Court File and Parties

Court File No.: 81/16 Date: March 9, 2017

Ontario

Superior Court of Justice

Between:

Ricky Joseph Roach Ricky Joseph Roach in person Applicant

- and -

Claudette Todd Claudette Todd in person Respondent

Heard: March 2, 2017

Mitrow J.

[1] This estate matter was heard as a special appointment on March 2, 2017.

[2] The applicant issued his application on August 18, 2016 initially returnable October 28, 2016. The applicant and respondent are siblings.

[3] The relief sought in the application was rather straight forward: an order requiring the respondent to pass the accounts as executrix of the estate of William (Willie) Roach, who it appears died February 29, 2016 (“the deceased”). The affidavit material also refers to the date of death as being February 28, 2016. Proof of the date of death will need to be filed. The deceased is the father of both parties.

[4] The respondent had no real objection to an order passing the accounts, and accordingly judgment for that relief is granted.

[5] The deceased was predeceased in 2011 by his wife, Madeline Roach. There were 8 children (including the applicant and respondent); however, the court was told that one of the children passed away approximately 17 years ago; the remaining 7 siblings are all living. In accordance with the deceased’s will, his barbershop business in Woodstock was bequeathed to the respondent, and the residue of his estate was divided equally among his children and his children’s cousin, Marilyn Hamel Burson, or “the survivor or survivors of them.” It was the respondent’s evidence that the deceased did not have the barbershop at the date of his death, having given it to the respondent over 37 years ago as she was the only one who worked in it.

[6] The dispute appears to involve a number of allegations made by the applicant against the respondent. Briefly, the evidence indicates that in 2011 the deceased went to live with the respondent; the applicant alleges that the respondent “placed him under her care” in her own home. However, from approximately mid-2012, the deceased lived in a nursing-care facility.

[7] The applicant, in his application in the section dealing with grounds for the application, suggested that the deceased “did possess substantial cash assets of upwards of $100,000” in bank accounts controlled by the respondent through a power of attorney for property dated June 8, 2010. Pursuant to this power of attorney, the deceased named his wife to be his attorney and, in default, the respondent and her brother, Clifford Joseph Roach, were named “jointly and severally” to act as the deceased’s attorneys.

[8] The applicant appears to insinuate that the respondent exerted control over the deceased and tried to prevent the applicant and others from having any contact with him. The inescapable conclusion is that the applicant harbours a strong suspicion that the respondent, pursuant to the power of attorney and, subsequently, as executrix, had something to do with the fact that the deceased’s estate was very modest. One might characterize the applicant’s query as: “Where has all the money gone?”

[9] The applicant claims that requests for information were routinely rebuffed by the respondent. The applicant also points to a previous judgment of this court – pronounced by Heeney J. on November 5, 2007 – where the respondent was removed as attorney for personal care and property for Diane Marie Purchase, who had suffered a brain injury, and who is a sibling of the applicant and respondent. It is suggested by the applicant that the respondent was removed for cause that included using some of her sister’s money for personal benefit.

[10] For her part, the respondent has a significantly different story. She deposes that the applicant had a history of badgering the deceased for money, receiving it, and then squandering it. It was the respondent’s evidence that the applicant’s conduct reached the point of harassment, and was regarded as such by both the respondent and the deceased, with the result that the deceased at times was only comfortable in meeting with the applicant in a public place such as a coffee shop. The respondent would no longer allow the applicant into her home.

[11] The respondent points to a rather unusual letter dated September 20, 2011, signed by the applicant and three of the parties’ siblings, including Clifford Roach (the joint attorney). This letter demands that the respondent “rip up” a power of attorney to the respondent allegedly replacing the joint power of attorney; the letter threatens to sue the respondent “for a fortune in dollars and cents” for things that the respondent allegedly has done, or will do, under the said “invalid power of attorney”; and, finally, the letter commands the respondent that the deceased’s will should stay as it is, namely to benefit all the children “… so that then after our father passes away that we can choose to give the money to somebody in need such as [the applicant] Ricky ” [my emphasis].

[12] The respondent further deposed to being the only sibling who was prepared to take her father into her home in 2011, noting specifically, that the applicant did not volunteer to do so.

[13] As to the power of attorney, the respondent’s evidence is that she has no knowledge of any alleged subsequent power of attorney; further she deposes that the deceased was “quite capable of conducting his own financial affairs,” and as such, the respondent never exercised her duties pursuant to the power of attorney except to pay bills when requested. It is noted that the only powers of attorney produced by the applicant were the ones signed by the deceased in June 2010, one for property and one for health care, both naming his wife as the attorney, with the respondent and Clifford Roach being named as joint attorneys in default.

[14] The respondent explains, in relation to being removed as her sister’s attorney, that the problem started when she inadvertently wrote a cheque on her sister’s account for a personal expense; the respondent deposes that both her account and her sister’s account were at the same bank. The respondent characterizes this as a “simple mistake,” and states that she corrected the error as soon as notified by the bank. The respondent’s evidence is that when a legal proceeding was started by her sister’s daughter, that the respondent simply handed over all receipts to her sister’s daughter (who had been jointly named with the respondent in the power of attorney), and that the respondent consented to the order removing her as a joint attorney. The judgment refers to a consent being filed and provides for no costs.

[15] While the respondent was represented by legal counsel in the present case, she did file an affidavit sworn October 17, 2016, that included as an exhibit an estate accounting for the period February 28, 2016 to September 27, 2016.

[16] This accounting reveals a very modest estate, having total assets just over $8,600.

[17] The evidentiary record discloses additional accusatory correspondence from the applicant to the respondent. It was the respondent’s evidence that this correspondence constituted “unfounded accusations, threats and extortion options.” The respondent deposed that she told the applicant that she would provide information as to the estate once all the expenses had been paid.

[18] It is apparent from the foregoing, that this case is surrounded by a highly-charged emotional atmosphere. Much of the evidence given by the applicant was not relevant, as it related to the power of attorney. The respondent then spent time responding to the irrelevant evidence. The application contained no request for an accounting pursuant to the power of attorney.

[19] It is apparent from the applicant’s confirmation notice that he had little understanding or insight as to the procedure to hear his application; the order adjourning the application to a special appointment made no provision for trial of an issue nor viva voce evidence, and yet in his confirmation notice the applicant listed four “witnesses” who would be appearing.

[20] At the hearing, it was made clear to both parties that the rules must be followed, and issues must be dealt with in an orderly fashion, following the procedures in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”) and in a manner that resolves this case in a just, most expeditious and least expensive way: r. 1.04(1).

[21] The parties did, at the hearing, consent to an order requiring the respondent to obtain the bank statements from the deceased’s CIBC chequing account and the applicant agreed to pay any costs incurred by the respondent in obtaining those records.

[22] The procedure for the passing of estate accounts, and the filing of objections, is set out in r. 74.18. The notice provisions, which depend on whether a person is served with an application to pass accounts within or outside Ontario, is set out in subrules 74.18(4) and (5).

[23] The respondent advised the court that she has not obtained a certificate of appointment as an estate trustee. Rule 74.18(1)(b) states that on an application to pass accounts, a copy of the certificate of appointment shall be filed.

[24] The question arises as to whether the respondent, as executrix, who derives her authority solely from the will, is obligated to obtain a certificate of appointment prior to passing the estate accounts. The answer is no. This issue was canvassed in Silver Estate, Re, 1999 CarswellOnt 4217 (S.C.J.), in a thorough and well-reasoned analysis by Haley J., who concluded that an executor or executrix does not need to probate the will in order to pass accounts, notwithstanding r. 74.18(1)(b). It is not necessary to delve further into Haley J.’s analysis except to say that I adopt Haley J.’s reasons and conclusions.

[25] In the present case, it is noted that no request has been made by the applicant to require the respondent to obtain a certificate of appointment as estate trustee. Also, all beneficiaries will be notified, in any event, as the respondent will have to serve them with the application to pass accounts. At the hearing, there was some indication from both parties that the whereabouts of some of the beneficiaries may not be known. The applicant, however, agreed to serve and file an affidavit setting out the names and addresses of all beneficiaries. This does not, however, absolve the respondent from making her own inquiries.

[26] Although the respondent is not being ordered to obtain a certificate of appointment as estate trustee, for practical purposes it may be advisable to do so. She is encouraged to seek legal advice.

[27] As the court requires evidence as to the execution date of the deceased’s will, the judgment below requires the respondent to file a notarial copy of the originally signed will.

[28] In relation to the passing of accounts for the power of attorney, the applicant will need to issue and serve a separate application for that relief if he intends to pursue that issue. If the applicant elects to do so, both the respondent and her brother, Clifford Roach, should be named as respondents. Submissions were made at the hearing that the applicant wishes to have an accounting from the date that the power of attorney was signed by the deceased in 2010. However, the applicant will need to consider that the respondent and her brother, Clifford Roach, had no authority to act pursuant to the power of attorney until the death of their mother.

[29] The applicant, too, is encouraged to get legal advice to assist him in focusing on the relevant evidence and proper procedures, and to avoid drifting into a quagmire of unsubstantiated allegations, speculation and irrelevant evidence.

[30] The applicant needs to be aware that the statutory provisions authorizing an order to require an attorney to pass accounts are set out in s. 42 of the Substitute Decisions Act, 1992, and that the procedural rules for same are set out in rules 74.16, 74.17 and 74.18.

[31] Both parties are cautioned that being self-represented does not give them license to ignore the Rules.

[32] For the foregoing reasons, I grant final judgment as follows:

1. The respondent, as executrix of the estate of William (Willie) Roach, deceased, shall file the accounts for the estate, and an application to pass the accounts, in accordance with rules 74.17 and 74.18 of the Rules of Civil Procedure, in the court office within 30 days of the date of this judgment.
2. Despite subrule 74.18(1)(b), the respondent is not required to file a copy of a certificate of appointment of herself as estate trustee.
3. The respondent forthwith shall obtain notarial copies of the deceased’s original executed will, and death certificate or funeral director’s certificate, and shall serve copies of same on the applicant and shall file the original executed notarial copies with the court, together with proof of service, no later than the time that the respondent files the documents required in paragraph 1 of this judgment.
4. Within 21 days of the date of this judgment, the applicant shall serve the respondent, and file with the court, an affidavit listing the names of all living beneficiaries of the deceased’s will and the name(s) of all children of the deceased who have pre-deceased the deceased and the date of death. Further, in relation to his sister, Diane Marie Purchase, the applicant shall include the name and address of all persons who are authorized currently to act as an attorney in relation to the property of Diane Marie Purchase.
5. Within 30 days of the date of this judgment, the respondent shall obtain and forward to the applicant for the period June 8, 2010 to the date of this judgment a copy of the CIBC bank records for the deceased’s chequing account number 04752-70-52499, as identified in the estate accounting filed by the respondent with her affidavit sworn October 17, 2016. The applicant forthwith shall reimburse the respondent for any bank charges incurred by the respondent in obtaining the bank records.
6. Within 21 days after the applicant has been served with the application to pass the accounts of the estate, the applicant is at liberty to issue an application to compel the passing of accounts pursuant to the power of attorney for property signed by the deceased on June 8, 2010, and the applicant shall name, as the respondents, his siblings, Claudette Todd and Clifford Joseph Roach.
7. The application to pass accounts pursuant to the power of attorney shall be served personally on Claudette Todd and Clifford Joseph Roach and copies of same shall be served by regular mail on all remaining beneficiaries of the estate of William (Willie) Roach, and the applicant shall file proof of service.
8. The respondent, when serving the application to pass the accounts of the estate, and the applicant, when serving the documents referred to in paragraph 7 of this judgment, shall each ensure that any documents required to be served on their sibling, Diane Marie Purchase, are served also on Diane Marie Purchase’s attorney for property.
9. When issuing the application to pass accounts pursuant to the power of attorney, the clerk shall ensure that the initial return date is the same as the return date on the application to pass the estate accounts.
10. If, despite the best efforts of the applicant and the respondent, the whereabouts of any beneficiary cannot be ascertained, then the applicant and respondent each shall file an affidavit as to their efforts to locate that beneficiary and, on the return date of the application to pass the estate accounts, they shall seek the direction of the court as to service on that beneficiary.
11. If the parties are unable to agree on the costs of this application, then brief written costs submissions, not to exceed two typed pages, double-spaced, may be forwarded to the trial coordinator at Woodstock (plus copies of any offers to settle, bills of costs or lawyer’s accounts) and, if no written submissions are filed, then each party shall be responsible for his or her own costs of this application.

“Justice Victor Mitrow” Justice Victor Mitrow Released: March 9, 2017