Court File and Parties

COURT FILE NO.: 01-0703/18 DATE: 20190702 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF JOSEPH DOBIS

RE: MARK DOBIS, Applicant AND: ELIZABETH DOBIS, the Estate Trustee for JOSEPH VICTOR DOBIS, Deceased, Respondent

AND BETWEEN:

ELIZABETH DOBIS, the Estate Trustee for JOSEPH VICTOR DOBIS, Deceased, Applicant AND: MARK DOBIS and VLASTA KAPRALIK, Respondents

BEFORE: Dietrich J.

COUNSEL: Christopher D. Salazar, for the Applicant, Elizabeth Dobis A. Chima, for the Respondent, Mark Dobis

HEARD: June 6, 2019

Endorsement

Overview

[1] The Applicant Elizabeth Dobis is 77 years of age and recently widowed. Her late husband Joseph Victor Dobis (the “Deceased”) died on November 6, 2015. Mrs. Dobis, in her role as Executrix and Trustee of her late husband’s estate, and as sole beneficiary thereof, has been attempting to gain control over an asset of the Deceased’s estate. The asset is a four unit rental property in the City of North York, municipally known as 88 Overton Crescent in North York, Ontario (the “Property”).

[2] She has met with considerable resistance from her son Mark Dobis (“Mr. Dobis”). Mr. Dobis has been residing, with his spouse, in one of the units at the Property for the past thirteen years. When Mr. Dobis began residing there, he entered into an agreement with his father, the Deceased, whereby Mr. Dobis would provide certain management/superintendent services at the Property in exchange for reduced rent.

[3] Mr. Dobis would like to see this arrangement continue, for the rest of his lifetime, notwithstanding his father’s death. He has brought a separate application for dependant’s support against Mrs. Dobis in her capacity as Executrix and Trustee of the Deceased’s estate. In that application, among other things, Mr. Dobis seeks to be awarded a life interest in the Property, which, he asserts, his late father intended for him.

[4] Mrs. Dobis opposes Mr. Dobis’ claim for support. She also has serious concerns about Mr. Dobis’ ongoing management of the Property and, in particular, his collection and management of rent.

[5] Mrs. Dobis brings this application for certain orders that would allow her to gain and maintain possession and control over the Property, and the rental income therefrom, without interference from Mr. Dobis. She also seeks an order for a proper accounting by Mr. Dobis for the funds he has received on her behalf respecting the Property. In addition, Mrs. Dobis seeks a declaration that a “Devise”, allegedly signed by the Deceased, is of no force or effect on the administration of his estate.

[6] In response to Mrs. Dobis’ application, Mr. Dobis brought a motion for an interim interlocutory injunction. He sought to restrain Mrs. Dobis, personally, and as Executrix and Trustee of the Deceased’s estate from: i) dissipating or otherwise distributing or interfering with or encumbering the Property; ii) interfering with Mr. Dobis’ present possession, control or management of the Property, including attempts to collect any rental income; and iii) exercising any rights as a landlord, including seeking relief pursuant to the Residential Tenancies Act, 2006, S.O. 2006, c. 17.

[7] I heard Mr. Dobis’ motion immediately prior to this application by Mrs. Dobis. I denied Mr. Dobis’ request for injunctive relief and dismissed his motion: Dobis v. Dobis, 2019 ONSC 3547.

[8] For the reasons that follow, Mrs. Dobis shall be entitled to possession, management and control of the Property and Mr. Dobis shall be restrained from interfering with such possession, management and control. Mr. Dobis shall be required to pass his accounts with respect to funds that came into his control while managing the Property and to remit such funds in his control to Mrs. Dobis.

[9] The relief sought with respect to the enforceability of the Devise was not included in the limited relief articulated in my Order in this matter dated February 25, 2019. Therefore, it should not have been included as part of this application. Accordingly, that relief is denied without prejudice to the Applicant to seek such relief in another proceeding.

Factual Background

[10] The Deceased died on November 6, 2015. He left a Last Will and Testament dated November 3, 1992 (the “Will”), in which he named his wife Elizabeth Dobis as the Executrix and Trustee. He left the entire residue of his estate to her if she survived him by 30 days. The Will provides that if Mrs. Dobis predeceases her husband or dies within 30 days of his death, the residue of the Estate is to be divided among the children of the late Joseph Victor Dobis alive on the death of the survivor of himself and his wife, in equal shares. However, the share of any deceased child would be divided among that deceased child’s issue then alive, if any, in equal shares per stirpes. The late Joseph Victor Dobis was survived by his two children Mr. Dobis and Richard Dobis.

[11] A Certificate of Appointment of Estate Trustee with a Will was issued to Mrs. Dobis on August 4, 2018. Mr. Dobis does not challenge the validity of the Will.

[12] At the time of the Deceased’s death, title to the Property was registered in the names of his late parents Mary and Joseph Dobis, both of whom predeceased the Deceased. Ultimately, it devolved to the Deceased’s estate. Mrs. Dobis, as Executrix and Trustee, arranged for a transfer of the Property to herself as the sole beneficiary of the Estate. The transfer to Mrs. Dobis was registered at the land registry office on February 23, 2019.

[13] Mr. Dobis alleges that the Deceased signed a typewritten document, dated April 24, 2015, entitled “Devise”, which deals with the Deceased’s interest in the Property.

[14] The Devise reads as follows with respect to title to the Property:

With regards to 88 Overton Crescent, Don Mills, M3B 2V2

There should be no need or requirement for purposes of continuity to make change in title which is and shall remain as, Mary and Joseph Dobis, a.k.a. “The Estate of Mary Dobis”;

If the requirement should arise to cause change of title from Mary and Joseph Dobis, then that person should be my wife personally Elizabeth Dobis as Trustee, for the benefit of both my sons Mark and Richard, and thereafter for the benefit of my grandchildren.

[15] It is common ground that the Devise is not a valid testamentary document. It does not comply with the formalities relating to the execution of a will as set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26. Mrs. Dobis also disputes the authenticity of the Devise, which was witnessed only by the spouse of Mr. Dobis.

[16] Of the four unites at the Property, one is occupied by Mr. Dobis and his spouse. Another is occupied by tenants who pay rent to Mrs. Dobis and another unit is unoccupied. The fourth unit is occupied by foreign homestay students, whose tenancies were arranged by Mr. Dobis and they pay rent to him directly.

[17] Mrs. Dobis is opposed to renting a unit at the Property to homestay students and to Mr. Dobis collecting the rent.

[18] During the lifetime of the Deceased, rent was paid into a joint Toronto-Dominion Bank account in the names of Joseph Victor Dobis and Elizabeth Dobis.

[19] In January 2018, some 15 months following the Deceased’s death, Mark Dobis began diverting rent from the Property to himself and away from the joint account. The only accounting he provided to Mrs. Dobis regarding the funds he received was an accounting that he personally prepared.

Position of the Parties

[20] Mrs. Dobis submits that Mr. Dobis has no legal or beneficial interest in the Property, yet he holds the Property hostage while unlawfully benefiting personally from funds generated by the Property, and failing to account.

[21] It is Mrs. Dobis’ position that Mr. Dobis is not a dependant of his late father and that the Deceased had no legal or moral obligation to provide support to Mr. Dobis of any kind and certainly not an interest in the Property.

[22] Further, as legal and beneficial owner of the Property, she asserts that she is entitled to all documentation currently in Mr. Dobis possession that relates to the Property or the Deceased’s estate, and to all keys to the Property held by Mr. Dobis in his role as manager/superintendent of the Property.

[23] Mr. Dobis submits that he is entitled to a life interest in the Property and that it was his late father’s intention to create that life interest for him as evidenced in the “Devise.” Accordingly, in his application for dependant’s relief, he seeks relief that would allow the status quo to continue at the Property. That is, he would be allowed to continue in his duties as manager/superintendent in exchange for reduced rent for the unit at the Property in which he and his spouse are residing, for the rest of his life.

Issues

[24] The issues in this matter are as follows:

1. Is Mr. Dobis lawfully entitled to maintain possession and control of the Property pending his application for dependant’s support?
2. Is Mr. Dobis required to pass his accounts in respect of funds paid to him directly in respect of the Property?
3. Should the court order mandatory and permanent injunctive relief against Mr. Dobis to terminate his possession and control of the Property?

Possession and Control of the Property

[25] Mr. Dobis does not dispute the validity the Will. Pursuant to the terms of the Will, Mrs. Dobis is the sole beneficiary of the Estate. She is also the sole Executrix and Trustee. Accordingly, it is her duty to gather in the Property and administer it as part of the Estate. While Mr. Dobis is free to pursue his claim for support as a dependant of his late father, he has not demonstrated that he has a claim, in law or equity, to this particular Estate asset. In his application, which is brought pursuant to section 58(1) of the Succession Law Reform Act, he seeks “an Order that support be made from the Estate of the Deceased, Joseph Victor Dobis, for proper support of Mark Dobis as the Court may consider adequate.” He does not seek an Order vesting any part of the Property in him.

[26] Mr. Dobis relies on the language of the Devise in support of his argument that the Deceased intended him to have a life interest in the Property. However, the Deceased’s intention is not a relevant consideration in determining his entitlement to support as a dependant. The test for dependant’s support is based on needs and means. Further, Mrs. Dobis expresses doubt as to whether the Deceased actually signed the Devise document and, if he did, whether he did so freely and without undue influence. Even if the Deceased had intended a life interest in the Property, according to the terms of the Devise, the life interest would have been for the benefit of both Mr. Dobis and his brother Richard.

[27] Mr. Dobis also relies on an alleged “moral or ethical obligation” of his father to leave him an interest in the Property on the basis that it has been Mr. Dobis’ home for thirteen years and also a source of employment income. Mr. Dobis asserts that he made significant contributions to the Property for the benefit of his late father in the expectation that he would receive an interest in the Property on his late father’s death. However, in Verch v. Weckworth, 2014 ONCA 338, at paras. 4 and 5, the Court of Appeal of Ontario stated that moral claims are “misconceived” and that there is no authority for the Court to displace a properly executed will pursuant to “some overarching concept of a parent’s moral obligation to provide on death for his or her independent adult children.”

[28] Mr. Dobis is free to pursue his application seeking relief as a dependant of his late father, but his application should not bar Mrs. Dobis, in her capacity as Executrix and Trustee of the Estate, and the sole beneficiary thereof, from taking control and possession of the Property. As the Executrix and Trustee of the Estate and a fiduciary, she will be required to satisfy any award for support to which Mr. Dobis may become entitled. There is no evidence before the court to suggest that there are insufficient assets of the Estate to satisfy any such an award.

[29] For these reasons, I find that it is appropriate to require Mr. Dobis to provide Mrs. Dobis, as legal owner of the Property, with all documentation in his possession that relates to the Property or the Estate of the Deceased, and that he deliver to her all of the keys to the Property that he holds as manager/superintendent.

Passing of Accounts

[30] The evidence before the court is that during Joseph Victor Dobis’ lifetime, rents from the Property were collected and deposited into a joint account held by himself and Mrs. Dobis. Following the death of the Deceased, Mr. Dobis took steps to divert some of the rent money to himself. Despite requests from Mrs. Dobis to properly account for that rental income, Mr. Dobis has failed to do so.

[31] The accounting that Mr. Dobis prepared is unsatisfactory to Mrs. Dobis. It is unsupported by vouchers and contains no detail of the expenses incurred. For example, there is a payment on account of legal fees with no explanation as to whom the legal fees were paid or for what purpose. Mrs. Dobis is concerned that the rental income may be funding Mr. Dobis’ legal fees in this litigation.

[32] Mrs. Dobis asserts that Mr. Dobis had no authority to divert rent from being paid into the joint account to another account controlled by him alone. Accordingly, she asserts that he has misappropriated the funds. I agree that Mr. Dobis has not provided a satisfactory explanation to the court for his actions in this regard. Where a party is deemed to have misappropriated funds, the court has jurisdiction to order an accounting: Net Connect Installations Inc. v. Mobile Zone Inc., 2016 ONSC 7468 at para. 163 (9). Accordingly, I find that it is appropriate that Mr. Dobis be compelled to pass his accounts for all monies received by him in connection with his management of the Property from January 1, 2018 (being the date, or around the date, he began to divert rent payments to himself) to the date hereof. It also appropriate that Mr. Dobis remit to Mrs. Dobis, as the owner of the Property all funds in his possession received by him as manager/superintendent of the Property.

Mandatory/Permanent Injunctive Relief

[33] It is undisputed that Mrs. Dobis is the registered owner of the Property. It is also undisputed that she is the Executrix and Trustee of the Estate of Joseph Victor Dobis and the sole beneficiary thereunder. Notwithstanding, her legal ownership of the Property, Mr. Dobis has declined to voluntarily transfer possession and control of the Property to her. He continues to rent a unit to homestay students against her wishes and to collect rent from tenants, in respect of which rent he has not provided a proper accounting. According to the record, Mr. Dobis has declined to deliver up to Mrs. Dobis all relevant documentation relating to the Property and the Estate to which Mrs. Dobis is entitled as Executrix and Trustee as well as keys to the Property that belong to her as owner.

[34] Ms. Dobis, therefore, seeks the court’s assistance in causing Mr. Dobis to relinquish possession and control of the Property to her. Based on the evidence, it is appropriate that mandatory and permanent injunctive relief be granted to cause Mr. Dobis: i) to deliver up to Mrs. Dobis all relevant documentation relating to the Property and the Estate, and all keys held by him as manager/superintendent of the Property, which are in his possession; and ii) to take appropriate steps to terminate the tenancies of the homestay students and to permanently refrain from renting a unit at the Property to homestay students.

[35] In 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125 at paras. 79-80, the Court of Appeal adopts the reasoning of the British Court of Appeal in Cambie Sugeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, 323 D.L.R. (4th) 680, where Groberman J.A. explains, at paras. 27-28, that in making a final determination as to whether an injunction should be granted, the court must be satisfied that the party requesting the injunction has established her legal rights and that an injunction is an appropriate remedy.

[36] Based on the record, I am satisfied that Mrs. Dobis is the legal owner of the Property and is entitled to possession and control of the Property. She inherited the Property from her late husband pursuant to the Will, which has not been challenged by Mr. Dobis. The Deceased died nearly four years ago, and Mrs. Dobis is now 77 years of age. It is appropriate that she seize possession and control of her Property and that she be free to manage it as she sees fit. Despite requests for co-operation from her son, Mr. Dobis, he has continued to maintain possession and control of the Property and to rent it to tenants against the wishes of Mrs. Dobis. Accordingly, I find that mandatory and permanent injunctive relief are appropriate in this case.

Disposition

[37] Mrs. Dobis is entitled to possession and control of the Property free from interference from Mr. Dobis. An order shall issue requiring Mark Dobis to:

1. forthwith, at his own expense, deliver to the Applicant all documents in his possession, power or control relating in any way to the Property or the Estate of Joseph Victor Dobis;
2. forthwith, at his own expense, deliver to the Applicant all keys to the Property that are in his possession as manager/superintendent;
3. forthwith deliver to the Applicant all funds, including rental income, in his possession and control, which were received by him relating to the Property;
4. at his own expense, prepare accounts, in court-approved form, relating to the funds, including all rents, received by him relating to the Property from January 1, 2018 to the date hereof, and pass those accounts before this court unless otherwise agreed to between the parties or ordered by this court;
5. forthwith take all necessary and appropriate steps to terminate the tenancy arrangements made with the homestay students residing at the Property and provide proof of termination of those tenancies to the Applicant, and he shall refrain from entering into any new tenancy arrangements in respect of the Property;
6. permanently refrain from collecting rent or other funds from any occupants of the Property; and
7. permanently refrain from interfering with the Applicant’s lawful possession, use, control and management of the Property.

Costs

[38] The Applicant, Elizabeth Dobis, having succeeded in her application, is entitled to her costs, including the costs relating to the application she submitted to the Superior Court of Justice in Barrie, Ontario under Court File No. 18-003, the costs of which were reserved to the judge hearing this application.

[39] The parties are encouraged to agree on the matter of costs. If they are unable to do so, the Applicant, Mrs. Dobis (having already filed a Bill of Costs) shall serve and file her written submissions, not exceeding three pages, within 14 days. The Respondent Mark Dobis shall serve and file his written submissions, not exceeding three pages (excluding a Costs Outline or Bill of Costs) 14 days thereafter.

Dietrich J. Date: July 2, 2019