Court File and Parties

COURT FILE NO.: CV-13-0160-00 DATE: 2018-10-22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DEBBIE ARCON and LINDA DEMASI Plaintiffs

M. Holervich, for the Plaintiffs

• and -

GORDANA GINA ARCON aka GORDANA GINA ARCON-DEMASI Defendant

W. Wieckowski, for the Defendant

HEARD: August 29, 2018, at Thunder Bay, Ontario Mr. Justice W.D. Newton

Supplementary Reasons

Overview

[1] Following a hearing in 2016, I determined ownership of property of the Estate of Vincenzo Demasi who died intestate. The applicants were his two daughters; the respondent was their mother who was Mr. Demasi’s common-law spouse.

[2] I determined (Arcon v. Arcon, 2016 ONSC 2861) that the beneficiaries gifted the family home to their mother. I determined that one daughter, Lidia, was entitled to the RRSP for which she was the designated beneficiary but which had been transferred after Mr. Demasi’s death to the mother. I determined that there was no gift of Mr. Demasi’s personal property but that the mother was entitled to support from the estate which I fixed at one half of that personal property.

[3] I remain seized of this matter if the parties could not come to agreement with respect to the value of the personal property and the RRSPs. Two years later, the parties appear before me not having agreed on these valuations. Further, the mother moves for an order pursuant to Rule 59.06(2)(a) to have my prior order varied or set aside on the ground of fraud discovered subsequent to the order.

Rule 59.06(2)(a) motion – should my order be set aside?

[4] As I noted in the original decision, the estate accounting revealed some discrepancies relating to cash available for distribution. I noted that some of the discrepancies were likely related to funeral expenses which appear to be counted twice.

[5] At trial there was evidence from one daughter and her friend as to how funeral expenses were paid. No one had access to Mr. Demasi’s bank accounts so one daughter and the mother decided to forge Mr. Demasi’s signature to a cheque so that the friend could be reimbursed for the funeral expenses she had incurred to help the family. At trial, the evidence of the friend was that she cashed the check and handed the cash over to the mother. Subsequent to trial, counsel for the mother, on motion, obtained the banking records that suggested that the trial evidence was not accurate.

[6] The applicants offered additional evidence which asserted an explanation as to where the payments were directed. The end result of the explanation was that, while not directly congruent with the evidence at trial, the funds were used to reimburse a daughter and a friend for actual expenses incurred to benefit the estate and the mother. See the affidavit of Debbie Arcon, sworn August 22, 2018. Considering the evidence at trial and the explanation offered I am not satisfied that the mother has proven fraud; nor am I satisfied that the new facts constitute a reason to set aside the order. This new evidence does not affect my credibility assessment of the witnesses.

Valuation of personal property

[7] At death, Mr. Demasi’s personal property consisted of his trade tools (he was a contractor), his vehicles, and his bank accounts.

The tools

[8] At trial, the mother testified that she gave Mr. Demasi’s tools to his son. Counsel for the mother obtained an appraisal of some tools at $2,070. The list is short. The applicant submits that this cannot be all the tools of a contractor but have no other evidence to offer. I agree that the tool list is suspiciously lacking. However, in the absence of any other evidence I fix the value of the tools at $2,070.

The vehicles

[9] The mother listed the vehicles at $20,000 in her financial statements filed a trial. There was disagreement on the value of vehicles, principally about the value of a vintage vehicle which the applicant subsequently appraised at $10,500. Apart from that appraisal, the evidence on the value of the other vehicles was bare assertions. I accept the mother’s affidavit evidence that the vehicles, as result of the one appraisal, have a total value of $20,700.

Cash in bank accounts

[10] At trial, I noticed the discrepancy in the value of the cash for distribution and estimated that the cash was between $57,000 and $75,000. First of all, I accept Debbie Arcon’s evidence with respect to the cash in the safe. The position of the parties relating to the funeral payments has already been assessed. I accept the accounting as set out in the applicants’ summary at $73,291.99. I accept the applicant’s evidence with respect to the $4,200 in dispute that this was used to cover expenses arising from Mr. Demasi’s death.

RRSPs

[11] The difficulty in valuing the RRSPs was that while one half of the funds should have gone to one daughter and the other half to his son, the RRSPs were transferred to the mother, as I found, on the understanding that the monies were held in trust for the daughter. The son already received his share through expenses paid for by his mother. The issue is what amount is the other daughter entitled to receive.

[12] I conclude that it is appropriate to set that value at one half of the RRSPs received by the mother net of taxes that the mother paid. I determined that that amount is $32,262.80. Given this assessment, no prejudgment interest is payable on this amount.

Costs

[13] The parties are to make an appointment through the trial coordinator to deal with the costs of this application, the previous motions, and the attendances subsequent to the hearing on the application including the motion to vary the order. Submissions will be limited to 30 minutes per party. Ten days in advance of the costs hearing each parties to file cost submissions not to exceed 10 pages plus costs outline plus authorities.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: October 22, 2018