COURT FILE NO.: 01-3700/10

DATE: 20120618

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IN THE MATTER OF THE ESTATE OF MARY JOE ANN FULCHER, deceased

EDWIN LAVERNE FULCHER, Applicant

AND:

MICHAEL ALAN FULCHER and JAMES OWEN FULCHER in their capacity as ESTATE TRUSTEES OF THE ESTATE OF MARY JOE ANN FULCHER and their personal capacities; and DAVID EDWIN FULCHER, WILLIAM BRIAN FULCHER, and JOHN WARREN FULCHER GREGORY, Respondents

BEFORE: T. McEwen J.

COUNSEL: Ashley Waye, for the Applicant

Michael Fulcher, in person as self-represented

HEARD: May 24, 2012

ENDORSEMENT

introduction

[1] On the return date, there were two matters before the court as follows:

1. the application brought by Edwin Laverne Fulcher (“Edwin”) seeking, amongst other things, support from the Estate of Mary Joe Ann Fulcher (“the Estate”); and

2. a motion seeking an order for directions, an order for interim support for Edwin from the Estate, and an order striking certain paragraphs of the affidavits of Michael Alan Fulcher (“Michael”) and James Owen Fulcher (“Owen”), both sworn March 16, 2012.

[2] John Warren Fulcher Gregory (“John”) is represented by counsel and consented to the motion for directions and the adjournment. Counsel for John did not attend at the motion but an articling student from the firm was in attendance. No other Respondents, except for Michael, attended at the hearing. I was advised by counsel for Edwin and Michael, however, that notwithstanding some issues concerning addresses for service the remaining Respondents were fully aware of the motion and the issues in the motion. They chose not to attend or seek an adjournment. It was also my understanding that the remaining non-attending Respondents share the views of Michael in the hearing before me. In the circumstances, I proceeded with the motion.

The Application

[3] At the commencement of the hearing Edwin sought to adjourn the application on the basis that, amongst other things, it was premature to deal with the application for support prior to the hearing of the motion for directions and obtaining the documentation and information from that motion. Michael, who is self-represented, opposed the adjournment stating that he wanted to deal with both matters at one time. I agree with counsel for Edwin that the sensible thing to do is to adjourn the application until the relief sought in the motion is dealt with by the court.

[4] Accordingly, I adjourned the application to a date to be set by the registrar.

The Motion for directions

Consent Orders

[5] After hearing submissions from counsel for Edwin and from Michael and having certain discussions with them, the following Orders were consented to:

1. THIS COURT ORDERS that the applicant shall be Edwin Laverne Fulcher and the Respondents shall be Michael Allan Fulcher, James Owen Fulcher, David Edwin Fulcher, William Brian Fulcher and John Warren Fulcher Gregory and the issues to be tried are as follows:

(a) Was the Estate of Mary Joe Ann Fulcher enriched as a result of the contributions of the Applicant, Edwin Laverne Fulcher, to D. G. Bawtinheimer Ltd.; did the Applicant suffer a corresponding deprivation; and was there no juristic reason for the enrichment and deprivation?

(b) If the answer to all of the inquiries in a) is “yes”, what is the appropriate remedy for the unjust enrichment?

(c) Was the Applicant, Edwin Laverne Fulcher, a dependant of Mary Joe Ann Fulcher, pursuant to section 57 of the Succession Law Reform Act?

(d) Did Mary Joe Ann Fulcher make adequate provision for the proper support of the Applicant, Edwin Laverne Fulcher, pursuant to section 58 of the Succession Law Reform Act?

(e) If the answers to c) and d) are yes, what is the amount and duration of support that should be paid pursuant to section 62 of the Succession Law Reform Act from the Estate of Mary Joe Ann Fulcher to the Applicant, Edwin Laverne Fulcher?

(f) If the answers to c) and d) are yes, were there any transactions effected by Mary Joe Ann Fulcher, before her death, whether benefitting the Applicant, Edwin Laverne Fulcher, or any other person, of which the capital value should be included as testamentary dispositions as of the date of the death of Mary Joe Ann Fulcher, deemed to be part of her net estate for purposes of ascertaining the value of her Estate, and available to be charged for payment by an Order under clause 63(2)(f) of the Succession Law Reform Act?

2. THIS COURT ORDERS that the application titled Edwin Laverne Fulcher v. Michael Allan Fulcher et al. in Court File No. 01-3700/10 and the action titled The Estate of Joe Ann Fulcher v. John Gregory in Court File No. CV-11-00422780-0000 and the action titled Michael Fulcher and Owen Fulcher v. John Warren Fulcher Gregory, shall be tried one after the other and heard by the same judge, or as the trial judge directs.

3. THIS COURT ORDERS that the Respondents shall forthwith provide to counsel for the Applicant, Edwin Laverne Fulcher, copies of all transcripts of the examinations for discovery of all parties and witnesses who have been examined in any proceeding with respect to the Estate of Mary Joe Ann Fulcher, the expense of which to be borne by the Applicant.

4. THIS COURT ORDERS that the Respondents shall forthwith provide to counsel for the Applicant, Edwin Laverne Fulcher, copies of the Affidavits of Documents served pursuant to paragraph 4 of the Order Giving Direction of Justice Penny dated September 20, 2011 in Court File No. 01-3700/10 Michael Fulcher and Owen Fulcher v. John Warren Fulcher Gregory, the expense of which is to be borne by the Applicant.

5. THIS COURT ORDERS that within 30 days of this Order, the Respondent Estate Trustees are to use best efforts to provide the Applicant with a complete list of all the assets owned by Mary Joe Ann Fulcher as at the date of death along with supporting documentation. The Applicant is to provide an up to date financial statement with supporting documents within 30 days.

6. THIS COURT ORDERS that within 15 days of this Order, the Respondents in their personal capacities provide the Applicant with a complete list of assets to which they hold title or hold title at any time after the death of Mary Joe Ann Fulcher, that may form part of the Estate pursuant to section 72 of the Succession Law Reform Act.

7. THIS COURT ORDERS that pursuant to section 59 of the Succession Law Reform Act, the Respondents are hereby restrained from dealing with any of the assets that form part of the Estate pursuant to section 72 of the Succession Law Reform Act pending the agreement of the parties or further Order of the Court. The Applicant shall, in addition to the list in his financial statement, disclose all assets that he has disposed of since the death of Mary Joe Ann Fulcher.

Consent Orders with the Exception of Costs

[6] Counsel for Edwin and Michael also agreed to the subject matter of three further Orders with the exception of the issue of costs. After hearing submissions, I ordered that the Estate pay for the reasonable costs with respect to the orders below pending a subsequent order from the court once the matter has been resolved by way of settlement or litigation.

[7] The following Orders are therefore on consent, except with respect to the issue of costs:

8. THIS COURT ORDERS that within 120 days of this Order, the Respondent Estate Trustees shall provide to the Applicant accounts for the administration of the Estate of Mary Joe Ann Fulcher for the period from the date of death to the date of this Order, in proper format for a passing of accounts. The Estate shall pay for the reasonable costs associated with the passing of accounts without prejudice to a reapportionment by Order of the court on agreement of the parties.

9. THIS COURT ORDERS that within 10 days of this Order, counsel for the Applicant is to write to D. G. Bawtinheimer Ltd. and George Edmonds, Q.C. requesting that they deliver to the Applicant any documents in their possession, power or control that are relevant to the issues for trial set out in paragraph 1 of this Order. Specifically, they are to deliver any documents with respect to the involvement of Edwin Laverne Fulcher in the management or operations of D. G. Bawtinheimer Ltd. between 1977 and 2006, inclusive. The copying and courier costs shall be paid by the Estate without prejudice to a reapportionment by Order of the court or agreement of the parties. Counsel for the Applicant is to provide copies of the correspondence sent to D. G. Bawtinheimer Ltd. and George Edmonds, Q.C. to the Respondents and provide the Respondents with copies of whatever materials are received from D. G. Bawtinheimer Ltd. and George Edmonds, Q.C. If counsel for the Applicant does not receive a response from D. G. Bawtinheimer Ltd. or George Edmonds, Q.C. or these two non-parties object to making production, the Applicant can bring a motion back before the court.

10. THIS COURT ORDERS that that the parties attend for a mediation before a mediator pursuant to Rule 75.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194 and makes the following Direction:

(a) The issues to be mediated are all the claims set out in the Application and as further described in this Order.

(b) The Applicant, Edwin Laverne Fulcher, and the Respondents, Michael Allan Fulcher, James Owen Fulcher, William Brian Fulcher, John Warren Fulcher Gregory, and David Edwin Fulcher are required to either attend the mediation session in person or duly appoint an agent with the authority to bind them, but that agent may only be either a lawyer or one of the other parties to this proceeding;

(c) The Applicant and the Respondents are designated parties with the Applicant having carriage of the mediation and the Respondent responding to it.

(d) Jeff Morris of Jeff Morris Mediation be appointed as mediator, or such other person as the parties may mutually agree in writing or that the Court may appoint.

(e) The Notice of Mediation giving the date, place, and time of the mediation shall be served on the designated parties by an alternative to personal service pursuant to rule 16.03 of the Rules of Civil Procedure.

(f) The fees for the mediator shall be paid out of the Estate without prejudice to reapportionment by order of the court or agreement of the parties; and

(g) The mediation shall take place as soon as possible, but, in any event, by no later than October 15, 2012.

other orders sought

[8] In addition to the above-noted Orders that were agreed to on consent, with the exception of costs as noted above, the parties could not agree with respect to the issues of interim support and striking certain paragraphs of the Affidavits of Michael and James. Counsel for Edwin and Michael both made submissions in this regard.

Interim Support

[9] After hearing submissions from counsel for Edwin and from Michael it became clear that if the Estate, on an interim and ongoing basis, continues to pay for the operating costs of the cottage in dispute, which is located at Foot’s Bay Lake Joseph (“the cottage”), Edwin’s “shortfall” with respect to his personal expenses will be $1,000 per month. His counsel did not dispute this fact.

[10] It is equally clear from the financial statement filed by Edwin that he has considerable assets including $1,455,000 in real estate and approximately $400,000 in liquid assets including monies in bank accounts totalling approximately $215,000 and approximately $75,000 in investment vehicles.

[11] In the circumstances of this case, it remains a live issue as to whether Edwin would qualify for support under the provisions of the Succession Law Reform Act and amendments thereto. Furthermore, he is a man with significant investments and liquid assets and when one considers that the shortfall he currently faces is $1,000 per month, I cannot conclude that he does not have the means to support himself from his income. Nor can I conclude that his being asked to now cover the $1,000 shortfall per month constitutes a depletion of his assets. Accordingly, the motion for interim support is dismissed.

[12] The motion for interim support is being dismissed on the condition that the Estate continue, as agreed by Michael, to pay for all ongoing normal operating expenses on an interim basis including utilities, heat, taxes, insurance and reasonable maintenance. If the Estate fails to do so, Edwin can renew his motion for interim support. The order is also being made on the basis that it is without prejudice to the claim of Edwin for support on a permanent basis and will not affect the ownership interest he asserts in the cottage.

Motion to Strike Affidavit Evidence

[13] Edwin seeks to strike certain paragraphs of the affidavits of Michael and Owen. In particular, Edwin seeks to strike the following paragraphs from Michael’s affidavit: 3-7; 13-14; 16-29; 32; 34-36; 38; 53-60; 70-73; 75-77; and 79-80. With respect to Owen’s affidavit, Edwin seeks to strike the following paragraphs: 15-17; 28-29 and 33.

[14] Edwin claims that these paragraphs should be struck because they are scandalous, frivolous, vexatious or irrelevant or they may prejudice or delay the fair trial of the action.

[15] Edwin specifically submits that section 2 of the Succession Law Reform Act sets out the circumstances that the court shall consider when determining the amount and duration, if any, of support. He submits that many of the alleged improper paragraphs are completely irrelevant as they have nothing to do with the criteria set out in section 2 and/or that they only add colour and/or are inflammatory. The remainder of the challenged paragraphs deal with events that occur largely after the passing of Mary Joe Ann Fulcher (“Mary Joe”).

[16] I will first address the paragraphs dealing largely with matters that occurred after Mary Joe’s passing. These paragraphs are found in Michael’s affidavit at paragraphs 72; 73; 75-77; and 79-80.

[17] I agree with Edwin that these paragraphs ought to be struck. These paragraphs primarily deal with events that took place after Mary Joe’s passing and are completely irrelevant to the issues in the application. The sole exception is paragraph 79, in that it deals with some issues that predate Mary Joe’s passing. These issues, however, are completely irrelevant to the issues in question and deal with Edwin allegedly not paying some accounts including those of lawyers who acted for him.

[18] The remaining paragraphs in both Michael and Owen’s affidavits, however, ought not to be struck. Although it is arguable that they are irrelevant when one considers the provisions of section 62 of the Succession Law Reform Act, in the affidavit Edwin swore in support of his application he squarely put before the court the contention that he and his late wife had a happy family and marriage where they successfully raised their five sons, successfully ran a business together and had a close relationship in which they spent time travelling and with friends. Edwin also asserts that his sons persuaded Mary Joe to change her Will so that Edwin was not named as a beneficiary. Michael, in paragraphs 3-7; 13-14; 16-29; 32; 34-36; 38; 53-60 and Owen in paragraphs 5-17; 28-29; and 33 seek to counter Edwin’s assertions by setting out the family dynamics that they say existed prior to Mary Joe’s passing. These assertions include not only references to the relationships between Edwin and the sons but also the relationship between Edwin and Mary Joe and particularly how Edwin and Mary Joe interacted with respect to business matters, social matters and the running of their household and cottage properties.

[19] While it is certainly arguable that the language employed in the affidavits, particularly in Michael’s affidavit is overly colourful and at times borders on being inflammatory, I agree with the views of Dambrot J. in 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd., (1997), 1997 CanLII 12196 (ON SC), 37 O.R. (3d) 70 wherein he found that such rulings are better left to the person charged with acquiring a full understanding of the matter and who is better positioned to balance the competing arguments and rule wisely. I further agree with his comment that encouraging interlocutory rulings on admissibility can only serve to fragment the process and encourage delay.

[20] Accordingly, I cannot conclude that the comments are irrelevant given the contents of Edwin’s affidavit or that they are overly inflammatory. In any event, to the extent the comments in the affidavits of Michael and Owen are overly inflammatory, I am confident that the judge hearing the application will have a better understanding of this issue and will not be swayed by improper allegations, if any.

disposition

[21] The Order for directions shall therefore go in accordance with the consent of the parties and as modified by me, where necessary with respect to costs.

[22] The motion of Edwin for interim support is dismissed.

[23] Paragraphs 72; 73; 75-77; and 79-80 of Michael’s affidavit are hereby struck. Edwin’s motion with respect to the remaining paragraphs in Michael’s affidavit and Owen’s affidavit is dismissed.

[24] Given the agreement between the parties, costs of the motion will be reserved to the judge hearing the trial of the issues or as otherwise agreed by the parties.

T. McEwen J.

Date: June 18, 2012