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GIFTS - Inter vivos - Validity of transfer - Proof of gift

Friday, May 14, 2021 @ 6:17 AM  


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Appeal by the Zachariadis estate trustees from summary judgment dismissing their claim against the defendants, the Giannopoulos estate trustees. In 1996, Zachariadis began a relationship with Giannopoulos. Zachariadis was divorced from his former spouse and was estranged from his two daughters, the appellants. That estrangement continued until his death. In 2014, Zachariadis moved into Giannopoulos’s apartment with a view to marriage. He gave Giannopoulos a bank draft for $700,000 which she deposited into her bank account. One month later, Zachariadis was diagnosed with cancer. He died within three months. Zachariadis died without a will and thus his estate passed to the appellants. In 2017, they commenced an action to recover the $700,000 paid to Giannopoulos based on breach of trust, fraud, conversion and unjust enrichment. The defendants moved for summary judgment. The appellants sought an adjournment to examine non-party witnesses. The motion judge refused the request and granted summary judgment dismissing the claim. The judge found that the action was statute-barred and that the defendants established the $700,000 was a valid gift. The defendants were awarded costs of $200,000 due to the unsupported fraud claim. The plaintiffs appealed.

HELD: Appeal dismissed. The discretionary decision to refuse an adjournment was entitled to deference and did not disclose any reviewable error given the finding that the proposed examinations would add little to the existing record. In finding that the $700,000 was a valid gift, the motion judge had the benefit of videotaped testimony from Giannopoulos, including a cross-examination, and voluminous evidence from the appellants. Ample evidence supported the conclusion of a gift including a prior attempt to gift $500,000, and the absence of any active concealment. The judge was clearly aware of the alleged suspicious circumstances and found they were unsupported by evidence. The conclusion that a trial was not warranted was entitled to deference. There was no error in finding that the equitable doctrine of fraudulent concealment did not extend the limitation period. Giannopoulos received what she understood to be a valid gift. She had no reason or duty to disclose the existence of the gift to the appellants, whom she had never met. There was no basis for interference with the award of costs.

Zachariadis Estate v. Giannopoulos, [2021] O.J. No. 1283, Ontario Court of Appeal, P.S. Rouleau, M.L. Benotto and J.A. Thorburn JJ.A., March 12, 2021. Digest No. TLD-May102021009