COURT FILE NO.: CV-22-00683286-00ES DATE: 20230320

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF JOHN IHNATOWYCH, deceased

BETWEEN:

ULANA OLHA GORGI in her capacity as Estate Trustee of the Estate of John Ihnatowych Applicant – and – MARKIAN ALEXANDER IHNATOWYCH, ALEXANDER ERIK de BERNER, DARWIN de BERNER and PARKER de BERNER, minors by their litigation guardian, ALEXANDER ERIK de BERNER, and ADRIAN TYLER GORGI, JAMES CONNER GORGI and MICHAEL JAYDEN GORGI, minors by their litigation guardian, THE CHILDREN’S LAWYER Respondents

Counsel: Alexandra V. Mayeski and Karen Hagman, for the Applicant Andrew C. McKague and Christine Marano, for the Respondents, Alexander Erik de Berner, Darwin de Berner and Parker de Berner, minors by their litigation guardian, Alexander Erik de Berner Andrew Sader, for the minors, Adrian Tyler Gorgi, James Conner Gorgi and Michael Jayden Gorgi

HEARD: January 17, 2023

REASONS FOR JUDGMENT

A.A. SANFILIPPO J.

[1] John Ihnatowych died on May 2, 2020. He left a Last Will and Testament executed on May 12, 2009 (the “Will”). Through the Will, the Deceased appointed his children, the Applicant, Ulana Olha Gorgi, and the Respondent, Markian Alexander Ihnatowych, as the executors and trustees of his estate (the “Estate”).

[2] When Ulana [1] and Markian applied for a Certificate of Appointment of Estate Trustee with a Will, the Respondent, Alexander Erik de Berner filed a Notice of Objection, also on behalf of his minor children, Parker de Berner and Darwin de Berner (collectively, the “de Berner Respondents”). Alexander claims that he has a residuary interest in the Estate because he is the Deceased’s biological son and is thereby the Deceased’s “issue” within the meaning of the “Residue Clause” contained in the Will. The de Berner Respondents claim that Parker and Darwin are the biological grandchildren of the Deceased and are thereby grandchildren of the Deceased within the meaning of the “Grandchildren Clause” in the Will.

[3] Ulana claims that she did not know of Alexander until after her father’s death, when Alexander claimed to be the biological son of the Deceased. Markian has renounced his appointment as Estate Trustee. Ulana, as the sole Estate Trustee, brought this Application to rectify the Will. The Children’s Lawyer, as Litigation Guardian for the Applicant’s minor children, supports the relief sought by the Applicant. The de Berner Respondents deny that the Will should be rectified or interpreted in the manner sought by the Applicant.

I. THE PARTIES

[4] Ulana and Markian are John’s biological children. Their mother was John’s first wife. Alexander deposed that in the period from 1960 to 1965, John had an intimate relationship with Alexander’s mother, Erika von Berner. Alexander deposed that his mother’s relationship with John terminated shortly before Alexander was born in 1965.

[5] Alexander deposed that for the first thirty years of his life, he understood from his mother that his father was his mother’s husband, George de Berner, but that in 1995, his mother told him that John was his father. Alexander deposed that he had no contact with John until May 2006: at the age of 41. At that time, John declined Alexander’s invitation to attend his wedding, but sent Alexander a wedding gift of $5,000, after which Alexander sent John a “thank you” note. Alexander testified that almost two years later, in January 2008, Alexander received from John a gift in the amount of $1,000, on the birth of Alexander’s first child, Parker. Alexander deposed that shortly after January 2008, he called John by telephone and spoke to him for the first time. Alexander testified that although he would talk with John on occasion, Alexander would not meet John in person until some 4-5 years later, in May 2014.

[6] In the meantime, in April 2009, John retained lawyer, Roman Zarowsky, to assist him with the preparation of his Will, a Power of Attorney for Property (“POAP”) and a Power of Attorney for Personal Care (“POAPC”), and to provide him with advice relating to his then-common law spouse, Nina Chuma. Accepting Alexander’s evidence on his contacts with John leading to April 2009, at the time that John retained Mr. Zarowsky, John had never met Alexander in person.

[7] Mr. Zarowsky deposed that John did not mention Alexander when providing instructions regarding John’s Will. Rather, Mr. Zarowsky deposed that John told him, both at their meetings and in his handwritten instructions, that he had two children: Ulana and Markian.

II. THIS APPLICATION

[8] The Applicant seeks an Order rectifying two clauses of the Will. First, the Applicant seeks rectification of clause VI.1 of the Will, which directs that John’s grandchildren receive 10% of the residue of the Estate (the “Grandchildren Clause”), so that this inheritance is limited to the children of Ulana and Markian (and thereby does not include Alexander’s children). This can be visualized as follows: [2]

Ten percent (10%) of the residue of my estate is to be distributed between my grandchildren among the children of Markian Alexander Ihnatowych and Ulana Olha Gorgi alive at the date of my death, in equal shares per stirpes , and administered as set out below.

[9] Second, the Applicant seeks rectification of clause VI.4 of the Will, which directs that the residue of the Estate be transferred to John’s “issue alive at the date of my death” (the “Residue Clause”), so that this inheritance is limited to Ulana and Markian (and thereby does not include Alexander). This can be visualized as follows:

The balance of the residue of my estate is to be paid and transferred to my issue Markian Alexander Ihnatowych and Ulana Olha Gorgi alive at the date of my death in equal shares per stirpes .

[10] In the alternative, the Applicant seeks an Order that the proper interpretation of the Grandchildren Clause and the Residue Clause of the Will is consistent with the Applicant’s proposed rectification.

[11] Last, the Applicant seeks an Order removing the Notice of Objection filed by the de Berner Respondents and an Order permitting the Applicant to file with the Court, together with the Will as rectified or interpreted, an application for a Certificate of Appointment of Estate Trustee with a Will.

[12] The de Berner Respondents object to the rectification and interpretation of the Will sought by the Applicant.

[13] This Application does not call for a determination of whether Alexander is or is not John’s biological child. No such order was sought. I make so no such determination. The rectification or interpretation of the Will sought by the Applicant responds to the position stated by the de Berner Respondents, through their Notice of Objection, that John had “issue” in addition to Ulana and Markian, and grandchildren apart from Ulana’s and Markian’s children. However, even though Alexander’s relationship with John has not been determined, the rectification and interpretation issues raised by this Application are not merely hypothetical or abstract, and thereby possibly moot, as the determination of this Application will “have the effect of resolving some controversy which affects or may affect the rights of the parties”. [3] Specifically, this Application will determine the issues raised by the Notice of Objection, and this will have an impact on the orderly administration of the Estate. I will, on this basis, exercise my discretion to determine this Application.

III. ANALYSIS

A. Applicable Legal Principles

[14] The parties agreed on the applicable legal principles pertaining to rectification of a Will, as set out in Re Estate of Blanca Esther Robinson, [2010] O.J. No. 2771 (“Robinson Estate SCJ”), and affirmed in Rondel v. Robinson Estate, 2011 ONCA 493 (“Robinson Estate OCA”). The parties disagreed on the application of these principles to the circumstances presented by this Application.

[15] In Robinson Estate SCJ, at para. 25, Justice Belobaba explained that, in the estates context, the Court has the equitable power of rectification, “aimed mainly at preventing the defeat of the testamentary intentions due to errors or omissions by the drafter of the will.” He set out, at para. 24, three circumstances where the Courts will rectify an unambiguous will that the testator has reviewed and executed, as follows:

Where there is no ambiguity on the face of the will and the testator has reviewed and approved the wording, Anglo-Canadian courts will rectify the will and correct unintended errors in three situations:

(1) Where there is an accidental slip or omission because of a typographical error or clerical error;

(2) Where the testator’s intentions have been misunderstood; or

(3) Where the testator’s instructions have not been carried out.

[16] Justice Pattillo reached similar conclusions about the availability of rectification and the circumstances where the court may add or delete words from a will by necessary implication to correct unintended errors: Lipson v. Lipson, at paras. 32 and 42.

[17] Justice Belobaba explained, at para. 25, that most will rectification cases involve one of the three listed circumstances, and “are typically supported with an affidavit from the solicitor documenting the testator’s instructions and explaining how the solicitor or his staff misunderstood or failed to implement these instructions or made a typographical error.” In that Application, the drafting solicitor had tendered affidavit evidence that the testator did not disclose to him that she had a Spanish Will that governed the testator’s European property, nor that she had assets in Europe. The drafting solicitor deposed that, in his view, the testator did not direct her mind to the revocation clause in the Ontario Will and did not intend that the Ontario Will revoke the Spanish Will.

[18] Justice Belobaba did not grant rectification in Robinson Estate SCJ, on his finding, at paras. 28-30, that the case was not about a solicitor’s error, because the will was drafted in accordance with the solicitor’s instructions, and then reviewed by the testator and executed. Rather, “[i]f a mistake was made, it was made by the testator”: Robinson Estate SCJ, at para. 29. Justice Belobaba made clear that Courts will not rectify a will to correct a testator’s mistaken belief of the legal effect of words that the testator reviewed and approved.

[19] Justice Belobaba stated, in hypothetical reasoning, that if a testator’s intent could be determined from third party affidavits, he would have found, primarily based on a beneficiary’s affidavit, that the testator never intended to revoke her Spanish Will. However, as the Ontario Will was drafted in accordance with the testator’s instructions, and as her lawyer had reviewed the Ontario Will with the testator, and as there was no suggestion of a drafting error, there was no basis for rectification of the Ontario Will.

[20] On appeal, the appellant raised only one issue. The appellant sought reconsideration of the common law position on the admissibility of the direct extrinsic evidence of a testator’s intention in the context of an unambiguous will. The Court of Appeal affirmed the Application Judge’s finding that “‘where there is no ambiguity on the face of the will, and no drafting error of any sort, and the will has been reviewed and approved by the testator before it was executed,’” the Court will not intervene and rectify on the basis of third party evidence that the testator was mistaken and did not mean what was said: Robinson Estate OCA, at para. 17, affirming Robinson Estate SCJ at paras. 45-46.

[21] The Court of Appeal stated, at para. 24, that “extrinsic evidence of the testator's circumstances and those surrounding the making of the will may be considered, even if the language of the will appears clear and unambiguous on first reading.” However, extrinsic evidence of the testator’s intentions that goes beyond providing facts and circumstances surrounding the making of the will are inadmissible: Robinson Estate OCA, at paras. 25-27. The Court of Appeal concluded, at para. 32, that the “admissible evidence of the surrounding circumstances did not support the inference that the testator did not intend to revoke the Spanish Will.”

B. The Parties’ Positions

[22] The Applicant relied on cases where the Court has applied the principles set out in Robinson Estate SCJ and Robinson Estate OCA and granted rectification on the basis that the testator’s instructions were not carried out by the drafting solicitor. In The Bank of Nova Scotia Trust Company v. Haugrud, 2016 ONSC 8150 (“Welton Estate SCJ”), the Court granted rectification of a will where the drafting solicitor mistakenly referred to an incorrect class of shares. The Court found that although the testator clearly set out the shareholdings in his letter to his accountant, the lawyer did not use the correct information. As the drafting solicitor misunderstood or failed to carry out the testator’s instructions, the principles set out in Robinson Estate were established. The Court of Appeal affirmed that the Application Judge had correctly applied the principles set out in Robinson Estate and dismissed the appeal: Welton Estate v. Haugrad, 2017 ONCA 831.

[23] Similarly, in Daradick v. McKeand Estate, 2012 ONSC 5622, [2012] O.J. No. 4766, Justice Matheson rectified a Will to add a bequeath to the testator’s daughter that the drafting lawyer failed to include through admitted inadvertence. In Binkley Estate v. Lang, [2009] O.J. No. 2167, the Court rectified the testator’s will to change the monetary amount of the legacies to certain beneficiaries. Justice C.R. Harris accepted the solicitor’s evidence that he had inadvertently typed the wrong value for the bequest and that this error was not discovered until after the death of the testator.

[24] On the basis of these authorities, the Applicant submitted that the Will should be rectified because Mr. Zarowsky did not carry out John’s instructions that the residue of his estate was to pass to Ulana and Markian, and that the legacy of 10% of his Estate to his grandchildren was to pass to the children of Ulana and Markian.

[25] The de Berner Respondents submitted that Mr. Zarowsky did not fail to implement John’s instructions and, indeed, did not make any mistake at all. The de Berner Respondents submitted that if there was a mistake made, it was committed by John who withheld critical information from Mr. Zarowsky with respect to his children and grandchildren. The de Berner Respondents contend that the facts of this Application are similar to those present in Robinson Estate and, like there, should be dismissed.

C. Analysis of the Will

[26] I begin with the finding that there is no ambiguity on the face of the Will. The Will provides, in pertinent part, as follows:

(a) Markian and Ulana are appointed Estate Trustees, in clause II of the Will:

“I APPOINT my children, MARKIAN ALEXANDER IHNATOWYCH … and ULANA OLHA GORGI … to be the Estate Trustees, Executors and Trustees of this my Will.”

(b) Markian and Ulana are gifted the testator’s personal belongings, in clause IV(c) of the Will:

“To deliver to my said children, MARKIAN ALEXANDER IHNATOWYCH and ULANA OLHA GORGI, … all articles of personal, domestic and household use or ornament belonging to me at my death, …

(c) Markian will receive a vacant lot owned by the testator, in clause V of the Will:

“If at the date of my death I still own a lot/ land located at the Ukrainian “Plast” community in Grafton, Ontario, then such land is to be conveyed to my son, MARKIAN ALEXANDER IHNATOWYCH, for his own use absolutely.”

(d) Ten percent of the residue of the Estate is to be distributed to John’s grandchildren, in clause VI(1) of the Will:

“Ten percent (10%) of the residue of my estate is to be distributed between my grandchildren alive at the date of my death, in equal shares per stirpes , and administered as set out below.”

(e) The balance of the residue of the Estate is to be distributed to John’s issue, alive at the date of his death, in clause VI(4):

“The balance of the residue of my estate is to be paid and transferred to my issue alive at the date of my death in equal shares per stirpes.”

[27] Further, there is no challenge to the validity of the Will. It is not disputed that the Will was executed by John on May 2009, witnessed by Mr. Zarowsky and his office manager. Mr. Zarowsky’s evidence that he reviewed the Will with John at the time of its execution, and that John approved the Will, was not challenged.

D. Were the Testator’s Instructions Carried Out?

[28] The Applicant’s case for rectification rests on establishing that John’s instructions were not carried out by Mr. Zarowsky. In support of her position, the Applicant relied on the Will and on the affidavit evidence of Mr. Zarowsky, sworn June 28, 2022 (the “Zarowsky Affidavit”), setting out surrounding circumstances to the preparation and execution of the Will.

[29] The Court will admit extrinsic evidence to establish an error “when it comes from the solicitor who drafts the will, makes the error and can swear directly about the testator’s intention”: Robinson Estate SCJ, at para. 26. The Court of Appeal instructed that “extrinsic evidence of the testator’s circumstances and those surrounding the making of the will may be considered, even if the language of the will appears clear and unambiguous on first reading”: Robinson Estate OCA, at para. 24. Surrounding circumstances include the circumstances affecting the making of the Will and the testator’s relationship to named and potential beneficiaries”: Daradick, at para. 41.

[30] I will thereby admit Mr. Zarowsky’s affidavit evidence to the extent that it pertains to the circumstances surrounding his preparation of the Will, the execution of the Will by the testator and the testator’s instructions to Mr. Zarowsky.

[31] Mr. Zarowsky deposed that he met with John on April 21, 2009, for the purpose of acting for him in the preparation of a will and powers of attorney. Mr. Zarowsky swore that John brought to the meeting several documents that he had prepared to provide his instructions, including a handwritten document entitled: “My Last Will John Ihnatowych”, dated June 17, 2008 (the “2008 Will Notes”). In the 2008 Will Notes, John wrote as follows:

(a) In paragraph 1: “ My estate to be shared eaqualy ( sic ) between my children Ulana Olha Gorgi & Markian Alexander Ihnatowych ”.

(b) In paragraph 2: “I designate both Ulana & Markian to be my Trustees”.

(c) In paragraph 3: “Upon my death I transfer my Power of Attorneys over Nina Chuma to my daughter Ulana to be shared with my son Markian, both financial and personal care.”

(d) In paragraph 4: “Trustees – To be shared equaly ( sic ) between my children, Ulana & Markian”.

(e) In paragraph 5: “Cottage at Hoverla turned to Ulana & lot at Polawa turned to Markian to be assest ( sic ) & finantionaly ( sic ) divided equaly ( sic ).”

(f) In paragraph 6: “It is my wish upon my death 10% of my estate to be invested for my blood grandchildren. Investment to be shared by Ulana & Markian.”

(g) In paragraph 8: “Should Ulana or Markian divorse ( sic ), their inheritance from me plus interest should be transferred to my blood grandchildren and invested, spend on their education, or transferred to them at age 21. In Markian’s case at present no children, inheritance from me should be tranfered ( sic ) to him.”

[32] Mr. Zarowsky deposed that John also provided him with an undated and unexecuted Power of Attorney for Personal Care that he had prepared from a form (the “Client’s Draft POAPC”). The Client’s Draft POAPC appointed, in paragraph 5.1, “my child Ulana Gorgi of Toronto” as his attorney for personal care, and provided, in paragraph 5.2, as follows: “If my child Ulana Gorgi dies, or refuses or is unable to act or to continue to act, then I appoint my child Markian Ihnatowych of Toronto, Ontario to act as my Attorney for Personal Care.”

[33] Mr. Zarowsky deposed that John also provided him with an undated and unexecuted Will that he had prepared from a standard form (the “Client’s Draft Will”). The Client’s Draft Will appointed, in paragraph 4.1, “my child Ulana Gorgi” as John’s Trustee, and provided, in paragraph 4.2, as follows: “If my child Ulana Gorgi dies, or refuses or is unable to act or to continue to act … then I appoint my child Markian Ihnatowych to act as my Trustee.” The Client’s Draft Will divided the residue of John’s Estate into as many equal shares as he had children who survived him. It also contemplates a scheme to divide each predeceased child’s share into as many portions as that predeceased child had children surviving the Deceased.

[34] John also provided Mr. Zarowsky with a handwritten noted dated April 21, 2009. John wrote that he wanted to “ensure power of attorney upon my death is transferred to my children Ulana and Markian. Important” (the “April 2009 Note”).

[35] Mr. Zarowsky not only tendered into evidence these materials that were prepared by John and provided to Mr. Zarowsky at the April 21, 2009 meeting, but also produced the handwritten notes that Mr. Zarowsky made during the meeting. The handwritten notes record the following:

(a) John told Mr. Zarowsky that he was born in 1936, married in 1968, and had two children, Ulana, born in 1973, and Markian, born in 1975. John divorced in 1990.

(b) Ulana had two sons. Markian did not have any children.

(c) Regarding his attorneys for property and for personal care, John wanted to appoint his “2 kids”, Markian and Ulana, as joint attorneys.

(d) Regarding his Will, John instructed:

i. His “children” were to be appointed as trustees, and personal effects to the “2 kids”.

ii. 10% of the residue of his estate “to be divided between any grandchildren alive at the time of his death”.

iii. The residue of his estate was to be “divided between 2 kids alive at the date of death, equal shares per stirpes.”

[36] Mr. Zarowsky deposed that based on the materials provided to him by John, and based on John’s instructions provided during the meeting of April 21, 2009, Mr. Zarowsky understood that John’s instructions were that John wanted to leave his entire estate to Markian and Ulana and their children. Mr. Zarowsky set out to prepare a Will that was in accordance with these instructions.

[37] Mr. Zarowsky deposed that on May 12, 2009, he met with John to review the estate planning documents that he had drafted: specifically, the POAP, the POAPC and the Will. Mr. Zarowsky stated that the Will identifies Ulana and Markian by name when appointing them as trustees, and when gifting to them the testator’s personal property, but in the Residue Clause referred to them as “issue”. Further, Mr. Zarowsky admitted that he did not specify in the Grandchildren Clause that the grandchildren were children of Ulana and Markian.

[38] Mr. Zarowsky deposed that John did not mention Alexander, or his children, Parker and Darwin, to him at any time in their discussions. Mr. Zarowsky swore that John’s clear instructions were that he consistently wanted only Ulana and Markian, and their children, to benefit from his Estate. Mr. Zarowsky admitted that the Will that he “drafted for the Deceased does not specifically limit the beneficiaries to Ulana and Markian, and their children, and therefore does not accurately reflect the Deceased’s intentions and instructions.”

[39] I accept Mr. Zarowsky’s evidence as it is supported by Mr. Zarowsky’s handwritten notes taken contemporaneously during his April 2019 meeting with John. This evidence is unchallenged by any conflicting evidence and unaffected by cross-examination. The de Berner Respondents emphasized that Mr. Zarowsky admitted in cross-examination that John did not tell him that he “wanted to exclude one of his children” and “some of his grandchildren”. I do not place the same emphasis on this admission when qualified by Mr. Zarowsky’s explanation of his instructions: “What he told me was that he wanted his estate to go to his children, Markian and Ulana.”

[40] Further, I place considerable weight on John’s 2008 Will Notes as a clear, purposeful and categorical handwritten statement of John’s instructions to Mr. Zarowsky: “My estate to be shared eaqualy ( sic ) between my children Ulana Olha Gorgi & Markian Alexander Ihnatowych.” These handwritten instructions by John leave no reason for doubt when Mr. Zarowsky swears that John instructed him that only Ulana and Markian, and their children, were to benefit from his Estate. I find that Mr. Zarowsky’s evidence is plausible when considered in the context of the documents written by John, and reliable as it was tendered against self-interest.

[41] The de Berner Respondents tendered the affidavit of Alexander, sworn August 15, 2022. I admitted those paragraphs of the affidavit that explained the surrounding circumstance of Alexander’s contact with John in the period leading to John’s execution of the Will on May 12, 2009 as it set out Alexander’s evidence of his relationship with John. However, I have disregarded paragraphs 20-33 of Alexander’s affidavit as it contains evidence of Alexander’s contacts with John after John’s execution of the Will, in the period from 2010-2019. This evidence is not only inadmissible as extrinsic evidence that goes beyond providing facts and circumstances surrounding the making of the Will, in accordance with Robinson Estate OCA at paras. 25-27, but it is irrelevant to my consideration of the surrounding circumstances of John’s execution of the Will on May 12, 2009.

[42] The de Berner Respondents submitted that Mr. Zarowsky can only speculate regarding what John truly intended. I do not agree. The 2008 Will Notes, handwritten by John, supported by Mr. Zarowsky’s handwritten notes of the instructions provided to him by John, support Mr. Zarowsky’s evidence, which I have accepted, that John instructed him to prepare a Will that transferred his assets upon his death to Ulana and Markian and their children. I accept Mr. Zarowsky’s admission that John’s instructions were not carried out by Mr. Zarowsky in the drafting of John’s Will in the wording of the Grandchildren Clause and the Residue Clause because the wording of those clauses does not accurately reflect John’s intentions and instructions.

E. Conclusion

[43] “The court’s task in a rectification case is corrective, not speculative, and is utilized with abundant caution”: Binkley Estate, at para. 14. I have concluded that the Will contains an unintended error in that the testator’s instructions have not been carried out in two clauses, the Grandchildren Clause and the Residue Clause, which, as worded, could result in John’s estate passing to persons other than Ulana and Markian and their children. I thereby conclude that the principles set out in Robinson Estate have been established and support an Order rectifying the Will’s Grandchildren Clause and the Residue Clause.

[44] I conclude, further, that the requirements set out in Lipson, at para. 42, for the deletion or insertion of words to correct an error in a Will have been satisfied. As Mr. Zarowsky explained, the Will does not accurately or completely express the Deceased’s intentions when reading the Will as a whole, which consistently refers to Ulana and Markian as John’s Children in the trustee appointment clause and the property clause, but not in the Residue Clause and, by extension, in the Grandchildren Clause. The Order sought by the Applicant for the deletion of words, and addition of words, as set out in the Notice of Application, will give rise to the testator’s intention, as determined from a reading of the Will as a whole and in light of the surrounding circumstances, as I have found them.

F. Order Sought for Interpretation of the Will

[45] Considering my determination that the Will shall be rectified in the Grandchildren Clause and the Residue Clause, it is not necessary to issue an Order interpreting the Will.

IV. DISPOSITION

[46] On the basis of these Reasons, a Judgment shall issue in the following terms:

(a) Clause VI.1 of the Last Will and Testament of John Ihnatowych dated May 12, 2009 (the “Will”) shall be rectified and restated as follows:

“Ten percent (10%) of the residue of my estate is to be distributed among the children of Markian Alexander Ihnatowych and Ulana Olha Gorgi alive at the date of my death, in equal shares per stirpes , and administered as set out below.”

(b) Clause VI.4 of the Will shall be rectified and restated as follows:

“The balance of the residue of my estate is to be paid and transferred to my issue Markian Alexander Ihnatowych and Ulana Olha Gorgi alive at the date of my death in equal shares per stirpes.”

(c) The Notice of Objection dated November 30, 2020 filed by the Respondent, Alexander Erik de Berner, also on behalf of his minor children, Parker de Berner and Darwin de Berner, shall be removed and is of no further force and effect. The Applicant may file an application for a Certificate of Appointment of Estate Trustee with a Will.

[47] The lawyers for the parties may deliver to my judicial assistant a form of draft Judgment, after agreeing on its form and content and filing on CaseLines, comprising the disposition set out in these Reasons for Judgment. In the event of disagreement, any party may request the scheduling of a Case Conference to settle the form of Judgment.

V. COSTS

[48] The parties are encouraged to agree on the issue of costs. If the parties cannot agree on the issue of costs, any party seeking costs may, by April 3, 2023, deliver by email to my judicial assistant after service and filing on CaseLines, written costs submission of no more than 6 pages, plus a Bill of Costs. Any party against whom costs is sought may, by April 17, 2023, deliver by email to my judicial assistant after service and filing on CaseLines, responding cost submissions of the same length. If no party delivers any written cost submissions by April 17, 2023, I will deem the issue of costs to have been settled.

A.A. Sanfilippo J. Released: March 20, 2023

COURT FILE NO.: CV-22-00683286-00ES DATE: 20230320 ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE ESTATE OF JOHN IHNATOWYCH, deceased BETWEEN: ULANA OLHA GORGI in her capacity as Estate Trustee of the Estate of John Ihnatowych Applicant – and – MARKIAN ALEXANDER IHNATOWYCH, ALEXANDER ERIK de BERNER and ADRIAN TYLER GORGI, JAMES CONNER GORGI, MICHAEL JAYDEN GORGI, DARWIN de BERNER and PARKER de BERNER, minors by their litigation guardian, THE CHILDREN’S LAWYER Respondents

REASONS FOR JUDGMENT AA. Sanfilippo J. Released: March 20, 2023

[1] For brevity and clarity, I will refer to the parties in these Reasons by their first names, respectfully.

[2] Deletions illustrated by strikethrough , and addition illustrated by underline .

[3] Borowski v. Canada (Attorney General), [1989] 1 SCR 342, at p. 353: “ The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision.”