Court File and Parties

COURT FILE NO.: CV-22-78923 DATE: 20230426

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

LIPING LIU Applicant/Respondent by Counter Application

- and -

Coptic Orthodox Patriarchate of Alexandria the Church of St. Mina The Respondent/Applicant by Counter Application

COUNSEL: B. Kurpis, for the Applicant/Respondent by Counter Application A. Khan for the Respondent/Applicant by Counter Application

HEARD: March 23, 2023 and April 11, 2023

Reasons for Endorsement

THE HONOURABLE JUSTICE R.J. HARPER

The Issues

[1] This is a motion brought by the Applicant:

a) to amend the Notice of Application by deleting the Applicant, Liping Liu, and adding the Applicant, The Estate of Alphons Guigues, by his Estate Trustee, Liping Liu.

b) To strike the Counter Application of the Respondent, the Coptic Orthodox Patriarchate of Alexandria and the Church of St. Mina (“Coptic Church”), for failure to comply with the Endorsement of Bordin J. dated November 30. 2022;

c) Alternatively, setting a new timetable for the Respondent, Coptic Church, to comply with the Order of Bordin J.;

d) Amending the Notice of Application to add Silvana Guirguis, the niece of the Deceased, and George Malack Guirgues and Mary Zachary, the brother and sister of the Deceased, as Respondents.

Background

[2] Some of the material background was thoroughly set out in the endorsement of Bordin J. on November 30, 2022. Bordin J.’s endorsement reads as follows:

[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.

[3] Ms. Liu had not commenced a dependency claim when the matter was before Bordin J. He found that such a claim would be statute barred if she had not commenced it by January 31, 2023.

[4] By the time this matter came before me, Ms. Liu had not commenced any dependency claim. However, she did bring this motion, among other things, seeking an order granting her leave to amend her Application to delete her claim that was brought in her personal capacity and to substitute a claim whereby the Estate is bringing a claim with her to be named as Executor and Trustee without a will.

[5] The Respondent objects to the amendments. The Respondent submits that they would be prejudiced in a manner that could not be compensated with costs.

[6] The Coptic Church takes the position that all the litigation to date has been conducted in a manner that focuses on Ms. Liu attempting to contest the validity of the hand-written will which left a condo to the Coptic Church. The Coptic Church submits that Ms. Liu has no standing to bring such an application and that any claim she might have would have to be brought pursuant to a claim as a dependent under the Succession Law Reform Act, R.S.O. 1990, c. S.26. She never brought such a claim and is now statute barred.

[7] Ms. Liu takes the position that she may amend her claim at any time during the proceedings, as long as there is no prejudice that cannot be compensated with costs.

[8] Neither of the Deceased’s brother, sister, or niece had received notice of these proceedings, notwithstanding their interest in the outcome. By adding them as a party, the niece will contest the validity of the will, and Ms. Liu will then be in a position to administer the estate without a will.

The Law and Analysis

[9] The starting point for my consideration of the relief claimed on this motion is r. 1.04(1) and r. 26 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[10] Rule 1.04 reads as follows:

General Principle

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. R.R.O. 1990, Reg. 194, r. 1.04 (1).

Proportionality

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. O. Reg. 438/08, s. 2.

[11] Rule 26.01 reads:

On motion at any stage in the action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by the costs or an adjournment.

[12] When this matter came before Bordin J., he expressed concerns relative to the processes that had taken place up to that point. The siblings of the Deceased had no notice of the proceedings and they would certainly have an interest in the outcome.

[13] Ms. Liu did not appear to have standing to contest the hand-written will.

[14] Justice Bordin also expressed concern regarding the validity of the will.

[15] In my view, fairness and due process demands that the siblings of the Deceased be added as parties and that the amended pleadings must be served on them.

[16] I find that Ms. Liu has a statutory right to apply as Executor and Trustee of the Estate without a will for the portion of the estate that does not deal with the subject Condo. Section 29 of the Estates Act, R.S.O. 1990, c. E.21, reads:

To what persons administration shall be granted

29 (1) Subject to subsection (3), where a person dies intestate or the executor named in the will refuses to prove the will, administration of the property of the deceased may be committed by the Superior Court of Justice to,

(a) the person to whom the deceased was married immediately before the death of the deceased or person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death;

(b) the next of kin of the deceased; or

(c) the person mentioned in clause (a) and the next of kin,

as in the discretion of the court seems best, and, where more persons than one claim the administration as next of kin who are equal in degree of kindred to the deceased, or where only one desires the administration as next of kin where there are more persons than one of equal kindred, the administration may be committed to such one or more of such next of kin as the court thinks fit.

[17] Ms. Liu was the common law spouse of the Deceased and would qualify to be named administrator of the property as she was living in a conjugal relationship with the Deceased immediately before his death.

[18] Subsequent to the matter being before Bordin J., the parties settled the issue of costs.

[19] On the evidence before me, I find that there is no prejudice toward the Respondent if the requested amendments are allowed. The Respondent’s counsel conceded that Ms. Liu could commence an action pursuant to s. 29 of the Estates Act to be named as the administrator of the property of the estate.

[20] Additionally, the siblings and niece of the Deceased should be made parties and served with the amended Application.

[21] Allowing these amendments is the most expeditious, fair, and proportionate way to proceed.

Order

[22] I make the following Order:

a) The requested amendments of the Applicant are allowed.

b) The amended Application shall be served on the Respondent, Coptic Church, within 10 days.

c) The Amended Application shall be served on the siblings and niece of the Deceased within 45 days.

d) Any responding material shall be served within 30 days of receipt of service of the Amended Application.

e) The balance of the order of Bordin J. shall be complied with no later than May 15, 2023.

f) This matter shall be adjourned to the trial coordinator to schedule a case management meeting before a judge after the timelines set out in this Order are completed.

g) If the parties cannot agree to costs, written submissions may be filed within 30 days.

Justice R.J Harper Released: April 26, 2023