CITATION: Collie v. Eryomin, 2013 ONSC 3159
COURT FILE NO.: CV12-1266
DATE: 20130529
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF Azanta Tamara Kulikovsky, a.k.a. Aza Kulikovsky, deceased
BETWEEN:
Jamie Collie
Moving Party
– and –
Victor Eryomin
Respondent
Ross Stewart, for the Moving Party
Colin Wright, for the Respondent
HEARD: April 23, 2013
RULING ON MOTION
PEDLAR, J
[1] This is a motion for directions arising out of a dispute between the Moving Party and the Respondent as to the appointment of a trustee of the Estate of Azanta Tamara Kulikovsky, a.k.a. Aza Kulikovsky, the deceased, who died on August 5th, 2012, at eighty-eight years of age.
[2] The Moving Party, (“Mr. Collie”), has applied to be appointed a trustee of this estate and the Respondent, (“Mr. Eryomin”), has objected. Both parties are now seeking direction from this court on how to proceed to resolve the issues which divide them.
[3] By her Will, the deceased appoints Mr. Collie as her executor and trustee and designates him as the sole beneficiary of her estate. He is the grandson of the deceased.
[4] Mr. Collie was born in Canada in 1972 and is the only grandchild of the deceased. He has a grade 10 education. His last full time job was in about 1992, working as a driver for Canada Post. Since then, he has lived mainly at the home of the deceased. He has been on the Ontario Disability Support Program since 2005. He has no other income and no assets.
[5] Mr. Eryomin was born in Russia in 1953. He was married and had children while in Russia. In 1991, he applied for refugee status in Canada during the period of the Soviet Union’s collapse. It appears he was divorced in 1991 from his first wife.
[6] Mr. Eryomin met the deceased in 1992 and, according to an Ontario Certificate of Marriage, he married her later that same year. The marriage was kept a secret from members of the community and indeed from family members, and Canada Revenue Agency.
[7] In the period from 1992 to 2012, Mr. Eryomin lived mainly at the house of the deceased and mostly in an apartment over the garage. He had no significant employment, other than a brief time working at McDonalds over that entire time period. He worked for the deceased as a gardener and personal assistant. He has never filed a Canadian income tax return.
[8] Mr. Eryomin’s refugee claim was turned down or abandoned. In 1998, he was incarcerated in Ottawa as an illegal immigrant. In 1999, he was released and came back to live at the home of the deceased. In 2000, he became a landed immigrant, and, in 2005, he became a Canadian citizen. His file with Citizenship and Immigration Canada was not available at the time of the hearing of this motion.
[9] Mr. Collie was sentenced, in 2002, to a period of two years less a day imprisonment. While in jail, he was given an additional thirty days for possession of marijuana. There have been no subsequent convictions registered against Mr. Collie that have been disclosed.
[10] In February, 2012, the deceased made her last Will with the assistance of Brian Evely, a Brockville lawyer. At the time the Will was drafted, Mr. Evely did not know that the deceased was married to Mr. Eryomin.
[11] The deceased died on August 5th, 2012. Mr. Evely, as the estate lawyer, began to make an inventory of the assets of the deceased on Mr. Collie’s behalf. When he learned that the deceased may have been married, he referred Mr. Collie to independent counsel. Mr. Evely is content to continue with the administration of this estate as estate trustee should he be ordered to do so by this court.
[12] In October, 2012, Mr. Collie applied for a Certificate of Appointment of Estate Trustee with a Will in this matter. Mr. Eryomin objected on the grounds that Mr. Collie had a criminal background and a conflict of interest. Mr. Collie then brought this motion for directions seeking to be appointed as an estate trustee, either alone or jointly with Brigitte Pilon, one of his lawyers.
[13] Mr. Eryomin filed an election under Section 5 and 6 of the Family Law Act for an equalization claim and has indicated he also wishes to press a claim for support under Part V of the Succession Law Reform Act. He is currently on welfare. Mr. Eryomin is not a beneficiary of the estate, however, in view of his apparent status as a spouse, he does have a financial interest in the estate on the basis of the Family Law Act and/or the Succession Law Reform Act. Mr. Eryomin does not dispute the validity of the Will, but he objects to Mr. Collie acting as Trustee.
[14] The concerns about Mr. Collie’s criminal past include that Mr. Collie stated under oath that he has had no involvement in the criminal justice system since 2002, but also that, under cross-examination, he did acknowledge that in 2006 he gave evidence for an accused charged with a drug offence and stated that the contraband was really in his (Mr. Collie’s) possession.
[15] Mr. Eryomin also raises the concern that although Mr. Collie swears that since 2002 he believes he has been successful in developing a “pro social” lifestyle that in or about 2006 he had a son by a third woman (that is, not the mother of either of his two daughters). Mr. Collie does not support his son and is not permitted to see him.
[16] Mr. Eryomin also raises the issue that Mr. Collie took an immediate dislike to him when he entered the life of the deceased back in 1992. Although Mr. Collie disagrees, he does acknowledge that from the outset, he found Mr. Eryomin deceitful and manipulative. Mr. Collie is also alleging that Mr. Eryomin took many valuable assets with him when he left the property of the deceased. Mr. Eryomin denies that allegation.
[17] There are significant issues of disagreement between the parties about what assets may exist in the estate of the deceased. Mr. Collie says he has made a thorough inventory of the assets. He does, however, fail to initially, at least, comment on some of the important chattels of which Mr. Eryomin is aware. There was a Faberge cross sent to Christie’s Auction, which apparently was sold for a profit of $232,691. Mr. Eryomin also produces evidence in his material relating to two separate Royal Bank accounts, totalling approximately $125,000, which were not disclosed in Mr. Collie’s affidavit as assets of the estate. Mr. Eryomin also believes that Christie’s Auction House were presented with other items belonging to the estate and may have a list of at least a partial inventory of assets remaining at the deceased’s house. Mr. Eryomin also claims that there were assets owned by the deceased that are located outside of Canada and those have also not been disclosed so far. The material filed by the court as of the date of the arguing of the motion includes an estimate by Mr. Collie that the value of the estate assets is approximately $750,000.
[18] One of the pressing issues is that there is an undeveloped parcel of land, which is the subject of litigation. Mr. Collie does acknowledge that there are various paintings and artwork that have yet to be appraised.
[19] Both parties agree that an order for a trial of both the equalization claim and support claim should take place. The only issue to be resolved at this stage is who should be the estate trustee. Mr. Collie proposes that he be appointed, either alone or jointly with Ms. Pilon, one of his lawyers. Mr. Eryomin nominates Mr. Evely.
[20] The court’s power to appoint or remove estate trustees is set out in Sections 5 and 37 of the Trustee Act R.S.O. 1990, Chapter T-23. Based on the case law provided by counsel, I am satisfied that the court does have the power to pass over a nominee of the deceased before a Certificate of Appointment has been issued.
[21] Mr. Eryomin has demonstrated, on a balance of probabilities, that he has a financial interest in the estate because of his spousal status and has met the condition precedent to advance either the equalization claim or the support claim.
[22] Obviously, courts generally choose to give deference to the wishes of the deceased, not only as to issues of interpretation of the Will and deciding disputes between beneficiaries, but also with regards to the appointment of a named trustee. The claim of Mr. Eryomin is rooted in statutory authorization which, by its very nature, has the clear purpose of potentially overriding the wishes of the testator. That creates a tension between the purposes of that legislation and the principle of deferring to the wishes of the deceased on all matters, including the appointment of the estate trustee.
[23] The Respondent, Mr. Eryomin, is raising the issue of the honesty and diligence required of a trustee and is concerned about Mr. Collie’s history of criminal conduct, his lack of meaningful employment for over twenty years, his alleged instant dislike of Mr. Eryomin, and raises the question of whether he has been straightforward in his sworn documents on this motion.
[24] It must be noted that, from the information presented to the court on this motion, there have been no additional criminal convictions registered against Mr. Collie since 2001. His record consisted of some Youth Court issues when he was seventeen years old and some weapons offences in 2001, and the drug conviction while he was in custody for those. There are also allegations in the affidavit material that Mr. Eryomin moved to the garage largely to get away from Mr. Collie’s abuse of violent and destructive behaviour while he resided with the deceased and Mr. Collie in the main house.
[25] The material also discloses that the deceased was supportive of Mr. Collie during his criminal convictions and incarceration. At the very least, she certainly was aware of those difficulties and the type of person he was, when she chose to make him the sole beneficiary as well as trustee of her estate at the time of the signing of her Will in 2012.
[26] I am not convinced that the evidence before the court, based on honesty and diligence, would disqualify Mr. Collie from acting as trustee. He would do so under the watchful eye of the court and, undoubtedly, also the Respondent, who is making a claim against this estate.
[27] The no-conflict requirement for a trustee is of a much greater concern to the court on this application. Mr. Collie is the designated sole beneficiary of this estate. Mr. Eryomin is making a claim against the estate which would, if successful, reduce the residue available for Mr. Collie as the beneficiary. I am concerned that Mr. Collie would be put in a conflict of interest with Mr. Eryomin given all the context of this dispute. At the very least, there is a potential for conflict and it would, in my opinion, be very difficult for Mr. Collie, as trustee, to act with impartiality. That is not to say that he, in fact, would or would not do so, but it would be extremely difficult under the circumstances.
[28] There are a variety of very troubling allegations surrounding this particular estate. The concerns over Mr. Collie’s character and conduct may not be sufficient, in and of themselves, to eliminate him as a possible trustee, but they do create an atmosphere of mistrust and clearly cause further concerns about the type of relationship that these parties could see develop, with a high potential for that to become somewhat toxic. I find that the potential for that relationship to impair the welfare of either the estate, or the claims being brought by the Respondent, is significant.
[29] The circumstances surrounding the marriage of the Respondent to the deceased are highly unusual. They kept that marriage a secret from the community and family. The deceased continued to file Income Tax Returns describing herself as a widow. Mr. Eryomin apparently moved out to the room over the garage within a matter of a couple of years after originally moving into the home of the deceased. Mr. Eryomin apparently had virtually no employment outside of that home, except for a few months in over twenty years. Even when Mr. Eryomin was incarcerated as an illegal immigrant, it appears that the marriage was not immediately disclosed to the authorities, from the materials filed at this stage of the proceedings.
[30] There is also the issue of the assets that will form the value of this estate. While bank accounts and real property have significant documentation to be of assistance, the much more difficult issue may be allegations about the value of, and even existence of, chattels. The one item that was sold was obviously extremely valuable, which leads to questions about the potential for other valuable chattels and personal property to form part of this estate, let alone the issue of any assets outside of Canada.
[31] This litigation has the potential to be extremely contentious, unless the parties can come to some mutual understanding on these difficult issues.
[32] When you add in the already strained relationship between these parties, I find that it would not be appropriate for Mr. Collie to attempt to navigate the treacherous waters of being both a trustee and sole beneficiary and a defendant in a highly contested and complex litigation, which will have a direct impact on the amount of money available to him as the beneficiary of this estate. There is also the burden of continuing the litigation over the undeveloped piece of property. I also do not feel it would be prudent to have a solicitor acting for either party in this litigation as well as appointed as a co-trustee. Ms. Pilon and Mr. Stewart, although they may have separate practices, are spouses working out of the same municipal address for their practices, and it may put either one of them in a very uncomfortable position.
[33] I find, therefore, that the suggestion of the Respondent to appoint Mr. Brian Evely, as the trustee of this estate, is the most practical. He quite properly referred Mr. Collie out for independent counsel. In doing so, he has not in any way excluded himself as a potential trustee. He is familiar with the estate of the deceased and prepared the Will in accordance with her instructions. He is an independent person, who can take the responsibilities of trustee on, without the other complications that would result if Mr. Collie and his counsel were appointed as trustee.
[34] The parties are both seeking to have this matter proceed as a trial to resolve the claims that will be put forward by Mr. Eryomin. Mr. Brian Evely is appointed estate trustee without a bond being posted. There will be a trial of the issues regarding the claims of Mr. Eryomin against this estate. Mr. Eryomin should be the plaintiff in the trial of the issues and shall deliver a statement of claim within thirty days of the date of this ruling. He has requested that that statement of claim be in Form 14D under the Simplified Procedure provided by Rule 76. The moving party, Mr. Collie, had suggested it be a trial in the regular forum. Claims under Rule 76 are limited to a claim of no more than $100,000. If the Respondent, Mr. Eryomin, is prepared to limit his claim within the jurisdiction of a Rule 76 motion, or abandon any over-claim, then he is at leave to proceed under Rule 76. If he chooses to proceed as a regular action, he is also at liberty to do so and the matter can proceed in that way.
[35] Mr. Eryomin has requested that, on the assumption it is a Rule 76 claim, that Mr. Collie, who will be the defendant in that trial of the issues, shall deliver a statement of defence within thirty days of the delivery of the statement of claim and then Mr. Eryomin will deliver a reply, if any, within fifteen days of the delivery of the statement of defence. I see no problem with those orders, whether the matter proceeds under Rule 76 or as an ordinary action.
[36] Again, the question of whether the trial proceeds in accordance with Rule 76 or as an ordinary action will be left up to the plaintiff in that proceeding, Mr. Eryomin, the Respondent on this motion.
[37] Mr. Evely shall not, unless otherwise ordered, take any position on the trial of the issues.
[38] I agree with the Respondent’s position that under the circumstances of this very unusual litigation and motion that the costs of this motion be reserved to the judge hearing the trial of the issues.
[39] I thank counsel for their assistance in dealing with this very interesting matter.
Mr. Justice Kenneth E. Pedlar
Released: May 29, 2013
CITATION: Collie v. Eryomin, 2013 ONSC 3159
COURT FILE NO.: CV12-1266
DATE: 20130529
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF AZANTA TAMARA KULIKOVSKY, A.K.A. AZA KULIKOVSKY
B E T W E E N:
JAMIE COLLIE
Moving Party
– and –
VICTOR ERYOMIN
Respondent
RULING ON MOTION
Pedlar, J.
Released: May 29th, 2013