COURT FILE NO. 328/20

DATE: 20201204

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF GIUSEPPINA ARIGANELLO, deceased

BETWEEN:

Glenn Lobb Applicant

– and –

Mary Thiele, personally and in her capacity as estate trustee for the estate of Giuseppina Ariganello, and Ryan Thiele Respondents

Andrew Felker and Rebecca Ernst, for the applicant

Sarah Shipley for the respondent Mary Thiele No one appearing for the respondent Ryan Thiele

HEARD: November 20, 2020

S.T. Bale J.

[1] This is an application for delivery of a dog, pursuant to the will of Giuseppina Ariganello.

Background facts

[2] In her will dated July 28, 2019, the deceased appointed Mary Thiele as her estate trustee, and provided the following instructions concerning her dogs:

2. Specific Instruction for Duke and Niko

I request my Trustees to contact Glenn Lobb to ask if he is willing to be the guardian of my dogs, Duke and Niko. or either of them and if he is so willing to care for one or both, to deliver Duke and/or Niko to him along with all bedding, toys, supplies, etc. In the event that he is not able to care for Duke and/or Niko, I request my Trustees to make suitable alternate arrangements for their care and residence.

3. Legacy

To pay to the individual that assumes care and residence of Duke the sum of One Hundred and Fifty Thousand Dollars ($150,000.00) to be used for Duke's care, medical expenses, food, grooming, etc. Upon Duke's death, any funds remaining are the sole property of such individual that cared for Duke. It is my wish and desire that he be well taken care of for the rest of his life.

4. Legacy

To pay to the individual that assumes care and residence of Niko the sum of One Hundred and Fifty Thousand Dollars ($150,000.00) to be used for Niko's care, medical expenses, food, grooming, etc. Upon Niko's death, any funds remaining are the sole property of such individual that cared for Niko. It is my wish and desire that he be well taken care of for the rest of his life.

[3] By a codicil dated August 2, 2019, the deceased reduced the amounts to be given for the care and residence of the dogs to $100,000 each.

[4] The deceased died on August 3, 2019.

[5] On August 21, 2019, Mary’s lawyer, Brian McMurter, wrote to Glenn enclosing a redacted copy of the will. The only unredacted parts of the will were the appointment of the estate trustee and the “Specific Instruction for Duke and Niko”. The letter contained no reference to the money to be given for the care of the dogs. Mr. McMurter asked to be advised within seven days of whether Glenn would be “taking guardianship of one or both of the dogs”, failing which the estate trustee would make alternate arrangements.

[6] Following a fight between Duke and Niko on August 22, 2019, Mary asked her son Ryan Thiele to look after Niko, at his home, while waiting to hear from Glen as to whether he would be taking one or both dogs.

[7] Glenn says that he telephoned Mr. McMurter’s office on August 22, 2019 and advised that he wished to care for both. However, in her affidavit, Karen Grant of his office deposes that during their conversation, Glenn said that he would be taking Duke, but needed to talk to his wife about Niko. Ms. Grant expected Glenn to call her back the following day with his decision; however, he did not call her back then or at all.

[8] On August 28, 2019, Glenn sent the following text message to Mary:

Hi Mary it's Glenn how are you doing? We just got back from being out of town. I will be taking both dogs. Mike is going to come by and pick up Duke tomorrow and bring him to me. I want to have Duke alone for one night without Niko but the next day he is go

ing to pick up Niko and deliver him here also ok?

The “Mike” referred to was Bishnu “Mike” Persaud, a former partner of the deceased.

[9] On August 29, 2019, Glenn and Mary spoke by phone to arrange his attendance to pick Duke up from the deceased’s home. According to Mary, during the call, Glenn told her that after speaking with his wife Roberta, he had decided not to take Niko. As soon as she got off the phone, Mary emailed Karen Grant at McMurter’s office: “OMG I just hung up from Glenn, he is NOT taking Niko!!!!!”

[10] Glenn denies having made that statement. He says that he asked Mary how Niko was and when he could pick him up, and that Mary’s response was that Niko’s vet had said the two dogs should not live together, and that he would not be getting Niko, after all. The dogs had fought, and Nico had been injured and required veterinary treatment.

[11] Later the same day, Glenn attended at the deceased’s home to pick Duke up. He says that while he was there, Mary told him that he would not be getting Niko. He says that he was not given a reason why. Mary says that when Glenn attended to pick Duke up, he reiterated that he would not be taking Niko, because Roberta was terrified of him. She says that Roberta was with Glenn at the time.

[12] Mary says that after Glenn informed her of his decision, her son offered to keep Niko and she agreed. This relieved her of the task of finding alternate arrangements for him.

[13] On September 5, 2019, the following text messages were exchanged between Glenn and Mary. Because I have found the exchange to be pivotal in determining the outcome of the application, I have reproduced it here, in full:

(Glenn): Hello Mary has Mike got Niko yet? As per our discussion I think it would be best that he gets him very soon or I can take him okay.

(Mary): Hi Glenn,

Oh my goodness, you really are type A personality lol I’m thinking if its not that, then it’s dementia😊

I was so relieved for Roberta when you made that decision not to take Niko. I know she's so terrified of him.

I really felt that I couldn't make or help you with that decision.

You were so sure when you picked up Duke that it was not in either dogs best interest to be together. I know you're old Glenn, but that conversation wasn't that long ago 😊

Believe me Niko will be fine, he's safer alone.

Mike keeps in touch and also stops in a couple of times a week. We happened to be at Jos’ grave at the same time on her one month day anniversary ❤

I have to call Mike to give him an update today. The meds have given Niko diarrhea, so I guess he’ll take him when that’s cleared up.

You know that electric collar thingy we found?

I think I found the part that goes with it and also another leash.

I'm opening up the house on Wednesday to Josie's work friends, if you and Roberta are free stop by. I told them any time after 2:00

Ciao for now,

Mary

(Glenn): I think Mary the problem with all this is I have been lied to. And in the will there was a lot more that I should have been told about taking those dogs correct? As you know it's States I have authority over those dogs and until I start finding out the truth Niko will be coming with me.

(Mary): Oh my God what the hell is going on and who the hell lied to you?

(Glenn): You still haven't answered my question to my last text. You had numerous times to reveal to me the full extent of taking those dogs and what came with it? Why is this such a secret? As an executor you are supposed to inform everyone that is involved in the will the truth about everything. But you stated to me that you don't have the will. Really??? Who has dementia now?

(Mary)

I am sorry that you are so suspicious of what's in Josie's will. This is not what Josie would have wanted. I am extremely hurt and baffled by your words.

I have never been an executor before so I am following the strict advice of the lawyer.

Brian said I must do what is in the best interest of the dogs.

Clearly putting Niko back with Duke is a recipe for death, even the vet who treated Niko attested to that.

My God Glenn this is about Josie's wishes, you made that educated decision not to take Niko, a decision that you know as well as I was the only safe and logical decision to make. Now you want him because you are suspicious of the will. How much care do you have for Niko if it's all about the will?

Glenn this is about the well being of those dogs.

It's about what's best for them.

Does your suspicions about the will suddenly make you or Roberta want Niko? Does the will take precedence over Roberta's terror of Niko?

My God Glenn I thought we were on the same page.

You said above that I haven't answered your question.

Now as per my conversation with Brian this morning, I have to refer you to get in touch with him ... Brian McMurter, or get your lawyer to contact Brian.

Glenn I was speaking jokingly about you being Type A and having dementia because you so clearly said you didn't want Niko when you picked up Duke.

Your comment back to me about who has dementia now, was not in jest, it was hurtful.

I sure haven't known you and Roberta as long as Josie did, but she always spoke about you guys over the years, I felt I knew you.

Through the horrific last days of Jos' life, you, Roberta and I, I thought had become good friends. You and Roberta were so very supportive and helpful and I sincerely do thank you for that.

I'm genuinely sorry to now, it seems, have lost such a meaningful tie to Jos.

I am truly heartbroken that it has come to this.

(Glenn)

Look I 'm going to be very straightforward with you because I don't think you seem to be getting this. Oh and by the way Josie and I were very very good friends and the way that a lot of this is going down she definitely wouldn't want any part of this. But there are things that have been happening that I've seen and heard are not right. Mike told me you have a will and it is in the house. You outright lied to me and told me you didn't have one correct? No I don't like to be lied to. Second of all Mike has told me about money being involved by taking those dogs correct? That's right that should have been mentioned to me numerous times . Not sure what you're up to but knowing your son has the dog makes me question what this is all about. I definitely didn't want it to get this far but I think there is a hidden agenda behind all of this that's the part that I don't like. Not sure why your son has the dog when he doesn't have a job. That dog should be with Mike who can properly look after it am I right? Let's both do the right thing give Mike the dog and I can be done with this. Mike has said many things to me about this whole Fiasco that upsets me. He has seen more than what I have and it's very disturbing knowing that this is going on behind our backs. Because if everything he says is true and that's what I 'm going on I'm very disgusted by everything.

Sent from my iPhone

[14] On September 27, 2019, Mary’s lawyer wrote to Glenn enclosing notice of an application for a certificate of appointment of estate trustee with a will. The attached copy of the deceased’s will was again redacted, but this time the provisions relating to the money to be paid for the care and residence of Duke were included. A similarly redacted copy of the codicil was also included. Although the provisions relating to the money to be paid for the care and residence of Niko were not included, putting two and two together, it was evident that Mary’s son would be caring for Niko and receiving the money to be paid for his care. Glenn says that this was the first notice he had of the money he was to receive, and the first he knew that Mary’s son had taken Niko.

[15] Following the exchange of text messages on September 5, 2019, Mary heard nothing further from Glenn until December 5, 2019 when his counsel wrote to Mr. McMurter as follows:

Mr. Lobb has some concerns about the circumstances surrounding the First Codicil dated August 2nd, 2019. As such, he is considering whether he wishes to commence a Court Application to challenge its validity. In doing so, it would be beneficial to obtain a full, unredacted copy of Ms. Ariganello's Will and Codicil. May you please provide a copy of both to our office?

It would appear from the letter that Glenn’s concern with the codicil was the reduction of Duke’s money from $150,000 to $100,000. No mention of Niko was made in the letter. As requested, Mr. McMurter provided Glenn’s counsel with a full and unredacted copy of the will.

Analysis

[16] At the hearing, I asked counsel whether they were requesting that I finally dispose of the application, based upon the record then before me, and both said that they were. In order to do so, it is necessary for me to weigh the evidence and evaluate the credibility of the deponents of the affidavits filed, including Glenn, Mary, Karen Grant and Mike Persaud.

[17] I start with the text messages of September 5, 2019, and in particular, the following:

(Glenn): Hello Mary has Mike got Niko yet? As per our discussion I think it would be best that he gets him very soon or I can take him okay.

(Mary): Mike keeps in touch and also stops in a couple of times a week. We happened to be at Jos’ grave at the same time on her one month day anniversary.

I have to call Mike to give him an update today. The meds have given Niko diarrhea, so I guess he’ll take him when that’s cleared up.

(Glenn): I think Mary the problem with all this is I have been lied to. And in the will there was a lot more that I should have been told about taking those dogs correct? As you know it's States I have authority over those dogs and until I start finding out the truth Niko will be coming with me.

(Glenn): Mike has told me about money being involved by taking those dogs correct? That's right that should have been mentioned to me numerous times. Not sure what you're up to but knowing your son has the dog makes me question what this is all about. … That dog should be with Mike who can properly look after it am I right? Let's both do the right thing give Mike the dog and I can be done with this.

[18] When taken at face value, it appears clear from Glenn’s words that his plan was that Mike would take care of Niko. However, on this application, he denies that.

[19] In the affidavit filed with the application, Glenn disclosed a part of the September 5, 2019 exchange of texts, but did not disclose the text in which he says: “That dog should be with Mike who can properly look after it am I right? Let's both do the right thing give Mike the dog and I can be done with this.” In a reply affidavit, after Mary had reproduced this text in her affidavit, Glenn said that he had been upset when he sent the text and that it wasn’t his intention that Mike would keep Niko. He said: “I simply told Ms. Thiele to give Niko to Mike so that Mike could, in turn, deliver Niko to me. It was evident that Ms. Thiele had already decided that I should not have Niko, and so I tried to coordinate an alternative route to obtaining him.” Also in a reply affidavit, Mike says that it was never their intention that he would take the dog – that he was just going to pick the dog up for Glenn. For the reasons that follow, I do not accept Glenn’s explanation.

[20] First, following the sending of this text, Glenn did not communicate with Mary for more than three months, and even then, Niko was not mentioned in the letter from his counsel. One would have expected that, if the text were a ruse, “an alternative route to obtaining [Niko]”, he would have followed up much sooner than he did.

[21] Second, Mary was clear in her texts that she understood Roberta to fear Niko. Nowhere in his evidence has Glenn denied that fear. Karen Grant is the closest that we get to an independent witness. She says that Glenn told her that he had to discuss Niko with Roberta, that he said he would speak to her about Niko that evening, and that he never got back to her. And finally, although it was clear following the filing of the responding motion record that Mary believed his wife’s fear to be a factor, Glenn did not tender Roberta’s evidence to the court.

[22] Third, following her conversation with Glenn on August 29, 2019, Mary immediately emailed Karen Grant at McMurter’s office to advise that he had told her that he would not be taking Niko. While it is true as Glenn’s counsel submits that she could have misconstrued what Glenn had said, the question was black and white, and I find it to be more likely that she correctly understood what she was told.

[23] In the result, I conclude that Glenn did not intend to be the guardian of and care for Niko, in accordance with the provisions of the will, and that he communicated that fact to Mary.

[24] In any event, even if we accept that Glenn intentionally misled Mary when he said, “That dog should be with Mike who can properly look after it am I right? Let's both do the right thing give Mike the dog”, Mary was entitled to reply upon the plain meaning of his words, particularly in light of the absence of any further communication from him for more than three months.

Disposition

[25] For the reasons given, the application is dismissed.

“S.T. Bale J.”

Released: December 4, 2020

REASONS FOR JUDGMENT

S.T. Bale J.

Released: December 4, 2020