COURT FILE NO.: CV-19-5079-00 DATE: 2020 05 27
SUPERIOR COURT OF JUSTICE - ONTARIO
IN THE MATTER OF THE ESTATE OF MARIA EDUARDA DE OLIVEIRA BERNARDO VENTURA, Deceased,
B E T W E E N:
CARMELINDA VENTURA DE JESUS AND EDUARDA VENTURA LIMA Applicants
-and-
THE ESTATE OF MARIA EDUARDA DE OLIVEIRA BERNARDO VENTURA AND ANTONIO MANUEL OLIVEIRA VENTURA Respondents
BEFORE: EMERY J.
COUNSEL: P. Callahan, for the Applicants R. Bickhram, for the Respondents
HEARD: In writing
REASONS FOR DECISION
[1] The late Maria Eduarda de Oliviera Bernardo Ventura died on December 27, 2018. Her daughters, Carmelinda Ventura De Jesus (“Linda’), Eduarda Ventura Lima (“Eddy”) and her son, Antonio Manuel Oliviera Lima (“Antonio”) were named jointly as estate trustees in her will.
[2] The house at 1371 Ogden Avenue in Mississauga was owned by the late Mrs. Ventura, and is the one asset of significant value in the estate (the “house”). Antonio and his family have been residing in the house since 2012. Eddy and Linda have now brought an application on behalf of the estate to sell the house.
[3] On February 6, 2020, Justice Trimble made on order, on consent, that the house would be listed for sale on April 15, 2020 under terms agreed upon by the parties (the “Trimble order”). The Trimble order also contained an option for Antonio to purchase the house no later than close of business on April 14, 2020.
[4] Antonio brings a motion to extend the timelines to exercise his option, and for the listing and sale of the house in the Trimble order if he does not. He seeks the requested extension because of intervening circumstances he attributes to the COVID-19 pandemic. Antonio takes the position that those intervening circumstances have precluded his ability to purchase the house by the court prescribed deadline.
[5] The applicants have brought a cross-motion for directions to proceed with listing the house for sale and other relief by varying the Trimble order to administer the estate, and to move the litigation forward. They have provided evidence that Antonio and members of his own family have lived in the house rent free for over seven years, and that they have allowed it to fall into disrepair. The applicants also state that Antonio paid nothing towards the expenses for the house when their mother was alive, and that the municipal taxes for the house are now in arrears.
The Order made on February 6, 2020
[6] The relevant paragraphs of the Trimble order read as follows:
THIS COURT ORDERS that the property municipally described as 1371 Ogden Avenue, Mississauga, Ontario (“the Property”) shall be listed for sale on April 15, 2020, on the following terms: (a) any sale of the Property shall not be completed in less than 60 days from the date of the Agreement of Purchase and Sale, unless otherwise agreed to by the parties in writing; (b) the net proceeds from the sale of the Property shall be held by counsel closing the real estate transaction in an interest-bearing trust account pending agreement of the parties in writing or further Order of the Court; (c) the (Applicant), as well as any other person or persons residing at the Property, shall vacate the said Property on or before the date on which the sale transaction is completed; (d) any real estate commissions or legal fees and disbursements properly related to the sale shall be paid from the proceeds immediately upon completion of the said sale; (e) the listing agent for the sale of the property shall be agreed to between the parties; (e) the parties, through their lawyers, shall mutually agree upon an acceptable real estate lawyer to facilitate the closing of the Property; and (f) the property will be sold at the best price and terms the market will offer. The offer shall not include a vendor take back mortgage or any loan agreement or financing arrangement of any kind without the consent of the parties.
THIS COURT ORDERS that the Respondent, Antonio Manuel Oliveira Ventura (“Antonio”) shall have the option of purchasing the Property from the Estate at a price to be agreed upon by the parties, provided that such purchase from the Estate shall be completed by, and no later than, the close of business on April 14, 2020.
THIS COURT ORDERS that the estate administration tax owing by the Estate, if any, shall be paid from the net proceeds of sale at the time that such sale is completed, or so soon after such date as is reasonably practicable.
THIS COURT ORDERS that both Antonio and the Applicants shall produce a complete accounting of all financial transaction undertaken by him, or by them, as the case may be, on behalf of Maria Eduarda de Oliveira Ventura (“Maria”) from January 1, 2012 to the date of her death, being December 27, 2018, and such accounting shall be produced to the other parties within 45 days of the date of this Order.
THIS COURT ORDERS that both Antonio and the Applicants shall produce a complete accounting of all financial transaction undertaken by him, or by them, as the case may be, on behalf of Maria or the Estate from the date of her death, being December 27, 2018, to the present date, and such accounting shall be produced to the other parties within 45 days of the date of this Order.
THIS COURT ORDERS that Antonio and the Applicants shall each deliver to the other a complete, proper, and sworn affidavit of documents setting out any and all documentation that is in their possession, control or power and relates to every financial transaction undertaken by him, or by them, as the case may be, on behalf of Maria or the Estate, as well as any other documentation that relates to any issue arising from the pleadings herein, within 45 days of the date of this Order.
THIS COURT ORDERS that the parties, through their lawyers, are entitled to compel production of all of the financial records, legal documents, banking records, insurance records and tax returns relating to Maria from any financial advisor, bank, trust company, insurance company or accountant, in possession, control or power of such records, and any predecessors or successors in interest which is in possession, control or power of such financial records. All productions received shall be produced to any party and made available on request. Payment for obtaining these productions is at first instance to be paid by the party requesting production pending a final determination by the Court as to which party shall pay these costs.
Antonio’s position
[7] To provide an evidentiary foundation for the position he has taken, Antonio describes how he and his family lived with his mother and father when they purchased the house on Ogden Avenue in 1987. This came to an end in 1996 when Antonio and his family purchased their own home on Delco Court, a short walk away from his parent’s house.
[8] Antonio and his wife Paula have two children, their son Kyle and their daughter Samantha. Samantha was born in 1991. After Antonio’s father died in April 1998, she went to live with her grandmother in the house to keep her company. Samantha lived at the house until she went away to university between 2010 and 2014. It is really the only home she has ever known.
[9] In 2012, Antonio and his family also moved into the house to help Mrs. Ventura on a day to day basis as Mrs. Ventura had been diagnosed with dementia. They lived with her at the house until Mrs. Ventura went to live with the applicants in December 2017. This would have been approximately one year prior to her death.
[10] Antonio states in his affidavit that he paid expenses for maintaining the house over the years. Due in part because of his efforts, the house has appreciated in value by approximately $400,000. It is believed the house has a current fair market value of around $900,000.
[11] Antonio does not deny the allegations made by the applicants that the property taxes have not been paid for three and a half years. He states that he last paid municipal taxes for the house in 2017. Antonio attributes the applicants’ re-direction of Mrs. Ventura’s mail from the house to themselves as the reason he did not know by how much the property taxes had fallen into arrears.
[12] When Antonio went to pay the taxes at the City of Mississauga earlier this year, the City told him their office was closed for reasons related to the COVID-19 shutdown. He states in his affidavit that the City told him to come back after May 12, 2020. Although notices requiring the payment of property taxes have been sent out, he deposes that the City has no intentions of holding a tax sale of any property for unpaid taxes for at least a year.
[13] In his responding affidavit on the cross-motion, Antonio does not deny that he and his family never paid rent to Mrs. Ventura to live at the house. He gives as a reason for not paying rent that his mother never asked any of them to pay rent while she was alive.
[14] There is no dispute that Antonio has expressed his intention to purchase the house from the estate. In his evidence, Antonio states that he was on a trip to the Azores, Portugal on February 6, 2020 when the Trimble order was made. When he returned to Mississauga on February 26, he was required by Ontario health officials to enter a self-quarantine period of 14 days for COVID-19 related reasons.
[15] In addition to isolating in quarantine, Antonio describes how the real estate person he had hired to carry out a Comparative Market Evaluation of the house would not make a site visit because of COVID-19. Antonio required that evaluation in order to know the value of the house for the purpose of applying for financing. Antonio also explained that he could not meet the timeline under the Trimble order because offices of banks and municipal departments had been closed by health officials in March and April for reasons related to the COVID-19 pandemic.
[16] These reasons form part of the explanation why Antonio was not able to exercise the option to purchase the house by April 14, 2020. He takes the position that if the time to exercise the option to purchase the house on Ogden Avenue is not extended, he will lose the ability to buy the house he and his family have lived in for many years, and they will be forced to move. Antonio urges the court to accept that he would suffer a great prejudice as a result.
Position of the Estate
[17] The applicants take the position that Antonio and his family have lived for many years at the house without paying rent or expenses to Mrs. Ventura. They are now living there without paying rent to the estate. They have not paid the municipal taxes since Mrs. Ventura went to live with the applicants in 2017. They have not kept up with the maintenance and repair of the house and property.
[18] In response to Antonio’s motion, the applicants ask the court to look through the evidence he has given about why he has not complied with Trimble order. They ask the court to find that Antonio has not made any attempt to purchase the house at all. Aside from his bald assertions that COVID-19 has frustrated his ability to comply with that order, they argue a careful review of Antonio’s evidence reveals that:
- He has produced no evidence that the “housing market is deflated.”
- He has produced no evidence that “government offices are closed.”
- He has produced no evidence that “banking institutions are not fully operational.”
- He has produced no evidence that he will be prejudiced if the timelines in the order of Trimble J. are not extended.
[19] The applicants express serious doubts about whether Antonio could even qualify for the financing he would need to buy the house, stating he has given them no financial information about his income or affairs. They submit that the evidence shows that Antonio does not have the means to purchase the house from the estate. The applicants argue that any further extension or delay in selling the house will cause unnecessary prejudice to the estate. They ask the court to dismiss Antonio’s motion accordingly.
[20] On the cross-motion, the applicants request an order permitting them to list the house for sale, to recover personal property owned by the late Mrs. Ventura, and for orders to ensure that Antonio and his family vacate the house when the house sale closes, along with other relief. In the meantime, they ask the court to order Antonio to pay occupation rent for living in the house.
[21] They also seek orders against Antonio with respect the litigation requiring him to immediately serve his affidavit of documents and the accounting under the Trimble order.
Analysis
[22] Care for the mother, and now the administration of her estate, has divided this family. The evidence of each sibling having an adverse interest has been given by affidavit, and no cross-examinations have been conducted. Short of ordering a trial of an issue, I am unable to make any credibility assessment between one affiant’s evidence from another on the written record. However, I have reached the conclusion that, for the most part, I do not have to make findings on facts other than those that have arisen since Trimble J. made the order on February 6, 2020.
Antonio’s motion
[23] The requirement that an order of the court must be obeyed is the starting point of any analysis on a motion to either enforce an order, or to vary its terms. An order applies to all parties to a proceeding. Those parties must comply with the order unless it is stayed, varied or successfully appealed. The civil justice system depends on the strict observance of this requirement.
[24] Numerous decisions have emphasized in different ways that court orders must be followed. Corbett J. commented in Taylor v. Taylor that court orders are not “suggestions” or “frameworks” or “guidelines” but rather mandatory in nature, and must be obeyed. In Mercedes-Benz Financial (DCFS Canada Corp.) v. Kovacevic. Justice D.M. Brown, as he then was, explained the relationship of a court order to the legal process and why it is so important for people to follow court orders. In the context of a contempt motion, he put it this way:
[5] A court exercises its contempt power to uphold the dignity and process of the court, thereby sustaining the rule of law and maintaining the orderly, fair, and impartial administration of justice: see the sources cited by Lax J. in Chiang (Trustee of) v. Chiang (2007), 85 O.R. (3d) 425 (S.C.J.), paras. 16 to 19. When a person deliberately fails to obey a court order, he shows disregard for the obligations which he owes to others in his community, disrespect for his community’s system of justice which enforces those obligations, and disdain for the fundamental principle that all persons who live in our community do so subject to the rule of law. By disobeying a court order, a person seeks to place himself above and beyond the law of his community. His disobedience also creates conditions of gross inequality, rewarding those who turn their backs on the law, while placing burdens on those who follow the law. As Cumming J. so aptly put it in Sussex Group Ltd. v. 3933938 Canada Inc. (c.o.b. Global Export Consulting), [2003] O.J. No. 2906 (S.C.J.), at 48:
The thin veil of civilization that cloaks our community through the rule of law is fragile, in need of constant protection, and in need of being seen by all members of the community to be constantly protected.
[25] In Bottan v. Vroom, [2001] OJ No 2737 (SCJ), affirmed at [2002] OJ No 1383 (Ont. C.A.), Nordheimer J. (as he then was) said this about enforcing orders:
“That it is a jurisdiction to be exercised with great caution, I have no doubt. But not to exercise it where there is no other way to bring reason into proceedings is, in effect, to deprive the plaintiff or petitioner of justice according to law. The court if it fails to act becomes but a paper tiger”. [emphasis added]
[26] Despite the precautionary measures that society has taken to protect individuals to the extent possible from exposure to COVID-19, parties are still expected to obey court orders in today’s environment. Chief Justice Morawetz confirmed this expectation in the Consolidated Notice to the Profession and others, effective May 19, 2020 and published on the ontariocourts.ca website, when he wrote under Part C, section 1:
“During this temporary suspension of in-court operations, counsel and parties are expected to comply with existing orders and rules of procedure, as well as procedures in this and other Regional Notices, to bring cases closer to resolution, to the extent they can safely do so through virtual means. This guidance also applies to self-represented parties.
[27] Over time, the courts have developed general principles for extending timelines under the rules or in orders. For instance, in Chiarelli v. Weins, the Court of Appeal instructed courts to avoid fixing rules or guidelines for when an extension should be refused. Instead, the court should decide each case on its facts, focusing on whether the defence is prejudiced by the delay. The court is exercising a discretionary power under Rule 3.02 when deciding a motion to extend time specified in an order, and the exercise of that discretion is subject to how the court is to interpret and apply the Rules of Civil Procedure.
[28] Rules 1.04, and 2.01 in effect allow a court to extend time if that will secure a just, cost effective, and efficient determination of the case. The principles that apply to any motion to extend timelines in an order are relevant to a motion brought to extend time in the COVID-19 environment.
[29] That said, any motion to adjust timelines previously ordered by the court must be supported by persuasive evidence. The moving party must convince the court that his or her ability to perform obligations within those timelines has been frustrated or prevented for COVID-19 related reasons. The evidence must show that those reasons warrant a legitimate exemption from compliance with the order, and are not just an excuse.
[30] In my view, a moving party seeking an extension in this context must demonstrate that an order to vary the timeline would be in the interest of justice, and would not cause undue prejudice to the opposite parties. Factors to consider include:
a) The steps not taken were necessary to carry out the terms of any order, and no other alternative to taking those steps would have served that purpose; b) The steps were not taken because of the moving party’s inability to access business, professional or institutional offices physically or electronically because of COVID-19 protocols; c) An extension of time would not be contrary to any law, or the rights of other person under an order of any court; d) A reasonable explanation is provided for not taking the required steps, or why it was difficult or impossible to comply with the order for COVID-19 related reasons; e) The moving party has made best efforts to otherwise comply with the order, and all other terms of the order that were not impeded by the COVID-19 protocols have been met; and f) The moving party has acted in good faith.
[31] Where a party seeks relief from complying with an order, by seeking an extension of time or otherwise, that party must essentially show cause why that relief should be granted. The onus to provide necessary and persuasive evidence rests on that party. In this case, that onus is on Antonio.
[32] Antonio is seeking an extension of less than three months at a time when he says the housing market is deflated, government offices are closed, banking institutions are not fully operational, and the citizens of this province are being asked to restrict contact with others. The difficulty with these arguments is that the evidence filed by Antonio does not prove these facts.
[33] Although I can take judicial notice that government offices have been closed and banks have not been fully operational over the last eight to ten weeks, I can also take judicial notice that many officials in the public and the private sectors, including those in municipal government and in financial institutions, have been working remotely and transacting business. Antonio provided no evidence of contacting these service providers by telephone or email, let alone that he encountered resistance at obtaining information or approvals. The absence of any evidence that Antonio attempted to meet the timelines in the Trimble order by electronic means is a flaw I cannot overlook. In the modern world, even when in the grip of a terrible coronavirus, people sheltering in place can access information, services and products online.
[34] Antonio knew that he had a limited horizon in which to have the fair market value of the house determined. He should have arranged for another evaluator or appraiser when he had time to make those arrangements. He could have applied online for financing directly or indirectly, possibly through a mortgage broker, to obtain a financing commitment. He would have been able to provide any lender with all financial documentation in electronic form the lender might have required.
[35] There was no expert evidence filed about the effect of COVID-19 related factors on the housing market. Even if the pandemic has deflated market prices, that downward trend would not have impeded Antonio’s efforts to secure financing and to make an offer to the estate. Very likely, lower housing prices would have allowed Antonio to make a lower offer on April 14 than he would have made two months earlier. This does not help Antonio because he never made an offer at all.
[36] Antonio argues that the timelines in the Trimble order will cause him enormous prejudice by forcing the sale of the house before restrictions are lifted. He states that listing the house for sale will force him to abandon the only home he has known since 2012.
[37] I do not give much weight to this argument. If anything, the prospect of having the house sold by the estate should have magnified the importance of Antonio’s obligation to meet the timelines under the order. He was represented by counsel on February 6, 2020 when the Trimble order was made, on consent. He would have known that the time was running to exercise his option to purchase the house when he returned from the Azores. He has given no explanation about why he did not give greater priority to explore other avenues to have the house appraised or evaluated, to apply for financing, or to make an offer to purchase well before April 14.
[38] Antonio has expressed concern that he will suffer serious financial and safety issues if he is required to search for another place to live in the event the house is sold to a third party. However, there is no evidence before this court to support that concern. Like the arguments Antonio has raised about his inability to access institutional and bank offices to make an offer and the prejudice to which he would be put if forced to move, he has given little, if any evidence of the difficulty he would have to find new accommodations for himself and his family.
[39] Unfortunately, Antonio has not provided any of this evidence, which I consider necessary to meet the requirements to obtain an extension of time from this court. Instead, he has taken a position that serves his own interests over those of the estate or the other beneficiaries. Taking this position makes me question his good faith in bringing this motion.
[40] Each case must be considered on its own facts and circumstances. On facts and circumstances of this motion, Antonio has failed to discharge his evidentiary burden. His motion to extend the timelines set out in the order made by Trimble J. on February 6, 2020 is dismissed.
The cross-motion
[41] The cross-motion of the applicants essentially asks for two kinds of orders. They seek orders to list and sell the house without Antonio’s involvement as an estate trustee, and the right of the estate to charge him occupation rent in the meantime. The other kind of order they seek would compel Antonio to make disclosure as required by the Trimble order, and to move the litigation along.
[42] I have been advised by counsel for both sides that the parties have not applied for a certificate of appointment of two or more of them as estate trustees. I do not know if the order the applicants seek to list the house for sale, and for signing authority to sell the house to any buyer without Antonio’s involvement, would be an exercise of their authority derived from Mrs. Ventura’s will, or as a result of their status as beneficiaries. As this motion was heard in writing, I did not hear submissions on the question. Fortunately, the issue was not raised by any party in the materials filed. As a result, I do not consider it a question that I am required to answer when deciding either motion.
[43] There is no question in my mind that this house must be sold. The sale of the house was contemplated in the Trimble order with the consent of all parties, whether in their capacities as estate trustees or beneficiaries. The applicants seek orders for the listing of the sale of the house now that Antonio’s option has expired. That order is granted.
[44] I am also granting the order requested on the cross-motion for the applicants to list and sell the house without Antonio’s involvement. Antonio does not oppose the intent behind the Trimble order to sell the house. He was only seeking further time to be the buyer. In view of his own intention to purchase the house, it is clear to me that Antonio has an inherent conflict of interest with the applicants who have brought the application as co-estate trustees. Antonio is conflicted to act as one of the estate trustees when listing the house through a realtor, as he would prefer to be the buyer, and to pay a lesser purchase price than a willing and able third party might pay.
[45] Even if the house is listed for sale, there is nothing to stop Antonio from making an offer to purchase the house through the listing agent like any other prospective buyer. That may also work to his advantage if the COVID-19 environment has deflated prices in the real estate market, as he will be competing with other purchasers on the open market to make offers for the house at current fair market value.
[46] The cross-motion with respect to listing and selling the house, and for the recovery of personal property, is granted. I am adjusting the dates proposed by the applicants for taking those steps as follows:
a) the Order of Justice Trimble dated February 6, 2020 is varied as follows: (i) Effective June 1, 2020, the Applicants, Carmelinda Ventura De Jesus and Eduarda Ventura Lima are authorized to give all proper directions, and to execute all documentation on behalf of the Estate of Maria Eduarda De Oliveira Bernardo Ventura (“the Estate”), as may be necessary to list the Property for sale, enter into an agreement to sell the Property, and to complete the sale of the Property; (ii) Harry Kinha of Re/Max Real Estate Centre Inc. is appointed to be the listing agent in relation to the sale of the Property; (iii) Antonio, as well as any other person(s) residing at the Property, is directed to cooperate with the listing agent and to allow access to the Property at all reasonable times for the purposes of showing the Property to prospective buyers, and to vacate the Property during such showings; (iv) Antonio, as well as any other person(s) residing at the Property, is ordered to vacate the Property on or before the closing date for any sale of the Property, and shall not cause damage in any way prior to or upon vacating the property; (v) The Applicants are permitted to attend at the Property within 7 days of the date of this Order for the purpose of collecting personal items belonging them, and to identify and take into custody for safekeeping any chattels that are the property of the Estate, as more particularly described in Schedule A to this Notice of Motion, and directing Antonio, as well as any other person(s) residing at the Property, to vacate the Property during such attendance.
[47] I am not granting the order that would enable the applicants to call in the police for assistance to remove Antonio upon the closing of the house sale to a third party at this time. That kind of order requires a motion for specific relief and evidence of a particular nature. It would be inappropriate to make an order for possession on this record.
[48] Next, the applicants seek an order requiring Antonio to start paying occupation rent to the estate while he and his family live in the house.
[49] Governing principles to make an order for occupation rent were reviewed in Dagarsho Holdings Ltd. v. Bluestone and later in Bergmann v. McMahon, 2010 ONSC 993 where the court in each case identified that occupation rent is an equitable remedy. In Dagarsho Holdings, the court held that occupation rent is a concept based on the presumption that the parties have agreed to the payment of reasonable compensation by one party for occupying a property. That presumption can be rebutted by evidence that the parties shared the intention that no compensation is payable for the occupation in question.
[50] In Bergmann, Daley J. explained that the equitable remedy of occupation rent is related to and arises from circumstances where unjust enrichment is found. The familiar test for unjust enrichment of an enrichment of one party at the corresponding deprivation of another for no juristic reason is also applicable to determine a claim for occupation rent. Daley J. held that “the entitlement to occupation rent arises where those entitled to the property have been ousted.” In other words, occupation rent may be ordered where the occupier is occupying the property at the expense of the ousted, with no justifiable reason to enjoy this benefit.
[51] There are two cases involving estates and claims for occupation rent that the applicants rely upon when making this claim. The facts in Broos v. Broos are remarkably similar to those on this motion. The respondent in Broos was a co-executor who was occupying a property owned by the estate, and wished to purchase that property. Low J. found that a wish to purchase the property does not justify the continued occupation of the property without paying proper compensation.
[52] In Broos, the respondent’s continued occupation denied the estate the opportunity to rent the property out for income. The benefit to the occupier from his continued occupation was to the detriment of the other beneficiaries. In this respect, the occupier stood in a conflict of interest with the other beneficiaries.
[53] Antonio’s continued occupation of the house on Ogden Avenue results in a similar conflict of interest where he receives a benefit of occupying the house. This conflict of interest is difficult to reconcile with the duties of fidelity Antonio owes as an estate trustee to the estate and to the beneficiaries to have the house sold at the best price.
[54] The evidence on this motion does not even rise to the level of the facts in Goff v. Goff Estate, 2010 ONSC 2179, where the court ordered the respondent to pay occupation rent. On an application to pass accounts, an issue arose about whether the respondent should pay occupation rent for the time she lived in the testator’s house after the date of death. The respondent had paid all carrying costs for the property from the estate account for the time she lived there, but had later reimbursed the estate for those expenses. The court found that no provision of the will permitted any executor to live in the house rent free, and therefore occupation rent was payable by the respondent.
[55] There is no independent evidence before the court that Antonio paid the expenses to carry and maintain the house on Ogden Avenue either before or after Mrs. Ventura’s death. The last payment of municipal taxes he made in September 2017 coincides with the time Mrs. Ventura went to live with the applicants at the end of her life. Since her death, Antonio has remained in the house without paying rent, and without any right provided to him in Mrs. Ventura’s will to live there rent free.
[56] I am satisfied on the equities that Antonio should pay occupation rent, and I find on the evidence that fair market rent for the house would be in the neighborhood of $3,000 a month. It is only fair to the estate that Antonio pay two thirds of that amount each month for rent, and I am therefore making an order that Antonio shall pay occupation rent of $2,000 per month to the estate. This amount is set without prejudice to any finding either way on the fair market rent he should pay when that issue is dealt with in the greater litigation.
[57] Occupation rent is first payable by Antonio on June 1, 2020 for that month, and is payable on the first day of each month that he has possession of the house while it is owned by the estate. All rent payments shall be made to the solicitors for the applicants and held by them in trust for the benefit of the estate.
[58] The applicants have also asked for orders granting relief in the following terms:
a. Antonio is directed to immediately serve a proper and complete affidavit of documents listing all relevant documents that are in his possession, control or power, together with copies of all Schedule A productions; b. Antonio is further directed to immediately deliver the full accountings required pursuant to paragraphs 4 and 5 of the Order of Justice Trimble dated February 6, 2020, together with all supporting documentation.
[59] I am not making any order for Antonio to make the disclosure required by the Trimble order. Leaving aside any comment about whether counsel should have sworn two affidavits in a legal proceeding where he represents the applicants, Mr. Callahan’s affidavit in reply acknowledges that on April 21, 2020, Antonio served an affidavit of documents, as well as some form of accounting for the time he and his family have lived in the house on Ogden Avenue. Although Mr. Callahan provided considerable detail about how the disclosure in each of those documents is lacking, the issue now becomes whether the information disclosed is sufficient to meet the requirements of the Trimble order or the Rules of Civil Procedure. An issue of that nature requires a separate motion, on a separate record, to be heard on another day.
[60] The cross-motion with respect to requiring Antonio to serve an affidavit of documents and an accounting for managing the affairs of Mrs. Ventura from 2012 up to the date of her death, and for maintaining the house after that date, is dismissed.
Costs
[61] Costs may be spoken to on another conference call to be arranged through my judicial assistant at melanie.powers@ontario.ca.
“Original signed on file”___
Emery J.
DATE: May 27, 2020
COURT FILE NO.: CV-19-5079-00 DATE: 2020 05 27
SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
CARMELINDA VENTURA DE JESUS AND EDUARDA VENTURA LIMA Applicants
- and -
THE ESTATE OF MARIA EDUARDA DE OLIVEIRA BERNARDO VENTURA AND ANTONIO MANUEL OLIVEIRA VENTURA Respondents
REASONS FOR DECISION EMERY J.
DATE: May 27, 2020
Schedule “A”
- Wedding portrait with parents
- Parents’ wedding photo album (given to them by Eddy and Linda)
- Large photo of Linda’s older son
- Smaller photos of Linda’s boys (given to her by her parents)
- Family photos with parents (to be copied)
- Case with painting materials
- Jewelry belonging to Maria (a) wedding rings (both parents) (b) necklace (c) family ring containing children’s’ birthstones (d) 3 gold necklaces (e) necklace with cross
- Photos of Eddy and her family
- Other items belonging to Eddy’s family (in garage or house)