COURT FILE NOS.: CV-23-00696229-00ES CV-23-00704035-00ES DATE: 202407 26

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE LAST WILL AND TESTAMENT OF LEONARDO LA CALAMITA, DECEASED

BETWEEN:

JOHN MICHAEL LA CALAMITA also known as JOHN LA CALAMITA IN HIS CAPACITY AS ESTATE TRUSTEE OF LEONARDO LA CALAMITA DECEASED, MARCH 16TH 2018 Applicant – and – DIANE MARIA LA CALAMITA, NADINE ROSE LA CALAMITA and JOHN MICHAEL LA CALAMITA Respondents

Ronald B. Moldaver , K.C., for John Michael La Calamita

– and – COURT FILE NO.: CV-23-00704035-00ES BETWEEN: DIANE MARIE LaCALAMITA Applicant

Justin W. De Vries and Karen Watters, for Diane Marie LaCalamita

– and – JOHN MICHAEL LaCALAMITA, personally and in his capacity as estate trustee of the Estate of Leonardo LaCalamita, also known as Leonard LaCalamita, and NADINE ROSE LaCALAMITA Respondents

HEARD: February 12, 2024, March 18 and 21, 2024

REASONS FOR JUDGMENT

A.A. SANFILIPPO J.

Overview

[1] Leonardo La Calamita died on March 16, 2018. His wife, Rose La Calamita, died some 32 months later on November 4, 2020. Leonardo and Rose are survived by their three children: John Michael La Calamita, Nadine Rose La Calamita, and Diane Marie LaCalamita. [1]

[2] Leonardo and Rose each left a last will and testament. Leonardo’s will is dated May 4,1998 (“Leonardo’s Will”) and Rose’s will is dated November 22, 2018 (“Rose’s Will”). Leonardo’s Will appointed Rose as Leonardo’s estate trustee if she survived him, as she did, and granted Rose a life interest in the residue of Leonardo’s Estate. Leonardo’s Will provides that upon Rose’s death, John be appointed as the trustee of Leonardo’s Estate and that Leonardo’s Estate be divided into equal shares for his three children. Rose’s Will appointed John and Diane as co-estate trustees of Rose’s Estate, and provided that John, Nadine, and Diane are equal beneficiaries of Rose’s Estate.

[3] Rose’s Estate consisted primarily of a residential property known municipally as 113 Lord Seaton Road, Toronto, Ontario (the “Lord Seaton House”) which Rose received by right of survivorship upon Leonardo’s death, and Leonardo’s Estate consisted primarily of a two-storey commercial property known municipally as 2447 Yonge Street, Toronto, Ontario (the “Yonge Street Property”), which was owned by Leonardo.

[4] The parties brought five applications in three years arising from their parents’ estates. The parties brought competing applications in 2021 and 2022 that they said were settled in December 2022. The parties brought two further competing applications in 2023, and John brought an application in 2023 to be granted a Certificate of Estate Trustee With a Will.

[5] In this three-day hearing of the Applications brought in 2023, John sought an interpretation of Leonardo’s Will to allow John, as estate trustee, to make an appropriation and distribution of the Yonge Street Property. Diane sought to bar John from being heard on the basis of the settlement of John’s 2022 application, objected to the interpretation of Leonardo’s Will pleaded by John and sought an order removing John as estate trustee of Leonardo’s Estate.

[6] For the reasons that follow, I find that that Leonardo’s Will does not provide that the estate trustee may make an appropriation and distribution of the Yonge Street Property in the manner claimed in John’s 2023 Application. Diane’s application to remove John as estate trustee of Leonardo’s Estate is dismissed, as is Diane’s application to appoint a disinterested trustee for the sale of the Yonge Street Property.

I. PROCEDURAL BACKGROUND

[7] I will begin by explaining the five proceedings that Diane, John and Nadine initiated following Rose’s death on November 4, 2020.

A. The 2021/2022 Applications

[8] By Notice of Application issued November 2021 in court file number CV-21-00671643-00ES and amended November 7, 2022, Diane advanced the following claims, amongst others, against John and Nadine (“Diane’s 2021 Application”):

(a) An order that the John and Diane, as estate trustees of Rose’s Estate, sell the Lord Seaton Property to Diane, for a fixed price of $2,600,000.00 with credit for the legacy provided for Diane in Rose’s Will and Diane’s share as one-third residual beneficiary in Rose’s Will.

(b) Alternatively, that a process be implemented for the sale of the Lord Seaton Property to Diane.

(c) An order removing John as co-Estate Trustee of Rose’s Estate.

[9] By Notice of Application issued April 14, 2022 in court file number CV-22-00679836-00ES, John and Nadine advanced the following claims, amongst others, against Diane (“John’s 2022 Application”):

(a) An Order that Diane provide vacant possession of the Lord Seaton House.

(b) An Order that John and Diane as Estate Trustees of Rose’s Estate are authorized to market, list and sell the Lord Seaton House, and that Diane pay rent and carrying costs for her occupation of the Lord Seaton House.

(c) An Order removing Diane as co-Estate Trustee of Rose’s Estate.

(d) An Order that John, as Estate Trustee of Leonardo’s Estate, be authorized to privately sell, or alternatively publicly sell the Yonge Street Property.

[10] Diane’s 2021 Application pleaded issues pertaining only to Rose’s Estate. John’s 2022 Application pleaded issues pertaining to both Rose’s Estate and Leonardo’s Estate. These Applications were scheduled for hearing together on December 13, 2022.

B. The Settlement of the 2021/2022 Applications

[11] On December 13, 2022, the parties jointly reported that they settled Diane’s 2021 Application and John’s 2022 Application (collectively, the “2021/2022 Applications”). I issued an Endorsement that day that provides, in its entirety, as follows:

These two Applications, arising from the Estate of Rose LaCalamita and the Estate of Leonardo LaCalamita, were scheduled for a hearing today. The lawyers for the parties reported that the parties have settled all issues in both Applications. The parties intend now to address the materials required to implement their settlement.

The parties may file a Motion in writing, under Rule 37.12.1(1) because it would be on consent, for any Order that they may agree upon and require as part of the implementation of their settlement.

[12] Neither party sought any court order arising from their settlement of the 2021/2022 Applications.

C. The 2023 Applications

[13] On March 14, 2023, John brought an application in court file number CV-23-00696229-00ES (“John’s 2023 Application”) seeking, amongst others, the following orders:

(a) A declaration that upon the payment of $485,000.00 to Diane by John, Diane will have no further claim under Leonardo’s Will and no claim against John and Nadine.

(b) An order vesting the Yonge Street Property in John and Nadine.

[14] On July 21, 2023, Diane brought an application in court file number CV-23-00704035-00ES (“Diane’s 2023 Application”) seeking, amongst others, the following orders:

(a) An order removing John as Estate Trustee of Leonardo’s Estate.

(b) An order appointing a neutral succeeding estate trustee or, alternatively, a disinterested trustee to administer the sale of the Yonge Street Property.

(c) An order dismissing John’s 2023 Application as scandalous, frivolous, vexatious, or an abuse of process.

[15] On February 16, 2023, John filed an application for the issuance of a Certificate of Appointment of Estate Trustee with a Will (“CAET”) in Leonardo’s Estate in Estates file no. 2023-010485 (the “2023 Probate Application”). On April 12, 2023, Diane filed a Notice of Objection to the issuance of a CAET on the basis that John is unfit to act as Estate Trustee. John delivered a Notice to Objector on May 17, 2023. Diane delivered a Notice of Appearance on May 31, 2023

[16] By Orders issued September 26, 2023 and November 29, 2023, rendered on the consent of the parties, Justice Myers established a timetable for the development of John’s 2023 Application, Diane’s 2023 Application and the 2023 Probate Application (collectively, the “2023 Applications”), and ordered that they be heard together on February 12, 2024.

II. MOTIONS TO STRIKE EVIDENCE

A. The Evidence

[17] John’s 2023 Application, and John’s response to the Diane’s 2023 Application, are supported by John’s affidavits sworn March 15, 2023 and August 21, 2023 and an affidavit sworn April 3, 2023 by Danny Su and Rob Purdy of Colliers International Realty Advisors Inc. (“Colliers”). John’s affidavit of August 21, 2023 exhibits his affidavit sworn June 30, 2022 that was initially filed in John’s 2022 Application.

[18] Diane’s 2023 Application, and Diane’s response to John’s 2023 Application, are supported by Diane’s affidavits sworn July 21, 2023, August 31, 2023 and September 20, 2023. Diane’s affidavit sworn September 20, 2023 exhibits her affidavit sworn June 17, 2022, that was initially filed as her reply affidavit in her 2021 Application and as her responding evidence in John’s 2022 Application. In her June 17, 2022 affidavit, Diane repeats and relies on the evidence set out in her affidavit sworn November 18, 2021.

B. The Motions to Strike Evidence

[19] Both parties brought Motions to strike affidavit evidence under r. 25.11 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. John brought a Motion to strike 80 of 128 paragraphs of Diane’s July 21, 2023 affidavit and 10 of its 23 exhibits. Diane brought a Motion to strike 32 of the 72 paragraphs of John’s August 21, 2023 affidavit, 3 of the 22 paragraphs of John’s March 15, 2023 affidavit, and 20 of the 66 paragraphs of John’s June 30, 2022 affidavit. This meant that the parties’ Motions jointly objected to 135 of the 288 paragraphs of affidavit evidence filed in the 2023 Applications.

[20] Rather than permit the hearing to be consumed with oral argument on the parties’ challenge of affidavit evidence, the parties agreed to rest their Motions to Strike on their written submissions to be supported by oral submission at any time in the hearing when either party sought a ruling on an objection to the admissibility of evidence.

[21] In the hearing of the substantive issues, the parties required only one ruling on the admissibility of evidence. Specifically, at the hearing on February 12, 2024, John objected to the admissibility of Diane’s evidence regarding the value of the Yonge Street Property. I determined this objection by a ruling issued orally on February 12, 2024, with reasons delivered on March 15, 2024. During the hearing conducted on March 18 and 21, 2024, the parties relied on evidence that was unchallenged by objection. Neither party called for any evidentiary rulings.

[22] I accept the submission made by John’s lawyer that because these pre-emptive motions to strike affidavit material were brought at the hearing of the Applications, they could be dealt with in one of two ways. The Application Judge can order that the offending paragraphs be struck or, in the exercise of discretion, the Application Judge can disregard the evidence without striking the evidence from the record.

[23] This submission was well-founded on the basis of r. 25.11 , which provides that “the court may strike out or expunge all or part of a pleading or other document … on the ground that the pleading or other document … (a) may prejudice or delay the fair trial of an action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of process of the court.” Rule 38.12 provides that r. 25.11 “applies, with necessary modifications, with respect to any document filed on an application”. And the Court of Appeal has instructed that affidavit materials on an application are to be considered as the pleadings. [2]

[24] Rule 25.11 provides the court with the discretion to strike out all or part of a pleading: “The court may strike out or expunge…” (emphasis added). The decision of whether to grant an order to strike out or expunge all or part of any of the evidence in the challenged affidavits is an exercise of discretion. [3]

[25] In accepting John’s submission, I will exercise my discretion under r. 25.11 not to expunge challenged affidavit evidence but rather to explain the evidence that I rely on and, where necessary to my analysis, the evidence relied on by the parties that I have disregarded, except in one instance. I have decided to strike some evidence as scandalous. Also, I will explain the basis for disregarding evidence that is argumentative, and I will set out the analytical framework that I have used in consideration of hearsay evidence.

(a) Irrelevant and Scandalous

[26] The Supreme Court has instructed that “[e]vidence that is relevant to an issue at trial is admissible, as long as it is not subject to an exclusionary rule and the trial judge does not exercise their discretion to exclude it”. [4] The Court stated that “[j]udges must consider: (a) whether the evidence is relevant; (b) whether it is subject to an exclusionary rule; and (c) whether to exercise their discretion to exclude the evidence.” Evidence is relevant if it tends to increase or decrease the probability of a fact in issue. [5]

[27] Both parties filed evidence on the 2023 Applications that is irrelevant. John’s affidavit of June 30, 2022 was initially filed in John’s 2022 Application and pertains almost entirely to issues regarding Rose’s Estate. Similarly, Diane’s affidavits of June 17, 2022 and November 18, 2021 were filed in the 2021/2022 Applications and pertain predominantly to issues regarding Rose’s Estate and not issues raised in the 2023 Applications. Additionally, both parties tendered evidence in their 2023 and 2024 affidavits that was irrelevant to any issue raised by the 2023 Applications, including the following: (a) John’s affidavit sworn August 21, 2023, at para. 11 (whether rent was paid to parents); paras. 17, 27 and 68 (settlement discussions in Rose’s Estate); para. 26 (allegation of financial abuse of parents), also, John’s affidavit sworn March 14, 2023, at para. 22 (parties’ motivation); (b) Diane’s affidavit sworn July 21, 2023, at paras. 33, 34 and 46 (relationship with nephews and nieces); Diane’s affidavit sworn September 20, 2023, at para. 5 (historic resentment between siblings); paras. 23 and 35 (belief of motivation); paras. 37-40 (settlement discussions in Rose’s Estate).

[28] Rule 25.11 does not provide for striking or expunging a part of a pleading based on relevance. [6] Irrelevant material is not, for that reason alone, scandalous. [7] Rather, a pleading is scandalous or vexatious where it “seriously impugns the behavior of a party”. [8] ; where the pleading “can have no effect on the outcome of the action”; [9] where the pleading “refers to indecent or offensive matters or allegations made for the purpose of abusing or prejudicing the opposite party… which are unbecoming of the court to hear, or unnecessary allegations bearing cruelly on the moral character of an individual”; [10] ; or are “offensive allegations and offensive rhetoric directed at a party”. [11]

[29] In my view, the evidence tendered by John of Diane’s character, personality, or fitness in paras. 5, 12, 25, 27, 35 and 60 of his affidavit sworn August 21, 2023, is irrelevant, because its proof does not affect the outcome of any issue to be determined, and scandalous because it unnecessarily impugns Diane’s character. I find that the evidence tendered by Diane in para. 25 of her affidavit sworn September 20, 2023 of John’s character has the same flaws. I see no need to describe this evidence as no useful purpose would be served by its publication in these reasons. I strike the evidence of character, personality or fitness contained in these paragraphs and will disregard this evidence.

(b) Inadmissible Argument

[30] Rule 4.06(2) provides that “[a]n affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise.”

[31] Witnesses provide fact evidence. Witnesses testifying in Court are not permitted to argue their case. A witness providing evidence by affidavit must observe the same principle. Argument is reserved to a factum and is not properly contained in an affidavit. [12] Both Diane and John impermissibly argued their case through their affidavit evidence, including the following: (a) Diane’s affidavit of July 21, 2023, at paras. 22, 23, 24, 25, 29, 30, 36, 41, 42, 48, 54, 89, 90, 93, 99, 106, 109, 114, 115 and 118, and Diane’s affidavit of September 20, 2023, at paras. 4, 19 and 138; (b) John’s affidavit of August 21, 2023, at paras. 28, 37, 38, 39, 43, 44, 45, 48 and 50.

[32] I will disregard the parties’ argument as contained in their affidavits. I have the benefit of the argument presented by the parties’ lawyers on their behalf both in their comprehensive factums and in their thorough oral submissions.

(c) Hearsay

[33] Rule 39.01(5) provides that “[a]n affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.” Facts are contentious where they are in dispute.

[34] “Hearsay is an out-of-court statement tendered for the truth of its contents” [13] Hearsay evidence is presumptively inadmissible because there is no ability for the Defendants to contemporaneously cross-examine the declarant, making it difficult to assess the truth of the statements. [14] Hearsay may be admitted into evidence if it comes within certain categorical exceptions, such as the principled exception, which were established in recognition that some hearsay evidence “presents minimal dangers and its exclusion , rather than its admission, would impede accurate fact finding”. [15]

[35] The Supreme Court explained that hearsay can exceptionally be admitted into evidence under the principled exception when the tendering party establishes, on a balance of probabilities, that the twin criteria of necessity and reliability are established. [16] The starting presumption in consideration of the principled exception is that the hearsay is inadmissible, and the analysis of necessity and reliability must be conducted in full. [17] Even when the trial judge, acting as an evidentiary gatekeeper for the purpose of determination of threshold admissibility, is satisfied that the hearsay evidence is necessary and reliable, the trial judge has the discretion to exclude the hearsay evidence if its prejudicial effect outweighs its probative value. [18]

[36] I applied this analytical framework in my consideration of the hearsay evidence on relevant factual points in my analysis of the issues.

III. UNCONTESTED FACTS

[37] Many of the facts that were material to my analysis were not in dispute. I will list these uncontested facts as they frame the analysis.

[38] Leonardo died on March 16, 2018. Leonardo left a last will and testament dated May 4, 1988 (“Leonardo’s Will”). No one challenged Leonardo’s Will. Leonardo’s Will appointed his spouse, Rose, as his sole estate trustee and named John as the alternate estate trustee of Leonardo’s Estate.

[39] The principal asset of Leonardo’s Estate was the Yonge Street Property. Through Leonard’s Will, Rose received a life interest in the Yonge Street Property, which Rose managed as Estate Trustee of Leonardo’s Estate until her death on November 4, 2020.

[40] Rose left a last will and testament dated November 22, 2018 that was not challenged (“Rose’s Will”). The principal asset of Rose’s Estate was the Lord Seaton House, which Rose received by right of survivorship upon Leonardo’s passing. After Rose’s death, John became the sole trustee of Leonardo’s Estate. John and Diane were co-trustees of Rose’s Estate.

[41] John, Diane, and Nadine, the three children of Leonardo and Rose, are equal residual beneficiaries under Leonardo’s Will and under Rose’s Will. The focal point of the dispute between the siblings in Rose’s Estate was Diane’s objective of acquiring the Lord Seaton House while recognizing John and Nadine’s entitlements as equal residual beneficiaries in Rose’s Estate. The focal point of the dispute between the siblings in Leonardo’s Estate is the management of the Estate’s principal asset, the Yonge Street Property. John and Nadine seek to own the Yonge Street Property with a payment to Diane of one-third of the net value of Leonardo’s Estate.

[42] On December 12, 2022, on the eve of the scheduled hearing of the 2021/2022 Applications , the parties agreed to terms of settlement, none of which pertain to the administration of Leonardo’s Estate or, with it, the Yonge Street Property. The parties agreed upon terms include the following:

(a) The Lord Seaton House shall be sold to Diane for the purchase price of $3,075.000, with credits for the bequest to Diane under Rose’s Will ($300,000.00), reimbursement for estate expenses paid by Diane ($88,729.55) and an advance of Diane’s one-third share in the residue of Rose’s Estate ($845,423.48), resulting in a net payment of $1,840,847.07.

(b) John and Diane agreed to apply jointly for the issuance of a Certificate of Appointment of an Estate Trustee (“CAET”) in Rose’s Estate, with the closing of the sale of the Lord Seaton House to occur thirty days after the issuance of the CAET.

(c) Diane agreed to pay occupancy cost for her continued use of the Lord Seaton House in the amount of $2,000.00 each month to the date of closing. The parties agreed to a division of the personal property.

(d) The parties agreed to dismiss the 2021/2022 Applications. However, neither party sought an order dismissing the 2021/2022 Applications.

[43] The only assets of Leonardo’s Estate are the Yonge Street Property and a bank account that had a balance on March 9, 2023, of $64,375.07. The Yonge Street Property is located near the corner of Yonge Street and Erskine Avenue, just north of Eglinton Avenue. It is a 2,100 square foot two-floor mixed use building consisting of 14.5 feet of frontage and 110 feet of depth. The Yonge Street Property contains a street level retail commercial space and a second-floor office rental unit. John and Nadine seek to retain the Yonge Street Property and to satisfy Diane’s entitlement as an equal one-third residuary beneficiary through a cash payment.

IV. ISSUES

[44] The parties stipulated that John’s 2023 Application raised the following will interpretation issue for determination:

Does Leonardo’s Will provide that the Estate trustee may make an appropriation and distribution of the Yonge Street Property in the manner claimed in the Notice of Application, in accordance with para. 1(b)(iii) and 1(e)(iii) of the Will notwithstanding paragraph 14 of the Will?

[45] The “manner claimed in the Notice of Application” consists of John paying Diane the amount of $485,000.00 in satisfaction of her entitlement as an equal one-third beneficiary in the residue of Leonardo’s Estate. John based this amount on Leonardo’s Estate having a total value of $2,264,375.07, consisting of an appraised value of the Yonge Street Property on January 5, 2023 of $2,200,000.00 and an Estate bank account that has a balance as of March 9, 2023 of $64,375.07. John deposed that the Estate’s liabilities total $814,329.63. This produced a net estate value of $1,450,045.44 , one-third of which totals $483,348.48, rounded to $485,000.00 (the “Proposed Final Distribution”). [19]

[46] The parties stipulated that Diane’s 2023 Application and the 2023 Probate Application raised the following issues for determination:

(a) Should John’s 2023 Application be dismissed because it is an abuse of process ?

(b) Should John be removed as Estate Trustee of Leonardo’s Will ?

(c) If the answer to (2) is yes, that John should be replaced by a succeeding estate trustee, what process should be implemented for the appointment of the succeeding estate trustee?

(d) If the answer to (2) is no, that John is not removed as Estate Trustee, should an Order issue for the limited appointment of a disinterested trustee under para. 14 of Leonardo’s Will with respect to the administration of the Yonge Street Property?

(e) Should an Order issue for the issuance of the CAET in the Probate Application?

[47] I will address these issues in order.

V. ISSUE — INTERPRETATION OF LEONARDO’S WILL

[48] John’s proposed satisfaction of Diane’s share of Leonardo’s Estate through payment of the Proposed Final Distribution depends on Leonardo’s Will being interpreted in the manner submitted by John.

A. Framing the Will Interpretation Issue

[49] John submitted that paras. II.1(b)(iii) and II.1(e)(iii) of Part II of Leonardo’s Will permit John, in his capacity as trustee of Leonardo’s Estate, to appropriate and distribute the Yonge Street Property by deriving a net realizable value for the Yonge Street Property and distributing to Diane one-third of the net value of Leonardo’s Estate in satisfaction of her entitlement as a one-third residuary beneficiary. Part II of Leonardo’s Will sets out the general powers of appointment granted to the Estate Trustee. Paragraphs II.1(b)(iii) and II.1(e)(iii) provide as follows:

1. I give the whole of my property of every nature and kind and wheresoever situate, including any property over which I may have a general power of appointment, to my said Trustees upon the following trusts:

(b) To exercise one or more of the following powers in the administration of my estate:

(iii) to partition or appropriate, and distribute in specie, any part of my estate in its then actual condition or state of investment in or towards the partial or total satisfaction of the interest of any beneficiary of my estate. No beneficiary shall have the right to insist that my Trustees first sell, and convert any asset of my estate into cash or any other form of investment prior to satisfying such beneficiary’s interest in my estate. All decisions by my Trustees, in this regard, shall be made by them in their absolute discretion, and shall be final and binding upon all of the beneficiaries of my estate. And for these purposes, my Trustees shall have the power to determine the value of my estate and any part or parts thereof in any manner that my Trustees shall see fit. Any such valuation as aforesaid shall be made as of the date of distribution of any such part of my estate and, notwithstanding any fluctuation in market value, shall be final and binding upon all the beneficiaries of my estate, notwithstanding that one or more of my Trustees may be beneficially interested in the property or any part thereof so valued . (“Para. II.1(b)(iii)”)

(e) Upon the death of the survivor of me and my wife my Trustees shall divide my estate then remaining into as many equal shares as there shall be children of mine then living, provided that if any of my children shall then be dead but shall have left issue him or her surviving and then alive, such deceased child shall be deemed alive for the purposes of such division, and shall deal with such equal shares as follows:

(iii) It is my intention that my children agree on the division of my assets among themselves. That agreement may take the form of the children agreeing that all assets be first converted into cash, that some of the assets be converted into cash and some of the assets be distributed in specie, or that all of the assets be distributed in specie. If my children cannot agree on the appropriate division of the assets among themselves, then that division is to be made by my Trustees; in this regard I appreciate that the sole Trustee in these circumstances will be my son, JOHN LA CALAMITA . (“Para. II.1(e)(iii)”) (emphasis in original)

[50] Part III of Leonardo’s Will provides specific powers to the Estate Trustee. John relied on paragraph 10 of Part III that provides the Trustee with power to partition or appropriate real or personal property, as follows:

10. My Trustees may make any partition or appropriation of any real or personal property forming part of my estate in its then actual condition or state of investment in or towards satisfaction or payment or any share in my estate and to charge any share therein with sums by way of equality of partition. And for these purposes, my Trustees shall have the power to determine the value of my estate and any part or parts thereof in any manner my Trustees shall see fit. Any such valuation as aforesaid, notwithstanding any fluctuation in market value, shall become final and binding upon all the beneficiaries of my estate, notwithstanding that one or more of my Trustees may be beneficially interested in the property or any part thereof so valuated . (“Para. III.10”)

[51] Diane submitted that John’s reliance on paras. II.1(b)(iii), II.1(e)(iii) and III.10 must also take into consideration Part III, para. 14, which, in Diane’s submission, applies to circumstances in which an estate trustee who is also a beneficiary seeks to purchase any parts of the estate, as follows:

14. I authorize any one or more of the beneficiaries of this my Will, (notwithstanding that such beneficiary or beneficiaries may be a Trustee or Trustees of this my Will), to purchase any part or parts of my estate, real or personal, either at public auction or by private contract, provided in the latter case that the sale shall be conducted by my Trustees (or by the disinterested Trustee or Trustees of this my Will, in the event that a beneficiary or beneficiaries so purchasing is also a Trustee or Trustees of this my Will), and shall be at such price or prices and subject to such terms and conditions and either for cash or credit or for part cash and part credit as the Trustee or Trustees of this my Will conducting the sale shall consider fair and reasonable. (“Para. III.14”)

[52] Having framed the will interpretation issue through reference to the provisions of Leonardo’s Will, I will now explain the legal principles that will guide the interpretation.

B. Applicable Legal Principles

[53] When interpreting a will, the court must determine the testator’s actual or subjective intention of how the testator intended to dispose of their property. [20] The court is required to place itself in the position of the testator at the time that the will was made. [21] This was explained by the Court of Appeal in Burke (Re), as applied in Ross v. Canada Trust Company , as follows:

Each Judge must endeavour to place himself in the position of the testator at the time when the last will and testament was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so. [22]

[54] Referred to as the “armchair rule”, Brown J.A. instructed in Ross that the court’s analysis involves construing the will in the context of all surrounding circumstances present at the time that the will was made: “Sitting in the place of the testator, the court assumes the same knowledge the testator had, at the time of making the will, in regard to the nature and extent of her assets, the makeup of her family, and her relationship to its members.” [23]

[55] Brown J.A. stated in Ross , that the “armchair rule” is “an over-arching framework within which a judge applies the various tools for will construction at his or her disposal”, and that recently courts have included reference to surrounding circumstances even when the testator’s intention is discernible from a plain reading of the will. [24] Brown J.A. referred to the holding by the Manitoba Court of Appeal in Zindler v. The Salvation Army , that extrinsic evidence of surrounding circumstances is admissible and may be taken into account in will interpretation “even if the words, themselves, do not appear to be ambiguous or unclear”. [25] The Alberta Court of Appeal made a similar holding in Hicklin Estate v. Hicklin . [26]

C. Analysis

[56] In my view, Leonardo’s actual or subjective intentions regarding the disposition of his property are discernible from a plain reading of his Will. However, in accordance with the guidance provided by the Court of Appeal in Ross , and in the event that I have erred in my view that Leonardo’s intentions are discernible from a plain reading of his Will, I have considered the circumstances surrounding Leonardo’s execution of his Will as part of an overarching analysis of Leonardo’s intentions.

(a) The Surrounding Circumstances

[57] Indirect evidence of surrounding circumstances at the time that Leonardo’s Will was made is admissible. [27] The surrounding circumstances are “the circumstances which then existed [at the time of the execution of the will] and which might reasonably be expected to influence the testator in the disposition of his property”. [28] Brown J.A. explained in Ross , that this involves assuming “the same knowledge the testator had, at the time of making the will, in regard to the nature and extent of her assets, the makeup of her family, and her relationship to its members.” [29]

[58] I accept Diane’s evidence that when Leonardo signed his Will on May 4, 1988, his eldest child, John, had just been called to the Ontario bar. Diane, the second eldest, was 23 years old, having just completed first year law school. Nadine, the youngest child, was a 19-year-old student. Rose was a pharmacist, continuing the operation of the pharmacy business that Leonardo and Rose had bought some 30 years earlier. In the preparation of his Will, Leonardo was assisted by an experienced estates lawyer.

[59] Diane and John agree that Leonardo had just experienced and endured a “bitter legal battle” with his two older brothers in their capacity as estate trustees of his father’s estate over the inheritance of properties that had been in the La Calamita family since the 1920’s, including the Yonge Street Property. On a positive note, on February 23, 1984, some five years before executing his Will, Leonardo received title to the Yonge Street Property from his father’s estate. Diane deposed that this was a gratuitous transfer and John deposed that Leonardo purchased the property, but this dispute in the evidence is of no moment to my analysis. On a negative note, Leonardo’s relationship with his oldest brother was irreparably severed because of their acrimonious dispute over inheritance.

[60] I accept from this evidence that at the time that Leonardo prepared his Will, he and Rose were earning rental income on the two commercial rental units in the Yonge Street Property. Leonardo intended to care for Rose through his Will, including that she would have a life interest in the Yonge Street Property and thereby benefit from the rental income during her lifetime. Leonardo intended to treat his children as equal beneficiaries of the residue of his Estate. Leonardo intended that John be his estate trustee if Rose could not. And, importantly, Leonardo did not want his children to experience the debilitating and detrimental impact of protracted estate litigation that he had experienced, which included the shattering of a family relationship. I see no dispute between John and Diane on these surrounding circumstances.

[61] Diane and John’s dispute on the circumstances surrounding Leonardo’s execution of his Will is based on their divergent evidence on what Leonardo told them about his testamentary intentions. Direct evidence of a testator’s intention is inadmissible in interpreting a will. [30] This includes evidence of statements made by the deceased about his intentions.

[62] John deposed that his father was “explicit” with him on his testamentary intentions and that they were consistent with the relief sought by John in his 2023 Application, which was not to disinherit Diane but to find a way for John and Nadine to continue to own the Yonge Street Property. [31] John deposed that his father advised him in the mid-1990s that Diane “needed to be handled carefully in family matters” and could not be a “business partner”. John deposed that Leonardo told him that he wanted the Yonge Street Property to be maintained in the family to be held by children and grandchildren, and had given Leonardo tools in the Will so that Diane could not disrupt the inter-generational transfer of the Yonge Street Property. [32] John deposed that his father was “not equivocal” that Diane had would not collaborate with the rest of the family and was a threat to the Yonge Street Property as a family asset. [33] John deposed that Leonardo did not want a disinterested trustee. [34]

[63] This evidence is not admissible in will interpretation as it contravenes the prohibition against admitting direct evidence of the testator’s intention. If this evidence were not inadmissible on this basis alone, this evidence is inadmissible because it is evidence of John’s understanding of Leonardo’s intentions in the mid-1990s after Leonardo’s execution of the Will (May 4, 1988) and therefore irrelevant to will interpretation. If not inadmissible on these grounds, the evidence is hearsay of questionable admissibility under the principled exception as its ultimate reliability has not been established. [35] And even if this evidence by John were admissible, I would not have accepted or relied on this evidence. Based on my analysis of the entirety of the evidentiary record, I do not accept John’s characterization of Diane’s relationship with her father and family at the time that Leonardo executed his will as reliable or plausible; nor do I accept John’s characterization of Leonardo’s intention at that time to keep the Yonge Street Property in the family. These characterizations were impacted by tensions that John has had with Diane over Diane’s receipt of historic benefits from their parents (school funding as a young adult, free rent in the parents’ home) and now their dispute in sharing their equal inheritance of their parents’ assets.

[64] Diane’s evidence of her “parents’ plan” to hold the Yonge Street Property until the entire block was ready for re-development, and that her parents intended to benefit only their children and not their grandchildren, is similarly inadmissible as evidence of surrounding circumstances. [36] Diane does not specify whether the “parents’ plan” was conceived before or after Leonardo’s execution of his Will and does not identify the source of her evidence. To the extent that her evidence is based on what her father is alleged to have intended, the evidence is inadmissible to will interpretation. To the extent that the belief is based on events that occurred after Leonardo executed his Will, it is inadmissible. If not inadmissible on these grounds, the evidence is inadmissible hearsay. And even if the evidence were admissible, I would not have accepted this evidence as reliable or plausible, based on my analysis of the entirety of the evidentiary record. Like with John’s evidence, I find that the reliability of Diane’s evidence is impacted by her tension with John over John’s receipt of historic benefits from their parents (a BMW car as a graduation gift and school funding) and now their dispute in sharing their equal inheritance of their parents’ assets.

(b) Will Interpretation

[65] The interpretation of a will requires giving effect to the testator’s intentions as ascertained from the words that they used. This requires having regard to the will as a whole. [37]

[66] Paragraph II.(b)(iii) of Leonardo’s Will is part of the general grant of authority to the estate trustee. In my view, it clearly grants the estate trustee with the power to “partition or appropriate, and distribute in specie” any part of the Estate. In furtherance of these powers Para. II.(b)(iii) provides as follows:

(a) There is no requirement that the Trustee sell an estate asset before satisfying a beneficiary’s interest:

“No beneficiary shall have the right to insist that my Trustees first sell, and convert any asset of my estate into cash … prior to satisfying such beneficiary’s interest in my estate.”

(b) All decisions made by the Trustee are final and binding, including the power to determine the value of the estate and any parts of it:

“All decisions by my Trustees, in this regard, shall be made by them in their absolute discretion, and shall be final and binding upon all of the beneficiaries of my estate. And for these purposes, my Trustees shall have the power to determine the value of my estate and any part or parts thereof in any manner that my Trustees shall see fit.”

(c) The Trustee is authorized to determine the value of the Estate, or any asset, as the Trustee sees fit, and the valuation shall be made as of the date of distribution of any such part of the estate:

And for these purposes, my Trustees shall have the power to determine the value of my estate and any part or parts thereof in any manner that my Trustees shall see fit. Any such valuation as aforesaid shall be made as of the date of distribution of any such part of my estate and, notwithstanding any fluctuation in market value, shall be final and binding upon all the beneficiaries of my estate, notwithstanding that one or more of my Trustees may be beneficially interested in the property or any part thereof so valued.

[67] The power of the Trustee to “partition or appropriate” any property owned by the Estate is also set out in Para. III.10. This paragraph reiterates Leonardo’s intention that his trustee have the final and binding power to determine the value of his estate or any part of it. However, it is important that the power to “partition or appropriate” is only for the purpose of satisfying a beneficiary’s share in the Estate:

My Trustees may make any partition or appropriation of any real or personal property forming part of my estate … in or towards satisfaction or payment or any share in my estate and to charge any share therein with sums by way of equality of partition. And for these purposes , my Trustees shall have the power to determine the value of my estate and any part or parts thereof in any manner my Trustees shall see fit. Any such valuation … shall become final and binding upon all the beneficiaries of my estate, notwithstanding that one or more of my Trustees may be beneficially interested in the property … so valuated. (emphasis added)

[68] The general grant of the power of “partition or appropriate, and distribute in specie” any part of the Estate set out in Para. II.1.(b)(iii) and Para. III.10 is not absolute. These powers may be yielded only in furtherance of the execution of the directions provided by the testator in the entirety of the Will. For example, during the time that Rose was Trustee and thereby imbued with the power to “partition, appropriate and distribute”, she was constrained in her use of these powers by the term of the Will that granted her a life interest in the Yonge Street Property. So too is John constrained in the power to “partition or appropriate, and distribute in specie” any asset of the Estate, including the Yonge Street Property, by all the other directions provided by the Will.

[69] Paragraph II.1.(e) provides that upon Rose’s death, the residue of the Estate shall be divided equal shares amongst John, Diane and Nadine, and sets out directions for the trustee to administer the shares of the residuary beneficiaries. In Para. II.1.(e)(iii), Leonardo stated his clear wish that his children agree on the division of his assets:

It is my intention that my children agree on the division of my assets between themselves.

[70] In Para. II.1.(e)(iii) Leonardo provided tools for John, Diane and Nadine to reach an agreement on the division of his assets, by conversion into cash, in whole or in part, or by distribution in specie:

That agreement may take the form of the children agreeing that all assets be first converted into cash, that some of the assets be converted into cash and some of the assets be distributed in specie, or that all of the assets be distributed in specie.

[71] In the event that his children could not reach an agreement, Leonardo specified in Para. II.1(e)(iii), that John, as trustee, would decide:

If my children cannot agree on the appropriate division of the assets among themselves, then that division is to be made by my Trustees; in this regard I appreciate that the sole Trustee in these circumstances will be my son, JOHN LA CALAMITA . (emphasis in original)

[72] Based on my reading of the entirety of Leonardo’s Will in the surrounding circumstances that prevailed at the time of its execution, I find that this last sentence of Para. II.1.(e)(iii) was intended by Leonardo to be a tool for John to impose a division of the Estate’s assets on Diane and Nadine in the event that the children could not agree on the appropriate division of assets. In the absence of agreement, Leonardo intended that John have the power to decide. This is also seen in Para. II.1(b)(iii) where only John, as estate trustee, can determine when to “first sell and convert any asset of my estate into cash”. I find that these terms were the product of Leonardo having lived through an inheritance dispute with his siblings, and not wishing his children to suffer the same fate.

[73] Leonardo recognized that his Trustee might have to sell real estate owned by the Estate. This is set out in Para. III.10, which allows the partition or appropriation of real property. However, Para. III.9 allows the trustees to hold the Yonge Street Property “from year to year or for any term of years” to be managed by the trustees, and Para. III.11 provides that the Yonge Street Property can be used for many purposes, including to provide mortgage security or to lease.

[74] John’s power to impose a division of the Estate assets, like his power to “partition or appropriate, and distribute in specie” any part of the Estate, is not absolute. It is subject to all the other directions contained in the Will. No provision of Leonardo’s Will can be disregarded in any interpretation of the Will because “the whole contents of the will” must be studied to determine the testator’s intentions: “[e]very word is to be given its natural and ordinary meaning ... unless from a construction of the whole will it is evident that the testator intended otherwise.” [38]

[75] Para. III.14 sets out Leonardo’s intention that any of the children can purchase any part or parts of the Estate at any public or private sale, as follows:

I authorize any one or more of the beneficiaries of this my Will, (notwithstanding that such beneficiary or beneficiaries may be a Trustee or Trustees of this my Will), to purchase any part or parts of my estate, real or personal, …

[76] Leonardo’s direction that any beneficiary who acts as trustee can also purchase the Yonge Street Property is a further expression of fairness toward his children. Leonardo provided all his children with an equal opportunity to purchase his real and personal property at a private or public sale, including John while acting as Trustee.

[77] Although Leonardo intended that the sale of any real or personal property could be conducted by either public auction or private contract, Leonardo specifically directed that if the sale of real or personal property is conducted by private contract, and involves a purchase by a beneficiary who is also a trustee, the private sale must be conducted by a disinterested trustee:

…either at public auction or by private contract, provided in the latter case that the sale shall be conducted by my Trustees (or by the disinterested Trustee or Trustees of this my Will, in the event that a beneficiary or beneficiaries so purchasing is also a Trustee or Trustees of this my Will), and shall be at such price or prices and subject to such terms and conditions and either for cash or credit or for part cash and part credit as the Trustee or Trustees of this my Will conducting the sale shall consider fair and reasonable.”

[78] I see this provision as another example of Leonardo’s objective of treating his children fairly. Any or all of John, Diane and Nadia are able to purchase any property of the Estate in a public sale or by private contract. John, as Trustee, conducts any private sale on behalf of the Estate unless John is a purchaser of the property. Para. III.14 recognizes that where John is a purchaser of Estate property in his personal capacity, he would be in a conflict in conducting the private sale in his capacity as estate trustee. Leonardo specifically provided that in such circumstances, a disinterested trustee must conduct the private sale on behalf of the Estate.

[79] Leonardo knew that the only child who could be both trustee and beneficiary under his Will, and thereby the only child who might be required by his Will to defer to a disinterested trustee in the event of a private sale, was John. Leonardo’s direction that any private sale of property be conducted by a disinterested trustee was specifically a direction to John. In my determination, John cannot acquire title to the Yonge Street in a private sale conducted by John without contravention of Para. III.14.

D. Conclusion

[80] Leonardo intended to benefit Rose, and upon Rose’s passing, his three children equally in the distribution of this property upon his death. I accept, because it was uncontested, that Leonardo’s Estate consists only of the Yonge Street Property and a modest bank account that serves principally for the deposit of the rental income that is collected from the Yonge Street Property and to pay carrying costs.

[81] In Para. II.1.(b)(iii), John, as the sole trustee, has the power to “partition or appropriate, and distribute in specie” any part of the Estate, including the Yonge Street Property. Any in specie distribution is subject to the Trustee giving effect to the equal one-third share granted by Leonardo’s Will to each of the three children. Considering that Leonardo’s Estate has only one principal asset and three equal beneficiaries, the power to distribute in specie is not available in the manner proposed by John because Leonardo’s Will does not permit an in specie distribution of a single asset to two of the three equal beneficiaries to the exclusion of the third beneficiary.

[82] John has the power under Para. II.1.(b)(iii) to partition or appropriate the Yonge Street Property, so long as he complies with the remainder of the terms of Leonardo’s Will. Para. II.1(e)(iii) provides that in the event of disagreement amongst the children on the distribution of assets, which occurred, John is empowered to decide the appropriate division of the Estate assets. Relying on Para. II.1.(b)(iii) and Para. II.1(e)(iii), John proposed, in his 2023 Application, to partition or appropriate title to the Yonge Street Property to John and Nadine and to satisfy Diane’s one-third interest in the residue of the Estate by paying to Diane the Proposed Final Distribution. I find that this cannot be done under the Will because it fails to give effect to Para. III.14.

[83] Considering the disagreement between the children, Para. II.1(e)(iii) provides John with authority as Trustee to decide on “an appropriate division of the assets”. As there is only one principal asset, this may involve a public or private sale of the Yonge Street Property and then a distribution of the net value of the Estate in equal one-third shares to the beneficiaries. If John wishes to purchase the Yonge Street Property, in whole (alone) or in part (with Nadine), he must comply with Para. III.14. Leonardo’s Will requires that the private purchase of the Yonge Street Property proposed by John through private contract be conducted by a disinterested trustee. As John is the sole trustee of Leonardo’s Will, a disinterested trustee must be appointed for the purpose of a private sale.

[84] For these reasons, I conclude that Leonardo’s Will does not provide that the Estate trustee may make an appropriation and distribution of the Yonge Street Property in the manner claimed in the Notice of Application in John’s 2023 Application.

[85] Considering this conclusion, it is not necessary to determine whether the Proposed Distribution as formulated by John is a proper valuation of Diane’s one-third share of the Estate. For completeness of analysis, had it been necessary to determine the value of Diane’s one-third interest in the Estate for the purposes of the Proposed Distribution, I would have found that there was insufficient evidence in the 2023 Applications to make this determination. I will explain why.

[86] The only opinion evidence of the value of the Yonge Street Property that was capable of being admitted for the truth of its contents was the Narrative Appraisal Report dated January 10, 2023 prepared by Colliers International (the “2023 Colliers Report”). John relied on the 2023 Colliers Report in support of his determination that the Yonge Street Property had a value of $2,200,000.00. As explained in my ruling on John’s objection to Diane’s valuation evidence, none of Diane’s valuation evidence was admitted for the truth of its contents.

[87] Para. II.1.(b)(iii) and Para. III.10 provides that on a partition or appropriation John shall have the power to determine the value of the Estate or any part of the Estate “in any manner my Trustees shall see fit.” However, the valuation “shall be made as of the date of distribution of any such part of my estate”. The 2023 Colliers Report provides a date of valuation of January 5, 2023: two months before John commenced his 2023 Application for directions regarding distribution of all or part of the Estate.

[88] In my view, the distribution date for a partition or appropriation is not the date of an appraisal that was obtained over two months before an Application was issued to seek directions for the proposed distribution. The valuation of the property proposed to be distributed must be reasonably current with the proposed distribution. This ensures fairness to all parties, consistent with my determination that Leonardo intended a fair distribution between his children. For these reasons, had it been necessary to determine the appropriateness of John’s Proposed Distribution, I would have found that there was insufficient evidence in the record in the 2023 Applications to quantify the value of Diane’s one-third share of Leonardo’s Estate.

VI. ISSUE — IS JOHN’S APPLICATION AN ABUSE OF PROCESS?

[89] Diane submitted that John’s 2023 Application is scandalous, frivolous or vexatious, and an abuse of process because John initiated this Application within months of the settlement of the 2021/2022 Applications. Diane submitted that John should have sought an interpretation of Leonardo’s Will in his 2022 Application.

[90] Diane’s lawyers did not rely on any case law in support of this submission. Diane’s written submission on this issue was one paragraph unsupported by any authority.

[91] I decline to dismiss John’s 2023 Application as an abuse of process, for the following reasons. First, notwithstanding their joint report to the court on December 13, 2022 that the 2021/2022 Applications had been settled, neither Diane nor John sought any court order arising from this settlement and none was issued. Second, Diane has conceded that no judicial determination has been made regarding the interpretation of Leonardo’s Will, including the issue of whether John is entitled to make an appropriation and distribution of the Yonge Street Property through payment to Diane of the Proposed Final Distribution. Third, neither party has produced a full and final release of the issues raised by the 2021/2022 Applications or shown that the parties agreed to bring no further proceedings. Fourth, Diane brought her 2023 Application notwithstanding the alleged settlement of her 2021 Application and did not provide a reasonable explanation of why she is able bring a further Application arising out of Leonardo’s Estate but John should be barred from doing so.

[92] Diane’s claim for dismissal of John’s 2023 Application on the basis of abuse of process is dismissed.

VII. ISSUE — REMOVAL OF TRUSTEE

[93] Diane seeks an order removing John as Trustee of Leonardo’s Estate. I will begin my analysis of this issue by summarizing the applicable legal principles.

A. Applicable Legal Principles

[94] Sections 5 and 37 of the Trustee Act , R.S.O. 1990, c. T.23 (the “ Trustee Act ”) provide the Court with authority to remove a trustee and appoint another trustee in their place. [39] Furthermore, the Court has the inherent jurisdiction to remove trustees. [40]

[95] The principles that guide the court’s analysis of whether to remove an estate trustee are well-established and may be summarized as follows:

(a) The court will remove the estate trustee only if doing so is clearly necessary to ensure the proper administration of the trust. [41]

(b) The court should not lightly interfere with a testator’s choice of the person to act as his or her estate trustee. [42] The wishes of the testator will generally be honoured “even if the person chosen is of bad character”. [43]

(c) A court should remove an estate trustee only on the “clearest of evidence” and should be reluctant to pass over a named estate trustee unless “there is no other course to follow”. [44]

(d) Even if an estate trustee has not executed their functions perfectly or ideally, “that is not the test”. [45] The test is whether the estate is likely to be administered properly in accordance with the fiduciary duty of the trustee and for the benefit of the beneficiaries. [46]

(e) Friction alone between co-executors is not itself reason for removal. [47] For friction to be the basis for removal, it must rise to a level that prevents the proper administration of the estate. [48]

(f) Passing over an executor is an “unusual and extreme course”. [49] It has been described as an “extreme remedy” and one of “last resort”. [50]

(g) Past misconduct may justify removal if that misconduct is likely to continue in the future. Removal is not intended to punish, but to protect the Estate assets and the interests of the beneficiaries. [51]

(h) The Court’s main guide should be the welfare of the beneficiaries. [52]

[96] The Court of Appeal instructed in Chambers , that “[a]n executor is removed after he or she has received a certificate of appointment, whereas an executor is passed over before the issuance of such a certificate”. [53] The Court of Appeal continued: “[p]ut another way, a person is removed as estate trustee after he or she has assumed authority to administer the estate, whereas a person is passed over as estate trustee prior to having assumed authority to administer the estate.”

B. Analysis — Removal of Trustee

[97] Diane seeks the removal of John as Estate Trustee even though John has not yet been granted a CAET, without addressing the question of whether the proper order is an order for removal or an order for passing over John as estate trustee. However, the grounds for passing over a named trustee are the same as the grounds for removal of an estate trustee. [54]

[98] It is not necessary to decide whether the proper remedy available to Diane was to seek an order removing John or passing over John as Estate Trustee, as I decline to grant Diane either remedy. I will explain why.

[99] First, a plain reading of Leonardo’s Will shows that Leonardo clearly intended that John act as trustee of his Estate in the event that Rose was unable to do so. This is seen not only in the trustee appointment provision, at para. I.2, but also in Para. II.1(e)(iii) where Leonardo specifically stated that in the event of a disagreement on the part of the beneficiaries in the division of his assets, “that decision is to be made by my Trustees; in this regard I appreciate that the sole trustee in these circumstances will be my son, JOHN LA CALAMITA ” (emphasis in original).

[100] Second, I do not accept Diane’s submission that John should be removed because he has a conflict of interest in his dual role as sole trustee and beneficiary. I find that Leonardo knew of this potential conflict and provided the process set out in Para. III.14 if John, in his personal capacity, wanted to purchase the Yonge Street Property from himself, in his capacity as Estate Trustee.

[101] Third, I do not accept Diane’s submission that John’s conduct to this point in the administration of Leonardo’s Estate warrants his removal as Trustee. Diane relies principally on two grounds: that John has acted in self-interest in bringing two lawsuits against Diane to purchase the Yonge Street Property; and that John has refused to provide an estate accounting. Neither of these submissions has merit, as I will explain.

[102] In bringing the 2023 Application, John is seeking the direction of the court on the interpretation of the Will. This is proper conduct for an Estate Trustee who is uncertain of the operation of the Will, and is not a ground for removal or being passed over. On the issue of an accounting, John has provided an informal accounting, including in his affidavit sworn March 15, 2023 as updated in his affidavit sworn August 21, 2023. John has sworn that “estate accounts will be passed in the normal course”. [55] This is a simple Estate, with one asset and a bank account that holds the modest rental income produced by that asset. The Estate expenses are the carrying costs of the Yonge Street Property, including the tax liability to the Canada Revenue Agency (“CRA”). I do not accept that Diane lacks, or has been deprived of, an understanding of the Estate’s assets and liabilities. I found Diane’s submission that she requires a formal accounting of a single asset Estate to understand its value to be irreconcilable with her sworn testimony that she helped manage the Yonge Street Property “for many years” and is thereby familiar with its rental income and expenses. [56]

[103] Fourth, Diane’s complaint that John has concealed from her the Estate’s tax liability to the CRA and the valuations that have been obtained by the Estate of the Yonge Street Property is not supported by the evidentiary record, which contains detail of this information. I accept that in some instances there has been delay by John in providing Diane with information about the Yonge Street Property and the status of the CRA liability. However, even if John has not discharged his duty to inform the beneficiaries perfectly or ideally, “that is not the test” for removal. [57]

[104] Fifth, while there is friction between John and Diane, this, in and of itself, is not sufficient to replace Leonardo’s choice of trustee. Leonardo knew of the relationship between his children at the time that he executed his Will, and nonetheless named John as his trustee. Leonardo had further insight into his children’s relationship in the 30 years between execution of his Will and his death and chose not to revise his Will to appoint a different trustee. According to John and Diane’s evidence, the strained relationship between them did not first emerge after Leonardo’s passing. Furthermore, apart from name calling and accusations by John and Diane that does not flatter either of them, I saw no evidence that the friction between John and Diane will impair the administration of the Estate. This is particularly the case if John decides to purchase the Yonge Street Property through a private sale, as Para. III.14 will be activated.

[105] Sixth, Diane did not establish that it is in the best interests of the beneficiaries to remove John as Trustee and replace him with a professional trustee. Diane did not prove that John has endangered the trust property or that he has lacked honesty. The cost of a professional trustee will reduce the net value of the Estate available for distribution to the beneficiaries.

[106] In conclusion, Diane failed to prove that it is clearly necessary to remove John as estate trustee of Leonardo’s Estate. Diane failed to present the “clearest of evidence” to show that John cannot, or will not, administer the Estate properly which, at this point, involves principally the management of the Yonge Street Property. On my assessment of the evidence, I am not satisfied that Leonardo’s selection of John as estate trustee should be disrupted. For these reasons, Diane’s Application to remove John as estate trustee of Leonardo’s Estate is dismissed.

VIII. ISSUE — THE APPOINTMENT OF A DISINTERESTED TRUSTEE

[107] In accordance with my interpretation of Leonardo’s Will, a disinterested trustee is required under Para. III.14 to conduct a private sale of any estate asset that John seeks to purchase, in whole or in part. Currently, the Trustee has not directed any such private sale and is not seeking any order for a private sale. Para. II.1.(b)(iii) provides that no beneficiary has the right to insist that the Trustee sell any asset of the Estate prior to satisfying the beneficiary’s interest. Accordingly, there is currently no basis to appoint a disinterested trustee.

[108] No order shall issue for the appointment of a disinterested trustee, without prejudice to either party bringing an Application to seek this order in the event of a private sale of estate property.

IX. ISSUE — THE PROBATE APPLICATION

[109] As grounds for her Notice of Objection in the Probate Application, Diane pleaded the claims that were then advanced in her 2023 Application, including: (a) John is in a conflict of interest because he seeks to vest title to the Yonge Street Property in himself and Nadia, personally; and (b) John is acting in disregard of the interest of Diane as a beneficiary by contravening the provisions of Leonardo’s Will in pursuit of acquiring the Yonge Street Property, and thereby placing his own interests above the interests of Diane as beneficiary.

[110] These grounds have now been determined as part of my analysis of Diane’s claim for John’s removal as Estate Trustee, and dismissed. Accordingly, an Order shall issue that a CAET be issued to John in the Probate Application.

X. DISPOSITION

[111] On the basis of these reasons, I order:

(a) Leonardo La Calamita’s Will does not provide that the Estate trustee may make an appropriation and distribution of the Yonge Street Property in the manner claimed by John La Calamita in the Notice of Application in the Application brought in court file number CV-23-00696229-00ES.

(b) Diane La Calamita’s claim that the Application brought in court file number CV-23-00696229-00ES be dismissed as an abuse of process, scandalous or vexatious is dismissed.

(c) Diane La Calamita’s claim that John La Calamita be removed or passed over as Estate trustee of the estate of Leonardo La Calamita is dismissed.

(d) Diane La Calamita’s claim that a disinterested trustee be appointed for the estate of Leonardo La Calamita is dismissed.

(e) An order shall issue for the issuance of a Certificate of Appointment of Estate Trustee to John La Calamita in the probate application brought in estates file number 2023-010485.

[112] The parties may deliver to the Court Registrar and to the Estates List Trial Coordinator 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, the parties may request the scheduling of a Case Conference to settle the form of the Judgment.

XI. COSTS

[113] 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 August 16, 2024, deliver by email to the Court Registrar and to the Estates List Trial Coordinator, after service and filing on Case Center, written costs submission of no more than eight (8) pages, plus a Bill of Costs. Any party against whom costs is sought may, by September 6, 2024, deliver by email to the Court Registrar and to the Estates List Trial Coordinator after service and filing on Case Center, responding cost submissions of the same length. If no party delivers any written cost submissions by September 6, 2024, I will deem the issue of costs to have been settled.

A.A. Sanfilippo J. Released: July 26, 2024

COURT FILE NOS.: CV-23-00696229-00ES CV-23-00704035-00ES DATE: 20240726 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JOHN MICHAEL LA CALAMITA Applicant – and – DIANE MARIA LA CALAMITA, et al. Respondents – and – COURT FILE NO.: CV-23-00704035-00ES BETWEEN: DIANE MARIE LaCALAMITA Applicant – and – JOHN MICHAEL LaCALAMITA, et al. Respondents

REASONS FOR JUDGMENT A.A. Sanfilippo J. Released: July 26, 2024

[1] For brevity and clarity, I will respectfully refer to the parties by their first names, particularly as they share a common surname, although spelled differently. I will refer to the parties’ surname in the manner used by John La Calamita because that is the spelling used by Leonardo in testamentary documents. Diane’s Application Record refers to her name interchangeably as “LaCalamita” and “La Calamita”.

[2] 1100997 Ontario Limited v. North Elgin Centre Inc . , 2016 ONCA 848 , 409 D.L.R. (4th) 382 , at para. 17 , applying Energy Probe v. Canada (Attorney General) (1989) , 68 O.R. (2d) 449 (C.A.) , leave to appeal refused [1989] S.C.C.A. No. 223.

[3] Neighbourhoods of Windfields Limited Partnership v. Death , at paras. 23–28 ; Al-Dandachi v. SNC-Lavalin Inc. , 2012 ONSC 6534 , at para. 15 ; Holder v. Wray , 2018 ONSC 6133 , at para. 40 : “it is a discretionary order to make in the right circumstances”.

[4] R. v. Schneider , 2022 SCC 34 , 84 C.R. (7th) 223 , at para. 36 .

[5] Schneider , at paras. 38 and 45 .

[6] Holder , at para. 48 : “Evidence that is irrelevant is not enough”.

[7] 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd . (1997) , 37 O.R (3d) 70 (Gen. Div.) , at para. 17

[8] Albert v. York Condominium Corp. No. 46 , [2002] O.T.C. 307 (S.C.) , at para. 28 .

[9] Al-Dandachi v. SNC-Lavalin Inc . , 2012 ONSC 6534 , at para. 15 .

[10] Propco , at para. 17.

[11] M ensour v. The Corporation of the Municipality of Lemington , 2012 ONSC 3525 , at para. 41 , citing Chopik v. Mitsubishi Paper Mills Ltd . (2002), 26 C.P.C. (5th) 104 (S.C.) , at para. 26 .

[12] Gutierrez v. The Watchtower Bible and Tract Society of Canada , 2019 ONSC 3069 , 34 C.P.C. (8th) 240 , at para. 27 ; Enns v. Goertzen , 2019 ONSC 4233 , at para. 68 .

[13] R. v. Bradshaw , 2017 SCC 35 , [2017] 1 S.C.R. 865 , at paras. 1 and 20 ; R v. MacKinnon , 2022 ONCA 811 , at para. 27 .

[14] Schneider , at para. 47 .

[15] R. v. Khelawon , 2006 SCC 57 , [2006] 2 S.C.R. 787 , at paras. 2 and 42 ; Bradshaw , at para. 23 .

[16] Khelawon , at para. 47 ; Bradshaw , at para. 23 .

[17] MacKinnon , at para. 38 , citing Khelawon , at paras. 47-48 , and Bradshaw , at para. 23 .

[18] Khelawon , at para. 49 ; Bradshaw , at para. 24 .

[19] ( $2,200,000.00+$64,375.07- $814,329.63) = $1,450,045.44 ÷ 3 = $483,348.48 (rounded to $485,000.00)

[20] Ross v. Canada Trust Company , 2021 ONCA 161 , 458 D.L.R. (4th) 39 , at para. 36 ; Trezzi v. Trezzi , 2019 ONCA 978 , 150 O.R. (3d) 663 , at para. 13 .

[21] Walters v. Walters , 2022 ONCA 38 , 160 O.R. (3d) 249 , at para. 37 , applying Ross , at para. 13 and Trezzi , at paras. 35–41 .

[22] , [1960] O.R. 26 (C.A.) , at p. 30, as applied in Ross , at para. 37 .

[23] Ross at para. 39 .

[24] Ross , at paras. 40–41 , with reference to Dice v. Dice Estate , 2012 ONCA 468 , 111 O.R. (3d) 407 , at para. 37 .

[25] 2015 MBCA 33 , 319 Man. R. (2d) 16 , at para. 14 .

[26] 2019 ABCA 136 , 85 Alta. L.R. (6th) 1 , at para. 76 , as referred to in Ross at para. 41 .

[27] Ross , at para. 37 .

[28] Burke (Re) , [1960] O.R. 26 (C.A.) , at p. 30 .

[29] Ross , at para. 39 .

[30] Estate of John Kaptyn; Kaptyn v. Kaptyn , 2010 ONSC 4293 , 102 O.R. (3d) 1 , at paras. 35–37 ; Mansour v. Girgis , 2024 ONSC 1611 , at para. 25 .

[31] Affidavit of John La Calamita sworn August 21, 2023, at paras. 3-4, 34 and 49.

[32] Affidavit of John La Calamita sworn August 21, 2023, at paras. 4, 5, 6, 9, 24, 29, 32, 33.

[33] Affidavit of John La Calamita sworn August 21, 2023, at paras. 25-27.

[34] Affidavit of John La Calamita sworn August 21, 2023, at para. 20.

[35] Khelawon , at para. 47 ; Bradshaw , at para. 23 .

[36] Affidavit of Diane La Calamita sworn July 21, 2023, at paras. 5 and 15; Affidavit of Diane La Calamita sworn September 20, 2023, at para. 62.

[37] Dice , at para. 36 .

[38] Ross , at para. 37 , applying Burke (Re) , at p. 30; Hicklin , at paras. 62–63 .

[39] Trustee Act , s. 5(1): “The Superior Court of Justice may make an order for the appointment of a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.” Trustee Act , s. 37(1): “The Superior Court of Justice may remove a personal representative upon any ground upon which the court may remove any other trustee, and may appoint some other proper person or persons to act in the place of the executor or administrator so removed.”

[40] Chambers Estate v. Chambers , 2013 ONCA 511 , 309 O.A.C. 205 , at para. 101 , citing Evans v. Gonder , 2010 ONCA 172 , at para. 42 .

[41] Di Michele v. Di Michele , 2014 ONCA 261 , 319 O.A.C. 72 , at para. 84 ; Di Santo v. Di Santo Estate , 2023 ONCA 464 , 87 E.T.R. (4th) 167 , at para. 26 .

[42] Chambers , at para. 95 .

[43] Chambers , at para. 96 .

[44] Chambers , at para. 95 .

[45] Taetz v. Mikolajewski , 2023 ONSC 4635 , at para. 11 ; Radford v. Radford Estate (2008) , 43 E.T.R. (3d) 74 (S.C.) , at para. 120 ; St Joseph’s Health Centre v. Dzwiekowski , at para. 25 .

[46] Meuse v. Taylor , 2022 ONSC 1436 , 161 O.R. (3d) 30 , at para. 14 ; Henderson v. Sands , 2023 ONSC 897 , 85 E.T.R. (4th) 182 , at para 11 .

[47] Chambers , at para. 96 .

[48] Henderson , at para . 8 .

[49] Chambers , at para. 95 .

[50] Kinnear v. White , 2022 ONSC 2576 , at para. 7 .

[51] St Joseph’s Health Centre , at paras. 28–29 ; Virk v. Brar Estate , 2014 ONSC 4611 , E.T.R. (4th) 241, at para. 48 .

[52] Kinnear , at para. 11 , citing Crawford v. Jardine (1997), 20 E.T.R. (2d) 182 (Ont. Gen. Div.) , at para. 18 ; Henderson , at para . 8 ; Radford , at para. 103 ; St Joseph’s Health Centre , at para. 26 .

[53] Chambers , at para. 90 , applying Quinn J.’s holding in Windsor v. Mako (2008), 43 E.T.R. (3d) 255 (Ont. S.C.) , at para. 35 .

[54] Sassano v. Iozzo , 2024 ONSC 1517 , at para. 13 .

[55] Affidavit of John La Calamita sworn August 21, 2023, at para. 52: “…I intend to update and circulate the accounts of this relatively simple estate and have them approved in accordance with the estates law in Ontario when appropriate. I have made no distributions to any beneficiary.” Also, at para. 67: “…as I indicate above the estate accounts will be passed in the normal course.”

[56] Affidavit of Diane La Calamita sworn July 21, 2023, at para. 47: “I also have a moral and sentimental attachment to the Yonge Street Property, having helped my parents manage it for many years before they died and having gone there many times and become familiar with the tenants.”

[57] Taetz , at para. 11 .