Ontario Civil


Contracts

PERFORMANCE AND BREACH
Onus on respondent to prove allegation that receipts fraudulent

Husband and wife had four children. Three of four children moved away from family farm. Husband died intestate in 1997. Applicant fourth child remained on farm with mother. Mother executed will April 2000. Mother and applicant executed agreement May 2001. Agreement purportedly a written partnership to carry on farm business. Agreement included provisions for applicant’s buyout of mother’s interest in farm. Agreement required applicant pay $9,000 annually for ten years. In event of mother’s death, 50 per cent of any balance then owing forgiven absolutely. Agreement witnessed by mother’s lawyer. Mother died in May 2011. Applicant’s brother obtained certificate of appointment of estate trustee. Brother did not honour May 2011 agreement. Applicant commenced application against brother for enforcement of May 2011 agreement. Applicant’s position was he had paid $81,000 pursuant to agreement. Evidence included receipts for $80,000. Final payment of $9,000 offered to respondent but refused. Payment in trust with applicant’s counsel. Respondent opposed application on bases applicant made no payments and receipts fraudulent; and applicant breached agreement regarding how farm run, expenses paid and income shared. Centre of Forensic Sciences (“CFS”) examined receipts. CFS determined mother probably wrote seven of nine receipts; and other two inconclusive. Ontario Provincial Police found no evidence to support charges against applicant. Application allowed. Existence of agreement not at issue. Where no evidence to contrary, receipts were satisfactory proof applicant paid $81,000 under buyout provision. Applicant would have made final payment, if accepted by respondent. Onus on respondent to prove clearly and distinctly the allegation that receipts fraudulent. Onus not met. Applicant owed $4,500. Applicant ordered to pay $4,500 without interest. Payment discharged applicant’s obligations under agreement. Respondents ordered to transfer property to applicant.

Hill v. Hill (Oct. 15, 2012, Ont. S.C.J., Wilcox J., File No. 5314-11F) 223 A.C.W.S. (3d) 98.

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