The Church of St. Mina, 2022 ONSC 6750
COURT FILE NO.: CV-22-78923
DATE: 2022-11-30
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF Alphons Guirgues, deceased
B E T W E E N:
LIPING LIU
Applicant
Matthew J. Marantz, counsel for the Applicant
- and -
COPTIC ORTHODOX PARTRIARCHATE OF ALEXANDRIA, THE CHURCH OF ST. MINA
Alia Khan, counsel for the Respondent
Respondent
HEARD: November 21 and 22, 2022 at Hamilton
THE HONOURABLE JUSTICE M. BORDIN
REASONS FOR DECISION ON MOTIONS
Introduction
[1] Alphons Guirgues (the “Deceased”) died on August 21, 2021. He is survived by the Applicant, Liping Liu, the Deceased’s common law spouse (“Ms. Liu”), a brother and sister, who apparently reside in Egypt, and a niece who resides in Ontario (the “Intestate Beneficiaries”).
[2] On August 5, 2021, the Deceased is purported to have executed a handwritten will (“the Will”), leaving a condominium located at 504-77 Leland Street, Hamilton Ontario (the “Condo”) to the Respondent, Coptic Orthodox Patriarchate of Alexandria, the Church of St. Mina (the “Church”).
[3] The Will was witnessed by Aziz Abdelmessih (“Mr. Abdelmessih”) and Father Metias Said Ibrahim (“Father Ibrahim”). The Church appears to be incorporated and has a board of directors (the “Board”). Father Ibrahim states that he has no personal interest in the assets of the Church but is an employee of the Church and a member of the Board. There is no evidence before the court as to the membership of the Church corporation, or what happens to the Church assets on dissolution.
[4] Mr. Abdelmessih is a member of the Church, but neither an employee nor a member of the Board.
[5] On October 12, 2021, the Church served and filed an application for a small estate certificate. On October 18, 2021, Ms. Liu delivered a notice of objection to the will.
[6] On March 18, 2022, the Church brought an urgent application asking that it be appointed estate trustee for the management of the Condo because a demand for payment of the mortgage on the Condo had been made.
[7] On March 23, 2022, Parayeski J. ordered that a small estate certificate be issued to the Church limited to the Condo (the “Order”). Paragraph 2 of the Order authorized the Church to manage the Condo, including financing. The Order prohibits the Church from disposing of, or in any way devaluing, the Condo without further order of the court. Finally, the Church was ordered to locate and serve the Order upon any party with an interest in the estate.
[8] Ms. Liu has brought an application to contest the validity of the Will.
[9] The Church has brought an application for directions challenging Ms. Liu’s standing to challenge the Will and seeking a declaration that Ms. Liu’s claim is limited to a dependency claim against the estate and related relief. The Church also brought a motion for directions seeking essentially the same relief as set out in its application.
[10] In its notice of motion, the Church seeks numerous directions including:
i. A declaration that Ms. Liu does not have a financial interest in the Condo;
ii. A declaration that Ms. Liu's claim is limited to a dependency claim against the estate of the Deceased;
iii. A declaration that, if Ms. Liu does have a valid dependency claim against the estate of the Deceased, she has been adequately compensated for any said claim;
iv. A declaration that Ms. Liu does not have standing to bring the will challenge application;
v. A declaration that the Will is valid;
vi. An accounting and return of all monies received, removed, or used by Ms. Liu from the property of the Deceased from August 5, 2021 to date;
vii. An order requiring Ms. Liu and/or her counsel to identify the beneficiaries of the estate of the Deceased;
viii. An order requiring Ms. Liu to pursue an application for appointment of estate trustee without a will for the Deceased’s estate;
ix. An order requiring Ms. Liu to obtain production of various files related to the will challenge and any dependant support claim by Ms. Liu; and
x. An order requiring the non-party witness, Chris Maynard, to attend an examination pursuant to rule 31.10 of the Rules of Civil Procedure.
[11] Ms. Liu does not seek directions in her notice of motion. Ms. Liu moves to strike the relief in paragraphs b, c, f, g, h, i, j, k, l, and m of the Church’s notice of motion and application (“Challenged Relief”) on the basis that the orders disclose no reasonable cause of action, or alternatively, because the Church does not have standing to seek these orders.
[12] Ms. Liu moves to strike paragraphs 7, 8, 11, 17, and 19 of the affidavit of Father Ibrahim sworn June 14, 2022, because they contain hearsay (“Challenged Evidence”).
[13] Ms. Liu also moves to strike the following paragraphs from the affidavits of Monica Zakhari:
i. Paragraphs 8, 10, 14, 15, and 16 of the affidavit of Monica Zakhari, sworn June 20, 2022; and
ii. Paragraphs 3, 4, 5, and 6 of the supplementary affidavit of Monica Zakhari, sworn September 26, 2022.
[14] The parties agree that the referenced paragraphs in Monica Zahkari’s affidavit will be struck in exchange for an order for the examination of Chris Maynard.
Issues raised by the motions before the court:
[15] The following issues are raised by the motions brought by the parties:
Issue #1: Has notice of the litigation been given to the proper parties?
Issue #2: Standing:
i. Should Ms. Liu be ordered to bring a dependant support claim;
ii. Does the Church have standing to seek the Challenged Relief;
iii. Does Ms. Liu have standing to challenge the Will; and
iv. Issues raised by the will challenge.
Issue #3: Hearsay – should the Challenged Evidence be struck?
Issue #1: Has notice of the litigation been given to the proper parties
[16] The evidence before the court is that the Order has not been served on the Deceased's brother and sister. It is not clear whether the niece has been served.
[17] There is no evidence of notice to the potential beneficiaries of the intestate estate of the will challenge.
[18] The potential beneficiaries of the intestate estate should be given notice of the will challenge and these proceedings.
Issue #2: Standing
A. Position of the Parties
[19] The Church’s position is that Ms. Liu, as the common-law spouse of the Deceased, has no standing to challenge the Will. Further, Ms. Liu has not brought an application to be appointed trustee of the intestate estate, to remove the Church as trustee under the small estate certificate or to be appointed as estate trustee under that certificate.[^1]
[20] The Church argues that that the legislature has made specific provision for common-law spouses in section 58 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”). The Church submits that Ms. Liu should bring a dependency claim to have standing.
[21] The Church submits that the court has the authority, pursuant to rule 75.06 of the Rules of Civil Procedure (the “Rules”), to order Ms. Liu to bring a dependant support claim and that the relevance of much of the information sought in its motion for directions is based on the authority of the court to order Ms. Liu to bring such a claim. The Church provided no other authority for the proposition.
[22] The Church also asserts that the limitation period for a dependant support claim has expired.
[23] The Church says that Ms. Liu was put on notice that she should bring a dependency claim as early as September 24, 2021, when counsel for the Church wrote to Ms. Liu’s lawyer and raised the issue of a dependant support claim by Ms. Liu. Alternatively, the Church asserts that more than six months has passed since the Church was appointed as trustee pursuant to a small estate certificate.
[24] Ms. Liu says that the Church has no standing to seek the disputed orders. She says she is not obliged to bring a dependency relief claim until after the validity of the Will is determined.
[25] Ms. Liu asserts that the limitation period does not begin to run until a certificate of appointment of estate trustee is issued.
[26] Ms. Liu asserts she has standing because she has a financial interest in the estate.
B. Analysis and Disposition – Standing
[27] The standing issues will be addressed in the following order:
i. Dependant support claim and limitation period;
ii. Standing of the Church;
iii. Ms. Liu’s standing; and
iv. Issues raised by the will challenge.
i. Dependant support claim and limitation period
[28] The evidence put forth by Ms. Liu provides possible support for her claims against the estate as a dependent.
[29] The Applicant was the common-law partner of the Deceased for over 13 years. The two began cohabiting in December 2008. She was his sole caregiver while he was ill.
[30] Ms. Liu states that, on several occasions throughout their 13-year relationship, the Deceased mentioned that when he died he would leave her his assets, including the Condo.
[31] Section 61 of the SLRA addresses the limitation period for claims by a dependant for support:
Limitation period
61 (1) Subject to subsection (2), no application for an order under section 58 may be made after six months from the grant of letters probate of the will or of letters of administration.
Exception
(2) The court, if it considers it proper, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.
[32] A grant of letters probate of the will in section 61(1) is the equivalent of issuing the certificate of appointment of an estate trustee with a will.
[33] The Order included an interim order precluding the distribution of the estate pending further court order. The Condo, which is the subject of the Will, has not been distributed.
[34] This court may exercise its discretion pursuant to section 61(2) of the SLRA to allow Ms. Liu, if so advised, to commence a claim for dependant support before the distribution of the Condo, despite the expiry of the limitation period, and to set a timetable for such an application.
[35] The court is of the view that it cannot order Ms. Liu to commence a dependant support claim under the SLRA.
ii. Standing of the Church
[36] The Church obviously has standing under the Will. The Church concedes that if the Will is found to be invalid, it has no standing in the intestate estate.
[37] In the absence of an application by Ms. Liu for dependant support under the SLRA, the request for the information sought in the Challenged Relief (paragraphs b, c, f, g, h, k, l (i, ii, iii, v) of the Church’s notice of motion) is premature, and the Church has no standing to seek the Challenged Relief.
[38] Ms. Liu also asserts that the court should strike the Challenged Relief as disclosing no reasonable cause of action pursuant to rule 21.01. Given the conclusion on the standing issue above, it is not necessary to determine at this time whether the Church’s application and the relief sought in the notice of motion by the Church discloses a reasonable cause of action.
iii. Standing of Ms. Liu
[39] Rule 75.06(1) provides that, "Any person who appears to have a financial interest in an estate may apply for directions or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court."
[40] Section 23 of the Estates Act states:
Where a proceeding is commenced for proving a will in solemn form or for revoking the probate of a will on the ground of the invalidity thereof or where in any other contentious cause or matter the validity of a will is disputed, all persons having or pretending to have an interest in the property affected by the will may, subject to this Act and to the rules of court, be summoned to see the proceeding and may be permitted to become parties, subject to such rules and to the discretion of the court.
[41] In McLaughlin v. McLaughlin, 2015 ONSC 3491, the court explained who has an interest in the estate:
[23] The Divisional Court, in Smith v Vance, analyzed who may maintain a notice of objection.In that case, the Court dealt with an appeal from the order of Perras J., striking the appellants’ notice of objection. The judge had found the appellants did not have a financial interest in the estate. The Divisional Court analyzed rule 75.03 and section 23 to determine whether the objection filed should have been struck. In allowing the appeal, the Divisional Court provided helpful guidance on who has standing to maintain a notice of objection.
[24] The Court described what it means to have a financial interest in the estate. The Court stated:
Financial interest is not defined in the Rules of Civil Procedure. In the absence of any limiting definition, those words must be taken in their natural meaning of an interest by way of money or property or other assets having monetary value. Black’s Law Dictionary (5th Edition) defines financial interest as:
An interest equated with money or its equivalent.
With respect to both Rule 75.03(1) and s. 23 of the Estates Act, where the stated interest is clear and obvious (for example, the claimant is a named beneficiary), there should be no difficulty recognizing the status of that person as a party. Different considerations apply where the claimant is one who pretends to have an interest. The word pretend is not to be interpreted as claiming or professing falsely or deceptively but rather as alleging or laying claim to an interest in law. One who pretends to have an interest is not required to prove that he or she has a financial interest before being permitted to become a party under s. 23 of the Estates Act. If such were the case, the inclusion, within s. 23 of entitlement of those persons pretending to have an interest would be redundant and superfluous.
However, claimants must do more than simply assert an interest. They must present sufficient evidence of a genuine interest and meet a threshold test to justify inclusion as a party. It need not be conclusive evidence at that stage but must be evidence capable of supporting an inference that the claim is one that should be heard.
If the evidence offered by an objector is capable of supporting an inference that the claim raises a genuine issue and thus is one that should be heard, the objector is entitled to standing and should be granted permission to be added as a party. Claimants passing that threshold test should not be denied status simply because they cannot produce a copy of the will under which they claim to be a beneficiary or because of the perceived difficulty of setting aside a will or series of wills on grounds of incapacity. The onus of proof on the issue of capacity is upon the persons propounding the will or wills in question and that onus passes to the objector only with respect to proof of a lost or destroyed will.
[42] In Smith v. Vance, (1997), 12 C.P.C. (4th) 391 (Div. Ct.), the appellants based their claim to a financial interest, in part, on an earlier destroyed will. The appellants there relied on a letter written by the testatrix stating that they would be "main sharers" of her estate. After the letter, the testatrix executed a will and, on the same day, an earlier will was destroyed. The appellants alleged that the testatrix lacked testamentary capacity when she executed this will and thus lacked capacity to revoke any valid will existing on that date. The circumstances in Smith are different than those before the court where there is no prior will, but an intestacy if the will is set aside.
[43] At paragraph 27, Price J. went on to consider financial interest further:
A financial interest includes an interest derived from intestacy. In Korsten v Lovett, the Court stated:
In the book Probate Practice by MacDonnell Sheard and Hull Fourth Edition, the authors write at page 21 as follows:
The term financial interest is not defined in the rules and presumably includes any interest in property that a person may have under the terms of any testamentary instrument duly executed by the deceased person, or on an intestacy of that deceased person, whether such interest is vested, vested subject to being divested, or contingent.
[44] At paragraph 30, Price J. held:
Tom McLaughlin is not a named beneficiary of the 2002 Will, or of the 1994 Will that preceded it. While Tom McLaughlin does not derive a financial interest from the Wills that were prepared in 1994, 2002, or 2010, it is premature, at this stage of the proceeding, to disqualify him on the basis that he does not have standing. Such a finding should await a determination as to which of the Wills is the last Will of Ann McLaughlin.
[45] Price J. did not provide explanatory reasons for finding that it was premature to disqualify the objector on the basis that he lacks standing although the prior will did not provide standing.
[46] In W.W. v. Y.Y, 2016 ONSC 2387, W.W. challenged a holograph will by her father which gave the estate to the deceased’s second wife and sought an order appointing an estate trustee during litigation. The court found that there was some evidence that would support a trial judge’s finding of suspicious circumstances. The court held at paragraphs 20 and 21:
[20] It would be inappropriate at this stage to determine that W.W. has no financial interest in the estate. As will be detailed below, several important issues have been raised by her counsel. Any one of them, if proven, could shift the burden of proof to Y.Y. and change the landscape of this application.
[21] Not only is the term “financial interest” not defined in the Rules but the threshold at this point in the litigation is a low one. In this court’s view, there is sufficient evidence to necessitate the involvement of the court given the possibility of an intestacy. The rules do not require that W.W. have a financial interest at the time of moving for directions. Indeed, such a requirement would mean that many applicants would be precluded from proceeding. The fact that she may have a financial interest in the event that the court makes certain findings in her favour is sufficient at this stage in my view.
[47] Although not spelled out in the decision, it appears that W.W might have had an interest in the intestate estate. The facts in W.W., while similar, present more evidence of concern to the court in that case.
[48] Citing Smith, at paragraph 33 in W.W., Gilmore J. held that the evidence required for the applicant to move forward need not be conclusive but need only be capable of supporting an inference that the claims raise a genuine issue which should be heard by the court.
[49] In Larmon v. Munro, 2021 ONSC 1921, the court was satisfied that the applicant had demonstrated a financial interest in the estate based on evidence that she had paid estate expenses with her own funds.
[50] After considering several cases in which courts have determined whether an applicant challenging a will had an interest in the estate, the court in Moses v. Moses, 2021 ONSC 587, found that, “[i]n each case, the question of standing must be determined having regard to the evidentiary record before the court. The question is whether, on this evidentiary record, the person claiming to have an interest in the estate has satisfied the threshold test.”
[51] The court in Moses was satisfied on the evidence that if the will being challenged were found to be invalid, a prior will should be presumed to be valid. The applicant in that was case was not a beneficiary under the prior will. As a result, the court found that the applicant had failed to satisfy the low threshold of presenting sufficient evidence to support an inference that he had a financial interest in the estate and did not have standing to bring the application to challenge the will.
[52] In short, the cases turn on the evidence provided to the court.
[53] Ms. Liu concedes that, as a common-law spouse, she would not be entitled to share in the estate on an intestacy. However, she asserts she has standing as she has a financial interest in the estate because:
i. as a common-law spouse she is entitled to be appointed estate trustee and, if so appointed, to claim executor compensation;
ii. she is entitled to bring a claim for proprietary estoppel against the estate which is to be raised in a separate action; and
iii. she is a creditor, as she paid the funeral expenses.
[54] Ms. Liu says that she is the long-term common-law partner of the Deceased and was his primary caregiver and that, as the Will does not contemplate an executor, she is in the best position to be the executor whether a court were to find that the Will is valid or invalid. Ms. Liu asserts that if she is appointed as trustee, she may be entitled to compensation pursuant to the Trustee Act, R.S.O. 1990, c. T.23.
[55] Ms. Liu also asserts proprietary estoppel. She relies on the decision of the Supreme Court of Canada in Cowper-Smith v. Morgan, 2017 SCC 61, [2017] 2 S.C.R. 754. There, the Court summarized that an equity arises when:
(1) a representation or assurance is made to the claimant, on the basis of which the claimant expects that he will enjoy some right or benefit over property;
(2) the claimant relies on that expectation by doing or refraining from doing something, and his reliance is reasonable in all the circumstances; and
(3) the claimant suffers a detriment as a result of his reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on her word.
[56] In paragraph 16 of Cowper-Smith, the Court explained that proprietary estoppel protects the equity, which in turn protects the claimant’s reasonable reliance.
[57] Ms. Liu has tendered some evidence of representations and assurances. There is evidence that Ms. Liu provided 24/7 care to the Deceased when he was ill and that she was his sole caregiver when he battled cancer. However, there is no evidence of reliance by Ms. Liu on promises to receive the Condo or specific detriment to Ms. Liu. Ms. Liu’s counsel asserts that her anticipated evidence will be that she gave up working and other aspects of her life to care for the Deceased and, in exchange, the Deceased promised that she would inherit the entirety of his estate, including the Condo.
[58] In Moses, the applicant also had a separate claim for proprietary estoppel. At paragraphs 50 to 52, the court considered whether section 23 of the Estates Act gave the applicant standing to bring the application:
[50] Section 23 of the Estates Act is subject to the rules of court and to the discretion of the court. It applies where a proceeding is commenced for proving a will in solemn form or for revoking probate of a will on the ground of the invalidity thereof or where in any other contentious cause or matter the validity of a will is disputed. Here, no proceeding was commenced to prove the 2019 Will in solemn form. No proceeding was commenced for revoking probate of the 2019 Will. No application was made for a grant of probate. Other than the application Reuben commenced to challenge the 2019 Will, where the question of standing is at issue, there is no contentious cause or matter where the validity of the 2019 Will is disputed.
[51] Whether Reuben does or does not have an interest in the assets of Metro or in the Property based on the doctrine of proprietary estoppel will be decided in his separate civil action. The outcome of this action does not depend on the validity or invalidity of the 2019 Will. I do not hold that s. 23 of the Estates Act may not, in any circumstances, provide a statutory basis separate from rule 75.06(1) for standing for a person to become a party and bring an estate matter before the court. However, I do not regard the circumstances upon which Reuben relies on this motion, his civil claim based on proprietary estoppel, to justify a finding that he has standing to bring this application to challenge the 2019 Will. I decline to exercise my discretion to so find.
[52] I conclude that Reuben’s claim to an interest in property of Aby’s estate in a separate civil action does not give him standing pursuant to s. 23 of the Estates Act to challenge the 2019 Will where he would otherwise lack standing to do so.
[59] Ms. Liu has asserted that she is the most appropriate executor of the intestate estate. However, she has not yet commenced an application to be appointed trustee. Further, she has not addressed how she can be the most appropriate trustee when she is contemplating a promissory estoppel claim, which will put her in conflict with the estate and her anticipated role as estate trustee. The possibility that Ms. Liu might apply to be an estate trustee of the intestate estate, where there is the likelihood according to Ms. Liu of a promissory estoppel claim against the estate, in the circumstances, is not sufficient to create standing.
[60] This court agrees with the court in Moses that, in the circumstances of this case, a potential claim for promissory estoppel does not create standing.
[61] Ms. Liu is owed money paid on behalf of the estate. She has incurred $13,909.79 in funeral expenses for the Deceased, for which she has not been reimbursed. The court does not accept that Larmon stands for the general proposition that in all cases where a person is owed money by the estate, that person, on that basis alone, has standing to challenge the Will. On the facts of this case, it is not sufficient on its own.
[62] Ms. Liu was required to present sufficient evidence of a genuine financial interest and meet a threshold test to justify inclusion as a party. It need not be conclusive evidence at this stage, but it must be evidence capable of supporting an inference that the claim is one that should be heard. The above grounds and the evidence put forward in support thereof by Ms. Liu do not meet the test of sufficient evidence of a genuine financial interest sufficient to satisfy the threshold test for standing as the matter now stands.
iv. Issues raised by the will challenge
[63] Ms. Liu challenges the validity of the Will and raises several issues including that:
i. the Deceased was incapable when the Will was prepared and signed;
ii. the Will was obtained through the undue influence of the Church;
iii. the Will was witnessed by Father Ibrahim, who was a director and employee of the Church, the sole beneficiary;
iv. the Deceased did not receive independent legal advice; and
v. there are suspicious circumstances surrounding the drafting of the Will.
[64] There is evidence that, leading up to his death, the Deceased was in poor health. Medical records obtained from Juravinski Hospital indicate that the Deceased was admitted with and suffering from episodes of confusion and delirium around the time the Will was executed. The evidence is set out in the affidavit of Michael Bailey and is not repeated here.
[65] There is some evidence, much of it hearsay, that an individual by the name of Chris Maynard had conversations with the Deceased about his intentions to give the Condo to the Church. There is hearsay evidence from Father Ibrahim and Mr. Abdelmessih as to the Deceased’s intentions to give the Condo to the Church.
[66] The evidence raises some concerns about the validity of the Will because:
i. there is evidence that the Deceased may have suffered from health issues which may have affected his capacity;
ii. there is no evidence before the court as to whether the Will was drafted by the Deceased and is a holograph will;
iii. a director of the Church acted as a witness to the Will in which the Church is the sole beneficiary, which may contravene section 12 of the SLRA;
iv. the small estate certificate was obtained under rule 74 which applies to non-contentious estates when it was clear that there would be a challenge to the validity of the Will;
v. the beneficiaries of the intestate estate were not provided with notice of the will challenge;
vi. the order of Parayeski J. and the application to obtain the order were not served on the Deceased’s heirs in an intestacy as required by the Order.
v. Disposition on Ms. Liu’s standing
[67] There is evidence before the court that Ms. Liu may have a claim against the estate for dependant support. However, until she brings that claim, it is too early to determine whether Ms. Liu has standing to challenge the Will.
[68] There is evidence before the court that raises concerns about the validity of the Will. However, the evidence is not yet fully developed. Again, it is too early to determine whether Ms. Liu has standing to challenge the Will.
Issue #3: Hearsay – Should the Challenged Evidence be struck
[69] Ms. Liu seeks to strike paragraphs from the supporting affidavits that contain hearsay evidence with respect to the Deceased’s intentions regarding the Condo.
[70] The Challenged Evidence (paragraphs 7, 8, 11, 17 and 19 of Father Ibrahim’s affidavit) contain, in part, hearsay.
[71] Ms. Liu relies on section 13 of the Evidence Act, which provides that in an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, evidence must be corroborated by some other material evidence.
[72] Ms. Liu’s reliance on Estate of Taylor v. Taylor, 2019 ONSC 5277, is of no assistance. The issue in Taylor concerned a claim by an estate against the defendant that he failed to pay his mother a share of income generated from farm property left to him under his father’s will. The defendant asserted that his mother, Marjorie Taylor, had agreed to accept a variation of the payment. Marjorie Taylor had died before the estate commenced its action. The case had nothing to do with a will challenge. The conclusions in Taylor do not assist Ms. Liu.
[73] Ms. Liu also relies on P.M. v. Evangelista Estate, 2015 ONSC 1419. Evangelista does not assist either, as it deals with a claim by the plaintiff against a deceased person for sexual assaults, threats, and harassment. This case also has nothing to do with a will challenge.
[74] No authority was provided for the proposition that section 13 of the Evidence Act has application in a will challenge. At the will validity stage of a proceeding, direct evidence about the testator's true intention is admissible: See Estate of John Kaptyn; Kaptyn v. Kaptyn, 2010 ONSC 4293, 102 O.R. (3d) 1 (S.C.), at para. 47.
[75] It is the court’s view that a motion judge at this early stage of the proceedings should not make determinations as to the admissibility of evidence, including hearsay evidence, where the issues and the evidence are not yet fully developed. This determination is better left for the judge hearing the application.
[76] At paragraph 44 of her factum, Ms. Liu suggests that, if the Challenged Evidence is not struck from the affidavits, her evidence ought to carry more weight. It is the court’s view that it is not proper for a motion judge, at this early stage of the proceedings, to make determinations of the weight to be given to evidence. This is a matter left to the trier of fact.
Disposition and Orders Made
[77] Rule 75.06(3) of the Rules sets out the type of orders for directions that can be given by the court:
On an application or motion for directions, the court may direct,
(a) the issues to be decided;
(b) who are parties, who is plaintiff and defendant and who is submitting rights to the court;
(c) who shall be served with the order for directions, and the method and times of service;
(d) procedures for bringing the matter before the court in a summary fashion, where appropriate;
(e) that the plaintiff file and serve a statement of claim (Form 75.7);
(f) that an estate trustee be appointed during litigation, and file such security as the court directs;
(g) such other procedures as are just.
[78] Orders for directions under rule 75.06(3) are provided to assist the parties and establish a procedural regime that is most appropriate for the dispute in question.
[79] This court makes the following orders:
Ms. Liu’s application to challenge the Will, and paragraphs (a) (financial interest), (d) (standing) and (e) (validity of the will) in the Church’s application and motion for directions will be returned to the court for directions by no later than May 30, 2023, but not before the remaining steps set out herein are completed.
The May 30, 2023 date may be extended by the court, if required, to accommodate the schedules of the Deceased’s siblings and niece.
Ms. Liu may commence an application or claim for dependant support under the SLRA.
If Ms. Liu elects to commence an application or claim for dependant support under the SLRA, she must:
a. issue the application by January 31, 2022; and
b. serve a copy of the application and application record on the Deceased’s siblings and niece.
If Ms. Liu elects to commence an application or claim for dependant support, the parties may seek directions as to relevant productions.
If Ms. Liu elects not to commence an application or claim for dependant relief under the SLRA by January 31, 2023, her claim for dependant support will be deemed to be statute barred as of February 1, 2023.
By January 6, 2023, the Church is to provide evidence to Ms. Liu and any interested parties as to:
a. its status as a corporation, including its articles of incorporation or letters patent, a listing of its members, and any constating documents that addresses any entitlement to members of the Church to the assets on dissolution of the Church or how the assets are to be distributed on dissolution;
b. evidence by way of affidavit as to who drafted the body of the contested will;
c. the addresses of the Deceased’s siblings and niece;
d. confirmation that the order of Justice Parayeski has been served on the Deceased’s siblings and niece; and
e. confirmation that the within order and the various existing application records have been served on the Deceased’s siblings and niece.
The production of medical records, cell phone records, or other records relevant to the will challenge application is adjourned to the next court appearance.
Should the will challenge proceed, on consent, paragraphs 8, 10, and 16 of the affidavit of Monica Zakhari, sworn June 20, 2022, and paragraphs 3, 4, 5, and 6 of the supplementary affidavit of Monica Zakhari, sworn September 26, 2022, shall be struck and Chris Maynard shall submit to an examination under oath.
The Order shall continue in force until further order of the court.
Costs
[80] Success on the motions is divided.
[81] The parties are encouraged to resolve the issue of costs amongst themselves. If they are unable to do so, they may submit a bill of costs and make written submissions consisting of not more than two double-spaced pages in length, together with excerpts of any legal authorities referenced, according to the following timetable:
i. Ms. Liu shall serve her bill of costs and submissions, if any, by Wednesday, December 14, 2022.
ii. The Church shall serve its bill of costs and submissions, if any, by no later than Friday, December 23, 2022.
[82] All submissions are to be filed with the court and copies are to be emailed to the judicial assistants at St.Catharines.SCJJA@ontario.ca, by Friday, December 23, 2022.
[83] If no submissions or written consent to an extension are received by the court by December 23, 2022, the matter of costs will be deemed to have been settled.
[84] This court is not seized of this matter.
M. Bordin, J.
Released: 2022-11-30
The Church of St. Mina, 2022 ONSC 6750
COURT FILE NO.: CV-22-78923
DATE: 2022-11-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LIPING LIU
Applicant
- and -
COPTIC ORTHODOX PARTRIARCHATE OF ALEXANDRIA, THE CHURCH OF ST. MINA
Respondent
REASONS FOR DECISION ON MOTIONS
M. Bordin, J.
Released: 2022-11-30
[^1]: Ms. Liu says that she will do so once the validity of the Will is determined.