COURT FILE NO.: 01-4638/18 DATE: 20200124 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MELISSA MAGNOTTA Applicant – and – ROSSANA MAGNOTTA Respondent
Counsel: Anne E. Posno, for the Applicant David Altshuller and Lara Di Genova, for the Respondent
HEARD: January 10, 2020
REASONS FOR DECISION
DIETRICH J.
[1] Giuseppe Paolo Magnotta, also known as Joseph Magnotta, was only 36 years of age when he unexpectedly succumbed to cancer on May 25, 2018. At the time of his death, he was working at Magnotta Winery, a family business. He was survived by his wife, the Applicant, Melissa Magnotta to whom he had been married for six years and a life partner for 15 years. He had no descendants.
[2] Joseph died intestate. Predeceased by his father Gabe Magnotta, Joseph’s closest next of kin was his mother, the Respondent, Rossana Magnotta.
[3] Following Joseph’s funeral and interment in the Magnotta family crypt, a dispute erupted between Joseph’s widow Melissa and his mother Rossana. The dispute was sparked by Rossana’s perception that Melissa was threatening to exhume Joseph’s remains and move them to another cemetery. It came to involve the administration of Joseph’s estate generally.
[4] Melissa applied to the court for a Certificate of Appointment of Estate Trustee without a Will (the “Certificate”). Rossana objected to the issuance of the Certificate to Melissa. She sought to have a neutral third party appointed as Estate Trustee.
[5] Melissa brings this application for an order setting aside Rossana’s Notice of Objection, granting the Certificate to Melissa, and dispensing with the need to post an administration bond.
[6] Following a couple of hours of argument in this application, Rossana disclosed that she would withdraw her Notice of Objection. She nevertheless seeks costs from Melissa or Joseph’s estate, or both, on a joint and several basis.
[7] For the reasons that follow, I find that Rossana is not entitled to any costs in this application.
Issue
[8] The issue in this matter is whether it was reasonable for Rossana to oppose the appointment of Melissa as Estate Trustee of Joseph’s estate. I find that it was not.
Position of the Parties
[9] Melissa asserts that, as Joseph’s spouse, she is the sole beneficiary of his intestate estate. He had no descendants and no dependants. Therefore, there was no other person with an interest in Joseph’s estate.
[10] Melissa further asserts that while Rossana claimed to have a financial interest in the estate, the only financial interest that Rossana could possibly have had was that of a creditor who paid the funeral expenses. Melissa submits that at the time she filed her application for a Certificate, Rossana had indeed paid all of the funeral expenses, including the costs of the reception following the funeral. Melissa submits that, at the time she filed her application, she was not expecting that Rossana would, initially, seek reimbursement from Joseph’s estate for one-half of those expenses and, later seek reimbursement from Joseph’s estate for all those expenses. Accordingly, Melissa asserts that when she filed the application for the Certificate, she honestly believed that there were no liabilities of Joseph’s estate and swore an affidavit in support of that belief.
[11] Rossana asserts that it was necessary for her to file a Notice of Objection in response to Melissa’s application. Rossana was motivated to do so because she believed that Melissa was not a suitable candidate to administer Joseph’s estate because Melissa was threatening to exhume Joseph’s remains from the family crypt. Rossana also asserts that the Notice of Objection was necessary because Melissa was not being truthful about the assets and liabilities in Joseph’s estate, which could affect Rossana’s rights as a creditor.
[12] Rossana further asserts that it was not until mid-December 2019 that she became aware that Melissa had no intention to exhume Joseph’s remains and that Melissa would reimburse Rossana for funeral expenses from Joseph’s estate. Accordingly, in her view, it was reasonable for her to maintain her Notice of Objection at least until that time.
Background
[13] At the time of Joseph’s death, Melissa agreed to honour Joseph’s wishes that he be interred in the Magnotta family crypt at Holy Cross Cemetery. She specifically chose a space for him across from his late father Gabe, with whom Joseph had been very close.
[14] The family crypt is owned by Rossana and Joseph’s sister, Alessia Magnotta. They alone have keys to the crypt.
[15] In early December 2018, Melissa filed an application for the Certificate. Melissa included in her application an affidavit regarding Joseph’s debts confirming “without a doubt that all of the debts of the Estate have been paid in full.”
[16] In early February 2019, when Melissa became aware that she would not likely be interred in the Magnotta family crypt, she called the funeral home through which Joseph’s funeral arrangements had been made and inquired about disinterring Joseph’s remains and interring them elsewhere. She was advised that she would need to discuss this matter directly with personnel at Holy Cross Cemetery. Melissa never called the Cemetery to discuss this matter.
[17] On February 5, 2019, Rossana’s lawyer wrote to Melissa’s lawyer to let him know that Melissa’s affidavit regarding the debts was false because the debt owed to Rossana regarding the funeral expenses remained outstanding.
[18] On February 11, 2019, Rossana’s lawyer filed a Form 75.1 Notice of Objection in which she stated: “The nature of my interest is financial.” Rossana claimed to be a creditor of Joseph’s estate because she had paid the funeral expenses, which included a reception, totaling $43,948.05, and had not been reimbursed from Joseph’s estate. The Notice of Objection also included a statement that the “Application misrepresents the value and liabilities of the Estate.”
[19] Melissa’s lawyer responded by letter, which included notice that Melissa would be retaining a litigation lawyer to seek an order to “regain control over the deceased’s remains.”
[20] Rossana’s lawyer responded by saying that Rossana would seek the appointment of a neutral third-party estate trustee because Melissa’s threat to exhume Joseph’s remains was vindictive and hurtful and made her unfit to act as estate trustee.
[21] In her Notice of Appearance, filed July 27, 2019, Rossana states: “I desire to oppose the issuing of a certificate of estate trustee for the reasons set out in the filed Notice of Objection dated February 11, 2019.” Although Rossana deposed that she objected to Melissa’s appointment because Melissa was not a suitable candidate to act as Estate Trustee given her threat to exhume Joseph’s remains, this reason was not set out in her Notice of Objection.
[22] The assets of Joseph’s estate consisted, in the main, of a company-sponsored life insurance death benefit of $400,000 and potential damages arising from a lawsuit commenced by Melissa and Joseph relating to an aborted purchase of their residence. The application for the Certificate showed the date of death value of Joseph’s estate to be $400,000.
[23] The evidence with respect to who would be responsible for the funeral expenses is inconsistent. Rossana deposed that soon after Joseph’s death she told Melissa that she would split the costs of the funeral and reception with her. Melissa’s evidence is that Rossana had told Melissa’s father, when he offered to contribute to the funeral costs, that Rossana would be covering the costs of Joseph’s funeral. There is some evidence to suggest that Rossana may have been referring to the funeral only and not the reception, and that she was expecting Melissa or Joseph’s estate to pay for one-half of the reception. In a text message from Melissa to Rossana shortly after the funeral, Melissa refers to “settling up” with Rossana regarding the costs of the reception and giving her a cheque. In fact, Rossana paid the entire amount owing for both the funeral and the reception. Ultimately, Rossana changed her mind and decided that she would not bear any part of the funeral expenses, including the reception. She then told Melissa that she expected to be fully reimbursed from Joseph’s estate. Rossana proposed that the reimbursement be made in the form of a donation to the G. Magnotta Foundation, a charity established by the Magnotta family.
[24] On March 25, 2019, Melissa’s lawyer wrote to Rossana’s lawyer and made a settlement offer whereby Melissa, with some help from her parents, would pay the funeral expenses of $28,533.99 if Rossana would pay the reception costs of $15,414.06 and withdraw her Notice of Objection.
[25] Rossana’s lawyer responded on May 3, 2019 stating that the proposal was “wholly unacceptable” given the accusation and threats contained in previous correspondence and that Rossana was waiting to receive a Notice to Objector and to hear from Melissa’s litigation lawyer.
[26] On May 30, 2019, Melissa’s litigation lawyer sent an email in which she confirmed that all taxes and pre-death debts had been paid, and she proposed a settlement concluding with this statement: “Assuming the above terms are acceptable, Melissa will agree not to take any steps to exhume and move Joseph’s body on the following conditions: …”
[27] On August 8, 2019, Melissa filed a supplementary affidavit in support of her application for a Certificate and her request for an order dispensing with an administration bond. In this affidavit, Melissa set out the debts of the estate of which she had knowledge, including the costs of the funeral, and she confirmed that Rossana would be reimbursed for the costs of the funeral from Joseph’s life insurance proceeds. She also confirmed that, while the costs of the reception were being disputed, if they were owing to Rossana, they too would be paid out of the life insurance proceeds. This affidavit was filed with the court but, through inadvertence, a copy was not sent to Rossana’s lawyer.
[28] On November 29, 2019, Melissa swore an affidavit in which she confirmed that she had no intention of exhuming Joseph’s body. In this affidavit Melissa also confirmed that, if claimed as owing, Rossana would be reimbursed for one-half of the funeral and reception costs.
[29] During cross-examinations on December 12, 2019, Rossana became aware that Melissa had sworn that she had no intention of exhuming Joseph’s remains and that she would pay amounts owing to Rossana on account of funeral and reception expenses out of the life insurance policy proceeds. Notwithstanding that Rossana then deposed that she accepted this evidence, she also deposed that she would not withdraw her Notice of Objection. She deposed that Melissa should not be appointed the estate trustee of Joseph’s estate because Melissa had arranged for an article about her marriage to Joseph to be published in a City Life magazine. Rossana did not approve of the article because she believed that it was disrespectful of Joseph and his desire for privacy.
Legal Principles
[30] Section 44 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 provides as follows:
- Where a person dies intestate in respect of property and is survived by a spouse and not survived by issue, the spouse is entitled to the property absolutely.
[31] Section 29(1) of the Estates Act, R.S.O. 1990, c. E.21 provides as follows:
- (1) Subject to subsection (3), where a person dies intestate or the executor named in the will refuses to prove the will, administration of the property of the deceased may be committed by the Superior Court of Justice to,
(a) the person to whom the deceased was married immediately before the death of the deceased or person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death;
(b) the next of kin of the deceased; or
(c) the person mentioned in clause (a) and the next of kin,
as in the discretion of the court seems best, and, where more persons than one claim the administration as next of kin who are equal in degree of kindred to the deceased, or where only one desires the administration as next of kin where there are more persons than one of equal kindred, the administration may be committed to such one or more of such next of kin as the court thinks fit.
(2) Subject to subsection (3), where a person dies wholly intestate as to his or her property, or leaving a will affecting property but without having appointed an executor thereof, or an executor willing and competent to take probate and the persons entitled to administration, or a majority of such of them as are resident in Ontario, request that another person be appointed to be the administrator of the property of the deceased, or of any part of it, the right that such persons possessed to have administration granted to them in respect of it belongs to such person.
(3) Where a person dies wholly intestate as to his or her property, or leaving a will affecting property but without having appointed an executor thereof willing and competent to take probate, or where the executor was at the time of the death of such person resident out of Ontario, and it appears to the court to be necessary or convenient by reason of the insolvency of the estate of the deceased, or other special circumstances, to appoint some person to be the administrator of the property of the deceased, or of any part of such property, other than the person who if this subsection had not been enacted would have been entitled to the grant of administration, it is not obligatory upon the court to grant administration to the person who if this subsection had not been enacted would have been entitled to a grant thereof, but the court may appoint such person as it thinks fit upon his or her giving such security as it may direct, and every such administration may be limited as it thinks fit.
[32] Notices of Objection to a Certificate of Appointment of Estate Trustee are filed pursuant to Rule 75.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). To engage Rule 75.03, the objector must “appear to have a financial interest in the estate” as follows:
(1) At any time before a certificate of appointment of estate trustee has been issued, any person who appears to have a financial interest in the estate may give notice of an objection by filing with the registrar or the Estate Registrar for Ontario a notice of objection (Form 75.1), signed by the person or the person’s lawyer, stating the nature of the interest and of the objection.
Analysis
[33] Pursuant to s. 29(1)(b) of the Estates Act, Rossana, as Joseph’s next of kin, would have been entitled to apply for the Certificate. Equally, Melissa, as Joseph’s spouse, is entitled to apply pursuant to s. 29(1)(a). Both are listed as persons to whom the Certificate may be issued. The deceased’s spouse appears in the listing in s. 29 ahead of the deceased’s next of kin, but the legislation does not confer a priority on one over the other. If more than one of the listed persons apply for the Certificate, the Certificate will be issued to one, the other, or more, as in the discretion of the court seems best.
[34] Rossana did not apply for a Certificate pursuant to s. 29 of the Estates Act. Her evidence is that she did not wish to be appointed as Estate Trustee of Joseph’s estate, but, rather sought the appointment of a neutral third party.
[35] Unless Rossana could show that Melissa was in a conflict of interest in assuming the role of Estate Trustee of Joseph’s estate, Rossana had no reasonable expectation that the court would exercise its discretion to issue the Certificate to someone other than Melissa. Melissa has no adverse interest against the estate. According to the rules of intestate succession set out in s. 44 of the Succession Law Reform Act, Melissa is the sole beneficiary of the estate. Joseph had no dependants to make a claim against that entitlement. In Catto v. McKay, 2016 ONSC 3025, which also dealt with a dispute between the deceased’s widow and his next of kin respecting the deceased’s burial, at para. 39, Justice Smith held:
In this case, [the spouse] is entitled to all of the deceased’s property, she does not have any interest that is adverse to the Estate, and she does not have a pending claim for dependant’s relief or other relief against the Estate. In these circumstances, where there is no adverse interest, an entitlement to a preferential share and there are not any competing children’s claims, I find that surviving spouse is the person to whom the administration of the Estate should be granted.
[36] I have not been provided with any jurisprudence in which a court exercised its discretion to grant administration to an applicant other than the deceased’s spouse where the spouse was entitled to the entirety of the deceased’s estate.
[37] I find that it was not reasonable for Rossana to oppose Melissa’s application to be appointed estate trustee on the basis of Melissa’s threat to exhume Joseph’s remains. Melissa herself had made the arrangements to have Joseph’s remains interred in the family crypt. She chose a space for him near to his father because they had a close relationship. I have no doubt that Rossana was overcome by grief following the premature death of her son, but she ought to have seen Melissa’s threat as the empty threat that it was. Though Melissa made an initial inquiry of the funeral home in February 2019 about the possibility of an exhumation, she did nothing to follow through. She made no contact with Holy Cross Cemetery in this regard. If she had, Holy Cross Cemetery undoubtedly would have involved Rossana, as an owner of the crypt, in any such discussion and, absent any agreement between the parties, or a court order, would not likely have taken any action. Months after making her inquiry of the funeral home, Melissa had sworn an affidavit confirming that she had no intention of exhuming Joseph’s remains.
[38] I also find that it was not reasonable for Rossana to object to the issuance of the Certificate to Melissa on the basis of a purported financial interest in Joseph’s estate. Rossana relies on rule 75.03(1) in her submission that she has a financial interest in the estate. She claims that she is a creditor, who is owed $43,983.05 for funeral expenses.
[39] The courts have narrowly construed what constitutes a financial interest in an estate. In Weidenfield v. Weidenfield Estate, 2016 ONSC 7330, 273 A.C.W.S. (3d) 897, the court stated, at para. 20, citing Hull and Popovic-Montag in MacDonell Sheard and Hull Probate Practice, 5th ed (Toronto: Carswell, 2016):
It would seem that unless the court otherwise directs, “persons having a financial interest in the estate” would be those persons named as beneficiaries in the will in question and all previous wills and those entitled on an intestacy.
[40] The only beneficiary entitled to share in the estate on Joseph’s intestacy is Melissa. Melissa swore an affidavit on August 8, 2019 confirming that she had paid the deceased’s modest debts of less than $3,000, and filed his final tax return, which resulted in a refund. She also confirmed that she would pay amounts owing for Joseph’s funeral and reception from the life insurance proceeds. The total amount payable to Rossana as reimbursement, if she is entitled to the entire cost of the funeral and reception, amounts to approximately 10 percent of the value of the life insurance policy proceeds. The record shows that Rossana’s lawyer, who also acts as counsel to Magnotta Winery, was aware that the company-sponsored life insurance policy death benefit was $400,000. Melissa’s application also stated the date of death value of Joseph’s assets to be $400,000.
[41] Rule 75 is not intended to be used by creditors to secure recovery of assets within an estate: Weidenfield, at para. 19. Granting creditors, who have a variety of means to enforce their rights against the estate of a deceased person, standing pursuant to Rule 75 introduces unnecessary complexity into estate procedures: Belz v. Mernick Estate, [2000] O.J. No. 542, at para. 16.
[42] Unlike creditors, whose rights against an estate are personal, beneficiaries enjoy both an equitable ownership of the relevant property and a fiduciary relationship with the estate trustee: Valard Construction Ltd. v. Bird Construction Co., 2018 SCC 8, 1 S.C.R. 224, at para. 17. Accordingly, it is appropriate that beneficiaries with a financial interest in the estate would have standing to make an objection to the issuance of a Certificate of Appointment of Estate Trustee to a putative Estate Trustee. The court recognized in Weidenfeld that there may be circumstances in which a court may direct that a creditor has a financial interest in an intestate estate; however, I am not persuaded, on the facts of this case, that Rossana is such a creditor. I am satisfied that she has adequate remedies available to her to pursue her claim for reimbursement without the need to interfere with the issuance of the Certificate to Melissa, who is the sole beneficiary of the estate.
[43] Finally, I am not aware of any authority that would support Rossana’s challenge to Melissa’s appointment based on Rossana’s disapproval of the article about Joseph’s marriage that Melissa arranged to have published.
Disposition
[44] For the reasons given, an order shall issue granting a Certificate of Appointment of Estate Trustee without a Will in the Estate of Giuseppe Paolo Magnotta (also known as Joseph Magnotta) to Melissa Magnotta upon the filing of all requisite materials in accordance with the Rules. Because Melissa is the sole beneficiary of Joseph’s estate, an order shall also issue dispensing with the posting of an administration bond.
Costs
[45] The parties have submitted a costs outline or bill of costs. Rossana seeks costs of $15,000, on a partial indemnity basis, plus HST and disbursements, for the period ending in mid-December 2019 when Rossana became aware that Melissa had no intention of exhuming Joseph’s remains and she would reimburse Rossana for funeral expenses. Rossana asks that costs be payable by Melissa and Joseph’s estate, jointly and severally.
[46] Melissa seeks costs of $66,846.32 (including HST and disbursements) on a substantial indemnity basis, payable by Rossana if it is found that Rossana did not have standing to file her Notice of Objection. Alternatively, Melissa seeks costs of $35,000.00 (including HST and disbursements) on a partial indemnity basis.
[47] Based on the forgoing reasons, I have found that it was not reasonable for Rossana to file a Notice of Objection with the expectation that it would impede the issuance of the Certificate to Melissa. Accordingly, she is not entitled to any costs payable by Melissa or Joseph’s estate.
[48] I do not find this to be a case in which costs to the Applicant on a substantial indemnity basis would be appropriate. I find that Melissa needlessly contributed to the escalating legal fees by threatening her grieving mother-in-law that she would exhume Joseph’s remains and keeping that threat alive through her settlement offer of May 30, 2019 before finally withdrawing it in November 2019 shortly before cross-examinations. Accordingly, I fix her costs at $20,000, on a partial indemnity basis, payable by Rossana forthwith.
Dietrich J.
Released: January 24, 2020