COURT FILE NO.: CV-22-00682457

DATE: 2023-12-07

SUPERIOR COURT OF JUSTICE – ONTARIO

ESTATES LIST

IN THE MATTER OF THE ESTATE OF ROBERT MICHAEL WILLIAMS, deceased

RE: Sherina Williams as the Personal Representative of Robert Michael Williams, deceased, Applicant

AND:

Yonette Reis, Respondent

BEFORE: C. Gilmore, J.

COUNSEL: Athena McBean, Counsel for the Applicant

H. Keith Juriansz, Counsel for the Respondent

HEARD: November 17, 2023

ENDORSEMENT on Motion

INTRODUCTION

[1] The Applicant seeks leave to issue and register a Certificate of Pending Litigation (“CPL”) against the property located at 55 Curtis Crescent, Scarborough, Ontario (“the Property”) on the grounds that 50 percent of the beneficial interest in the Property is held in trust by the Respondent for the benefit of the deceased’s estate.

[2] The Applicant also seeks an order for the preservation and release of the deceased’s personal property and reimbursement to the estate for expenses caused by the Respondent’s conduct.

[3] The Respondent submits that the Applicant does not have standing to seek the abovementioned relief, nor does she meet the test for leave to issue a CPL. The Respondent submits that the motion must be dismissed with costs.

[4] As set out below, I find that the Applicant has standing to bring this motion and that the court is able to provide directions with respect to any required amendments to the Certificate of Appointment.

[5] The motion for a CPL is dismissed as the Applicant is not able to demonstrate a triable issue related to an interest in land. As no motion was brought, nor was there a request to remove the Preservation Order, the consent Preservation Order dated March 22, 2023 shall remain in place until the hearing of the Application.

BACKGROUND

[6] The deceased died on September 22, 2021 without a will. The Applicant is one of the deceased’s nine adult children and is appointed as Estate Trustee without a Will by way of a Small Estates Certificate of Appointment issued to her on April 7, 2023. The Respondent was the deceased’s common law partner for 24 years before they separated in 2020. She is the sole owner of the property in question on this motion.

[7] The Applicant applied for a Small Estates Certificate in March 2022. Five of the Applicant’s eight siblings consented to her appointment. The Respondent and the three youngest children filed an objection. On a motion for directions, the notice of objection was dismissed by Justice Dietrich on September 19, 2022. Costs were ordered in favour of the Applicant in the amount of $4,979.37. As a result of the motion, the Application for a Small Estates Certificate was returned to the queue and there was delay of approximately seven months before the Certificate was actually issued in April 2023.

[8] In anticipation of being appointed Estate Trustee of her father’s Estate, the Applicant issued her Application on June 9, 2022. In her Application, she sought an order permitting her to act as litigation administrator of her father’s estate for the purpose of this proceeding, a declaration that the estate is entitled to a 50 percent beneficial interest in the Property or damages for unjust enrichment, an order for the sale of the Property if necessary, and an order for the preservation and return of the deceased’s personal property.

[9] The Applicant’s motion for leave to issue a CPL was originally brought in June of 2022 without notice. The motion was adjourned to October of 2022 and then to February 16, 2023, when Justice Sanfilippo ordered it to be brought with notice.

[10] On the return of the motion for a CPL with notice, the parties consented to a preservation order in relation to the Property. The Preservation Order has been in place since the order of Justice Sanfilippo dated March 22, 2023. The CPL motion was adjourned to July 25, 2023 and subsequently to November 17, 2023 due to court scheduling issues.

[11] The deceased and the Respondent were common law partners for approximately 24 years. They are the parents of the deceased’s three youngest children, Shadreesha aged 26, and Maalik and Malachi who are twins aged 21 (collectively “the children”). The children reside with the Respondent at the property. The Respondent is not a beneficiary of the Estate.

[12] The Property was purchased on October 26, 2012 for $332,000 with a mortgage of $324,074. Title was placed solely in the name of the Respondent. The Respondent’s position is that the deceased made no contribution to the purchase of the Property, nor did he make any ongoing contributions to the mortgage, taxes or maintenance of the Property.

[13] The Applicant submits that her father paid for the closing costs of the Property as well as a kitchen renovation; and that he made monthly cash contributions to the mortgage and carrying costs of the Property of between $1,000 to $3,000 per month. The deceased’s name was not on title as he did not have a good credit history and was unable to qualify for a mortgage. The Applicant’s evidence was that she personally witnessed her father give the Respondent cash for household expenses and that it was always understood between her father and the Respondent that they were equal beneficial owners of the Property and that each were responsible for the property’s expenses.

[14] According to the Applicant, her father and the Respondent separated in the spring of 2020, however her father did not move out of the property. Based on legal advice he received, he moved into the basement but continued to make his contributions to the Property.

[15] The Applicant fears that the Respondent will sell or encumber the Property. Without a CPL, the Applicant cannot preserve the Estate’s assets.

[16] The Respondent’s position is that the deceased never intended to purchase or contribute to any property in Canada. Rather, his funds were sent to Jamaica to assist in the renovations to his mother and his sister’s house, where he intended to return. The Respondent submits that she used her own funds to purchase the home, being a combination of her RRSP and the proceeds from a successful wrongful dismissal claim against a former employer. The Respondent retained a real estate lawyer and paid all of the closing costs.

The Issues

Issue # 1 – Does the Applicant have Standing to Seek a CPL?

[17] The Respondent raises two issues in this regard. First, the Respondent submits that the Applicant has no authority to seek a CPL because her authority as Estate Trustee is limited to that granted to her in the Small Estates Certificate (“the Certificate”). The Application for the Certificate did not list any personal or real property other than three vehicles, one of which is now conceded to be owned by the Respondent. Therefore, the Applicant has not applied to administer the assets that she now purports to administer. This is fatal to her Application.

[18] The second issue raised by the Respondent is that the Application itself should be declared a nullity as the Applicant had no standing to issue it prior to her appointment as Estate Trustee without a Will in April 2023. A new application could be issued but for the Limitation Period, as more than two years has passed since the date of death.

[19] With respect to the first issue, I do not agree with the Respondent regarding any lack of authority to administer the estate on the part of the Applicant. It is often the case in estate matters that an estate trustee is not aware of the extent of the assets of an estate and on occasion will even value the assets at $0 with an undertaking to amend their Application and pay estate administration tax when the assets are known.

[20] In this case, the Applicant’s evidence was that she did not include the claimed beneficial interest in the Property on her application for the Certificate because the interest had not yet been determined by the court.

[21] The Applicant’s application for a certificate is deficient but can easily be rectified by orders of this court given how matters have unfolded. Any new application for a certificate of estate trustee without a will must include a value for the claimed beneficial interest and personal property. This will mean that it will no longer qualify as a small estate. Orders for directions with respect to that matter are given below.

[22] With respect to the second issue, the Applicant relies on Rule 9.03(1) of the Rules of Civil Procedure. That Rule provides as follows:

Remedial Provisions

Proceeding Commenced before Probate or Administration

9.03 (1) Where a proceeding is commenced by or against a person as executor or administrator before a grant of probate or administration has been made and the person subsequently receives a grant of probate or administration, the proceeding shall be deemed to have been properly constituted from its commencement. R.R.O. 1990, Reg. 194, r. 9.03.

[23] The Applicant argues that she was not required to wait until the Certificate was issued to her in order to issue her application and seek a CPL. Doing so would be inconsistent with the purposes of a CPL. The fact that it took 13 months for the Certificate to be issued did not relate to any lack of diligence on the part of the Applicant. The delay related to the objections of the Respondent and her three children as well as court delay following the motion for directions where the objections were vacated. In any event, Rule 9.03(1) applies and can be applied to deem the Application properly constituted.

[24] The Respondent does not agree. The Respondent relies on Raiz et al. v. Vaserbakh et al. (1986), 22 E.T.R. 252 (Ont. Dis. Ct.). In that case, the court considered whether Rule 9.03 could be used to appoint a Litigation Guardian or Litigation Administrator.

[25] In Raiz, the deceased had been involved in a motor vehicle accident in September of 1984. He died of causes unrelated to the accident in October 1984. He died intestate and no application for probate had been made. The deceased’s son sought to be appointed as either litigation guardian or litigation administrator pursuant to Rule 9. The court declined to appoint the son and dismissed the motion.

[26] I do not see how Raiz is applicable here. In Raiz, the son was attempting to be appointed to represent his father’s estate where no application for probate had been made. The appointment was essentially requested in a vacuum and the court refused to exercise its discretion. That does not mean the Rule does not apply here, nor does it mean I cannot exercise my discretion on the facts of this case, which are entirely different from those in Raiz. In the case at bar, the Applicant had already applied for a certificate of appointment, and she commenced her application three months later.

[27] I therefore do not see why Rule 9.03(1) would not apply in this case. The Rule is intended to be remedial and for cases exactly like this one where urgent pre-trial relief is sought prior to the issuance of a Certificate.

[28] Given all of the above, I reject both of the Respondent’s arguments related to standing and find that the Applicant has standing to pursue this motion and her Application.

Issue #2 – Should a CPL be Granted?

[29] The test on a motion for leave to issue a CPL is well known and set out in Perruzza v. Spatone, 2010 ONSC 841, at para. 20 as follows:

(i) The test on a motion for leave to issue a CPL is the same as the test on a motion to discharge a CPL;

(ii) The threshold in respect of the "interest in land" issue as set out at section 103(6) of the CJA is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed ;

(iii) Factors the court can consider include (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, (v) the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the CPL is or is not removed with or without security; and

(iv) The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted.

[30] Section 103(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that the “commencement of a proceeding in which an interest in land is in question is not notice of the proceeding to a person who is not a party until a certificate of pending litigation is issued by the court and the certificate is registered in the proper land registry office.”

[31] The parties in this case do not dispute the governing test for a CPL. The moving party must show a triable interest to a claim in land to satisfy the first part of the test. As for the second part of the test, a CPL is an equitable remedy. As such, the court is to look at all the relevant matters between the parties to determine whether to exercise its discretion to grant leave to issue a CPL.

Analysis

Has the Moving Party Shown a Triable Interest in Land?

[32] It is trite law that a triable interest in land does not require the moving party to show that it will succeed at trial.

[33] The Applicant offers the following evidence in support of the existence of a triable issue in land:

(a) At the time the Property was purchased, there was a mutual understanding by the parties that the Property was beneficially owned by both of them. The Respondent and the deceased jointly searched for and selected a suitable property. The Property could not be placed in the deceased’s name only because of his struggles with his credit rating, however, this fact was not known to the Applicant and her siblings who always assumed their father had an interest in the Property.

(b) The deceased contributed to the carrying costs and mortgage payments by way of monthly cash contributions. The Applicant produced bank statements from her father’s account between May of 2015 and May of 2022, to support the cash withdrawals. She also produced copies of the Respondent’s CIBC account (prior to 2016) showing a deposit of at least some of the cash contributions.

(c) The Applicant’s evidence that she personally saw her father provide the Respondent with cash contributions for the mortgage and carrying costs.

(d) The evidence of the deceased’s stepsister, who had regular contact with the deceased, who informed her that he and the Respondent had a “deal” in relation to the Respondent holding sole title, whereby she would provide the down payment and he paid for the closing costs, renovations and appliances in exchange for the interest he was understood to have in the home. He also made monthly cash contributions to household expenses, which were relied upon by the Respondent who could not afford to make all the payments herself. The deceased also sent small amounts of money to Jamaica from time to time to help his relatives there.

(e) The Applicant’s evidence that her father received a settlement of $40,000 in 2008 in relation to damages in a motor vehicle tort claim. He used those funds to buy a dump truck and pay for the Property’s closing costs and renovations.

(f) An email from Shadreesha Williams to the court office dated August 14, 2022 in which she states that when her father died, she and her mother and siblings lost a “source of income.”

(g) The deceased was employed at the time of his death and throughout his relationship with the Respondent. The Respondent was also employed but her income alone was insufficient to pay all of the costs of the Property.

(h) The Applicant’s sister denies the allegations that her father did not contribute to the Property because he sent most of his money to Jamaica to support his other children who lived there. While the deceased did send money to Jamaica from time to time, it was intended to help relatives with specific unanticipated expenses and was not an ongoing contribution.

(i) The Respondent’s evidence on examination was contradictory as to whether the deceased was her spouse and whether he made contributions to the Property.

[34] The Respondent disputes all of the evidence of a triable issue put forward by Applicant as follows:

(a) The deceased never intended to purchase property in Canada but was instead focused on financially assisting his mother and sister in Jamaica. Further, he was providing financial assistance to his six other children.

(b) The Respondent paid the closing costs and down payment for the Property and has proof of this. The mortgage, tax bill, insurance and all utility bills were in her name and paid solely by her.

(c) The deceased provided the Respondent with small amounts of cash from time to time which were used for groceries and the children’s needs.

(d) The evidence of the cash withdrawals provided by the Applicant are of little assistance as there is no evidence that those amounts were used to pay expenses related to the Property. The deposits made by the Respondent to her account have nothing to do with the withdrawals made by the deceased. In any event, only 14 such deposits were made over nine years.

[35] The Applicant’s claim is grounded in the remedy of a constructive trust. The claim must establish a link between the subject property, an improper benefit bestowed on the Respondent and a corresponding detriment suffered by the Estate: see 306440 Ontario Ltd. v. 782127 Ontario Ltd. (Alrange Container Services), 2014 ONCA 548, 384 D.L.R. (4th) 278, at para. 27.

[36] The evidence of a triable issue in order to prove the required link between the Property and any improper benefit bestowed on the Respondent is problematic in this case given that it comes solely from hearsay of family members with an interest in the Estate who were not living at the Property.

[37] The evidence provided by the Applicant is account statements showing cash withdrawals from the deceased’s account. There is no real evidence about what those withdrawals were used for. There is some vague evidence about the deceased “leaving money on the table.” There is no evidence at all to bolster the Applicant’s claim that the deceased paid for the closing costs and a kitchen renovation other than her own evidence and that of her sister. No receipt or other documentary evidence has been provided. There is no evidence of what happened to the $40,000 settlement the deceased received a few years prior to the purchase of the Property.

[38] The Respondent denies that the deposits she made relate to those cash withdrawals. She denies that the deceased made any contributions to the Property and has deposed that his employment income was used for his own personal purposes such as supporting his children and other family members in Jamaica.

[39] Specifically, I find that, at this stage in the proceeding, the evidence with respect to unjust enrichment is weak. That is, the evidence of cash withdrawals to pay property-related expenses is corroborated by three witnesses, two of whom have a financial interest in the Estate. Further, the alleged link between the withdrawals and deposits is supported by uncorroborated evidence.

[40] Given the uncorroborated evidence of the witnesses for the Estate and the overall contradictory nature of the evidence, I find that there is insufficient evidence of a triable issue related to an interest in land which would permit the court to exercise its discretion to give leave to issue a CPL. As such, it is not necessary to assess the relevant factors in the second part of the test for a CPL.

[41] No cross-motion was brought to vacate the existing preservation order nor was the issue addressed at the motion. As such, the consent preservation order dated March 22, 2023 shall continue until the hearing of the Application.

Issue #3 -The Personal Property Issues

[42] The Applicant has made numerous requests for the preservation and return of her father’s personal property. While the evidence of the Respondent was that the deceased’s room has not been touched, there is also evidence that his identification and legal documents have been destroyed and his clothing and other personal articles have been donated or discarded.

[43] The Applicant has an obligation as the Estate Trustee to gather in all of the deceased’s personal property. Her repeated requests for cooperation from the Respondent have resulted in costs incurred by the Estate. Items of personal property should have been returned to the Estate so they could have been sold to pay for Estate expenses such as parking fees and insurance for the deceased’s trucks, tax filings, storage and legal fees. The Applicant estimates the value of the deceased’s personal property could be as much as $30,000.

[44] While there can be no dispute with respect to the Estate Trustee’s duty to gather in the deceased’s personal property, there continue to be issues as to what exactly that property comprises. The Respondent must return any of the deceased’s personal property in her possession and account for what has been discarded or donated. This must be done well in advance of the hearing of the Application. Any costs related to the personal property issue can be dealt with by the judge hearing the Application, as it not feasible for the court to do so at this stage.

Orders and Costs.

[45] The Applicant’s motion for a CPL is dismissed.

[46] The consent preservation order shall remain in place until the hearing of the Application. The order may be registered on title if required.

[47] The Applicant shall apply for a new Certificate of Appointment of Estate Trustee without a Will (not on the Small Estates’ scale) on the following terms:

(a) She shall include an estimate of the net value of the beneficial interest in the Property.

(b) She shall include an estimate of the net value of the deceased’s personal property (including the two trucks).

(c) The requirement for the beneficiaries to provide new consents or renunciations in relation to the Applicant acting as Estate Trustee Without a Will shall be dispensed with.

(d) The Applicant shall provide an affidavit with her new application setting out why the court should dispense with a bond in this case and undertaking to pay any estate administration tax owing in the event that the Applicant is successful in obtaining a beneficial interest in the Property on behalf of the Estate or the personal property of the deceased proves to have more than nominal value.

(e) The new application may be submitted to the estates office to my attention.

(f) The Applicant’s authority to act as Estate Trustee Without a Will shall continue until the issuance of the new Certificate.

[48] The Applicant is granted leave to extend the time for service and filing of the application and the materials in support.

[49] The Respondent shall preserve all of the personal property and documents of the late Robert Michael Williams, and shall release all of the said personal property to the Applicant, Sherina Williams, which includes but is not limited to the late Robert Michael Williams' identification, banking cards, credit cards, wallet, clothing, shoes, jewellery, financial records, business records, land title to his property owned in Jamaica, domestic and foreign documentation, electronics, mobile devices, automobiles, automobile ownership and keys and accessories thereto, books, journals, sports equipment, machinery, tools, collectibles, musical instruments, household furnishings, and such further and other personal property and documents belonging to the late Robert Michael Williams within 15 days of the release of this endorsement.

Costs

[50] Neither of the parties had complete success on this motion. While the Applicant’s motion was dismissed, the Respondent’s arguments in relation to standing were rejected. In the end, the Property remains subject to a preservation order.

[51] The Applicant served an offer to settle dated October 4, 2023. She offered to accept a 40 percent beneficial interest in the Property on behalf of the Estate, which was to be registered on title. She also set out certain provisions in the event the Property was sold. Her request for the preservation and release of personal property was identical to what was ordered on the motion. In the event the offer was accepted by October 13, 2023, the Respondent would pay a fixed amount of costs of $5,000 up to that date and substantial indemnity costs thereafter.

[52] The Applicant’s costs outline requests partial indemnity costs of $30,404.

[53] The Respondent served two offers to settle. The first offer is dated September 26, 2023 and was subsequently withdrawn. The offer required the Applicant to consent to a dismissal of the motion. If she did so before 10:00 a.m. on September 26, 2023, she would pay costs to the Respondent up to that date on a partial indemnity scale with a reduction of $500. If she accepted after that date, the same terms would apply except that she would pay substantial indemnity costs after 10:00 a.m. on September 26, 2023.

[54] The Respondent’s second offer was dated November 10, 2023 and was also subsequently withdrawn. That offer gave the Applicant a choice of extending the Preservation Order to the hearing of the Application or the Respondent would consent to the registration of a CPL. All of the other relief on the motion would be put over to be dealt with at the hearing of the application. The motion date of November 17, 2023, would be utilized to set a return date for the hearing of the Application. Costs of the CPL motion would be dealt with by the judge hearing the Application.

[55] The Respondent’s costs outline requests partial indemnity costs of $57,594 and substantial indemnity costs of $83,170.63. The Respondent’s counsel argued that costs were increased due to the additional work required to properly set out the law as the Applicant’s factum did not adequately address the issue of whether there was a triable issue related to an interest in land.

[56] I am at a loss to understand why the Respondent’s second offer was not accepted. Having to argue this motion now appears to have been entirely fruitless especially given the result.

[57] However, the quantum of costs sought by the Respondent is unreasonable and disproportionate. A fixed order for costs is in order in the circumstances given the mixed results and the Offers made.

[58] The Estate will pay fixed costs of this motion to the Respondent in the amount of $15,000 due and payable in any event of the cause.

[59] The litigation madness in this case must stop. This case has been before the court on at least four occasions and the Application has not yet been heard. The Trial Coordinator is to contact counsel to immediately set a Case Conference date. At the Case Conference, the parties are to set a timetable and an early hearing date.

C. Gilmore J.

Date: December 7, 2023