Court File and Parties
COURT FILE NO.: CV-23-694340-00ES DATE: 20230704 ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF JOHN ANDREW MCKEE, deceased
RE: MARY SUSAN MCKEE, in her capacity as estate trustee of the estate of John Andrew McKee Applicant
-and-
JENNIFER VLASIU Respondent
BEFORE: FL Myers J
COUNSEL: Arieh Bloom and Liza Saad for the applicant Jennifer Vlasiu, self-represented respondent
HEARD: June 30, 2023
Endorsement
This Application
1Under Rule 75.01 of the Rules of Civil Procedure, RRO 1990, Reg 194, Mary Susan McKee asks the court to issue a Certificate of Appointment of Estate Trustee with a Will. She seeks to have the court formally recognize the will of her late brother John Andrew McKee and to recognize her as the estate trustee of the estate under the will.
2Jennifer Vlasiu has objected to the relief sought by Ms. McKee relying on Rule 75.03 of the Rules.
3In response, Ms. McKee asks to vacate or dismiss the objection filed by Ms. Vlasiu.
Outcome
4Ms. Vlasiu claims to have been horribly mistreated by the deceased and others. She claims to be the victim of criminal acts, violence, and violations of her constitutional rights among other things. She seeks to advance some of her claims in this probate proceeding. She asks for a declaration concerning title to land and for an award of damages in this proceeding.
5Ms. Vlasiu is not a beneficiary, a dependent, or a relative of the deceased. The beneficiaries under Mr. McKee’s will are his two daughters.
6Ms. Vlasiu is not challenging the authenticity or the validity of the will of the deceased.
7Ms. Vlasiu has misdirected her concerns. Her upset and claims due to alleged mistreatment by the deceased are not properly issues on this application.
8As a person with claims against a deceased person and his estate, Ms. Vlasiu has no financial interest in the estate of the type needed to make an objection under Rule 75.03 on which she relies. Her issues are not with the make-up or the administration of the estate. To the contrary, the estate and its beneficiaries are adverse in interest to Ms. Vlasiu.
9I am not ruling on the validity of Ms. Vlasiu’s claims as they are not properly brought in this proceeding. One cannot claim title to property held by a third party or damages from an estate or others on an application for the issuance of a Certificate of Estate Trustee with a Will under Rule 75.01 or by objection under Rule 75.03. I recite some of the background to some of Ms. Vlasiu’s claims below just to allow me to discuss how they intersect with the request by Ms. McKee that is before me today.
10For the reasons set out below, I have signed the order vacating Ms. Vlasiu’s objection and directing the registrar to issue a Certificate of Appointment of Estate Trustee to Ms. McKee.
The Facts
11Ms. Vlasiu objects to the appointment of Ms. McKee as her brother’s estate trustee because, in effect, Ms. Vlasiu alleges that the deceased defrauded her of her 50% interest in her home at 1370 Avenue Road, Toronto.
12Ms. Vlasiu and her child were forcibly evicted from her home under a writ of possession upon a sale of the property to which she never agreed.
13Ms. Vlasiu says that Mr. McKee was her neighbour. He fraudulently purported to purchase her home in the name of his corporation PSHN Holdings Corp. The property has since been sold by PSHN to a third party.
14Ms. McKee is currently a director of PSHN (presumably elected or appointed to that position by exercising her brother’s rights as a shareholder of the corporation). Ms. McKee is said to have caused the on-sale of the house by PSHN earlier this year despite not yet having obtained probate.
15Ms. Vlasiu initially purchased the house at 1370 Avenue Road in 2019 as a tenant in common with a Mr. Adam Saperia. She says that she and Mr. Saperia were not spouses. This is confirmed by recitations in the conveyancing documents evidencing the purchase of the property. She and Mr. Saperia also filed income tax returns claiming that each was single.
16In 2020, Mr. Saperia brought a legal proceeding against Ms. Vlasiu in the Family Division of this court. Before me, Ms. Vlasiu provided only a redacted version of Mr. Saperia’s Notice of Application. She showed me that Mr. Saperia’s pleading contained an “X” in a box that said that the claim included a claim for support but it did not include a claim for property or exclusive possession of the matrimonial home or its contents. Mr. Saperia’s counsel signed the form in the place where counsel are required to confirm their compliance with s. 9 of the Divorce Act.
17Ms. Vlasiu says that she and Mr. Saperia were never married and were not spouses. Therefore, in her submission, the court had no jurisdiction to make any orders in the family law proceeding brought by Mr. Saperia.
18Nevertheless, by order dated November 27, 2020, in the family law proceeding, Boucher J. exercised her authority under the Partition Act, RSO 1990, c P.4 to order Mr. Saperia and Ms. Vlasiu to sell their property at 1370 Avenue Road. Justice Boucher recited in her endorsement that Ms. Vlasiu had asked her to uncouple the partition claim from the rest of the family law proceeding. Boucher J. declined and made the sale order sought by Mr. Saperia.
19Despite telling me that Mr. Saperia sought only a divorce in the proceeding, it is apparent that Mr. Saperia also sought an order for partition and sale of the house that he and Ms. Vlasiu owned as tenants in common. Ms. Vlasiu understood this as she expressly asked Boucher J. to defer that piece of the relief. Her reliance on the apparently errant “X” may explain why Ms. Vlasiu redacted Mr. Saperia’s claims in the Notice of Application in her evidence on this application.
20Ms. Vlasiu relies on technical readings of documents to submit that the court had no authority to make a partition order in a family law proceeding when she was not a spouse. She relies on recitals in letters and a deed and a single tick box rather than looking at the full pleadings and court orders made in the proceeding.
21Although Ms. Vlasiu would not acknowledge it in this proceeding, it appears that she and Mr. Saperia had a child together. Ms. Vlasiu claimed child support for their child in the family law proceeding.
22There is nothing unusual or untoward about a claim for partition and sale under the Partition Act being included in a proceeding before the Family Division of the court or for it to have been dealt with on a motion under the Family Law Rules, O. Reg. 114/99. That is standard fare.
23All the judges of this court exercise the same jurisdiction regardless of the administrative team on which they are scheduled to sit.
24Ms. Vlasiu submits that there was never a final order for partition and sale made. Yet the Divisional Court held expressly that the order made by Boucher J. was indeed a final order despite it being made on a motion. Vlasiu v. Saperia, 2021 ONSC 564, at para. 2. Ms. Vlasiu told the Divisional Court that she intended to seek a stay pending appeal of Justice Boucher’s order for the sale of the house. However, she apparently never did so. No appeal proceeded.
25Ms. Vlasiu says that there is no court order specifically requiring the sale of her 50% undivided interest as a tenant in common in the property. However, Justice Boucher’s order did just that. It seems that Ms. Vlasiu is parsing words and expects there must be a specific reference to her “undivided 50% interest as a tenant in common” in the form of order. No law requires that specific phrase to appear in Justice Boucher’s order for it to be effective to compel partition and sale.
26Rather than appealing, Ms. Vlasiu obstructed sale efforts under the court’s order. On April 8, 2021, in a decision reported as Saperia v. Vlasiu, 2021 ONSC 2733, Papageorgiou J. of this court found that Ms. Vlasiu had breached Justice Boucher’s order.
27Papageorgiou J. listened empathetically to Ms. Vlasiu’s concerns and found:
[55] I have sympathy for Vlasiu. She was obviously very distressed at the hearing. I read all of her materials which showed that the parties had a relationship that she greatly valued, together with her upset over the way it ended. She is on maternity leave with a small child which cannot be easy during this pandemic. She is stressed about his future; she sees herself as fighting for her child’s rights even when it comes to the Property and was tearful that her son may not have a meaningful relationship with his father.
[56] However, the reality is that the manner in which she is conducting herself in this proceeding is causing delay, time, and expense to both parties and is counter-productive to her goal of providing for her child.
28Papageorgiou J also made important conclusions about Ms. Vlasiu’s narrative and conduct as follows:
[70] I understand that she is unrepresented but the problems with her submissions, materials and conduct go well beyond the fact that she does not have legal training. It is not acceptable for people to come to court and repeatedly make the kinds of unfounded, scandalous and bald allegations which I have read and heard, and/or continually come to court seeking to relitigate decisions made against them already.
[71] While I did not agree with most of her submissions, Vlasiu presents as extremely intelligent, astute, articulate, and familiar with court processes. In my view, it is not that she is unable to understand the Court Orders which have been made, but rather her refusal to do so and to insist on a narrative which simply is not true.
29As a result of Ms. Vlasiu’s misbehaviour in preventing the sale of the house as ordered, Papageorgiou J. ordered that Mr. Saperia was to have sole control of the sale of the property. To that end, she ordered Ms. Vlasiu (and her child) to leave the property within 60 days. She ordered that each party would be entitled to an immediate payment from the sale proceeds of $150,000 with the balance to be held pending the outcome of that proceeding. She also ordered Mr. Saperia to pay child support.
30Ms. Vlasiu did not appeal this order. It remains a subsisting order of the court.
31Although given a further 60 days to leave the house, Ms. Vlasiu did not vacate the premises as ordered by Papageorgiou J. She had to be evicted by the Sheriff.
32Ms. Vlasiu makes much of a letter from the Sheriff’s office indicating that it evicted her as a tenant under writ of possession. She says she was never a tenant. The writ was issued by the court to enforce Justice Papageorgiou’s order that Ms. Vlasiu deliver vacant possession of the premises to Mr. Saperia to facilitate the court-ordered sale. How the staff in the Sherriff’s office characterized their understanding of their eviction assignment has no bearing on the jurisdiction of the court or the legality of the process.
33In accordance with the orders of Boucher and Papageorgiou JJ, Mr. Saperia sold the house to PSHN for almost $1.6 million. The deed and certificate of title are in the material evidencing the sale. Ms. Vlasiu says that no funds were paid by PSHN. She wants disclosure from the estate of Mr. McKee to prove that funds were paid by PSHN for the purchase.
Ms. Vlasiu’s Claims
34Ms. Vlasiu submits that the partition and sale was a theft of her 50% interest in the house by Mr. McKee in cahoots with Mr. Saperia and others. As such, she asserts that the sale is void and that she still owns her 50% interest in the house. She asks me to enforce her contractual entitlement to her 50% interest by ordering the return of her interest to her now. She says the current owner takes subject to her interest because he or she took title from PSHN before Ms. McKee had a Certificate of Estate Trustee with a Will.
35In the event that I do not recognize Ms. Vlasiu’s continued ownership of a 50% interest in the house, Ms. Vlasiu asks for an order requiring the estate to pay her $1 million for her property interest. She also seeks damages for the value of her personal chattels that she says were improperly seized; damages for imputed rent; and $300,000 damages for pain and suffering endured by her and her child. She says the applicant and the deceased are criminals trading in stolen property. She claims that she and her father have been defamed by this proceeding. She claims that her rights under the Charter of Rights are being violated. She asks the court to protect her as a victim of violence and abuse. She says she is a refugee in Canada and should be served with process through the embassy (although she will not identify the embassy to which she refers or the country in which she allegedly is currently located if not Canada).
Analysis
36It is apparent that Ms. Vlasiu labours under some misapprehensions about the law and how it works in Ontario. Until a subsisting court order is set aside, it conclusively resolves the issues that it determines. Ms. Vlasiu is free to disagree with orders of this court. She is free to contest them by appeal or otherwise under the Rules of Civil Procedure. She is free to speak out against them. But she is bound by them.
37The orders of this court set out the legal rights of the parties whether they agree or not.
38It is not open to Ms. Vlasiu to ignore the orders of Boucher and Papageorgiou JJ because she disagrees with them – no matter how vociferously. If Ms. Vlasiu can show an appellate court that orders that she opposes were improperly made, then the orders can be set aside. But she cannot attack, undermine, or ignore subsisting orders of the court in separate proceedings such as this one.
39Ms. Vlasiu may believe that she was not a spouse and that the court had no jurisdiction to make a partition and sale order against her in a proceeding in the Family Division. But her beliefs do not undermine the legal effectiveness of the orders made.
40Ms. Vlasiu is just continuing the misconduct that was already decried by Papageorgiou J. She makes unfounded and nasty allegations, alleging criminal acts and conspiracies for acts that have been found to be lawful and ordered by the court. She seeks to relitigate her allegations yet again in this probate application.
41Mr. Bloom submits that a claim by a creditor is not one that is accorded standing in a probate proceeding under Rule 75 of the Rules of Civil Procedure. Creditors of the deceased can advance claims against an estate. But they have no say about the validity of the will or the recognition of an estate trustee under a will.
42In Magnotta v. Magnotta, 2020 ONSC 316, Dietrich J. held:
[41] Rule 75 is not intended to be used by creditors to secure recovery of assets within an estate: Weidenfield, at para. 19. Granting creditors, who have a variety of means to enforce their rights against the estate of a deceased person, standing pursuant to Rule 75 introduces unnecessary complexity into estate procedures: Belz v. Mernick Estate, [2000] O.J. No. 542, at para. 16.
43While Dietrich J. allowed for the possibility that a creditor might possibly have standing in an appropriate case, I agree with her statement of the general rule as set out immediately above.
44Ms. Vlasiu says that she is not a creditor of the estate. She views herself as a victim of criminal misconduct. She says she is seeking recognition of her title to land and compensation for the losses that she has suffered at the hands of the deceased. Ms. Vlasiu refers to definitions of a creditor as someone who voluntarily provides goods, services, or credit to another person. She has not voluntarily provided any value to the deceased and therefore, she submits, she cannot be treated as a creditor of his estate.
45It seems that Ms. Vlasiu is not familiar with the term “involuntary creditor”. People can become creditors without voluntary conduct. See: Re Carson. This is an enduring common law concept that was referred to in Latin as a creditor “in invitum” or against one’s own will.
46Anyone who has a cause of action or a right to make a claim against another person is a creditor whether voluntarily or involuntarily so. For the purposes of Rule 75, the important distinction is that Ms. Vlasiu is not claiming as a person who has any rights under the will of the deceased or to share in the distribution of the estate according to the will. Ms. Vlasiu’s rights, if any, are as someone who might make claims against the estate whether for title to land that the estate claims to own or for money. That her claims have arisen involuntarily, even if true, is quite beside the point for the purposes of this proceeding and the assessment of a “financial interest” under Rule 75.01.
47I note that although Ms. Vlasiu says that the estate is holding her half of the house and her chattels, she presents no evidence to undermine the evidence that the house was sold to PSHN.
48There is also no evidence before me as to what happened to Ms. Vlasiu’s chattels when she was evicted. She might have a claim concerning her loss of her chattels. But even if she has a claim against the estate of Mr. McKee, again, that makes her a creditor and not someone who has anything to say about the recognition of the will or the estate trustee under the will.
49Ms. Vlasiu complains that Ms. McKee has not submitted a Form 75J to seek appointment as an estate trustee during litigation. That is because Ms. McKee is seeking appointment as an estate trustee pursuant to a will and not as an estate trustee during litigation. That is a different thing altogether.
50Ms. Vlasiu’s submissions ended with her making a plea that Canadian laws and society protect victims of crime. They protect abused women and children, and people whose rights have been violated. As absolutely true as that is, it has nothing to do with the recognition of Ms. McKee as the estate trustee under her brother’s will.
51Ms. Vlasiu’s only complaint against Ms. McKee, apart from being her brother’s sister, is that she was involved as a director of PSHN in the recent on-sale of the property by PSHN to a third party prior to probate being granted. No law of which I am aware required Ms. McKee to have probated her brother’s will before PSHN sold its asset to a third party. The third-party purchaser was likely content to rely on the indoor management rule. Nothing about that event drives the hyperbolic inferences of criminality asserted by Ms. Vlasiu.
52This is an application to recognize Mr. McKee’s will and the appointment of Ms. McKee as estate trustee of Mr. McKee’s estate. I agree with Ms. Vlasiu, that her claims for title, compensation, and breaches of her rights will turn on contested facts that should not be decided in an application. If she has lawsuits or actions that she wants to bring will be for her to decide. She has no standing to participate in this proceeding, however.
Costs
53Ms. Vlasiu seeks costs on a full indemnity basis of $8,500. Ms. McKee seeks costs on the same basis of $11,783.
54The normative approach in Ontario is that costs follow the event. That is, the successful party is presumptively entitled to be partially indemnified for the legal costs incurred in successfully prosecuting or successfully defending the proceeding as the case may be.
55However the entitlement and quantum of costs are discretionary orders under s. 131 of the Courts of Justice Act, RSO 1990 c C.43. The court’s discretion is generally exercised with a view to the factors set out in Rule 57.01 of the Rules of Civil Procedure.
56The level of indemnity, whether partial, substantial, or full indemnity, is also a discretionary decision. Ordering enhanced costs to be paid by the unsuccessful party in a civil case is unusual where there are no offers to settle. Generally, costs are ordered at a partial indemnity rate unless the unsuccessful party has engaged in reprehensible, scandalous, or outrageous misconduct. See: Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 43.
57I agree with both parties’ submissions that this is a case for costs to be ordered on a full indemnity basis. The conduct of Ms. Vlasiu has been inappropriate, reprehensible, and outrageous.
58Despite Justice Papageorgiou’s admonition, Ms. Vlasiu continues to boldly and baldly accuse others of overt criminality. She says Mr. McKee was in a criminal conspiracy in buying the house from Mr. Saperia despite the court orders authorizing the sale.
59Ms. Vlasiu says Ms. McKee is a criminal as she is trafficking in stolen goods by on-selling the house through PSHN, and she is committing child trafficking.
60The allegation of child trafficking involves a tortured analysis that by participating in PSHN’s sale of the house, Ms. McKee is depriving Ms. Vlasiu’s child of her future in the house as envisioned by Ms. Vlasiu. While, like Papageorgiou J. I can hear Ms. Vlasiu’s anger and distress at her perception of the situation, to somehow twist it into an allegation of child trafficking by Ms. McKee is bizarre.
61Ms. Vlasiu intimated that the two judges who ruled that the house was to be sold were part of Mr. McKee’s organized crime gang. She explained to me that those judges are not immune from accountability for their criminal misconduct. She then accused Mr. Bloom of perjury when he referred to her as married and a spouse. Mr. Bloom was not testifying under oath. Therefore, the crime of perjury cannot apply at all. Moreover, even if Ms. Vlasiu and Mr. Saperia were not married, Papageorgiou J. made clear that they had a meaningful relationship and a child. Nothing about Mr. Bloom’s submissions, even if factually incorrect, showed any hint of intent to mislead the court.
62Ms. Vlasiu’s claim to be a refugee who must be served with process through an embassy that she will not identify is another point by which she just seeks to cause costs to be incurred. She might think she is alluding to the Hague Convention (formally - Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Concluded 15 November 1965)). But even it does not require service on people at embassies. It also has no application to a person whose address is unknown. When asked during the hearing, Ms. Vlasiu declined to say even if she remains in Canada or is abroad.
63In any event, Ms. Vlasiu had ample notice of this proceeding. She delivered material and participated fully during the hearing. There is no basis to question the effectiveness of service upon her. This entire submission was just mischief.
64Ms. Vlasiu’s own effort at service of her material was also noteworthy. She attended unannounced at counsel’s office, made a scene, and physically shoved her material under an employee’s arm. She apparently became upset that counsel would not “accept service” without instructions. It is not clear why she insisted on an acceptance of service rather than just filing an affidavit of service or asking the receptionist to admit service of a non-originating process. Perhaps Ms. Vlasiu did not know that accepting service is something different than a mere admission that a document has been delivered. Counsel cannot be faulted for not accepting service without instructions. Perhaps Ms. Vlasiu just made a mistake asking for service to be accepted. But, regardless of her lack of technical legal knowledge, no one deserved the verbal or physical abuse meted out by Ms. Vlasiu just for doing their jobs and doing what the law requires.
65I find that the respondent has engaged in reprehensible litigation misconduct sufficient to justify an award of costs on a full indemnity basis as claimed.
66The amount ordered as a costs award must be reasonable and fair. Costs awards are not punitive. Even when costs are awarded on an enhanced basis, they are compensation and not punishment.
67I was quite surprised at the applicant’s request for $11,783 as costs of this proceeding on a full indemnity basis. That is a low amount for a full indemnity bill for a contested hearing. It is apparent that the applicant resisted the temptation to join issue with Ms. Vlasiu on the merits of her claims. Counsel did not cross-examine Ms. Vlasiu or spend pages of factum on her complaints. Here, the applicant and her counsel are to be commended for maintaining perspective, refusing to be drawn into the facts, and thereby keeping costs so low.
68I frankly would have expected the applicant’s costs on a partial indemnity basis to be somewhat more than she claims as full indemnity for her costs. There is no issue of the quantum being reasonable and within the reasonable contemplation of the opposite party. They are just $3,000 more than Ms. Vlasiu claimed herself as a self-represented party.
69Ms. Vlasiu is ordered to pay Ms. McKee her costs of this proceeding fixed at $11,783 all-inclusive.
FL Myers J
Release Date: July 4, 2023