Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211020 DOCKET: M52850 (C69621)

Brown J.A. (Motion Judge)

In the Matter of the Estate of Juliet Pitterson-Box, deceased

BETWEEN

Audrey Ilgner, personally and in her capacity as Estate Trustee of the Estate of Juliet Pitterson-Box Applicant/Moving Party (Responding Party/Respondent)

and

Blaze Box, Klay Box, Storm Box, Alburn Vidal (referred to as Alluin Didal in the Last Will and Testament of Juliet Pitterson-Box), Claudia Roseanne Soso and Nora Mazit Respondents (Moving Party/Appellant)

Blaze Box, acting in person Jonathon Kappy and Stuart Clark, for the responding party

Heard: October 12, 2021 by video conference

Endorsement

[1] The moving party appellant, Mr. Blaze Box, has filed a notice of appeal from the order made by Conway J. dated June 3, 2021 (the “Third Conway Order”). Mr. Box has not yet perfected his appeal.

[2] Mr. Box moves for an order: (i) granting him an extension of time until December 31, 2021 to perfect his appeal; (ii) requiring the estate trustee, his grandmother Audrey Ilgner, to release to him all draft copies of the will of his late mother, Juliet Pitterson-Box, her medical records and any insurance documents (the “Document Requests”); (iii) putting in place a process that would enable him to pay out his two siblings’ share of the estate from a mortgage he wishes to place on the main estate asset, a residential property at 352 Dupont Street, Toronto (the “Property”), which he presently occupies; and (iv) staying the Third Conway Order that ordered him to vacate the Property and granted leave to issue a writ of possession to the estate trustee in respect of the Property.

[3] Ms. Pitterson-Box died on June 18, 2019. At the time of her death, she had three adult children: the appellant, Klay Box, and Storm Box.

[4] The deceased’s Will dated February 12, 2019 (the “Will”) appointed her mother, Ms. Ilgner, as estate trustee. The Will provides for several bequests totaling $150,000, with the residue to be divided equally amongst the deceased’s three children.

[5] In January 2020, Blaze and Klay Box filed a notice of objection in respect of the Will in which they asserted that their mother wanted to maintain the Property as the family home with the three children as beneficiaries. The siblings contended that the estate trustee was not acting in the best interests of the beneficiaries and asserted that the failure of the Will to include a bequest to one of their mother’s friends indicated that her wishes “seemed to be ignored/tampered with and/or changed through suspicions + questionable circumstances.” The objectors did not assert the existence of an alternate will.

[6] The Property is the main estate asset.

[7] Mr. Box has resided at the Property at least since his mother’s death. He is, in effect, treating the Property as his own, renting out some of the rooms and making some renovations.

[8] By notice of application issued October 13, 2020, the estate trustee sought various relief, including orders striking out the notice of objection, restraining the three children from effecting any capital improvements or renovations to the Property, requiring the children to account for any rental income they had received for the Property, and directing the children to provide vacant possession of the Property. Blaze and Klay Box filed a notice of appearance in the application.

[9] On November 9, 2020, Conway J. made her first order (the “First Conway Order”). It directed Blaze and Klay to desist from further renovations and account for their dealing with the Property. Mr. Blaze Box did not participate in that hearing.

[10] Mr. Box contends that he did not participate in many of the hearings because he was not given notice of them and was not properly served with court materials. The record contradicts his assertion. There is no doubt that Mr. Box uses the email address to which the various affidavits of service state the court materials were sent. Emails from him dating back to April 1, 2020 attest to that fact. Mr. Box contends that during the pandemic he did not check his email with great frequency. Whether or not that is true, it does not detract from the propriety of service of various court materials to his email address, as well, on occasion, to the Property, where he lives.

[11] No appeal was taken from the First Conway Order.

[12] The record shows that Mr. Box ignored the First Conway Order. That led to the second order (the “Second Conway Order”) dated December 16, 2020, which struck out the notice of objection filed by Blaze and Klay without leave to amend, directed the issuance of a certificate of appointment of estate trustee to Ms. Ilgner, and directed Blaze and Klay to comply with the First Conway Order.

[13] No appeal was taken from the Second Conway Order.

[14] In late May 2021, the estate trustee moved for an order requiring Mr. Box to vacate the Property and seeking leave to issue a writ of possession. The Third Conway Order, dated June 3, 2021, ordered Mr. Box to vacate the Property by July 3, 2021, failing which a writ of possession could issue.

[15] Mr. Box remains in the Property.

[16] On July 7, 2021, Mr. Box filed a notice of appeal from the Third Conway Order.

[17] To date, Mr. Box has not filed any materials to perfect his appeal, notwithstanding the court’s issuance on August 16, 2021 of a notice of intention to dismiss for delay if the appeal was not perfected by September 13, 2021.

[18] Instead, Mr. Box seeks an extension, until the end of this year, to perfect his appeal.

[19] I start my consideration of his request for an extension with the observation that while the appellant’s delay in perfecting his appeal is not unduly long, he offers no reasonable explanation about why there was any delay, given that the proceeding before Conway J. in June 2021 was a motion based on a written record. The subsequent variation of the Third Conway Order in September 2021 to include the Property’s legal description and PIN number would not prevent Mr. Box from perfecting his appeal. The record strongly suggests that Mr. Box believes he can live on in the estate’s Property for as long as he wishes and disregard the terms of his mother’s Will and the efforts of his grandmother to administer the estate. His motion for an extension of time to perfect until the end of this year strikes me as a continuation of that pattern of conduct.

[20] As to the merits of his appeal of the Third Conway Order, I see no meritorious grounds of appeal: Chuang v. Royal College of Dental Surgeons of Ontario (2005), 77 O.R. (3d) 280 (Div. Ct.), at para. 3. No appeal was taken from the Second Conway Order that struck out the notice of objection and directed the issuance of a certificate of appointment of estate trustee. Given the lack of an appeal, the Will must be taken as proved. Therefore, the Document Requests sought by Mr. Box are no longer relevant.

[21] The Will does not grant Mr. Box a proprietary interest in the Property; his interest is in the residue of the estate following the realization of the estate’s assets. Accordingly, there is no legal basis for his position that he should be allowed to somehow take title to the Property, mortgage it, and pay out his siblings’ shares of the residue. It also follows that there is no legal basis for Mr. Box to remain in the Property, which is the estate’s asset.

[22] Since the Property is the main estate asset, any continuing delay would prejudice the estate and the other beneficiaries of the estate.

[23] In sum, the justice of the case works against granting the relief requested by Mr. Box. Instead, the justice of the case requires the administration of the estate to proceed without further efforts by Mr. Box to delay the estate trustee.

[24] For those reasons, the motion is dismissed.

[25] The respondent estate trustee is entitled to her partial indemnity costs of this motion fixed in the amount of $10,000.00, inclusive of disbursements and applicable taxes, payable out of the residuary interest of Mr. Blaze Box in the Estate of Juliet Pitterson-Box.

“David Brown J.A.”