Court File and Parties

COURT FILE NO.: 7022/18 DATE: 2019-10-02 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF PETER APPLEYARD, deceased

RE: JANICE ZEALAND, Applicant AND: SUSAN APPLEYARD, Respondent AND: JO ANNE APPLEYARD, Objector

BEFORE: Conlan J.

COUNSEL: M. Jasmine Sweatman, for the Applicant Susan Appleyard, Self-represented Jo Anne Appleyard, Self-represented

HEARD: October 1, 2019

ENDORSEMENT

I. Introduction

[1] This Court heard two Motions, one brought by each side, at Court in Milton on October 1, 2019.

[2] Peter Appleyard (“Peter”) was a celebrated Canadian musician, a true jazz legend, whose abilities as a vibraphonist and percussionist were complemented by his talents as a composer. He worked with the likes of Benny Goodman and Frank Sinatra; enough said.

[3] Peter died in July 2013. As per his Will, Janice Zealand (“Zealand”) was to be the Estate Trustee, and the beneficiaries his common law spouse and his two children.

[4] Many, many years earlier, in 1996, Peter and his then wife, Jo Anne Appleyard (“Jo Anne”), were divorced.

[5] Later this month, in Milton, a trial is to take place involving a consolidated Application. The trial is to deal with (i) Zealand’s request to pass the accounts of the Estate, in the face of objections filed by Jo Anne, and (ii) Zealand’s request to be removed as Estate Trustee.

II. The Motions

[6] This proceeding has a long and complicated history. The journey to today included a hearing at and a decision by the Court of Appeal for Ontario in January 2019: Appleyard v. Zealand, 2019 ONCA 4.

[7] In its decision, at paragraph 11, the Court of Appeal ordered that Zealand “bring a motion for directions before a judge of the Superior Court to establish a timetable for the administration of the estate, including such steps as may be appropriate for the timely determination of [Jo Anne’s] claims”.

[8] After some adjournments, that Motion by Zealand was finally heard by this Court on October 1st.

[9] Also on October 1st, this Court heard a long-standing Motion for Directions filed by Jo Anne.

[10] The two Motions overlap in that the penultimate issue to be decided is what should happen with Jo Anne’s “claims” against the Estate.

III. Decision

[11] Despite the lengthy and sordid history of this proceeding, as will be evident by the relative brevity of this Endorsement, the crucial question that presents itself on these Motions is capable of succinct resolution.

[12] What should happen with Jo Anne’s “claims”? They should be dismissed, without prejudice to Jo Anne’s right to assert them, or some of them, in the proper manner.

[13] To be clear, this Court orders that the “Claim Against Estate”, found at page 75 of the bound document filed by Jo Anne titled Affidavit of Jo Anne Appleyard in Support of Objections and in Response to the Removal Application Record, is hereby dismissed, subject to the above proviso.

[14] In true fact, the said “claim” does not currently exist. On January 4, 2019, by Order of the Registrar, which Order was never set aside or varied, the proceeding under Court File number 607/13, which is the Court File attached to the said “Claim Against Estate”, was dismissed for delay.

[15] Nevertheless, the “claim” cannot be permitted to proceed in its current form for another more substantive reason referred to below.

[16] In addition, this Court orders that the “Return of Notice of Motion for Directions”, found at page 1 of the bound document filed by Jo Anne titled the same thing, is hereby dismissed, subject to the above proviso.

[17] It, too, was brought under the already dismissed Court File number 607/13, however, it also cannot be permitted to proceed in its current form for the same reason discussed below.

[18] Where does that leave the trial set to be heard later this month? The trial shall proceed as scheduled, on the terms outlined in the Order of Justice Miller made on August 1, 2018, and limited strictly to the issues set out therein, subject only to the discretion of the trial judge.

[19] Why do these “claims” advanced by Jo Anne, in the manner in which they have been advanced, demand dismissal?

[20] It is simple – because the “claims”, except the procedural ones which are all moot (such as the request by Jo Anne to be added as a party to the consolidated proceeding, something already accomplished by the said Order of Justice Miller referred to above), all relate to support that Jo Anne wants paid to her by the Estate.

[21] Jo Anne is an articulate and polite lady. It was my pleasure meeting her and listening to her in Court on October 1st.

[22] She is representing herself, however, and the lack of legal representation has led her down an improper path. It can be corrected, but the trail taken thus far must end today.

[23] You simply cannot advance a claim for dependant support in the context of an application by an estate trustee to pass accounts and/or an application for removal of an estate trustee. It must be done by way of an application under section 58 of the Succession Law Reform Act (“SLRA”), R.S.O. 1990, c. S.26, as amended.

[24] References to caselaw are not going to assist Jo Anne in understanding why that is. I recommend that she simply refer to the plain wording of (i) the definition of “dependant” found in subsection 57(1) of the SLRA and (ii) subsection 58(1) of the SLRA, both provisions set out below.

57 (1) In this Part,…

“dependant” means,

(a) the spouse of the deceased,

(b) a parent of the deceased,

(c) a child of the deceased, or

(d) a brother or sister of the deceased,

to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death; (“personne à charge”)…

58 (1) Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.

[25] Doing the best that she can to defend her position, Jo Anne has referred this Court to sections 44 and 45 of the Estates Act, R.S.O. 1990, c. E.21, as amended.

[26] It is unnecessary to set those provisions out here; suffice it to say that, unfortunately for Jo Anne, they have nothing to do with how a claim for dependant support from an estate is to be brought. Rather, they speak about what the estate is to do when it learns of such a claim.

[27] Jo Anne has also reminded this Court that she has couched some of the relief that she seeks under the rubric of “unjust enrichment”. That is fine. She can include that argument in her application under the SLRA, if such an application is brought.

[28] That leaves only some miscellaneous relief sought by Zealand and spoken about by her counsel at Court in Milton on October 1st.

[29] To begin, this Court is asked to strike out certain paragraphs of the two documents containing Jo Anne’s “claims” against the Estate as being allegedly improper in that they refer to prior settlement efforts between the parties.

[30] That relief is denied. It was not prayed for in the Amended Notice of Motion filed on behalf of Zealand. Jo Anne, acting for herself, could not have properly prepared to address that issue at Court on October 1st, and her oral submissions in Court when specifically asked by me to deal with it clearly demonstrated that she does not comprehend the issue. That determination will have to wait for another day.

[31] Second, this Court is asked to appoint Zealand, nunc pro tunc, as Estate Trustee during litigation.

[32] That relief is denied. Although it was pleaded, it is not appropriate. There is no urgency to the request, and it can be taken up with the trial judge if deemed necessary (the trial is imminent). Further, the doctrine (the latin expression referred to above) has no application here. There is nothing to correct or clarify. There is nothing in need of operation retroactively.

[33] Third, this Court is asked to declare that the formal approval by Jo Anne of the Order that arises from this Endorsement be dispensed with. That relief is granted. The trial is imminent, and it is in the interests of everyone that the formal Order be issued as soon as possible. The Court will ensure that it is correct, and in that respect there is no prejudice to Jo Anne.

[34] Fourth and finally, this Court is asked to set out further directions that will apply to the anticipated application by Jo Anne under the SLRA.

[35] That relief is granted, in one respect. To do nothing in this regard would not be responsive to the Court of Appeal’s decision. To do anything more than the below, however, would encroach unnecessarily on the jurisdiction of the Court where the application is filed, if one is filed.

[36] This Court orders that any application by Jo Anne under the SLRA shall be issued within ninety (90) calendar days of October 1, 2019. Failing that, it shall be deemed that Jo Anne abandons any and all claims that she may have against the Estate (other than her objections that have been filed in the context of the current consolidated Application out of Milton).

IV. Costs

[37] If not resolved between the parties, written submissions on costs pertaining to the Motions decided herein may be filed.

[38] Each submission shall be limited to three pages, typed, normal margins, double spaced, excluding attachments.

[39] Zealand shall file within thirty (30) calendar days of today. Jo Anne shall file within twenty (20) calendar days of her receipt of Zealand’s submissions. Without leave of this Court, no reply is permitted.

Conlan J.

Date: October 2, 2019