Court File and Parties
Court File No.: CV-19-00011921-00ES Date: 2024-04-29 Superior Court of Justice - Ontario
Re: Lin Zhang, Applicant And: Estate of Deming Liu and Shu De Rong, Respondents
Before: M.D. Faieta J.
Counsel: Victor Kang Li, for the Applicant Wen Xiao (Michelle) Kang, for the Respondent Shu De Rong
Heard: April 8, 2024
Endorsement
[1] The Applicant brings this motion for leave to amend her Application, issued September 5, 2019, to claim the following relief:
(a) An Order to remove Shu-De Rong as the Executor of the Estate of Deming Liu and appoint Lin Zhang as the Executor of the Estate of Deming Liu. (b) An Order to grant Lin Zhang the Family Law Act election for an equalization of net family property. (c) An Order to grant Lin Zhang dependent’s relief pursuant to section V of the SLRA (d) An Order for an accounting by the Respondents for all assets of the Estate in particular the assets from outside of Canada. (e) An Order for the preservation of all assets withdrawn from the Estate, in particular the assets from outside of Canada. (f) An Order for the restitution of all profits from the unjust enrichment of the Respondent from the illicitly withdrawn assets from outside of Canada.
Background
[2] This case concerns the Estate of Deming Liu. He passed away due to cancer on May 17, 2019.
[3] Shortly before his death, on April 11, 2019, the Deceased executed his Last Will and Testament that names his friend, the Respondent Shu-De Rong, as his Estate Trustee. The Deceased left his 2007 Toyota Camry to the Applicant, a legacy of $24,000 to his son Charlie Liu, and the residue to his four brothers to be divided equally.
[4] On June 18, 2019, the Respondent served and filed a Notice of Application for a Certificate of Appointment with a Will.
[5] On July 16, 2019, the Applicant served and filed a Notice of Objection.
[6] On July 24, 2019, Conway J. ordered that the parties were entitled to compel production of all financial records and files relating to the assets held by the Deceased from any financial institution, the Deceased’s medical records from the North York General Hospital for the last year of his life, and information from the Government of Canada related to the Canada Pension Plan death benefit and survivor’s pension for the Deceased.
[7] On September 5, 2019, the Applicant commenced an application that challenges the validity of the Will on the basis that it was executed under suspicious circumstances. The Applicant claims the following relief:
a. An Order that this Application be heard on an urgent basis. b. A declaration that the Deceased’s Last Will and Testament dated April 11, 2019 is invalid and of no force and effect and an Order that it be set aside. c. A declaration that the Applicant is the sole beneficiary of the Deceased’s Estate. d. Alternatively, i. A declaration that the Applicant is a dependent of the Deceased pursuant to Part V of the Succession Law Reform Act, R.S.O, 1990, c. S.26 (“SLRA”) and that the Deceased failed to provide adequate support for the Applicant out of his Estate. ii. An Order that the Estate is under an obligation to support the Applicant. iii. An Order making adequate provision from the assets of the Estate of the Deceased for the proper support of the Applicant pursuant to subsection 58(1) of the SLRA. iv. An order making provision for the Applicant to receive interim support from the Estate, pursuant to section 64 of the SLRA. v. An Order directing the manner of securing any support payments. vi. An Order restraining any party from dealing with any of the assets of the Estate vii. An Order for an accounting of the assets of the Estate at the time of death of the Deceased and at the time of the return of this Application e. An Order compelling production of records relating to the value of the Estate and the administration of the Estate to date. f. An Order compelling production from third parties, including the Canada Revenue Agency, of any documents or information pertaining to the Deceased, and the Estate. g. An Order that the limitation period for the Applicant to file an election and to commence an application for the equalization of property under the Family Law Act. R.S.O. 1990, c. F.3 (“FLA”) be extended until further Order of the Court. h. An Order appointing an Estate Trustee. i. An Order that the Applicant’s costs of these proceedings shall be paid from the Estate or by the Respondent on a full indemnity basis.
[8] On September 17, 2019, Dietrich J. ordered that the Deceased’s CPP death benefit and survivor’s pension be paid to the Applicant. The court also ordered a scheduling conference to be held on January 7, 2020 to address the balance of the claims raised in the Application.
[9] The judicial conference did not proceed on January 7, 2020. Although the Applicant’s counsel attended, the court noted that the Applicant was in China and unable to attend the previously scheduled conference. On consent, the conference was adjourned to March 13, 2020. The Applicant was ordered to serve and file materials by March 4, 2020. On January 6, 2020, the Respondent signed an affidavit which states that the value of the Estate was $111,423.22. The Applicant states that this value does not include the value of the Deceased’s assets in China. She states that the Respondent has taken these assets for his own benefit (see Applicant’s Affidavit, March 25, 2024, paras. 38-45).
[10] On March 9, 2020, the Applicant’s counsel advised the court that the Applicant was unable to travel back to Canada due to the outbreak of COVID-19. On consent, the parties agreed to adjourn the conference. Administratively, the conference was adjourned sine die.
[11] This pursuit of the claims in this Application went dormant for next three years until May 12, 2023, when the Applicant served a notice of change of solicitors on the Respondent.
[12] On the other hand, on July 27, 2022, a Certificate of Appointment of Estate Trustee with a Will was granted to the Respondent. The Applicant states that she was still out of the country at that time and asserts that she was unable to return to Canada due to travel restrictions. There is no evidence of when the Applicant returned to Canada.
[13] On August 15, 2023, the Applicant served a motion record for a motion returnable on August 24, 2023.
[14] On August 24, 2023, the motion was adjourned to November 6, 2023 for a case conference. Sanfilippo J.’s Endorsement dated August 24, 2023, states:
[1] The Applicant, Lin Zhang, brought a Motion for Directions. The materials filed in the CaseLines bundle for this Motion (002) were in error, including: (a) the Title of Proceedings was reversed on all the Motion materials; (b) the Notice of Application and Application Record in this 2019 Application were incapable of being located and uploaded by the Applicant during the hearing; (c) the Motion Record was not hyperlinked; (d) the Responding materials filed by Mr. Rong were filed incorrectly, with a series of one-page files, and were thereby not capable of being used in the hearing.
[2] On the consent of the parties, I adjourned the Applicant’s Motion for Directions without return date. The parties shall attend at a Case Conference on November 6, 2023 at 12:30 p.m., by video conference, for 30 minutes, before any Judge. The Case Conference is scheduled under Rule 50.13(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for the purposes of Rule 50.01.
[3] In anticipation of the Case Conference, the Applicant shall, by September 15, 2023, file Motion materials in proper form. At the Case Conference, the parties may speak to an Order Giving Directions to advance this 2019 Application and, failing agreement, the timetable and schedule for the hearing of the Applicant’s Motion for Directions.
[15] On November 6, 2023, Sanfilippo J. directed that the Applicant’s motion proceed on January 18, 2024 and established a timetable for the exchange of motion materials. His Endorsement states, in part, that:
[4] At the Case Conference conducted today, the Applicant requested additional estate accounting from the Respondent, and requested the scheduling of a Motion to: (a) amend her Notice of Application to seek additional relief considering the issuance of the CAETWW; (b) preservation of assets; (c) production and disclosure. The Applicant stated that she intends to seek an Order that the Respondent must be represented by a lawyer in this Application, considering Rule 15.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[5] On the consent of the parties, the Respondent, Shu-de Rong, will, on November 10, 2023, deliver to the lawyer for the Applicant the estate accounting that he has compiled, which he described as consisting of about 100 pages in hard copy.
[6] On the basis of Rule 50.13(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I order as follows: (a) The Applicant’s motion shall proceed on January 18, 2024, presumptively by video conference, for 60 minutes, before any judge. (b) The Applicant’s motion shall be prepared for hearing in accordance with the following timetable: a. The Applicant shall, by December 1, 2023, deliver her Motion Record.
[16] The Applicant failed to deliver motion materials by the December 1, 2023 deadline.
[17] On December 5, 2023, the Applicant’s counsel, Stefan Juzkiw, served a motion to be removed as counsel.
[18] Given that Mr. Juzkiw’s motion had not been heard, on January 18, 2024, the Applicant’s motion was adjourned to April 8, 2024 on the following terms:
Order to go as follows:
Stefan Juzkiw’s motion to be removed as solicitor of record for the Applicant shall be heard on March 12, 2024, at 11:00 am.
The Applicant’s motion to amend her Application and other relief is adjourned to April 8, 2024 at 10:30 am, by Zoom videoconference, and: (a) The Applicant shall, by March 25, 2024, serve and file with proof of service, her Motion Record. (b) The Respondent shall, by April 3, 2024, serve and file with proof of service, his Responding Motion Record. (c) The Applicant shall, by April 5, 2024, serve and file with proof of service, her Motion Confirmation Form listing the materials to be relied on at the Motion, providing reference to the location of the documents in Caselines.
Unless she obtains leave of this court, the Applicant shall not be permitted to bring any motions if she fails to comply with paragraph 2(a) of this Order.
Stefan Juzkiw shall, within 30 days, pay costs personally of $500 to the Respondents.
[19] On March 12, 2024, Mr. Juzkiw was removed as counsel of record.
[20] The Applicant retained new counsel and her motion proceeded.
Analysis
[21] Rule 26.01 of the Rules of Civil Procedure states that
On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[22] A Notice of Application, although it is not a pleading, may be amended in accordance with Rule 26.01 of the Rules of Civil Procedure: 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, para. 16.
[23] The principles that govern Rule 26.01 were described by the Ontario Court of Appeal in McFadden v. Psutka, 2024 ONCA 203, at para. 12 as follows:
Rule 26 of the Rules of Civil Procedure states that courts shall grant leave to amend a pleading on such terms as are just, unless prejudice would result which could not be compensated for by costs or an adjournment. However"although the general rule is that amendments are presumptively approved, there is no absolute right to amend pleadings. The court has a residual right to deny amendments where appropriate": Marks v. Ottawa (City), 2011 ONCA 248, 280 O.A.C. 251, at para. 19; see also Avedian v. Enbridge Gas Distribution Inc., 2023 ONCA 289, at para. 6.
[24] In Marks v. Ottawa (City), 2011 ONCA 248, LaForme J.A. stated, at para. 19:
Although the general rule is that amendments are presumptively approved, there is no absolute right to amend pleadings. The court has a residual right to deny amendments where appropriate: Daniele v. Johnson (1999), 45 O.R. (3d) 498 (Ont. Div. Ct.) at paras. 11-15. Further, I would agree that the proper factors to be considered are those first set out in Simrod v. Cooper, [1952] O.W.N. 720 (Ont. H.C.) at p. 721, aff'd at p. 723, and quoted with approval in Vaiman v. Yates (1987), 60 O.R. (2d) 696 (Ont. H.C.) at p. 698, which can be summarized as follows:
- An amendment should be allowed unless it would cause an injustice not compensable in costs.
- The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious.
- No amendment should be allowed which, if originally pleaded, would have been struck.
- The proposed amendment must contain sufficient particulars.
[25] The principles that govern the application of Rule 26.01 were described by Hourigan J.A. in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42, at para. 25, as follows:
The law regarding leave to amend motions is well developed and the general principles may be summarized as follows:
- The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court's process; or the pleading discloses no reasonable cause of action
- The amendment may be permitted at any stage of the action
- There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source
- The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided
- Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial
- At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed
- The onus to prove actual prejudice lies with the responding party
- The onus to rebut presumed prejudice lies with the moving party [Citations omitted.]
[26] Recently, these principles were summarized by Zarnett, J.A. in Shwaluk v. HSBC Bank of Canada, 2023 ONCA 538, at para. 36, as follows:
Amendments to pleadings are generally governed by r. 26.01 of the Rules of Civil Procedure: "On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment". Under this rule, the court must permit an amendment, regardless of the stage of the action at which it is sought, unless the party opposing the amendment can demonstrate actual prejudice that is non-compensable, or unless the delay in seeking it was so long, and the justification so inadequate, that prejudice is presumed. [Citations omitted.]
[27] I now turn to the application of these principles. I note that in support of this motion the Applicant has not served and filed a draft Amended Notice of Application showing the proposed added relief and added grounds.
Order for the Removal of the Respondent as Estate Trustee and the Appointment of the Applicant as Estate Trustee
[28] The Respondent submits that the amendment for an order requiring the removal of the Respondent as Estate Trustee comes three years after the Notice of Application was filed and almost two years after the Respondent was appointed as Estate Trustee by this court. The Respondent submits that the Applicant has failed to provide sufficient evidence to support her objection.
[29] The Applicant submits:
Mr. Rong was appointed as the Estate Trustee through a CAETWW while Ms. Zhang’s Application was adjourned due to COVID-19, despite the fact that her Application had already challenged the validity of said purported will.
Ms. Zhang is a person with an interest in the estate of the deceased, and an amendment would satisfy the requirements of the Trustee Act.
Mr. Rong was appointed as Estate Trustee on July 27, 2022, so even if this is deemed as a new cause, the limitation period of two years has not yet expired and there is no resulting prejudice to the responding party due to this proposed amendment.
[30] The Respondent submits:
The Applicant’s recent request to assume the role of Estate Trustee, made over 3 years after the Notice of Application was filed and nearly 2 years after the Respondent was appointed as Estate Trustee is frivolous, vexatious and an abuse of the Court’s process.
The Applicant’s actions demonstrate a lack of consideration for the Court’s procedures and the interests of the Estate’s beneficiaries. She previously caused delays by filing a Notice of Objection and has since failed to provide sufficient evidence to support her objection despite a significant passage of time.
It would be impractical and counterproductive for the Court to entertain the Applicant’s eleventh-hour request to replace the Respondent as Estate Trustee, especially considering her clear conflict of interest with the other beneficiaries. This would only waste valuable time and the Court’s finite resources.
[31] I find that prejudice may be presumed given the long delay in seeking this relief. The Applicant has not rebutted this presumption. More significantly, I find that the relief sought would have little chance of success and is thus not prima facie meritorious. Unlike the Respondent, the Applicant is a beneficiary and her appointment as Estate Trustee would place her in a conflict of interest with the other beneficiaries because she takes the position that the Will should be set aside as invalid.
Order to grant a FLA election
[32] On this motion the Applicant seeks “an Order to grant Lin Zhang the Family Law Act election for an equalization of net family property”. However, in her Application, the Applicant already seeks “an Order that the limitation period for the Applicant to file an election and to commence an application for the equalization of property under the Family Law Act, R.S.O. 1990, c. F.3 be extended”.
[33] There is no need for an amendment to the Application. What is outstanding is the request in the Application for a hearing of whether the six-month limitation period for filing an election under the FLA should be extended pursuant to s. 2(8) of the FLA.
[34] The relevant provisions of the FLA are as follows:
5(2) When a spouse dies, if the net family property of the Deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half the difference between them. …
6(1) When a spouse dies leaving a will, the surviving spouse shall elect to take under the will or to receive the entitlement under section 5.
6(8) When a surviving spouse elects to receive the entitlement under section 5, the gifts made to him or her in the Deceased spouse's will are revoked and the will shall be interpreted as if the surviving spouse had died before the other, unless the will expressly provides that the gifts are in addition to the entitlement under section 5.
6(9) When a surviving spouse elects to receive the entitlement under section 5, the spouse shall be deemed to have disclaimed the entitlement under Part II of the Succession Law Reform Act.
6(10) The surviving spouse's election shall be in the form prescribed by the regulations and shall be filed in the office of the Estate Registrar for Ontario within six months after the first spouse's death.
6(11) If the surviving spouse does not file the election within that time, he or she shall be deemed to have elected to take under the will or to receive the entitlement under the Succession Law Reform Act, or both, as the case may be, unless the court, on application, orders otherwise.
7(3) An application based on subsection 5(1) or (2) shall not be brought after the earliest of,
(a) two years after the day the marriage is terminated by divorce or judgment of nullity; (b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation; (c) six months after the first spouse's death.
[35] A surviving spouse that fails to file an election within six months after their spouse’s death, may ask the court to extend the time for doing pursuant to s. 2(8) of the FLA which states:
The court may, on motion, extend a time prescribed by this Act if it is satisfied that,
(a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and (c) no person will suffer substantial prejudice by reason of the delay.
[36] In Hevey v. Hevey, 2021 ONCA 740, at para. 40, Harvison Young J.A. addressed the test under s. 2(8) of the FLA and stated that:
Each of the requirements must be met as a pre-condition to granting the relief: Vivier v. Vivier, 19875 R.F.L. (3d) 450 (Ont. Dist. Ct.). The "relief" is not the extension of time but the relief claimed under the FLA such as equalization: Scherer v. Scherer (2002), 59 O.R. (3d) 393 (Ont. C.A.), at para. 16. In determining whether "apparent grounds for relief" exist, the court may make a limited inquiry into the merits of the proposed claim. The question to be answered is "[b]ut for the limitation period that acts as a bar, are there apparent grounds to support the claim?": see Werth v. Werth, 2004 ONCJ 43, at para. 14. The relief must be unavailable because of a delay that has been incurred in good faith. The "good faith" requirement requires the applicant for an extension to show that they acted "honestly and with no ulterior motive": Hart v. Hart, 199027 R.F.L. (3d) 419 (Ont. U.F.C.).
[37] Whether the six-month limitation period for an election under s. 7(3) of the FLA should be extended requires a balancing of interests. In Aquilina v. Aquilina, 2018 ONSC 3607, at paras. 22-23, Dunphy J. stated:
20 A consideration of the provisions of s. 5 and s. 6 of the FLA in the context of the SLRA suggests a few straightforward conclusions.
21 Firstly, the two acts are intended to be read and considered together as part of a comprehensive scheme. This is so not only in terms of division of property of spouses upon the death of one of them but also in terms of dependent support obligations.
22 Secondly, the spouse is intended to have a period of time to consider his or her election. This is required not only because of the period of grief that naturally follows as traumatic an event as the death of a spouse but also because it takes time to gather information and be in a position to make an informed election in his or her best interest.
23 Thirdly, the requirement that the election be made within six months recognizes that a balancing of interests is required as between the imperative of ensuring that the surviving spouse is able to make the choice that is in his or her best interests on the one hand and the imperative of allowing an estate to be properly administered on the other. The spouse is an important stakeholder in the estate administration process, but not the only one.
24 There are a number of formal and informal deadlines or expectations applicable to executors and administrators that are premised on the concept of the "executor's year". The fact that the Legislature fixed the deadline for making an election at six months or halfway through the "executor's year" says something about the type of balancing expected when an extension is requested. In the normal course and in most cases, an extension should not be required. This too is informative as to the manner in which the Legislature intends that the balancing of interests is to be undertaken.
25 Fourthly, the fact that a balancing of interests must be undertaken implies that neither is an absolute. The mere fact that the person seeking the extension — the surviving spouse — has not yet got full information is not dispositive of the matter. There is a difference between having precise and accurate information and having sufficient information to make an informed choice. Assessing whether the electing spouse has assembled perfect knowledge is not the standard to be applied in assessing whether there are grounds for relief. There will always be some piece of information missing that might better fill in the picture, even in the average or run-of-the mill case. Extensions are intended to be the exception and not the rule.
[38] The Applicant’s submission on this point is as follows:
The second proposed amendment is a prayer for an Order to grant Ms. Zhang an election for an equalization of net family property under the FLA.
Ms. Zhang’s original Application included a prayer for relief to extend the limitation period for her to file an election until further Order of the Court. However, to date, there has not been a ruling from the Court on this prayer for relief.
Section 6(11) of the FLA provides that if the surviving spouse does not file an election within the six-month period, they shall be deemed to take under the will, or receive the entitlement, or both, unless the Court orders otherwise.
The proposed amendment would have the same effect as a deemed election to receive, which is consistent with the FLA and would not result in any prejudice to the responding party.
[39] The Respondent submits that:
It has been almost 5 years since the Deceased died on May 17, 2019.
Throughout the proceedings, the Applicant has had the benefit of legal representation since filing her Notice of Objection in 2019. She is afforded both the time and the resources to “assemble a reasonable knowledge base from which an informed choice might fairly be expected to be made.
Despite seeking an order to extend the limitation period in her 2019 Notice of Application, the Applicant has failed to pursue this relief in any subsequent hearings. Over the course of the past 7 hearings, she has not once raised this specific issue.
Allowing the Applicant to now make her election under the FLA after an unreasonable delay of almost 5 years, and in the absence of good faith, would represent a grave maladministration of justice.
[40] Both parties have argued the merits of the Application to extend the limitation period for filing an election and I will determine that issue on its merits.
[41] In respect of whether there are apparent grounds for relief, there is no evidence suggesting that the Applicant would be entitled to an equalization payment. An equalization payment provides the spouse whose net family property is the lesser of the two net family properties one half of the difference between them. I have no reason to believe that the Applicant would be entitled to an equalization payment given that she has not provided any supporting evidence, in the form of a Net Family Property Statement or otherwise.
[42] Further, there is nothing to suggest that there was a “good faith” delay in bringing this application forward for determination on the issue of whether the limitation period should be extended. The Applicant has not demonstrated that she acted "honestly and with no ulterior motive". The Applicant failed to appear in this court on January 7, 2020 when this issue was to be addressed, which resulted in its adjournment. The Applicant returned from China at some point after July 2022. Due to her absence, the Application became dormant until August 15, 2023 when the Applicant filed a motion for directions.
[43] Given the passage of several years, far beyond the six months prescribed by the FLA, I find that prejudice should be presumed. I dismiss the application to extend the limitation period to file an election beyond the six-month period provided for by s. 7(3) of the FLA.
An Order to Grant Dependent’s Support under Part V of the SLRA to the Applicant
[44] The Applicant seeks leave to amend her Application to add a claim for “an Order to grant Lin Zhang dependent’s relief pursuant to section V of the SLRA.”
[45] The Applicant submits:
[This] is a prayer for an Order granting Ms. Zhang dependent’s relief pursuant to Section V of the SLRA, which was originally pled in the alternative on Ms. Zhang’s Application. This proposed amendment would change the original alternative prayer for relief into a main prayer for relief. As a result, there is no prejudice to the responding party due to this proposed amendment.
[46] The Respondent submits:
The 2019 Notice of Application already included a request for an Order granting the Applicant dependent’s relief under Section V of the SLRA, albeit as an alternative head of relief.
It would be unnecessary and burdensome to the Court to amend this request to a main head of relief, as it has already been appropriately addressed in the initial 2019 Notice of Application.
[47] The Applicant did not provide a draft Amended Application that shows the proposed amendments. I do not understand how the amendment would change the dependents’ claim under the SLRA into the “main prayer for relief”. Does this mean that the request for a declaration that the Will is invalid and/or the request for a declaration that the Applicant is the sole beneficiary of the Estate would be removed, or simply become requests for relief in the alternative? In my view, there is nothing gained by the proposed amendment and much more additional confusion to arise if it is granted.
Foreign Estate Assets
[48] The Applicant seeks leave to amend the Application to add the following claims:
(a) An Order for an accounting by the Respondents for all assets of the Estate in particular the assets from outside of Canada. (b) An Order for the preservation of all assets withdrawn from the Estate, in particular the assets from outside of Canada. (c) An Order for the restitution of all profits from the unjust enrichment of the Respondent from the illicitly withdrawn assets from outside of Canada.
[49] The Applicant submits:
The remaining proposed amendments … are prayers for relief which result from Ms. Zhang’s discovery of Mr. Rong withdrawing foreign assets from the estate, subsequent to the issuance of Ms. Zhang’s original Application, and which Ms. Zhang alleges were not accounted for in Mr. Rong’s application for the CAETWW.
Ms. Zhang, during her trip to China, had discovered from conversations with her late husband’s friends and colleagues that Mr. Rong had used the purported will, which Ms. Zhang had already object to in her original Application, as a means to withdraw her late husband’s holdings in China as his purported Executor.
As Ms. Zhang was not the named Executor in the purported Will, she was not able to receive any relevant documentation which would clarify the status of her husband’s assets and the manner in which Mr.Rong withdrew them.
The proposed amendments are prayers for equitable relief in the form of an accounting of all assets in the Estate, including all foreign assets which were previously unreported and which were not known to Ms. Zhang when her original Application was issued. The proposed amendments would further require the preservation of all assets withdrawn and a restitution of any profits from said assets that Mr. Rong may have accrued.
Ms. Zhang requires these amendments in order for the full value of the estate to be properly accounted for and disclosed to the Court, so that the Estate can be properly administered.
Furthermore, Ms. Zhang will not be able to access or request any of the relevant documentation regarding the foreign assets of the estate without these amendments to her original Application.
Ms. Zhang respectfully submits that the proposed amendments would amend the original pleadings to conform with the current situation, in light of the CAETWW subsequently being issued to Mr. Rong despite the validity of the purported will being contested and the hearing of the Application contesting the will being adjourned due to COVID-19.
Ms. Zhang respectfully submits that the proposed amendments would amend the original Application to conform with Ms. Zhang’s subsequent discovery of foreign assets in her late husband’s estate.
Ms. Zhang respectfully submits that the proposed amendments would not result in any prejudice to the responding party which cannot be compensated for by costs or an adjournment.
[50] The Respondent submits:
The Respondent has consistently complied with the Court’s Orders and directions to provide accounting to the Applicant, devoting significant time to disclosing, accounting and reviewing records with the Applicant’s counsel.
The Respondent affirms no knowledge of the Deceased’s assets outside of Canada, having never managed any foreign Estate assets.
Despite the Applicant residing in China since 2019, shortly after filing her 2019 Notice of Application, no evidence has been presented to support the existence or administration of the Deceased’s assets in China.
Granting the Applicant leave to request further accounting for Estate assets beyond Canada would unduly prejudice the Respondent and prolong the Estate’s administration.
[51] In her affidavit the Applicant states that she travelled to China after her husband’s funeral and met with:
… his old friends and colleagues in Hong Kong and Shenzhen. One of his former colleagues, Fu Ran, informed me that Mr. Rong had withdrawn my husband’s shares and assets in the companies in Hong Kong.
[52] The Applicant did not provide any further details. What shares? What assets? What companies? When did these events happen? How does Fu Ran know this information? This hearsay or perhaps double hearsay evidence is entirely inadequate and I do not give it any weight. Having been aware of this concerning information for over four years, I would have expected the Applicant to have consulted with her lawyer to arrange for an affidavit from Fu Ran or others with direct knowledge of these alleged actions on the part of Mr. Rong.
[53] Given the weak evidentiary basis and justification for these claims, and the presumed prejudice due to the passage of four years, I find that these motions for amendment should be dismissed. The Applicant has not rebutted the presumed prejudice.
Decision
[54] Order to go as follows:
(a) Motion dismissed. (b) The Respondent shall deliver their costs submissions by May 6, 2024. The Applicant shall deliver her costs submissions by May 13, 2024. Each submission shall be a maximum of three pages, 12-point font, double-spaced, exclusive of the Outline of Costs and any offers to settle. A ten-minute videoconference hearing on the issue of costs shall be held on May 16, 2024 at 8:45 am.
Mr. Justice M.D. Faieta Date: April 29, 2024