CITATION: Angeloni v. Angeloni, 2017 ONSC 7344
COURT FILE NO.: CV-15-5735-00
DATE: 2017 12 12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CONCETTA ANGELONI by her litigation guardians, CALOGERO CINO and MARIA DI STAFANO
Applicant
- and -
ESTATE OF FRANCESCO ANGELONI, MARIA LUGONIA, LILIANA PALERMO, DORA POLLA, MIMMA SISTI, FERNANDO ANGELONI, FRANCA PONARI, TERESA PONARI
Respondents
HEARD: August 30, 2017,
at Brampton, Ontario
Price J.
Reasons for Order
OVERVIEW
[1] Francesco Angeloni, (“Mr. Angeloni”), died on July 6, 2015, two and a half years after moving his wife of 42 years, Concetta Angeloni, (Ms. Angeloni”), from the home they had shared for 36 years into a long-term care facility. A month after Ms. Angeloni was moved, Mr. Angeloni, apparently acting under a Power of Attorney that Ms. Angeloni had signed in 2011, severed the joint tenancy of the home, converting it to a tenancy-in-common, and two years later sold the home.
[2] Mr. Angeloni apparently signed a Power of Attorney himself in 2015, naming his niece, Maria Lugonia, (“Ms. Lugonia”), as his Attorney for Property, and a Will that made no provision for his wife. He himself was moved into a long-term care facility in 2014 and died a year later, 19 days after signing his new Will.
[3] Ms. Angeloni is now 79 years of age. She requires a high level of care as she suffers from numerous medical conditions, including Parkinson’s disease, dementia, diabetes, and a seizure disorder. On December 18, 2015, she began the present proceeding in which she seeks an order for the following:
a) Declaring that she is a dependent of her deceased husband, and that he failed to provide adequately for her in his Will.
b) Requiring that monies distributed by Mr. Angeloni’s Estate in breach of s. 6(14) the Family Law Act, RSO 1990, c F.3, which prohibit such distributions within six months of a spouse’s death, be returned to the Estate.
c) Declaring that any assets owned by Mr. Angeloni at his death, or that passed to his beneficiaries under his Will, form part of the Estate, and are available to satisfy Ms. Angeloni’s claim for support and the costs of the present proceeding.
[4] Ms. Angeloni now moves for directions, and an Order:
a) Requiring Mr. Angeloni’s Estate to provide an accounting of Mr. Angeloni’s management of Ms. Angeloni’s property, under his continuing Power of Attorney for Property, until his death;
b) Requiring Ms. Lugonia to provide an accounting of her management of Mr. Angeloni’s assets under her Power of Attorney for Property and, following Mr. Angeloni’s death, under his Will;
c) Prohibiting the dissipation of the Estate’s assets;
d) Requiring production of documents, examination of the respondents with respect to any distribution of the deceased’s assets, and payment into Court of amounts distributed from the Estate.
BACKGROUND FACTS
[5] Mr. and Ms. Angeloni were married in 1973. They were never legally separated before Mr. Angeloni’s death on July 6, 2015.
[6] Ms. Angeloni is now 79 years of age (born April 21, 1938). On November 29, 2011, at the age of 73, she signed a Power of Attorney naming her husband, Mr. Angeloni, as her Attorney for Property and, if he were unable to act, her niece, Maria Di Stefano, and her nephew, Calogero (Charlie) Cino, as Attorneys.
[7] In November 2012, a year after Ms. Angeloni signed a Power of Attorney in favour of her husband, Mr. Angeloni moved her from their home at 3308 Joan Drive, Mississauga, which the two of them had owned as joint tenants since June 11, 1976, and where they had lived together for 36 years, into a long-term care facility, on account of her dementia.
[8] On December 17, 2012, a month after Ms. Angeloni was moved into the facility, Mr. Angeloni, apparently acting under his Power of Attorney for Property from Ms. Angeloni, severed their joint tenancy, making them tenants-in-common of their home. Two years later, he sold the home.
[9] On March 31, 2014, the parties’ home was sold for $700,000.00. In April 2014, the net proceeds of $649,996.37 were deposited into Mr. and Ms. Angeloni’s joint bank account. $500,000.00 was then transferred from the joint account to another account, the particulars of which are unknown to Ms. Angeloni. An additional $100,000.00 was transferred from the joint account to Mr. and Ms. Angeloni’s jointly owned mutual fund account at TD Canada Trust. Ms. Angeloni does not know what became of her share of that fund.
[10] On June 17, 2015, Mr. Angeloni apparently signed a new Will with a new lawyer, Philip Di Iorio. The Will named his niece, Ms. Lugonia, as his Estate Trustee, and named the Respondents as beneficiaries. Ms. Angeloni was not a beneficiary under the new Will.
[11] Mr. Angeloni moved into a retirement or long-term care facility himself in 2014. He died the following year, on July 6, 2015, 19 days after signing his Will. Four days later, on July 10, 2015, TD Canada Trust prepared a statement of Mr. Angeloni’s portfolio of holdings (Personal Assessment), ostensibly for Mr. Angeloni and his Financial Advisor, Vince Antilope. It showed holdings of $744,634.07 in brokerage accounts, mutual funds, Plan 60-64 accounts, chequing accounts, and Guaranteed Investment Accounts.
[12] According to the Respondents’ former solicitor, Mr. Reininger, Ms. Lugonia distributed assets from Mr. Angeloni’s Estate to various beneficiaries, which Ms. Angeloni believes included her share of the proceeds from the sale of the matrimonial home. After Ms. Angeloni began the present proceeding, the Respondents’ current solicitor, Mr. Callahan, advised Ms. Angeloni’s lawyer that Mr. Angeloni had no assets at time of his death.
[13] On September 8, 2016, Ms. Angeloni’s expert, Dana Weldon, prepared a Future Care Cost report. It states that Ms. Angeloni needs approximately $62,500.00 a year for her continuing care. Ms. Angeloni’s annual income is $39,426.00, which is insufficient to meet her needs as outlined in Mr. Weldon’s report.
[14] On February 13, 2017, Ms. Angeloni amended her application to include a claim for breach of fiduciary duty, and to request an order requiring Mr. Angeloni’s Estate Trustee to produce documentation with respect to the assets and liabilities of the Estate.
[15] On June 9, 2017, a motion by Ms. Angeloni for a timetable was converted to a Case Management Conference. The parties agreed that Ms. Angeloni would forthwith produce the documents listed in the affidavit of Debbie James, at paras. 11(a)-(d), including the clinical notes of Ms. Angeloni’s physicians, her decoded OHIP Summary of Services, her sworn Financial Statement, and copies of her income tax returns. Ms. Angeloni’s lawyer also agreed to consider producing a report from her treating physician setting out her current health status and prognosis, listed in paragraph 11(e) of Debbie James’ Affidavit, and to advise Tzimas J. whether it would be produced. Ms. Angeloni produced the records required by Tzimas J.’s Order.
[16] On August 3, 2017, a teleconference with Tzimas J. was held. Tzimas J. made the following remarks:
a) Counsel for both parties shall make bona fide and best efforts to be ready for the motion scheduled for August 30, 2017.
b) Counsel for the Respondents shall make every reasonable effort to serve and file the responding materials by Friday, August, 11, 2017. Counsel will work out reasonable accommodation if there are difficulties meeting this deadline.
c) Assuming that the Responding materials are served by August 11, any Reply shall be served and filed by August 18. Counsel will work out reasonable accommodation, if there are difficulties meeting this deadline.
d) Any cross-examinations and the exchange of factums shall be completed by August 25, 2017.
e) Time is of the essence for both parties. Both sides have known about the August 30 motion date and they are should be ready to proceed.
[17] The motion was heard on August 30, 2017. Following argument, judgment was reserved. These reasons address the issues raised.
ISSUES
[18] The motion requires the Court to determine the following issues:
(a) Should Ms. Lugonia, as Mr. Angeloni’s Estate Trustee, be required to provide an informal accounting of Mr. Angeloni’s management of Ms. Angeloni’s property under the Power of Attorney for Property that he received from Ms. Angeloni?
(b) Should Ms. Lugonia, as Mr. Angeloni’s Attorney for Property, be required to provide an informal accounting of her management of his property during the period from November 29, 2011 to July 6, 2015?
(c) Should Ms. Lugonia be required to provide an informal accounting of her actions as Estate Trustee for Mr. Angeloni’s estate?
(d) Should Ms. Lugonia be examined with respect to monies received from Mr. Angeloni from Nov 29, 2011 to July 6, 2015, as his Attorney for Property, and monies received after his death as his Estate Trustee?
(e) Should Ms. Lugonia and the beneficiaries of Mr. Angeloni’s Estate be prohibited from dissipating, transferring, wasting, selling, encumbering, disposing, or otherwise dealing with any funds received from Mr. Angeloni, or on his behalf, from November 29, 2011 to the date of his death on July 6, 2015, and any assets of the Estate following his death?
(f) Should the Respondents pay into court, to the credit of this proceeding, any monies gifted by, or received from Mr. Angeloni from Nov 29, 2011 to July 6, 2015, and any distributions received from his Estate following his death?
PARTIES’ POSITIONS
Ms. Angeloni’s position
[19] Ms. Angeloni’s lawyer, Mr. Parameswaran, focused on Ms. Angeloni’s trust claim against the Mr. Angeloni’s Estate. He noted that the Respondents still have not disclosed what happened to the net proceeds of the sale of the matrimonial home, or the assets that TD Canada Trust reported were in Mr. Angeloni’s portfolio four days after his death.
[20] With regard to Ms. Angeloni’s claim for support, Mr. Parameswaran asserted that Ms. Angeloni’s current expenses of $28,863 are those associated with her residence at a long-term care facility in Mississauga. The future care report prepared by Mr. Weldon, which Ms. Angeloni served in October 2016, supported by medical records served in early December 2016, recommends that she be at a facility in Hamilton. Ms. Angeloni’s family, including her Litigation Guardian, nieces, and nephews, reside in Hamilton, and her expert is of the opinion that she does not receive appropriate care at the facility in Mississauga. Her move to Hamilton will add $1,500.00 per month to her expenses. Her residential expenses in Hamilton will be $30,578.00 and her medical and rehabilitation expenses will be a similar amount, for a total of approximately $62,500.00. Her lawyer notes that the Respondents have not produced any expert report challenging the expenses set out in Mr. Weldon’s report or any evidence that would support a finding that they are excessive.
The Respondents’ position
[21] The Respondents did not file a factum setting out their position. Their lawyer, Mr. Callahan, states that when he was retained, Ms. Angeloni’s Application was for support under the Succession Law Reform Act, R.S.O. 1990, c. S.26. It was not until May 2017 that she advanced trust claims against the Estate.
[22] Mr. Callahan notes that Ms. Angeloni amended her Application in February 2017 without giving notice to the Respondents, despite the fact that they had delivered a Notice of Intent to Defend. When granted leave to amend, Ms. Angeloni did not serve her Amended Application until she served her Supplementary Application Record in May 2017. The parties then entered into discussions with a view to resolving the issues, which ultimately proved unsuccessful.
[23] At the hearing of the motion, Mr. Callahan focused on the claim for support, arguing that further evidence was required from Ms. Angeloni to support her claim for support. The Respondents take the position that in order to respond, they require evidence as to what Ms. Angeloni’s financial needs are, including evidence as to her prognosis and life expectancy. They submit the evidence they have received so far discloses that Ms. Angeloni spent $28,863.00 last year, which is $10,000.00 less than her annual income.
[24] The Respondents dispute the additional future care costs of medical rehabilitation and personal care services, which they argue are regulated and must be supplied by the facility. Ms. Angeloni’s lawyer submits there are additional expenses for food, medication, and a drug plan. The Respondents request a further affidavit with a breakdown of those expenses.
[25] With regard to Ms. Angeloni’s trust claim, the Respondents assert that while Ms. Angeloni signed a Power of Attorney in November 2011, it did not become effective until she became incapable of managing her property, and that Ms. Angeloni has not produced any clinical declaration as to such incapacity. The Respondents therefore take the position that the Power of Attorney did not take effect until at least November 2012, when Ms. Angeloni was moved into a long-term care facility.
[26] Mr. Callahan states that there is no evidence that Mr. Angeloni was ever declared unfit, or as to whether Ms. Lugonia ever exercised her authority under the Power of Attorney that Mr. Angeloni signed in 2014. He further submits hat there has been no distribution of Mr. Angeloni’s estate, and that the Respondents do not oppose an Order for an informal accounting of the assets and liabilities that Mr. Angeloni held on the date of his death.
[27] Mr. Callahan offered no explanation as to the whereabouts of the assets that TD Canada Trust reported were in Mr. Angeloni’s portfolio four days after his death. He stated that that amount could not be paid into Court because the funds do not exist. He stated that the Respondents do not oppose an Order for the production of records to all parties regarding the sale of the matrimonial home, the accounts of Mr. and Ms. Angeloni, and Mr. Angeloni’s Wills and Powers of Attorney. He proposed that the Court convert Ms. Angeloni’s application into an action.
ANALYSIS AND EVIDENCE
a) Should Ms. Lugonia, as Estate Trustee for Mr. Angeloni’s Estate, be required to provide an informal accounting of Mr. Angeloni’s management of Ms. Angeloni’s property under his Power of Attorney from her?
Attorney’s accounts
42(2) An attorney, the grantor or any of the persons listed in subsection (4) may apply to pass the attorney’s accounts.
Others entitled to apply
42(4) The following persons may also apply:
The grantor’s or incapable person’s guardian of the person or attorney for personal care.
A dependant of the grantor or incapable person.
[Emphasis added]
b) Should Ms. Lugonia be required to account for her management of Mr. Angeloni’s property under her Power of Attorney from him?
Legislative framework
[28] The passing of accounts by Attorneys appointed by Power of Attorney is governed by the Substitute Decisions Act 1992, S.O. 1992, c. 30 (“SDA”). The grantor of a continuing Power of Attorney for Property may apply to require the Attorney to pass his/her accounts under s. 42(2) and (4)(1) of the SDA. Section 42 requires a passing of accounts to be sought by Application. An Estate Trustee stands in the place of the deceased. As a result, Mr. Angeloni’s obligation to pass accounts under the Power of Attorney he received from Ms. Angeloni has devolved to Ms. Lugonia as Mr. Angeloni’s Estate Trustee.
c) Should Ms. Lugonia be required to provide an informal accounting of her actions as Estate Trustee for Mr. Angeloni’s Estate?
Legislative framework
[29] The passing of accounts by Estate Trustees is governed by the Estates Act, R.S.O. 1990, c. E. 21. It provides:
At whose instance executors or administrators compellable to account
50(1) An executor or an administrator shall not be required by any court to render an account of the property of the deceased, otherwise than by an inventory thereof, unless at the instance or on behalf of some person interested in such property or of a creditor of the deceased, nor is an executor or administrator otherwise compellable to account before any judge. [Emphasis added]
[30] Ms. Angeloni is Mr. Angeloni’s dependent, within the meaning of s. 57(1) of the Succession Law Reform Act, and section 42(4)(i) of the SDA. As such, she has an interest in his property and is therefore entitled to apply to require Mr. Angeloni, or his Attorney for Property or Estate Trustee, to pass their accounts.
[31] Applications by an interested person for a passing of accounts are governed by Rule 74.15(1)(h) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”):
74.15(1)(h) In addition to a motion under section 9 of the Estates Act, any person who appears to have a financial interest in an estate may move… for an order (Form 74.42) requiring an estate trustee to pass accounts. [Emphasis added]
Ms. Angeloni has a financial interest in Mr. Angeloni’s Estate. She is therefore entitled to bring such an application.
d) Should Ms. Lugonia be examined with respect to monies she received from Mr. Angeloni from Nov 29, 2011 to July 6, 2015, and her actions as both/either Attorney for Property and/or Estate trustee for Mr. Angeloni?
Legislative framework
[32] A motion for directions in an estate proceeding is governed by Rule 75.06(3). It provides:
Order
75.06 (3) On an application or motion for directions, the court may direct,
(a) the issues to be decided;
(b) who are parties, who is plaintiff and defendant and who is submitting rights to the court;
(c) who shall be served with the order for directions, and the method and times of service;
(d) procedures for bringing the matter before the court in a summary fashion, where appropriate;
(e) that the plaintiff file and serve a statement of claim (Form 75.7);
(f) that an estate trustee be appointed during litigation, and file such security as the court directs;
(g) such other procedures as are just.
[33] The Respondents have not provided evidence as to the distribution of Mr. Angeloni’s estate. Because their lawyers have provided contradictory information with regard to the assets of the Estate at the time of Mr. Angeloni’s death, an examination is necessary to obtain information about how the Estate funds were managed and distributed and how much was in the Estate at various points in time.
e) Should the Respondents be restrained from dissipating, transferring, wasting, selling, disposing, or otherwise dealing with any distributions received from Mr. Angeloni’s Estate, or any monies gifted or received from him from Nov 29, 2011 to July 6, 2015?
f) Should Mr. Angeloni’s Estate and Ms. Lugonia, as Estate Trustee, be prevented from dissipating, transferring, wasting, selling, disposing, or otherwise dealing with any of the assets of the estate?
Legislative framework
[34] The claims of spouses for support are governed by the Family Law Act, R.S.O. 1990, c. F.3. It provides:
Part III – Support Obligations
- Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.[^1]
Order for support
33(1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.
(2) An application for an order for the support of a dependant may be made by the dependant or the dependant's parent. . .
[Emphasis added]
[35] Upon the death of someone who has a legal obligation to support a spouse or other dependant, the Family Law Act protects the dependant’s claim by a statutory six month injunction on distribution of the estate. The injunction arises automatically, even in the absence of, or before, the dependant makes an application for relief under the Succession Law Reform Act. Section 6 of the Family Law Act states:
Distribution within six months of death restricted
6(14) No distribution shall be made in the administration of a deceased spouse’s estate within six months of the spouse’s death, unless,
(a) the surviving spouse gives written consent to the distribution; or
(b) the court authorizes the distribution.
[36] Once a dependant applies for relief, the Succession Law Reform Act, RSO 1990, c S.26 (“SLRA”) further enjoins the Estate Trustee from proceeding with the distribution of the estate until the court has disposed of the application. Additionally, the Act empowers the court to make an order suspending, in whole or in part, the administration of the estate for such time and to such extent as it decides. The SLRA states:
59(1) On an application by or on behalf of the dependants or any of them, the court may make an order suspending in whole or in part the administration of the deceased’s estate, for such time and to such extent as the court may decide.
67(1) Where an application is made and notice thereof is served on the personal representative of the deceased, he or she shall not, after service of the notice upon him or her, unless all persons entitled to apply consent or the court otherwise orders, proceed with the distribution of the estate until the court has disposed of the application.
[37] The SLRA makes the following provision for claims by dependants for support:
Definitions, Part V
57(1) In this Part…
“dependant” means,
(a) the spouse of the deceased,
Interim order
64 Where an application is made under this Part and the applicant is in need of and entitled to support but any or all of the matters referred to in section 62 or 63 have not been ascertained by the court, the court may make such interim order under section 63 as it considers appropriate.
Value of certain transactions deemed part of estate
72(1) Subject to section 71, for the purpose of this Part, the capital value of the following transactions effected by a deceased before his or her death, whether benefitting his or her dependant or any other person, shall be included as testamentary dispositions as of the date of the death of the deceased and shall be deemed to be part of his or her net estate for purposes of ascertaining the value of his or her estate, and being available to be charged for payment by an order under clause 63(2)(f),
(a) gifts mortis causa;
(b) money deposited, together with interest thereon, in an account in the name of the deceased in trust for another or others with any bank, savings office, credit union or trust corporation, and remaining on deposit at the date of the death of the deceased;
(c) money deposited, together with interest thereon, in an account in the name of the deceased and another person or persons and payable on death under the terms of the deposit or by operation of law to the survivor or survivors of those persons with any bank, savings office, credit union or trust corporation, and remaining on deposit at the date of the death of the deceased;
(d) any disposition of property made by a deceased whereby property Is held at the date of his or her death by the deceased and another as joint tenants…
[Emphasis added]
[38] Applications for Orders to preserve the assets of an estate are governed by Rule 45.01(1). It provides:
INTERIM ORDER FOR PRESERVATION OR SALE
45.01 (1) The court may make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or of a person not a party.
Applying the legal principles to the facts of this case
[39] Where a person has made a gratuitous transfer of property to a spouse or other adult child or relative, there is a presumption of a resulting trust in favour of the transferor or, following the transferor’s death, in favour of the transferor’s estate. Ms. Angeloni asserts that Mr. Angeloni’s deposits of $500,000.00 and $100,000.00 to his own account on April 1 and 2, 2014, and later, to his niece, Ms. Lugonia, are impressed with resulting trusts.
Mr. Angeloni’s transfer of funds from the joint account to his own account
[40] Mr. Angeloni’s transfer of the funds from the parties’ joint account to his own account is governed by section 14 of the Family Law Act. It provides:
- The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,
(a) the fact the property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants.
[Emphasis added]
[41] The effect of section 14 is to retain the presumption of resulting trust when property is transferred by one spouse to the other, subject to a rebuttable presumption in favour of joint tenancy where the spouses formally hold the property as joint tenants. In Rathwell v. Rathwell, (1978), Dickson J. set forth the essential features of resulting trust as follows:
If at the dissolution of the marriage one spouse alone holds title to property, it is relevant for the Court to ask whether or not there was a common intention or agreement that the other spouse was to take a beneficial interest in the property, and. if so, what interest? Such agreements, as I have indicated, can rarely be evidenced concretely. It is relevant and necessary for the Courts to look to the facts and circumstances surrounding the acquisition or improvement of the property. If the wife without title has contributed directly or indirectly in money or money’s worth to acquisition or improvement, the doctrine of resulting trust is engaged. An interest in the property is presumed to result to the one advancing the purchase money or part of the purchase money.[^2]
[Emphasis added]
[42] In the present case, there is no evidence that Ms. Angeloni intended to confer a benefit on Mr. Angeloni by transferring her share of the net proceeds of sale of their matrimonial home to him alone.
Mr. Angeloni’s transfer of the funds to Ms. Lugonia
[43] The Court of Appeal, in Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, (2014), held that that a resulting trust will be presumed where there is a gratuitous transfer from a parent to an adult child.[^3] It cited as authority the Supreme Court of Canada’s decision in Pecore v. Pecore, (2007).[^4] In the present case, Mr. Angeloni appears to have transferred funds to his niece, Ms. Lugonia. A disposition from an uncle to a niece is governed by the same presumption of a resulting trust as applies to transfers from a parent to an adult child.[^5]
[44] Mr. Angeloni’s Continuing Attorney for Property or Estate Trustee was not entitled to remove funds from the parties’ joint account. In Scalia v. Scalia, (2015), the Court of Appeal held that money taken from the joint account of the deceased and his spouse properly belonged to the deceased’s widow. The Court stated:
[39] I agree that the application judge, in his brief endorsement, did not explain the basis of his decision that the frozen funds be released to Pina. However, I find no fault with that decision. The money in issue came from two joint bank accounts. Money on deposit in joint accounts is presumed to be property held as joint tenants: Family Law Act, R.S.O. 1990, c. F.3, s. 14. There appears to be nothing in the record that rebuts the inference that throughout their 20-year marriage, Joe and Pina intended these joint accounts to be used for the benefit of both and to have a right of survivorship. I see no unjust enrichment in Pina’s having funds to which she was, during Joe’s lifetime, fully entitled to access.[^6]
Preservation of funds
[45] Section 64 of the Succession Law Reform Act allows the Court to make an interim order for the support of a dependent spouse. The purpose of such an Order is to protect the right that the spouse had to claim support pursuant to the Family Law Act from being impeded upon by the payor spouse’s disposition under his or her Will.
[46] The Family Law Act, in s. 34(k) permits the Court to make an interim or final order securing payment of support by a charge on property. Section 63 of the Succession law Reform Act, which permits the court to make interim payments of support, similarly permits the Court to secure such payments by a charge against property.
Conditions and restrictions
63 (1) In any order making provision for support of a dependant, the court may impose such conditions and restrictions as the court considers appropriate. R.S.O. 1990, c. S.26, s. 63 (1).
Contents of order
(2) Provision may be made out of income or capital or both and an order may provide for one or more of the following, as the court considers appropriate,
(a) an amount payable annually or otherwise whether for an indefinite or limited period or until the happening of a specified event;
(b) a lump sum to be paid or held in trust;
(c) any specified property to be transferred or assigned to or in trust for the benefit of the dependant, whether absolutely, for life or for a term of years;
(d) the possession or use of any specified property by the dependant for life or such period as the court considers appropriate;
(e) a lump sum payment to supplement or replace periodic payments;
(f) the securing of payment under an order by a charge on property or otherwise;
(g) the payment of a lump sum or of increased periodic payments to enable a dependant spouse or child to meet debts reasonably incurred for his or her own support prior to an application under this Part;
(h) that all or any of the money payable under the order be paid to an appropriate person or agency for the benefit of the dependant;
(i) the payment to an agency referred to in subsection 58 (3) of any amount in reimbursement for an allowance or benefit granted in respect of the support of the dependant, including an amount in reimbursement for an allowance paid or benefit provided before the date of the order. R.S.O. 1990, c. S.26, s. 63 (2); 1999, c. 6, s. 61 (6); 2005, c. 5, s. 66 (12).
[47] If Ms. Lugonia improperly distributed the assets of Mr. Angeloni’s estate within six months of his death, contrary to s. 6(14) of the Family Law Act, especially if the distribution included Ms. Angeloni’s share of the net proceeds of sale of the matrimonial home, these funds should be preserved pending a determination of the issues after the relevant documents have been produced.
[48] Justice Grace made such an Order in Slaven v. Williams et al., in 2011. Justice Greer made a note of this in her later decision in the same case:
[15] The Estate Trustees distributed part of the estate to themselves, as the three residuary beneficiaries, before the legislative mandatory 6-month period under the provisions of Part V of the Succession Law Reform Act R.S.O. 1990, c. S.26 (“SLRA”) had passed. Upon learning that the house had been sold, the Widow’s counsel immediately moved to obtain a Preservation Order for the proceeds of the sale of the home. Mr. Justice Grace ordered, on August 16, 2010, that the net proceeds derived from the sale be retained by the solicitor acting on the sale. He also ordered that no further distribution be made of the estate assets except by Order of this Court or agreement in writing by the parties.[^7] [Emphasis added]
[49] This Court, in Carfagnini v. White Estate, (2014), held that the test for preservation of an estates assets under Rule. 45.01 of the Rules is the same as the test for granting interim injunctive relief under Rule 45.02. Therefore, the three-part injunctive relief test set out in RJR MacDonald Inc. v. Canada (Attorney General), (1994), is applicable.[^8]
[50] With regard to the three parts of the test:
(a) Ms. Angeloni claims a right to the funds in Mr. Angeloni’s Estate as well as to her share of the proceeds of sale of the matrimonial home.
(b) The serious issues to be tried are Ms. Angeloni’s dependent’s relief claim for her future care needs and damages sought by her against the Estate.
(c) The Respondents have not provided any evidence that they will suffer prejudice as a result of a non-dissipation order, which favours granting the order that Ms. Angeloni seeks.
[51] Based on the test for non-dissipation of an estate’s assets in RJR MacDonald Inc. v. Canada (Attorney General), the balance of convenience favours granting the order that Ms. Angeloni seeks. For these reasons, I find that Ms. Angeloni has satisfied the test for injunctive relief.
a) Should the Respondents pay into court, to the credit of this proceeding, any distributions received from Mr. Angeloni’s Estate, or any monies gifted or received from him from Nov 29, 2011 to July 6, 2015?
[52] Rule 45.02 states that where the right of an Applicant to a specific fund is in question, the Court may order the fund to be paid into court. The Rule provides:
SPECIFIC FUND
45.02 Where the right of a party to a specific fund is in question, the court may order the fund to be paid into court or otherwise secured on such terms as are just.
[53] In the context of support claims, an estate’s value includes funds distributed by the estate trustee, or gifts given mortis causa from part of the deceased’s property, pursuant to s. 72 of the Succession Law Reform Act. The section provides:
Value of certain transactions deemed part of estate
72 (1) Subject to section 71, for the purpose of this Part, the capital value of the following transactions effected by a deceased before his or her death, whether benefitting his or her dependant or any other person, shall be included as testamentary dispositions as of the date of the death of the deceased and shall be deemed to be part of his or her net estate for purposes of ascertaining the value of his or her estate, and being available to be charged for payment by an order under clause 63 (2) (f),
(a) gifts mortis causa;
(b) money deposited, together with interest thereon, in an account in the name of the deceased in trust for another or others with any bank, savings office, credit union or trust corporation, and remaining on deposit at the date of the death of the deceased;
(c) money deposited, together with interest thereon, in an account in the name of the deceased and another person or persons and payable on death under the terms of the deposit or by operation of law to the survivor or survivors of those persons with any bank, savings office, credit union or trust corporation, and remaining on deposit at the date of the death of the deceased;
(d) any disposition of property made by a deceased whereby property is held at the date of his or her death by the deceased and another as joint tenants;
(e) any disposition of property made by the deceased in trust or otherwise, to the extent that the deceased at the date of his or her death retained, either alone or in conjunction with another person or persons by the express provisions of the disposing instrument, a power to revoke such disposition, or a power to consume, invoke or dispose of the principal thereof, but the provisions of this clause do not affect the right of any income beneficiary to the income accrued and undistributed at the date of the death of the deceased;
(f) Any amount payable under a policy of insurance effected on the life of the deceased and owned by him or her;
(f.1) any amount payable on the death of the deceased under a policy of group insurance; and
(g) any amount payable under a designation of beneficiary under Part III. R.S.O. 1990, c. S.26, s. 72 (1); 1999, c. 12, Sched. B, s. 17.
[Emphasis added]
[54] Therefore, section 72 permits assets to be clawed back into and deemed to form part of the Estate for the purpose of determining the value of the Estate for dependent support orders under Part V of the Succession Law Reform Act (and not for determining the value of the estate generally).
[55] The Respondents do not offer a reason why the Court should not order that disputed funds that formed part of Mr. Angeloni’s Estate four days after his death be paid into court. The specific funds are those set out in the Personal Assessment issued by TD Canada Trust on July 10, 2015.
CONCLUSION AND ORDER
[56] For the reasons stated above, it is ordered that:
The Estate of Francesco Angeloni shall, by December 30, 2017, produce to Ms. Angeloni, an informal accounting of Mr. Angeloni’s management of Ms. Angeloni’s property for the period from November 29, 2011 to the date of his death.
Maria Lugonia and the Estate of Francesco Angeloni shall, by December 30, 2017, produce to Ms. Angeloni, an informal accounting of Ms. Lugonia’s management of Mr. Angeloni’s property under Mr. Angeloni’s Power of Attorney to her, from the date she began to exercise the Power of Attorney to the date of his death.
Maria Lugonia and the Estate of Francesco Angeloni shall, by December 30, 2017, produce to Ms. Angeloni, an informal accounting of the assets and liabilities of the Estate of Francesco Angeloni as of:
i) the day prior to his death:
ii) the date of his death; and
iii) the date of this Order,
including a statement of his assets, including assets deemed to be part of his estate pursuant to section 72 of the Succession Law Reform Act, and of his liabilities on each of those dates, a statements of all receipts and disbursements after the said dates, and an accounting of all distributions made, including the date and amount of each of the said distributions.
Ms. Angeloni or her lawyer may examine Maria Lugonia with respect to monies she received from Francesco Angeloni, from November 29, 2011 to July 6, 2016, with respect to her actions pursuant to the Power of Attorney for Francesco Angeloni, and with respect to her actions as Estate Trustee for the Estate of Francesco Angeloni following his death.
Maria Lugonia and the Estate of Francesco Angeloni shall not dissipate, transfer, encumber, waste, sell, dispose of, or otherwise deal with any of the assets of the Estate of Francesco Angeloni, pending the resolution of these proceedings, subject to any further Order of this Court or agreement in writing between all of the parties to this proceeding.
The beneficiaries of Francesco Angeloni’s Will, namely, Maria Lugonia, Liliana Palerma, Dora Polla, Mimma Sisti, Fernando Angeloni, Franca Ponari, and Teresa Ponari, shall not dissipate, transfer, encumber, waste, sell, dispose of, or otherwise deal with any monies gifted to them by, or received by them from Francesco Angeloni or on his behalf, from November 29, 2011 to July 6, 2015, or any assets or distributions received from the Estate of Francesco Angeloni, after his death, pending the resolution of this proceeding, subject to any further Order of this Court or agreement in writing between all of the parties to this proceeding.
The beneficiaries of the Will of Francesco Angeloni, namely, Maria Lugonia, Liliana Palerma, Dora Polla, Mimma Sisti, Fernando Angeloni, Franca Ponari, and Teresa Ponari, shall by December 30, 2017, pay into court to the credit of this proceeding, any monies gifted to them or received by them from or on behalf of Francesco Angeloni, from November 29, 2011 to July 6, 2015, and any distributions, including any cash, received from the Estate of Francesco Angeloni after his death.
Any of the parties may bring a further motion to the Court for an Order specifying the amount that each of the respondents are to pay into court to the credit of this proceeding.
Maria Lugonia shall, by December 30, 2017, produce all legal, financial, banking, and tax records, relating to the Estate of Francesco Angeloni, and any document purporting to be a Power of Attorney for Property of Francesco Angeloni, or a last Will of Francesco Angeloni.
Ms. Angeloni may compel production from any non-party, including any lawyer, paralegal, or other legal advisor who acted for, or was consulted by, Francesco Angeloni, of any Will, Power of Attorney, financial records, banking records, or tax returns of Francesco Angeloni, at any time during the period from November 29, 2011 to July 6, 2015, to the same extent that Mr. Angeloni could have compelled the production of it. The cost of such production to be borne by the Estate of Francesco Angeloni, subject to re-apportionment by the judge who hears the trial of the proceeding. If necessary, any non-party, as may be affected by this Order, may apply to the Court for directions in connection with such production prior to complying with this paragraph.
The parties have leave to move for further directions as may be necessary.
The Applicant is entitled to her costs of the motion. If the parties, after reviewing the principles set out in Arvanitis v. Levers Estate, 2017 ONSC 3758, paragraphs 68 to 98, and 110 to 135, are unable to agree on costs, they shall submit written arguments, not to exceed four pages, plus a Costs Outline, by December 30, 2017.
Price J.
Released: December 12, 2017
CITATION: Angeloni v. Angeloni, 2017 ONSC 7344
COURT FILE NO.: CV-15-5735-00
DATE: 2017 12 12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CONCETTA ANGELONI by her litigation guardians, CALOGERO CINO and MARIA DI STAFANO
Applicant
– and –
ESTATE OF FRANCESCO ANGELONI, MARIA LUGONIA, LILIANA PALERMO, DORA POLLA, MIMMA SISTI, FERNANDO ANGELONI, FRANCA PONARI, TERESA PONARI
Respondents
REASONS FOR ORDER
Price J.
Released: December 12, 2017
[^1]: Family Law Act, R.S.O. 1990, c. F.3, as amended. [^2]: Rathwell v. Rathwell, 1978 3 (SCC), [1978] 2 S.C.R. 436 (S.C.C.) [^3]: Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101 [^4]: Pecore v. Pecore, 2007 SCC 17 [^5]: Rudnicki v Rudnicki, 2016 ONSC 3629, para. 33 [^6]: Scalia v. Scalia, 2015 ONCA 492, para. 39 [^7]: Slaven v. Williams et al., 2011 ONSC 3929 [^8]: RJR MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 SCR 311