Sister Act: Mother's House Held in Trust Rather than Gift

Franklin v. Cooper 2016 BCCA 447

Two sisters were at odds over the ownership of their deceased mother’s home.  In 1989 their mother had transferred the title of her home to herself and the appellant sister, Ms. Cooper, as joint tenants.  Their mother died in June of 2012 and Ms. Cooper took title by survivorship.  Her sister, Ms. Franklin, had argued the 1989 transfer was gratuitous and Ms. Cooper held the title of the property in trust for their mother’s estate.  Ms. Cooper argued there was an agreement between her and her mother for which consideration was given.  The trial judge found there was no 1989 agreement and the property was held in trust for the estate.  Ms. Cooper appealed this decision.

Ms. Cooper, the appellant, had claimed the transfer of the home was in consideration of expenses Ms. Cooper had paid for in the past and also in consideration of a promise to pay for expenses in the future.  She had agreed to support her mother and to ensure her mother was never placed in a nursing home.  Conversely, Ms. Franklin denied the existence of the agreement and argued her mother’s decision to place the property in joint tenancy was primarily to prevent being defrauded into transferring the title away to a third party.  Evidence was also provided which indicated she had been offered the opportunity to go on the title of the property, but this offer was contingent upon her ending her marriage as her mother wanted to prevent her husband from gaining an interest in the property.  The issues at trial were largely based on credibility and the trial judge ultimately found in favour of Ms. Franklin with the property being held in trust for the estate.  The judge provided detailed reasons having reviewed the evidence and made findings of fact.  The evidence of Ms. Franklin and the other family members was preferred to the evidence of Ms. Cooper. 

Ms. Cooper subsequently appealed and argued the trial judge had made palpable and overriding errors of fact and those errors led her to erroneous findings of credibility. 


The burden the appellant must meet is to demonstrate the judge made palpable and overriding errors in their decision.  The Court of Appeal took the view the judge did not make any palpable errors.  They felt the appellant had not pointed to any instance in which the trial judge came to a conclusion not supportable by the evidence and, ultimately, the appellant only demonstrated the trial judge could have come to different conclusions than she did, not that the conclusions she reached were in error.  The trial judge provided detailed reasons and explanations for her decision and the Court of Appeal deferred to the findings of the trial judge.

The deceased mother’s property was held in trust for the estate.

[8]           Mr. Lenaghan, counsel for the appellant, argues that there are accepted “badges of credibility” and that it was an error of law for the judge to prefer evidence that did not partake of those “badges” over evidence that had them. He has, in some detail, referred us to the transcript, and has shown us that there were, in certain instances, inconsistencies in evidence that might have led the trial judge to reach different conclusions than those that she drew. He also points to various features of the case that might have caused the judge to treat Ms. Cooper’s evidence, and, to an even greater extent, Ms. Fauteux’s evidence, as being credible.

[9]           The judge recognized, in the passage that I have already quoted, that this was a case that turned on credibility. She took pains to set out contradictions in the evidence, and to explain why, despite certain contradictions, she preferred the evidence of Ms. Franklin to that of Ms. Cooper. The trial judge referred to most, if not all, of the evidence referred to in the appellant’s submissions, and explained why she did not come to the conclusions that the appellant urges upon us.

[10]        Particularly in divisive litigation between members of a family, differing accounts of events are common. It is not unusual for the testimony of witnesses at trial to differ, in some details, from their evidence at discovery. It is also not unusual for there to be minor internal inconsistencies in an individual’s evidence. In this case, the judge noted the various inconsistencies, and provided reasons why she considered some to be of importance, and others to be of no moment.

[11]         The contention that there are “badges” of credibility is, in my view, overstated. It is true that all judges will look to certain features of the evidence in weighing it. They will consider, for instance, the independence of a witness – the question of whether they have an interest in the litigation, or lack any motive to be partial. They will consider inconsistencies in the evidence of a witness, and inconsistencies between the evidence of one witness and another. They will consider the opportunity that a witness had to observe the events that they describe, and the extent to which they are able to recall the events in general and in detail. I do not disagree with Mr. Lenaghan’s observations, then, that various features of the evidence should be considered by a judge in assessing credibility. While not a term of art, I do not take issue with his labelling of the positive attributes of evidence as being “badges of credibility”.

[12]        The problem faced by the appellant is that there are no fixed rules for weighing evidence, and a judge is not required to treat “badges of credibility” as if they are guarantees of veracity. Credibility issues are the exclusive province of the trial judge. In the absence of a misapprehension of evidence, or a palpable and overriding error, this court will not interfere with a judge’s findings of fact: Housen v. Nikolaisen, 2002 SCC 33 (CanLII) at paras. 10-25.

[13]        The appellant argues that the trial judge made palpable and overriding errors. An error is “palpable” if it is clear, and “overriding” if it is so tied to the issues at trial that it can be said to have affected the outcome. In my view the judge made no palpable errors. The appellant has not pointed out any instance in which the trial judge came to a conclusion not supportable on the evidence. In the end, she has demonstrated only that the trial judge could have come to different conclusions than she did, not that the conclusions that she reached were in error.

[14]        This Court must defer to the findings of the judge where those findings were open to her on the evidence. While that is always the case, it is particularly so where, as here, the judge has meticulously explained her reasons for treating some inconsistencies in evidence as trivial and others as important.

[15]        Further, the various errors alleged by the appellant were not of an overriding nature. Even if the specific findings of fact that she challenges had been decided in her favour, it would not affect the judge’s ultimate conclusion that the agreement alleged by the appellant did not exist.

[16]        I am not persuaded that there is any basis for this Court to interfere with the judgment below, and I would dismiss the appeal.