COURT FILE NO.: CV-15-2803-ES DATE: 20160415
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nicolina Squillace and Maria Ciampini, Applicants v. Angelo Sampogna, Antoniette Louie and Francine Catherine Sampogna, Respondents
BEFORE: The Honourable Justice W.M. Le May
COUNSEL: John Lo Faso, for the Applicants Angelo Sampogna and Antoniette Louie, Self-Represented
ENDORSEMENT
[1] This is a motion by the Applicants, two of the Estate’s Trustees for directions under Rule 75.06 of the Rules of Civil Procedure. The Estate of the late Maria Christina Sampogna (“Maria Christina”) is not large, and was to be equally divided between her five children. All of the children were also named as Executors under the will.
[2] Based on the materials that were filed before me, and the submissions of the parties, I am of the view that I should provide the parties with directions that will result in the winding up of the estate and the distribution of all of its assets. I am also of the view that, as part of those directions, I should remain seized to address any outstanding issues. There are no issues significant enough to direct a trial of an issue in this case. The directions that I am providing will also resolve the accounting and expense issues between the parties.
Background
[3] I start by noting that this case involves an unfortunate dispute between siblings over the administration of their mother’s Estate. The intervention of the Court to resolve most of these issues is also unfortunate.
a) The Family
[4] The deceased in this case is Maria Christina Sampogna, and it is her Estate that is being wound up by this Order. She passed away on December 5th, 2011. At the time of her passing, she owned a home with Giuseppe Giovanni Miceli (“Mr. Miceli”).
[5] At the time of her passing, the home was the subject of a cohabitation agreement. Mr. Miceli and Maria Christina had cohabited for more than twenty (20) years.
[6] There were five children, Angelo Sampogna (“Angelo”), Antoniette Louie (“Antoniette”), Francine Sampogna (“Francine”), Maria Ciampini (“Maria”) and Nicolina Squillace (“Nicolina”). Under the terms of the will, all five children were equal beneficiaries, and all five children were named as executors.
[7] Problems started between Angelo and Antoniette on one side, and Maria and Nicolina on the other side at the end of February, 2012, when the parties were to remove personal effects from the home that Maria Christina owned with Mr. Miceli.
[8] From those problems, litigation has flowed. Angelo and Antoniette commenced an application, which was dismissed against Mr. Miceli, and abandoned against Maria and Nicolina. Subsequently, this Application was brought by Maria and Nicolina for directions.
b) The Previous Proceedings
[9] A previous Application (Court File No. CV-13-3854-00) was brought by Angelo and Antoniette in 2013. A significant part of that Application was for various orders relating to the Estate, including the immediate sale of the home that Maria Christina had an interest in. This motion was dismissed as against Mr. Miceli, with costs ordered payable to him in the sum of $20,000.00, as the motion was premature. I understand that this amount has not been paid.
[10] The motion against Nicolina and Maria was dismissed by Edwards J. on November 26th, 2014, and he ordered Angelo and Antoniette to pay the sum of $57,000.00 in costs from their portion of the Estate. I understand that this amount has been paid out of an interim distribution from the Estate.
[11] Shortly before the motion on November 26th, 2014, Francine had her counsel attempt to reach an agreement with the other four siblings. An agreement was reached, Francine was relieved of her responsibilities as an Estate Trustee, and was paid out a particular amount of money representing approximately her portion of the Estate.
[12] However, the parties did not sign the paperwork necessary to enforce this agreement. As a result, Francine was required to bring a further motion before Donohue J. in August of 2015. At this time, Francine was awarded costs payable by each of the other four siblings equally in the amount of $5,000.00 in total or $1,250.00 for each sibling, again from the proceeds of the Estate. I understand that the portion of the costs owing by Antoniette and Angelo have not been paid.
[13] Further, the Applicants in this case (Nicolina and Maria) were also awarded costs payable by the Respondents (Angelo and Antoniette) in the sum of $3,000.00 in total, again payable out of the Estate. Again, I understand that these amounts have not been paid.
[14] Finally, as part of the previous action, Angelo and Antoniette had retained a Mr. Edward Burlew as counsel. Mr. Burlew is no longer involved in the file, but Angelo and Antoniette have signed an irrevocable direction to have him paid his costs in the sum of $25,000.00 out of the proceeds from the Estate. $3,000.00 was paid to Mr. Burlew at the same time as the amounts in paragraph 10 were paid. The remaining $22,000.00 remains to be paid.
[15] Once the motion before Edwards J. finished, this Application was brought by the Applicants.
c) The Matter Before Me
[16] This Application was originally returnable on July 15th, 2015 on a regular motions date. However, it was adjourned to a long motion date on February 10th, 2016.
[17] This Application seeks the following relief:
a) An Order that the Estate pay the amount of $2,952.00 to Mr. Miceli, representing monies that are allegedly owed to Mr. Miceli. b) That the Estate contents stored at “Key Storage” be given to Angelo and Antoniette, and that they pay the costs of the storage, or that these contents be disposed of at Angelo and Antoniette’s expense. c) That the Estate Jewellery be given to Antoniette’s daughter, Christina Louie. d) That Angelo and Antoniette pay the sum of $20,000.00 plus interest to Mr. Miceli out of their share of the Estate as a result of the Order of Edwards J. on June 18th, 2014. e) That Angelo and Antoniette pay the sum of $22,000.00 to Edward Burlew, their former lawyer, as a result of their irrevocable direction to do same. f) That Angelo and Antoniette repay the sum of $1,337.25 to the Estate, representing the cash they retrieved from Maria Christina’s home. g) That Angelo and Antoniette repay the sum of $15,087.66 on account of Estate expenses that were unnecessarily incurred. h) That Angelo and Antoniette deliver copies of the Income Tax Returns prepared and filed on behalf of Maria Christina or the Estate. i) A declaration that the formal passing of accounts may be dispensed with, and an order permitting the distribution of the remaining funds in the Estate to the remaining beneficiaries. j) An Order releasing and discharging Maria and Nicolina as Executors of the Estate once the distribution is complete. k) Costs of this motion.
[18] The Application also sought other relief. However, it has all been addressed by other proceedings. The relief that Nicolina and Maria are seeking in this case is set out in their motion record dated November 26th, 2015. Antoniette and Angelo have also requested some relief in their responding materials. I will address the relief that they are seeking as I review the topics set out above.
[19] The Application came before me on February 10th, 2016. At that time, Nicolina and Maria also brought a motion to strike Angelo and Antoniette’s joint Affidavit. Angelo and Antoniette asked for an adjournment of the hearing so that they could retain counsel. Had they retained a new lawyer, this would have been their third counsel on this matter.
[20] Nicolina and Maria sought to strike Angelo and Antoniette’s Affidavit on the basis that they had not attended for cross-examination on this Affidavit. On October 19th, 2015, Mr. Lo Faso advised Antoniette and Angelo that he wished to cross-examine them on their Affidavit sworn in July of 2015. Both Angelo and Antoniette stated that they would be willing to be cross-examined on their Affidavits.
[21] However, the parties were not able to agree on dates, and Mr. Lo Faso set December 1st, 2015 for the examinations. Neither Antoniette nor Angelo attended. Both were prepared to be examined in January of 2016.
[22] In response to his argument on this point, I directed Mr. Lo Faso to two relevant cases, being Duca Community Credit Union v. 1335262 Ontario Inc. ( (2000) 97 A.C.W.S. (3d) 855 ) and Polish Alliance of Canada v. Polish Association of Toronto Ltd ( 2011 ONSC 1851 ). In particular, I directed Mr. Lo Faso’s attention to paragraph 42 of the Polish Alliance decision.
[23] After argument, I advised the parties that I would not be striking the Respondents’ Affidavit for a number of reasons. In summary, however, my reasons for this decision are as follows:
a) As noted at paragraph 42 of the Polish Alliance decision, striking an Affidavit is a remedy that should only be granted in unusual circumstances. This principle is applicable in this case because it is important for the Court to have all of the relevant evidence before it. b) In this case, Angelo and Antoniette were not attempting to avoid cross-examination on their Affidavits. They just wanted to control the scheduling of their cross-examinations. As a result, it would be unjust to impose such a draconian remedy on them. c) Substantial amounts of the material in this case were not served by Nicolina and Maria until the end of November, 2015. As a result, there was no principled basis for insisting on an examination in December. d) There was some confusion in the communications between Mr. Lo Faso and Angelo and Antoniette.
[24] This brings me to the adjournment request. Angelo and Antoniette were seeking to adjourn this matter to retain and instruct counsel. Given the value of the estate, the fact that this long motion date had been booked seven (7) months previously, and the fact that this matter had been outstanding for some considerable time, I was only prepared to grant them an adjournment on terms, as follows:
a) They would pay the costs thrown away of the appearance on February 10th, 2016 in the sum of $5,000.00 inclusive of HST and disbursements. b) The storage of items from the home would end within a month, and Angelo and Antoniette would make an appointment in Court with Mr. Lo Faso to attend and inspect the contents. c) Counsel was to be retained within sixty (60) days d) Neither party could add anything other than a factum to the record before the Court.
[25] Antoniette and Angelo rejected these terms and asked that I adjudicate the merits of the case. I will now outline my decision on each of the individual issues set out above.
The Individual Issues
[26] Before addressing each issue individually, I note that Mr. Lo Faso has made a number of concessions on what his clients are prepared to insist on in this case. I have adopted those concessions in my Reasons on each issue. In addition, Angelo and Antoniette have made a few concessions as well. I have also adopted these concessions into my Reasons.
a) The Payment to Mr. Miceli
[27] Mr. Miceli was Maria Christina’s common law spouse for approximately twenty (20) years. They signed a cohabitation agreement in 1990, that was revised a couple of times afterwards. It provided that household expenses were to be shared equally, but that the ownership of the house was split unevenly, according to who had paid for it.
[28] Part of the cohabitation agreement was that Mr. Miceli would be able to continue living in the house for two years after Maria Christina’s death. Angelo and Antoniette brought an application in this Estate, including a request to have the house sold, prior to the two year period passing.
[29] As a result, the house was sold and vacated by April of 2014. There were some outstanding expenses that Mr. Miceli sought reimbursement for. Nicolina and Maria are of the view that the amount owing to Mr. Miceli is $2,952.00. This is supported by the letter from Mr. Lo Faso dated October 14th, 2014, as well as a letter from Mr. Miceli’s counsel earlier in the litigation. It also appears to be supported by the actual statements filed by Nicolina and Maria.
[30] Angelo and Antoniette argue that Mr. Miceli is only entitled to $669.76. This is based on a statement that Antoinette prepared and provided to the parties. However, when I review that statement, I do not see how it relates to the expenses claimed or justifies the reduction in the amount paid to Mr. Miceli.
[31] In the circumstances, I am directing the estate to pay Mr. Miceli the sum of $2,952.00 on account of expenses relating to the joint property. This amount is clearly explained and justified in the correspondence from Mr. Blair and from Mr. Lo Faso. The position of Antoniette and Angelo is not clearly explained, and I cannot see the basis for it.
b) The House Contents
[32] Currently, the contents of Maria Christina’s house are in a storage locker, and the parties have not been able to agree as to what should be done with them. The questions that I must resolve are:
a) what should be done with the contents of the storage locker? b) who should pay the costs of the storage locker?
[33] Starting with what should be done with the contents, some history is necessary. Nicolina and Maria are of the view that the contents had little, if any, value. Angelo and Antoniette wanted to have the contents auctioned off.
[34] As a result of disagreements between the parties, the contents were moved to a storage locker shortly after the house was sold, in April of 2014. Since that time, Nicolina and Maria have offered to let Angelo and Antoniette attend at the storage locker and inspect the contents.
[35] Angelo and Antoniette allege that Nicolina and Maria did not provide them with the key to the storage locker. I reject this submission for three reasons as follows:
a) There is correspondence from both Mr. Donnelly (a previous lawyer) on June 11th, 2012 and from Mr. Lo Faso on both May 30th, 2014 and August 22nd, 2014 inviting Angelo and Antoniette to make arrangements to obtain the key and/or the possessions in the storage locker. b) If Angelo and Antoniette had wanted to obtain the key, they could have brought a motion to obtain this relief as soon as this application was filed. c) In the Application filed by Nicolina and Maria in June of 2014, they specifically requested that the contents be transferred to Angelo and Antoniette. It is unlikely that they would have put up barriers to a request to transfer this property.
[36] From the materials it is clear that Francine has no further interest in (or right to) the contents of the home. It is equally clear that Nicolina and Maria have no further desire to have them. As a result, I am making the following Orders with respect to the contents:
a) Nicolina and Maria are to arrange to deliver the keys to the storage locker, as well as control over it, to Antoniette and Angelo within ten (10) days of the release of this endorsement. These arrangements are to be made through Mr. Lo Faso. b) Antoniette and Angelo may dispose of the contents of the home that are in the storage locker as they see fit. Given that they are the only beneficiaries with any desire to have any of these contents, they are not required to report to the Court on the disposition of these assets unless they have a disagreement. They are not to involve any of their other siblings in any issues relating to the disposition of these assets. c) Antoniette and Angelo are personally responsible for the expenses related to storing the assets. They are also responsible for any expenses related to moving the assets from the storage locker. Any additional costs are not to be charged to the Estate.
[37] This brings me to the costs of the storage locker, and the moving truck. The storage locker was $7,582.30, and the moving expense was $1,110.50. Nicolina and Maria say that this was an unnecessary expense that should be personally borne by Angelo and Antoniette.
[38] I am of the view that this is an Estate expense until the end of November, 2014, when Francine (who also had an interest in these possessions) abandoned any additional rights. This includes the expenses associated with the moving truck. My reasons for reaching this conclusion are that there was obviously a dispute over the contents, it was reasonable to store them pending the resolution of that dispute, and it is not completely clear (at least until the Application is brought by Nicolina and Maria) that Antoniette and Angelo were being unreasonable on this issue. In any event, however, Francine also had an interest in these possessions and that needed to be resolved.
[39] However, once Nicolina and Maria clearly state in their Application that they wish to relinquish their interests in the household items and Francine relinquished her interest, it was unreasonable for Antoniette and Angelo to do anything other than go through those items and take personal possession of them. This should have been resolved after Francine exited the litigation in November of 2014. However, for ease of accounting, Angelo and Antoniette become personally responsible for the costs of storage as of December 1st, 2014.
[40] Antoniette and Angelo argue that the moving expense is unreasonable. I disagree. It was an expense for $1,110.50. The fact that Angelo and Antoniette dispute this expense is symptomatic of their desire to dispute even the smallest issue in this case. Given that there was a dispute over the contents of the house, Nicolina and Maria acted reasonably in storing the contents and incurring costs. This is not an expense that should be disputed.
[41] From December 1st, 2014 until now, I Order that the expenses associated with these assets be paid personally by Antoniette and Angelo out of their share of the Estate. If there are insufficient funds remaining once the final accounting is done, then they are to provide Mr. Lo Faso with a certified cheque for the difference, to be included in the distribution.
[42] This brings me to the claim by Nicolina and Maria for costs to clean out their mother’s house prior to moving. This is a task that must be done when someone passes away, and it is often a task that falls to the children, who are also the Estate Trustees. It is not something that, in the normal course, an Estate Trustee should be entitled to be reimbursed for, absent a demonstration that there was a loss of income as a result of the work. I see no clear evidence of such loss in this case, and I decline to award Nicolina or Maria any monies out of the Estate for their time.
c) The Estate Jewellery
[43] Maria Christina owned jewellery. Some (or more likely all) of it is currently in a safety deposit box. There are three issues relating to the jewellery that Maria Christina owned.
[44] First, Antoniette and Angelo have accused Maria and Nicolina of stealing approximately $60,000.00 in jewellery. In the most recent Affidavit that they have sworn, they have capped the amount they are seeking for jewellery at $20,000.00. This has been a significant issue between the parties.
[45] In questioning Angelo and Antoniette during argument, they acknowledged that they had no evidence to support their allegation that jewellery had been stolen, and they could not prove the existence of additional jewellery beyond what was in the safety deposit box. As a result, I am not prepared to permit this allegation to be pursued any further by Angelo and Antoniette and I am certainly not prepared to direct a trial of this issue.
[46] Second, there is the issue of what should be done about the jewellery that is in the safety deposit box. In their application, Nicolina and Maria state that the jewellery should be given to Antoniette’s daughter, Christina Louie. In the response, Antoniette and Angelo state that a Court Order is not necessary to transfer the jewellery to Christina Louie.
[47] However, during the course of argument, it was clear that I did have to get both Angelo and Antoniette to acknowledge on the record that this jewellery could be transferred to Christina Louie. Again, it was clear to me that Antoniette and Angelo were very concerned about the form and process of estate administration.
[48] This brings me to the third issue relating to the jewellery, which is the cost associated with the safety deposit box. Given that there was, potentially, a serious dispute over the jewellery, it was appropriate to place what jewellery there was in the safety deposit box, and the rental should be an Estate expense, at least initially.
[49] However, the situation changes once the Application is brought. In the application, it is clear that Nicolina and Maria were prepared to give the jewellery to Christina Louie. As a result, once Francine settled her rights, this issue should have been resolved. The responsibility for the costs of the safety deposit box from that point forward lie with Angelo and Antoniette personally, and the costs related to the safety deposit box will be paid by them personally from that date forward. Again, if Angelo and Antoniette’s portion of the estate is insufficient to cover these expenses, they are to reimburse Mr. Lo Faso by way of a certified cheque.
[50] For ease of calculation, the Estate is to bear the expenses associated with the safety deposit box until November 30th, 2014. Angelo and Antoniette are to bear the expenses from December 1st, 2014 forward.
[51] In addition, Nicolina and Maria are to provide access to the safety deposit box within ten days of the release of these Reasons. The jewellery is to be removed from the safety deposit box in the presence of one Applicant and one Respondent, and the box is to either be closed or transferred to Angelo and Antoniette as soon as possible.
d) Costs to Mr Miceli
[52] In the original application, brought by Antoniette and Angelo, relief was sought against Mr. Miceli. The parties agreed to dismiss the Application as against Mr. Miceli on consent. Costs were awarded by Edwards J. in the sum of $20,000.00.
[53] Antoniette and Angelo argue that the collection of these costs is not a matter related to the Estate, and that the costs relate to them personally. As a result, they seem to suggest that the costs should be addressed in a separate proceeding.
[54] I disagree with this view for three reasons:
a) The costs were ordered in a proceeding relating to the Estate. Therefore, it seems logical that, since Angelo and Antoniette have an interest in the Estate, the costs awards made against them should be satisfied out of their share of the Estate. b) Judicial efficiency and economy strongly suggests that proceedings should not be duplicated. The costs are owing to Mr. Miceli. He should not have to institute separate proceedings against Angelo and Antoniette to obtain his costs. c) The other costs awards that have been made against the parties in this case have all been satisfied out of the Estate. I was not given any reason why this costs award should be treated any differently, other than Angelo and Antoniette’s claim that this is a personal debt. That is not sufficient reason to refuse to pay the personal debt out of the interests of Angelo and Antoniette in the Estate.
[55] As a result, the $20,000.00 in costs owing to Mr. Miceli are to be paid from Angelo and Antoniette’s share of the Estate. These costs are to be split equally between them.
[56] There are also costs awards discussed at paragraph 12 and 13 of these Reasons. To the extent these costs awards have not been paid, they are to be paid out of Angelo and Antoniette’s share of the Estate.
e) The Payment to Mr. Burlew
[57] An irrevocable direction was signed by Angelo and Antoniette, providing that Mr. Burlew’s costs in the sum of $25,000.00 were to be paid out of the funds that they were entitled to from the Estate. $3,000.00 was already paid out at the time that the costs award was paid out above. I was not given any reason why this direction should not be enforced
[58] Accordingly, I order that Mr. Burlew will be paid $22,000.00 from Angelo and Antoniette’s portion of the Estate. This amount is to be split equally between them.
f) Cash in the Hands of Various People
[59] Angelo and Antoniette allege that Nicolina accessed cash in the sum of $16,000.00 in a joint bank account that she shared with her mother, Maria Christina. There are interesting legal issues that would arise respecting the ownership of this account. Certainly, on the facts before me, there is the clear possibility that Nicolina would be entitled to all of this money, either as of right (because it was a joint account) or as a result of tasks she carried out for her mother.
[60] However, I do not have to decide this issue, or direct a trial on it. Nicolina has agreed that she will repay the $16,000.00 to the Estate, and the accounts are to be adjusted accordingly. Nicolina can either have this $16,000.00 deducted from her share of the Estate, or she can provide the Estate with the funds.
[61] I also note that Angelo has acknowledged that he is in possession of $1,337.25 that is the Estate’s monies. He is to provide those funds to Mr. Lo Faso for deposit in the Estate’s accounts, or he is to deposit them directly within fourteen days of the date of the release of this endorsement.
g) Estate Expenses
[62] There is a list of expenses that Mr. Lo Faso provided relating to legal work performed by J.B. Donnelly and Anthony Potestio, as well as a home inspection. Angelo and Antoniette challenge some of these expenses. However, when I review the materials that they have provided, I see no reason why those expenses should not be paid out of the Estate.
h) Estate Administration Issues
[63] At this point, Maria and Nicolina wish to be released from their responsibilities as Estate Trustees. It is clear from the materials that I received that the four remaining Estate Trustees can no longer work together effectively, if at all. As a result, only one pair should continue with the administration of the estate.
[64] Two examples of my reasons for reaching this conclusion will suffice. First, there are the allegations that Angelo and Antoniette have brought that Nicolina and Maria have stolen some of Maria Christina’s jewellery. Second, Angelo and Antoniette have said, in reference to one issue “this is another clear representation of the dubious accounting practices and attempts to defraud the beneficiaries used by the Applicants at all times throughout their administration”. It is clear that there is a lack of trust. I hasten to add that I found NOTHING in the materials before me to support the statement that Angelo and Antoniette have made, and I expressly decline to adopt it. However, it is clear that these four individuals cannot continue as Trustees together.
[65] At the hearing of this matter, Antoniette and Angelo did not seem willing to relinquish their role as Estate Trustees. As a result, I am prepared to order that Nicolina and Maria may be removed as Estate Trustees once the following conditions are fulfilled:
a) An updated schedule of payments must be created by Mr. Lo Faso, outlining what payments are Estate expenses, and what payments are the responsibility of Angelo and Antoniette. In short, there must be a final reconciliation based on the directions I am providing. This reconciliation is to be completed within thirty (30) days of the release of this endorsement. b) The payments and other disbursements outlined in this decision must be completed. This is to be completed within sixty (60) days of the release of this decision. c) The Estate is to be reduced to an amount of $6,000.00 that Mr. Lo Faso will hold in trust pending the winding up of the estate. This amount is to be contributed to equally from the shares of the Estate of each of the four siblings with an interest in it. d) I must be advised, by Affidavit from Mr. Lo Faso’s office, that these steps have been completed.
[66] Once these steps are completed, then Nicolina and Maria will be entitled to an Order removing them as Estate Trustees. They may bring this order as an over the counter motion, directed to my attention.
[67] Antoniette and Angelo are to forthwith provide Nicolina and Maria with a copy (or further copy, if they have already provided one) of the Estate tax return that they have filed. They are to provide this copy to Mr. Lo Faso as Nicolina and Maria’s counsel, and are not to communicate directly with Nicolina and Maria on this issue. They are to file a copy of that Estate tax return with the Court office with an Affidavit setting out when they provided it to Mr. Lo Faso. The Affidavit is not to contain any additional information.
[68] The remainder of the estate administration is the responsibility of Angelo and Antoniette, and is to be done in accordance with the orders I have set out below.
Disposition
[69] I am making the following directions respecting the issues relating to the ownership and distribution of the assets of the Estate:
a) Mr. Miceli will be paid the sum of $2,952.00 on account of his expenses relating to the former matrimonial home. This shall be shared equally between the four remaining beneficiaries. b) Nicolina and Maria will, through Mr. Lo Faso, deliver the keys to the storage locker and control over the locker to Antoniette and Angelo within ten (10) days of this decision. c) Antoniette and Angelo are permitted to dispose of the contents of the storage locker as they see fit, and may only seek the intervention of the Court if there is a dispute between them as to how to effect this disposal. They are prohibited from involving any of their other siblings in the disposal of this property. d) Antoniette and Angelo are personally responsible for the costs associated with storage and disposal of the contents of the storage locker from the date of this Order forward. e) The costs of the moving and storage of the household contents are an Estate expense until November 30th, 2014, and shall be shared equally between the four remaining beneficiaries. From December 1st, 2014 to the date of this Order, the costs relating to the household possessions are to be borne by Angelo and Antoniette and deducted from their portions of the Estate. f) Angelo and Antoniette are prohibited from pursuing their claims that other parties have stolen Maria Christina’s jewellery unless additional evidence comes to light. g) The jewellery in the safety deposit box that belonged to Maria Christina is to be turned over to Christina Louie, Antoniette’s daughter. h) The expenses associated with the safety deposit box are an Estate expense up until November 30th, 2014 and are to be shared equally between the four remaining beneficiaries. From December 1st, 2014 to today, those costs are to be borne by Angelo and Antoniette and are to be paid out of their share of the Estate. i) Mr. Miceli is to be paid $20,000.00 in costs associated with the first action, again out of Angelo and Antoniette’s share of the Estate. j) To the extent the costs discussed in paragraphs 12 and 13 of this decision ordered payable by Angelo and Antoniette to either Francine or to Nicolina and Maria are not paid, they are to be paid out of Angelo and Antoniette’s share of the Estate. k) Mr. Burlew is to be paid $22,000.00 in costs associated with his representation of Angelo and Antoniette, again out of their share of the Estate. l) Nicolina is to reimburse the Estate the sum of $16,000.00 on account of the joint account. She may either deposit this money into the account or have it deducted from her share of the Estate, at her discretion. m) Angelo is to provide the Estate with $1,337.25 by either providing Mr. Lo Faso with a cheque for the estate or making a deposit to the Estate’s account. n) The expenses claimed for J.B. Donnelly, Anthony Potestio and the Home Inspection for the sale of property, in the aggregate totalling $3,562.24 are to be paid from the Estate. For clarity, in the event that Angelo and Antoniette’s shares are less than $1,500.00, they are expected to pay an amount into the Estate to bring their share up to $1,500.00 o) A total of $6,000.00 is to be held in trust by Mr. Lo Faso pending the filing of the tax returns and the winding up of the estate. This amount is to be shared equally between the four siblings who still have an interest in the estate.
[70] If I have missed any of the outstanding debts or costs awards payable from the Estate, the parties are to advise me of anything outstanding within twenty one (21) days of the release of this endorsement. Once the twenty one days has passed, if I have not received any communication from the parties, then the Order above becomes final.
[71] In terms of the steps that are necessary to wind up the Estate, I am making the following directions:
a) An updated schedule of payments must be created by Mr. Lo Faso outlining what payments are Estate expenses and what payments are the responsibility of Angelo and Antoniette. This is to be provided within thirty (30) days of the release of this decision. b) The disbursements and transfers set out in paragraph 68 are to be completed within sixty (60) days of the date that this endorsement is released. c) Mr. Lo Faso is to serve on the Respondents and file with the Court Office an Affidavit from his office confirming that all of the disbursements and transfers have been completed. He is also to serve and file Affidavits from each of his clients confirming that they have no further interests in the estate, save and except for the reserve fund that Mr. Lo Faso is holding in trust. d) Once the steps in paragraphs a) to c) are taken, Mr. Lo Faso’s clients, Nicolina and Maria, are entitled to an Order removing them as Estate Trustees in this matter. e) Angelo and Antoinette are responsible for completing the Estate’s tax return and all other documentation associated with winding up the Estate. As a result, they are to provide these documents to Mr. Lo Faso within thirty (30) days of the release of these reasons. f) Angelo and Antoniette are, within ninety (90) days of receiving the Order described in paragraph (d), to file the Estate’s Income Tax Returns along with all other paperwork that is required to wind up the Estate. g) Once the Estate has received the necessary Notices of Assessment and other documentation from Revenue Canada, Angelo and Antoniette are to provide it to the Court and to Mr. Lo Faso in the form of an Affidavit. If Mr. Lo Faso sees any issues with the documentation that he receives respecting the Estate, he is to advise me by filing an Affidavit with the Court within twenty one (21) days of receiving that documentation. Otherwise, Mr. Lo Faso is to distribute the remaining monies, less his disbursements for complying with this direction and any expenses properly incurred by the Estate, to the beneficiaries. h) Once the Court receives the materials described in paragraph (f) and Mr. Lo Faso’s confirmation that the reserve fund has been paid out, Angelo and Antoniette are to move promptly for the necessary Orders from the Court for the finalization of this matter. i) For clarity, I remain seized respecting all outstanding issues relating to this Application.
[72] In terms of the costs of this proceeding, Nicolina and Maria are to provide their costs submissions within fourteen (14) days of the release of these reasons. Those costs submissions are to be no longer than three (3) single spaced pages, exclusive of bills of costs, case-law and offers to settle.
[73] Angelo and Antoniette are to provide their costs submissions within fourteen (14) days of receiving the submissions described in the previous paragraph. Again, those costs submissions are to be no longer than three (3) single spaced pages, exclusive of bills of costs, case-law and offers to settle.
[74] There are to be no reply submissions on costs without leave of the Court.