COURT FILE NO.: CV-16-0503ES

DATE: 20230630

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JULIA MACPHERSON

Applicant

– and –

THE ESTATE OF NADIA WYSZATKO, deceased, RICHARD WYSZATKO, IRENE WINTER, ALBERT'S MARINA, SAIL'ER INN MARINE, MARSH CANADA LTD. and CLAIMSPRO

Respondents

Judith L. Turner, for the Applicant

S. Steven Sands, for the Respondents, Richard Wyszatko and Sail’er Inn Marine

Irene Winter, Self-Represented

HEARD: November 21, 22, 23, 24, 25, 28, 29, 30, December 1, 2 and 7, 2022

Reasons For Judgment

FRASER J.:

I. Introduction

[1] This is a trial of 12 issues concerning the Estate of Nadia Wyszatko (Nadia).

[2] Nadia died on September 8, 2012 at the age of 86 and was survived by her five children: Tadeuz (Teddy), Julia, Richard, Irene, and Edmund.

[3] In her Last Will and Testament, Nadia named Julia, Richard, and Irene as her Estate Trustees. The three children have been unable to make decisions together, including to apply to the Court for a Certificate of Appointment of Estate Trustee. As a result, Nadia’s Estate has not been dealt with.

[4] In 2016, Julia applied to the Court for directions including whether an independent third-party should be appointed as Estate Trustee. The matter was timetabled and set down for a hearing on December 7, 2016, for a full day.

[5] On that day, Justice Corkery ordered that the matter be mediated and, on consent of the parties, that Richard provide an accounting, that Richard assume responsibility for settling an insurance claim, and that the proceeds of the claim were to be paid into Court.

[6] Richard did not settle the insurance claim. He sued the insurer. At trial, it appeared that the claim was to be administratively dismissed if not set down for trial by March, 2023.

[7] On March 7, 2017, Justice G.P. DiTomaso dismissed a motion for an order setting aside the order for mediation. The parties were to each pay one-half of the mediation fee.

[8] The Hon. W. Winkler conducted a mediation, and the matter did not resolve.

[9] On July 11, 2017, Justice McCarthy ordered 12 issues to be tried. These include the appointment of an independent third-party as Estate Trustee, the interpretation of Nadia’s Will, determining various debts and liabilities of Nadia’s Estate and whether Nadia’s property on which Albert’s Marina operates should be listed for sale.

[10] These issues came before me for trial after several delays, one of which was the cancellation of the May 2020 trial sittings. In May 2021, the Defendant Richard Wyszatko requested an adjournment of the trial and Justice P. Sutherland granted the request as well as a request by Mr. Wyszatko’s then lawyer to be removed from the record.

[11] The action has been discontinued as against the Respondents Marsh Canada and Claimspro.

II. History of the Dispute

A. Family Structure and the Marina

[12] On October 17, 1963, Nadia and her husband Albert Wyszatko purchased a property on the West Side of the East Branch of the Holland River in the Town of East Gwillimbury (the property). The East Gwillimbury Planning Board gave consent to register the deed in 1964. The Holland River connects to Lake Simcoe by Cook’s Bay and then to the Trent Severn Waterway.

[13] Nadia and Albert founded and built a marina business known as Albert’s Marina on the property. Nadia and Albert shared in the work of the marina. Albert was known, among other things, for his canvas work on boat tops.

[14] At the marina, they developed substantial docks, boat slips, and a residence where Nadia and Teddy and his family lived at the end of her life. On the property is a residence, attached to which are covered boat slips. Nadia lived in the upstairs part of the residence and Teddy and his family lived rent-free on the floor below where there was an apartment. The downstairs part of the residence building also housed the office for Albert’s Marina.

[15] The property is approximately 45 acres (48.27 according to MPAC and 45.89 according to Land Registry) and sits next to a parcel of land owned by Irene. Some of the docks of Albert’s Marina are on Irene’s property.

[16] The property has approximately 450 feet of frontage on the river. A 2017 appraisal tendered at trial states the view from the “rear area of the marina is quite nice, and another other commercial or residential use would greatly benefit from this view and access point.”

[17] Nadia and Albert owned the land on which the marina sits as joint tenants. The property passed to Nadia in 1990 by right of survivorship. Albert died in 1990 and his interest passed to Nadia on his death. Nadia registered the transfer of the survivorship interest in 1999. Albert’s Will left his 50% interest in the business of Albert’s Marina to Teddy. Albert’s Will stipulated that Teddy could not sell, transfer or encumbrance it without Nadia’s consent, up to her death, after which he could do with it what he pleased.

[18] Teddy worked with his parents prior to his father’s death but, during Albert’s lifetime, the partnership was between Nadia and Albert. After Albert’s death, Teddy became an equal partner with Nadia as the result of the gift received from Albert’s Will. Following Albert’s death, Nadia and Teddy registered their partnership in 1991 at 50% partners. The formal partnership registration would have run for five years and was not renewed. They appeared to have run it somewhat informally. For example, they never sought an HST number for the business.

[19] From the photos in evidence, the property appraisal and the description, the marina is sprawling.

[20] In addition to being in a partnership, Teddy operated a company named Ted’s Total Marine on Nadia’s property. Richard also operated a business on the property named Sail’er Inn Marine.

B. Teddy Litigation

[21] In or about 2010, Nadia and Teddy had a falling out. Her other children thought that she should be drawing more from the business. The conflict appears to have been brewing for years. Nadia was also reportedly upset because Teddy borrowed money from Nadia to buy a house and then did not, leaving Nadia with a debt. This dispute between them resulted in litigation.

[22] In 2010, Teddy sued Nadia by commencing an application (the Teddy Litigation) against his mother, which was later converted into an action. By Statement of Claim dated November 30, 2012, Teddy sued Nadia’s Estate as well as his sister Irene, his brother Richard, and his brother Edmund. He did not sue his sister Julia MacPherson, the Applicant in this matter. The three named defendant siblings sided with Nadia against Teddy and then were aligned in interest.

[23] While Teddy’s litigation is separate from this proceeding and has settled, the history of it is important because it relates to the issues that I have to decide. The settlement of the Teddy Litigation impacted Nadia’s Estate and laid the groundwork for the dispute before me.

[24] Teddy claimed in the litigation that Albert’s Marina owned the property on which the marina was housed and claimed part of the neighbouring lands owned by Irene. Nadia did not agree and took the position that the land, the property, was hers alone and not an asset of the marina.

[25] On March 7, 2011, after the commencement of Teddy’s litigation, Nadia executed the Last Will and Testament that is at the heart of the issues to be tried in this matter. In her Will, Richard, Julia, and Irene were named Estate Trustees. By her Will, she specifically left her interest in Albert’s Marina business to Richard and then divided the residue of her Estate between her children in varying percentages, except Teddy, who was specifically excluded. By the terms of Nadia’s Will, which will be discussed in more detailed below, the residue was to be distributed: 64% to Richard; 13% to Julia; 13% to Irene; and 10% to Edmund.

[26] After Nadia’s death in September, 2012, Teddy continued the litigation against her Estate, Irene, Richard, and Edmund. At some point in the litigation, SF Partners was appointed as a Receiver of Albert’s Marina.

[27] By order of Justice Edwards dated November 8, 2013, Julia was appointed Litigation Administrator of the Estate of Nadia for the proceeding (the Teddy Litigation), being the only family member not sued by Teddy and named as an Estate Trustee by Nadia’s Will.

[28] During the course of the Teddy Litigation, Richard described Albert’s Marina as being mainly a lift and launch business and seasonal. The busiest part of the season was when customers launched in the Spring and the boats lifted out in the Fall. Dock slips were rented to boaters and some customers stored their boats in the winter. The marina sold gas.

[29] The then aligned siblings also took the position that the land upon which the marina was based was not an asset of Albert’s Marina.

[30] On or about June 3, 2014, as reflected in Minutes of Settlement, the Estate and the other parties reached a settlement with Teddy on the eve of the trial in which Teddy released all claims to Albert’s Marina, Nadia’s property, and Irene’s property, upon payment of $485,000, payable by Nadia’s Estate, to be made in two instalments, the first on June 13, 2014, and the second on July 4, 2014. Julia signed the Minutes of Settlement. The Minutes as prepared, named her “Julia MacPherson, Estate Trustee”.

[31] The Defendants named in the Minutes of Settlement were the Estate of Nadia, Irene, Richard, and Edmund. The Minutes of Settlement also reflect that the parties agreed that the partnership, Albert’s Marina, dissolved as of September 8, 2012, the date of Nadia’s death, but that the business continued to operate as between the Estate and Teddy. The marina lands were to continue in the name of Nadia. Under the settlement, Teddy released his claim to the marina lands.

C. Split in the Sibling Alliance

[32] A series of events set in motion a split of the sibling alliance which would leave Nadia’s Estate untended: a tornado-like windstorm that damaged the marina, a request by Richard to Julia to help fund the settlement, and a dispute about decisions made to get the marina back into good repair after the storm.

[33] The split was also fueled by a conflict over decision making. After the settlement, Richard took over all the marina operations after control was returned by the Receiver SF Partners. He registered Albert’s Marina in his name as a sole proprietorship. At the same time, Julia still viewed herself as an Estate Trustee during litigation, while the Court appointed her only as Litigation Administrator of Nadia’s Estate for the proceeding. After the settlement, there were steps that had to be taken to obtain the dismissal order. No party put before me the date upon which the Teddy Litigation was dismissed. It appears that as of October 16, 2014, SF Partners was still waiting for discharge from the Court.

[34] Richard paid the first instalment of the settlement.

[35] On June 17, 2014, a devastating windstorm struck Nadia’s property and the marina. Some of the customers’ boats were damaged, there was damage to the docks, electrical boxes to which the boats connected, other electrical issues and trees were down.

[36] An insurance claim was made, and Julia took part in making that claim. Richard directed the insurance company to make payment to him. The insurance company asked for Julia’s consent to deposit directly to Richard’s account an interim payment of $69,000 for storm damage to the marina. She agreed, but states she was pressured into consenting to the money going directly to Richard.

[37] On July 2, 2014, Richard emailed to Julia and Irene, “JULIE, IT DOES NOT LOOK LIKE I CAN RAISE THE MONEY BY FRIDAY. YOU AND IRENE SAID YOU COULD. I WILL NEED MORE TIME RICHARD”. Richard always writes in all caps. Julia testified that Richard asked Julia and Irene each of them to contribute $100,000.

[38] Julia drew $100,000 on her line of credit, prepared a certified cheque payable to Teddy’s lawyers, and forwarded it to them in furtherance of the settlement. Irene also contributed the funds. She contributed this as a loan. Richard disputed that the payment was a loan but at trial conceded that the payment was a loan to the Estate.

[39] Two areas of dispute began to emerge. Richard said that he hired contractors to work on the property to repair the storm damage. Julia refused to pay the contractors over “billing” concerns. The insurance company sought to pay out some of the claim and the contractors who Richard retained sought payment for their work.

[40] On July 10, 2014, Julia wrote to Richard’s lawyer, asking him to write a letter confirming the $200,000 loan to the Estate for settlement with Teddy. She noted that she and Irene paid $100,000 and would like to have it back as soon as possible, from the insurance money if at all possible.

[41] Edmund died in September 2014 without a spouse or children. One of the issues that has to be decided is whether a document that he signed is a holograph will.

[42] Family concerns erupted shortly after this and Julia wrote a letter to Irene around this time, complaining about family betrayals, family dynamics, and Irene’s role in it.

[43] At this point, the family ruptured. Nadia was gone. Teddy was paid off and moved off the property. Edmund was dead. Richard wanted to preserve the marina as his business was there. He saw himself as the person inheriting the business. In his view, he inherited his mother’s interest in Albert’s Marina, and 64% of the Estate. At the same time, Julia thought that the only practical way to move forward was to sell the property and pay the debts of the Estate and distribute the proceeds of the Estate to the beneficiaries.

[44] On September 30, 2014, Julia wrote to Richard and told him of the hardship servicing the interest and service charges for the $100,000 loan to the Estate and that it cost her $500 a month to service the debt. She stated that she had used their credit line to the limit and that that left no room for the family. She asked him to sit down and discuss selling the land as soon as possible and then stated:

It is clear to all that the business will never be a family business and the arguments will continue. I don’t want my children to witness more family fights. When I gave you my support I was looking through rose coloured glasses. I thought you would be fair and do the right thing, that apparently is never going to happen All the men in the Wyszatko family are cut from the same cloth unfortunately.

Let’s arrange a formal meeting in front of a lawyer to make things clear to all. Again, I stress that the land needs to be sold.

[45] On October 16, 2014, the insurance company advised that it had funds to be released to Richard as operator of Sail’er Inn Marine as it was a named insured in the policy.

[46] On October 23, 2014, Julia wrote to Irene to try to schedule a meeting with Nadia’s lawyer, who had advised her for years prior to her death, to address the property and to make some kind of agreement. She also noted that he had received a call from the insurance company about releasing more money to Richard which she opposed.

[47] On November 5, 2014, Julia wrote to the adjuster, advising that she was Court Appointed Litigation Administrator for Nadia’s Estate and asked that the cheque be made out to the Estate account and indicating her disapproval for direct payment to Richard.

[48] On December 9, 2014, the adjuster wrote to Julia advising that the named insured on the property were Albert’s Marina o/b The Estate of Nadia Wyszatko, Ted Wyszatko and Sail’er Inn Marine o/b Richard Wyszatko and Ted’s Total Marine Ltd. The total coverage was $250,000 and the insurer had advanced $170,000 to be split in the same proportion against each slip, on receipt of confirmation that the slips were damaged beyond economical repair.

[49] On December 26, 2014, Richard emailed Julia, copying Irene:

JULIE, AS PER THIS EMAIL, PLEASE RESPOND TO THE EFFORTS OF THE FAMILY AND YOUR POSITION TO THIS.

I AM RECEPTIVE TO CERTAIN NEGOTIATIONS, MY UNDERSTANDING, IRENE AS WELL, PLEASE TAKE INTO ACCOUNT THE OFFERS YOU AND MICHAEL HAVE MADE TO RESOLVE OF ALL FAMILY ISSUES. WE ARE PREPARED TO DISCUSS AND FINALIZE THE SAME. YOU OFFERED EDDIE $50,000 FOR HIS CLAIM TO THE ESTATE. TAKE THIS INTO ACCOUNT. I WISH TO RESOLVE THE ISSUES AT HAND IMMEDIATELY, SO THAT THERE WILL BE NO ADDITIONAL COSTS TO THE ESTATE OR THE BENEFICIARIES. YOUR PERSONAL PROBLEMS ARE NOT THE CONCERN OF THE ESTATE OR MYSELF.

[50] On January 5, 2015, Richard’s lawyer wrote to the insurance adjustor identifying Richard as an “executor and trustee” under Nadia’s Will and asking that payment of the insurance claim be made to the same account as the first payment.

[51] On January 6, 2015, Julia emailed the insurance adjuster notifying the adjuster that Richard had been acting unilaterally and that she felt that all three named Estate Trustees should be signing cheques and that she was requesting supporting documents for the work for which Richard was seeking reimbursement.

[52] On January 7, 2014, Richard wrote to the adjuster, his own counsel and Irene and her son to advise that no response should be made to Julia until she advised who her legal representatives were.

[53] On January 26, 2014, Richard wrote to Julia claiming that he was the sole Estate Trustee and that she had previously resigned to the insurer as Estate Trustee and that he was the main beneficiary of the Estate. He stated that the day-to-day activities of the Estate had been taken care of by him and that the settlement with Teddy terminated her role as Litigation Administrator.

[54] On January 24, 2015, Richard wrote to Julia and Irene setting out his version of the share of funds owing to him for loans, interest and managing the property. He claimed that Julia owed him $66,419.20 and that Irene owed him $51,919.00 and requested payment immediately.

[55] On February 8, 2015, Richard emailed Julia as follows:

JULIE,

YOUR SILENCE IS GOLDEN, HOWEVER REALITY SETS IN. THE COSTS OF MAINTAINING THE ESTATE, LEGAL ISSUES AND COSTS, REPAIRS, INSURANCE, AND SO FORTH. I HAVE MADE YOU AWARE OF A PARTIAL ACCOUNTING THAT YOU AND IRENE ARE RESPONSIBLE FOR. I REQUEST YOU PROVIDE YOUR PORTION OF FUNDS THE FULL ACCOUNTING OF ALBERT'S MARINA AND THE ESTATE IS FORTHCOMING. ON SEVERAL OCCASSIONS VARIOUS PARTIES CONCERNED HAVE REQUESTED THE NAMES OF YOUR LEGAL ADVISORS, TO DATE WE HAVE NOT BEEN PROVIDED THIS INFORMATION. YOUR DELAYS OR NEGLECT WILL ONLY ADD TO COSTS. I REQUEST YOU REMOVE YOURSELF FROM ISSUES THAT DO NOT CONCERN YOU AND YOU ABILITIES, YOUR PRIVATE EMAILS TO FAMILY ARE NOTHING BUT OBUSSIVE I SUGGEST ONCE AGAIN THAT A FAMILY MEETING BE HELD

ASAP.

RICHARD

[56] On February 11, 2015, Richard further emailed Julia:

LITIGATION ADMIN.

YOU OWE A LOT OF MONEY PAY UP

RICHARD

[57] Julia retained counsel and, on February 20, 2015, counsel wrote to Mr. Wyszatko’s counsel advising that she had been retained to resolve matters and identifying three areas of concern: that Mr. Wyszatko should pay rent for the use of the Estate lands, that insurance proceeds done to the buildings which she claimed were owned by the Estate be made payable to the Estate, that the loan be refunded to her client and that the Will be probated.

[58] On April 20, 2015, the adjuster wrote to Julia’s lawyer and advised that the cheque that they were holding had all loss payees on it and that Richard refused to accept it for that reason. It was for the value of the destroyed slips at the marina and represented the valued limits.

D. One More Complication: Bradford Bypass

[59] There is one more complication in all of this. Nadia’s property is directly in the route of the Bradford Bypass, a highway that is slated to join Highway 400 and Highway 404. It has been thought since at least 2003 that it is likely to be expropriated by the Province of Ontario.

III. Issues and Analysis

[60] In this decision, I will set out the issue to be tried, the evidence connected to the issue and my findings. There is an overriding issue that impacts all of the issues to be tried. Richard blames Julia for everything that transpired. He says that she acquiesced to him taking control of the marina and the Estate, and then got in the way so that nothing could be accomplished.

[61] In Richard’s view, Julia is to blame for the state of affairs which is that a decade after Nadia’s death, the Estate Trustees have not even applied for a Certificate of Appointment.

[62] Taxes, including income tax and capital gains tax remain unpaid. While Nadia principally resided on the property, the marina had claimed depreciation on the building such that the Estate would not be entitled to a capital gains principal residence exemption.

[63] Irene sides with Richard.

[64] For her part, Julia believes the only way to deal with the debts is to sell the land. She believes that Richard has stood in the way of the proper administration of the Estate including by seizing control of the marina and lands, by co-mingling funds that properly belong to the Estate, by getting in the way of the payment of insurance proceeds to the Estate and failing to pay taxes.

A. Did Julia Loan Funds to the Estate?

[65] Issue A is stated as follows:

Julia MacPherson affirms and Richard Wyszatko and Irene Winter deny that Julia MacPherson is entitled to judgment against the Respondents, the Estate of Nadia Wyszatko and/or Richard Wyszatko and/or Irene Winter, in the amount of $116,940.70 plus interest and costs in an amount equal to what she has been charged for funds she borrowed to advance to the said respondents to permit them to complete a settlement of the litigation in Court file number CV-10-101277-00, commenced at Toronto.

[66] The Court file number references the Teddy Litigation. Julia claims that the Estate owes her for money that she paid to lawyers during the Teddy Litigation and the $100,000 that she advanced to complete the settlement.

[67] While Richard had previously taken the position that the money was a gift to the Estate and a not a loan, he does not now dispute, nor does Irene, that Julia loaned $100,000 to the Estate to permit them to complete the settlement of the Teddy Litigation.

[68] However, Richard and Irene do take the position at trial that the money paid to lawyers in advance of the settlement does not fit within the language “to permit them to complete a settlement of the litigation”. Rather, Mr. Wyszatko carves off the legal fees paid by Julia personally when acting as Litigation Administrator and says that they do not properly fall within this issue.

[69] In respect of the $100,000, I accept Julia’s evidence completely on this point. She had no role in the dispute with Teddy. She was acting as a neutral party. She had no obligation to fund the settlement. In addition, her emails following the loan corroborate this narrative. I find she loaned $100,000 to the Estate to permit them to complete a settlement.

[70] In respect of monies paid by Julia to lawyers: $8,500 to Torkin Manes, $1,170 to David Shiller, $4,000 to Sendor Tator and $3,270 to Sendor Tator, I accept that Julia had no personal responsibility to pay these bills. Her evidence that she did not intend to make a gift to the Estate is reliable and, in my view, she should be reimbursed for these payments.

[71] In my view, this allows me to properly characterize Julia’s $100,000 payment as a loan to the Estate and I so find.

[72] Julia was not a party to the litigation. She was not at risk and acted as a neutral Litigation Administrator for the Estate during litigation. Had she not contributed to the legal fees, the Estate would not have been able to resolve the Teddy Litigation.

[73] In addition, the emails sent in close proximity to the time that the funds were advanced reflect that Julia and Irene treated the $100,000 that they advanced as a loan to the Estate.

[74] I find that the loan to the Estate includes the legal fees advanced by Julia ($8,500 to Teddy’s lawyers, also from her line of credit for which she has paid interest and other amounts which she did not borrow: $1,170 to the David Shiller, the lawyer acting for the Estate and two of accounts of Sendor Tator, another involved lawyer, in the amounts of $4,000 and $3,270). These payments permitted Teddy Litigation Defendants to settle the action. Julia is therefore entitled to claim those fees which total $16,940.

[75] In my view, the debt is owed by Nadia’s Estate. While the Teddy Litigation involved Richard, Irene, and Sail’er Inn, it arose out of a dispute by Teddy. There was no apportionment of the settlement as between the parties. The only fair conclusion is that it was Nadia’s Estate that benefited the most from settling Teddy’s claim to the business and the lands.

[76] I therefore find that Julia is entitled to judgment against Nadia’s Estate in the amount of $116,940.70 plus interest.

[77] I find that Julia is entitled to the actual interest paid which has been calculated based on the review of her line of credit statements which are in evidence in this proceeding. Because Julia had drawn on her line of credit for other reasons at the time, she drew $100,000 and $8,500, I have calculated the interest, have used only used the proportional value of the interest.

[78] Julia seeks this judgment not only against the Estate but also against Richard. She claims that Richard should be liable for the sums advanced on the basis that it was he who asked for the loan. It was he who had agreed to fund the litigation. Richard denied this at trial, but I do not find this credible. His evidence is undermined by the documents before me which show that on July 2, 2014, he asked Julia and Irene for money as the second part of the settlement was coming due. His email to Julia corroborates Julia’s evidence on this point that Julia was asked to step up when Richard could not fund the litigation. However, I find that this was a loan to the Estate.

[79] Julia is therefore entitled to judgment from Nadia’s Estate in the amount of $116,940. Section 130 of the Courts of Justice Act permits me to award pre-judgment interest that is higher than the about set out in ss. 128 and 129. I find it is just to award the interest actually paid by Julia on the sum of $108,500 and I calculate it at $29,027.45 as of November 30, 2022 (plus per diem interest $15.427/day) from December 1, 2022, to the date of the judgment. Post-judgment interest is at 5.1% which is the amount that Julia is presently paying to service the debt. All of these calculations were made by Julia’s counsel in final submissions, appended to her factum, and I accept them.

[80] Julia is also entitled to the cost of her insurance on this loan. Richard did not object to it, and I find that she was prudent in obtaining it and that it was for the benefit of the Estate. For this reason, Julia is entitled to the cost of maintaining insurance on her line of credit.

B. Is Julia Entitled to Estate Compensation as Estate Trustee During Litigation?

[81] Issue B:

Julia MacPherson affirms and Richard Wyszatko and Irene Winter deny that Julia MacPherson is entitled to compensation from the Estate of Nadia Wyszatko for acting as Estate Trustee during litigation in respect of the litigation in Court file number CV-10-101277-00, commenced at Toronto.

[82] Julia claims approximately $63,000 for the administration of the Estate during litigation.

[83] Richard and Irene deny that Julia is entitled to compensation and asks that I dismiss her claim for it. Richard’s alternative position is that compensation be set no higher than $24,250 which represents 5.0% of the settlement of the Teddy Litigation. He argues that she volunteered for the job. If she wanted to be paid for it, she should have inquired, and she did not.

[84] Richard and Irene claim that they never agreed to pay her for the role. Julia did not ask to be paid during the litigation. The evidence supports this, and Julia agreed in her evidence that this was the case. Richard also claims that Julia should have made this request upfront, either before the settlement of the claims or as part of the settlement of the claims. It does not appear that Julia turned her mind to the issue of compensation during that period. In Richard’s view, because the parties turned their minds to so many other issues evidenced by the Minutes of Settlement in the litigation, they would have addressed the issue of compensation if it was contemplated.

[85] I disagree.

[86] The Trustee Act, R.S.O. 1990 c. T.23, entitles a person acting as a trustee to compensation. Section 61 of the Trustee Act provides:

(1) A trustee, guardian or personal representative is entitled to such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about the estate, as may be allowed by a judge of the Superior Court of Justice.

(2) The amount of such compensation may be settled although the estate is not before the court in an action.

(3) The judge, in passing the accounts of a trustee or of a personal representative or guardian, may from time to time allow a fair and reasonable allowance for care, pains and trouble, and time expended in or about the estate.

(4) Where a barrister or solicitor is a trustee, guardian or personal representative, and has rendered necessary professional services to the estate, regard may be had in making the allowance to such circumstance, and the allowance shall be increased by such amount as may be considered fair and reasonable in respect of such services.

(5) Nothing in this section applies where the allowance is fixed by the instrument creating the trust. R.S.O. 1990, c. T.23, s. 61 (5).

[87] Julia was appointed by the Court. She acted as Litigation Administrator during litigation. The parties treated her like an Estate Trustee. She properly opened an account. She gave of her time and herself to fulfill this role and she is entitled to fair and reasonable compensation in accordance with the Trustee Act.

[88] Having determined entitlement, the question is how much. In Toronto General Trusts Company and Central Ontario Railway, (1905) 6 O.W.N. (350), the Ontario High Court set out criteria for assessing compensation. The factors include:

• The magnitude of the trust;

• The care, responsibility and risks assumed by the fiduciary;

• The time spent by the fiduciary in carrying out her responsibilities;

• The skill and ability required and displayed by the fiduciary;

• The results obtained and degree of success associated with the efforts of the fiduciary.

See: Re Jeffrey Estate, (1990) 39 E.T.R. 173 (Ont. Surr. Ct.)

[89] During the course of acting as Litigation Administrator, she had to make decisions affecting the marina lands, Nadia’s share of the business and the litigation settlement. It involved assisting with litigation decisions and working with the Receiver. She appeared to understand that she was acting on behalf of the Estate and attempted to exercise care in the role in the face of some resistance.

[90] There is no clear date when the role as Litigation Administrator ended. Julia continued to be involved in effecting the settlement. She also had to deal with SF Partners, the Receiver who seemed to be in the picture well into October, 2014.

[91] Julia has prepared a detailed docket of her time. The dockets were not made contemporaneously, i.e., they were not kept as she was doing the work. Rather, during litigation, she reviewed all of her email and other correspondence, her phone logs, and all of her work. She then retrospectively assessed how much time it took to complete the task. She candidly admitted that she did this when she realized that her loan was not going to be re-paid but doesn’t recall if it was prepared after this lawsuit was commenced.

[92] She claims that she worked on Estate matters for 1,197.25 hours, exclusive of phone calls, between January 17, 2013 and December 16, 2015 at $50.00 per hour, for a total claim of compensation of $59,962.50. Her phone logs total 72.91 hours and at $50/hour she claims $3,645.83 for this work for a total claim of compensation of $63,608.33.

[93] Richard argues that the compensation sought is excessive and that if I award compensation to Julia for her role as Litigation Administrator, it should not exceed 5% of the amount of the settlement, namely, $24,250.00. In my view, that assessment minimizes the responsibilities assumed by Julia when she took on this role.

[94] Julia’s account of the time spent was the subject of a lengthy cross-examination by counsel. Counsel questioned Julia about each docketed item. The dockets do appear to represent the scope of the work done. However, the time spent is not reliable. I find that at best these dockets represent Julia’s estimate of the time spent. There are may days where she allotted 8 hours a day but could not provide any specifics about what she did that day. Much of it was reading and responding to correspondence.

[95] Some of the time claimed is well after the split in the sibling alliance and well after the conclusion of the litigation. I do not find it appropriate for Julia to claim time after the last piece of correspondence on November 17, 2014. This reduces her hourly claim by 65 hours or $3,250.00. The eight-hour days were not substantiated. On hearing the evidence in respect of what occurred on those days, four hours per day could be justified. I would assess the time Julia spent by a further 4 hours for each of the 77 days on which Julia claimed to have spent 8 hours which is a further reduction of $15,400.00 (77 x 4 x $50.00). With these adjustments, based on time alone, and what I find to be a fair and reasonable rate for the work done, Julia’s compensation would be $44,958.33.

[96] The other factors support compensation of this nature. Julia fulfilled a thankless role in a heated family dispute. She had to liaise with Richard, Irene, lawyers, and the Receiver. She appears to have taken a careful approach to the work.

[97] Having reflected on the five factors and the time spent, I am of the view that compensation should be set at $44,958.33.

C. Do the Proceeds of the Insurance Claim Form Part of the Assets of the Residue of Nadia’s Estate?

[98] Issue C:

Julia MacPherson affirms and Richard Wyszatko and Irene Winter deny that the proceeds of the insurance claim which Richard Wyszatko was authorized to settle by order of this Court on December 7, 2016 and which proceeds were directed to be paid into Court pursuant to the said Order, form part of the assets of the residue of the Estate of Nadia Wyszatko.

[99] I find that the proceeds of the insurance claim that Richard was authorized to settle form part of the assets of the residue of Nadia’s Estate.

[100] Richard Wyszatko was offered an all-inclusive settlement for the loss payees, including the Estate of $460,000. These would have included Sail’er Inn Marine, Ted’s Total Marine and Albert’s Marina. Richard told the Court that he received a payment for Sail’er Inn Marine. As Ted’s claim had been resolved, this leaves the Estate of Nadia.

[101] I agree with Julia’s position that if the proceeds of the litigation are recovered, they belong to Nadia’s Estate.

D. Is Richard Wyszatko Liable for Rent for the Use and Occupation of the Property?

[102] Issue D:

Julia MacPherson affirms and Richard Wyszatko and Irene Winter deny that the Respondent Richard Wyszatko is liable to the Estate of Nadia Wyszatko for rent for the use and occupation of the real property at 21019 Bathurst Street North, East Gwillimbury, from the date of death of Nadia Wyszatko to the date of trial or judgment and that such rent forms part of the residue of the Estate.

[103] Yes.

[104] Richard asserts that he should not have to pay rent as no one ever asked him to pay rent prior to his mother’s death.

[105] That is irrelevant.

[106] In 2015, Richard registered Albert’s Marina in his name. He maintains Sail’er Inn Marine and operates it from the Estate lands. He has paid no rent. Richard has derived a benefit from being able to operate two businesses on the marina lands after Nadia’s death without the permission of the Estate. It is an example of Richard treating the assets of the Estate as his own. While he is the primary beneficiary under Nadia’s Will, the property cannot pass to him and remains with the Estate until the Estate is properly administered.

[107] The Applicant concedes that she has not proven the quantum of rent owed. Julia proposes that even if she is unable to quantify the rent, I should assign a nominal value to the rent owed by Richard for the use and occupation of Nadia’s property. She claims this because Richard operated Albert’s Marina as his own and also because he continued to operate his own business from the property. The Applicant acknowledges that Richard has paid the property taxes. For this reason, she asserts that a value of $2,000 is appropriate and claims that Richard should be ordered to pay back rent for a total amount owing $244,000 from September 2012 to November 2022.

[108] Richard argues that I should dismiss the claim for occupation rent or that it should be payable from the date of the judgment. In the further alternative, he proposes that rent should assessed by a business valuator to be paid by Julia MacPherson.

[109] I find that Richard is liable for occupation rent. I do not find that it is appropriate to order it paid from the date of Nadia’s death as the family was embroiled in the Teddy Litigation and the situation was unclear. The issue became clear with the settlement of the Teddy Litigation, and this is an appropriate point for Richard to be liable for occupation rent.

[110] I find that Richard shall be liable for occupation rent from June 3, 2014, until the property is vacated by Richard and his businesses. While the $2,000 nominal rent is a practical proposal, I have no evidence about the appropriateness of the amount for the years that have passed. If Richard cannot agree to that, Richard shall bear the cost of an appraisal conducted by one of three appraisers proposed by Julia. Unless the parties can come to an agreement, the occupation rent shall be the value appraised.

[111] From the date of judgment, however, Richard shall pay to the Estate occupation rent in the amount of $2,000 monthly. If the rent appraised is more or less, the balance of rent owing by Richard is to be adjusted accordingly.

E. Does the Real Property, Together with the Buildings, Structures and Docks, Form Part of the Residue of Nadia’s Estate?

[112] Issue E:

Julia MacPherson affirms and Richard Wyszatko and Irene Winter deny that the real property located at 21019 Bathurst Street North, East Gwillimbury, together with all buildings, structures and docks thereon form part of the assets of the residue estate of Nadia Wyszatko.

[113] Richard asks that I consider Nadia’s intentions when I examine the Will. He asserts that it makes no sense that Nadia would leave him her share of the marina without leaving the lands. Without the lands, the marina is nothing.

[114] Julia submits that the law does not support Richard’s position. In her view the Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, (“CLPA”), s.15(1) provides that:

Every conveyance of land, unless an exception is specially made therein, includes all houses, outhouses, edifices, barns, stables, yards, gardens, orchards, commons, trees, woods, underwoods, mounds, fences, hedges, ditches, ways, waters, watercourses, lights, liberties, privileges, easements, profits, commodities, emoluments, hereditaments and appurtenances whatsoever to such land belonging or in anywise appertaining, or with such land demised, held, used, occupied and enjoyed or taken or known as part or parcel thereof, and, if the conveyance purports to convey an estate in fee simple, also the reversion and reversions, remainder and remainders, yearly and other rents, issues and profits of the same land and of every part and parcel thereof, and all the estate, right, title, interest, inheritance, use, trust, property, profit, possession, claim and demand whatsoever of the grantor into, out of or upon the same land, and every part and parcel thereof, with their and every of their appurtenances.

[115] In short, the buildings and structures go with the land. Despite that Nadia left the marina to Richard, the land belongs to the Estate and so too do the buildings, structures, etc. on it.

F. Does Nadia’s Partner’s Equity Form Part of the Assets of the Residue of the Estate?

[116] Issue F:

Julia MacPherson affirms and Richard Wyszatko and Irene Winter deny that the value of “Partner’s Equity” in the business known as Albert’s Marina owned by Nadia Wyszatko at the date of her death forms part of the assets of the residue of the Estate of Nadia Wyszatko.

[117] Richard inherited Nadia’s interest in Albert’s Marina. Does that interest entitle him to 50% of Nadia’s partnership equity? Or does that equity form part of the assets of the residue of the Estate? That equity was valued in 2013 by Chaggares & Bonhomme at $264,609.41.

[118] Richard’s position in this litigation is that he is entitled to Nadia’s interest in the business under the Nadia’s Will and that he should be entitled to 50% of Nadia’s equity.

[119] I cannot accept this.

[120] The business of Albert’s Marina was a lift and launch business which put boats in the water in the Spring, took them out in the Fall, rented boat slips and storage space, and sold gas. I find that when Nadia conveyed her 50% interest in the business, she intended to convey her interest in the revenue stream and equipment necessary to do that work, exclusive of anything that would fall under the definition of the CLPA.

[121] Nadia’s Will provides that:

UNTO MY TRUSTEES hereinafter named upon the following trusts:

2. To transfer my interest in the business known as “Albert’s Marina” which I owned with my late husband Albert Wyszatko to my son RICHARD WYSZATKO.

[122] However, she first directed that all of her debts, funeral and testamentary expenses be paid.

[123] In addition, nothing is vested until the debts are paid. The Estates Administration Act, R.S.O. 1990, s. E.22. S. 2(1) provides:

All real and personal property that is vested in a person without a right in any other person to take by survivorship, on the person’s death, whether testate or intestate and despite any testamentary disposition, devolves to and becomes vested in his or her personal representative from time to time as trustee for the persons by law beneficially entitled thereto, and, subject to the payment of the person’s debts and so far as such property is not disposed of by deed, will, contract or other effectual disposition, it shall be administered, dealt with and distributed as if it were personal property not so disposed of.

[124] In short, the property cannot pass to the beneficiaries of an estate until the debts of the estate have been paid. See Re Milne Estate, 2019 ONSC 567, at paras. 36 to 40 and In the Matter of the Bankruptcy of the Testamentary Estate of Jeffrey James Wilson, 2019 ONSC 1278, at para. 35.

[125] The evidence is that during the Teddy Litigation, Richard took the position that Nadia’s equity formed part of Nadia’s Estate.

[126] However, on her death, he took control of the marina, registered it in his name in 2015, seized the profits but did not pay the liabilities of the Estate or the taxes. He says that the partnership equity does not form part of the residue of the Estate.

[127] Chaggares & Bonhomme described Nadia’s partner’s equity as being an asset of the Estate in 2013 statements.

[128] In my view, the question is one that cannot be answered in the way that it is framed. Partner’s equity is an accounting term which reflects a partner’s share of the business’s assets less its liabilities. The business claimed as assets structures and docks, which under my analysis above will run with the land which I have determined formed part of the residue of the Estate.

[129] The Estate Trustees will need to determine what assets Albert’s Marina exclusive of the structures etc. will fall within the meaning of s. 15 of the CLPA as I have set out above.

[130] Nadia’s equity as quantified by Chaggares & Bonhomme in 2013 cannot be said to pass to Richard as part of Nadia’s interest in the Estate because of s. 15 of the CLPA.

G. Liabilities of the Estate to be Quantified

[131] Issue G:

In addition to any amounts found to be due and owing to Julia MacPherson pursuant to issues a) and b) above, are the following liabilities of the Estate of Nadia Wyszatko which must be quantified and paid from the assets of the Estate of Nadia Wyszatko: (i) All income tax liability of the late Nadia Wyszatko and of the Estate of Nadia Wyszatko, including capital gains tax and interest and penalties, (ii) legal account from David Shiller, (iii) Fees to accountants Chaggares & Bonhomme, (iv) Royal Bank of Canada line of credit.

(i) Taxes

[132] The parties admitted at trial that the tax liabilities of the Estate must be satisfied. I find that the outstanding taxes, interest, and penalties are liabilities of the Estate of Nadia and shall be paid from the assets of her Estate.

[133] It would be speculative to quantify the taxes owing and I will not do so. But the situation is dire.

[134] The evidence of Pierre Bonhomme was that the draft income tax return for 2012 for Nadia, which was never filed, showed a tax liability of $363,302.11. With interest and penalties, the liability could be as high $654,597.54 as of November, 2022. There are also HST liabilities. Richard appears to have collected HST but never applied for an HST number for the Estate. The total tax liabilities at the time of trial were estimated to be $829,449.83 plus penalties and interest compounding daily.

(ii) David Shiller

[135] David Shiller sued on his account and the Estate was noted in default. His claim must be quantified but it is a liability of the Estate and must be paid from the assets of the Estate.

(iii) Accountants

[136] The evidence at trial was that there were no fees owing to the accountants Chaggares & Bonhomme.

(iv) RBC

[137] RBC line of credit was paid off by SF Partners. Richard in turn paid SF Partners off. However, when Richard co-mingled funds, he appears to have paid himself in full the sum of the loan. I find that it is not a debt of the Estate.

H. Creditors of the Estate

[138] Issue H:

Are the following persons/entities creditors of the Estate of Nadia Wyszatko such that the amounts owing to them must be quantified and be paid from the assets of the Estate of Nadia Wyszatko: (i) Richard Wyszatko (ii) Irene Winter (iii) Erickson’s Woodworking (iv) Douglas Electrical (v) Other alleged unpaid contractors (vi) Consolidated Appraisers?

(i) Richard

[139] Richard asserts that he should be paid $60,000 annually from June 4, 2014, for managing the marina. His position is that he took care of the marina, and without the marina, there would be no Estate.

[140] Richard has produced no reliable information for his claim.

[141] He operated the business as if it was his own but claims that he has done so on behalf of the Estate. There is nothing that would represent proper business records. I have no reliable information about the income and expenses of Albert’s Marina. He has made no account of the profits.

[142] Richard claims he is owed $150,000 for payment to SF Partners. I do not agree.

[143] Richard claims to have set up a home equity line of credit as an Estate account. As further detailed below, he co-mingled his personal funds and Estate funds in this account.

[144] I accept fully the reconciliation prepared by the Applicant’s counsel as part of her final submissions drawn from Exhibits 70, 71 and 72 of the transfers in and out of his line of credit. This reflects that he paid $49,540.85 of his personal litigation expenses out of the account. He drew $537,000, including $150,000 to retire SF Partners. He transferred $485,000 back in. He also transferred $18,500.00 to Sail’er Inn Marine.

[145] It is also clear that he has paid personal expenses from the Estate revenues.

[146] All of this demonstrates that Richard acted solely in his own interest and not in the interest of the Estate. There is nothing that demonstrates that he has acted as an Estate Trustee deserving of compensation.

(ii) Irene

[147] Irene has offered no proof that she is entitled to compensation or that she took any responsibility as an Estate Trustee. Instead, I find that Irene stuck her head in the sand and failed to address the obligations of the Estate. I find that she is entitled to no compensation.

(iii) Erickson’s Woodworking

[148] Any claim that Erickson’s Woodworking might have is statute barred. There is no liability on the part of the Estate to Erickson’s Woodworking.

(iv) Douglas Electrical

[149] The Respondents now admit that Douglas Electrical is not a creditor of the Estate.

(v) Other Unpaid Contractors

[150] None have been identified.

(vi) Consolidated Appraisers

[151] The parties agree that there is no debt to Consolidated Appraisers.

I. Did Edmund Die Intestate?

[152] Issue I:

Is Julia MacPherson entitled to a 13% interest in the residue of the Estate of Nadia Wyszatko together with a further 3.33% interest in the residue of the Estate of Nadia Wyszatko by reason of the death of Edmund Wyszatko, intestate?

(i) How Does This Issue Arise?

[153] This issue raises the question of whether a handwritten note is Edmund’s holograph Will. Richard asserts that he is the sole beneficiary under this note. Edmund had no other Will. If the handwritten note is a holograph Will in favour of Richard, then Julia’s interest in Nadia’s Estate is 13%. If Edmund died intestate, she is entitled to 25% of Edmund’s Estate under the laws of intestacy. As he inherited his 10% of the residue of the Nadia’s Estate, this would result in Julia having a further 2.5% interest in Nadia’s Estate.

[154] The question was framed as 3.33%, rather than 2.5%, because of an oversight, as there are four surviving siblings, not three.

(ii) The Note

[155] Julia testified that some of the note is in Edmund’s handwriting, particularly his signature. She was not certain that it is entirely in Edmund’s handwriting. David Winter, Irene’s son, testified that Edmund prepared it before his death.

[156] David Winter was not asked whether the handwriting was Edmund’s and neither did Richard confirm that the handwriting was Edmund’s.

[157] David Winter testified that one of the witnesses to the note was concerned about the note and after witnessing the document wrote on it in blue ink “not to be used for legal purposes”. David said that the document was signed when Edmund was in the hospital. Julia was concerned that Edmund was medicated while in hospital and that he was hoping to get a bone marrow donation from Richard.

[158] The note is not dated. Nowhere in the note is it identified as a Will. The document does not specify an intention to make a Will. The words in the short note are set out as follows:

David Winter

• Power of Attorney

• Richard gets my Property Share

• You get my music

• Richard Wyszatko my dear brother

• You help out.

Just in Case

Edmund James

[159] These words do not convey an intention to make a Will.

[160] I am not satisfied that document is Edmund’s Will. I do not have evidence that it is entirely written in Edmund’s handwriting so as to satisfy section 6 of the Succession Law Reform Act. I conclude the Edmund died intestate.

[161] Edmund had no heirs. His siblings, Richard, Ted, Julia, and Irene will take in equal shares under the rules of intestacy. I conclude that Julia is entitled to 13% of Nadia’s Estate together with a further 2.5% by virtue of the intestacy of Edmund.

J. Should the Property be Sold?

[162] Issue J:

Should the real property at 21019 Bathurst Street North, East Gwillimbury, be sold on the open market at fair market value for the purpose of satisfying the debts owing by the Estate to Julia MacPherson and others and for the purpose of satisfying Julia MacPherson’s interest in the Estate of Nadia Wyszatko?

[163] There are no other assets to pay the debts of the Estate. It must be sold.

[164] Richard argues that this is akin to a fire sale, given the threat of expropriation. That may be. But that is a direct consequence of his failure as an Estate Trustee.

[165] There is no other option but sell.

K. Should an Independent Third-Party Estate Trustee be Appointed?

[166] Issue K:

Should an independent third-party Estate Trustee be appointed as Estate Trustee with a Will in the Estate of Nadia Wyszatko for the purpose of administering the Estate of Nadia Wyszatko?

[167] In my view, this is the best way forward. It may be the only way forward. However, at the time of the trial, Scotiabank had withdrawn its consent to be appointed. I appreciate that it may be challenging to find a third-party to be appointed. Given my determination of the other issues, it may be that a willing candidate could be found.

[168] I urge the parties to work together to find a suitable independent third-party Estate Trustee. The parties shall have 45 days to propose a candidate, failing which I decline to make any order at this time appointing a third-party Estate Trustee.

L. Is Richard Entitled to Compensation?

[169] Issue L:

Is Richard Wyszatko entitled to compensation for acting as Estate Trustee of the Estate of Nadia Wyszatko?

(a) Compensation

[170] In final submissions, Richard sought to be paid the sum of $65,000 annually, for his administration of the Estate which he says he is entitled to because he managed the Estate, namely the marina business and paid property taxes and that he should be compensated. Irene also seeks compensation, which Richard supports, because she helped from time to time.

[171] Richard claims that he was very involved in the lawsuit, overseeing the marina, and assisting Julia with her responsibilities when she was acting as Litigation Administrator. It is true that he appears to have operated the marina since Nadia’s death, essentially by seizing control and refusing to apply to have the Estate administered necessitating this application. Rather than being for the Estate’s benefit, I find that his actions have been to the detriment of the Estate.

[172] When Richard took over operating the marina, he claims that Albert’s Marina did not have its own account. He used a home equity line of credit in his own name, funded it with his own money, and placed revenues of the marina in it. He claims that 50% of the marina funds were going to the Estate.

[173] Richard kept the marina running. But for his own benefit, without regard to the law governing the administration of estates, and without fulfilling a primary duty to satisfy the debts of the Estate. He has done nothing that would demonstrate that he is exercising his duties as an Estate Trustee.

[174] I do not accept that the home equity line was an Estate account.

[175] In this account, Richard co-mingled personal funds and marina funds. He treated Albert’s Marina as a sole proprietorship. He paid himself and his wife from this account. He preferred his interests over the Estate’s and others. Notably, he made no repayment of Julia’s loan from this account. He ran personal expenses through this Estate account. He paid Irene from time to time, which he testified was a contribution to her property taxes because some marina docks are on Irene’s land. He paid his personal litigation costs, including a portion of mediation costs that he was ordered to pay personally, from the account.

[176] Richard also had a TD Visa account which he states that he used for Estate business and another Visa account.

[177] I find that the home equity line of credit was not an Estate account and that it represents Richard’s after the fact attempt to suggest that he was acting as Estate Trustee when at all times he acted in his own self interest, rather than in the interests of the Estate.

[178] I also find that Richard has not produced proper accounts as ordered by this Court.

[179] The consequence of Richard’s obstinance is staggering. The Estate has not been dealt with. The family has split. Taxes are mounting. Everyone agrees that I cannot quantify the tax liability, as there are many variables that could affect it. However, it is illustrative of the consequence of the negative impacts of Richard’s failure to fulfill his duties as Estate Trustee.

[180] Richard has not fulfilled any duties of an Estate Trustee and is not entitled to compensation.

[181] Irene has not fulfilled any duties of an Estate Trustee and she is not entitled to compensation.

(b) Breach of Fiduciary Duty Argument

[182] The Applicant argues that Richard has breached his fiduciary duty and that I should order disgorgement of funds by ordering Richard to pay personally the amounts owing to Julia as a remedy for this breach.

[183] My findings above demonstrate that Richard has preferred his own interests to those of the Estate’s. However, the issue of breach of fiduciary duty and disgorgement of profits is not an issue that was pleaded. It was not squarely before me, and it was raised for the first time in final submissions.

[184] Richard has been ordered to account. He has not delivered satisfactory accounts. I decline to address this issue at this trial without prejudice to the right of the Estate Trustee to pursue a remedy for Richard’s failure to keep and deliver proper accounts.

IV. Orders

[185] In accordance with my findings above, I make the following orders:

a. Julia MacPherson is entitled to judgment against the Respondents the Estate of Nadia Wyszatko and Richard Wyszatko in the principal amount of $108,500 plus pre-judgment interest in the amount of $29.027.45 to November 30, 2022, together with further pre-judgment interest from November 30, 2022 in the amount of $15.43 per day to the date of this judgment and post-judgment interest thereon at 5.19%.

b. Julia MacPherson is entitled to judgment against the Respondents the Estate of Nadia Wyszatko and Richard Wyszatko in the principal amount of $8,440.70 plus pre-judgment interest calculated at the rate of 0.8% from April 7, 2016 to November 30, 2022 in the amount of $450.13, together with further pre-judgment interest from November 30, 2022 in the amount of $ 0.19 per day to the date of this judgment and post-judgment interest thereon at 4% per annum.

c. Julia MacPherson is entitled to compensation from the Estate of Nadia Wyszatko for acting as Litigation Administrator in respect of the litigation in Court file number CV-10-101277-00, commenced at Toronto in the amount of $48,500.00.

d. The proceeds of the property insurance claim made in respect of the policy issued by Lloyd’s Underwriters and Lloyd’s Canada Inc., which Richard Wyszatko was authorized to settle by order of this Court on December 7, 2016, and which proceeds were directed to be paid into Court pursuant to the said Order, form part of the assets of the residue Estate of Nadia Wyszatko.

e. The Respondent Richard Wyszatko is liable to the Estate of Nadia Wyszatko for occupation rent for the use and occupation of the real property at 21019 Bathurst Street North, East Gwillimbury, (hereafter the “Estate Property”), from June 3, 2014 to the date of this judgment and that such rent forms part of the residue of the Estate. The quantum of the rent is to be fixed following an appraisal conducted in accordance with this judgment.

f. Richard Wyszatko, Sail’er Inn Marine and any business operating on the Estate Property by Richard Wyszatko, his partners, his servants, agents or assigns shall pay to the Estate of Nadia Wyszatko ongoing rent on a monthly basis for the use and occupation of the Estate Property from the date of this judgment to the date when the property is vacated by and no longer used for any business operated by Richard Wyszatko, his partners, his servants, agents or assigns in an the amount of $2,000 monthly from the date of this judgment forward until an appraisal is obtained whereupon the rent will be adjusted retroactively to match the value of the appraisal.

g. The real property located at 21019 Bathurst Street North, East Gwillimbury, together with all buildings, structures and docks and covered docks thereon forms part of the assets of the residue Estate of Nadia Wyszatko.

h. Julia MacPherson is entitled to a 13% interest in the residue of the Estate of Nadia Wyszatko, together with a further 2.5% interest in the residue of the Estate of Nadia Wyszatko by reason of the death of Edmund Wyszatko, who died intestate, for a total interest of 15.25% of the residue of the Estate.

i. Richard Wyszatko and Irene Winter are not entitled to any fee for acting as Estate Trustee of the Estate of Nadia Wyszatko.

j. Richard Wyszatko is not entitled to compensation for acting as manager of the marina on behalf of the Estate of Nadia Wyszatko.

k. Richard Wyszatko and Irene Winter are not creditors of the Estate of Nadia Wyszatko.

l. The Parties each shall have 45 days to propose a third-party estate trustee, failing which there shall be no appointment of a third-party estate trustee.

V. Costs

[186] The parties are strongly encouraged to agree on costs.

[187] As the Applicant has been successful, she is presumptively entitled to her costs. If the parties cannot agree on costs, the Applicant may provide her costs submissions within 30 days of the release of this judgment, limited to four double-spaced pages exclusive of offers to settle and supporting docket/documentation. The Respondents shall have 20 days to respond with their cost submissions of the same length. There shall be no reply.

Justice S.E. Fraser

Date: June 30, 2023