Court File and Parties

COURT FILE NO.: CV- 23-00706703-00ES DATE: 20240314 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF CONCETTA NORINA SASSANO, deceased

BETWEEN:

CARMELINA SASSANO, in her capacity as executor and trustee in the estate of Concetta Norina Sassano, deceased Applicant – and – GIUSEPPINA IOZZO, in her personal capacity and in her capacity as executor and trustee in the estate of Concetta Norina Sassano, deceased Respondent

Counsel: Joanne Hwang, for the Applicant Did not appear, for the Respondent

HEARD: January 19, 2024

Reasons for Judgment

A.A. SANFILIPPO J.

[1] The Applicant, Carmelina Sassano, and the Respondent, Giuseppina Iozzo, are the daughters of Concetta Norina Sassano, who died on November 22, 2011 (the “Deceased”). The Deceased was predeceased by her husband, Luigi Sassano. The Deceased left a last will and testament dated April 1, 1998 (the “Will”), which is not challenged. The Will nominated and constituted Ms. Sassano and Ms. Iozzo to be the executors and trustees of the Deceased’s Estate (the “Estate”).

[2] The principal asset of the Estate is a property known municipally as 211 Gilbert Avenue, Toronto, Ontario (the “Property”). The Property was purchased by the Deceased and her late husband on August 7, 1981, as joint tenants under the Land Registry System. The Property was converted into Land Titles on August 27, 2001.

[3] The Deceased and her husband began living in the Property in 1981. The Applicant moved into the Property in 1985 upon a divorce from her former spouse. Ms. Sassano deposed that she lived with her mother until the Deceased’s passing, providing her with care, support, and companionship in her elderly years. Upon the Deceased’s passing, Ms. Sassano and Ms. Iozzo did not apply for a Certificate of Appointment of Estate Trustee with a Will. The only asset of the Estate besides the Property was a bank account that the Deceased held jointly with Ms. Iozzo.

[4] The Will provides, in sub-paragraphs 3(c)–(f), that Ms. Sassano is permitted to reside in the Property until the occurrence of the earliest of four specified events (her death, remarriage, entry into a cohabitation agreement, or decision to vacate the Property), after which the Property shall be sold and divided equally between the two residuary beneficiaries of the Estate, Ms. Sassano and Ms. Iozzo, as follows:

3. I GIVE DEVISE AND BEQUEATH to my said Trustees all my property of every nature and kind situated in Canada … upon the following trusts, namely: (c) To retain any interest I may have in the home (if any) in which I reside at the time of my death (hereinafter referred to as the “family home”) and the appliances, furniture, linens, tools, utensils and generally all contents save and except for belongings of a personal nature, contained therein, until the first of the following events (hereinafter referred to as the “sale condition”) occurs : (i) my daughter Carmelina dies, or (ii) she remarries, or (iii) she enters into a cohabitation arrangement with another man in a relationship of some permanence, within the meaning of those words under the Family Law Act, R.S.O. 1990. (iv) she voluntarily leaves the family home with the intention of taking up permanent residence elsewhere. Until then my daughter Carmelina shall be permitted to reside in such home free of rent or other occupation charge and to have the free use of the said contents. All expenses relating to the upkeep and maintenance of the said home and the said contents … shall be paid out of my estate and all utilities consumed in the premises shall be paid by my daughter Carmelina during her occupancy. (d) To hold a sufficient portion of the residue of my estate in trust until the first of the sale conditions to occur, in order to pay the obligations imposed on the estate by the preceding paragraph. (e) Upon the first of such sale conditions occurring my interest in the said home and the other assets retained shall be sold and the proceeds of the said sale and the remainder in the said trust shall then fall into residue. (f) The residue of my estate shall be divided in equal shares between my two daughters Carmelina Sassano and Giuseppina Iozzo for their own use absolutely. …

[5] Ms. Sassano deposed that since April 2023, she has notified Ms. Iozzo of her intention to take up permanent residence elsewhere, thereby activating sub-paragraph 3(c)(iv) of the Will. Ms. Sassano swore that her decision to leave the Property is caused by her inability to maintain the Property due to physical limitations resulting from her medical conditions. Ms. Sassano deposed that because of these challenges, the Property needs major repairs.

[6] Ms. Sassano deposed that she has not received any response from Ms. Iozzo. Indeed, Ms. Sassano swore that she has not spoken to Ms. Iozzo since 2012 and has not seen her since about 2008.

[7] Ms. Sassano brought this Application for the following relief: (a) An Order removing Ms. Iozzo as an executor and trustee of the Estate. (b) An Order deeming that Ms. Iozzo has renounced as an executor and trustee of the Estate. (c) An Order granting Ms. Sassano leave to apply for a Certificate of Appointment of Estate Trustee with a Will in the Estate. (d) An Order that Ms. Sassano’s costs of this Application be paid out of the assets of the Estate or out of the share of the Estate to which Ms. Iozzo has an entitlement as a residuary beneficiary.

[8] Ms. Iozzo did not appear in this Application, although properly served.

A. Applicable Legal Principles

[9] This Application was properly brought under Rule 14.05(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

14.05(3) A proceeding may be brought by application … where the relief claimed is, (c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation.

[10] The Court has an inherent jurisdiction to remove trustees: St Joseph’s Health Centre v. Dzwiekowski, at para. 25. This is embodied in s. 37(1) of the Trustee Act, R.S.O. 1990, c. T.23 as follows:

37(1) The Superior Court of Justice may remove a personal representative upon any ground upon which the court may remove any other trustee, and may appoint some other proper person or persons to act in the place of the executor or administrator so removed.

[11] Ms. Sassano and Ms. Iozzo have not applied for a Certificate of Appointment as Estate Trustees. The Court of Appeal instructed in Chambers Estate v. Chambers, 2013 ONCA 511, 309 O.A.C. 205, at para. 90, that “[a]n executor is removed after he or she has received a certificate of appointment, whereas an executor is passed over before the issuance of such a certificate”, applying Justice Quinn’s holding in Windsor v. Mako (2008), 43 E.T.R. (3d) 255 (Ont. S.C.), at para. 35. The Court of Appeal explained that “[p]ut another way, a person is removed as estate trustee after he or she has assumed authority to administer the estate, whereas a person is passed over as estate trustee prior to having assumed authority to administer the estate.”

[12] In addition to not having applied for a Certificate of Appointment as Estate Trustee, Ms. Iozzo has not, at any time, assumed authority to administer the Estate, as I will explain. Accordingly, Ms. Iozzo cannot be removed as estate trustee although she can be passed over.

[13] The grounds for passing over an estate trustee are the same as the grounds for removal of an estate trustee: Windsor, at para. 35; Ford v. Mazmann, 2019 ONSC 542, 45 E.T.R. (4th) 133, at para. 18. The Court of Appeal provided guidance on the proper legal test for passing over an estate trustee in Chambers Estate at paras. 95–96:

The applications judge was fully alive to the legal principle that the court should not lightly interfere with a testator’s choice of the person to act as his or her estate trustee: Re Weil, [1961] O.R. 888 (C.A.), at p. 889. Just as a court should remove an estate trustee only on the “clearest of evidence”, so too they should be reluctant to pass over a named executor unless “there is no other course to follow”: Windsor, at para. 41, citing Crawford v. Jardine (1997), 20 E.T.R. (2d) 182 (Ont. C.J. (Gen. Div.)), at para. 18. As Wright L.J. explained, “passing over of an executor and granting administration to other parties is an unusual and extreme course, though it is within the discretion of the Probate Court”: Re Leguia (No. 2) (1936), 155 L.T.R. 270 (C.A.), at p. 276.

Thus, the wishes of the testator will generally be honoured, “even if the person chosen is of bad character”: Carmichael Estate (Re) (2000), 46 O.R. (3d) 630 (S.C.), at para. 17. In fact, an executor named in a will should not be passed over simply because he or she is of bad character or bankrupt, or there is likely to be friction between co-executors: see Harris v. Gallimore (1925), 57 O.L.R. 673 (C.A.), at p. 678; Re Agnew, [1941] 4 D.L.R. 653 (Sask. C.A.), at p. 657; Re Wolfe (1957), 7 D.L.R. (2d) 215 (B.C.C.A.), at p. 221; and Crompton v. Williams, [1938] O.R. 543 (H.C.), at pp. 586-87. That being said, courts have passed over an executor because he was in a conflict of interest with the estate (e.g. Re Becker (1986), 57 O.R. (2d) 495 (Surr. Ct.), at pp. 498-99; Thomasson Estate (Re), 2011 BCSC 481, [2011] B.C.W.L.D. 4763, at paras. 29-30) or because she had a conflict and was in poor health (e.g. Re Bowerman (1978), 20 O.R. (2d) 374 (Surr. Ct.), at p. 377).

[14] Whether in the case of the removal or the passing over of an estate trustee, “the Court’s main guide should be the welfare of the beneficiaries”: Kinnear v. White, 2022 ONSC 2576, at para. 11, citing Crawford v. Jardine (1997), 20 E.T.R. (2d) 182 (Ont. Gen. Div.), at para. 18; Henderson v. Sands, 2023 ONSC 897, 85 E.T.R. (4th) 182, at para. 8; Radford v. Radford Estate (2008), 43 E.T.R. (3d) 74, at para. 103; St Joseph’s Health Centre, at para. 26, applying the statement by Lord Blackburn in Letterstedt v. Borers (1884), 9 App. Cas. 371: “In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture beyond the very broad principle above enunciated, that their main guide must be the benefit of the beneficiaries.”

B. The Evidence

[15] The relief sought by the Applicant is supported by the affidavit of Ms. Sassano affirmed August 21, 2023 and the affidavit of Eleonora Van Orman, a real estate agent, affirmed August 21, 2023. This affidavit evidence is unchallenged and is corroborated by the documents exhibited to the affidavits. This evidence forms the foundation for my determination of this Application.

[16] Ms. Sassano deposed that her relationship with Ms. Iozzo became strained by a disagreement over where the Deceased should live as her health declined in her elder years. This conflict post-dates the Deceased’s execution of the Will on April 1, 1998, wherein both daughters were named as executors.

[17] Ms. Sassano deposed that although the Will provides that the Estate was to pay for all property related expenses, including property taxes, she has been paying them personally. Ms. Sassano swore that in about January 2012, some two months after her mother’s death, she called Ms. Iozzo to report that the Property’s roof was leaking and that a loan would have to be obtained to finance the repair. Ms. Sassano deposed that Ms. Iozzo “hung up on me” and that this was the last time that the sisters have had any contact.

[18] Ms. Sassano deposed that the Property is in disrepair. The roof leaks, some of the plumbing pipes have burst and the electrical wires must be replaced as there is a mix of new and dated wiring. Ms. Sassano deposed that she is physically disabled and morbidly obese and suffers from severe edema causing severe mobility issues. She receives medical care in the Property because of her challenges in mobility. She has limited income and can barely cover living expenses, let alone pay for any repairs. Ms. Sassano wants to move out of the Property, share the proceeds with Ms. Iozzo and live in an apartment in her neighbourhood that is better suited to her current needs.

[19] Ms. Sassano has reached out to Ms. Iozzo directly, through her lawyer (letters dated April 19, 2023 and May 15, 2023 before the initiation of this Application on September 12, 2023) and through a real estate agent, Ms. Van Orman. Ms. Sassano affirmed that the only response that she received was in April 2023 when Ms. Iozzo’s husband, Vince Iozzo, “barged into the Property” and told her to “stop bothering him and Giuseppina.”

[20] Ms. Van Orman deposed that on March 9, 2023, she was contacted by Jaan Sepp, a Municipal Standards Officer with the City of Toronto who informed her that there were outstanding work orders against the Property because it was in a state of disrepair. Ms. Van Orman met with Ms. Sassano on March 11, 2023 and observed that the Property needed extensive repairs.

[21] At Ms. Sassano’s request, Ms. Van Orman attended at Ms. Iozzo’s residence on May 7, 2023. Ms. Van Orman affirmed that Vince Iozzo told her that he and Ms. Iozzo had received the letters from Ms. Sassano’s lawyers but were not interested in helping Ms. Sassano sell the Property, would not speak with Ms. Sassano and “had nothing to do with the Property”.

[22] Ms. Van Orman deposed that she has since reached out to Mr. Iozzo by telephone, without success in making contact and forwarded a letter on June 9, 2023. On June 28, 2023, Mr. Iozzo called Ms. Van Orman to communicate that Ms. Iozzo “had no interest in the Property or in any estate proceedings” and asked that Ms. Van Orman and Ms. Sassano never bother them again.

[23] Ms. Iozzo was served with the Application Record on October 12, 2023 and, on November 1, 2023, was provided with notice of the Scheduling Appointment of December 6, 2023 by which this Application was scheduled for hearing. Ms. Iozzo did not appear at the Scheduling Appointment or in this Application.

C. Analysis

[24] The Applicant submitted that this is a proper case for removal of an estate trustee because Ms. Iozzo has intermeddled in the Estate by declining to support a loan application for the repair of the Property, by not cooperating in the sale of the Property and by ignoring communications from her co-estate trustee. In my view, this is not intermeddling in the administration in the Estate. Rather, Ms. Iozzo has abdicated any duty as an estate trustee. I accept the Applicant’s alternative argument that Ms. Iozzo should be passed over as estate trustee. I will explain why.

[25] This case is similar to the decision by Justice Dawe (as he then was), in Kinnear. There, the estate trustee appointed by the will had not taken any steps to administer the estate, including applying for a Certificate of Appointment of Estate Trustee, notwithstanding the urging of the beneficiaries and court orders requiring the disclosure of estate assets and a passing of accounts. The Court held that the failure of the appointed estate trustee to take any steps in the administration of the estate although urged to do so, including the failure to apply for a Certificate of Appointment, supported an order that the estate trustee be passed over.

[26] Like removal of an estate trustee, an estate trustee may be passed over where the estate trustee has endangered the trust property: Di Michele v. Di Michele, 2014 ONCA 261, 319 O.A.C. 72, at para. 84. On the evidence that I have accepted, Ms. Iozzo is endangering the estate’s principal asset, the Property, by not taking any steps in collaboration with Ms. Sassano.

[27] I recognize that the Deceased’s wish to have both her daughters as estate trustees should not be lightly interfered with. However, Ms. Sassano has brought the clearest of evidence that Ms. Iozzo is unwilling to take any step as estate trustee, notwithstanding numerous efforts by several people to illicit her involvement. Further, the welfare of Ms. Sassano as a beneficiary of the estate requires that Ms. Iozzo be passed over as estate trustee. I accept that the Property is wasting, and that Ms. Sassano has decided to “voluntarily leave the family home with the intention of taking up permanent residence elsewhere”, as provided by paragraph 3(c)(iv) of the Will. Ms. Iozzo’s inactivity is thereby impeding the proper administration of this Estate and the welfare of one of its beneficiaries.

[28] The passing over of Ms. Iozzo is necessary, as a remedy of last resort, for the Estate to be administered, including through the sale of the Property.

D. Conclusion

[29] On the basis of these reasons, I conclude that the Respondent, Giuseppina Iozzo, shall be passed over as estate trustee of the Estate.

[30] Section 37(4) of the Trustee Act provides that where the “executor … removed is not a sole executor … the court need not, unless sees fit, appoint any person to act in the place of the person removed, and if no such appointment is made, the right and estate of the executor … removed passes to the remaining executor … as if the person so removed had died.” On the authority of s. 37(4), an order shall issue that Ms. Sassano shall be the sole estate trustee of the Estate.

E. Costs

[31] The Applicant seeks her costs of this Application on a full indemnity basis, to be paid out of the Respondent’s residuary interest in the Estate. The Applicant’s Bill of Costs sets out her claim for costs of $17,129.65 on a full indemnity basis, comprised of $14,485.00 in fees, $1,883.05 in applicable taxes and $761.60 in disbursements.

[32] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides the Court with discretion in the determination of costs. In the analysis of the issue of costs, I have considered the factors set out in Rule 57.01(1) and have then “stepped back” and determined whether, in all the circumstances, the cost result is fair, reasonable, and proportionate: Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, at para. 60.

[33] Ms. Sassano brought this Application in her capacity as executor and trustee in the Estate. The Application was necessary for the orderly administration of the Estate. As an estate trustee acting reasonably in the interests of the Estate, Ms. Sassano shall be indemnified for her legal costs from the assets of the Estate: Gefen v. Goodman Estate, [1991] 2 S.C.R. 353, at para. 74. Considering Ms. Iozzo’s refusal, after ample notice, to engage as an estate trustee under her mother’s Will and her failure to cooperate with the appointed co-estate trustee, in breach of her appointment and to the detriment of the Estate, I find that Ms. Sassano’s costs shall be paid out of Ms. Iozzo’s distributive share of the residue of the Estate. Regarding quantification of the costs, I find that the costs sought by Ms. Sassano in the amount of $17,129.65, all inclusive of legal fees, disbursements, and applicable taxes, are fair, reasonable, and proportionate.

[34] An Order shall thereby issue that Ms. Sassano’s costs of this Application, fixed in the amount of $17,129.65, all inclusive of legal fees, disbursements, and applicable taxes, shall be paid out of Ms. Iozzo’s distributive share of the residue of the Estate.

F. Disposition

[35] I order: (a) The Respondent, Giuseppina Iozzo, is hereby passed over as an estate trustee in the Estate of Concetta Norina Sassano, deceased (the “Estate”). (b) The Applicant, Carmelina Sassano, is constituted as the sole executor and trustee of the Estate. (c) The Applicant, Carmelina Sassano, is granted leave to apply for a Certificate of Appointment of Estate Trustee with a Will in the Estate, in her capacity as the sole executor and trustee of the Estate. (d) On the filing of the necessary supporting application materials, a Certificate of Appointment of Estate Trustee with a Will for the Estate shall be issued to Carmelina Sassano as sole executor and trustee, on an expedited basis. (e) The Applicant, Carmelina Sassano, may seek further directions from this Court, as necessary or advisable, including regarding the sale of property owned by the Estate. (f) The Applicant’s costs of this Application, fixed in the amount of $17,129.65, all inclusive of legal fees, disbursements, and applicable taxes, shall be paid out of the Respondent’s distributive share of the residue of the Estate.

[36] The Applicant may prepare and file on the CaseLines bundle for this hearing (003) a draft judgment consistent with this disposition and may then forward the draft judgment by email to the Estates List Trial Coordinator, to be brought to my attention.

A.A. Sanfilippo J. Released: March 14, 2024