COURT FILE NO.: CV-20-00648513-00ES
DATE: 20220531
SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF THE ESTATE OF JOSEF SCHENGILI, deceased
RE: Jacqueline Torres, Applicant
AND:
Laura Penelope Ettinger in her capacity as estate trustee of the estate of Josef Schengili and Jennifer Schengili personally and in her capacity as estate trustee of the estate of Josef Schengili, Respondents
BEFORE: C. Gilmore, J.
COUNSEL: Gillian Fournie, Counsel for the Applicant (Responding Party)
Denise Cooney, Counsel for the Respondents (Moving Parties)
HEARD: May 16, 2022
ENDORSEMENT on motion to stay
Introduction
[1] The deceased, Josef Schengili (the “deceased”) was in a common law relationship with the Applicant, Ms. Torres (“Ms. Torres”) for 8 or 9 years. The deceased died on January 4, 2020. In September 2020, Ms. Torres brought an application for dependant’s support (the “Application”) under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”).
[2] The Estate Trustees, Laura Penelope Ettinger (“Ms. Ettinger”) and Jennifer Schengili (“Ms. Schengili” or jointly the “Estate Trustees”) bring this motion to stay the Application on the basis that Ontario does not have jurisdiction over the dispute as there is no real and substantial connection between Ontario and the Application, or alternatively, that Monaco is the most convenient forum for this litigation.
[3] The Applicant defends the motion on the grounds that the deceased’s Will stipulates that Ontario has jurisdiction over his estate matters and that Ontario is the most appropriate forum.
[4] For the reasons set out below, I find that Ontario has jurisdiction over this matter, but that Monaco is the most appropriate forum on certain conditions.
Background Facts
[5] Ms. Torres is an American citizen and a Monegasque resident who vacationed in Ontario with the deceased during their cohabitation. She has never resided in Ontario. Ms. Torres and the deceased resided in Monaco during their relationship. They also spent time at the Château Volterra in France. Ms. Torres now lives in France.
[6] The deceased came to Canada from Croatia in the 1970’s and became a Canadian citizen in 1986. He moved to Europe in 1997 and lived in Monaco for 14 years prior to his death. After he moved away from Canada, he returned in the summers to visit his daughters and spend time at a family cottage on Georgian Bay in Ontario. All of the deceased’s government documents, including his driver’s license, were issued with his Monaco address. The deceased banked in Monaco and had Monegasque telephone numbers.
[7] The deceased has four daughters, none of whom are the biological children of Ms. Torres. Both of the deceased’s adult daughters, Erika and Jennifer Schengili, reside in Toronto. The deceased has two other daughters who reside in Monaco, Kassandra aged 19 and Kalissa aged 17. Kassandra and Kalissa resided with the deceased and Ms. Torres in the deceased’s apartment in Monaco.
[8] The Respondents are the co-trustees of the deceased’s Estate. Ms. Schengili is one of the deceased’s adult daughters, and resides in Toronto. Ms. Ettinger was an advisor to the deceased during his lifetime and resides in the Bahamas.
[9] The deceased made his Will and Codicil in Monaco. Administration of the Estate has been delegated to a Monegasque legal professional. The assets of the Estate are located primarily in Monaco. No steps have been taken to administer the Estate in Ontario including making an Application for a Certificate of Appointment of Estate Trustee with a Will.
[10] The only Ontario asset of the Estate was a joint bank account which the deceased held with his daughter Erika. The funds in the account (approximately $4,800) passed to Erika by survivorship on his death. The funds in the account were held for the sole purpose of paying expenses for the Ontario cottage. The cottage was not owned by the deceased but had been transferred into a trust for his children.
[11] The deceased incorporated a CBCA company in 2018. His address is listed in Monaco. The company’s head office address is that of Erika’s home address in Toronto. The company did not carry on business in Ontario nor were any shares issued to the deceased. The company has been dissolved.
[12] The deceased’s Will was executed in June 2018 and the Codicil in November 2019. The Will is in French. The deceased died in Monaco and his Will and Codicil were registered in the Monaco courts on March 16, 2020 by a Notary as required by Monegasque law. On October 26, 2020, a Notarial Deed was received by the Notary. The Deed confirms the appointment of Ms. Ettinger and Ms. Schengili as co-executors of the Estate and grants a special Power of Attorney to Ms. Christel Pilliard (“Ms. Pilliard”) as the clerk responsible for all aspects of the administration of the Estate.
[13] Ms. Ettinger is the sole beneficiary of the Estate other than a watch which was gifted to Ms. Schengili and has never been found. Ms. Ettinger is obliged to contribute to the care and education of Kassandra and Kalissa and to decide payments from the balance of the Estate subject to approval by the deceased’s lawyer Maître Toucas (“M. Toucas”). There is no specific provision in the Will for Ms. Torres to receive any amounts from the Estate other than a provision that loans made to her and her children by the deceased are to be forgiven.
[14] Most of the deceased’s assets are located in Monaco including the contents of his apartment, his bank account, cars and a classic sailboat. He owned some assets in France consisting mostly of personal effects. There is a dispute as to whether the deceased retained an interest in his Monaco apartment or the Château but for the purposes of this motion, there is no evidence that those entities have any connection to Ontario. The Estate Trustees have provided sworn evidence of the assets of the Estate. They have deposed that there are no assets which have passed outside of the Estate which could be claimed under s. 72 of the SLRA.
[15] It is undisputed that the Will provides that the law of Ontario applies. There is no reference in the Will as to which forum should apply. The Will has not been challenged.
[16] Ms. Torres alleges in her Application that she was financially supported by the deceased by way of cheques, cash gifts, health insurance and a credit card with a limit of $10,000 Euros. No financial support was provided to Ms. Torres from any Canadian source or in Canadian dollars.
[17] Since the death of the deceased, Ms. Torres has been involved in various litigation related to her occupation of both the Monaco apartment and the Château. She currently owes more than $1M Euros in damages and costs in relation to those proceedings in France and Monaco. Ms. Torres’ appeals of the French Orders have been struck. The status of the appeal of the Monegasque Orders is not known.
[18] M. Toucas is legal counsel to the Estate Trustees and was the deceased’s legal advisor for 10 years prior to his death. M. Toucas gave the deceased advice with respect to the contents of his Will and Codicil. M. Toucas has been a lawyer for 42 years and has appeared in both French and Monegasque courts. He deposed that Ms. Torres may bring a proceeding before the Monaco Court of First Instance to seek her relief under the SLRA. In doing so, the Monaco Court would apply Ontario law to determine Ms. Torres’ rights and entitlements. M. Toucas’ ability to provide expert evidence on the issue of the application of the SLRA in Monaco is disputed by Ms. Torres.
The Law and Analysis
Issue #1 – Should the Application be Stayed because Ontario does not have jurisdiction?
[19] There is no dispute that the deceased’s Estate is governed by the law of Ontario. However, the Respondents submit that the SLRA claim should be heard by the Monaco Court. The Conflict of Law section of the SLRA does not deal with dependant support claims. As such, the common law rules will apply.
[20] The leading decision on jurisdiction simpliciter is Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572. That case set out the “real and substantial connection” test for determining which Court has jurisdiction where there is a conflict. At para. 100 of Van Breda, the Court identified that the party seeking that the Court assume jurisdiction (in this case Ms. Torres) must identify a presumptive connecting factor that links the subject matter of the litigation to the forum. The Court listed four connecting factors at para. 90, any one of which may establish a rebuttable presumption of jurisdiction. The factors are as follows:
(a) The defendant is domiciled or resident in the province;
(b) The defendant carries on business in the province;
(c) The tort was committed in the province; and
(d) A contract connected with the dispute was made in the province.
[21] While Van Breda dealt with a tort action, subsequent case law makes it clear that the connecting factors may apply to other types of disputes: see Wang v. Lin, 2013 ONCA 33, 358 D.L.R. (4th) 452.
[22] The Applicant submits that there is a real and substantial connection between Ontario and the Estate because of the Application itself. Further, while the Respondents minimize the importance of Ms. Schengili’s residence in Ontario, I agree with the Applicant that Ms. Schengili’s domicile in Ontario is one of the connecting factors in Van Breda as Ms. Schengili is both a Respondent and an Estate Trustee.
[23] The fact that the Estate is being administered in Monaco does not weaken the connection. The Estate Trustees have chosen to administer the Estate there for various reasons including the fact that the deceased lived there, the Will and most documents are in French and many of the assets are located in Monaco and France. I reject the Estate Trustees’ argument that they are not administering the Estate and that such duties are now being assumed by Ms. Pilliard. I accept Ms. Torres’ argument that the Estate Trustees have merely designated certain duties to Ms. Pilliard in relation to the day-to-day administration of the Estate. It cannot be said that the Estate Trustees have abdicated their duties to Ms. Pilliard. They continue to oversee the Estate but in accordance with the requirements of Monegasque law regarding the hiring of a Notary and the filing of the Will with the Court.
[24] While the defendants did not carry on business in Ontario, the deceased owned a joint bank account with his daughter Erika. There is about $4,800 in the account which was used to pay expenses for the Ontario cottage where the deceased and his family vacationed in the summer. Ms. Torres intends to make a claim that certain other Ontario assets should form part of the Estate. As such, she does not make a claim against any specific asset, her claim is against the Estate as a whole, and akin to a creditor.
[25] The deceased chose Ontario law. While it is true that the Will was not created in Ontario, that is of less relevance when the specific choice of Ontario law was specified in the Will. Ms. Risa Awerbuck provided an affidavit to the Monaco Court regarding the validity of the Will in Ontario. She deposed that Ontario law allows a person to choose the law that will govern their Will, that a holograph will is valid and that an executor need not obtain a Certificate of Appointment of Estate Trustee with a Will in order to administer an Estate.
[26] Finally, Ms. Torres’ claim for dependant’s relief is a claim under an Ontario domestic statute which must necessarily connect the claim to Ontario. The Respondents argue that the subject matter of the dispute is Ms. Torres’ dependency under s. 57 of the SLRA. Since there is no dispute that the parties lived in Monaco throughout their common law relationship, that dependency occurred in Monaco and should be litigated there. Assuming she is a dependant, the Court must determine if the deceased made adequate provision for her with regard to his Will and his assets. None of those assets are located in Ontario.
[27] Meeting the threshold of jurisdiction simpliciter is not a high bar. In Re Clark Estate, 2021 MBQB 23, the Court made the following comments with respect to the real and substantial connection test, at paras. 51 and 54:
Jurisdiction simpliciter is concerned with the "real and substantial connection test" between the subject matter of the litigation and the forum in which the proceeding is brought. The real and substantial connection test is not concerned with showing the strongest possible connection between the claim and the forum where jurisdiction is sought, nor does the fact that another forum may also be connected with the dispute undermine the existence of a real and substantial connection. (Muscutt v. Courcelles2002 44957 (ON CA); Forbes Energy Group Inc. v. Parsian Energy Rad Gas 2018 ONSC 5103).
A determination of the real and substantial connection test depends on the facts of each case. There only has to be a real and substantial connection between the subject matter of the action and the jurisdiction. It can be any real and substantial connection. It does not have to be the most real and substantial connection. (Henry et al. v. Henry 2010 MBOB 267 () at para. 16)
[28] In Re Clark, the Court found a real and substantial connection to Manitoba on the basis that that the contents of the deceased’s storage unit and one bank account were in Manitoba. The deceased’s mother and ex-partner also lived in Manitoba. For other reasons, the Court held that the forum conveniens in that case was the Turks & Caicos Islands.
[29] I note as well that in Soma Ray-Ellis v. Goodtrack et al., 2020 ONSC 6847, the Court, in finding jurisdiction simpliciter, relied in part on the fact that the Estate Trustee resided in Ontario.
[30] In summary, I find there are sufficient connecting factors in Ontario to find jurisdiction simpliciter, including the residence of Ms. Schengili, the joint bank account and the Will itself which prescribes Ontario law. However, as will be set out below, the more convenient forum for this matter is Monaco.
Should the Action be Stayed on the Basis that Ontario is not the most Convenient Forum?
[31] The doctrine of forum non conveniens allows the Court to decline jurisdiction where there is clearly a more appropriate forum. Van Breda sets out a two-step analysis to determine forum at para. 103 as follows:
If a defendant raises an issue of forum non conveniens, the burden is on him or her to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. The defendant must identify another forum that has an appropriate connection under the conflicts rules and that should be allowed to dispose of the action. The defendant must show, using the same analytical approach the court followed to establish the existence of a real and substantial connection with the local forum, what connections this alternative forum has with the subject matter of the litigation. Finally, the party asking for a stay on the basis of forum non conveniens must demonstrate why the proposed alternative forum should be preferred and considered to be more appropriate.
[32] The moving parties must establish that there is another more convenient forum. In this case, Monaco is proposed. The factors which lend themselves to choosing Monaco are as follows:
a. Ms. Torres is a Monegasque resident.
b. The relationship which gives rise to her claim took place in Monaco.
c. The deceased’s other two children lived with the deceased and Ms. Torres in Monaco and continue to go to school there. Ms. Ettinger is obliged to provide support to the children from the Estate.
d. The Will was created in Monaco.
e. The deceased lived in Monaco at the time of his death.
f. The assets of the Estate are located in Monaco and France but mostly in Monaco.
g. All banking and financial records and other relevant documentary evidence is located either in Monaco or France.
h. The Estate is being administered in Monaco.
i. The courts in Monaco will allow a full and fair hearing of the dispute.
j. The only witnesses in this matter who do not live in either Monaco or France are the Executors. All of the witnesses speak French other than Ms. Ettinger.
[33] Ms. Torres disputes that she would receive a fair hearing of her case in Monaco. Specifically, she adverts to the fact that Monaco is subject to a civil law system. Significant discretion is given to the Court in interpreting and applying the facts to the relevant factors in s. 62 of the SLRA. In Ontario, a Court would rely on the common law and precedent to determine entitlement and quantum of support. Ms. Torres questions how that could work in a codified Napoleonic legal system. In addition, Ms. Torres disputes the evidence of M. Toucas and takes the position that Monaco would not apply Ontario law and if it did so, the discretion of the Court would be limited.
[34] I do not share Ms. Torres’ hesitation about the Monaco Court. M. Toucas, the deceased’s long time legal advisor and counsel for the Executors, has been a lawyer in Paris for 42 years and frequently appears in Monegasque Courts. He is therefore familiar with Monegasque law and procedure. While he signed an Acknowledgement of Expert’s Duty, at his cross-examination he stated that he was not an expert. It is also true that he could be considered adverse in interest to Ms. Torres given that he represented the deceased, currently represents the Estate Trustees and represented Château Volterra in its litigation against Ms. Torres. However, this is the only evidence available on this important point and I agree with the Executors that M. Toucas’ evidence was given in a straightforward manner, and he corrected any errors in his affidavit during his examination.
[35] In his affidavit in support of the Executor’s motion, he states: “Ms. Torres may bring a proceeding before the Monaco Court of First Instance seeking an order for dependant’s relief under Ontario’s Succession Law Reform Act from Ms. Schengili’s Estate. In considering and determining that application, the Monaco Court of First Instance would apply the law of Ontario to determine Ms. Torres’ legal rights and entitlement with respect to the Estate.”
[36] In his reply affidavit, M. Toucas confirms that the Monaco Court “would” apply the law of Ontario to determine Ms. Torres’ legal rights and entitlement. While M. Toucas deposed that he had only been involved in one case in which foreign law was applied (in that case U.S. law), this does not detract from his overall knowledge of Monegasque Courts. I note that Ms. Torres did not put forward any of her own expert evidence to dispute M. Toucas’ statements. I do not see any reason not to accept M. Toucas’ evidence given his experience and qualifications as a fact witness.
[37] Other factors which are relevant in determining the convenience of Monaco include the fact that Ms. Torres has only recently commenced this Application. She has incurred minimal expense in her Ontario SLRA proceeding.
[38] If the matter proceeds in Ontario, expert evidence may be required regarding the administration of the Estate in Monaco. If the matter proceeds in Monaco, there will likely be a cost to retain experts given that Ontario law applies to Ms. Torres’ claim, however, I agree with the Executors that this cost will be minimal compared to the cost of providing expert evidence of the Estate administration in Monaco and the translation of all relevant documents into English if the matter were to proceed in Ontario.
[39] While I agree that the location of witnesses is less of a factor when evidence can be given virtually, the majority of witnesses other than the Executors live in either France or Monaco.
[40] In Li v. Li, 2021 ONCA 669, the Court of Appeal considered the issue of forum non conveniens in a case where the Appellant sought to have China as the more appropriate forum to determine outstanding issues related to the breakdown of the parties’ marriage. In that case, the motion judge found that Ontario had jurisdiction and was the most convenient forum. The Court of Appeal did not disagree on the jurisdiction issue but found that China was the most convenient forum. The Court adverted to Van Breda and the requirement that the parties be treated fairly and the process for resolving their litigation efficient: at para. 42. The Court also emphasized the importance of the fact that the agreements in question were all in Chinese and located in China (similar to the Will and Estate administration in this case.)
[41] The Court in Li also reiterated that the location of property is a factor that carries considerable weight in the jurisdiction enquiry but should not overwhelm the forum non conveniens analysis: at para. 52. The only property in Ontario is the joint bank account. All other relevant property which will be used to determine Ms. Torres’ potential entitlement to support is in Monaco.
[42] Ms. Torres was concerned that proceeding in Monaco would deprive her of the specialized Estates List in Toronto and mandatory mediation. There was no evidence that such procedures or their equivalent are not available in Monaco.
[43] I find that the majority of witnesses, documents, property and evidence are located in Monaco. Further, the factual landscape of this matter dictates that Monaco is the more convenient forum. The Estate is being administered there. The evidence related to the parties’ relationship and Ms. Torres’ dependency stems from the parties’ time together in Monaco and France.
[44] In summary, I find that Monaco is the more convenient forum for this matter. While there are some obstacles such as the uncertainty of whether Monaco will apply a foreign domestic statute which involves judicial discretion, that can be dealt with by fashioning the appropriate Order in the event that Monaco refuses to apply the SLRA.
Orders and Costs
[45] Given the above, I make the following Orders:
a. The Respondents’ motion is allowed, and the Ontario Application shall be stayed subject to the provisions herein;
b. In the event the Court in Monaco refuses to acknowledge or apply the SLRA, the Applicant may apply to lift the stay in Ontario.
Costs
c. The parties each filed a Bill of Costs. They agree that this is not a case which would entitle the successful party to substantial indemnity costs. The Moving Parties’ partial indemnity costs were $40,567.04. Ms. Torres’ partial indemnity costs were $22,849.56.
d. As the costs outlines were uploaded to Caselines either during or shortly after the hearing, neither party was able to adequately comment on the costs sought by their opponent. However, Ms. Fournie was concerned that the Moving Parties’ costs were almost twice the costs of her client, and she requested an opportunity to comment on those costs if the Court permitted her to do so.
e. I do not view written submissions as necessary on a motion of this length. Ms. Torres should pay the costs she would have expected to pay given the costs of her counsel plus some additional amounts as set out below.
f. It is usually the case that the Moving Parties incur more costs than the Responding Party because of reply material. In this case, there also were cross-examinations and the additional evidence of M. Toucas. Finally, as this motion was brought by the Estate Trustees, there is the principal of trustee indemnification to which the Court must advert.
g. All of the above factors must be balanced with the uncertainty of whether the Monaco Court would apply the SLRA. As such, Ms. Torres will therefore pay costs of $30,000 to the Estate Trustees.
GILMORE J.
Date: May 31, 2022