COURT FILE NO.: CV-23-00700087-00ES DATE: 20240731

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GUY GUTHRIE DOXEY, Applicant AND: VEANN LEPS, in her capacity as Executor of the Estate, Respondent

BEFORE: Dietrich J.

COUNSEL: Matthew Urback, for the Moving Party/Respondent Guy Guthrie Doxey, Responding Party/Applicant, Self-Representing Preston Tu, for the non-party, Barbara Lanys

HEARD: July 4, 2024

ENDORSEMENT

Overview

1The late Raymond Ergas Leps (the “Deceased”) died on November 6, 2022, at 56 years of age. He was survived by his parents and his only sibling, Veann Leps (“Ms. Leps”). The Deceased never married or had children.

2The Deceased was also survived by Guy Guthrie Doxey (“Mr. Doxey”), who is the applicant/responding party. Mr. Doxey claims to be a common-law spouse of the Deceased, who resided with the Deceased since March 2003. Mr. Doxey claims that the Deceased became ill in March 2007 and from that time onwards, Mr. Doxey provided the Deceased with life-sustaining support.

3Ms. Leps is the Estate Trustee of the Deceased’s estate (the “Estate”) pursuant to a Certificate of Appointment of Estate Trustee with a Will issued to her on April 19, 2023. She is named in the Deceased’s last will and testament, dated January 16, 2012 (the “Will”), as the primary executor and trustee of the Estate. In the Will, Ms. Leps is also named as the sole beneficiary of all assets of the Estate, including household goods and personal effects, any real property used as the Deceased’s home, and the residue of the Estate. Ms. Leps is the respondent/moving party, in her capacity as Executor of the Estate.

4The Deceased’s father, Ergas Leps, is named in the Will as the alternative executor and trustee of the Estate and the sole alternative beneficiary of the residue of the Estate.

5The Will was drafted by a lawyer, Barbara Lanys.

6Mr. Doxey commenced the within application on December 4, 2023, seeking a variety of relief, including: (i) an order that the Will be proven in solemn form on various grounds, including the Deceased’s alleged lack of testamentary capacity and alleged undue influence over the Deceased; (ii) an order declaring himself to be a dependant spouse of the Deceased, entitled to dependant’s support pursuant to Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.24 (the “SLRA”); and (iii) an order that he be permitted to reside at the condominium, municipally known as 209-35 Ormskirk Avenue, Toronto, Ontario (the “Condominium”), until his application is resolved.

7The Deceased owned the Condominium. The Deceased and Mr. Doxey were residing in the Condominium at the time of the Deceased’s death. Mr. Doxey continues to reside there, and he has refused Ms. Leps’s requests for him to vacate.

8The Condominium was valued at $427,000 at the time of the Deceased’s death. Recent estimates place its value between $550,000 and $630,000. The Condominium is unencumbered. Apart from a small bank account ($8,600) and a car ($2,400), the Estate has no other assets and no income.

9Ms. Leps brings this motion for: (i) an order for vacant possession of the Condominium; (ii) an order that a writ of possession regarding the Condominium be issued to her; (iii) an order that Mr. Doxey leave all personal property belonging to the Estate when he provides vacant possession; (iv) and an order declaring that Mr. Doxey has not met a minimal evidentiary threshold to require the Will to be proven in solemn form, and striking the paragraphs set out in his notice of application in support of such relief, without leave to amend (the “Motion”).

10The Motion was scheduled to be heard on this date pursuant to Gilmore J.’s endorsement, dated January 24, 2024. Justice Gilmore’s endorsement followed an endorsement by Sanfilippo J., dated October 31, 2023. In Sanfilippo J.’s endorsement, he adjourned the Motion to allow for cross-examination, which Mr. Doxey had requested shortly before the date initially scheduled for the Motion; to allow the parties to provide evidence of the value of the Condominium; and to allow the parties to complete their exchange of pleadings (that is, Mr. Doxey’s application record and Ms. Leps’s responding application record) by January 15, 2024.

11For the reasons that follow, I would allow Mr. Doxey possession of the Condominium until his application is disposed of, on certain terms; provided that if Mr. Doxey is or becomes unwilling or unable to fulfill such terms, Ms. Leps would be entitled to possession of the Condominium, and Mr. Doxey would be obligated to vacate it. I would grant Ms. Leps’s motion for an order declaring that Mr. Doxey has not met a minimal evidentiary threshold to require the Will to be proven in solemn form, and for an order striking the paragraphs set out in his notice of application in support of such relief, without leave to amend.

Issues

12The principal issues on the Motion are as follows:

1. Should Ms. Leps be granted an order for vacant possession?
2. Has Mr. Doxey met the minimal evidentiary threshold such that he has standing to require the Will to be proven in solemn form?

Should Ms. Leps be granted an order for vacant possession?

13For the reasons that follow, Mr. Doxey should be given an opportunity to remain in the Condominium until the disposition of his application, provided that he pay all of the expenses relating to its maintenance and upkeep. Should Mr. Doxey be or become unable or unwilling to pay all such expenses, Ms. Leps should be granted vacant possession of the Condominium and a writ of possession should she require such writ.

14Based on the evidentiary record, Mr. Doxey is not a tenant of the Condominium. Mr. Doxey and the Deceased shared a bathroom and a kitchen. Accordingly, pursuant to s. 5 (i) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, that Act does not apply. As such, the Estate is entitled to seek an order for vacant possession.

15Mr. Doxey does not assert that the Residential Tenancies Act, 2006 applies in this case.

16Pursuant to s. 2 of the Estate Administration Act, R.S.O. 1990, c. E.22 (the “EAA”), the Condominium vests in Ms. Leps, as Executor, and she has the power to dispose of or otherwise deal with the Condominium. Section 17 of the EAA authorizes her, as Executor, to sell or convey the property for the purposes of paying debts and also for distributing or dividing the Estate.

17However, s. 67(1) of the SLRA states that “[w]here an application is made and notice is served on the personal representative of the deceased, he or she shall not, after service of the notice upon him or her, unless all persons entitled to apply consent or the court otherwise orders, proceed with the distribution of the estate until the court has disposed of the application.” This section precludes a distribution or dividing of the Estate until Mr. Doxey’s application has been disposed of unless the parties entitled to apply consent or the court so orders. This section does not appear to preclude a sale of Estate property to pay debts.

18Based on the evidentiary record, there is insufficient liquidity in the Estate to pay the Estate’s expenses. Ms. Leps could make a case for an order permitting the sale to pay the Estate’s debts. These debts would include property taxes and ongoing costs of upkeep of the Condominium, which Ms. Leps says that she is paying on behalf of the Estate. Presumably, Ms. Leps is also incurring legal fees on behalf the Estate, although she provided no direct evidence in this regard. She has also not disclosed whether she will be seeking Estate Trustee compensation, which would also be a debt of the Estate.

19Neither of the parties referred to the case of Li v. Stec, 2019 ONSC 4513, which is on point. In Li, the estate trustees of an estate sought an order that the deceased’s residence be transferred to them as estates trustees, for exclusive possession of it to list and sell it. The court found that such a transfer was premature because it prejudged the plaintiff’s claim that the residence be transferred to her in satisfaction of her dependant’s support claim. In Li, the court granted the plaintiff interim possession of the residence until the trial, provided that she delivered to the estate trustees evidence of property insurance of the property. If she failed to do so, she would be required to vacate the property and grant possession to the estate trustees. Further, the plaintiff was required to pay the property taxes, utilities, and maintain the residence until the trial.

20Subsections 63(2) and (3) of the SLRA provide as follows:

(2) Provision may be made out of income or capital or both and an order may provide for one or more of the following, as the court considers appropriate,

(c) any specified property to be transferred or assigned to or in trust for the benefit of the dependant, whether absolutely, for life or for a term of years; [or]

(d) the possession or use of any specified property by the dependant for life or such period as the court considers appropriate;

(3) Where a transfer or assignment of property is ordered, the court may,

(a) give all necessary directions for the execution of the transfer or assignment by the executor or administrator or such other person as the court may direct; or

(b) grant a vesting order.

21In his factum and in his submissions, Mr. Doxey does not address Ms. Leps’s arguments for vacant possession. Nor does he make persuasive arguments that he should not be required to vacate the Condominium. Instead, he addresses the issues on his application, including his entitlement to dependant’s support and alleged frailties regarding the Will and its execution, including the Deceased’s alleged lack of testamentary capacity and alleged undue influence. Mr. Doxey also asserts that the Motion is procedurally irregular and improper.

22However, in his notice of application, Mr. Doxey does include all of Part V of the SLRA, which includes s. 63. He also seeks an order that the Condominium not be sold but used to support him. Though Mr. Doxey did not make the argument directly, it is conceivable that a sale of the Condominium would prejudge his potential claim. A similar finding was made in Li.

23Further, s. 67 of the SLRA precludes a distribution of the Estate assets by the estate trustees prior to the disposition of a dependant’s support application unless all persons entitled to apply consent or the court orders otherwise. This prohibition would seem to limit the reliance of Ms. Leps on s. 17 of the EAA to dispose of the Condominium.

24Section 67 does not address the matter of debts and whether Ms. Leps could still rely on s. 17 of the EAA to pay the Deceased’s debts.

25It would seem that Ms. Leps could sell the Condominium to pay the Deceased’s debts. It is logical and fair that Ms. Leps should not be expected to fund the Estate’s debts out of her own pocket while Mr. Doxey continues to use and enjoy what is, in essence, the only asset of the Estate.

26However, in Ms. Leps’s factum, she states that following the sale of the Condominium, she would hold the proceeds of sale of the Condominium pending the resolution of Mr. Doxey’s dependent’s support claim. If it is Ms. Leps’s intention to hold all such proceeds of sale so as to not prejudice Mr. Doxey’s claim, then she would not be using those funds to pay the Estate’s debts prior to the disposition of Mr. Doxey’s application. It seems inconsistent to seek an order that Mr. Doxey vacate the Condominium so that it can be sold, and the proceeds held in trust until his application is resolved, as opposed to using the proceeds to pay the Estate’s debts. It appears from Ms. Leps’s factum and her argument that the primary objective in selling the Condominium would be to avoid having to pay the property taxes and upkeep expenses of the Condominium personally on behalf of the Estate.

27Since the Deceased’s death, Mr. Doxey has paid or agreed to pay the Condominium maintenance fees and property insurance of approximately $930 per month.

28Ms. Leps submits that $930 per month is far below the market value rent for a two-bedroom condominium in the neighbourhood in which the Condominium is situated. Accordingly, she submits that Mr. Doxey is being enriched at the expense of the Estate, which is not earning any rental income from the Condominium.

29Mr. Doxey argues that it would be unjust and unfair to force him to vacate the Condominium because it would leave him homeless, and he would be giving up his friends and neighbours where he is now living and with whom he has spent time over many years.

30An interim solution whereby Ms. Leps’s objective of not having to pay the property taxes and costs of upkeep of the Condominium, and Mr. Doxey’s request for interim possession of the Condominium, could be achieved. The solution would require Mr. Doxey to cover not only the Condominium maintenance fees and property insurance, but also the property taxes and all costs of upkeep until his application is disposed of. This solution is similar to the disposition in the Li case.

31It is worth noting, however, that an important distinction between the case at bar and the Li case is that, in the case at bar, the Condominium is, essentially, the only asset of the Estate. In Li, there were other assets available to the estate trustees to pay the deceased’s and the Estate’s debts.

32In my view, a fair and reasonable interim order would:

(i) Require Mr. Doxey to, within 10 days of this endorsement, make the Estate whole for all Condominium maintenance fees and property insurance he agreed to pay but may be owing in respect of the Condominium to July 31, 2024.

(ii) As of August 1, 2024, require Mr. Doxey to pay for the monthly Condominium maintenance fees, the property insurance, the property taxes and all costs of upkeep of the Condominium, as those expenses come due, and to provide proof of such payment to Ms. Leps by no later than the last day of each month in which such payments came due. Such fees and expenses would be the sole responsibility of Mr. Doxey until his application has been disposed of. Should Mr. Doxey be or become unwilling or unable to make such monthly payments or such monthly reporting to Ms. Leps, or both, he would be required to grant vacant possession to Ms. Leps within 30 days of her request, and should he fail to do so, Ms. Leps would be granted leave to issue a writ of possession in relation to the Condominium and to require the Sheriff of the City of Toronto to put her in vacant possession of the Condominium. If necessary, Ms. Leps could seek the assistance of the Toronto Police Service and the Sheriff to obtain and secure vacant possession.

(iii) Prohibit Mr. Doxey from removing from the Condominium any of the household goods and personal effects that belonged to the Deceased and form part of the Estate.

(iv) Require the parties to attend at a case conference for the purposes of establishing a litigation timetable for Mr. Doxey’s claim for dependant’s support.

33Regarding the procedural irregularities relating to service of Ms. Leps’s notice of appearance and responding materials that Mr. Doxey raises, I note that these same irregularities were also raised with Sanfilippo J. in October 2023. Justice Sanfilippo observed that Mr. Doxey had not, at that time, filed evidence in support of his own application.

34I am satisfied that both parties have had ample notice of the other’s pleadings and ample time to review and deliver responding material, which they have now done. Mr. Doxey has also had plenty of time to cross-examine Ms. Leps, and he has declined to do so. I am satisfied that Mr. Doxey has not been prejudiced by any procedural irregularity, as alleged by him.

Has Mr. Doxey met the minimal evidentiary threshold such that he has standing to require the Will to be proven in solemn form?

35To challenge the Will, Mr. Doxey must show that he has a financial interest in the Estate.

36Rule 75.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states:

Any person who appears to have a financial interest in an estate may apply for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court.

37Section 23 of the Estates Act, R.S.O. 1990, c. E.21 states:

Where a proceeding is commenced for proving a will in solemn form or for revoking the probate of a will on the ground of the invalidity thereof or where in any other contentious cause or matter the validity of a will is disputed, all persons having or pretending to have an interest in the property affected by the will may, subject to this Act and to the rules of court, be summoned to see the proceeding and may be permitted to become parties, subject to such rules and to the discretion of the court.

38Ms. Leps submits that Mr. Doxey is not a person who has a financial interest in the Estate and, therefore, he lacks standing to bring an application to challenge the Will.

39Ms. Leps concedes that whether Mr. Doxey is a common-law spouse of the Deceased is a live issue in this matter. However, she asserts that it is abundantly clear that Mr. Doxey is not a legally married spouse of the Deceased. Ms. Leps’s evidence is that Mr. Doxey is legally married to someone else.

40Ms. Leps submits that there is no evidence that the Deceased executed a last will and testament other than the Will. Therefore, even if Mr. Doxey were successful in a challenge of the Will, the result would likely be an intestacy. Unless Mr. Doxey could prove that he was the legally married spouse of the Deceased, he would have no right to share in the distribution of the Estate pursuant to the rules of intestate succession as set out in s. 1(1) and s. 47(3) of the SLRA. If the Deceased had no legally married spouse, the Deceased’s parents would inherit the Estate in the event of an intestacy.

41Without the status of a legally married spouse of the Deceased, Mr. Doxey would be ineligible to share in the Estate on an intestacy. In other words, Mr. Doxey has nothing to gain by challenging the Will.

42Mr. Doxey submits that he is laying claim to an interest in the Estate through his dependant’s support claim. He claims that he has an interest in the property affected by the Will, by virtue of that claim. Mr. Doxey does not rely on any legal authority in support of his position.

43In Moses v. Moses, 2021 ONSC 587, 64 E.T.R. (4th) 246, at para. 21, Cavanagh J. referred to Smith v. Vance (1997), 12 C.P.C. (4th) 391 (Ont. Div. Ct.), where the Divisional Court held that where a person lays claim to an interest in law, or “pretends” to have an interest in an estate, the person is not required to prove that interest before being permitted to become a party under s. 23 of the Estates Act. However, the court held that claimants must do more than simply assert an interest. They must present sufficient evidence of a genuine interest and meet a threshold test to justify inclusion as a party. The evidence need not be conclusive at that stage but must be evidence capable of supporting an interest that the claim is one that should be heard. If such evidence is capable of supporting an inference that the claim raises a genuine issue and thus is one that should be heard, the person challenging the will should be entitled to standing and should be granted permission to be added as a party.

44The outcome of Mr. Doxey’s dependant’s support claim does not turn on the validity of the Will. Whether Mr. Doxey succeeds or fails in his claim will be decided pursuant to his application that seeks that relief. Mr. Doxey is a potential creditor of the Estate and a litigant in this proceeding. I do not find that Mr. Doxey’s claim for dependant’s relief justifies a finding that he has standing to challenge the Will, and I decline to exercise my discretion to find that he has such standing.

45Mr. Doxey has not met his onus to show that he has a financial interest in the Estate or that he has or pretends to have an interest in the property affected by the Will. Mr. Doxey’s interest as a potential creditor of the Estate is unaffected by the results of a Will challenge. Mr. Doxey should not be granted an order requiring Ms. Leps, as Executor, to prove the Will in solemn form.

46Whether a person had a “financial interest” or “an interest in the property affected by the will” was recently considered by the Court of Appeal for Ontario in Moses v. Moses, 2021 ONCA 662, 71 E.T.R. (4th) 167 (“Moses CA”). In Moses CA, the claimant asserted that he was able to challenge the deceased’s will because he claimed to have an interest in the deceased’s property based on proprietary estoppel. In commenting on the application judge’s reasons, with which it found no error, the Court of Appeal noted, at para. 5:

The application judge found that the appellant had no standing to bring the application to declare the will invalid, either under r. 75.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 or under s. 23 of the Estates Act, R.S.O. 1990, c. E.21. He was not a beneficiary under the 2019 Will and, even if the 2019 Will were to be set aside on the ground of undue influence, he would not be affected by the result, because there was an earlier will, made in 1996 (the “1996 Will”), under which the appellant would receive no share on the death of his father – the entire estate would go to his mother.

47A litigant does not, as a matter of right, have the power to challenge a will. As held by the Court of Appeal for Ontario in Neuberger v. York, 2016 ONCA 303, 131 O.R. (3d) 143, at para. 88:

In my view, an Interested Person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.

48A Will challenge by Mr. Doxey, if permitted, would result in needless expense to the Estate, and would in no way affect the outcome of Mr. Doxey’s claim, except by reducing the value of the Estate from which his claim for dependant’s support, if successful, could be paid.

49In his submissions and in his factum, Mr. Doxey did not address the need to meet a minimal evidentiary threshold or directly defend his position that he has standing to challenge the Will. Instead, Mr. Doxey incorrectly and inappropriately sought orders to preserve Estate assets, orders for production of medical records, and an order declaring that the Deceased both lacked testamentary capacity and had been unduly influenced in his testamentary planning. This relief is sought in Mr. Doxey’s application, but he did not bring a cross-motion to the Motion.

Disposition

50For the above-noted reasons, an order shall issue regarding the Condominium and Mr. Doxey’s claim for dependant’s support as set out in paragraph 32 above, and an order shall issue declaring that Mr. Doxey has not met a minimal evidentiary threshold to require the Will to be proven in solemn form, and striking the paragraphs set out in his notice of application relating to such relief, without leave to amend.

Costs

51Any party seeking costs of the Motion shall provide a written submission, not exceeding three pages (double spaced) in support thereof, excluding a costs outline and offers to settle, if any, within 21 days of this endorsement. Any reply to such submission shall be served and filed within 14 days after receipt of the submission seeking costs.

Dietrich J.