



COURT OF APPEAL FOR ONTARIO

CITATION: Donis v. Georgopoulos, 2016 ONCA 194

DATE: 20160308

DOCKET: C58818

Gillese, Huscroft and Miller JJ.A.

In the Estate of Sofia Donis, deceased

BETWEEN

Christos Antoniou Donis

Appellant (Applicant)

and

Dimitra Georgopoulos
and Eleni Antoniou Donis

Respondent
in Appeal (Respondents)

Constantine Alexiou, for the appellant

Maurice W. Pilon, for the respondent

Heard: October 7, 2015

On appeal from the judgment of Justice S.E. Firestone of
    the Superior Court of Justice, dated April 15, 2014, with reasons reported at
    2014 ONSC 1427.

Miller J.A.:

Overview

[1]

At issue in this appeal is the validity of a memorandum of agreement (the
    MOA) that transfers ownership of a house from Sofia Donis (the mother) to
    her daughter, Dimitra Georgopoulos, in exchange for $100,000 and a promise that
    the mother could remain living in the house for the rest of her life.

[2]

A few months after the execution of the MOA, the mother died
    unexpectedly. The transfer of the house substantially reduced the inheritance of
    the mothers son, Christos Donis (the appellant), and other daughter, Eleni
    Donis.

[3]

Christos challenged the validity of the transfer primarily on the basis
    that: (1) their mothers rudimentary understanding of English prevented her
    from having the requisite capacity and understanding to execute the MOA; and
    (2) Dimitra exercised undue influence over her mother, who did not receive
    proper independent legal advice.

[4]

The trial judge dismissed his challenge and Christos appeals.

[5]

For the reasons that follow, I would dismiss the appeal.

Background

[6]

Dimitra was the primary caregiver for her aging parents who were no
    longer able to care for themselves: first for her father, who died in 2005, and
    then her mother, who died in 2008.

[7]

In order to facilitate her mothers desire to remain living in her own
    home, Dimitra undertook a burdensome caregiving routine. For approximately two
    years, Dimitra left her own family after dinner each evening to care for her
    mother. She stayed overnight at her mothers house, before returning to her own
    home the next morning.

[8]

It is uncontroverted that although Christos shared the overnight duties
    with Dimitra for one year, Dimitra thereafter assumed sole responsibility for
    them.

[9]

On September 18, 2007, Dimitra and her mother executed the MOA, which
    had been drafted by her mothers solicitor, Michael Shea. The MOA stated:

I, Sofia Donis, herein agree to transfer all of my right, title
    and interest in the property municipally known as 41 Corinthian Blvd., to my
    daughter, Dimitra Georgopoulos.

I will do so at the time when she pays to me the sum of
    $100,000.00 out of the proceeds from the sale of her own property.

I, Dimitra Georgopoulos, herein agree to allow my mother, Sofia
    Donis, to continue to reside with me at 41 Corinthian Blvd., for the balance of
    her lifetime unless she is unable for health reasons to do so.

[10]

The
    mother was fluent in Greek and Macedonian. The extent of her English language
    skills was disputed by the parties. The trial judge found that Mr. Shea was
    able to communicate with the mother in English. To some extent he was assisted by
    Dimitra, who attended his office with her mother on each of her mothers meetings
    with Mr. Shea.

[11]

The
    trial judge found that the mothers instructions to Mr. Shea changed over time.
    Originally, she sought to change her will, so that her house would be left to
    Dimitra to the exclusion of her other children. Eventually, she settled on a plan
    to sell her house to Dimitra for $100,000, the sum of which she would then
    bequeath to Christos and Eleni through a revised will. There was some dispute
    between the parties as to whether the MOA was
inter vivos
in nature or
    testamentary. The trial judge concluded that it was
inter vivos
.


[12]

He
    found that Mr. Sheas practice over the course of these meetings was to confirm
    his instructions from the mother with Dimitra out of the room. He took the
    additional step of having the mother see Mr. Petrovski, a Macedonian-speaking
    lawyer, to confirm that she intended to transfer her house to Dimitra. Mr. Petrovski
    did not review the MOA with the mother, as it had not been prepared by that
    time. His role was simply to confirm that it was the mothers independent
    desire that Dimitra have the house to the exclusion of her siblings.

[13]

On
    February 14, 2008, before Dimitra could complete the sale of her own home, her
    mother died. Two weeks later, the sale of Dimitras home was completed. Dimitras
    solicitor held back $100,000 from the sale proceeds in accordance with the MOA,
    and that sum is being held pending the outcome of this litigation. Legal title
    to 41 Corinthian Boulevard has not yet been conveyed to Dimitra.

[14]

The
    appellant testified that his mother wasnt straight in her mind, but he did
    not request anyone to investigate this concern. Although the mothers family
    physician, Dr. Zeidenberg, testified that the mothers medication made it
    difficult for her to think clearly, he did not refer her for a capacity
    assessment or to a memory clinic, or perform any cognitive impairment
    assessments. Mr. Sheas evidence, from his interactions with the mother, was
    that she was fine notwithstanding some forgetfulness.

[15]

From
    this evidence, the trial judge concluded that the mother was mentally capable.

[16]

The
    trial judge also found that although the mother could not read English
    perfectly, she had sufficient ability to understand the contents of the MOA,
    which was a simple document. This finding was supported by the evidence of Mr.
    Shea and Dimitra, as well as  inferences  the trial judge drew from the length
    of time that the mother spent in Canada and the time she spent watching television
    in English.

[17]

The
    trial judge held that the MOA was valid and made an order that title to 41
    Corinthian Boulevard be transferred to Dimitra, and that Dimitra pay the sum of
    $100,000 to the estate of the mother. Christos appealed.

Issues on Appeal

[18]

The
    appellant argues that the trial judge erred in finding that:

1.   The mother understood the MOA and the MOA was not
    invalidated by the doctrine of
non est factum
;

2.   Dimitra rebutted the presumption of undue influence;

3.   The mothers interests were protected by independent legal
    advice; and

4.   The MOA was valid despite a failure of  consideration.

[19]

Given
    the interrelatedness of issues 2 and 3, they are dealt with together in the
    analysis below.

Analysis

(1)

Non est factum

[20]

The
    appellant, relying on
Marvco Colour Research Ltd. v. Harris
, [1982] 2
    S.C.R. 774, at 784, argues that the MOA should be invalidated because the
    evidence establishes that the document signed is of a different nature from
    that which the signer intended to execute.

[21]

The
    appellant argues that because his mother could not read the MOA for herself in
    English, and did not receive an explanation as to what the MOA said, the trial
    judge erred in not finding the MOA to be void on application of the doctrine of
non est factum
.

[22]

I
    disagree. The factual findings of the trial judge are an unsurmountable hurdle
    to the claim of
non est factum
.

[23]

There
    is no basis on which to interfere with the trial judges finding that the facts
    did not support a claim of
non est factum
. He found that: (1) the
    mother had sufficient ability in English to read and understand the MOA; (2)
    the mother had sufficient ability in English to understand Mr. Sheas
    explanation of the content of the MOA; and (3) Dimitra provided her mother with
    an explanation of the content of the MOA in Macedonian.

[24]

These
    findings are entitled to deference and are a complete answer to this argument.

[25]

It
    should be noted that the appellant is seeking to invalidate a contract signed
    by a third party. The appellant did not direct us to any authority for the
    proposition that a third party can move to invalidate a contract on the basis
    of
non est factum
. However, given my conclusion on this issue, it is
    not necessary to decide that matter.

(2)

Undue influence

[26]

The
    appellant argues, in the alternative, that if the mother understood the MOA,
    she only signed it as a result of Dimitras undue influence on her, and the MOA
    should be invalidated on that basis.

[27]

The
    trial judge found that the appellant had not adduced sufficient evidence to
    establish undue influence. However, he found, at para. 69, that there was
    sufficient evidence to raise the presumption of undue influence:

I do find, however, that because Sofia was dependent on Dimitra
    for her basic needs, she was in a relationship of trust and confidence with her
    daughter sufficient to raise the presumption of undue influence. It therefore
    falls on the respondent Dimitra to rebut this presumption.

[28]

He
    went on to find that Dimitra had rebutted the presumption, pointing to, among
    other things, Sheas evidence that the mother was not being coerced and
    Petrovskis provision of independent legal advice to the mother.

[29]

I
    see no basis on which to interfere with the trial judges determination of
    these matters.

[30]

Once
    the trial judge found that there was no actual undue influence, he was required
    to inquire into the nature of the relationship between the parties to determine
    whether that relationship triggered a presumption of undue influence.   Once he
    found the presumption to have arisen, the onus shifted to Dimitra to rebut it:
Geffen
    v. Goodman Estate
, [1991] 2 S.C.R. 353, at 378-9.

[31]

Rebutting
    the presumption may entail showing that there was no influence deployed in the
    transaction or that the donor had independent legal advice: see
Geffen
,
    at 379. In finding the presumption was rebutted in this case, the trial judge relied
    on both of these of factors.

[32]

In
    finding that the mother was not being influenced, the trial judge placed great
    emphasis on Mr. Sheas evidence (at para. 70):

Shea was of the opinion that Sofia was not being coerced and
    the idea to transfer her house to Dimitra was the product of her own free will.
    Having found Shea to be a professional and entirely credible and reliable
    witness, this evidence alone goes a long way to dispelling the presumption of
    undue influence.

[33]

A
    second basis for the trial judges finding that the presumption was rebutted was
    that the mother had received independent legal advice from Mr. Shea.

[34]

The
    appellant accepts that the mother received some advice from Mr. Shea, but
    argues that it was deficient and, in any event, insufficient to rebut the
    presumption of undue influence.

[35]

The
    appellant objects that Mr. Shea did not explain the risks of the transaction to
    the mother and that he was in a conflict of interest due to Dimitras presence at
    all of the meetings. The referral to Mr. Petrovski did not remedy these
    defects, the appellant argues, because Mr. Petrovski could not explain the
    legal aspects of the MOA to the mother because the MOA had not yet been drafted.
    The appellant argues that Mr. Petrovski was therefore not able to advise the
    mother as to the risks of the transaction or to provide her with a
    recommendation of whether to proceed with it.

[36]

I
    reject the appellants arguments for two reasons.

[37]

First,
    on the findings of the trial judge, Mr. Shea was not in a conflict of interest.
    The trial judge found that Mr. Shea was retained by the mother and was acting
    for her alone. Although Dimitra was present at each meeting with Mr. Shea, it
    was his practice to confirm his instructions from the mother directly, in Dimitras
    absence.

[38]

Second,
    the trial judge found that the advice that Mr. Shea provided, and the
    assistance he received from Mr. Petrovski, ensured that the mother understood
    the nature of the transaction and its attendant risks.

[39]

As
    the appellant argues, for independent legal advice to be effective for the
    purpose of defeating the presumption, it must have been informed and competent.
    That is, it must have been given with a knowledge of all relevant
    circumstances and must be such as a competent and honest adviser would give if
    acting solely in the interests of the donor: see
Inche Noriah v. Shaik
    Allie Bin Omar,
[1929] A.C. 127, at 136.

[40]

The
    trial judge found that Mr. Shea understood the mothers circumstances. Mr. Shea
    understood that she wished to remain living in her home for the rest of her
    life. He understood that she wished to effect this by having Dimitra live with
    her full time and care for her. He understood that there were other children
    who would be affected by this decision.

[41]

The
    trial judge found that Mr. Shea sent the mother to a Macedonian speaking lawyer
    to confirm that it was her intention to transfer the house. Mr. Petrovski confirmed
    to Mr. Shea that it was the mothers intention to transfer the house to Dimitra
    to the exclusion of her other children (at para. 71):

In addition, Shea also insisted that Sofia receive independent
    legal advice from Petrovski. Petrovski was similarly of the view that the
    decision to transfer the home was Sofias and that she understood that the
    consequences of her decision would be to ultimately deprive her other children
    of some inheritance. It would have been preferable if Petrovski had had the
    opportunity to review the final MOA with Sofia, but that detail is not fatal.
    Independent legal advice need not be perfect to be effective.

[42]

With
    respect to the competence of the advice provided, the trial judge found that Mr.
    Shea safeguarded the mothers interests by structuring the transaction such
    that he would not transfer title until after she had received $100,000 from
    Dimitra. He also included a term in the MOA that Dimitra would allow the mother
    to remain living in the house for the balance of her lifetime. Mr. Shea met
    with the mother on several occasions, and the MOA was the product of her
    instructions. His role was not, as the appellant characterized it in oral
    argument, a matter of reading the document slowly to the mother and having the
    respondent translate it.

[43]

I
    would differ slightly from the trial judges characterization of the
    consultation with Mr. Petrovski as independent legal advice. Mr. Shea was the
    mothers lawyer and he was responsible for providing her with independent legal
    advice. He engaged Mr. Petrovski to assist him in carrying out his duties to
    his client. He referred the mother to Mr. Petrovski out of an abundance of
    caution, to ensure that it was her intention to transfer her house to Dimitra
    and that she understood the impact of the transaction on her other children.

[44]

The
    appellants argument that the consultation with Mr. Petrovski did not satisfy
    the formal criteria for independent legal advice specified in the Law Society
    of Upper Canadas
Rules of Professional Conduct
thus fails, as the
    receipt of independent legal advice from Mr. Petrovski in this form was not
    necessary to rebut the presumption of undue influence.

[45]

The
    trial judges factual findings were all supported by evidence, and he was
    entitled to come to the conclusions that he did.

(3)

Failure of consideration

[46]

The
    final ground of appeal is that the trial judge erred in not finding the MOA to
    be invalid on the basis that there was a failure of consideration. The
    appellant argues that the MOA provided that Dimitra was to receive the property
    in exchange for $100,000 and the on-going provision of personal care for the
    mother thereafter. Given that the mother died prior to the transfer of the
    house to Dimitra, the appellant argues that Dimitra did not provide the future
    care that was required by the MOA.

[47]

I
    reject this argument. As the trial judge held, at para. 77, [t]he agreement
    did not provide that Dimitra could have the house
for such a time as she
    continued to provide care to Sofia
 (emphasis in original).

[48]

The
    text of the MOA provided that Dimitra allow the mother to continue to reside
    with [her] at 41 Corinthian Blvd., for the balance of [the mothers] lifetime
    unless she is unable for health reasons to do so. This was not, as the
    appellant characterized it, a contract for services. Although neither Dimitra
    nor her mother anticipated that the mother would die so soon after the MOA was
    executed, the fact that the mother died before the title was transferred does
    not affect the enforceability of the MOA.

Disposition

[49]

I
    would dismiss the appeal. I would order costs to the respondent on a partial
    indemnity basis, fixed in the amount of $12,000, inclusive of disbursements and
    HST.

Released: EEG MAR 8 2016

B.W. Miller J.A.

I agree. E.E.
    Gillese J.A.

"I agree. Grant
    Huscroft J.A."


