COURT FILE NO.: FC-20-309
DATE: 2022/10/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JOAN CHARTRAND, Applicant
and
BENJAMIN EBOKEM, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Joan Chartrand, self-represented
Allison Lendor, counsel for the Respondent
HEARD: October 20, 2022
ENDORSEMENT
[1] This is a motion in which the Respondent, Mr. Ebokem, seeks an order that the Sun Life Insurance Company pay into the Superior Court of Justice the proceeds of a life insurance policy owned by his deceased partner, Miranda Tabi, for the benefit of the parties’ children, to be administered by the Office of the Public Trustee and Guardian.
The issue of Mr. Bluteau’s continued involvement in this matter
[2] This is the third appearance on this motion before me. At the first appearance, on February 3, 2022, the motion had to be adjourned because Mr. Ebokem’s materials had been short-served, and the Sun Life Insurance Company (“Sun Life”) had not been served with the parties’ materials.
[3] When the motion returned before me on July 22, 2022, Mr. Ebokem sought to have Mr. Bluteau removed as solicitor of record for the Applicant, Ms. Chartrand. For reasons set out in my decision released on July 25, 2022 (2022 ONSC 4313), Mr. Bluteau was removed as solicitor of record for Ms. Chartrand. I concluded that Mr. Bluteau was clearly in a conflict of interest which precluded him from representing Ms. Chartrand in this matter. I also found that the conduct of both Ms. Chartrand and Mr. Bluteau was entirely unreasonable, and I ordered costs against Ms. Chartrand.
[4] In the context of today’s motion, I was informed of the following by Mr. Ebokem’s counsel:
Mr. Bluteau has served the Respondent's counsel (Ms. Lendor) with a Notice of Change in Representation indicating that he is getting back on the record, despite my July 25, 2022 removing him as solicitor of record for Ms. Chartrand;
Despite my order removing him as solicitor of record for Ms. Chartrand, Mr. Bluteau has continued to actively represent her in this matter. All the emails received by Ms. Lendor are from Mr. Bluteau and he is clearly the one preparing and serving all court documents on behalf of Ms. Chartrand;
Mr. Bluteau reported Ms. Lendor to the Law Society (I am advised that the file was closed on intake);
On October 19, he issued a Statement of Claim naming Mr. Ebokem and Ms. Lendor as defendants, as well as eleven other defendants (the nature of the claim is unknown to me);
Mr. Bluteau has sent incessant emails to Ms. Lendor regarding this court file and other matters unrelated to this court file.
[5] Based on the above, Mr. Ebokem today seeks an order prohibiting Mr. Bluteau from contacting him, his counsel and any of his representatives regarding this Family Court file.
[6] Mr. Bluteau appeared before me today, purporting to act as Ms. Chartrand’s counsel. He also filed extensive documents in which he makes very serious allegations about Mr. Ebokem and Ms. Lendor. In a confirmation form dated October 16, 2022, he alleges that Ms. Lendor commissioned affidavits knowing that they were “null and void” which was a “willful” attempt on her part to “obstruct, pervert or defeat the course of justice”.
[7] In a Confirmation Form dated October 14, 2022, and signed by her, Ms. Chartrand states:
If Mr. Ebokem contests the right of Mr. Bluteau to represent me at the hearing, an order confirming that Mr. Bluteau is a party affected by the motion within the meaning of Rule 7(2) of the Family Law Rules and common law shall be made by the Court.
There is no order preventing Mr. Bluteau to represent me at this hearing, which is not a family matter but a trust matter governed by the Rules of Civil Procedure. Such order cannot be made pre-emptively, particularly when the Motion is made by a man who is a thief and a multiple perjurer and a lawyer who has aided and abetted Mr. Ebokem in his frauds and has committed perjury herself.
[8] In a Confirmation Form dated October 18, 2022, and signed by Mr. Bluteau, he indicates:
Contrary to what I wrote in the previous updated Confirmation of Motion, Mrs. Justice Audet did say that I should no longer represent Mrs. Chartrand as a lawyer. This was not what I understood from what actually happened at the hearing.
Mrs. Justice Audet had not been informed that the Motion to get Mr. Bluteau off the record was not supported by any valid affidavit. The two affidavits which were submitted to her by Mrs. Lendor, who knew that they were null and void, were null and void.
Her decision was obtained by fraud and should, therefore, be set aside by the Court.
[9] Mr. Bluteau and Ms. Chartrand’s main issue of contention appear to be that when Mr. Ebokem sworn the two affidavits filed to support his motion in July 2022, he represented that he lived in Ottawa whereby Mr. Bluteau and Ms Chartrand assert that he lives in Gatineau, Quebec. In Mr. Bluteau’s view, this makes his previous affidavits “null and void”, and invalidates my July 25, 2022 decision.
[10] In a Notice of Withdrawal dated October 15, 2022 and signed by Mr. Bluteau (not Ms. Chartrand), he purported to withdraw Ms. Chartrand’ Application in this matter, based on his assertion that Mr. Ebokem now lives in Gatineau with the children and therefore this matter should be adjudicated before the Quebec Court. While Ms. Chartrand was admittedly aware of Mr. Bluteau’s filing of this Notice of Withdrawal on her behalf, it became obvious during my discussion with her that she does not understand the nature and consequences of this document. I declare that the Notice of Withdrawal filed by Mr. Bluteau on behalf of Ms. Chartrand is null and void as it was not signed by her but rather by someone who did not have the authority to represent her in this matter.
[11] Ms. Chartrand did not bring a motion to have my July 25, 2022 decision set aside, nor did she appeal that order.
[12] At the outset of the motion hearing, I advised Mr. Bluteau that he was not permitted to represent Ms. Chartrand in this matter, that while I was prepared to allow him to remain in the courtroom so long as he sat in the back and remained silent, I would not allow him to speak on behalf of Ms. Chartrand. This caused Ms. Chartrand to seek an adjournment of today’s motion to allow her to secure new counsel. I denied Ms. Chartrand’s adjournment request on the basis that this motion has been before me since February 2022, Ms. Chartrand has known since July 25, 2022 that Mr. Bluteau could not represent her in this matter, and that she had been given more than ample time to secure new counsel.
[13] In light of Mr. Bluteau’s very disturbing behavior, despite my clear order of July 25, 2022, I also make the following order:
1- Mr. Andre Bluteau is hereby prohibited from contacting the Respondent, Mr. Benjamin Ebokem, or his counsel of record, Ms. Allison Lendor, with regards to this Family Court file.
2- Any breach by Mr. Bluteau of this Order may be brought to my attention by way of contempt motion on seven days’ notice.
At the request of Mr. Ebokem and his counsel, a transcript of what transpired in this hearing, up to the point where I gave Mr. Bluteau permission to sit quietly in the back of the courtroom, shall be provided to both parties.
THE MOTION
Background Facts
[14] Miranda Tabi and Mr. Ebokem lived together from September 20, 2010 until Ms. Tabi’s unfortunate death from cancer on March 14, 2019. The parties raised three children together, namely, J.T., born in September 2005, M.E., born in August 2012, and G.E., born in August 2014.
[15] Mr. Ebokem is the biological father of M.E. and G.E. and the stepfather of J.T. The Respondent has been J.T.’s father figure since he was five years old and he considers him his son. Mr. Ebokem became J.T.’s primary caregiver when Ms. Tabi died, and Shelston J. granted him temporary custody of J.T. on May 30, 2019.
[16] Ms. Tabi passed away without leaving a will. Mr. Ebokem has been appointed her estate administrator, and he is working to finalize the administration of her estate. Ms. Chartrand is Ms. Tabi’s great aunt. Prior to her death, Ms. Tabi named Ms. Chartrand as the trustee of her life insurance policy with the Sun Life Insurance Company (“Sun Life”) for the benefit of the children. The value of the policy proceeds is $117,500.00.
[17] Although Ms. Chartrand has apparently received cheques from Sun Life for each one of the children (totalling $117,500), she was unable to cash them (Mr. Ebokem states that this is because she required their birth certificates, SIN numbers and passports to have them deposited into an account for them, which she did not have). Mr. Ebokem believes that the cheques have now expired and that Sun Life will not issue new cheques to Ms. Chartrand, likely due to the ongoing litigation between the parties. Ms. Chartrand states that Sun Life has agreed to keep the monies in their possession until such time as each child reaches 18 years of age.
[18] Sun Life has been served with this motion and filed a confirmation indicating that it does not oppose the relief sought in this motion.
[19] Mr. Ebokem is the children's primary caregiver and all three children have remained in his sole care since Ms. Tabi’s passing. My understanding is that Ms. Chartrand does not currently have contact with the children, although she alleges that this is because of Mr. Ebokem’s refusal to allow such contact. No motion has yet been filed by Ms. Chartrand to seek a contact order.
[20] Both parties make very serious allegations against each other, accusing each other of fraudulent conduct, theft, dishonesty, perjury and more. Both allege that there are significant concerns regarding the other’s actions and intentions when it comes to their dealings of monies which belonged to Ms. Tabi or that have been left by her for the benefit of her children.
[21] It is important to note that Ms. Kristen Cockburn, a lawyer with the Office of the Children's Lawyer, through the Office of the Public Guardian and Trustee (“the PGT”), has been involved in this matter since this application was commenced in relation to J.T. Ms. Cockburn has remained involved in the file and counsel for Mr. Ebokem indicates that she agrees that the SunLife insurance proceeds should be paid into court.
ANALYSIS
[22] Sections 5 and 37 of the Trustee Act, RSO 1990 c. T23, specifically allow the court to order that a trustee or personal representative be removed upon any ground upon which the court may remove any other trustee, and appoint a new trustee in substitution. The relevant parts of these sections read as follows:
5(1) The Superior Court of Justice may make an order for the appointment of a new trustee . . . in substitution for . . . any existing trustee.
37 (1) The Superior Court of Justice may remove a personal representative upon any ground upon which the court may remove any other trustee, and may appoint some other proper person or persons to act in the place of the executor or administrator so removed.
[23] Justice Quinn in Radford v. Wilkins, 2008 CanLII 45548 (ONSC), summarized the relevant factors to be considered when an application is brought to remove a trustee pursuant to the Trustee Act. Although Quinn J. was dealing with a request to remove an estate trustee in that case, his analysis equally applies in the context of requests to remove any trustee. He said:
jurisdiction to remove
[97] The Superior Court of Justice has inherent jurisdiction to remove trustees: see St. Joseph’s Health Centre v. Dzwiekowski, 2007 CanLII 51347 (ON SC), [2007] O.J. No. 4641 (S.C.J.) at para. 25.
[98] In addition, the Superior Court of Justice may remove a personal representative “and may appoint some other proper person or persons to act in the place of the executor . . . so removed”: see s. 37(1) of the Trustee Act.
by whom to be brought
[99] An application to remove an executor may be made by “any person interested in the estate of the deceased”: see s. 37(3) of the Trustee Act.
choice of estate trustee not to be lightly interfered with
[100] “The Court should not lightly interfere with the discretion exercised by a person in choosing the person or persons to act as his executors and trustees”: see Re Weil, 1961 CanLII 157 (ON CA), [1961] O.R. 888 at 889 (C.A.).[14]
clear necessity for removal must be established
[101] Interfering “with the discretion and choice of a person in preparing his last will and testament must be not only well justified but . . . must amount to a case of clear necessity”: see Re Weil, ibid.
removal must be the only course to follow
[102] Removal of an estate trustee should only occur “on the clearest of evidence that there is no other course to follow”: see Crawford v. Jardine, [1997] O.J. No. 5041 (Ont. Ct. (Gen. Div.)) at para. 18, citing Re Tempest (1866), L.R. 1 Ch. 485 and Re Owen (1989), 33 E.T.R. 213 at 215 (B.C.S.C.).
removal to be guided by welfare of beneficiaries
[103] In deciding whether to remove an estate trustee, “the court’s main guide should be the welfare of the beneficiaries”: see Crawford v. Jardine, ibid, citing Letterstedt v. Broers (1884), 9 App. Cas. 371 at 385-387 and Re Anderson (1928), 35 O.W.N. 7 at 8 (H.C.J.).
non-removal must likely prevent proper execution of trust
[104] “It is not every mistake or neglect of duty on the part of the trustees which will lead to their removal. It must be shown by the applicant that the non-removal of the trustee will likely prevent the trust from being properly executed”: see Crawford v. Jardine, ibid.
[105] “[I]t is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts of Equity to [remove trustees]. But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty or a want of proper capacity to execute the duties, or a want of reasonable fidelity”: see Letterstedt v. Broers, ibid, quoting s. 1289 of Story’s Equity Jurisprudence.
removal not intended to punish past misconduct
[106] “The authorities are, I believe, consistent in placing the emphasis on the future administration of the estate, and the risks to which it will be exposed if the trustee remains in office. The question is whether the trust estate is likely to be administered properly in accordance with the fiduciary duties of the trustee and with due regard to the interests and welfare of the beneficiaries. The sanction of removal is intended not to punish trustees for past misconduct but rather to protect the assets of the trust and the interests of the beneficiaries”: see St. Joseph’s Health Centre v. Dzwiekowski, supra, at para. 28.
[107] But, “past misconduct that is likely to continue will often be sufficient to justify removal . . .”: see St. Joseph’s Health Centre v. Dzwiekowski, supra, at para. 29.
delay by estate trustee
[108] Where delay is the complaint, the question becomes whether the delay has compromised the estate in any manner and whether it will be repeated.
[109] As well, have the delays been reasonably explained and, if so, should they be excused?
friction alone not a reason for removal
[111] “. . . friction alone is not itself a reason for the removal of trustees”: see Re Joss (1973), 2 O.R. 128 (H.C.J.) at para. 8, citing Letterstedt v. Broers, ibid.
[112] “The question is whether it would be difficult for the trustee to act with impartiality, not whether, in fact, [the trustee] would or would not do so”: see Re Shaw Co. Ltd, 1922 CanLII 97 (SK QB), [1922] 68 D.L.R. 616 (Sask. K.B.), citing In re Lamb; Ex parte Board of Trade, [1894] 2 Q.B. 805 per Lord Esher, M.R.
[113] Friction between co-estate trustees is likely to warrant the removal of either or both of them because it is prone to impact the decision-making process. However, this is a more remote likelihood where the friction is between a trustee and a truculent beneficiary. Of course, in either case, the friction must be of such a nature or degree that it prevents, or is likely to prevent, the proper administration of the trust.
[24] It is not necessary for me in this motion to come to clear conclusions about the parties’ mutual allegations of fraudulent behavior, dishonesty and ill intentions. The uncontested evidence before me is that Ms. Chartrand, with the assistance of Mr. Bluteau, has initiated multiple proceedings (in both family and civil court) against Mr. Ebokem, his counsel and others, and has engaged in what I would certainly describe as obstructive behaviors.
[25] It will soon be three years since Ms. Tabi’s passing, and as a result of the incessant conflict and ongoing litigation, the children have not been accessing the funds left for them by their mother. To ensure that Mr. Ebokem does not have access to any of the funds left by Ms. Tabi for her children, Ms. Chartrand’s plan is to leave the money in the hands of Sun Life until each child reaches 18 years of age. Not only do I have no reliable evidence that Sun Life is even prepared to hold the funds for this long, according to this plan the funds will not be used or invested for the benefit of the children for many years (the youngest is only 8 years old).
[26] Mr. Ebokem does not seek to have access to these funds himself. He is asking for the funds to be deposited into Court to be administered for the benefit of the children by the PGT. Therefore, any concerns raised by Ms. Chartrand in relation to Mr. Ebokem’s potential misuse of these funds become irrelevant. The PGT will have control over these funds and will decide what the children need, when they need it and how it should be disbursed in their best interests.
[27] Given what I have seen so far in this proceeding, it is clear that Ms. Chartrand has lost focus on what is in the best interest of Ms. Tabi’s beneficiaries. Her entire focus has now shifted to the ongoing litigation between her and Mr. Ebokem, a conflict that she is fueling with the assistance of Mr. Bluteau.
[28] In my view, this is a case where the welfare of the beneficiaries requires that Ms. Chartrand be removed as Trustee under the Sun Life insurance policy, and replaced by the PGT.
ORDER
The Sun Life Insurance Company shall pay into the Superior Court of Justice, the proceeds of the life insurance policy of the deceased, Miranda Tabi, from the Pearly-Rideau Veteran's Health Centre for the benefit of the children, in the amount of $117,500.00.
These proceeds shall hereafter be administered by the Office of the Public Guardian and Trustee, for the benefit of the children.
Mr. Andre Bluteau is hereby prohibited from contacting the Respondent, Mr. Benjamin Ebokem, or his counsel of record, Ms. Allison Lendor, with regards to this Family Court file.
Any breach by Mr. Bluteau of this Order may be brought to my attention by way of contempt motion on seven days’ notice.
A transcript of the events that transpired in this motion hearing, up to the point where Mr. Bluteau was given permission to sit quietly in the back of the courtroom, shall be provided to both parties.
COSTS
[29] Mr. Ebokem is the successful party in this motion, and he is presumptively entitled to his costs. If the parties are unable to agree on the costs that should be paid to him by Ms. Chartrand, I will accept brief written submissions not exceeding four (4) pages, double-spaced, not including Bills of Costs and Offers to Settle, to be delivered within the following timelines:
Mr. Ebokem to serve and file by November 4, 2022;
Ms. Chartrand to serve and file by November 18, 2022;
Any reply by Mr. Ebokem, which shall not exceed two (2) pages, by November 25, 2022.
Madam Justice Julie Audet
Date: October 24, 2022
COURT FILE NO.: FC-20-309
DATE: 2022/10/24
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: JOAN CHARTRAND, Applicant
and
BENJAMIN EBOKEM, Respondent
BEFORE: Madam Justice Julie Audet
COUNSEL: Self-represented, for the Applicant
Allison Lendor, counsel for the Respondent
ENDORSEMENT
Madam Justice Julie Audet
Released: October 24, 2022