Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Noel Nedrick in his capacity as the Estate Trustee of the Estate of Grace Tartaglia, deceased, Plaintiff.
AND:
Andrea Allen, Marvin Talsky, Talsky Law and Nanda & Associates Lawyers Professional Corporation, Defendants.
BEFORE: C. Gilmore, J.
COUNSEL: Richard Worsfold and Reshma Kishnana, Counsel for the Plaintiff/Moving Party Osborne G. Barnwell, Counsel for the Defendant Andrea Allen Antonios T. Antoniou and Ian Sinke for the Defendants Marvin Talsky, Talsky Law and Nanda & Associates Professional Corporation
HEARD: December 22, 2021
ENDORSEMENT on motion
INTRODUCTION AND BACKGROUND FACTS
1This is the Plaintiff’s motion for leave to issue a Certificate of Pending Litigation (“CPL”) against property known as 176 Park Lawn Avenue, Toronto, Ontario (“the Property”).
2The deceased in this matter died on November 22, 2018. She was survived by her two half-siblings, the Plaintiff Noel Nedrick (“Mr. Nedrick”) and the Defendant Andrea Allen (“Ms. Allen”). The deceased was also survived by her two adult children Dante and Luciano Tartaglia (“the children” or “Dante” and “Luciano”).
3The deceased left a Will dated March 15, 2018 naming Mr. Nedrick as the Estate Trustee of her Estate. Her children were named as the equal residuary beneficiaries of her Estate. Upon her death, her sons each received $750,000 from the deceased’s life insurance policy plus various real estate owned by the deceased at the time of her death.
4Between 1995 and September 2018, the deceased held the Property in joint tenancy with her ex-husband Mario Tartaglia (“Mr. Tartaglia”). In September 2018 the deceased and Mr. Tartaglia amended their separation agreement and the deceased agreed to buy out Mr. Tartaglia’s interest for $250,000.
5The deceased required financing for the buyout and did not qualify for the financing without a guarantor. Ms. Allen was living with the deceased at the time and offered to help her with the financing.
6According to the Plaintiff, it was agreed that Ms. Allen would advance $500,000 to the deceased, being an amount equal to one-half the fair market value of the property. Half of the $500,000 was to be used to buy out Mr. Tartaglia and the other $250,000 was to be paid as a lump sum to the deceased. In exchange, the deceased was to convey a one-half interest in the Property to Ms. Allen with the remaining half to be left in the deceased’s name so that she could retain that share for her Estate and her children as beneficiaries of her Estate.
7Those facts are disputed by Ms. Allen whose position is that she only agreed to advance $250,000 to the deceased for the payout to Mr. Tartaglia and not $500,000. There is no dispute, however, that the $250,000 has not been paid.
8On November 6, 2018 the Respondent Mr. Marvin Talsky (“Mr. Talsky”) was jointly retained by Ms. Allen and the deceased. Mr. Talsky transferred title of the property from Mr. Tartaglia and the deceased to Ms. Allen and the deceased as joint tenants.
9The refinancing resulted in a charge of $780,000 being registered on the Property in favour of Home Trust Company.
10After the deceased’s death, Ms. Allen registered a survivorship application on title to the Property and is now the sole beneficial owner of the Property. The position of the Plaintiff is that Ms. Allen has obtained title to the Property without consideration, without making any financial contributions to the property and contrary to the intentions of the deceased.
11The Plaintiff commenced this action in August 2021 asserting that title to the Property is held in trust by Ms. Allen for the Estate. An order for leave to issue a CPL was also sought.
12The Plaintiff asserts that Ms. Allen and the deceased agreed to be 50/50 partners with respect to the subject Property. Ms. Allen acknowledges that she was to be co-borrower with respect to the refinancing and that she was to make a payment to the deceased in the amount of $250,000. According to the Plaintiff, Ms. Allen has never made the $250,000 payment