ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BOBBY GIANN and VASILIKI (BESSIE) GIANNOPOULOS
Applicants
– and –
NICK GIANNOPOULOS, PANAGIOTA PAPASTEFANOU (a.k.a. PANAYIOTA PAPASTEFANOU and YIOTA PAPASTEFANOU), DOMNIKI SAKELLARIS, KONSTANTINA SAKELLARIS, a minor, and FOTIOS SAKELLARIS, a minor
Respondents
Michael Crampton, for the Applicants
Benjamin D. Arkin and Brian Han, for the respondent Nick Giannopoulos
Peter Askew, for the Ontario Children’s Lawyer representing the interests of Konstantina Sakellaris, a minor, Fotios Sakellaris, a minor, and any future, unborn beneficiaries of the estate of Fotios Giannopoulos, deceased
Sandeep (Sonie) Chahal, for the respondent Domniki Sakellaris
Alexandra V. Mayeski, for non-parties Louis Alexopoulos and John (Yiannis) Alexopoulos
HEARD: September 15, 2023
fl myers j
REASONS FOR JUDGMENT
This Proceeding
1Bobby Giann and Bessie Giannopoulos are adult siblings. They apply for a declaration that their father Fotios Giannopoulos lacked capacity or was unduly influenced when he made property transfers in and after 2018 and when he made a new will in April, 2021. They claim that the father’s 2016 will should be recognized as his valid will.
2The respondent Nick Giannopoulos is the applicants’ brother. He has benefited from the transfers and under the will challenged by the applicants. He opposes his siblings’ claims in this application.
3The respondent Domniki Sakellaris is the fourth child of the deceased. Her position in the application is not yet clear. But she supports the applicants on the motion that is currently before the court.
4In his 2016 will, Fotios Giannopoulos appointed the applicant Bessie Giannopoulos and the respondent Nick Giannopoulos as his estate trustees. He left his assets to each of his four children in equal shares. However, the share of Domniki Sakellaris was to be held in trust with the annual income to be paid to her. The capital interest was to be held for Domniki Sakellaris’s minor children on her death. The estate trustees were also given a power to encroach on the capital in favour of Domniki Sakellaris.
5The deceased, Fotios Giannopoulos, had two assets of substantial value – his home and his dry-cleaning business and premises.
6In his 2021 will, Fotios Giannopoulos still appointed Bessie Giannopoulos and Nick Giannopoulos as his estate trustees. He left his home to be divided in equal quarters among Bobby Giann, Bessie Giannopoulos, Nick Giannopoulos, and the children of Domniki Sakellaris. There is no longer a life interest in income provided for Domniki Sakellaris.
7Unlike the 2016 will however, in his 2021 will, Fotios Giannopoulos left his business assets solely to Nick Giannopoulos.
8When he changed his will in 2021, Fotios Giannopoulos left a contemporaneous note with his lawyer explaining the changes that he made from the 2016 will. The translation of the note from Greek provides:
I want to give my grandchildren, Kostantina and Foti Sakellari, Domniki’s share because I am afraid that [her husband] and Domniki will squander my property. I am worried about their [translator’s note: additions or intentions]. Domniki has written me off as her father. I do not want the property that I worked hard with [my spouse] to acquire and acquired to get lost.
I decided to leave the entirety of the property at 327 Danforth Avenue to my son, Niko Giannopoulo, because he stood by me and offered me everything. He was the only one who showed interest in me, and he deserves so much. I do not consider what I am giving him a significant amount. I wish I could give him more.
9This is the classic situation, seen ever day in estates court, where one child is preferred by a deceased parent ostensibly to reward extra effort committed by the child to care for the parent. The other children however allege that the preferred child took advantage of his special relationship with the parent to cause the parent to give him more than his fair share - either against the parent’s actual wishes or when the parent lacked capacity to make a knowing, intentional, adult decision.
10The question then becomes whether the deceased parent freely chose to benefit a child who spent extra effort caring for the parent or whether the child used a position of power and trust to abuse the vulnerable parent to gain a disproportionate share of the parent’s largesse.
11On this motion, the applicants seek orders granting them access to their late father’s financial records, his lawyers’ files, and his medical records. They submit that the medical and legal files will be relevant to the father’s capacity and to the role of Nick Giannopoulos in obtaining the will change and the other related transactions of which the applicants complain. The financial files are relevant, the applicants submit, to show the extent of the benefits improperly obtained by Nick Giannopoulos.
Motions from Directions and Production
12In regular civil litigation the issues in this motion would not arise. Normally, when a plaintiff sues a defendant, the Rules of Civil Procedure automatically require the parties to disclose to each other all the documents in their possession, power, or control that are relevant to the issues in the lawsuit. Legal advice in lawyers’ files will be protected by privilege and will not be producible generally. Medical files, financial files, bank records, and the like, no matter how private or embarrassing, are presumptively subject to disclosure.
13Estates litigation, especially this classic formulation of sibling dispute, raise slightly different issues however. The principal defendant, the person whose actions are in issue, is dead and gone. He or she cannot deliver a pleading, adduce evidence, or move for summary dismissal of the claim before being put to the expense, inconvenience, and embarrassment of disclosure. Worse still, in an estates case like this one, the thinnest of allegation by a jilted child can thwart the deceased parent’s intention and deprive deserving siblings of their just due. Simply by making an untested, or even a malicious allegation, a resentful child can embroil an estate and siblings in years of ruinously expensive litigation.
14The common law and the Rules of Civil Procedure have responded to guard against the threat of abuse caused by the absence of the deceased. In cases such as this, an initial hurdle is perfected to test an applicant’s allegations before risking allowing him or her to use the cost and delay of the civil litigation process to punish the rest of the family. It is not a high hurdle. It can be readily surmounted with evidence adduced by the applicant to show that there is a real basis for the claim or, in legal terms, that there is some prima facie merit to the allegations made.
15In Neuberger v. York, 2016 ONCA 191, the Court of Appeal dealt with the rights of potential beneficiaries to contest a will. The issue in that case was whether a will would be recognized (granted probate) without requiring “proof in solemn form” (i.e., a full lawsuit into the questions raised by the disgruntled child applicant). The parties agree that the same principles apply in this application.
16In Neuberger, the Court of Appeal held at para. 88:
In my view, an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.
17The Court of Appeal expanded on the applicable hurdle as follows:
[89] Based on the above analysis, in my view, an applicant or moving party under rule 75.06 must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded. If the applicant or moving party fails in that regard or if the propounder of the testamentary instrument successfully answers the challenge, then the application or motion should be dismissed. If, on the other hand, the applicant or moving party adduces or points to evidence that calls into question the validity of the testamentary instrument which the propounder does not successfully answer, the court would generally order that the testamentary instrument be proved.
18Two points emerge from this paragraph. First, there is a burden on an applicant to adduce or point to some evidence which, if accepted, would call into question the validity of the will. I note that the judge is not holding a trial at this stage. The judge does not generally assess whether the evidence is proven true at this initial stage. Rather, the evidence need only be evidence which would support the claim if accepted at a trial or at a dispositive hearing some time in future.
19The second point is that the respondent estate and beneficiaries have an opportunity to answer the applicant’s evidence. If the respondent “successfully answers” the applicant’s evidence, then the claim does not go forward.
20What does it mean to successfully answer evidence that itself is not subject to strict proof of its truth? What type of fact-finding process is involved? This is plainly not a trial where witnesses are examined and cross-examined in open court and their evidence is subjected to a rigorous review for reliability and credibility. Moreover, it is not a motion for summary judgment where the court can make findings of fact and draw inferences after each party has put his or her “best foot forward” and the judge concludes there is no genuine issue requiring a trial.
21But that does not mean that there is no credibility assessment involved.
22The Court of Appeal discussed the nature of the burden of proof at the preliminary hurdle stage in Johnson v. Johnson, 2022 ONCA 682. Like this case, Johnson involved a disgruntled adult child contesting a will under which she was disinherited. Like the applicants here, the applicant in Johnson sought production of the medical, legal, and financial records of her deceased parent. The judge who heard the motion at first instance rejected the request. The Court of Appeal upheld the lower court’s refusal to allow the challenge to proceed to the production stage.
23The Court of Appeal expressly recognized that the motion judge was required to make some findings of fact. At para. 10 of the decision, the Court of Appeal held:
[The motion judge] was not persuaded by Nancy’s evidence that the change to the 2015 will was inexplicable or that Mrs. Johnson might have lacked capacity. She was entitled to come to these conclusions.
24It is instructive to follow how the Court of Appeal addressed the evidentiary and factual issues:
[11] The application judge rejected Nancy’s argument that the will change was inexplicable and therefore suspicious. The application judge accepted the respondents’ evidence that Nancy’s own actions led to a serious and irreparable breach with her mother in 2014, well before the execution of the 2015 will. She accepted the evidence that a serious conflict between Nancy and Mrs. Johnson arose in 2014 because of Nancy’s actions as her mother’s attorney for property and personal care in which she appointed herself joint beneficiary of her mother’s investments. Mrs. Johnson demanded an accounting from Nancy that was never provided. Assisted by Janice and Hugh, Mrs. Johnson was then obliged to commence litigation against Nancy and the financial institution that held Mrs. Johnson’s investment accounts so that she could regain control of them. The application judge also accepted the evidence from Mrs. Johnson’s caregivers that Nancy had been abusive to her mother during a telephone conversation in June 2015. She concluded that the totality of this evidence “disclosed a rational and entirely understandable reason for Mrs. Johnson to have prepared a new will in August 2015 to remove [Nancy] as a beneficiary”.
[12] Further, we disagree with Nancy’s submission that the application judge fell into legal error in her consideration of capacity. In our view, Nancy’s submission conflates the consideration of evidence respecting the issue of capacity, as required in the preliminary vetting of Neuberger approach, with a final determination of the issue of capacity for the purposes of determining testamentary validity were the application for proof in solemn form permitted to proceed. As Neuberger instructs, the application judge correctly analyzed the evidence to determine if Nancy had provided some evidence that, if accepted, would call into question the validity of the 2015 will, and if the respondents’ evidence successfully answered any challenge that arose as a result of Nancy’s evidence.
[13] To that end, the application judge focused on the key evidence respecting Mrs. Johnson’s capacity. She considered the evidence of the three siblings and the brief letter written by Mrs. Johnson’s doctor, Dr. Baxter, on April 8, 2015 providing a dementia diagnosis. This letter was provided in response to Mrs. Johnson’s financial advisor’s query about her capacity to understand or deal with her accounts. It was not a formal capacity assessment, nor, significantly, did Mrs. Johnson’s doctor indicate she lacked capacity. Moreover, a mere diagnosis of dementia, without more, does not determine the question of capacity; to hold otherwise risks falling into impermissible stereotypes about individuals with mental health and other challenges: Lewis v. Lewis, 2019 ONCA 690, 49 E.T.R. (4th) 175, at para. 6. In any event, the contents of Dr. Baxter’s letter undermine the suggestion of incapacity – he indicated in his letter that Mrs. Johnson would be able to understand “a simple form and its implications if they were explained to her.” The application judge was also entitled to reject Nancy’s description of her mother’s abilities, which she found was exaggerated, and instead to rely on the affidavit evidence of Janice and Hugh that while Mrs. Johnson’s health had its setbacks and was gradually declining as a result of her age, she remained capable and competent to manage her own affairs until late in 2018.
[14] Significantly, the application judge could look beyond the evidence of the siblings. The application judge preferred the evidence proffered by Mrs. Johnson’s solicitors to Nancy’s evidence. First, Mr. Gervais, who acted for Mrs. Johnson in the litigation against Nancy and Mrs. Johnson’s financial institution, deposed that he found her to be “very sharp” and knowledgeable about her finances and that he had no concerns when he met with Mrs. Johnson in May 2015 about her capacity to instruct him or that she may have been acting under the influence of another person. As she was entitled to do, the application judge found that Mr. Gervais’s evidence “neutralized” any suggestion at that time of incapacity arising out of the dementia diagnosis discussed a month earlier in the letter from Dr. Baxter. Indeed, the uncontested evidence by Mr. Gervais, Janice, and Hugh that Mrs. Johnson instigated and participated in the litigation process, albeit with her children’s assistance, but without a litigation guardian, formed part of the evidence before the application judge. The fact that a person in her 90s might need her children to drive her to appointments and assist her in other ways is not surprising and does not, without more, give rise to suspicious circumstances. Moreover, Mrs. Johnson’s long-time lawyer, Mr. Leach, “obviously felt comfortable taking instructions” from her and allowing her to execute the 2015 will in August 2015. Again, there was no suggestion that Mr. Leach was not competent. Without evidence to the contrary, it was reasonable in the circumstances of this case to infer that Mr. Leach would have properly carried out his duties as a solicitor and would not have permitted Mrs. Johnson to execute the 2015 will if he had any concern about her capacity or suspected undue influence: see: Lewis, at para. 7; Hall v. Bennett Estate (2003), 2003 CanLII 7157 (ON CA), 64 O.R. (3d) 191 (C.A.), at para. 48. Finally, the application judge found there was no evidence of undue influence. Indeed, neither Janice nor Hugh was in the city when their mother executed the 2015 will.
[15] We see no error in the application judge’s analysis or her findings. She applied the correct approach from Neuberger. Her findings are rooted firmly in the record and are entitled to appellate deference. It was open to the application judge to find that Nancy’s evidence, even if accepted, was not sufficient to call into question the validity of the 2015 will and that, in any event, the respondents had successfully answered any challenge. The onus was on Nancy to meet the minimum evidentiary threshold with some evidence to rebut the presumption that Mrs. Johnson had the requisite capacity and to show undue influence: Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, at paras. 26-27. She failed to do so. [Emphasis added.]
25The Court of Appeal was very clear that the preliminary vetting process is not to be confused with making findings of fact at trial. I am not considering if the applicants’ evidence is true. Rather, I am looking at whether the evidence that they adduce actually puts in issue the capacity of the deceased or is prima facie evidence of undue influence and, if so, whether the evidence of the respondents is a complete answer.
26Overall, I find that, as in Johnson, the evidence supports a conclusion that Fotios Giannopoulos suffered age-appropriate decline and symptoms of dementia. Like Mrs. Johnson, Mr. Giannopoulos’s health had its setbacks. He had specific bouts of ill health in 2019 and later in 2021. But, apart from Bessie Giannopoulos’s cherry-picked medical notes from Florida in 2019, there is no evidence that Fotios Giannopoulos lacked capacity when he signed his new will with his lawyer in April 2021.
27As to undue influence, the applicants ask the court to draw numerous inferences from their evidence – like that the respondent Panagiota Papastefanou is serial elder abuser who had no innocent reason to care for the deceased.
28The applicants submit that there are suspicious circumstances that can lead to an inference of undue influence:
(a) That Fotios Giannopoulos was isolated during the COVID-19 pandemic;
(b) That Fotios Giannopoulos relied on Nick Giannopoulos and Panagiota Papastefanou for many of his activities of daily living and instrumental activities of daily living; and
(c) That Fotios Giannopoulos named Panagiota Papastefanou as an alternate beneficiary of his business assets in the event that his son Nick did not survive his death.
29All of these circumstances are answered completely by the respondents. It is significant that the applicants did not cross-examine or deliver further evidence in reply to the respondents’ evidence. The respondents’ evidence is unchallenged.
30I remind myself that in cases such as this, applicants can have little transparency into an abusive relationship with a gatekeeping attendant covering his or her tracks. But here, as discussed below, even the prima facie concerns, are just conjecture and mudslinging rather than actual evidence on which an inference can be drawn.
31The evidence of the respondents answers the allegations made by the applicants. The respondents have shown that there was a rational and entirely understandable reason for the deceased Fotios Giannopoulos to benefit Nick Giannopoulos and to prefer Domniki Sakellaris’s children ahead of her.
32The is no unanswered evidence to call into question Fotios Giannopoulos’s capacity in April, 2021 or to credibly raise an issue of undue influence.
33Finally, it is not clear to me if this proceeding is intended to be a request that the respondents, or any of them, pass their accounts in relation to Fotios Giannopoulos. Nick Giannopoulos accepts his obligation to make a transparent accounting for his time as attorney for property of his father and as an estate trustee. If the applicants wish to revamp the application to focus on a passing of accounts, and tailor the documentary production issues accordingly, I will hear the parties at a case conference convened for that purpose.
The Evidence
34This motion highlights the difference between evidence and spin. As will become evident below, much of the applicants’ supposed evidence is actually just conjecture, assumption, and allegations, spun together to try to create a negative atmosphere based on distrust and suspicion. The affidavit of Bessie Giannopoulos in particular starts from an assumption that Nick Giannopoulos and Panagiota Papastefanou are ill-motivated and then sets out isolated evidence to try to fulfill its own prophesy.
a. The Broken Family Dynamic
35Bessie Giannopoulos’s evidence begins in 2016 when her mother died. The parties agree that their mother’s death took a significant toll on their late father. He became depressed and severely demotivated in business and in his life in general.
36As a result of their father’s depression, Bessie and Nick Giannopoulos became more involved in caring for him. Nick Giannopoulos lives in Toronto and worked with his father. Bessie Giannopoulos lives in Florida and was limited to communicating with him and Nick Giannopoulos from afar.
37In a WhatsApp message that she sent to Nick Giannopoulos on July 3, 2017, Bessie Giannopoulos discussed the family dynamic. She was upset with her sister Domniki Sakellaris and Domniki’s husband for attempting to take money from their mother’s estate. Her praise for Nick Giannopoulos and her disdain for their other two siblings were quite different than her position in this proceeding:
[2017-07-03, 16:20:42] BESSIE GIANNOPOULOS: […] He [Domniki’s husband] doesn't say about how you stopped your life to take over the store all that time, and how you accommodated our parents into your life, or the fact that you are the only one who is in constant communication and in true relationship with Daddy […] if he were a nth of a man that you are, he would do whatever was necessary to support his family, and not resort to theft and beggary and using our sister as his puppet and bait to get it […] I believe, although not a hundred percent, this was the day that they were going to the bank so Mommy could give her RRSP money. Ironically enough again, regarding the will […] the only reason why we attended to it so quickly if you remember, was because the Monday before the funeral, on the third day after mommy left us, [the lawyer’s assistant] called me at home to tell me that Domna had called [the mother’s lawyer] asking about the will and saying that our mother intended to cancel it […] has our sister Under This Spell […] But let's talk in person about this maybe we can tweak it a little bit […] Do you remember how well we were all getting along, except for Bobby, before he showed up? […] I want to make sure that whatever we write, because it might be used in the future for legal purposes, I want to make sure that it is right on […] I almost feel like I want to use this opportunity to let him dig himself deeper and deeper […] [Emphasis added.]
38It is ironic that despite being aware of the fact that their communications could be used evidence in a future lawsuit, in her 260 pages of application record complaining about her brother Nick Giannopoulos’s conduct, Bessie Giannopoulos forgot to mention this message extolling his extraordinary efforts and his true relationship with their father.
39The applicant Bobby Giann concedes that he became estranged from his father in 1998. Although Bobby Giann made some efforts to reconcile with his father of late, he agrees that, after their mother died, the burden of caring for their father fell to Nick Giannopoulos. Bobby Giann describes the family relationships as follows:
- My mother fell ill in the fall of 2015 and passed away on January 1, 2016. My father was grief stricken and although he adjusted to life without my mother, he was never the same. He had lost his drive and showed little motivation for anything. He required additional support at work and at home. Nevertheless, he continued working, independently operating his Dry Cleaning and Alterations business. As things evolved, the additional support my father required fell on Nick's shoulders. Bessie was out of country, Domniki was MIA and I was preoccupied with the demands of a growing business and family life.
40And in para. 19 of his affidavit, Bobby Giann noted:
Nick told me he was spending most nights sleeping on a couch next to my father so that he could support him in the middle of the night with washroom trips and other needs.
b. Panagiota Papastefanou
41The applicants rely heavily on the role of the respondent Panagiota Papastefanou in their father’s life. Ms. Papastefanou goes by the shortened first name, “Yiota”.
42In Bessie Giannopoulos’s affidavit, she refers to family and caregivers warmly by their first names. Not so Ms. Papastefanou. She is referred to only coldly as “Papastefanou” and is introduced as follows:
Panagiota Papastefanou ("Papastefanou"), who is named as an alternate beneficiary in paragraph III(b)(1) of the Purported 2021 Will in the event Nick had predeceased my father and is described as my father's "caregiver".
43Three things are of note. First, Ms. Papastefanou is apparently not deserving of the respect of an honorific. Second, Nick Giannopoulos has survived his father and was always anticipated to do so. The introduction of Ms. Papastefanou by reference to her now moot role as alternate beneficiary is designed for colour. Third, the same is true of the quotation marks around “caregiver”. The suggestion by that punctuation is that her caregiving was not real.
44Yet here is how Bessie Giannopoulos described learning of Ms. Papastefanou:
Prior to my mother's death, I do not recall having any idea of who Papastefanou was, nor of ever having been introduced to her. I do recall, however, a few days after my mother's death, while walking into our church hall following Sunday Liturgy, a woman stopped me and offered her condolences. I had never seen this woman before. Months later, recalling this woman, although I knew nothing of her, not even her name, I described her to Nick (everyone was always trying to find a single girl for him) and suggested that he introduce himself and think about asking her out for a date. As I was in the midst of describing her, Nick said, "Who, Yiota?" I responded, "Is that her name?", and he proceeded to tell me that she was already married and had a grown daughter. This was Papastefanou. I do not know how or when Nick knew of this woman. If Nick had known Papastefanou prior to my mother's passing, he did not share that with me.
Surprisingly enough, I later began to hear from Nick that Papastefanou was bringing our father food and giving him rides home from the Danforth Store. Despite us not having known her before, Papastefanou presented herself to my siblings and close family friends as my mother's and father's friend and insisted that she was interested in helping my father after my mother's passing. To this day, I do not know with certainty how Papastefanou was introduced to my parents.
Initially, Papastefanou's involvement seemed relatively innocuous. But over time Papastefanou began to take an increasing and disruptive role in my father's care, while Nick was increasingly cutting me out of decision-making.
45This presentation is drafted disrespectfully to arouse suspicion. Yet, none of the actual facts are suspicious in themselves:
a. An unknown attendee at a funeral offered condolences to a member of the family;
b. Ms. Papastefanou was bringing Fotios Giannopoulos food and giving him rides home from work;
c. She said she was a close to their mother and that she was interested in helping their father.
46In para. 19 of her affidavits set out above, Bessie Giannopoulos refers to Ms. Papastefanou suspiciously as “this woman”. There is nothing inherently surprising in para. 20 to justify commencing the paragraph with “Surprisingly enough”. What does it matter that Bessie Giannopoulos in Florida does did not know how Ms. Papastefanou met her parents? It turns out that they met in bible class according to the uncontested evidence of the respondents. Finally, Bessie Giannopoulos attributes an increasing and disruptive role played by Ms. Papastefanou in relation to her complaint that she felt that Nick Giannopoulos was cutting her out of the loop. What has that got to do with Ms. Papastefanou? It is a leap with no connection. In other words, it is a bald assertion of causation with no evidence on which to justify the inference.
47The whole tone of disrespect and objectification of Ms. Papastefanou is just lawyer’s spin dressing up innocuous facts. The affidavit could have neutrally said,
“I met Ms. Papastefanou at my mother’s funeral when she offered me condolences. I did not know who he was. When I asked Nick about her, he told me that she was married, had a grown daughter, and was bringing food and giving our father lifts from work”.
48There is no denial by the applicants of the details of Ms. Papastefanou’s efforts as a caregiver throughout. Nothing deserved the quotations or implication that it was not true.
49Paragraph 23 of Bessie Giannopoulos’s affidavit presents another example of spin. Bessie Giannopoulos swears:
- As another example [of Ms. Papastefanou increasingly negative role], my father was attending Bible Study classes on a weekly basis at Metamorphosis Church on Donlands Ave. for at least a 10-month period between 2016-2018. Once Papastefanou injected herself in the Grandview Home, my father stopped attending.
50An 84-year-old man attended ten months of classes over a two-year period. Then he stopped. He stopped after Ms. Papastefanou “injected herself” into the home.
51This is an example of logical fallacy.
52The Latin phrase “post hoc ergo propter hoc” encapsulates the logical fallacy that relative timing reflects cause. It means “after this, therefore because of this”. Just because Ms. Papastefanou was present before Mr. Giannopoulos quit bible classes, says nothing about her having any role at all in the decision.
53An infinite number of things happened before Mr. Giannopoulos quit bible class that he had only attended for ten months within a two-year period in his 85th year. Just because something occurred before Fotios Giannopoulos stopped going to his classes does not mean that the thing caused him to quit. The sun rose that morning too. The relative timing does not indicate cause. But here, I am told that Fotios Giannopoulos quit bible class after Ms. Papastefanou “injected herself” and therefore it must be bad. Once again this is drafting spin without any underlying facts.
54Bobby Giann approached Ms. Papastefanou’s role similarly, he swears:
Papastefanou
I'm not sure how or when Panagiota Papastefanou came into the picture. I am not exactly sure when I learned that this woman, who I had never heard of before, had begun spending time with my dad, bringing him lunch, picking him up from work at the end of the day, and having dinners at my dad's home with him and [the hired caregiver].
I was quite uneasy with the situation, but Nick reassured me that it was innocent and was best for my dad. I asked Nick why this stranger would want to take on this responsibility without payment. He told me that Papastefanou had a poor relationship with her father and really loved our father, as a father figure, and wanted to help.
Though I understood that Papastefanou had a home of her own in Toronto, she ended up moving into my father's home in early 2021. Nick told me that her work for the Ontario Ministry of Health allowed her to work remotely and that with the COVID pandemic she worked full time from my father's home.
Not long after learning this news, I then learned that [the caregiver] had quit the job and now Papastefanou was living full time in the home and taking care of my dad. This made me more uncomfortable and I let Nick know, but once again he reassured me that it was all innocent. I told him that we needed to put a contract together to protect our father's assets and avoid any claims down the road. Nick told me that he had broached the subject with Papastefanou and that she was willing to sign a document to that effect, but it never happened.
55Consider the actual facts sworn to:
a. A women that Bobby Giann did not know had begun bringing his father lunch, picking him up from work, and having dinners with him;
b. Nick Giannopoulos, who worked and slept with his father, assured Bobby Giann that the relationship was innocent. She loved their father, as a father figure and wanted to help, for free;
c. Although Ms. Papastefanou had a home of her own, she moved into the father’s home in early 2021. Her position with the Ontario government let her work remotely;
d. The caretake who had been hired quit and Ms. Papastefanou was living fulltime in the home taking care of the father.
56Other than calling her “this woman” again and expressing his own suspicion, nothing in the actual facts is at all indicative of wrongdoing. This woman, who has a responsible job and a house of her own, was willing to help care for a depressed, elderly man whose adult son Nick otherwise bore the full burden of caring for him.
57Yet again, Bessie Giannopoulos did not mention another WhatsApp message to Nick from March, 2017 which showed that her contemporaneous views may not match her ex post facto revisionist spin:
[2017-03-24, 21:32:27] BESSIE GIANNOPOULOS: I called the daddy tonight, and guess who was there? Panagiota was visiting him and bring him food. What a wonderful soul, for a non-relative.
[2017-03-31, 11:30:52] BESSIE GIANNOPOULOS: She IS an angel. Not even his own daughter or daughter-in-law does this.
58Bessie Giannopoulos complains that Ms. Papastefanou would not let telephone calls go through to the father. She relies on inadmissible, unidentified hearsay to suggest others had the same experience. Both applicants complain of isolation of their father.
59There was a pandemic under way. As will be discussed below, Ms. Papastefanou lost her parents in quick succession and she too was feeling isolated. She was willing to help Nick Giannopoulos care for his father and her work let her move into their bubble.
60The applicants suggest that Ms. Papastefanou prevented Mr. Giannopoulos from being vaccinated. This is another effort to invoke a negative spin drawing an equivalency to purveyors of anti-vax conspiracies.
61Ms. Papastefanou says it was Bessie Giannopoulos who did not want her father to be vaccinated. Confronted with not just a contradiction, but a reversal of her own allegation, this is another place where it is significant that Bessie Giannopoulos did not reply to deny Ms. Papastefanou’s evidence.
62The applicants allege that Ms. Papastefanou’s nephew and niece moved into the father’s house. Neither is true. The niece stored a massage table that she used for business in a spare room with Nick Giannopoulos’s permission. In return, she helped Ms. Papastefanou with some cleaning chores. The nephew visited and chatted with Mr. Giannopoulos. He did not live with them or obtain anything in return for his companionship.
63Ms. Papastefanou’s unanswered evidence about her relationship with Nick and Fotios Giannopoulos is as follows:
5 I have known Fotios and his late wife, Iliana Giannopoulos ("Iliana"), for many years. We first became acquainted at the Metropolis church, which I attended every week with my family, primarily my late parents. As a result, Fotios and I saw each other on most Sundays and would spend time together after the service, chatting and taking refreshments along with the other churchgoers.
lliana's passing in 2016 appeared to be very difficult for Fotios, so I made an effort to be there for him and support him as a friend. After her passing, and the subsequent one-year memorial at the church, we became much closer. His son, Nick, also attended church with Fotios and we developed a friendship. Contrary to Bessie's claim at paragraph 19 of her affidavit, our relationship was never romantic in nature.
Fotios told me he felt lonely after his wife's passing and I wanted to bring some comfort to him. I would come to visit him at his home at 1 Grandview Avenue, Toronto, Ontario ("Grandview House"), often bringing him home-cooked meals and coffee. We also spent holidays together and shared special events, such as birthdays, Easter, and Christmas. For example, Fotios and Nick, attended my daughter's wedding in May of 2018.
Later in 2018, I lost both of my parents within four months of one another. I was very close with my parents and this loss took a huge toll on me. I felt a large void and was comforted by Fotios, as I had comforted him. We shared the bond of having lost extremely close loved ones recently. He invited me to come by his house whenever I wanted just to be there for one another during this challenging time for both of us.
64Ms. Papastefanou describes how the hired caregiver had back problems that prevented her from sleeping downstairs with Fotios Giannopoulos who liked sleeping on his couch. She says:
In January 2020, [the caregiver] told Nick and I that she was overwhelmed by Fotios' needs. By March 2020, because of the COVID-19 pandemic, my work was fully remote. I knew that Fotios wanted to stay in his home, rather than being placed in a facility. At paragraph 22 of her affidavit, Bessie claims that I influenced this decision. This is not true, this was Fotios' own wish and I wanted to honour his wishes to the extent possible. I offered to stay with him at the Grandview House to provide assistance to allow Fotios to continue to live in his home. I suggested signing a contract to clarify the caregiving arrangement, but Fotios refused, stating that he trusted me and that he knew Nick would take care of everything.
65Ms. Papastefanou advises that the caregiver did not leave until June, 2021. Ms. Papastefanou then describes her role as follows:
- Contrary to Bessie's claim at paragraph 21 of her affidavit, I did not disrupt Fotios' care. I provided daily assistance with meals, cooking, preparing medications, bathing, grooming, physical exercise, household chores, cleaning, buying groceries as needed, and taking Fotios to his medical appointments. I also took him to church every Sunday, except during periods where attendance was prevented by the pandemic restrictions.
66That is caregiving; not, “caregiving”. Apart from undeserved adjectives and unsupported suspicion, there is no evidence to the contrary. There is nothing in the evidence concerning the background and relationship between Ms. Papastefanou and Fotios Giannopoulos which, if accepted at trial, would support a claim of undue influence.
c. Fotios Giannopoulos Health
67Fotios Giannopoulos was extremely sad and demotivated after his wife died. For some time, he relied on Nick Giannopoulos for most of his daily tasks. In 2018, he was still going to work in the dry-cleaning store. But, at times, he was found asleep by customers.
68Fotios Giannopoulos decided to retire at the end of 2018. He spent Christmas with Bessie Giannopoulos and her family in Boston. He then travelled to Florida and stayed with them until May 1, 2019.
69During his time in Florida, Fotios Giannopoulos’ health declined markedly. He was barely communicative and he needed help with all his basic functions and tasks.
70While with Bessie Giannopoulos, Fotios Giannopoulos suffered two falls. He also suffered a small stroke after the second fall.
71Bessie Giannopoulos relies on medical records to show that Fotios Giannopoulos was suffering some cognitive impairment in 2019. Most significantly, in September 2019, his GP’s notes say that Fotios Giannopoulos scored 16 out of 30 on the Montreal Cognitive Assessment test.
72An August, 2019 geriatric assessment note from Sunnybrook Hospital records:
(2) Cognition: based on his clinical picture and his cognitive screening he has cognitive impairment, possibly early dementia syndrome. His cognitive impairment is a combination of his frailty, age related brain changes and severe emotional stress when his wife passed in 2016. Such severe emotional stress in 2016 either worsen or unmasked an underlying cognitive decline going on for years. He also has had vascular insults as seen on imagining. It is possible, given his age, that he also has an element of Alzheimer's dementia given the history and trajectory of his cognitive deficits. At this point, although the specific cognitive diagnosis is not clear we consider prudent to try to optimize all potentially reversible factors which include addressing his low mood as well as the following;
I have given him a requisition for blood work to check his calcium panel
He will start Vitamin B12 supplementation 1000 meg daily
We have made a referral to the Day Program at Sunnybrook, for a comprehensive assessment by our physiotherapist and occupational therapist. We will be able to observe him regularly and assess his cognitive status and functional performance at the program. The waiting time unfortunately is 4 months but we have given them a date for the intake appointment and placed him in the cancelation list if a spot becomes available sooner.
His son will bring us a copy of the brain MRI he had this year in the USA so it can be uploaded in our system
(3) Mood: his symptoms are not a perfect match for a diagnosis of major depressive disorder as he is still able to engage in the day program and carry his daily activities. However, in his case it is difficult to distinguish MDD vs. apathy associated with dementia. We suggested to start on Mirtazapina 7.5gm PO QHS, which can also help with his sleep pattern. We explained that in some cases some patients are very sensitive and sometime are overly drowsy with Mirtazapina. Another option would be Sertraline 25mg PO OD and titrate it up slowly. The advantage of Sertraline is that it does not have a sedating effect. His son preferred to wait and think about it before starting a medication. He will discuss these options with you. I have reassured him that we are comfortable if you decided to start these medications.
73The applicants agree that neither depression nor early dementia is incapacity. But they submit, it is “some evidence” for the Neuberger hurdle analysis. In Johnson, the Court of Appeal rather starkly rejected the proposition that evidence of age-appropriate dementia without more is some evidence of incapacity.
74A December, 2019 discharge note records Fotios Giannopoulos telling the doctor:
Ongoing support and counselling was provided to patient by Greek - SWx speaking SWk'er. Patient endorsed feelings of sadness and loneliness following death of spouse, however also noted much gratitude for the years together with her. Patient very appreciative of Yiota's and son's continued involvement in his care. He acknowledged his mood was better when he was out of house and around people, and he always looked forward to his attendances at either Day Hospital or Woodgreen Adult day program.
75Did Fotios Giannopoulos enroll in a out-patient day program? If left to the applicants’ evidence I would not know. They jump to June, 2021. That is after the new will was signed in April of that year.
76But the medical records show that by January, 2021, it appears that Fotios Giannopoulos’s mental state had improved significantly. The Sunnybrook gerontologist records:
In today's visit we discussed the following issues assessment and plan:
(1) Cognition: stable with no changes in his memory, he is attentive, no episodes of confusion, aware of plans for the day. During his last visit there were concerns with irritability but that has improved. He tells me that he is very lucky to have Nick and Yiota and denies low mood. His level of function has not changed (independent for ADLs) and he continues to be well supported by Yiota who now lives in the home with him. No issues with sleep, His CT head done last month did not show any abnormalities and his screening test is unchanged since 2019. Overall stable:
Continue with cognitive exercises such as blocks, puzzles, reading in Greek
Limit physical exercise to chair exercises to prevent any more falls.
(2) Behaviours and personality changes: since the last visit he is much improved, he has been more calm and happier. He describes himself as lucky. No family concerns. We will continue to monitor. No pharmacotherapy needed for now.
77This is the most current note describing Fotios Giannopoulos’s mental state prior to changing his will and signing the explanatory note in April, 2021. Fotios Giannopoulos attended a day program and reversed the reversible symptoms of decline. The notes also show that he did indeed get out during the pandemic and was not kept isolated at home as alleged by Bessie Giannopoulos from Florida.
78In mid-2021 Fotios Giannopoulos was admitted to hospital with COVID-19 and a UTI. He suffered a severe setback. Medical records from that admission disclose that Fotios Giannopoulos suffered delirium. All agree that after that event, Fotios Giannopoulos’s capacity was in serious question.
79The records do not show a steady downward spiral of cognition. Rather, they show two discrete episodes. One occurred in Florida in early 2019. Investigation and treatment were undertaking in Toronto upon Mr. Giannopoulos’s return. He seemed to recover until he got COVID-19 and the UTI in mid-2021 after signing his new will.
80It is also troubling that the applicants presented a misleading picture of events from Florida. Bessie Giannopoulos disclosed only a few pages of the Florida medical records. Mr. Arkin says she did not disclose 560 of the 641 pages or 87% of the records. Worse still, the applicants did not bring to my attention that Bessie Giannopoulos sent a WhatsApp message to Nick Giannopoulos to tell him that the Florida doctors determined that Fotios Giannopoulos’s falls were caused by a potassium shortage. His health decline was chemically induced and was treatable by adjusting his medications to better suit his activity level in Florida.
81The applicants cherry-picked two episodes and purported to treat them as indicative of a chronic incapacity despite (a) each episode having a clear and identified cause; (b) the first episode being investigated, diagnosed, and successfully treated; and (c) the hospital notes from late 2020 and the January, 2021 that show no sign of incapacity in the period leading up to Fotios Giannopoulos signing his new will.
d. The Applicants allege Papastefanou had a Modus Operandi
82What is a modus operandi? It is a pattern or method of operating associated with criminals. The use of the term denotes criminality and, in this case, expressly so.
83In para. 31 of their Notice of Application, the applicants state:
Papastefanou's Modus Operandi
- The Applicants have reason to believe that Papastefanou has a pattern of inserting herself in a "caregiver" role with vulnerable elders and using that position to support her lifestyle.
84In his affidavit, Bobby Giann speaks of his effort to look around the house in view of his suspicions about Ms. Papastefanou. He found a lawyer’s letter in a pile of documents on a chair in the dining room. The letter referred to Ms. Papastefanou and discussed a sale of a house in Barrie. So, what did Bobby Giann do with this privileged correspondence? They took a picture of it and then made it public in his affidavit.
85The letter discusses the efforts by a Mr. Trantos to transfer a house in the name of his critically ill wife into their joint names. The lawyer reports that there were questions as to her capacity. The lawyer records that once the wife went into palliative care, Mr. Trantos made arrangements with Ms. Papastefanou to go see his wife to sign the documents together. Mr. Trantos’s wife passed away that day.
86The lawyer then records that Mr. Trantos had determined that his wife had a will that named him and his wife’s brother and sister as equal beneficiaries. Mr. Trantos told his lawyer that he was going to speak to them about the property. The lawyer said, “[D]epending on their reaction we can take next steps.”
87Bobby Giann points out that same lawyer was the lawyer who acted for Fotios Giannopoulos 2021 will. He also helped transfer title to the business premises to Fotios and Nick Giannopoulos jointly when the will was signed.
88But Bobby Giann fails to mention, that the lawyer was also the lawyer for Fotios Giannopoulos on his 2016 will. There is nothing suspicious in Fotios Giannopoulos using him. Moreover, the transfer of the building was a transfer of legal title subject to a bare trust. The transfer avoided tax and fees when the equity was conveyed in the will. There is nothing suspicious about the transfer itself. It is efficient planning for the transfer in the new will.
89Bobby also points out that in the new will Fotios Giannopoulos named Ms. Papastefanou as an alternate beneficiary of his business should Nick predecease him. Bobby Giann then swears:
- I am particularly troubled by the idea that my father, who was in no condition to do so at the time by April 2021, would ever have decided to transfer the Danforth Store to Nick as a joint tenant. In fact, Nick had encouraged me to contribute time and materials to renovations to the store in 2018, because he assured me that our father's intention was for all of his children to benefit from the Danforth Store in the future. I estimate that I spent hundreds of dollars in materials and thousands of dollars of time renovating the upstairs of the store, none of which I was compensated for.
90But Bobby Giann does not mention that the renovation cost over $200,000 that was funded by Nick. Bobby’s contribution pales by comparison. In any event, there is nothing about Nick’s alleged assurances in 2018 that is tortious or wrongful. The issue is whether there is evidence Fotios Giannopoulos did not change his will in 2021 of his own accord. Nick’s alleged assurance in 2018 is consistent with the 2016 will then in place.
91Nothing in the lawyer’s letter suggested that Ms. Papastefanou was taking advantage of Mr. Trantos or that she stood to gain a dollar from helping him as described. Sadly, finding his private affairs broadcast to the world in this proceeding, Mr. Vissarion Trantos has felt compelled to give evidence in this proceeding. His affidavit says, in full:
I am a friend of one of the Respondents in this matter, Panagiota Papastefanou ("Yiota") and, as such, have knowledge of the matters to which I hereinafter depose.
I am almost 70 years old. I lost my common-law spouse, Pamela Webb ("Pam"), a year ago. I was deeply disturbed and saddened that my late wife has been brought up in this lawsuit. I want to provide clarification as to our relationship with Yiota.
I met Yiota when she was only 12 years old. She is my most trusted friend.
I have known Yiota since I moved to Canada from Greece and her family assisted me when I had no place to call home. Without her family's help, I would have been on the street.
In November 2021, Pam had asked Yiota for assistance with making property arrangements. Following the loss of my spouse, I decided to ask Yiota to act as my attorney when necessary. As my best friend and confidant, I trust her in that role.
I have never had a concern that Yiota has any ulterior motives with myself or with Pam. We asked for her assistance with our property because we trust that she has our best interests at heart.
92How exactly does a lifelong friend accompanying her friend to the hospital to assist his dying wife complete a transaction, with no return or promise of return to herself, become, a criminal modus operandi or “a pattern of inserting herself in a ‘caregiver’ role with vulnerable elders and using that position to support her lifestyle”?
93The silence of the response is deafening.
94I note as well the description of Ms. Papastefanou in the title of proceedings with two aliases. People who are trying to hide their identities, like criminals, use aliases. There is no reason for Ms. Papastefanou to be described by aliases in this proceeding. Her legal name is known and there is no uncertainty when she goes by short forms. Is Bobby Giann his full legal name? Bessie Giannopoulos is described in the title of proceedings as, “VASILIKI (BESSIE) GIANNOPOULOS” and not, “Vasiliki Giannopoulos a.k.a. Bessie Giannopoulos”. It’s more spin to create an atmosphere of shadiness around Ms. Papastefanou.
95The contents of the lawyer’s letter did not begin to support the wild allegation made by the applicants. The applicants offer no justification, let alone an apology, for snooping into Papastefanou’s private mail and exposing Mr. Trantos personal affairs.
e. Accounting Issues
96Bessie Giannopoulos points to transfers of Fotios Giannopoulos’s interests in family properties in Greece to Nick in or around 2018. She did not mention that at the time, she discussed with Nick Giannopoulos the desirability of doing this to protect the properties from their brother Bobby Giann whom they did not trust.
97Finally, Nick has disclosed that he borrowed approximately $48,000 from his father while he was alive. That will be fully accounted for (if not already) in whatever passing of accounts or other process may continue, if any.
The Position of the Ontario Children’s Lawyer
98The OCL acts for the minor children of Domniki Sakellaris. They receive 25% of their grandfather’s house in the new, challenged will. They are no longer postponed by their mother’s life interest in income nor exposed to the risk of the estate trustees deciding to encroach on capital for their sister’s benefit under the 2016 will.
99The OCL supports the motion for directions and disclosure brought by the applicants. Counsel is unsure whether a deferred trust interest in the business and home under the 2016 will might be worth more than the 25% interest in the home alone under the 2021 will.
100The OCL wants to see financial information so they can make calculations and then decide which will to support.
101While I do not doubt the practical importance of such a cost benefit analysis in litigation, a party’s mercenary desire to pick the right monetary horse before choosing sides in a lawsuit regardless of the underlying facts or issues of principle is not a basis to put an estate to any cost or inconvenience. In fact, a party that takes a tactical position in litigation simply to improve strategic financial position should expect to take on the risk of costs.
Outcome
102In discussing Johnson above, I instructed myself,
Rather, I am looking at whether the evidence that they adduce actually puts in issue the capacity of the deceased or is prima facie evidence of undue influence and, if so, whether the evidence of the respondents is a complete answer.
103These are issues that can be affected by the credibility and reliability of the evidence. There is cherry-picked evidence that Fotios Giannopoulos had cognition issues associated with the small stroke and potassium deficiency that he suffered in Florida. He was treated and recovered to the point where he was suffering mild, age-appropriate dementia in January, 2021. Without anything more at that time, this is not evidence to bring his capacity into issue.
104Similarly, the evidence that Fotios Giannopoulos suffered a bout of COVID-19 and a UTI that left him hospitalized with diminished cognition several weeks after he signed is new will does not bear on his capacity weeks before when he met with a lawyer who knew him and who will be assumed to know what he was doing.
105The smears against Ms. Papastefanou are unjustified in the evidence. The actual facts adduced offer no basis to find suspicious circumstances at play. As noted at the outset, the implication of wrongdoing by Ms. Papastefanou comes from the choice of words, adjectives, and spin rather than the actual admissible evidence.
106The gerontologist’s notes repeatedly make clear Mr. Giannopoulos’s gratitude for the help he received at times when his cognition was not in serious issue. There is no hint of concern for abuse in notes of the gerontologist.
107Finally, Fotios Giannopoulos’s own note that explains his testamentary intention on entering into the new will in April, 2021 was not undermined in the slightest. He had explicable, rational reasons to do what he did. I note that he made no reference to benefiting Ms. Papastefanou in his note. The reality was that as an alternate to Nick Giannopoulos, she would be most unlikely to inherit under that will given his relative youth and good health. I could postulate reasons why Fotios Giannopoulos might have wanted to name Ms. Papastefanou as an alternate beneficiary. But there is no point in doing so. If Ms. Papastefanou was out to benefit herself at the expense of a vulnerable, ill old man, she failed miserably.
108I do not accept the bald assertions of wrongdoing made by the applicants. They are not supported by the facts that they actually adduced. To the extent that the applicants tried to raise suspicions, they were answered fully and completely by the respondents. The applicants’ failure to cross-examine, their objectification of “that woman”, their use of narrative devices like aliases or feigned surprise, their failure to answer the respondents’ full evidentiary responses, the applicants’ failure to make full disclosure, Bessie Giannopoulos’s failure to disclose her own inconsistent statements, her failure to point out the Florida doctors’ diagnosis of low potassium, all leave me satisfied that the applicants’ allegations are just that - incredible allegations with no substance.
109The motion and application for directions are dismissed.
110The respondents may each deliver no more than three pages of costs submissions by October 6, 2023. The respondents may deliver no more than six pages of responding submissions in the aggregate. Anyone seeking or defending costs shall deliver a Costs Outline. The parties may also deliver any offers to settle on which they rely for costs purposes. All material relating to costs shall be sent to my Judicial Assistant at therese.navrotski@ontario.ca and shall be uploaded to Caselines.
FL Myers J
Released: September 26, 2023
COURT FILE NO.: CV-23-696102-ES
DATE: 20230926
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BOBBY GIANN and VASILIKI (BESSIE) GIANNOPOULOS
Applicants
– and –
NICK GIANNOPOULOS, PANAGIOTA PAPASTEFANOU (a.k.a. PANAYIOTA PAPASTEFANOU and YIOTA PAPASTEFANOU), DOMNIKI SAKELLARIS, KONSTANTINA SAKELLARIS, a minor, and FOTIOS SAKELLARIS, a minor
Respondents
FL Myers J
Released: September 26, 2023