Goyetche v. Woodruff, 2022 ONSC 927
Court File No.: 13568/21 Date: 2022-02-09 Superior Court of Justice – Ontario
Re: Raymond C. Goyetche and Joseph C. Goyetche And: Marion Woodruff, in her capacity as trustee and attorney for Dolores June Goyetche
Before: Mr Justice Ramsay Counsel: Robert Burns for the Applicants Heard: February 9, 2022 at Welland by teleconference
Endorsement
[1] In 2010, when she was in her early seventies, the testatrix made a will. She named her sister, the Respondent, executrix (with a niece named as alternate executrix). She left the residue of her estate to her two surviving sons. Half of the residue went to the Applicant Raymond Goyetche and the other half to the Respondent in trust for the co-Applicant Joseph Goyetche. The Respondent had "unfettered discretion" as to how the proceeds would be distributed to Joseph. The Respondent also had power of attorney during the testatrix's lifetime. Evidently, then, the testatrix trusted the Respondent to manage her money. She did not trust her sons to manage her money and she did not trust Joseph to manage his own money.
[2] Ten years later the testatrix died. She had been living rent-free with the Respondent during her last years.
[3] The two sons have filed an Application styled an Application under Rules 14.05, 38 and 75.06, ss. 5, 7 and 37 of the Trustee Act and s.42 of the Substitute Decisions Act. I have not seen the Application, but it seems clear that they are contesting the Respondent's handling of the estate as well as her handling of the testatrix's affairs under the power of attorney.
[4] The only evidence I have on the motion is the affidavit of the Applicants' lawyer's clerk. She sets out the basic history and the grounds for seeking the orders. There is no evidence that the testatrix was ever incapable or that the power of attorney was exercised. At the time of her death she and the Respondent had a GIC worth about $14,000 jointly owned with right of survivorship and a joint chequing account at the Bank of Montreal with about $21,000 in it, also with right of survivorship. The bank records have been produced. There is no evidence that the testatrix had any other assets. It is speculative to say that there is any estate.
Orders made on consent
[5] Today the Applicants move for orders for production and for certain procedural orders. The Respondent consents. I am prepared to make the orders in paragraphs 6 and 8 of the draft order, adjourning the Application and dispensing with factums on today's motion. I am also prepared to order the production requested from the testatrix's solicitor in paragraphs 1 and 2. The solicitor has been notified and is prepared to make the productions on certain terms which are incorporated in the draft order.
Orders refused
[6] Notwithstanding the Respondent's consent I am not prepared to make the remaining orders for the reasons that follow.
Production from unnamed non-parties
[7] In paragraphs 3 and 4 the Applicants ask for orders for production of "all medical and home care records" and "financial records and files relating to all assets held either solely or jointly by [the testatrix] and the records of any account to which any of the [her] funds were transferred." Neither order names a caregiver or a financial institution.
[8] When the matter was first considered in writing by Gambacorta J., she declined to make the order without service on the potential record holders. In the supporting affidavit of the Applicant's lawyer's clerk filed before me, the Applicants justify the order on the following basis:
a) The financial institutions and health care providers were not identified in the Draft Order because we do not know the extent of all the parties involved in the case. The disclosure we obtain from one source will likely lead us to another source with relevant information. It would be extremely lengthy and costly to bring a motion for disclosure every time we find a new party with relevant information about the case. How the Order is currently crafted will help secure the most expeditious and less expensive resolution of this Application;
b) The Respondent, who has the authority to request disclosure from the sources outlined in the Draft Order, consented to the Draft Order;
c) The Draft Order that Mr. Reina and Mr. Enskat filed on consent has been used in other Estate litigation cases to obtain disclosure from third parties.
[9] Rule 30.10 does not apply to applications: 550511 Ontario Ltd v. Framingham (1991), 1991 CanLII 7185 (ON SC), 2 O.R. (3d) 284 (Div. Ct). I am being asked to exercise my jurisdiction to make directions under Rule 75.06. That rule gives a judge broad powers to identify issues in estate litigation and to order procedures to resolve them. In the absence of examination for discovery it may well be appropriate in some circumstances to make orders that are not typical in actions. Relevance and proportionality, however, should in my opinion remain governing considerations. And I do not see why I should not apply the principle that production from a non-party should not be ordered as a matter of course: Tetefsky v. General Motors Corp., 2010 ONSC 1675, paragraph 41, affirmed 2011 ONCA 246.
[10] In the law clerk's affidavit, the Applicants essentially admit that they are on a fishing expedition. A further extract:
I am advised by Mr. Reina that the records from Mrs. Goyetche's financial institutions will help determine whether Mrs. Goyetche or the Respondent contributed funds to the Joint Accounts. This information will be essential in determining whether the transfer of any money by designation as joint account holder to the Respondent by Mrs. Goyetche was made to the Respondent on a resulting trust, with the result that the property forms part of Mrs. Goyetche's Estate.
I am further advised by Mr. Reina that the records from Mrs. Goyetche's financial institutions will help determine whether there was any misappropriation or mismanagement of funds on the part of the Respondent when she acted as Mrs. Goyetche's Attorney for Property.
[11] I do not think it proper to make a broad order for production and in effect to delegate to the Applicants the naming of the record holders and the decision as to whether the records are relevant. It is not too much to ask the parties to name and serve the record holder. As was the case here with the solicitor, the record holder may have valid concerns to bring to the attention of the court.
[12] The Respondent's consent does not militate in favour of making an order. Au contraire, it makes an order unnecessary. If a trustee refuses to authorize record holders to release documents, it may be appropriate to make an order requiring the trustee to do so.
[13] The fact that orders similar to the ones sought have routinely been made on consent over the counter is not strong authority.
[14] The circumstances of the present case do not justify the order sought.
Prohibition on distributing assets of estate
[15] In paragraph 5 the Applicants ask that the Respondent be prohibited from distributing the assets of the estate. Such an order is often apt, but in the present case it could be interpreted to apply to the GIC and the chequing account, with the effect of freezing what are prima facie the Applicant's own assets when there is no evidence to support such a measure. Furthermore, the Respondent may well need access to this money to defend the Application.
Costs of the motion
[16] Finally, in paragraph 9 it is suggested that costs of this motion be reserved to the Application judge. I think that the parties should bear their own costs of the motion. The Applicants were for the most part unsuccessful, and the Respondent did not participate. The part of the motion on which the Applicants succeeded was made necessary not by the Respondent, but by the non-party solicitor's reasonable request for a court order.
Conclusion
[17] I order as follows:
a. On consent of the parties and the non-party, Andrew Douglas Henderson is ordered to make production in terms of paragraph 1 of the draft order.
b. I declare that solicitor and client privilege has been waived with respect to the items in paragraph 1.
c. The Application is adjourned sine die, to be brought back by either party on seven days' notice;
d. The filing of a factum on this motion is dispensed with.
e. The remainder of the motion is dismissed.
f. The parties shall bear their own costs of the motion.
J.A. Ramsay J.
Date: 2022-02-09