account to establish the gift was intended (see Pecore , paragraphs 24 and 81 ). Notably, the presumption is that the resulting trust requires that survivor to have returned the balance in the account to the original owner, now the Estate. The presumption is that the creator of the account intended to retain the beneficial ownership.

Advancement [ 29 ] Thus, in the case of the presumption of advancement, the assumption favours the receiving party to the account, and the burden falls to the party challenging that otherwise automatic transfer originating inter vivos (see Pecore , paragraphs 27 and 81 ). Of interest, the presumption favouring a child does not survive the child’s reaching the age of majority notwithstanding the common law basis for its initial presumption (see Madsen Estate v. Saylor , 2007 SCC 18 , the majority).

Standard of Proof [ 30 ] The balance of probabilities is the standard of proof required of the party having the burden of rebutting the presumption. The trial judge will begin the inquiry with the presumption in place and will weigh the evidence to determine, on the balance of probabilities, the deceased’s actual intention (see Pecore at paragraphs 43 and 44 ). Guidance of Treatment of Evidence of Deceased’s Intentions [ 31 ] Pecore provides guidance in the general treatment of some types of evidence that may be considered in assessing the deceased’s intentions.

Evidence Subsequent to Transfer [ 32 ] Evidence subsequent to the transfer should not automatically be excluded provided it is relevant to the intention at the time of transfer (see Pecore at paragraph 59 ). Banking Documents [ 33 ] Banking documents may be considered if there is anything disclosed that specifically suggests intention regarding beneficial interest in the account; the clearer that evidence, the more weight it should carry (see Pecore at paragraph 61 ). Control and Use of Account [ 34 ] Control and use of the account should not be ruled out and treated similarly to banking documents.

Evidence of the relationship between the parties to the account and their understanding may be of marginal assistance, but not of itself determinative as the actions of the survivor were directed, or intended to be, management only; an adult child with an aging parent may not want to take the benefit so to ensure sufficient funds are left remaining for the aging parent; or the retention of de facto control by the deceased would not necessarily be inconsistent with an intention that the balance was to pass to the survivor on death (see Pecore at paragraphs 63-66 ).

Granting of Power of Attorney [ 35 ] Whether the granting of the power of attorney in determinative of intention is for the trier of fact. It may well be the deceased appreciated the distinction between granting the power of attorney and creating a gift by survivorship. Caution is advised here (see Pecore at paragraph 68 ). Tax Treatment of Joint Account [ 36 ] Again, the weight to be given to tax treatment of a joint account is for the trier of fact, but such treatment by the deceased during lifetime should not of itself be determinative (see Pecore at paragraph 69 ).

CONSIDERATIONS AND CONCLUSIONS [ 37 ] The Deceased was a mother of thirteen children, ten surviving her. She was described by Michelle Thorne as an intelligent, loving, sociable woman who liked documentaries and crossword puzzles. She wrote well; she liked computers. After raising her children with her husband who pre-deceased her, she went to university on a part-time basis and worked at the medical school at Memorial University of Newfoundland for some 14 years. She loved to shop, loved to knit, loved to travel, loved her children and grandchildren, and loved her two German shepherd dogs.

Some of the Deceased’s children lived at home well into adulthood. The three defendant children continued to live there until her death and live there now.

[ 38 ] The Deceased was described by Michelle Thorne as a quiet, but firm parent. As Michelle Thorne put it, “a look in her eye” or “a tone in her voice” was all that was needed to convey that whatever was going on, was to immediately stop. [ 39 ] Michelle Thorne also described her mother as very private when it came to her personal affairs. She was not the type to inform the children of her financial planning. She often chose to share information with Michelle Thorne that she would not share with others.

Michelle Thorne was her mother’s “be with” person, her “go to” daughter in matters of the heart and in personal day-to-day friendship and living. [ 40 ] Richard Thorne was a police officer as was the late father of the parties, John Thorne. His mother was proud of him, as she communicated to Bank of Nova Scotia employees when they went to set up the joint accounts. [ 41 ] Not unlike Michelle Thorne’s description of her mother’s choice of privacy, she chose one child, Richard Thorne, to go to the bank to join on the accounts.

He had been on her safety deposit box since 1980. [ 42 ] Richard Thorne chose to tell Michelle Thorne and his siblings about that trip to Bank of Nova Scotia when it happened and about his being on the accounts and how they were set up. [ 43 ] Michelle Thorne’s evidence indicates a mixed response to Richard Thorne’s involvements.

There is both her evidence of her understanding of how this was a reasonable thing for her mother to do, she, Michelle, not being familiar with the banking on the one hand; and on the other, her believing that Richard Thorne may well now have come to understand he was cut out of any interest in the home by his mother’s Will, and this move at the bank was his way of trying to secure an advantage for himself. [ 44 ] Throughout the evidence, it is clear that the Deceased had her own agenda for the management of her funds during her life following her husband’s death and for the disposition of her Estate on her passing.

Throughout the evidence, it is clear that the Deceased chose to involve only those of her children with whom she would share this information consistent with her need to have those children deal with her investments and so assist her. That is, her requirement for assistance from specific children was the basis only upon which those children obtained information. She was a careful, educated and loving mother. She was in charge. She knew what she wanted and what she had to do to have her intentions secured.

As the evidence also disclosed, where one of the Trimark investments was not transacted for her following her husband’s death with both delays and miscommunications, she became irritated. As I will indicate, these deficiencies, while bringing her agitation, I have not seen as obscuring or negating her program for management during her life and disposition on her death. [ 45 ] Two persons present on the evidence as the “go to” children for the program of management and ultimate disposition of the financial investments—they are Richard Thorne and Sean Thorne—and there is no surprise here.

Richard Thorne had looked after the safety deposit box since 1980; Sean Thorne had looked after his father’s investments since 1990. [ 46 ] Consistent with her preference for privacy and her own independent capacity for choice, none had to be involved with her effecting her Last Will and Testament through the assistance of a lawyer. The three defendants, those children who still lived in her house with her, received the house. There is no dispute here. No child had to know. It would only take effect upon her death. [ 47 ] As noted, the Deceased, as did her late husband, needed help with the investments however.

Sean Thorne who already did this was her “go to” person. The Bank of Nova Scotia accounts were a new item for her.

She and Richard Thorne consolidated accounts at Bank of Nova Scotia, and there are three joint accounts in place. [ 48 ] In my view, there is more than adequate evidence from the account documents and the evidence of both Madonna Hoddinott and Tina Fowler of Bank of Nova Scotia to satisfy me, well beyond the balance of probabilities, that the Deceased created a trust by which Richard Thorne was obligated to hold the balance of funds at her passing for her then surviving children. [ 49 ] This is not unlike the result obtained by the treatment of Pecore in Sawdon Estate v.

Watch Tower Bible and Tract Society of Canada , 2014 ONCA 101 . [ 50 ] The evidence of Jeffrey Gregory, the initial opening attempt of account #4778, and the evidence of Sean Thorne satisfy me that, on the balance of probabilities, the Deceased intended the beneficiaries to be her ten surviving children. Notwithstanding her frustration with having #4778 set up, based on Sean’s initial understanding and the Deceased’s subsequent confirmation to Mr.

Gregory and to Sean Thorne by telephone in October 2008, I am satisfied that such frustration did not overtake her intention to have all ten children share equally and have that account distributed as such. As well, the Deceased, during the resolution of this delay, would also have seen the first named of three of the ten children in her investment statements and, despite irritation and complaint to Mr. Gregory, did not direct any concern to the clearly named beneficiaries. This satisfies me as well, on the balance of probabilities, that #4700 was documented consistent with the Deceased’s intention.

SOLICITOR CLIENT COSTS [ 51 ] The parties have all argued that solicitor and client costs are appropriate, the plaintiffs seeking such against Michelle Thorne to the extent of her one-tenth interest, if they were successful, approximately $14,000. Michelle Thorne responded that, given the original allegations against her of elder abuse and misappropriation of funds, she could request a similar order, but chose not to. [ 52 ] In my view, this case in the overall does not attract my discretionary exercise of an award on the basis proposed.

The references in argument by counsel to each of the other parties’ conduct in the history of this matter was not the subject of the inquiry on this trial. I am not able to complete a proper analysis of that conduct on the evidence. In any event, and as counsel and the parties may well have anticipated, to enter into an assessment of the respective good faith conduct of the parties had that been engaged would serve likely to unduly and inappropriately exacerbate the unfortunate separation these family members have endured. ORDER

[ 53 ] The three accounts of Bank of Nova Scotia and the two accounts with Desjardins Financial are held in trust for each of the ten named children of the Deceased, Therese Thorne. [ 54 ] The plaintiffs shall have their costs against the defendants on a party and party basis at Column 3 of the Scale of Costs for one counsel. _____________________________ Carl R. Thompson Justice