Court of Appeal for Ontario

Date: 2017-03-17 Docket: C62738

Judges: Epstein, Benotto and Trotter JJ.A.

Between

Elena Jirnova, Estate Trustee of the Estate of Bill Tamaovski Applicant (Respondent)

and

Vassilka Georgieva and Edon Haziri, Estate Trustee of the Estate of Bill Tamanovski, and in his personal capacity Respondents (Appellants)

Counsel and Parties

Appellants (Acting in Person):

• Vassilka Georgieva
• Edon Haziri
• Dijana Haziri

Counsel for the Respondent:

• Felice C. Kirsh
• Mitchell J. Rattner

Heard: March 13, 2017

On appeal from: The judgment of Justice Barbara A. Conway of the Superior Court of Justice dated September 15, 2016.

Appeal Book Endorsement

[1] Bill Tamanovski died on August 4, 2015. His Will permitted his common law spouse, Ms. Georgieva, to remain in his home, provided that only she and the two tenants live there. Section 3(c)(iii) of the Will provides:

[U]nder no circumstances shall anyone be permitted to occupy the Residence, other than my common law spouse and the tenants as permitted in subsection 3(c)(ii). if my common law spouse shall breach the terms of this provision, the trust set up for her shall be terminated and the residence shall be dealt with in accordance with the provisions of subsection 3(c)(v).

[2] Ms. Georgieva and her family are currently occupying the house, as well as the two tenants.

[3] Justice Conway found that the terms of the Will were breached because Ms. Georgieva's family was living at the property. Justice Conway terminated Ms. Georgieva's right to remain in the property. She also removed Mr. Haziri as an estate trustee, having found that he was in a conflict of interest.

[4] We find no error, neither factual nor legal, in Justice Conway's reasons. The record fully supports her interpretation of the Will and her factual findings that the terms of the Will were breached. The record also supports Justice Conway's conclusion that Mr. Haziri was in a conflict of interest.

[5] The appellants seek to adduce fresh evidence on appeal. We are not satisfied that the evidence meets the test for the admission of fresh evidence.

[6] Accordingly, the appeal is dismissed. Everyone other than the two tenants shall vacate the premises no later than 5:00 p.m. on April 13, 2017.

[7] Costs are payable to the respondent in the amount of $2,000, inclusive of disbursements and HST.

[8] Approval as to form and content of this court's order is dispensed with.