Court File and Parties
COURT FILE NO.: CV-23-00694224-00ES DATE: 2023-10-26 ONTARIO SUPERIOR COURT OF JUSTICE
RE: STEVEN CARINCI, Applicant -and- SONYA CARINCI, in her personal capacity and in her capacity as Estate Trustee of the Estate Of Suzanne Maureen Carinci, Respondent
BEFORE: FL Myers J
COUNSEL: David A. Schatzker, for the applicant Charlotté Calon and Claire McNevin, for the respondent
HEARD: October 26, 2023
Endorsement
[1] Much like the facts of the recent decision in Giann v. Giannopoulos, 2023 ONSC 5412, the applicant challenges his mother’s will based almost exclusively on his own subjective, conclusory evidence to support innuendo and supposition. He throws in a little old-fashioned mudslinging for good measure.
[2] The issue is whether the evidence relied upon by the applicant surmounts the minimum evidentiary threshold to put into issue the capacity of the parties’ mother or whether the respondent Sonya Carinci exercised undue influence over her mother?
[3] In my view it does.
[4] There is much speculation and smoke without fire in the applicant’s affidavit. A bruise on the arm, a weird smell one day, some luxury brand boxes in the garage, amount to nothing. None by itself or together points to an inference of incapacity or undue influence.
[5] Moreover, the applicant made broad allegations that he was excluded from his mother’s life by the respondent. He cherry-picked two colourful and especially nasty text messages and left out the vast bulk of the ongoing communication between the siblings that undermine his bald assertions.
[6] The applicant alleges that his sister interfered in the funeral planning for their late sister. He says that he suspects that the respondent then convinced their mother that the applicant had failed to provide her with the details of her daughter’s internment.
[7] The contemporaneous text messages tell a different tale. The applicant plainly engaged with the respondent concerning the upshot of their sister’s tragic death. The respondent’s request for the service details was never answered by the applicant. A later email expressing the mother’s upset at being denied the opportunity to be present was also never answered by the applicant. There is simply no support for the applicant’s bald assertion and assumption that the respondent did him wrong in this important event.
[8] If the applicant’s evidence was the only evidence before me, I likely would have dismissed the claim.
[9] Evidence is not just adduced by affidavit. Evidence obtained by cross-examining a witness, including a party, may be used by any party. Sonya Carinci’s evidence provides an ample objective basis to say that if believed, the tests for incapacity and undue influence could be met. Her evidence raises questions that call out for an answer.
[10] I point to the following significant and objective issues:
[11] The will in issue cuts the applicant’s share of the mother’s multi-million dollar estate from 25% (in the prior will) to a specific legacy of $200,000. The mother told her lawyer that she did this because the applicant had inherited significant funds from the sister who had recently passed and because she felt the applicant hated her.
[12] The applicant and his mother were certainly estranged. They had made some efforts to reconnect after the mother became ill in 2019. But they did not communicate again after the sister passed away and the internment debacle ensured.
[13] Whether one agrees with a parent excluding or minimizing the share of a child in a will or not, the mother expressed a rational and understandable basis for her decision to favour the respondent over the applicant. Some of that animus was expressed even before the sister died when the mother cut the applicant to 25% previously. But that does not answer whether the mother had capacity or was subject to undue influence on the day that she signed her final will cutting his share again to $200,000.
[14] The mother’s lawyer kept a video recording of the will signing ceremony. At about the 1:30 mark of the video, the mother is confused and cannot answer the lawyer’s question about whether she had received and read his letters and drafts. The mother looks up to her left for help. She is then audibly coached by someone off screen to say “yes”. The mother gave the mandated answer and then looked at the person again.
[15] The lawyer stopped to ask whether there was someone else in the room with the mother. The mother said, “no” and the lawyer went on.
[16] The coaching prevented the mother from answering whether she had engaged or remembered engaging in meaningful discussion with her lawyer about the wills that she was signing.
[17] The lawyer then went on to ask a series of leading questions about the will. At no time did the lawyer ask any questions in an open-ended way to elicit whether the mother understood that day the extent of her assets and liabilities. He did not ask her to discuss her differentiated positions toward her children. The lawyer did nothing in the signing ceremony to indicate that he took any steps at all to inquire about whether the mother was being unduly influenced by the respondent. Yet she was the beneficiary of the will change and was apparently participating surreptitiously in the will signing.
[18] The video shows that the mother then had trouble dating the wills. She needed to be reminded four times that in showing her initials to the lawyer on camera, she must not cover the initials with her hand.
[19] The lawyer also disclosed file documents to the respondent that she has used in this proceeding already. There is no evidence that the documents disclosed are the lawyer’s entire file. I am doubtful of this as there are no notes disclosed underlying several typed memos summarizing meetings and calls between the lawyer and his client.
[20] It is unusual for counsel to disclose his file to one side during a will challenge when an order for production and examination of the lawyer is being sought by the other side. The respondent refused to produce medical and financial records precisely because the applicant’s entitlement to production of third-party records is the subject matter of this motion. But the applicant volunteered some parts of the lawyer’s file while seeking to shield him from full production of his file and examination under oath.
[21] One comes away from watching the video distinctly uncomfortable about the mother’s knowledge and appreciation of relevant factors on the day of the will signing. I understand a lawyer trying to help his long-time client. But the lawyer’s acceptance of the mother’s assurance that no one was with her when he had just seen and heard her being coached by someone, his leading questions that did not really explore either the client’s capacity or her possible exposure to undue influences, and his volunteering of the mother’s privileged material to the respondent, are all evidence contrary to the normal inference that the lawyer “would have properly carried out his duties as a solicitor and would not have permitted [the client] to execute the…will if he had any concern about her capacity or suspected undue influence. Johnson v. Johnson, 2022 ONCA 682,at para. 14.
[22] Sonya Carinci denies that she was the mother’s coach in the video. But it could not have been anyone else.
[23] Sonya Carinci moved in with her mother as soon as the mother received her cancer diagnosis in 2018 or 2019. Sonya Carinci lived alone with her ailing mother. She swears that she paid all of the household bills from her own funds. This includes food, utilities, and even the mother’s realty taxes. Although in her affidavit Sonya Carinci says that a sharing arrangement was reached some time later, under cross-examination Sonya Carinci said that she never used the mother’s funds to pay any of their expenses. She says that even after her mother made her joint account holder on two substantial bank accounts, she never took funds from those or other accounts.
[24] Sonya became confused about the details of the mother’s accounts during her cross-examination. She undertook to provide better information. In answering her undertakings, Sonya Carinci advised that the mother had an additional account on which she had made Sonya a joint holder. That account had not been disclosed because it was closed prior to the mother’s death.
[25] The further account contained $500,000.
[26] So what about Sonya’s sworn evidence that she never took any money from the mother’s joint or other accounts? The $500,000 is not in the estate’s accounts. So where could it have gone after the account was closed?
[27] I accept and (not that it matters) I agree with the Court of Appeal’s view from Johnson that the fact that an elderly person needs the assistance of an adult child to make appointments or to care for her otherwise is not in and of itself unusual. The degree of engagement and involvement of Sonya Carinci in her mother’s life was not itself evidence of undue influence.
[28] But Sonya discusses in cross-examination that she drove her mother to the bank to be made a joint holder on the mother’s accounts. She also drove her mother to her investment advisor’s office so the mother could make Sonya the designated beneficiary on her retirement accounts.
[29] In both cases Sonya Carinci testified that she did not know why her mother was asking her to take her on those outings. She said she left her mother to deal with her own affairs.
[30] Sonya Carinci also said she had no knowledge of the terms on which her mother had sold her car to a neighbour. Yet Sonya Carinci wrote the bill of sale that provided that the sale was for $8,000 cash. Sonya Carinci also had no idea what became of the cash and she has never looked for it, she says.
[31] All this evidence to create an impression that the mother was independent in caring for her finances is inconsistent with Sonya’s evidence of opening and paying all of her mother’s bills and mail (other than from lawyers allegedly). Moreover, it does not pass the giggle test. The mother needed Sonya to sign a signature card at the bank if not more. It defies credulity that the mother decided independently to have Sonya take her to these institutions to greatly benefit Sonya and did not tell her or speak about it with her when Sonya was managing her affairs.
[32] A classic statement concerning witness credibility was made by O’Halloran, J.A. of the British Columbia Court of Appeal in Farnya v. Chorny, 1951 CanLII 252 (BC CA).
In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
[33] This is a long and formal way to express the notion that witnesses’ evidence is assessed based on internal consistency, external consistency, and consistency with common sense.
[34] Sonya’s evidence on the mother’s finances is not consistent with her own evidence and is inconsistent with common sense. It does not make sense that an adult child would move in with her mother and start paying utilities and realty tax on the mother’s house from her own funds without reimbursement. It does not make sense that Sonya Carinci took her mother to the bank and investment company to sign rights over to Sonya and had no discussion with her mother about where they were going or why. It does not make sense that Sonya knows nothing about $500,000 from a jointly held account that was closed before the mother died. It does not make sense that Sonya knows nothing about $8,000 in cash received for the sale of a car when Sonya drafted the bill of sale and took care of her mother’s funds.
[35] I should note that had Sonya admitted the obvious, she might have gone a long way to dispel suspicious circumstances. Instead she tries to create an air of independence which to me feeds an inference of dependence. Sonya Carinci is trying to distance herself from her control over her mother and that is a concern. But when I add to Sonya’s efforts to minimize her involvement in the mother’s financial affairs, her surreptitious presence during the will signing, and her partial disclosure of the lawyer’s file in a motion seeking to preclude disclosure, I am left feeling ill at ease. This is all evidence that Sonya is trying to cover up that she had too much involvement in her mother’s will to safely say that it is the product of the mother’s free will and capable mind.
[36] Sonya Carinci lived alone with her mother. The text messages do not support the applicant’s assertion that she isolated her from him. But the mother suffered a tragic loss of a daughter and shortly thereafter had a significant disagreement with the applicant about the daughter’s internment. Sonya Carinci controlled the mother’s financial affairs. Sonya Carinci claims that her mother was independent in financial matters when this was not so. Sonya was surreptitiously in the room with her mother during the will signing ceremony for wills that benefited Sonya significantly. All of these pieces point toward undue influence and raise issues concerning the mother’s capacity at the time of signing the final wills.
[37] Sonya Carinci also made the medical files especially relevant when she testified under cross-examination that to her knowledge, the mother’s doctors assessed her capacity at each visit. I do not expect that formal capacity assessments were undertaken. But, once again, through her own effort to guild the lily, Sonya Carinci made simple document review highly relevant.
[38] The same can be said of a review of bank statements. Can it be true that Sonya Carinci paid all household expenses including property tax and never took funds from a joint or other account? If, as I expect, this is hyperbole, it is so easy to prove by a simple review requiring almost no forensic analysis. It will not be hard to see where $500,000 went or who paid realty tax on the mother’s house for example.
[39] Although Steven Carinci’s own evidence is insufficient to establish the threshold air of reality to his claims of incapacity and undue influence, I find that the evidence given by Sonya Carinci in Exhibit “O” to her affidavit (the video) and under cross-examination is sufficient to surmount the Neuberger hurdle and to justify putting the estate through the cost and delay of investigation.
[40] Order to go as asked.
[41] The applicant is entitled to his costs of $11,000 on a partial indemnity basis. The hours and rates sought are reasonable and are just 25% of the fees and disbursements claimed by the respondent. This is not a case to defer the costs to trial. There was ample objective basis for an order for examination of the lawyers’, doctors’ and bank files visible to all to lead to settlement.
FL Myers J
Date: October 26, 2023