Court File and Parties

COURT FILE NO.: CV-22-00688578-00ES DATE: 20231011 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF CAROL EPSTEIN, Deceased

RE: JONATHAN EPSTEIN, in his capacity as Estate Trustee for the Estate of Carol Epstein Applicant

AND:

KEREN EPSTEIN-GILBOA Respondent

BEFORE: Justice A.A. Sanfilippo

COUNSEL: Kelly A. Charlebois, for the Applicant Keren Epstein-Gilboa, Respondent, acting in person

HEARD: June 7, 2023 and August 18, 2023

Endorsement

[1] Carol Epstein died on October 4, 2014 (the “Deceased”). She was survived by her three children: the Applicant, Jonathan Epstein; the Respondent, Dr. Keren Epstein-Gilboa; and Julie Starr. The Deceased and her husband had divorced in 2000.

[2] Jonathan Epstein is the Estate Trustee of the Estate of Carol Epstein (the “Estate”), further to the Deceased’s Last Will and Testament dated November 20, 1996 (the “Will”). Mr. Epstein submitted that pursuant to the terms of the Will, the Respondent, Dr. Epstein-Gilboa, was entitled to reside at the Deceased’s house for a period not to exceed eight years from the date of her death, following which the house was to be sold and the proceeds were to form part of the residue of the Estate. Dr. Epstein-Gilboa is not a beneficiary of the residue of the Estate.

[3] The period of eight years from the date of the Deceased’s death expired on October 4, 2022. Mr. Epstein requested that Dr. Epstein-Gilboa vacate the premises. She has refused to do so. The Estate Trustee brought this Application to obtain possession of the property.

I. THIS APPLICATION

[4] The Applicant brought this Application for the following relief:

(a) A Declaration that the Applicant, Jonathan Epstein, in his capacity as Estate Trustee of the Estate, is entitled to sole possession of the property known municipally as 171 Old Yonge Street, Toronto, Ontario (the “171 Old Yonge Property”). [1]

(b) An Order that the Respondent, Dr. Epstein-Gilboa, vacate and deliver vacant possession of the 171 Old Yonge Property to the Applicant Estate Trustee within 15 days of the date of this Application.

(c) An Order that the Registrar shall, upon request of the Applicant, issue a writ of possession in favour of the Applicant regarding the 171 Old Yonge Property.

[5] The Application was supported by the affidavit of Mr. Epstein, affirmed October 11, 2022, with exhibits. The Respondent, Dr. Epstein-Gilboa, acting in person, delivered written submissions dated January 26, 2023, [2] June 5, 2023, [3] and August 15, 2023. [4]

[6] This Application was brought for hearing on June 7, 2023. After submissions from the Applicant’s lawyer and the Respondent, I heard from the Respondent’s daughter, Sarie Risen, in her capacity as beneficiary of a 50% interest in the residue of the Estate. Ms. Risen opposed her mother’s removal from the 171 Old Yonge Property. I granted the Applicant an adjournment of the Application, to August 18, 2023, to obtain input from the other beneficiaries of the Estate. The hearing of this Application resumed, and completed on August 18, 2023.

II. POSITIONS OF THE PARTIES

[7] I will begin by summarizing the position of the parties.

A. Position of the Applicant, Estate Trustee

[8] Mr. Epstein exhibited the Will to his affidavit. The Will appointed Mr. Epstein and his aunt, Frances Goldman, as Estate Trustees. [5] A Certificate of Appointment of Estate Trustee With a Will was issued to Ms. Goldman and Mr. Epstein on May 11, 2015. By Order of Justice Hainey issued February 23, 2016 (the “February 2016 Order”), Ms. Goldman was removed as Estate Trustee. By paragraph 2 of the February 2016 Order, Justice Hainey ordered that all assets of the Estate be vested in Mr. Epstein as the sole continuing Estate Trustee.

[9] Mr. Epstein deposed that at the time of her death, the Deceased’s Estate was principally comprised of investment and bank accounts, some personal property and two residential real estate properties, being two houses: the 171 Old Yonge Property; and the residential property next to it, known municipally as 173 Old Yonge Street, Toronto (the “173 Old Yonge Property”).

[10] Mr. Epstein deposed that at the time of the Deceased’s death, the Deceased resided with Dr. Epstein-Gilboa at the 171 Old Yonge Property.

[11] In her Will, at clause 3(c), the Deceased granted to Dr. Epstein-Gilboa the right to reside in the 173 Old Yonge Property, rent-free, for a period not to exceed eight years after the Deceased’s death, following which the property was to be sold with the net proceeds of sale forming part of the residue of the Estate (herein the “Property Occupation Clause”), as follows:

If my daughter, KAREN [6] EPSTEIN-GILBOA, survives me for a period of thirty (30) days, to hold my property, municipally known as 173 Old Yonge Street, North York, Ontario (the "property"), for the benefit of my said daughter for a period not to exceed eight (8) years from the date of my death. Karen shall be entitled to reside at the property rent-free, and have full use and enjoyment thereof. For a period of three (3) years after the date of my death, my estate shall pay the property taxes. All other expenses (and property taxes from the period commencing three (3) years after the date of my death), in connection with the property, including but not limited to property taxes, capital repairs, utilities, etc., shall be the responsibility of Karen. On the eighth anniversary after my death, or at such time as my daughter ceases to reside at the property, or on such earlier date should my daughter, Karen, so desire, my trustees shall sell my property and the proceeds thereof shall form part of the residue of my estate. [emphasis added]

[12] Under the Will, Dr. Epstein-Gilboa is not a beneficiary in the residue of her mother’s Estate. Rather, Clause 3(d) provides that, since Dr. Epstein-Gilboa’s daughter, Sarie Gilboa (now Sarie Risen), survived the Deceased for a period of thirty days, the residue of the Estate is divided in four equal shares, to be distributed as follows:

(a) Two of the four shares, or 50% of the residue of the Estate is to be distributed to Sarie Gilboa upon her attaining twenty years of age.

(b) One of the four shares, or 25% of the residue of the Estate is to be distributed to the Applicant, Mr. Epstein.

(c) One of the four shares, or 25% of the residue of the Estate is to be distributed to the issue of Julie Starr, identified by Mr. Epstein as Aliza Neuhof, Rachelli Kohn and Elisheva Starr.

[13] By Order of Justice Hainey issued August 26, 2016 (the “August 2016 Order”), the 171 Old Yonge Property was substituted for the 173 Old Yonge Property in the Property Occupation Clause, and the Estate Trustee was ordered to sell the 173 Old Yonge Property. [7] The Estate Trustee did so.

[14] Mr. Epstein deposed that in anticipation of the approaching expiry of eight years from the date of the Deceased’s death, which would occur on October 4, 2022, his counsel wrote to Dr. Epstein-Gilboa on June 22, 2022 to make arrangements for her to vacate the 171 Old Yonge Property. In the absence of a response, Mr. Epstein’s lawyer followed-up with a further letter to Dr. Epstein-Gilboa on August 29, 2022. As no response was received again, on October 6, 2022, Mr. Epstein’s lawyer notified Dr. Epstein-Gilboa that an Application would be brought for an order that she vacate the 171 Old Yonge Property.

B. Position of the Respondent, Dr. Epstein-Gilboa

[15] Dr. Epstein-Gilboa stated that she is a registered nurse and a registered psychotherapist with a Ph.D. in psychology. She submitted that she has been in the field of health and mental health for 40 years. She stated that she has lived in the 171 Old Yonge Property for 35 years.

[16] Dr. Epstein-Gilboa does not deny that she has refused to vacate. She submitted that she has refused to do so because she claims that she is owed money by the Estate, and that the value of the amount that she is owed, which she submits is several millions, well-exceeds the value of the 171 Old Yonge Property. Dr. Epstein-Gilboa submitted that she has sought to negotiate with the Estate Trustee a settlement of her demand for compensation, without success.

[17] Dr. Epstein-Gilboa submitted that she is entitled to compensation and damages from the Estate because she was the Deceased’s “full-time caregiver, geriatric manager, administrator, financial manager and primary financier” for at least the last four years of the Deceased’s life. Dr. Epstein-Gilboa submitted that her mother moved from the 173 Old Yonge Property to live with her in the 171 Old Yonge Property after the Deceased’s first hospitalization in 2010, and that her mother continued to reside with her at the 171 Old Yonge Property until her death in 2014. Dr. Epstein-Gilboa submitted that her family, including Mr. Epstein, did not retain professionals to care for the Deceased, resulting in Dr. Epstein-Gilboa caring for the Deceased on her own, at the cost of her career and professional aspirations. Dr. Epstein-Gilboa submitted that she saved the Estate millions of dollars that would have been spent on the care of the Deceased, by taking on a myriad of tasks and responsibilities that ought to have been attended to by health professionals.

[18] Dr. Epstein-Gilboa submitted that her work and efforts in support of her mother have not been recognized by the Estate. Dr. Epstein-Gilboa stated that the Estate has ignored her request for repayment, and has ignored her daughter’s submission, as 50% beneficiary of the residue of the Estate, that Dr. Epstein-Gilboa not be removed from the 171 Old Yonge Property.

[19] Dr. Epstein-Gilboa has not initiated any court process to seek a monetary judgment against the Estate.

[20] Dr. Epstein-Gilboa submitted that her mother had “impaired psychological status and cognition” at the time that she executed the Will. However, Dr. Epstein-Gilboa did not initiate a Court process to challenge her mother’s Will.

III. ANALYSIS

[21] In paragraph 2 of the February 2016 Order, all assets of the Estate vested in Mr. Epstein, as follows:

THIS COURT ORDERS that all the assets, real and personal of the Estate, be and the same are hereby vested in Jonathan Epstein as the sole continuing Estate Trustee.

[22] The 171 Old Yonge Property was owned by the Deceased and is an asset of the Estate. Since 2016, the 171 Old Yonge Property has vested in Mr. Epstein as the sole Estate Trustee.

[23] The Will directs the Estate Trustee to hold the 171 Old Yonge Property, as substituted for the 173 Old Yonge Property by the August 2016 Order, “for the benefit of [Dr. Epstein-Gilboa] for a period not to exceed eight (8) years from the date of my death.” Clause 3(c) of the Will directs the Estate Trustee to sell the property after the expiry of the eight-year period from the Deceased’s death:

On the eight year anniversary after my death, or at such time as my daughter ceases to reside at the property, or on such earlier date should my daughter, Karen, so desire, my trustees shall sell my property and the proceeds thereof shall form part of the residue of my estate. [emphasis added]

[24] Dr. Epstein-Gilboa protests that her mother did not have capacity when she executed the Will, and that these directions do not reflect her mother’s testamentary intentions. However, Dr. Epstein-Gilboa did not bring any court process to challenge the Will. The Certificate of Appointment of Estate Trustee with a Will was issued over 8 years ago, on May 11, 2015, and is not subject to any court challenge.

[25] Dr. Epstein-Gilboa’s demand that the Estate provide her with compensation and damages has not been brought by any court process. Dr. Epstein-Gilboa has not issued any claim against the Estate.

[26] The Estate Trustee has an obligation to administer the estate in the manner set out in the Will, for the maximum advantage of all beneficiaries: Kinnear v. White, 2022 ONSC 2576, [2022] O.J. No. 4042 at para. 19, citing Class v. Smith, 2018 ONSC 623 [2018] O.J. No. 1995. See also Baran v. Cranston, 2020 ONSC 589, [2020] O.J. No. 611, at para. 28. The Estate Trustee is acting upon the Deceased’s direction, set out in the Will, that the property be sold after providing Dr. Epstein-Gilboa with the entitlement of occupation of the property for eight years. I recognize that Dr. Epstein-Gilboa’s daughter, Sarie Risen, a beneficiary of a 50% interest in the residue of the Estate, opposes the judgment sought by the Estate Trustee. However, there is no evidence that all the beneficiaries representing 100% of the residue of the estate agree on a variation of the Deceased’s intentions as set out in Clause 3(c) of the Will: Buschau v. Rogers Communications Inc., 2006 SCC 28, [2006] 1 S.C.R. 973, at para. 21, referring to the rule in Saunders v. Vautier (1841), Cr. & Ph. 240, 41 E.R. 482.

[27] The 171 Old Yonge Property has been vested in the Estate Trustee for the past eight years. On this Application, the Estate Trustee has established the basis for a declaration that the Estate Trustee is entitled to sole and exclusive possession of the 171 Old Yonge Property, and that the Respondent and any other occupants of the 171 Old Yonge Property shall vacate this property.

[28] The Applicant sought an order that the Respondent vacate the 171 Old Yonge Property within 90 days of the order, recognizing that the Applicant has remained in the property for a year past the eight years provided by the Will and has been on notice for many months of the Estate Trustee’s request to vacate the property. All matters considered, I order that the Respondent, and any other occupants of the 171 Old Yonge Property, shall vacate the property by January 31, 2024.

[29] Last, an order shall issue that if the Respondent, and any other occupants of the 171 Old Yonge Property do not vacate the property by January 31, 2024, the Registrar shall, upon the request of the Applicant, issue a writ of possession in favour of the Applicant with respect to the 171 Old Yonge Property.

IV. COSTS

[30] For efficiency, and consistent with Rule 57.01(7) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I heard cost submissions at the conclusion of the hearing of this Application. The Applicant submitted that in the event of success on the Application, as I have determined, the Applicant sought costs on a partial indemnity basis from the Respondent, and the balance from the Estate.

[31] The Applicant’s Bill of Costs, filed, showed that the Applicant’s costs in bringing this Application, on a partial indemnity basis, total $8,352.00, consisting of $7,085.00 in legal fees, disbursements of $345.95 and HST of $921.05. The Applicant also established that the Applicant’s actual costs in bringing this Application are $15,345.01, consisting of $13,273.50 in legal fees, disbursements of $345.95 and HST of $1,725.56. These costs are reasonable, and ought to have been reasonably expected by the Respondent considering the nature of the Application: Rule 57.01(0.a) and (0.b).

[32] The Applicant submitted that costs on a partial indemnity basis ($8,352.00, all inclusive) should be awarded against Dr. Epstein-Gilboa and the balance necessary to allow the Estate Trustee to recover his actual costs ($6,993.01) should be paid by the Estate. The Respondent denied that she should be required to pay costs to the Applicant and stated that she does not have the resources to do so.

[33] In accordance with s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are in the discretion of the Court, to be determined with consideration of the factors set out in Rule 57.01. The Court of Appeal has instructed that the purposes of an award of costs are to indemnify the successful party of the legal costs they incurred; to encourage settlement; to deter frivolous actions and defences; and to discourage unnecessary steps that unduly prolong the litigation: 1465778 Ontario Inc. v. 1122077 Ontario Ltd., 82 O.R. (3d) 757 (C.A.), at para. 26; Fiorito v. Wiggins, 2023 ONSC 2800, [2023] O.J. No. 2410, at para. 13.

[34] The Applicant is entitled to an award of costs by reason of success in this Application. As Estate Trustee acting in the discharge of his duties under the Will, the Estate Trustee has established the basis for indemnification of the actual costs incurred of $15,345.01, all-inclusive: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, at para. 76.

[35] The question then is whether the Respondent should pay the Applicant costs on a partial indemnity basis ($8,352.00, all-inclusive) as a share of the Applicant’s actual costs. In my view it is fair and reasonable, and consistent with the purposes of cost awards, that the Respondent pay a portion of the Applicant’s costs. This Application, and the Case Conferences that lead to its scheduling, required considerable court time, and Dr. Epstein-Gilboa did not present a viable defence to the relief sought. The Will is clear that Dr. Epstein-Gilboa had an obligation to vacate the property upon expiry of the eight-year period. However, I have taken into consideration Dr. Epstein-Gilboa’s circumstances, as set out in her written and oral submissions.

[36] The Court of Appeal has instructed that after consideration of the relevant factors to be applied to the costs claimed, the Court should then “step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable:” Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, [2022] O.J. No. 3632, at para. 60, applying Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 2, at para. 356. Having considered all applicable principles set out by the case law and under Rule 57.01, and in the exercise of my discretion, I have concluded that it is reasonable, fair, just and proportionate to fix the Applicant’s costs of this Application in the amount of $15,345.01, all inclusive, of which $12,345.01, all inclusive, is payable forthwith from the assets of the Estate, and $3,000, all-inclusive, is payable forthwith by Dr. Epstein-Gilboa.

V. DISPOSITION

[37] A Judgment shall issue in the following terms:

(a) A declaration shall issue that the Applicant is entitled to sole and exclusive possession of the property known municipally as 171 Old Yonge Street, Toronto, Ontario; bearing property identification number 10102-0155 (LT); and legally described as LT 7 PL3517 NORTH YORK; TORONTO (N YORK), CITY OF TORONTO (the “171 Old Yonge Property”);

(b) The Respondent and any other occupants of the 171 Old Yonge Property shall deliver vacant possession of the Property to the Applicant by January 31, 2024.

(c) The Registrar shall, upon request of the Applicant after January 31, 2024, issue a writ of possession in favour of the Applicant with respect to the 171 Old Yonge Property.

(d) The Applicant’s costs of this Application are fixed in the amount of $15,345.01, all-inclusive, and shall be paid as follows:

a. The Applicant shall be paid costs in the amount of $12,345.01, all-inclusive, from the assets of the Estate of Carol Epstein, deceased.

b. The Respondent, Keren Epstein-Gilboa, shall forthwith pay the Applicant costs in the amount of $3,000.00, all-inclusive.

[38] The Applicant may prepare a draft Judgment and, after approval as to form and content, file the draft Judgment on the CaseLines bundle for this Application, and then forward a version of the draft Judgment in PDF and Word format to the Estates List Trial Coordinator for my consideration. If there is no agreement on the draft Judgment, the Applicant may request the scheduling of a Case Conference before me to settle the form of Judgment.

Justice Sanfilippo

Date: October 11, 2023

Footnotes

[1] The Property is legally described as LT 7 PL3517 North York; Toronto (N York), City of Toronto, property identification number 10102-0155 (LT).

[2] CaseLines bundle #004, Doc. B-1:5, at pp. B-1-49 to B-1-96.

[3] CaseLines bundle #004, Doc. B-1:4, at pp. B-1-1 to B-1-48.

[4] CaseLines bundle #005, Doc. B-1:6, at pp. B-1-1 to B-1-17.

[5] Last Will and Testament of Carol Epstein dated November 20, 1996 (the “Will”), at para. 2: “I appoint my son, JONATHAN, and my sister, FRANCES GOLDMAN, to be the executors and trustees of this my will.”

[6] Clause 3(c) of the Will refers to “ Keren Epstein-Gilboa” as “ Karen Epstein-Gilboa”.

[7] Order of Justice Hainey issued August 26, 2016, paragraph 1: “THIS COURT ORDERS that 171 Old Yonge Street, Toronto, shall be substituted for 173 Old Yonge Street, Toronto in paragraph 3(c) of the last will of Carol Epstein dated November 20, 1996. All other terms and conditions in paragraph 3(c) shall remain the same.”