COURT FILE NO.: CV-22-0027-00

DATE: 2023-11-23

IN THE MATTER OF THE ESTATE OF Hélène Marie-Thérèse Kennepohl, deceased

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Elizabeth Ainsworth and André Kennepohl, Applicants

v.

Robert Kennepohl, personally and in his capacity as Attorney for Property for Hélène Marie-Thérèse Kennepohl, Respondent

HEARD: November 16, 2023

BEFORE: Nieckarz J.

COUNSEL: R. Lepere, for the Applicants

C. Provenzano, for the Respondent

Endorsement On Motion

[1] There are three motions before me today:

a. The Applicant’s ongoing motion for penalties arising out of Mr. Kennepohl’s ongoing contempt, and a further order directing a date for compliance.

b. Mr. Kennepohl’s motion pursuant to Rule 59.06(2) of the Rules of Civil Procedure to vary my order dated July 6, 2022, by removing paragraph 2 of the order, which requires him to account to the Applicants for his dealings with the property of the deceased, as her attorney for property, for the period October 1, 2016, to October 31, 2018.

c. Mr. Provenzano’s motion to be removed as solicitor of record for Mr. Kennepohl, which he argued after arguing the Rule 59.06(2) motion on Mr. Kennepohl’s behalf.

[2] These proceedings pertain to the administration of the estate of Hélène Marie-Thérèse Kennepohl (the “Deceased”). She was the mother of the parties. She passed away on October 31, 2018. In the one or two years prior to her death, she experienced some health issues requiring periodic hospitalization. Even prior to these health issues, Mr. Kennepohl had been named a joint account holder on her bank accounts.

[3] Concerns arose as to Mr. Kennepohl’s administration of the estate (or lack thereof), and his dealings with the finances of the Deceased prior to her death. The Applicants believed that Mr. Kennepohl was acting as the attorney for property for their mother. Mr. Kennepohl denies this was the case, and states that as such he is unable to comply with paragraph 2 of my July 6, 2022, order.

[4] The motion for Mr. Provenzano to be removed as lawyer of record was not contested. Although Mr. Kennepohl’s preference was to have Mr. Provenzano remain as his counsel, he understood the reasons for the request. The Applicants took no position on the motion, other than wanting to ensure that Mr. Provenzano would either file a costs outline or otherwise assist new counsel with dealing with any costs issues arising from Mr. Kennepohl’s motion. Mr. Provenzano undertook to do so. I reviewed the materials and granted Mr. Provenzano’s request. It was clear that the lawyer/client relationship was no longer viable.

[5] With respect to the two other motions:

a. I agree with the Applicants that Mr. Kennepohl has failed to purge his contempt, at least with respect to the Estate accounting (his requirement to do so is not contested), and that a fine is the appropriate sanction along with a costs order. I explained the order I will be making to Mr. Kennepohl and will provide brief reasons herein.

b. I indicated that I would take Mr. Kennepohl’s rule 59.06(2) motion under reserve. Upon reflection, I have opted to provide a decision quickly, with brief reasons. With Mr. Kennepohl needing to retain assistance of an accountant and/or counsel to deal with the passing of the accounts of the Estate, it is likely most efficient for those professionals to also assist him with accounting for his dealings with the bank accounts of the Deceased for the 2-year period prior to her death. Given the timeline for doing so, and given the upcoming Christmas holidays, it was evident that some decision needed to be made quickly as opposed to comprehensive or eloquent.

This brief endorsement shall constitute my decision on both motions.

Factual Overview:

[6] The Applicants brought an application returnable before me on May 12, 2022, seeking to remove Mr. Kennepohl as Estate Trustee and appoint themselves as co-trustee. They also sought an accounting of the Estate, for the period prior to the death of the Deceased while Mr. Kennepohl was alleged to have acted under a power of attorney for property, and other directions.

[7] Mr. Kennepohl did not appear on the return date of the Application, and no one appeared on his behalf. The decision was taken under reserve. In the meantime, Mr. Kennepohl retained counsel. I did not remove him as Estate Trustee but did require him to provide information to the Applicants and various accountings. It has since come to my attention that Mr. Kennepohl was hospitalized on the date of the hearing of the application for injuries arising from an ATV accident. His injuries were severe enough that he was hospitalized for over a week.

[8] Since that time Mr. Kennepohl has had two different lawyers. The Estate accounting provided for in my order and the accounting as attorney for the property of the Deceased for the two years prior to her death, have not been complied with. No motion had been brought by Mr. Kennepohl prior to September 12, 2023, to set aside any part of my order.

[9] Mr. Kennepohl was represented by his first lawyer from June 2022 to November 2022. Mr. Provenzano was retained in February 2023.

[10] The responsibility for Mr. Kennepohl’s non-compliance with the requirement to provide an Estate accounting lies with Mr. Kennepohl and not with either of his counsel. Mr. Kennepohl has acknowledged that he struggles to deal with this matter in a timely way.

[11] As a result of his non-compliance, the Applicants brought a contempt motion that was argued before the Honourable Mr. Justice Fregeau on January 12, 2023. Mr. Kennepohl represented himself at that time. He was found in contempt of paragraphs 2 (accounting re: power of attorney for property), 3 (Estate passing of accounts), and 4 (requirement for provide information with respect to the status of the administration of the Estate). He was given until March 9th, 2023, to purge his contempt. He was removed as Estate Trustee.

[12] After retaining Mr. Provenzano in February 2023, Mr. Kennepohl filed responding materials in the application. In those materials, Mr. Kennepohl provided his evidence that he did not act as the Deceased’s attorney for property, and therefore could not provide an accounting for any dealings with her assets. He attempted to address the matter with the Applicants, but the parties could not reach a successful resolution of the issue.

[13] Mr. Kennepohl did not, however, file an application to pass the Estate accounts by March 9th as ordered by Justice Fregeau.

[14] The parties appeared before the Honourable Madam Justice H. Pierce, on or about July 20, 2023, to deal with the issue of Mr. Kennepohl’s ongoing contempt. Justice Pierce made a further order, on consent, as follows:

a. declaring that Mr. Kennepohl remained in contempt of paragraphs 2 and 3 of my July 6, 2022, order; and

b. permitting Mr. Kennepohl to purge his contempt with respect to those paragraphs of the order if he:

i. files an application to pass accounts on or before September 21, 2023; and

ii. files a motion pursuant to Rule 59.06(2) with respect to paragraph 2 of the Order on or before September 21, 2023.

[15] Mr. Kennepohl brought the required motion, and in that respect has purged his contempt with respect to paragraph 2 of the order. He remains in contempt with respect to paragraph 3 without any acceptable explanation for his non-compliance.

Penalty for Contempt:

[16] The Applicants seek a fine as the penalty for Mr. Kennepohl’s ongoing contempt, along with a further order requiring him to purge his contempt within 30 days, failing which there will be further penalty for his ongoing contempt.

[17] Mr. Kennepohl had no response, other than he finds it difficult to turn his mind to the Estate accounting, and he prefers not to pay a fine. He asks for “leniency”.

[18] The Court of Appeal considered the disposition for civil contempt in Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574, 121 O.R. (3d) 670. At para. 105, the court held that general and specific deterrence were the most important objectives of a contempt penalty. At para. 108, the court accepted that, in general, awards for civil contempt in Canada range between $1,500 and $5,000. The factors relevant to determining the sentence for contempt are:

a) the proportionality of the sentence to the wrongdoing;

b) the presence of mitigating factors;

c) the presence of aggravating factors;

d) deterrence and denunciation;

e) the similarity of sentences in like circumstances; and

f) the reasonableness of a fine or incarceration.

See: para. 90. The court explained that the principle of proportionality means that the punishment must fit the wrongdoing: para. 91.

[19] There being proof beyond a reasonable doubt of Mr. Kennepohl’s ongoing contempt and no reasonable excuse for Mr. Kennepohl’s failure to purge his contempt, a fine in the amount of $750 is appropriate. In my view, this fine is quite lenient, and appropriate, given the history of this matter. It is sufficient to sanction the behaviour, and there is no evidence before me to suggest that it will create undue financial hardship for Mr. Kennepohl. It takes into consideration that he has taken some steps to try to purge his contempt, but simply has not completed them. As I have explained to Mr. Kennepohl orders of the court are to be complied with, failing which there are penalties. Mr. Kennepohl has been cautioned that continued contempt may result in a significantly increased fine or even imprisonment. These are available penalties for contempt under Rule 60.11(5) of the Rules of Civil Procedure, and the Applicants have indicated an intention to seek them in the face of ongoing contempt.

[20] Contempt of a court order is a serious matter. Mr. Kennepohl’s lack of diligence in dealing with this matter has already resulted in a substantial costs award by Justice Fregeau.

[21] With respect to the request for a further order requiring Mr. Kennepohl to purge his contempt within 30 days, I am concerned that this is insufficient time given that Mr. Kennepohl is now self-represented, the accounting firm formerly retained by his counsel has indicated they will no longer represent Mr. Kennepohl and given the upcoming holiday season. There is no apparent prejudice to the Applicants if I order a more realistic timeframe. While I appreciate Mr. Kennepohl has had considerable time to comply to date, a realistic deadline should be set. Mr. Kennepohl shall purge his contempt on or before 4:00 p.m. on January 15, 2024 (60 days).

[22] With respect to costs, the Applicants seeks costs on a partial indemnity scale of $2,092. Given that these costs relate to a contempt matter, given the outcome of this step in the proceeding, given the experience of counsel and work performed, this request is reasonable and proportionate. Costs shall be payable by Mr. Kennepohl in the amount of $2,000 inclusive, within 30 days.

Rule 59.06 motion:

[23] Mr. Kennepohl moves pursuant to Rule 59.06(2) to vary the July 6, 2022, order. That rule states:

Setting Aside or Varying

59.06 (2) A party who seeks to,

a. have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

b. suspend the operation of an order;

c. carry an order into operation;

d. obtain other relief than was originally awarded,

May make a motion in the proceeding for the relief claimed.

[24] Mr. Kennepohl relies on Rule 59.06(2)(a). Specifically, he argues that the July 6, 2022, order was made without the benefit of his evidence. His evidence is that he did not act as the attorney for property for his mother and therefore cannot account as an attorney for property. His affidavit filed after the delivery of the decision is said to be “facts arising or discovered after…” the order was made.

[25] The Applicants argue that Rule 59.06(2) does not apply, but rather Rule 37.14 is the applicable provision that the Respondent must rely on in support of his motion. The Applicants further argue that the Respondent is unable to satisfy the test for a Rule 37.14 motion, particularly given his significant delay in bringing this motion.

[26] I share the Applicants’ concern about whether Rule 59.06(2)(a) is applicable. The facts on which the Respondent relies are not facts that either arose after or were discovered after the order was made.

[27] In my view, Rule 59.06(d) is more appropriate. Having said this, as the Applicants have correctly pointed out, the court’s authority to reconsider a decision under this rule is limited, to be exercised sparingly, and only where it is clear in the interest of justice to do so: Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840 at para. 6, and Gore Mutual Insurance Co. v. 1443249 Ontario Ltd., 2004 CanLII 18840 (ON SC).

[28] Without deciding the arguments of the parties with respect to the applicable rule, the practical problem is that if Mr. Kennepohl did not act as the attorney for property of his mother, he cannot account as such. Whether he did so act or not, is the subject of dispute that is difficult for me to resolve on the current evidentiary record. Regardless of whether it is as an attorney for property, or simply someone who exercised some level of control over the Deceased’s bank accounts, Mr. Kennepohl will still need to account for any dealings he had with those accounts.

[29] The Applicants have limited knowledge of what Mr. Kennepohl did with respect to the Deceased’s property prior to her death or in what capacity he was acting. They have information showing that he was a joint account holder on two of the Deceased’s bank accounts at RBC. As of the date of death there was approximately $53,000 in these two accounts (combined). A review of those accounts has caused questions and concerns. For example, on October 3rd, 2018, only weeks before the date of death, the balance in one of the accounts was in excess of $110,000. In the days before death there were substantial transfers out of the account, including a $20,000 withdrawal with no description, such that the balance in the account on the date of death was only approximately $23,000.

[30] Even now that they are the Estate Trustees, the Applicants are unable to reconcile many of the transactions with respect to these bank accounts for the period prior to death. To be blunt, the concern appears to be that Mr. Kennepohl has taken a sizable amount of funds for his own use.

[31] These accounts seem to be the primary cause for the Applicants’ concerns. I fear with much more litigation, whatever amount the parties are arguing over will be consumed by legal fees. At this point, a practical approach is necessitated, without prejudice to the positions of either party on this motion. Even if I were prepared to formally vary paragraph 2 of my order, I would have no hesitation ordering Mr. Kennepohl to provide an accounting to his siblings of transactions they identify as concerning. There are many transactions for home utilities and the like that may not be the cause for concern. Mr. Kennepohl as a joint account holder, as someone that the evidence establishes was involved in his mother’s finances to some extent, is in a better position than the Estate Trustees to figure out what happened to the Deceased’s money in those accounts for the two years prior to her death.

[32] For the time being, this shall be the order that I will make. Mr. Kennepohl shall be required to account for his dealings with his mother’s bank accounts. I am not yet changing the July 6th, 2022, order. The parties will be returning before me on February 1st with respect to Mr. Kennepohl’s ongoing contempt. If the order I am making today does not satisfactorily resolve the issue of the accounting for the period two years prior to the death of Deceased, then I will hear further submissions at that time.

Order:

Removal as counsel of record:

[33] An order shall issue removing Mr. Provenzano as solicitor of record for Mr. Kennepohl.

[34] The order removing Mr. Provenzano shall comply with the requirements of Rule 15.04(4).

[35] The unredacted affidavits of Christian Provenzano sworn September 13, 2023, and November 8, 2023, shall be expunged from the court record.

[36] Mr. Provenzano shall forthwith serve Mr. Kennepohl and the Applicants with a copy of the issued order, and file proof of service with the court.

Contempt and the Rule 59.06(2) motion:

[37] A further order shall issue as follows:

a. Mr. Kennepohl shall purge his ongoing contempt of paragraph 3 of the Order of Nieckarz J., dated July 6, 2022 (the “Order”), by filing an application to pass the Estate accounts for the period for which he acted as Estate Trustee, no later than 4:00 p.m., January 15, 2024.

b. On or before December 18, 2023, Mr. Kennepohl shall pay the amount of $750 to the Minister of Finance, on account of a fine for his contempt of paragraph 3 of the Order to date.

c. On or before December 18, 2023, Mr. Kennepohl shall pay to Petrone & Partners, In Trust, the sum of $2,000 on account of the Applicant’s partial indemnity costs incurred on account of their ongoing contempt motion.

d. On or before December 4th, counsel for the Applicants shall provide Mr. Kennepohl with a copy of the bank accounts statements for the Deceased for the past two years, that is highlighted with the transactions the Applicants seek to have explained. Mr. Kennepohl shall respond to each item inquired of, to the best of his ability no later than January 14th, 2024, at 4:00 p.m.

e. The motions are returnable in motions court on February 1, 2024, at 10:00 a.m. by Zoom.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

Released: November 23, 2023

COURT FILE NO.: CV-22-0027-00

DATE: 2023-11-23

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF Hélène Marie-Thérèse Kennepohl, deceased

B E T W E E N:

RE: Elizabeth Ainsworth and André Kennepohl, Applicants

v.

Robert Kennepohl, personally and in his capacity as Attorney for Property for Hélène Marie-Thérèse Kennepohl, Respondent

HEARD: November 16, 2023

BEFORE: Nieckarz J.

COUNSEL: R. Lepere, for the Applicants

C. Provenzano, for the Respondent

ENDORSEMENT ON MOTION

Nieckarz J.

Released: November 23, 2023