Court File and Parties

COURT FILE NO.: 05-346/19 DATE: 20200414 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE PROPERTY OF NIKOLAOS AGGELAKOS APPLICATION UNDER Sections 11, 12, 22 and 39 of the Substitute Decisions Act, 1992

BETWEEN:

Panagiota Aggelakos in her capacity as co-attorney for property and co-attorney for personal care for Nikolaos Aggelakos Applicant – and – Ionnis Aggelakos, in his capacity as co-attorney for property and co-attorney for personal care for Nikolaos Aggelakos, and The Public Guardian and Trustee Respondents

Counsel: Lisa Filgiano and Lyndsay Hone, for the Applicant Mr. Ioannis Aggelakos appeared on his own behalf Peter Downey on behalf of The Canada Trust Company proposed Guardian of Property for Nikolaos Aggelakos

HEARD: April 8, 2020

C. Gilmore, J.

Judgment on Application

Overview and Background Facts

[1] This application deals with exactly the same relief as sought in court file no. 05-347/19 in relation to Kostadina Aggelakos, and the judgment herein applies to both court files.

[2] The Applicant Panagiota (“Pam”) Aggelakos and the Respondent Ioannis (“John”) Aggelakos are the children of the Applicant Nikolaos Aggelakos (“Mr. Aggelakos”), aged 77, and the Applicant in court file no. 05-347/19, Kostadina Aggelakos (“Mrs. Aggelakos”), aged 68. Both Mr. and Mrs. Aggelakos reside at Seven Oaks Nursing Home in Scarborough, Ontario.

[3] The Application is initiated by Pam who seeks to have The Canada Trust Company (“CTC”) appointed to manage her parents’ property. The Public Guardian and Trustee did not appear on the Application but by way of email dated April 2, 2020 to counsel for Pam, advised that it did not oppose the appointment of CTC as Guardian of Property for Mr. and Mrs. Aggelakos. CTC consents to its appointment as Guardian of Property.

[4] Mr. and Mrs. Aggelakos executed Powers of Attorney on March 16, 2011 in which they named one another attorneys for property and personal care and their children John and Pam, jointly, as alternates. Mr. and Mrs. Aggelakos have been incapable of managing their property and personal care since 2016. It is not expected that either of them will regain their capacity.

[5] On March 16, 2011 Mr. and Mrs. Aggelakos executed mirror wills in which they left their estates to one another. On the death of the survivor, the proceeds of their joint account at RBC was to go to John’s children and residue of the estate was to be divided equally between John and Pam.

[6] Between August 2016 and August 2018 Pam and John were embroiled in litigation. Pam sought to remove John as co-attorney for property and personal care. Pam alleged that John would not co-operate in moving their parents to a long-term care facility. She further alleged that as John lived in Nigeria and was not responsive to her, it was impossible for them to work together as co-attorneys.

[7] The litigation between Pam and John was settled by way of Minutes of Settlement dated September 5, 2018. A term of the Minutes included that Pam and John agreed to communicate in a timely, respectful and continued basis in the management of their parents’ property. They also agreed to retain “Silver Sherpa,” an elder planning and support services company to facilitate their communication and assist them with the resolution of any issues related to their parents’ care or well-being. They further agreed to open a new bank account (not at RBC) in which to deposit the sale proceeds of their parents’ home and to access those funds for their parents’ expenses.

[8] Mr. and Mrs. Aggelakos’ home was sold for $705,000. The proceeds of sale, $648,985.93, were deposited into the trust account of Aleksandr Bolotenko, John’s lawyer at the time. The funds have remained there since March 2018. In order for a new bank account to be opened, both Pam and John must attend at the financial institution. Since John is in Nigeria and has not returned to Canada for some time, the opening of the account has been stalled. Given that the house sale proceeds are the main asset of Mr. and Mrs. Aggelakos, Pam has been paying some of their expenses out of her own pocket. She seeks reimbursement of those expenses as part of the relief in this Application. Up to the date of the hearing of this Application, John had not consented to Pam being reimbursed for any expenses.

[9] Pam alleges that John has not cooperated and failed to abide by the terms of the Minutes of Settlement. She attempted to commence a further Application in November 2019 but was advised by the Estates Court office that she was required to issue separate Applications for her mother and her father. Those Applications were issued in December 2019.

[10] A scheduling appointment was set for January 20, 2020 before Justice Conway. John did not appear but sent an agent and asked for an adjournment to file material. Justice Conway set the hearing for March 17, 2020 and strongly advised John to obtain legal advice. Because of the COVID-19 pandemic, this matter was moved back to March 16, 2020 as the courthouse was to be closed until further notice as of March 17, 2020. John sought a further adjournment through the Trial Co-ordinator in order to file material. I granted the adjournment to April 8, 2020 but on terms. John was required to serve and file his material electronically by April 1, 2020 at 4:00 p.m. and the matter was peremptory on him to proceed.

[11] John did not serve his material until the early morning hours of the day before the motion. Neither his affidavit nor the affidavit he tendered from his cousin, George Zois, were sworn.

[12] As a result of COVID-19 restrictions on courthouse attendances at this time, this matter was heard by way of Zoom conference. All counsel and John were in attendance by both audio and video and were given full opportunity to make submissions.

The Positions of the Parties

Pam Aggelakos

[13] Pam is very frustrated by what she alleges is her brother’s complete lack of co-operation and compliance with the Minutes of Settlement.

[14] She and her brother agreed to open a new bank account in which to deposit the proceeds of the sale of her parents’ home. The proceeds have been in trust in Mr. Bolotenko’s trust account for over two years and no progress has been made on this issue. Pam estimates that her parents are losing about $17,000 per year in interest income because the funds are in a non-interest bearing trust account. John must attend the bank in person with Pam in order to open the account since they are co-attorneys.

[15] John advised the court that he intends to travel back to Canada in the near future and will co-operate to set up the account. He explained that he works on an oil pipeline in Nigeria and was not being paid for a period of time. He is now being paid and intends to travel when he can. Pam is concerned about her brother’s representations especially given the current significant concerns about future travel.

[16] Since her parents’ funds are tied up, Pam has had to fund some of her parents’ personal expenses from her own pocket. The total of those expenses was $4,633.69 between August 2018 and December 2019. Pam submits the expenses are reasonable and necessary and has provided receipts in her material.

[17] John does not disagree that Pam has made expenditures on behalf of his parents, but he has as well. Pam has made it clear that she is fine with reimbursing John for the dental expenses he paid upon production of receipts. John has not produced the receipts.

[18] Pam submits that she and her brother simply cannot communicate notwithstanding their commitment to do so in the Minutes of Settlement. She gives specific examples of this as follows:

a. John will not consent to Pam being reimbursed for reasonable expenditures made on behalf of her parents, despite having provided all receipts, and despite Silver Sherpa agreeing that the claimed expenses were reasonable. b. John will not consent to arranging for the funeral costs of their parents. Mrs. Aggelakos, most unfortunately, has contracted COVID-19 and realistically such arrangements need to be made. c. Silver Sherpa refused to renew their contract with Pam and John due to what they described as very little common ground between them. d. John appears unconcerned that his parents are losing significant interest income as a result of the house sale proceeds remaining in a non-interest bearing account. e. When Pam’s counsel requested that CTC be appointed Guardian of Property, John did not respond. f. John provided unsworn court material which was filed after the court ordered deadline. As a result, no weight should be given to his material.

[19] CTC has consented to act as Guardian of Property and has prepared a Management Plan for each parent. The Public Guardian and Trustee (“PGT”) does not oppose the appointment or the Management Plans. The sale proceeds must immediately be put into an interest-bearing bank account to be used for Mr. and Mrs. Aggelakos’ expenses and Pam should be reimbursed.

[20] While Pam recognizes that appointing CTC will have an associated cost, she submits it is the only clear solution. She and her brother have tried to act as co-attorneys, and even committed to a plan in the Minutes of Settlement. There was still no progress. Her parents’ well-being requires that a Guardian of Property be appointed immediately.

John Aggelakos

[21] John submitted that it is his parents’ express wish that he and his sister manage their affairs. To do otherwise is not in keeping with what they want and what is in their best interests. John was mystified as to why his sister was being so litigious when many of the issues she raised could be resolved with a phone call.

[22] John asked the court for some time to allow him to return to Canada now that he has the funds to do so. Once he returns, he will cooperate with Pam to open a new bank account and then everything will be paid automatically. He is concerned about the expense of having CTC involved given that his father could well be alive for another decade. It is unfair to use his parents’ savings to pay for CTC when he is willing to cooperate with his sister.

[23] John advised that he was fine with Pam being reimbursed for reasonable expenses and that he expects to return to Canada soon to make things right. In the meantime, he does not believe that the fact that he resides in Nigeria impedes his ability to collaborate or communicate with Pam about decisions related to their parents’ property.

Analysis and Orders

[24] John has presented unsworn material to the court which was served late, despite warnings from Justice Conway about this and my very specific order dated March 16, 2020. His material is filled with hearsay and is very critical of his sister.

[25] John’s court material suggests that in fact Pam should be removed as co-attorney for personal care and property, yet he has never brought a cross-application for this relief. His material alleges that Pam has stolen money from his parents, was physically and emotionally abusive towards them, and that she has made decisions unilaterally without John’s input. The allegations are serious, but most relate to the time period prior to the signing of the Minutes of Settlement. The parties signed a release with respect all matters pre-dating the Minutes of Settlement.

[26] I decline to give any weight to the material filed by John. He was strongly advised by Justice Conway on January 20, 2020 to obtain legal advice. She also advised him that material filed with the court must be sworn. John was served with these applications in December 2019. He has had plenty of time to obtain legal advice and ensure that his materials were sworn and filed on time. He complains that his sister is overly litigious and uncooperative, but I accept the submission from Pam’s counsel that the only reason this litigation was even commenced was because of John’s failure to respond to Pam’s counsel.

[27] Pam asks the court to appoint an institutional Guardian for Property, thereby terminating John and Pam’s appointment as co-attorneys for property. She relies on the case of Galevski Estate, 2012 ONSC 3460, for the proposition that settlements ought to be enforced except where such enforcement would create a clear injustice.

[28] I agree with Pam that enforcement of the 2018 settlement would create an injustice for her parents. It is clear that the cooperation envisaged by the Minutes of Settlement cannot be implemented. While John professes a willingness to cooperate with his sister and commits to coming back to Canada “soon,” the history of this case since March 2018 belies any productive result along the lines promised by John. The following must be highlighted in terms of the Minutes of Settlement creating an injustice for Mr. and Mrs. Aggelakos:

a. Banking institutions require that John be present for the opening of a new account for the sale proceeds given that he is a non-resident and a co-attorney. John has committed to returning to Canada so that this could happen. The difficulty is that international travel has all but ceased entirely due to COVID-19. There is no assurance when such travel will resume and with what form of restrictions. It should also be noted that this is the first time such a commitment has been made by John in two years. Prior to the hearing of this matter, John had no definite plan to return to Canada. b. John’s lack of cooperation with respect to the opening of a new bank account has resulted in a loss of interest income to his parents. The Silver Sherpa report resulting from the May 19, 2019 meeting indicates that wealth advisors estimated that up to $17,658 a year could be earned on the sale proceeds. Two years of interest income has now been lost. c. The picture painted of Pam in John’s material is extremely negative. John was asked by the court during the course of the hearing how he realistically intended to cooperate with his sister whom he had accused of stealing his parents’ money, being physically and emotionally abusive to their parents and acting unilaterally. John did not answer this question directly. Rather, he began to discuss a recent phone call with his sister (which was not documented in his material) in which he said they were able to discuss matters rationally. I do not accept John’s position that he could work cooperatively with his sister. His view of her is extremely negative. He has not been able to work collaboratively with her for two years. There is no evidence to support that would change. d. John has been non-responsive and uncooperative in this litigation. John failed to respond to Pam’s counsel’s request for cooperation on appointment of a Guardian for Property. While John blames Pam for being litigious, it is his own lack of response that lead to these Applications being issued. John has not abided by court orders requiring him to file properly sworn material within a prescribed timeline. Pam’s counsel attempted to obtain an updated trust statement from Mr. Bolotenko for this hearing but could not because John refused to provide his consent. e. Only at the hearing of this matter on April 8, 2020 did John finally agree that Pam should be reimbursed for legitimate expenses she had incurred on behalf of her parents. All receipts had been provided to John, yet he resisted allowing repayment to Pam until this hearing. John’s position on the expenses is not defensible and Pam should be reimbursed immediately. f. John has refused to allow Pam to remove funds to pre-pay their parents’ funeral expenses as previously agreed. As Mrs. Aggelakos has been diagnosed with COVID-19, g. there is some urgency in dealing with this type of end of life planning. h. The inability to work together as co-attorneys is highlighted in the Silver Sherpa final report from May 2019. Silver Sherpa indicated that discussions with Pam and John were “not productive” and there was little “common ground” between them. Silver Sherpa refused to renew their contract. i. John’s view (as highlighted in the Silver Sherpa report) of his parents’ needs is skewed. He told Silver Sherpa (and the court on the date of the hearing) that he would call his father and obtain any required information directly from him. This is completely unrealistic given that his father has dementia and can no longer make personal care or property decisions on his own. j. I agree with John that CTC will cost his parents more than if he and his sister continued on as co-attorneys. However, in the end it will likely be less overall, as the appointment of CTC will end the litigation.

[29] Given all of the above, the Minutes of Settlement should be varied to permit appointment of CTC as Guardian of Property for Mr. and Mrs. Aggelakos. Allowing the current situation to continue is not in their best interest and would create an injustice to them. The draft orders provided by Pam’s counsel shall issue as amended.

Costs

[30] Pam requests substantial indemnity costs against John for this Application with the balance to be paid by the estate. In real numbers, she is seeking $30,000 against John plus another $7,000 plus disbursements to be paid by her parents’ estate.

[31] I agree that John should pay some costs personally in this matter. His defence of the Application was untenable and mostly based on allegations which had been completely subsumed by releases signed in relation to the Minutes of Settlement in March 2018. His lack of response to Pam’s counsel, failure to file timely and proper court material, his insistence on taking instructions from his incapable father, and his last-minute agreements to cooperate (i.e. approving Pam’s expenses and a commitment to come to Canada) are inappropriate and dramatically increased the cost of this litigation.

[32] John shall therefore pay costs of $10,000 to Pam personally for this Application and $10,000 for the Application being court file number 05-347/19 (the file related to Mrs. Aggelakos). A further $17,000 plus disbursements and HST shall be paid to Pam from her parents’ estate jointly as approved by The Canada Trust Company.

C. Gilmore, J. Released: April 14, 2020