Court File and Parties
DIVISIONAL COURT FILE NO.: 553/14
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
IN THE MATTER OF THE ESTATE OF ESTHER GREEN
RE: DR. GERALD GREEN Moving Party
AND: SYLVIA GREEN Responding Party
BEFORE: Lederer J.: (Orally)
COUNSEL: Moving Party appeared in person Responding Party appeared in person
HEARD at Toronto: June 18, 2015
ENDORSEMENT
[1]
Background
Esther Green died on April 24, 2012.
2She had two children. They are the two parties to this motion. They do not get along.
3Her daughter, Sylvia Green, is named as the Estate Trustee of her Will. Sylvia Green is also the residuary beneficiary under the will.
4On January 23, 2013, her son, Gerald Green, filed a Notice of Appearance saying he was objecting to the issuance of a Certificate of Appointment of the Estate Trustee. It was and remains his position that the deceased lacked testamentary and mental capacity at the time the Will was made.
5In a Notice of Application for Directions, dated January 23, 2013, Gerald Green asked for release of the medical records of the deceased, the requirement that Sylvia Green pass her accounts as well as an assortment of things directed to the payment of money and the possession of assets of the estate.
6These requests came on before Mr. Justice Whitaker on October 28, 2013. He ordered the medical records be produced and the accounts be passed. He was “not persuaded that any of the other relief should be granted at this point”.
7Sylvia Green was unhappy with this result. She brought a motion ostensibly asking for a “reconsideration” of the ruling that had been made. Eventually, this motion was heard by Madam Justice Greer on June 26, 2014. Gerald Green was not in attendance. Madam Justice Greer proceeded on the basis that Sylvia Green wished to have the entire matter determined (see: Green v. Green 2014 ONSC 3957, at para. 5). She proceeded on the understanding that Gerald Green had been served.
8Madam Justice Greer dismissed the application of Gerald Green and ordered, as requested by Sylvia Green, that probate of the Will and the certificate of an Estate Trustee with a Will be issued.
9Gerald Green seeks to appeal that order. The appeal is authorized by the Estates Act, R.S.O. 1990 c. E. 21 s. 10:
Any party or person taking part in a proceeding under this Act may appeal to the Divisional Court from an order, determination or judgment of the Superior Court of Justice if the value of the property affected by such order, determination or judgment exceeds $200.
10As a result, pursuant to 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, the appeal is to the Divisional Court:
An appeal lies to the Court of Appeal from,
(b) a final order of a judge of the Superior Court of Justice, except an order referred to in clause 19(1) (a) or an order from which an appeal lies to the Divisional Court under another Act.
[11]
The Issue
It is well past the time by which such an appeal should have been commenced. He asks for an order extending the time period. The basis for the appeal and the request for the extension is that Gerald Green says he was unaware of the motion and the date. He was not served and did not have notice. Sylvia Green says this is not so. The question of whether Gerald Green had notice was the issue before me.
12The basis for the appeal and the request for the extension is that Gerald Green says that he was unaware of the motion and the date. He was not served and did not have notice. Sylvia Green says this is not so. The question of whether Gerald Green had notice was the issue before me.
[13]
Analysis
Sylvia Green says that, on December 17, 2013, she served a Notice of Motion. It indicated that the date selected for the hearing was March 17, 2014.
14Gerald Green was unavailable and asked that the date be changed. At that time, he wished that matter to come on on June 25, 2014. Sylvia green delivered a form allowing for the adjournment but asking for the dates the parties were available. Gerald Green crossed out each of the three selected dates (June 25, 2014, June 26, 2014 and June 27, 2014). He was to be away in California. He replaced the three dates with three others (July 22, 2014, July 23, 2014 and July 24, 2014).
15June 25, 2014, the date Sylvia Green understood her brother preferred, was unavailable and, without further consultation, she selected the succeeding day (June 26, 2014). Sylvia Green attempted a further service on May 31, 2014. It was the same Notice of Motion but the original date (March 17, 2014) had been struck out and June 26, 2014 added. The Notice of Motion was left with a representative of UPS at an office where Gerald Green maintained a box.
16Gerald Green submitted that this was not served. He had advised his sister that he would be away for an extended period in California. He had given her an address there. He says that she “chose” the date without his agreement and that he was unaware of when the matter was to proceed.
17The problem is that Sylvia Green has e-mails that her brother delivered to the court office on June 25, 2014, the day before the hearing of the motion. He asked:
Please inform me under which Rule the ‘motion to reconsider’ will proceed?
Please forward this email thread to the judicial official tomorrow.
18The court responded:
The court does not send emails to judges for a review for hearing any materials for matters are to be filed in accordance with the rules.
19On being confronted with these e-mails. Gerald Green first said that he didn’t send them and was unaware of them. After a few moments, he suggested he could have sent them.
20It’s difficult to see how these documents could have been delivered in the absence of knowledge of when the matter was to proceed. In the circumstances, I find that Gerald Green had notice and was aware of the date.
[21]
Disposition
The motion is dismissed. The order of Madam Justice Greer stands.
22No costs.
LEDERER J.
Date: 20150619