COURT OF APPEAL FOR ONTARIO DATE: 20241220 DOCKET: COA-23-CV-1121

Zarnett, Coroza and Favreau JJ.A.

BETWEEN

Bobby Giann and Vasiliki (Bessie) Giannopoulos Applicants (Appellants)

and

Nick Giannopoulos, Panagiota Papastefanou (A.K.A. Panayiota Papastefanou and Yiota Papastefanou), Domniki Sakellaris, Konstantina Sakellaris, a Minor, By Her Litigation Guardian, The Children’s Lawyer, Fotios Sakellaris, a Minor, By His Litigation Guardian, The Children's Lawyer, and All Unborn and Unascertained Persons Who May Have an Interest in The Estate of Fotios Giannopoulos, By Their Representative The Children’s Lawyer Respondents (Respondents)

Counsel: Melanie Yach and Patrick Harris, for the appellants Benjamin D. Arkin and Corinne Doroszkiewicz, for the respondent Nick Giannopoulos Alexander Procope, for the respondent Panagiota Papastefanou Sandeep Chahal, for the respondent Domniki Sakellaris Kelly Charlebois, for the respondent Office of the Children's Lawyer

Heard: April 25, 2024

On appeal from the judgment of Justice Frederick L. Myers of the Superior Court of Justice, dated September 26, 2023.

REASONS FOR DECISION

Overview

[1] Fotios Giannopoulos died on October 24, 2022 leaving four children: Nick Giannopoulos, Bobby Giann, Bessie Giannopoulos, and Domniki Sakellaris. For ease of reference, we refer to the children by their first names.

[2] At the time of his death, Mr. Giannopoulos had two assets of substantial value: a home on Grandview Ave in Toronto and his dry-cleaning business and premises on Danforth Ave in Toronto (“the Danforth property”). Prior to his death, on April 1, 2021, Mr. Giannopoulos executed a new will, replacing a previous will that he had made in 2016. The 2016 will had provided that both assets were to be divided equally amongst the four children.

[3] However, in the 2021 will, while Mr. Giannopoulos left his home to be divided equally among Bobby, Bessie, Nick and the children of Domniki, the business assets were now left only to Nick. Mr. Giannopoulos also named a family friend, Panagiota Papastefanou (“Yiota”), as an alternate beneficiary of his business assets if Nick did not survive his death. On April 9, 2021, Mr. Giannopoulos executed a transfer of the Danforth property from his name alone to both him and Nick jointly with a right of survivorship.

[4] Bobby and Bessie (the “appellants”) applied for a declaration that their father lacked capacity or was unduly influenced by Nick and Yiota (the “respondents”) as of September 1, 2018, including when he made his 2021 will as well as certain inter vivos transfers of property. They sought to have Mr. Giannopoulos’ 2016 will recognized as his last valid will. The appellants then brought a motion for directions to permit them to access Mr. Giannopoulos’ financial records, his lawyers’ files, and his medical records under Rule 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[5] To succeed, a moving party under r. 75.06 must “adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded”: Neuberger v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 89, leave to appeal refused, [2016] S.C.C.A. No. 207. Put another way, the appellants, as the party disputing the validity of the 2021 will, had the burden of adducing evidence that called into question the validity of the will and if they were unable to do so, or the respondents were able to answer the challenge, the motion should have been dismissed. But, if the appellants displaced their burden, they could proceed to challenge the validity of the will with the benefit of the procedural orders that they sought: Neuberger, at para. 89.

[6] Applying the principles set out in this court’s decisions in Neuberger and Johnson v. Johnson, 2022 ONCA 682, 81 E.T.R. (4th) 7, leave to appeal refused, [2022] S.C.C.A. No. 444, the application judge recognized his role in analyzing the evidence in this “preliminary vetting process”. He explained that he was not required to assess the truth of the evidence, rather, he was only to assess whether the evidence, if accepted, would support the claim advanced. He described his role as follows:

I am not considering if the applicants’ evidence is true. Rather, I am looking at whether the evidence that they adduce actually puts in issue the capacity of the deceased or is prima facie evidence of undue influence and, if so, whether the evidence of the respondents is a complete answer. [Emphasis added.]

[7] The application judge carefully reviewed and engaged in a limited weighing of the parties’ evidence. Ultimately, the application judge found that the appellants had not satisfied their evidentiary burden in demonstrating that their father’s capacity was at issue or that his decision-making may have been unduly influenced during the relevant time. Accordingly, the application judge dismissed the motion and application for directions.

[8] The appellants raise four issues on appeal [1]:

• First, the appellants argue that the application judge made palpable and overriding errors relating to the evidence about Mr. Giannopoulos’ testamentary capacity.
• Second, the appellants submit that the application judge made palpable and overriding errors related to the evidence that undue influence was exercised over Mr. Giannopoulos.
• Third, the appellants contend that the application judge applied an uneven standard in his treatment of the evidence.
• Fourth, the appellants submit that the application judge failed to provide sufficient reasons for dismissing the claim to set aside the Danforth property transfer.

[9] The appellants do not dispute that the application judge correctly set out the appropriate test and principles on a r. 75.06 motion. Their overarching submission is that the application judge erred in applying the minimal evidentiary threshold set out by this court in Neuberger.

[10] For the reasons that follow, the appeal is dismissed. We see no error in the application judge’s analysis nor his findings. It was open to him to find that the evidence of the appellants was not sufficient to call into question the validity of the 2021 will or the transfer of the Danforth property and that, in any event, the respondents had successfully answered any challenge brought forward by the appellants.

Evidentiary Background

[11] Mr. Giannopoulos was predeceased by his wife Iliana, who died in 2016. His wife’s passing took a significant toll on Mr. Giannopoulos in terms of his mental wellbeing: he became depressed and unmotivated to continue running his dry-cleaning business.

[12] Much, if not all, of Mr. Giannopoulos’ care fell onto the shoulders of his son Nick, who lived in Toronto and worked at the dry-cleaning business. Bobby and Domniki were estranged from Mr. Giannopoulos. Bessie, who maintained a positive relationship with her father, resided in Florida with her family.

[13] Mr. Giannopoulos was also cared for by a family friend, Yiota. Having initially met Mr. Giannopoulos and Iliana at church, Yiota supported Mr. Giannopoulos through his grief after his wife’s passing by visiting with him and bringing him home-cooked meals. Yiota, Mr. Giannopoulos, and Nick continued to grow close over the years, celebrating holidays and family milestones together. During the COVID-19 pandemic, Yiota moved into Mr. Giannopoulos’ home to assist with his care to allow Mr. Giannopoulos to remain at his home instead of going to an assisted living facility.

[14] At the end of 2018, Mr. Giannopoulos retired and went to Florida to spend time with Bessie and her family. His health declined while in Florida and he suffered two falls and a small stroke. The falls were the result of a potassium shortage which was treated with medication. He returned to Toronto in 2019 and received treatment from Sunnybrook Hospital. A geriatric assessment note from August 2019 recorded that it was possible he had “an element of Alzheimer’s dementia” and possible major depressive disorder. He enrolled in a day program at the hospital and by January 2021 his mental state improved significantly.

[15] As noted above, in April 2021, Mr. Giannopoulos made a new will. The 2021 will replaced his existing will from 2016. In the 2016 will, Mr. Giannopoulos’ estate – consisting largely of his home and dry-cleaning business - was to be divided in equal shares among his four children. [2]

[16] In his 2021 will, Mr. Giannopoulos left his dry-cleaning business solely to his son Nick. He named Yiota as an alternate beneficiary of his business assets if Nick did not survive his death. He changed the gift of his house so that the share that would have gone to Domniki would go directly to her children. He also executed a transfer of the Danforth property making Nick a joint owner. He left a contemporaneous note with his lawyer explaining his changes [3]:

I want to give my grandchildren, Kostantina and Foti Sakellari, Domniki’s share because I am afraid that [her husband] and Domniki will squander my property. I am worried about their [translator’s note: additions or intentions]. Domniki has written me off as her father. I do not want the property that I worked hard with [my spouse] to acquire and acquired to get lost.

I decided to leave the entirety of the property at 327 Danforth Avenue to my son, Niko Giannopoulo, because he stood by me and offered me everything. He was the only one who showed interest in me, and he deserves so much. I do not consider what I am giving him a significant amount. I wish I could give him more.

Analysis

(i) Standard of Review

[17] As stated above, the test on a r. 75.06 motion requires the appellants to meet the minimal evidentiary threshold articulated by this court in Neuberger in order to justify subjecting the estate to the expense of documentary discovery: Johnson, at para. 17. Determining whether this test is met involves a careful review and limited weighing of the parties’ evidence. The application judge’s assessment of the evidence and factual findings are owed considerable appellate deference, absent an error in principle: Johnson, at paras. 15, 20; Bitaxis Estate v. Bitaxis, 2023 ONCA 66, at para. 5, 7, leave to appeal refused, [2023] S.C.C.A. No. 147.

(ii) Issue 1: No Palpable and Overriding Errors in Findings About Capacity

[18] The appellants argue that the application judge incorrectly found that there was no evidence that the deceased lacked capacity when he executed the 2021 will.

[19] The appellants submit that the evidentiary record before the application judge showed that Mr. Giannopoulos was in a downward cognitive spiral and the application judge conflated improvements in Mr. Giannopoulos’ mood with an improvement in his cognition.

[20] We are not persuaded by the appellants’ submissions.

[21] The application judge found that the record did not support a “downward spiral of cognition”; rather, he found there were two discrete episodes of ill health. The first occurred in 2019 after he suffered the small stroke and potassium deficiency in Florida. He sought treatment in Toronto and the medical records showed that by January 2021 his mental state had improved significantly. The second was in mid-2021 when he was admitted to the hospital with COVID-19 and a UTI. At this time, he suffered a severe setback and medical records disclose that he suffered delirium. All the parties agree that after that event, Mr. Giannopoulos’s capacity was in serious question.

[22] The underlying application concerns Mr. Giannopoulos’ capacity at the time he executed his new will in April 2021. The application judge determined that the two discrete events discussed above do not bear on his capacity at the relevant time. The medical records from January 2021, just a few months before the execution of the 2021 will, indicate that his mental state had improved significantly and that he was “attentive” with “no episodes of confusion”.

[23] There is no basis to interfere with the application judge’s conclusion that there was no evidence to demonstrate that Mr. Giannopoulos lacked capacity at the time he executed his 2021 will. While there was evidence that “support[ed] a conclusion that [Mr. Giannopoulos] suffered age-appropriate decline and symptoms of dementia”, more is required to bring his capacity into issue: Johnson, at para. 13. The application judge found that the evidence adduced by the appellants was “cherry-picked” to falsely portray chronic incapacity. It was open for him to reach this conclusion on the record before him.

[24] We do not agree with the appellants’ submission that the application judge conflated evidence of Mr. Giannopoulos’ improved mood with evidence of improved cognition; rather, he concluded that the evidence as a whole did not show sufficient evidence of testamentary incapacity at the time Mr. Giannopoulos executed the will and the Danforth property transfer. The application judge found that there were credibility and reliability concerns with the evidence adduced by the appellants. He found that the evidence regarding the two discrete events of poor health at different time periods did not bear on Mr. Giannopoulos’ capacity at the time he executed his 2021 will. As a result of these findings, the application judge concluded that the appellants failed to meet the requisite evidentiary threshold. Respectfully, we see no palpable and overriding error in the application judge’s comprehensive reasons on this issue.

(iii) Issue 2: No Palpable and Overriding Errors in Findings About Undue Influence

[25] The appellants also argue that the application judge erred in his consideration of the evidence relating to the allegation of undue influence. They submit that Mr. Giannopoulos was isolated and dependent on the respondents, bereaved by the loss of his wife, and embroiled in family conflict regarding debts. They point to the fact that the will benefits the respondents exclusively, and the respondents led no evidence respecting its execution.

[26] We do not accept these submissions. The arguments made by the appellants were the same ones advanced on the motion and rejected by the application judge. While the motion was not a hearing on the merits, the appellants still bore the burden of adducing a minimal evidentiary basis to support an allegation of undue influence. The application judge found that the appellants had presented nothing more than “bald assertions of wrongdoing.” We see no basis to interfere with the application judge’s findings.

[27] To the extent that the appellants did adduce supporting evidence, the application judge found they were answered fully and completely by the respondents. The appellants did not cross-examine or challenge the respondents’ evidence. In particular, the application judge noted that:

• In a previous WhatsApp message sent to Nick in 2017, Bessie recognized that it was only Nick who “stopped his life to take over the store” and he was the only child “in constant communication and in a true relationship with Mr. Giannopoulos”. [4]
• Bobby conceded that he became estranged from Mr. Giannopoulos in 1998.
• Bobby conceded that after their mother died, Nick bore the burden of caring for Mr. Giannopoulos and that the additional support that Mr. Giannopoulos required “fell on Nick’s shoulders”.
• The appellants did not deny the details of Yiota’s efforts to act as a caregiver for Mr. Giannopoulos.
• Mr. Giannopoulos’ gerontologist’s notes repeatedly refer to Mr. Giannopoulos’ expressions of gratitude for the help he received from Nick and Yiota. The gerontologist did not note any concerns of abuse.

(iv) Issue 3: The Application Judge was Not Uneven in his Treatment of the Evidence

[28] In a related submission, the appellants argue that the application judge unfairly allowed criticisms of the appellants’ motion counsel to impact his assessment of the appellants’ credibility that resulted in uneven scrutiny being applied to their evidence. The appellants submit that had the same standard been applied to all parties, the application judge could not have concluded that the respondents had fully answered the appellants’ case.

[29] We see no merit to this argument. The application judge recognized that the appellants “can have little transparency into an abusive relationship with a gatekeeping attendant covering his or her track”. He then closely looked at the allegations made by the appellants against the respondents and concluded that they were not supported by the facts that they presented. The application judge concluded:

I do not accept the bald assertions of wrongdoing made by the applicants. They are not supported by the facts that they actually adduced. To the extent that the applicants tried to raise suspicions, they were answered fully and completely by the respondents. The applicants’ failure to cross-examine, their objectification of “that woman”, their use of narrative devices like aliases or feigned surprise, their failure to answer the respondents’ full evidentiary responses, the applicants’ failure to make full disclosure, Bessie Giannopoulos’s failure to disclose her own inconsistent statements, her failure to point out the Florida doctors’ diagnosis of low potassium, all leave me satisfied that the applicants’ allegations are just that – incredible allegations with no substance.

[30] It was open to the application judge to accept one party’s evidence and reject the other party’s evidence. Contrary to the appellants’ submission, the application judge did not allow his criticism of the “lawyer’s spin” in the presentation of the appellants’ case to cloud his credibility analysis and assessment of the evidence. He focused his analysis on the actual evidence sworn to and concluded that “nothing in the actual facts is at all indicative of any wrongdoing.”

[31] As previously stated, it was the appellants’ burden to adduce or point to some evidence which, if accepted, would call into question the validity of the 2021 will: Neuberger, at para. 89. The respondents were not required to adduce any particular evidence. In the absence of palpable and overriding error, there is no basis to interfere with the application judge’s assessment of the evidence.

(v) Issue 4: The Reasons Dismissing the Challenge to the Danforth Transfer are Sufficient

[32] Finally, the appellants argue that the application judge’s reasons do not permit meaningful appellate review of the dismissal of the challenge to the Danforth property transfer.

[33] The overarching question is whether the reasons, read in light of the parties’ positions and the record, functionally permit meaningful appellate review.

[34] In our review, the reasons are sufficient, and we agree with the respondents that the validity of the 2021 will and the validity of the Danforth property are one and the same issue. The Danforth property transfer was executed at about the same time as the 2021 will and was part of Mr. Giannopoulos’ estate plan. The application judge did not need to conduct a separate analysis. His reasons for rejecting concerns about capacity and undue influence concerning the 2021 will were sufficient to dispose of those same issues relating to the Danforth property transfer.

Disposition

[35] For these reasons, the appeal is dismissed. Costs are fixed in the agreed upon amount of $37,050.24 to the respondent Nick Giannopoulos and $3,851.04 to the respondent Panagiota Papastefanou. Costs are also fixed in the agreed upon amount of $8,028.65 to the respondent the Office of the Children’s Lawyer, payable by the estate. [5]

“B. Zarnett J.A.”

“S. Coroza J.A.”

“L. Favreau J.A.”

Footnotes

[1] In their factum and during the hearing of the appeal, counsel for the appellants advised that they were withdrawing the ground of appeal alleging ineffective assistance of counsel.

[2] Domniki’s share was to be held in trust with the annual income paid to her, and capital interest was to be held for her minor children on her death.

[3] The note was originally written in Greek.

[4] The application judge noted that Bessie did not include this message in her own evidence.

[5] The Office of the Children’s Lawyer only participated in this appeal to address the issue of costs awarded to it by the application judge in the event that the appeal is granted.