Mario D. Faieta

The applicant, Michael McArthur, sought an order compelling the respondent, Susan Elizabeth McArthur, to pass accounts for the period she acted as their deceased mother's attorney for property.

The respondent denied acting as attorney and asserted the mother remained capable.

The court found that the respondent did act as attorney for property and was significantly involved in the mother's financial affairs, despite the mother's capacity.

Given significant concerns regarding the management of funds, including unexplained transactions and the disposition of condominium sale proceeds, the court granted leave for the applicant to apply for a passing of accounts, declared the respondent acted as attorney for a specified period, ordered the respondent to provide particulars and submit to cross-examination, and awarded costs to the applicant.

This endorsement consolidates three applications concerning the guardianship and estate administration of Teresa Opalinski and Alexander Opalinski Sr. The disputes involved allegations of elder abuse, undue influence, and breaches of fiduciary duty among family members.

The court addressed motions for dismissal of a guardianship application (rendered moot by death), a motion for access to Alexander Sr., and an application for the removal of Joanna Opalinski as estate trustee of Teresa's estate.

The court dismissed the guardianship application and the access motion, and granted the application to remove Joanna as estate trustee, directing the appointment of an independent trustee.

The applicant, Marian Elizabeth Breukelman, sought costs on a partial indemnity basis after successfully defending a motion by the respondent, Dario Antonio Miret, to remove her lawyers for an alleged conflict of interest.

The court, M.D. Faieta J., assessed the costs considering factors such as the applicant's success, the complexity and importance of the issues, the respondent's failure to make an offer to settle, and the reasonableness of the time claimed by multiple counsel.

The court found the motion complex and important, and that the respondent failed to meet his obligation to settle.

While acknowledging the use of multiple counsel, the court found the total time claimed excessive and adjusted the costs downward.

The applicant, an estate trustee, sought to set aside the respondent's Notice of Objection to the deceased's will and expedite the issuance of a Certificate of Appointment of Estate Trustee.

The respondent, the deceased's brother, had filed an objection asserting the will was "fake" and that he, as "first kin" was entitled to the estate assets, but provided no evidence and did not attend the hearing.

The court, applying Rules 75.03 and 75.06 of the Rules of Civil Procedure, ordered a hearing to determine the respondent's standing, requiring him to provide an affidavit supporting his assertion by a specific date, with the applicant having an opportunity to respond.

The applicant commenced an application challenging her late father's will and seeking dependent support.

On the eve of trial, the applicant reached a settlement with the estate trustee and brought a motion to discontinue the proceeding.

The non-settling respondent opposed the discontinuance and sought to be substituted as the plaintiff.

The court granted the motion to discontinue, finding the applicant would be prejudiced if forced to proceed to trial, while the non-settling respondent could still commence his own proceeding.

The motion for substitution was dismissed due to the respondent's unexplained delay in advancing his own claim.

The respondent brought a motion seeking a contempt declaration against the applicant for failing to comply with previous orders regarding property expenses, dismissal of the applicant's will challenge, and an order for the applicant to vacate the deceased's property and list it for sale.

The court found that contempt orders could not enforce fixed monetary obligations under Rule 60.11, thus declining the contempt finding for arrears.

It also declined to dismiss the applicant's will challenge, finding it unwarranted for financial non-compliance.

However, the court ordered the applicant to vacate the property due to his failure to pay carrying costs and directed that all outstanding arrears be deducted from his share of the estate residue.

The request to list the property for sale was dismissed.

The Estate Trustee brought an application primarily seeking occupation rent and other damages from the Respondents, who had resided in the deceased's property since his death and refused to vacate.

The court found the Respondents liable for occupation rent, utility expenses, and other damages, including costs for property remediation and lock changes.

The Respondents' claim that the deceased intended for them to remain in the property without compensation was rejected, as a prior court had already found the supporting document inauthentic.

The court dismissed the Estate Trustee's claim for interest charges due to insufficient documentation.

The applicant sought to set aside the deceased's last will on grounds of lack of testamentary capacity and undue influence, and to compel the respondent to pass accounts and be removed as estate trustee.

The court dismissed the application, finding no suspicious circumstances, testamentary capacity, or undue influence.

The court also declined to order a formal passing of accounts or the removal of the estate trustee, concluding that the applicant failed to meet the evidentiary thresholds for his claims.

The applicant sought an interim injunction to preserve the respondent mother's assets pending a guardianship application, alleging the mother lacked capacity and was subject to undue influence by a new, much younger husband.

The court dismissed the motion, finding no medical evidence to support the claim of incapacity and that the issue of undue influence was premature as the mother was alive and deemed capable.

The court emphasized that a competent person has the right to make decisions deemed foolish by others.

The defendant Mireille Jehn brought a motion seeking directions to restrain the plaintiffs from registering a caution or certificate of pending litigation (CPL) and for leave to provide 22 days' notice for refinancing instead of 30 days.

The plaintiffs cross-moved to restrain further encumbrance/refinancing and to place a CPL on the properties.

The court permitted the refinancing to proceed but restrained Mireille Jehn from drawing down funds beyond refinancing costs and $80,000 for carrying costs.

Leave was granted for the immediate 22-day notice, but future notice was extended to 60 days.

The court denied the request for a caution or CPL, finding the plaintiffs' resulting trust claim enured to the Estate, not them personally, thus they lacked a direct "interest in land."

The applicant mother was found in contempt for denying court-ordered parenting time to the respondent father for 3.5 months.

This endorsement concerns the sentencing hearing.

The court dismissed the mother's claim that she had purged her contempt, finding no mitigating factors and several aggravating factors, including a pattern of non-compliance.

The court ordered the mother to pay a suspended fine of $15,000 to the Minister of Finance, conditional on future compliance with parenting orders, and to pay the father $15,755.03 in costs on a full recovery basis due to her bad faith conduct and prior non-compliance with costs orders.

The applicant, Roman Kulyk, as Estate Trustee of Nicholas Kulyk, sought various orders to manage and sell two estate properties where the respondents (Andrew Kulyk, Jonathan Kulyk, and Elyse Kulyk) were residing or using without authorization.

The respondents, beneficiaries of a trust share, had ignored the proceedings.

The court confirmed that an executor's authority derives from the will, not probate, and granted orders for the respondents and unauthorized tenants to vacate both properties, granting leave for writs of possession.

It also ordered the respondents to provide leases, account for rents received, and directed tenants to pay rent to the applicant.

The court dismissed requests for vesting orders, possession orders, and orders for cooperation, deeming them unnecessary or difficult to enforce.

Costs of $20,000 were awarded to the applicant against the respondents, to be taken from their share of the estate.

The applicant, Jennifer Lynn James, brought a motion seeking to add Gideon Amofa as a respondent, validate service on him, and enforce a Florida temporary injunction.

The Florida injunction prohibited Gideon Amofa from contacting Carol Fern James, coming near her home or car, and froze assets held at TD Wealth in Toronto, even if jointly titled.

The court dismissed all three requests.

It found that service on Gideon Amofa was not properly effected under the Hague Service Convention, that Gideon was not a necessary party to the existing guardianship application concerning Carol's capacity, and that the Florida temporary injunction was not final or sufficiently clear for enforcement in Ontario.

The court also raised public policy concerns regarding the enforcement of an order that restricts a presumed capable person's contact with her husband and freezes her assets, especially when the relief granted exceeds what is available under Ontario law without a finding of incapacity.

The respondent husband brought a motion to disqualify the applicant wife's counsel (Tanya Road) and her sister's counsel (Rahul Shastri) in family law and related civil proceedings.

The motion was based on the fact that the respondent's former legal assistant, Olivia Valente, had subsequently been employed by Ms. Road.

The court applied a flexible, case-specific approach to the MacDonald Estate test for non-legal staff, finding that Ms. Valente's role at the former firm was purely administrative and that effective ethical screens were implemented at Ms. Road's firm.

The court concluded that a reasonably informed person would be satisfied that no confidential information would be used to the prejudice of the respondent and dismissed the motion.

Maria Sophia Furtado, a tenant and caregiver to the deceased Endel Lindaja, sought an ownership interest in his condominium based on an alleged promise, unjust enrichment, or dependant support under the Succession Law Reform Act.

The Estate Trustee, Tonu Peep Tosine, sought a declaration of ownership, an order for Furtado to vacate, and occupation rent.

The court dismissed Furtado's claims for dependant support and unjust enrichment, finding she was not a "dependant" and there was a juristic reason for any enrichment (free room and board for services).

The court declared the condominium wholly owned by the Estate.

However, the court also dismissed the Estate Trustee's claims for Furtado to vacate and pay occupation rent, finding she remained a tenant and any termination or rent claim must comply with the Residential Tenancies Act.

The court provided clarification regarding the operative priorities of payments from the respondent's frozen Canaccord accounts, as requested by Justice Diamond.

The endorsement clarified that a January 5, 2024 order, which required the liquidation of assets up to $7,975,007.60 to be paid to the applicant's barristers in trust, takes precedence.

Consequently, no further funds are to be paid out of these specific Canaccord accounts for the children's tuition or any other reason under earlier orders (October 5, 2021, or November 12, 2021) until the specified amount has been fully paid to the barristers.

The court also dismissed the respondent's procedural objections regarding the motion.

The applicant, Rowland Hill, acting as Estate Trustee for the Estate of Samuel Jefferson Hill, sought his own removal due to severe health issues caused by the protracted administration and requested directions concerning his informal accounting.

The respondent, Bryan Jefferson Hill, opposed the removal without a formal passing of accounts and the appointment of a replacement trustee.

The court acknowledged the applicant's health concerns and the difficulties in administering the complex estate with limited funds.

While not immediately ordering a formal passing of accounts, the court adjourned the application, intending to permit the applicant's resignation effective September 30, 2024, and directed the applicant to provide an informal accounting within 90 days.

The court also instructed the parties and beneficiaries to actively seek a replacement trustee and explore practical solutions like a deed of arrangement.

This application sought the court's opinion and direction on the interpretation of a deceased's handwritten will.

The primary issues were whether a residual gift to the testator's sons was conditional on the testator and his wife dying during a specific trip, and the effect of a subsequent clause regarding the distribution of cash assets and memorabilia.

The court applied the "armchair rule" to ascertain the testator's subjective intention, concluding that the residual gift was not conditional and that the subsequent clause was void for repugnancy as the estate had already been fully disposed of.

The applicant, Lin Zhang, brought a motion for leave to amend her Application in an estate matter.

The proposed amendments included seeking the removal of Shu De Rong as Estate Trustee and her own appointment, an election for equalization of net family property under the Family Law Act (FLA), dependent's relief under the Succession Law Reform Act (SLRA), and an accounting, preservation, and restitution related to foreign estate assets.

The court dismissed the motion, finding that the requests for executor removal and foreign asset claims suffered from presumed prejudice due to lengthy delays and lacked prima facie merit or sufficient evidentiary basis.

The court also dismissed the application to extend the FLA limitation period, noting no apparent grounds for relief or good faith delay, and found the dependent's relief amendment unnecessary as it was already an alternative claim.

The applicant, a minor represented by the Children's Lawyer, brought a motion to compel the respondent, the deceased's widow and estate trustee, to pass her accounts.

The respondent had been appointed estate trustee without a will in February 2022 but had failed to provide any information or accounting despite multiple requests from the Children's Lawyer since December 2022.

The estate was valued at over $650,000, with the minor's interest being approximately $225,000.

The court found that the estate trustee had a duty to account and that the applicant, as a financially interested person, was entitled to compel the accounts under the Estates Act and Rules of Civil Procedure.

The court granted the motion, ordering the respondent to file accounts and an application to pass accounts within 45 days, provide her email address, and pay the Children's Lawyer's fixed costs of $5,000 personally.

A case conference was also scheduled.