Held, the appeal should be dismissed.
The joint tenancy was not severed by the separation agreement. The separation agreement did no more than express an intention to convey R’s interest in
the property in the future. It is not clear that an expression of future intent is
sufficient to achieve severance. The submission that conveyance of R’s interest
severed the joint tenancy failed in any event. Where, as here, there are three
joint tenants, the conveyance of one joint tenant’s interest to another severs only
the interest of the joint tenant making the conveyance. It does not sever the
whole of the joint tenancy. It was open to the application judge to find that ( i)
there was no evidence that the parties intended to mutually treat the tenancy as
a tenancy in common and ( ii) the separation agreement did not evidence a course
of conduct to sever the joint tenancy.
The application judge did not err in finding that T gifted the property to R and
I and that T was not subject to undue influence. Although the application judge
said that M provided no evidence of undue influence, when his decision was
read as a whole, it was clear that he did not reverse the burden of proof and
require M to prove undue influence. On the contrary, he acknowledged the operability of the presumption of undue influence, but found that it was rebutted.
The application judge did not err in awarding costs against M rather than
against T’s estate. The estate had minimal involvement in the proceedings, which
were brought by M in an attempt to undo arrangements T had made in order to
ensure that no part of the property would pass to M. There were no public policy
considerations that warranted relieving M of the responsibility to pay costs normally born by the losing party.
Cases referred to
Foley v. McIntyre (2015), 125 O.R. (3d) 721,  O.J. No. 2711, 2015 ONCA
382, 8 E. T.R. (4th) 175, 254 A.C. W.S. (3d) 468; Goodman Estate v. Geffen, 
2 S.C.R. 353,  S.C.J. No. 53, 81 D.L.R. (4th) 211, 127 N.R. 241, 
5 W.W.R. 389, J.E. 91-1059, 80 Alta. L.R. (2d) 293, 125 A.R. 81, 42 E.T.R. 97,
27 A.C. W.S. (3d) 930; Hansen Estate v. Hansen (2012), 109 O.R. (3d) 241, 
O.J. No. 780, 2012 ONCA 112, 288 O.A.C. 116, 75 E. T.R. (3d) 19, 9 R.F.L. (7th)
251, 16 R.P.R. (5th) 1, 347 D.L.R. (4th) 491, 212 A.C.W.S. (3d) 854; McDougald
Estate v. Gooderham,  O.J. No. 2432, 255 D.L.R. (4th) 435, 199 O.A.C. 203,
17 E.T.R. (3d) 36, 140 A.C.W.S. (3d) 220 (C.A.); McNamee v. McNamee (2011),
106 O.R. (3d) 401,  O.J. No. 3396, 2011 ONCA 533, 69 E.T.R. (3d) 38,
280 O.A.C. 372, 335 D.L.R. (4th) 704, 4 R.F.L. (7th) 13, 204 A.C.W.S. (3d) 857;
Wright v. Gibbons (1949), 78 C.L.R. 313 (H.C.A.)
Authorities referred to
Gray, Kevin, and Susan Francis Gray, Elements of Land Law, 5th ed. (Oxford:
Oxford University Press, 2009)
Harpum, C., S. Bridge and M. Dixon, Megarry & Wade: The Law of Real Property,
8th ed. (London: Sweet & Maxwell, 2012)
La Forest, Anne Warner, Anger & Honsberger Law of Real Property, looseleaf,
3rd ed. (Toronto: Canada Law Book, 2016)
Ziff, Bruce, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014)
APPEAL from the judgment of H.K. O’Connell,  O.J. No.
7088, 2016 ONSC 313 (S.C.J.) dismissing an application for a
declaration that certain property formed part of the estate and
from the cost order dated November 1, 2016.