2012 MBCA 109, 2012 MBCA 109

Citation: Van De Keere Estate, Re, 2012 MBCA 109 Date: 20121122 Docket: AI 12-30-07764 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN : ROBERT EMIEL VAN DE KEERE , ) G. M. Wood GENE VAN DE KEERE, ) for the Appellants JOSEPH RENE VAN DE KEERE, and ) IRENE SHASKE ) S. Green, Q.C. and ) C. R.

Huband (Applicants) Respondents ) for the Respondents ) - and - ) ) Appeal heard and DIANE MARIE TURNER, and ) Decision pronounced: DIANE MARIE TURNER as ) November 9, 2012 Executrix of the Estate of ) Emiel Cyrille Van De Keere ) ) Written reasons: (Respondents) Appellants ) November 22, 2012 BEARD J.A. I. THE ISSUE 1 At the conclusion of the hearing, the appeal was dismissed with reasons to follow.

These are the reasons. 2 Diane Turner, in her personal capacity and in her capacity as executrix of the estate of her father, Emiel Cyrille Van De Keere (I will refer to the appellants in the singular), has appealed the decision of the trial judge in which she found Ms Turner liable to account to the estate of Emiel Cyrille Van De Keere for the sum of $408,000. While Ms Turner has set out numerous grounds of appeal, it is clear that there are really only two: (

i) whether the trial judge erred in finding that Ms Turner had failed to rebut the presumption of a resulting trust and establish that the money transferred to her and to her husband, Bruce Turner, was a valid gift; and (ii) whether the trial judge erred in failing to determine that the transfer of $199,980.65 to Bruce was a completed gift. II. THE FACTS 3 The basic facts in this matter are not at issue. The deceased, Emiel, had five children, Robert, Gene, Joseph, Irene and Diane. He and his wife were farmers.

In 1995, their son Joseph bought the farm and in 1996 Emiel and his wife purchased and moved into a home in Winnipeg. Emiel’s wife died in 1996, and Emiel continued to live in the house until 2004, when he sold the house and moved into an apartment for senior citizens. 4 Emiel died on January 18, 2008, at which time he had an estate worth approximately $32,000 (after funeral expenses). His last will, executed on August 17, 2000, appointed Ms Turner as his executrix and divided his estate equally among his five children.

This will was similar to a 1983 will in which he also left his estate equally to his children, in the event that his wife predeceased him, although in that will he named Joseph as his executor. 5 Upon learning the value of the estate, the respondents wrote to Ms Turner on March 8, 2008, requesting information about Emiel’s assets. On the advice of counsel, Ms Turner refused to respond, so the respondents filed a court application to obtain that information. It was then disclosed that Emiel had transferred the following sums:

2003 $25,000 To Ms Turner 2003 $8,000 To Ms Turner 2004 $100,000 To Ms Turner 2005 $75,000 To Ms Turner 2007 $199,980.65 To Bruce for Ms Turner 6 In addition, Emiel had transferred his camper to Ms Turner in exchange for her van, which he ultimately gave back to her to give to her daughter. 7 None of these transfers were made known to the respondents prior to Emiel’s death. 8 Emiel had given other significant amounts of money to his children.

When he sold the farm to Joseph, he gave $15,000 to each of the other four children, including Ms Turner, and said that Joseph had received his share by a reduction in the price for the farm. When he sold his house, he gave $10,000 to each of the children except Irene, who lived in Minnesota. It was unclear whether there was also a cheque to be delivered to Irene, or whether Emiel indicated that she had already received money from him. III. STANDARD OF REVIEW 9 It is clear, on reviewing the facta, that there is no disagreement on the applicable law.

All of the issues, which I have condensed into the two issues set out above, raise questions of fact or mixed fact and law. The standard of review of a judge’s findings of fact is palpable and overriding error, while the standard of review of findings of mixed fact and law is palpable and overriding error, unless it is clear that the trial judge made some extricable error of law. In this case, there was no such extricable error. ( See Housen v. Nikolaisen , 2002 SCC 33 at paras. 10-18 , 26-37, [2002] 2 S.C.R. 235; and H.L. v. Canada (Attorney General) , 2005 SCC 25 at paras. 52- 61 , [2005] 1 S.C.R. 401 . ) IV.

ANALYSIS 10 The law states that, where a parent makes a gratuitous transfer of assets to an adult child, there is a presumption of a resulting trust, such that the child is presumed not to be the beneficial owner, but rather to hold the assets as a trustee for the parent. This is a rebuttable presumption, so the child claiming that the transfer was a valid gift can rebut it by bringing evidence to support his or her claim. The evidence required to rebut the presumption is evidence of the parent’s intention to make a gift, which must be proved on a balance of probabilities. ( See Pecore v.

Pecore , 2007 SCC 17 at paras. 19-44 , [2007] 1 S.C.R. 795 at paras. 19-44 .) 11 Ms Turner argues that the trial judge erred by introducing a new test when she determined that Ms Turner had the onus of proving why Emiel gave her a substantial amount of his property, thereby favouring her over the other children. I do not agree that, in making her comments, the trial judge was introducing a new test or placing any additional onus on Ms Turner.

Rather, she was looking at the evidence from a common sense perspective and asking common sense questions, as she weighed the testimony. 12 It is not necessary to undertake an exhaustive review of the evidence as it relates to the issue of whether the trial judge erred in finding that Ms Turner had failed to rebut the presumption of a resulting trust. It is clear that the trial judge considered and weighed all of the evidence in coming to her decision. By way of example only: - Ms Turner argues that the trial judge failed to consider the time frame of the gifts to her, being over several years.

In fact, the trial judge mentioned this three separate times in her reasons, and it is clear that she was taking it into account as she weighed the evidence. - Ms Turner argues that the trial judge failed to consider the lack of any conduct by Emiel after he made the transfers that suggested that he still considered himself the beneficial owner of any of the money. In fact, the trial judge stated that the respondents, and particularly Joseph, testified that Emiel said that Bruce was helping him invest his money.

She also noted that Joseph and Robert testified that Emiel told them, just before he died, that he had no money left because Ms Turner and Bruce had taken it all and invested it. While she viewed this evidence with some suspicion, she also viewed the testimony of Ms Turner and Bruce with suspicion. - Further, Ms Turner argues that the trial judge failed to consider that there were other valid gifts given during that time.

The trial judge did mention those gifts, being the sums of $15,000 and $10,000, but she also noted that, on those occasions, Emiel treated all of his children equally rather than favouring some over others. 13 The trial judge analyzed the testimony of the witnesses for both parties and explained why she had concerns about its credibility. She took a common sense view of all of the facts and came to the conclusion that Ms Turner had not met the burden of proof to rebut the presumption of a resulting trust.

I do not find that the trial judge made any errors in her findings of fact or of fact and law and there were certainly no palpable and overriding errors. 14 Ms Turner also argues that the trial judge erred in failing to determine whether the transfer of money to Bruce was a completed gift to her. Given the finding that all of the money was subject to a resulting trust, it is not necessary to deal with this ground of appeal. V. DISPOSITION OF THE APPEAL 15 For the above-noted reasons, I would dismiss the appeal, with costs to the respondents.

__________________________ J.A. I agree: __________________________ J.A. I agree: _________________________ J.A.