Court of Appeal for Ontario

Citation: Policelli Estate v. Zita, 2014 ONCA 810 Date: 2014-11-17 Docket: C58594

Before: Hoy A.C.J.O., Epstein and Hourigan JJ.A.

Between:

Maria Rinaldi in her capacity as Estate Trustee of the Estate of Caterina Policelli, deceased Applicant (Respondent)

and

Philip Zita, Nicholas Policelli, Leonardo Policelli, Philip Policelli, Anna Rinaldi and Concetta Rinaldi Respondents (Appellant)

And Between:

Philip Zita Applicant by Counter-Application (Appellant)

and

Maria Rinaldi in her capacity as the proposed Estate Trustee of the Estate of Caterina Policelli, deceased, Nicholas Policelli, Leonardo Policelli, Philip Policelli, Anna Rinaldi and Concetta Rinaldi Respondent by Counter-Application (Respondent)

Counsel: J. David Sloan, for the appellant David J. McGhee, for the respondent

Heard and released orally: November 6, 2014 On appeal from the order of Justice Herman J. Wilton-Siegel of the Superior Court of Justice, dated March 11, 2014.

ENDORSEMENT

[1] When Caterina Policelli died, she bequeathed to her son, Philip Policelli, a life interest in her house. Before the application judge, the appellant, Philip Zita, a judgment creditor of Mr. Policelli, sought various forms of relief for the purpose of securing an interest in the house.

[2] The application judge dismissed the appellant’s claims describing them as an effort “to have the court rewrite the will to provide that Mr. Policelli is entitled to the property and then to have the court appoint an equitable receiver of the property. The court has no authority to override the testator’s wishes in this manner in the present circumstances.”

[3] We agree.

[4] For the appellant to have a claim against the house, he had to demonstrate that Mr. Policelli was given a proprietary interest in the home, or that he was a creditor of Ms. Policelli. If the first factor were present, the appellant may have been able to claim an equitable interest in the home based on his judgment. If the second factor were present, the appellant may have been able to resort to the Fraudulent Conveyances Act to prevent the deceased from avoiding her creditors. However, Mr. Policelli was only given a life interest in the home. The will did not grant Mr. Policelli a right to the house itself. Therefore, the appellant can have no higher right.

[5] Since Ms. Policelli was never indebted to the appellant, the disposition of her estate cannot constitute a fraudulent assignment. The appellant is not a “creditor or other” within the meaning within s. 2 of the Fraudulent Conveyances Act.

[6] The appellant’s proposed fresh evidence about the deceased’s facility in English is not relevant to the issues in this appeal and will not be admitted.

[7] In the end, we conclude that no miscarriage of justice transpired in this case. Simply put, Mr. Policelli’s interest in the house; namely, his right to use it, is beyond the appellant’s reach.

[8] Finally we see no reason to interfere with the costs award. The application judge’s determination of costs attracts significant deference. While the award is high, we see no error in principle and have no reason to conclude that the award is plainly wrong.

[9] For these reasons, the appeal from the dismissal of the appellant’s claims in relation to the house, is dismissed. While leave to appeal costs is granted, we would dismiss the costs appeal.

[10] Costs of the appeal are payable by the appellant fixed in the amount of $8000, inclusive of taxes and disbursements.

“Alexandra Hoy A.C.J.O.” “Gloria Epstein J.A.” “C.W. Hourigan J.A.”