Court File and Parties

Court File No.: CV-20-41285-00ES Date: 2024/08/12 Superior Court of Justice - Ontario

In the Estate of: Carol-Sue Shapiro, deceased

Re: Michael Shapiro, Applicant And: Jack Shapiro and Tracy Shapiro, Objectors (Moving Party)

Before: Justice K.A. Jensen

Counsel: Ian McBride, Margot Pomerleau and Matthew Benson, for the Applicant Anne Posno, Jonathan Mertz and Stephen Victor, for the Objectors (Moving Party)

Heard: May 24, 2024

Ruling on Application for a Certificate of Appointment of Estate Trustee

Introduction

[1] On August 13, 2020, Tracy and Jack Shapiro objected to an Application for a Certificate of Appointment of Michael Shapiro as Estate Trustee for a Primary Will and a Limited Property Will, both executed by Carol-Sue Shapiro on October 31, 2018 (the October 2018 Wills). Carol-Sue passed away on June 24, 2020.

[2] Tracy Shapiro is Carol-Sue’s daughter and Jack Shapiro is Carol-Sue’s husband. Michael Shapiro is Carol-Sue’s son. I refer to all of them by their first names because of their shared last name and not out of any disrespect.

[3] Tracy and Jack believe that Carol-Sue was unduly influenced to implement changes in the October 2018 Wills. They allege that Carol-Sue’s son, Michael, and his wife, Nicole Shapiro (Nikki), unduly influenced Carol-Sue by fraudulent means to effectively cut Tracy out of the Estate and to significantly reduce Jack’s inheritance in the October 2018 Wills.

[4] Michael is named the Estate Trustee in the October 2018 Wills. He is also the beneficiary of 100% of the residue of Carol-Sue’s Estate, which is worth approximately $7 million.

[5] It is alleged that Michael and Nikki convinced Carol-Sue not to bequeath any money to Tracy by fueling a false belief that Tracy was back together with her husband, Joseph Corcos (Jo) in 2018. It was believed that Jo would take any money Tracy received from the Estate, thereby violating Carol-Sue’s intention to keep the wealth within the bloodline.

[6] Jack asserts that Michael and Nikki instilled the false belief in Carol-Sue that Jack had enough savings and pension money to live comfortably. Therefore, he did not need the inheritance or the title to their condominium, which Carol-Sue had bequeathed to him in previous wills. Jack stated that not only was the story about his financial well-being a lie, so too was Carol-Sue’s other belief that any money she gave him in the October 2018 Wills would be given to Tracy, who would then give it to Jo.

[7] Tracy and Jack initially objected to the October 2018 Wills on the grounds that Carol-Sue lacked testamentary capacity, that she did not have knowledge or approve of the wills' contents, that they were made under suspicious circumstances, and that they were procured by undue influence.

[8] Upon learning that there were additional wills executed by Carol-Sue in 2013 and 2016 (both in February and in May), which were amended by various codicils, Tracy and Jack then sought to challenge those additional testamentary documents. However, they have subsequently abandoned their challenge on the ground of capacity and have restrained their challenge to the October 2018 Wills.

[9] Therefore, the only issue in this application is whether Michael and Nikki unduly influenced Carol-Sue in relation to the October 2018 Wills. The question I must answer is this: did Carol-Sue freely make up her own mind about her testamentary intentions in the October 2018 Wills or was she fraudulently influenced to change her wills?

The Wills

[10] In 2008, Carol-Sue and Jack signed mirror wills and then mirror codicils in 2011. These instruments provided that each would be the other's estate trustee, and each would receive the entirety of the other's estate. If either predeceased the other, their estate was to flow to their children Michael and Tracy, in equal shares, save for the matrimonial home which was to go to Michael.

[11] The purpose of the 2011 codicil was to appoint Michael as trustee over Tracy's inheritance to protect it from Jo. Carol-Sue and Jack discussed this role with Michael, who agreed at the time.

[12] Between 2013 and 2018, Carol-Sue made five changes to her wills. Each new instrument reduced Tracy’s and/or Jack’s inheritances and increased the inheritances of Michael and his family.

[13] In 2013, Carol-Sue’s wills provided Tracy with 25% of the residue of the Estate in trust, subject to a mandatory allowance of $5,000/month. Jack was to receive $1 million absolutely and the matrimonial home for life. Michael would receive 75% of the residue of the Estate.

[14] In 2016, Carol-Sue modified her wills to provide Tracy with 20% of the residue of the Estate, in trust, subject to a mandatory allowance of $10,000/month. Jack was to receive $1 million absolutely and the matrimonial home for life. Michael was to receive $1 million absolutely and 80% of the residue of the Estate.

[15] In 2016, Carol-Sue also executed a codicil to the 2016 wills in which she reduced Jack’s inheritance to $500,000 and left the other provisions as they were.

[16] In February 2018, Carol-Sue executed codicils to the 2016 wills in which she removed the allowance to be provided to Tracy and inserted a requirement for Tracy’s 20% inheritance to be placed in a discretionary trust with Michael as the trustee.

[17] In October 2018, Carol-Sue executed the Wills that are subject to the present allegation of testamentary fraud. In the October 2018 Wills, Carol-Sue gave 100% of the residue of her Estate to Michael, $250,000 to Jack plus the matrimonial home for life, and only specific items of jewelry to Tracy.

The Law on Testamentary Fraud

[18] In his text entitled Capacity and Undue Influence, John Poyser asserts that testamentary fraud is a type of conduct that can amount to undue influence. [1] It is distinguished from coercion. In Mr. Poyser’s words:

Testamentary fraud is an effort to fool a person into believing a false state of affairs that is then instrumental in causing that person to make a testamentary gift that otherwise would not have been made. Testamentary fraud does not force a person to do something against his or her will. The person goes willingly, but is led by a program of falsehood and manipulation. [2]

[19] John Poyser’s description of undue influence based on fraud, or testamentary fraud, was cited in a 2017 decision of the Nova Scotia Supreme Court in Patterson Estate (Re), 2017 NSSC 221, 29 E.T.R. (4th) 47. In that case, the testator made a new will after her daughter, Marlene, with whom she lived, restricted the testator’s contact with her other children. Marlene convinced the testator that her other children were ignoring her. The Nova Scotia Supreme Court drew an inference, on the basis of circumstantial evidence, that the testator had been induced to form false beliefs about her children’s lack of caring, through manipulation and deceit on the part of Marlene. The Court found that the testator was under Marlene’s effective control because she lived with her.

[20] The party attacking the will bears the onus of proving undue influence, whether by fraudulent means or coercion, on a balance of probabilities. Vout v. Hay, [1995] 2 S.C.R. 876, at para. 28. As has been noted by other courts, evidence of undue influence will rarely be direct because the influence is usually done in private, without witnesses. The evidence of undue influence is usually circumstantial. Patterson Estate (Re), at para 21. It is, nevertheless, open to a court to draw inferences from the circumstances in a particular case and to find, on the balance of probabilities, that undue influence has in fact occurred.

The History of the Parties’ Relationship

[21] In Gironda v. Gironda, 2013 ONSC 4133, 89 E.T.R. (3d) 224, Justice Penny emphasized that the history of the parties’ relationship is vital to an examination of whether undue influence is, or could be, present. Therefore, in the following section of these reasons I set out my determination of the factual history of the parties’ relationship.

[22] In determining the factual history, I have attempted to view the events and interactions from Carol-Sue’s perspective as much as possible. This has enabled me to decide whether Carol-Sue was influenced to believe an untruthful narrative that contributed to the changes she made in the October 2018 Wills.

[23] I note parenthetically that rarely is there one family narrative with which everyone agrees. Every family member sees events and interactions differently depending upon their position in the family, their relationships with other family members and their own personalities and needs. This does not mean that a given family member’s interpretation of an event is necessarily incorrect or untruthful; it may simply mean that from where they sit in the family, they see things differently.

[24] In the following historical analysis, I have rejected some of the witnesses’ interpretations of the events because it does not jive with what I see as Carol-Sue’s perspective. In determining Carol-Sue’s perspective, I have studied her many emails, and considered those emails in the context of all the affidavits and the transcripts of the witness examinations.

[25] Sometimes, it was clear that a witness was not accurately reflecting what happened or had forgotten what happened. In assessing the witnesses’ evidence, I looked at its internal consistency and consistency with documentary and other reliable evidence, logical plausibility, and indications that the witness was prepared to make statements that were not necessarily to their advantage.

[26] Most often however, I rejected a witness’s evidence because they simply saw things differently from how I think Carol-Sue saw things. It is my hope that by setting out Carol-Sue’s version of reality I am not undermining the validity of other family members’ views of the family history. In so doing, I hope to honour Carol-Sue’s wishes, as poignantly expressed in her final moments on this earth, that the family see beyond their differences and reconcile.

[27] Carol-Sue clearly did not intend to break the family up. But her fear, which bordered on an obsession, that Jo would gain access to the money her father had worked hard to make, was a destructive force. The evidence has convinced me that neither Michael nor Nikki, nor the two of them in concert, created that fear. Nor did Michael and Nikki perpetuate Carol-Sue’s fear of Jo. In fact, they tried to alleviate Carol-Sue’s concerns about Jo by convincing Tracy to leave him. Their efforts in that regard appeared to them, and to several others, to have failed. Further, Jo himself exacerbated the situation in 2018 by writing angry emails and texts to family members. In the end, Carol-Sue followed through on a threat she had made as early as 2013 to cut Tracy out of the will, for fear that she would give Jo her father’s hard-earned money.

[28] Carol-Sue was fiercely loyal to her family and especially to her father, Casey, who created the Swedlove wealth. It is clear that she truly believed, rightly or wrongly, that this money could fall into the wrong hands, and all would be lost. In particular, Jo Corcos demonstrated behaviour throughout his marriage to Tracy that made Carol-Sue very suspicious that he was trying to get his hands on her father’s money. Because Carol-Sue did not see that money as hers but as her father’s, and because she was intensely loyal to her family, Carol-Sue could not bear the thought that Jo might get any of the Swedlove Legacy. Unfortunately, that fear resulted in extreme family alienation. This was clearly not Carol-Sue’s intention, nor was it Michael and Nikki’s doing.

The Historical Background From Carol-Sue’s Perspective

The Swedlove Legacy

[29] Carol-Sue was the youngest child of Casey and Bess Swedlove. Carol-Sue and her brother Alan Swedlove were adopted by Casey and Bess.

[30] Casey and Bess passed away in 2006 and 2015 respectively. Carol-Sue's brother, Alan, predeceased Bess. Alan had no children.

[31] In 1967, Carol-Sue married Jack Shapiro and they had two children, Tracy and Michael. Michael married Nikki in 1999. Michael and Nikki had two children, Ben and Neilah, who were deeply cherished by Carol-Sue.

[32] Carol-Sue’s father, Casey Swedlove, was a successful businessman. He developed two parcels of land in Ottawa which were managed through his two companies, Kaycee Realty Inc. and Swedlove Realties Limited (the Companies). Carol-Sue took over the Companies when Casey died in 2006. Carol-Sue amalgamated the two companies in 2019.

[33] In 2014 and 2017, Carol-Sue sold the two parcels for a total of $8.85 million. Jason David, a chartered investment advisor, from Polaris Wealth Management, assisted in managing the investment of these funds.

[34] Martin Black was Casey’s corporate and personal lawyer. When Casey died, Carol-Sue maintained a professional relationship with Martin Black; Mr. Black acted as her corporate and personal lawyer and was responsible for drafting her wills and codicils. Mr. Black produced a great number of emails between himself and Carol-Sue during the course of the present litigation. He was also cross-examined under oath by counsel for Tracy and Jack.

[35] It is uncontested that Casey wanted the wealth he had created through his Companies to be preserved and used by the family for future generations. The wealth Casey generated was referred to as the “Swedlove Legacy” throughout these proceedings.

[36] Casey was also generous to others with his wealth. He contributed significantly to the construction of a synagogue and to other charitable organizations.

[37] When Carol-Sue inherited the Companies upon Casey’s death in 2006, she inherited a great responsibility. She took very seriously Casey’s desire to ensure that the wealth remained in the family and that generous donations be made to the organizations her father supported. For example, in an email dated February 19, 2013, Carol-Sue said to Martin Black that her father “worked his fingers to the bone” and she was going to protect his money.

[38] On December 29, 2015, Carol-Sue provided instructions in an email to Martin Black to make gifts to some of Casey’s charitable organizations. She also stated that she had been giving a lot of thought to ways of protecting the “money from the business that my father worked so hard for”.

[39] During the examination of Martin Black described Carol-Sue’s commitment to protecting the Swedlove Legacy in the following terms:

She felt that she was like the steward, or the custodian of this legacy. She took it very seriously. Because, again, it wasn’t her doing, it was her father who had worked very hard and had done well.

Jack Shapiro

[40] Prior to 2006, when Carol-Sue inherited her father’s Companies, Jack was the primary financial provider for the Shapiro family.

[41] Carol-Sue was a full-time homemaker, raised their two children, and was very involved in the Jewish community. Carol-Sue had no income, save for a small monthly stipend from her father.

[42] Jack worked as educator in Ottawa and became a well-respected high school principal. He retired from the school board in 1998 and worked as a professor at Algonquin College until 2006. Jack was also actively involved in the Ottawa Jewish Community and served as President of the Beth Shalom Synagogue.

[43] Jack bought the family home on Parkglen Drive in Ottawa, paid the family's living expenses, and saved to make generous gifts to Tracy and Michael.

[44] In 2006, when Casey died, Carol-Sue suddenly had access to the wealth Casey had built over the years. She then began paying for all household expenses.

[45] In general, Carol-Sue and Jack maintained separate finances. At the time of Carol-Sue's death, Jack, then age 75, had approximately $445,000 remaining in life savings. This included $300,000 that Jack inherited from his parents and his uncle.

[46] Steve Parker, the Shapiro’s accountant, provided evidence that he thought Jack had about a million dollars in GICs when he completed his tax return for him. Mr. Parker admitted that he had reverse “guesstimated” that amount based on interest income that was reported in Jack’s tax returns. He admitted that he had not actually seen Jack’s accounts. Therefore, it is by no means clear that Jack had this quantity of savings. It is more likely than not that Jack’s savings were limited to approximately $445,000.

[47] However, the evidence establishes that Carol-Sue believed that Jack had sufficient savings to ensure that he would be comfortable when she passed away. It is not clear how much she thought he had saved, but given that he was receiving a pension, had not paid for household expenses since 2006 and had inherited money from his family, it is reasonable to infer that Carol-Sue believed Jack had more savings than he had. Given that the couple kept their finances separate, Carol-Sue likely did not know exactly how much Jack had in savings.

[48] Carol-Sue did not permit Jack to be involved in the management of the Companies or the investment of the funds once they were sold. Jack was given only general information about how the investments were doing.

Michael’s Involvement in the Companies

[49] Carol-Sue was minimally involved in the administration of her father’s Companies prior to his death. As a result, she did not have a deep understanding of how the business worked. She had to get up to speed quickly when Casey passed away in 2006 so that she could properly run the business. She was assisted by her father’s lawyer, Martin Black, and her father’s chartered accountant, Steve Parker. These two individuals became her lawyer and accountant, with whom she consulted frequently.

[50] Carol-Sue gradually brought Michael into the management of the Companies so that Michael would be better prepared than she had been to run the Companies when she was gone.

[51] Jack denied that Michael was involved in running the Companies until Carol-Sue was hospitalized. However, Jack’s perspective is at odds with the evidence provided by both Steve Parker and Jason David. Both Mr. Parker and Mr. David testified that Michael regularly attended meetings with Carol-Sue and them. Mr. Parker stated that this was always at the request and with the approval of Carol-Sue.

[52] Mr. David stated in his affidavit that while Carol-Sue was the ultimate financial decision maker, she felt it was important for Michael to both understand and remain informed in regard to her financial affairs because it was her expressed intention that Michael would be the one to assume them on her passing. It was clear to Mr. David that Carol-Sue valued Michael's involvement.

[53] Carol-Sue and Michael spent quite a bit of time discussing the Companies over the years. However, Tracy was not involved in the business.

Tracy’s Marriage to Jo in 2006

[54] Like her father, Tracy became an educator. She currently works as a high school principal in Ottawa. She has never been involved in the family business.

[55] In 2007, Tracy met Jo Corcos, who is from Montreal. They were married in 2008. Jo was going to contribute $60,000 to the wedding costs. However, he did not have the money and asked Tracy’s grandmother, Bess Swedlove, if she would loan him the money. Bess agreed to do so.

[56] The “wedding loan” became a bone of contention between Carol-Sue and Tracy and Jo. Jo made some payments towards the repayment of the loan, but ultimately, it was Tracy who paid off the loan out of the inheritance she received from her grandmother Bess.

[57] Even though it was Bess’ money, Carol-Sue expected prompt repayment of the loan. Carol-Sue would send email reminders to Tracy about the loan.

[58] Carol-Sue saw Jo’s failure to pay off the loan as a symptom of his lack of responsibility and commitment to Tracy and the Shapiro family. She called Jo a “thief” in some of her email correspondence with Martin Black and others because he had taken Bess’ money and not repaid it despite having committed to do so.

The “Shooting” in 2012

[59] In December 2012, Jo called Tracy to tell her that he had been shot at a mall in Montreal. Tracy was extremely upset at the news and called her parents immediately. They too were very concerned. At some point it came out that Jo had been shot by a BB gun and had suffered only a superficial wound. When Carol-Sue later asked Jo about the incident, he would not speak about it. This concerned her. In an email to Martin Black dated February 19, 2013, Carol-Sue stated:

A couple of weeks later when I questioned Jo regarding the shooting at a Shabbat dinner, he became very defensive. If I’m going to get the third degree, I’ll go back to the city. I just asked what had happened. Even Tracy didn’t know the supposed whole story. This incident in itself is mental abuse as far as I’m concerned because Tracy was hysterical on the phone when she called us and couldn’t even drive home.

[60] In Tracy’s cross-examination, she was somewhat evasive about the “shooting”. She stated that she and Jo did not really discuss the shooting, even though she acknowledged being very upset about it when he called from the hospital. She said she needed to give Jo some space. She stated that she also did not speak with her parents about it. It seems very odd that Tracy would not discuss an incident that caused her to make a “hysterical” phone call to her parents. It makes sense to me that this would raise suspicions in Carol-Sue’s mind about Jo.

The Investigation into Jo

[61] Jo did other things that caused Carol-Sue great concern. In the February 19, 2013, email to Martin Black, Carol-Sue reported that Jo had claimed he was a resident at the Jewish General Hospital in Montreal. However, Carol-Sue claimed to have found out that Jo was never registered in the Medicine program and had never been employed in any capacity at the Jewish General Hospital. Carol-Sue stated in an email to Martin Black: “we should just find a way of telling Tracy that her husband is a fraud, and her marriage is built on lies”.

[62] Tracy’s evidence about Jo’s work background was not clear. She stated he was in medical school when they were first dating, but he also had a liquidation business which took more of his time. She could not remember if he was employed at a hospital. She stated that he spoke with her parents more about his liquidation business than his medical residency.

[63] In early 2013, there were enough concerns about Jo that a private investigator was hired to investigate Jo. Tracy and Jack maintained that Michael retained the investigator to find evidence to continue a campaign against him. However, I find that it was a joint decision by Carol-Sue and Michael to hire the investigator because they were concerned for Tracy’s well-being. Carol-Sue paid for the investigation and Michael interacted with the investigator.

[64] The private investigation report, dated March 4, 2013 (the PI Report), contained information that showed that Jo had not been completely forthright with the Shapiro family, including that he was not a physician at the Jewish General Hospital and that he did not own houses in Montreal, as he had claimed.

[65] However, the PI Report did not lend any credence to the belief that Jo was involved in criminal activity or that he had failed to pay taxes that were owing.

[66] Michael testified in the examination that the investigator had told him verbally that Jo was on the police’s radar at a very low level. He stated that this added to his concerns about Jo and that he would have relayed this information to Carol-Sue. Michael’s evidence about the contents of his conversations with the investigator is clearly hearsay. It cannot be used to prove the truth of the police’s alleged knowledge about Jo. However, the allegation that Michael had conversations with the investigator about issues that were not covered in the PI Report is uncontested. Therefore, I find that Michael did have such conversations and that they contributed to his concerns about Jo. I also find that he relayed those concerns to Carol-Sue.

[67] Carol-Sue’s emails around that time primarily reflect four beliefs: 1) that Jo was not a medical resident as he claimed; 2) that he was a “thief”; 3) that he “could possibly have another family”; and 4) that he had not filed any income tax returns. The PI Report confirmed only the first belief. The second belief, however, was likely based on Carol-Sue’s view that Jo’s refusal to pay back the wedding loan was theft. Some support for the third belief—that Jo had another family—was revealed in 2018 when a woman came forward claiming to be Jo’s fiancée. The fourth belief was not substantiated.

[68] Tracy and Jack maintained that Carol-Sue did not receive a copy of the PI Report and that Michael exaggerated the findings that were made by the investigator when he relayed the results of the investigation to them. However, I find that this is not accurate. The evidence from the examination of Martin Black and Michael establishes that Jack had a copy of the PI Report, which he delivered to Mr. Black’s office. Jack denied this and stated that Mr. Black was lying. However, I find Jack’s evidence on this point to be inaccurate. The evidence of both Martin Black and Michael was straightforward and supported by email evidence confirming that the PI Report was delivered by Jack to Mr. Black. Therefore, both Jack and Carol-Sue had a copy of the PI Report and would have read its contents, which did not completely exonerate Jo, but should have served to dispel some of the beliefs they had about him.

Other Concerning Behaviour by Jo

[69] There were other concerning behaviours and incidents that occurred in the context of family Shabbat and holiday gatherings that explain the ongoing concerns about Jo.

[70] Michael and Nikki hosted the weekly family Shabbat dinners, and most Jewish holidays. Both Michael and Nikki testified that prior to February 2018, both Tracy and Jo were welcome in their home for these events. However, they both testified that Jo would often not show up for dinners when he said he would or would show up when he said he was not going to come. This upset them both.

[71] Nikki also testified about a time when she and Michael hosted a family dinner for Tracy’s birthday and Jo did not show up. They could see that Tracy was upset by this. Jo also said he would come for the Jewish High Holidays and then would not show up. Nikki stated that Jo was very secretive. He owned two cell phones and would text on both of them. He would excuse himself to go to the bathroom and could be heard whispering into the phone in the bathroom. When questioned, he would get angry and say something implausible. Nikki stated that Jo once paid for a restaurant bill with cash strapped to his leg. She said his strange behaviour and stories made her and Michael concerned for Tracy’s well-being.

[72] I accept Michael and Nikki’s evidence that Jo’s behaviour was concerning to the Shapiro family. Tracy and Jo did not have a traditional marriage; they lived in different cities and did not spend as much time together as most couples. However, even allowing for the non-traditional nature of their relationship, the evidence of Jo’s inconsistent behaviour, defensiveness, and tendency to exaggerate is convincing. Carol-Sue was present during family occasions when Jo demonstrated this behaviour and it is reasonable to infer that it made her nervous. This is because Carol-Sue valued traditional marriage, honesty and loyalty. Jo’s behaviour did not conform to these values.

The Link Between Jo’s Behaviour and Carol-Sue’s Testamentary Intentions

[73] On December 29, 2015, Carol-Sue expressed the link between her concerns and Tracy’s inheritance to Martin Black as follows:

Now for something that I have given a lot of thought to. To add a codicil preventing Tracy's husband from getting his hands on any of the money from the business that my father worked so hard for. If she wasn't married to Jo Corcus things would be a lot different. Jack never had the talk about replacing the money my mother loaned for the wedding and so I had to bring it up. Tracy said it is her intention to give me a cheque for $45,000. And Jack $5,000. "as soon as the cheque clears". She deals with PC banking. Long story short, if I have to leave Tracy anything, it will be on a 90% Michael-10% Tracy basis. Jack is going to be angry, but I can't help that. He wants everything 50-50 ., and he doesn't know my thoughts on this and that's why I'm bouncing them off you first. Michael has told me that he doesn't want the responsibility of paying Tracy a monthly allowance, as Jack has stated in our Wills. [Emphasis added.]

[74] Less than a month later, on January 4, 2016, Carol-Sue told Martin Black that she was prepared to “omit” Tracy from the Swedlove Legacy if that was necessary to prevent Jo from having access to the money. The following is Carol-Sue’s email message to Martin Black at 9:32 am:

From: Carol-Sue Shapiro [mallto:kaycees@sympatico.ca] Sent: Monday, January 04, 2016 9:32 AM To: Martin Black Subject: My Will

Hi Marty:

Is there any way that if I pass away before Jack, Michael can be in charge of the businesses: Swedlove Realities and Kaycee Realty Inc., I don't even want to think of how Jack would handle things if the businesses fell into his hands ie: giving Tracy equal shares/financial pay outs. I don't want Jo to be able to have any access and if omitting Tracy is what has to happen, then so be it! Tracy handed over the cheques very begrudgingly which tells me that she condones Jo's actions.

The cheque from Mom to the Foundation will be in the mail today. Let me know when you and Ellie become grandparents.

Take care,

Carol-Sue [Emphasis added.]

[75] Martin Black responded to Carol-Sue with the advice that she could give Tracy a “fair share” of her Estate but put it in trust so that someone would be able to control the distribution. That way, Jo would not be able to get his hands on any of it. Martin Black stated that if Michael did not want to be the trustee, then someone else could be trustee, possibly him and/or Steve Parker.

[76] It is clear then that Carol-Sue considered the possibility of cutting Tracy entirely out of her will to keep the Swedlove Legacy out of Jo’s reach in 2016. It is also clear that she was advised by Martin Black that she did not have to take such extreme action; she could put the money in a trust.

[77] It is also evident from Carol-Sue’s email around this time that she did not trust Jack to manage the business or the Swedlove Legacy. She also appeared to be losing confidence in Tracy’s judgment. It is reasonable to infer from the evidence that Carol-Sue believed both Tracy and Jack to be less protective of the Swedlove Legacy than she or Michael were.

The Events That Took Place in 2018

[78] In 2018, several significant events occurred that likely influenced Carol-Sue to make changes to her wills at the end of that year. My findings with respect to these events are as follows.

[79] Communications with Roseanna - In January 2018, Michael received Facebook communications from a woman named Roseanna, who said she was engaged to Jo. Michael testified that he thought Roseanna had tried to contact him in 2016, but he only found out about it in 2018. Roseanna told Michael and Nikki in a phone call that she had been engaged to Jo since 2008.

[80] Nikki testified that Roseanna told her and Michael that she had given Jo a lot of her money over the years and now had nothing left. This evidence is hearsay and cannot be used to establish the truth of what allegedly occurred between Roseanna and Jo. However, it is uncontested that there was a Facebook message from someone by the name of Roseanna who purported to be engaged to Jo and who had a phone call with Michael and Nikki for 45 minutes.

[81] On January 18, 2018, Carol-Sue wrote Martin Black stating:

Hi Marty:

I think/hope Tracy is bound for a divorce. We found out that her husband Jo had been engaged to another woman for most of their marriage. This other woman sought Michael out via Face Book and telephoned as recently as last night. Apparently Jo told this other woman his marriage was just from a legal standpoint and he doesn't love Tracy. Do I have to worry as far as the business is concerned. Any advice will be most welcome.

Thanks, Carol-Sue

[82] The Family Intervention - The contact between Michael and Roseanna resulted in a family intervention that took place in early February 2018. The purpose of the family intervention was to confront Tracy about Jo's apparent infidelity as well as the 2013 private investigation in an effort to encourage her to leave Jo. Present at the family intervention were Michael, Nikki, Carol-Sue, Jack, Len (Jack’s brother), and Ben and Neilah (Carol-Sue’s grandchildren, who were 14 and 17 years old at the time).

[83] Michael and Nikki swore affidavit evidence that during the "intervention", Carol-Sue warned Tracy that "if she did not leave Jo, it would be the biggest financial mistake that she would ever make." Tracy testified during the examination that she was in shock during the meeting and did not hear this statement. However, it is uncontested that the goal of the family intervention was to persuade Tracy to leave Jo.

[84] Michael testified that when he heard his mother state that if Tracy did not leave Jo it would be her biggest financial mistake, he understood it to mean that Carol-Sue might cut Tracy out of her will if she did not leave Jo.

[85] Tracy and Jo Separate - Whether as a result of the family intervention or for other reasons, Tracy and Jo separated in early 2018. However, Carol-Sue’s emails reveal some uncertainty as to whether the couple remained separated. For example, on February 1, 2018, Carol-Sue wrote Martin Black stating that her brother-in-law, Len, had had a discussion with Tracy in which he learned that Tracy and Jo were still in daily contact with one another. In this email, Carol-Sue revealed her great fear that Tracy was giving Jo money without any obligation to repay it. Carol-Sue told Martin Black that she wanted to protect her parents’ legacy and thought that for the time being, she should “cut Tracy out” or make it a 90%-10% split with Michael controlling the money. She further stated:

It’s a terrible thing to have to admit that I can’t trust my daughter. I think Tracy has already given Jo money with no pay back. I don't know what's happened to her. I thought she was a smart woman. BTW Jack doesn't know I'm writing you.

[86] On February 16, 2018, Carol-Sue again wrote Martin Black stating that she suspected that Jo was still in Tracy’s life. Carol-Sue told Martin Black that Jo had sent a number of threatening emails pretending to be a lawyer. Carol-Sue reported that Jo had also contacted the family’s Rabbi complaining that he was being harassed, insulted, and abused mentally and emotionally by the family and had asked the Rabbi to act as a go-between.

[87] However, on March 11, 2018, Carol-Sue asked Martin Black for the name of a matrimonial lawyer for Tracy, stating that she hoped the divorce with Jo would move along quickly. And, in May 2018, Carol-Sue wrote to the Rabbi stating that she thought the divorce was still proceeding.

[88] The Fish Market Sighting - In the Fall of 2018, Tracy and Jo were spotted by friends of Michael and Nikki at the Merivale Fish Market in Ottawa, having dinner together. The friends contacted Michael and Nikki, who then reported the “sighting” to Carol-Sue. Michael admitted in the examination that he knew this would upset his mother and that it would likely result in her cutting Tracy out of her will.

[89] Nikki testified during her examination that she thought that Carol-Sue was aware that Tracy had been spotted in Jo’s company in various places prior to the Fall of 2018. Nikki testified that a cousin of hers had seen Tracy and Jo at the Ottawa Little Theatre. She stated that this would have been in the Spring of 2018. Nikki stated that her sister-in-law also ran into them at Loblaws buying groceries together in the Summer of 2018. She testified that her best friend and her friend’s husband saw them on three separate occasions at the Merivale Fish Market. According to Nikki, these people were also friends of Carol-Sue and Jack and therefore, would likely have shared that information with Carol-Sue. She testified that the concerns about Jo were well known among Carol-Sue’s friends and family.

[90] Tracy and Jack maintained that Carol-Sue was unaware that Tracy and Jo had been seen together until the Fall of 2018, when they were spotted at the Fish Market by the friends. However, Tracy herself admitted during the examination that she was out with Jo from time to time in 2018 and that she knew this would have gotten back to her mother. Nikki’s testimony with respect to the “sightings” of Tracy and Jo in the Spring and Summer of 2018 was unshaken on cross-examination.

[91] Therefore, I find that Carol-Sue was very likely aware that Tracy and Jo had been seen together before the Fall of 2018, and that this contributed to her lack of trust in Tracy. It is clear from Carol-Sue’s emails that she loved Tracy very much but that she had lost faith in Tracy’s ability or willingness to end her relationship with Jo. I find that in the Fall of 2018, when Michael and Nikki reported to Carol-Sue that Tracy had been seen with Jo, Carol-Sue was likely already aware of other occasions when the two were out together.

[92] However, prior to the call she received in the Fall of 2018 from Michael about the sighting of Tracy and Jo in the Merivale Fish Market, Carol-Sue may well have been holding onto the hope that the relationship had come to an end. Certainly, some of her emails in the Spring of 2018 reflect that hope. The phone call from Michael seems to have dashed that hope.

Carol-Sue Removes Tracy’s Financial Inheritance from her Wills and Reduces Jack’s Inheritance

[93] In an email to Martin Black dated October 2, 2018, Carol-Sue stated that the last six months had proven that Tracy still had Jo in her life. The proof lies in text messages that she and “the kids” had seen. Carol-Sue told Martin Black that with this in mind, she wanted to change some items in her will. Among the changes were the elimination of a financial inheritance to Tracy and a reduction of Jack’s inheritance to $250,000. In Carol-Sue’s words:

No amount for Tracy (I have told her that if she is with Jo I will cut her off. My dad didn’t want any money going to Alan’s widow and the same holds true here).

[94] On October 31, 2018, Carol-Sue executed the Wills, which were drafted by Martin Black in accordance with the above-noted instructions from Carol-Sue. There is no dispute that the legal requirements for the valid execution of the October 2018 Wills were met.

[95] Under these Wills, Michael is the sole residual beneficiary and there are specific bequests to Jack of $250,000 and to Michael's two children (Ben and Neilah) in the amount of $500,000 each. Jack also received a life interest in the condominium provided he paid for all expenses and upkeep of the premises.

The Breakdown in the Relationship Between Tracy, Michael and Nikki

[96] Nikki testified that she told Tracy during the family intervention in February 2018 that she and Michael would cut off all contact with her and Jo if Tracy remained in the relationship with Jo. This is in fact what happened. All contact between Tracy, Michael and Nikki ceased in and around 2018. This caused Carol-Sue great anguish.

[97] Carol-Sue shared her anguish with her close friends and family. There were numerous emails from 2018 until her death, in which Carol-Sue lamented the demise of the relationship between her children to her Rabbi, her friends Leiba Metz and Charles Schachnow and to Martin Black.

[98] I find however, that the breakdown in the relationship between Tracy, Michael and Nikki was not a factor in the changes that Carol-Sue made to her wills. There is no evidence that Michael used the breakdown of the relationship to pressure Carol-Sue to change her wills.

[99] In fact, I find that from 2018 till her death, Carol-Sue attempted to use her financial power to broker a reconciliation between Michael and Tracy.

[100] For example, in December 2019, Carol-Sue, Michael, Nikki and Carol-Sue’s grandchildren, Ben and Neilah, were scheduled to take a trip to Israel. At one point, Carol-Sue announced that the trip would be cancelled. Her good friend Leiba Metz stated that Michael and Nikki responded to the cancellation of the proposed trip by cutting off all contact with Carol-Sue and preventing their children, Ben and Neilah, from having any contact with her.

[101] According to Ms. Metz, the threat of losing contact with her grandchildren was enough to cause Carol-Sue to change her mind about cancelling the trip. Ms. Metz provided this as an example of the way that Michael and Nikki used their children to secure financial gifts from Carol-Sue. She believed Michael would have used his power to cut off contact with Ben and Neilah to convince Carol-Sue to change her wills to grant him the full residue of the Estate.

[102] Michael and Nikki provided a different perspective in their testimony about the proposed Israel trip cancellation. Michael stated that the cancellation of the proposed Israel trip in 2019 had nothing to do with the changes to the wills in 2018 and he declined to comment further. Nikki testified that Carol-Sue told Michael and Nikki that the trip would be cancelled unless Michael and Nikki made amends with Tracy. Allegedly, during this conversation, Carol-Sue said that Nikki did not understand the mother-daughter relationship, which hurt Nikki very much because Nikki had lost her mother when she was young. Carol-Sue also apparently stated that she would pull the financial support to Neilah if Michael and Nikki did not make up with Tracy. Nikki testified that Michael told Carol-Sue that she could go ahead and cancel the trip; he would not allow her to manipulate them with threats.

[103] Although Nikki’s description of the conversation she and Michael had with Carol-Sue is hearsay it accords, in part, with the consensus that Carol-Sue threatened to cancel the trip because the family was not getting along. I accept Nikki’s testimony that Carol-Sue was trying to use that leverage to see if she could broker a reconciliation.

[104] Nikki provided evidence that on two other occasions, Carol-Sue attempted to use her economic power to influence Michael and Nikki to reconcile with Tracy. In August 2019, Carol-Sue told Michael and Nikki that she would stop providing them with the $10,000/month if they did not make up with Tracy. Nikki testified that she and Michael told Carol-Sue that they would not be bribed and that she could keep the money. Nikki also testified that in Israel, Carol-Sue had offered to purchase an expensive tennis bracelet for Nikki if they would reconcile with Tracy. Again, Nikki testified, she refused to accept the bribe and as a result, there was some frostiness in the family’s communications for the remainder of the trip.

[105] The above-noted evidence was contradicted by Ms. Metz and Jack, who insisted that Michael and Nikki were the ones who threatened to remove contact with the grandchildren to gain leverage over Carol-Sue.

[106] I find that it was Carol-Sue who used her financial power to try to effect a reconciliation between Michael and Tracy. Her emails speak to the high level of anxiety she experienced over the breakdown of this relationship. Her dying wish was that the two would reconcile. It is consistent with her conduct regarding the Wills that she would leverage her financial power to do what she thought was best for the family, which in this case was to unify them.

[107] Furthermore, Tracy admitted in her examination that the first time the grandchildren were supposedly "withheld" from Carol-Sue was during an occurrence in 2019, after the execution of the Wills. She also admitted that she did not know whether it was the children who made the decision not to come out of their rooms to see Carol-Sue or if their parents had pressured them to stay in their rooms and not greet their grandmother. Tracy further admitted that it was not likely that Michael and Nikki took away the teen grandchildren's phones so that they would not be able to communicate with Carol-Sue if they wished.

[108] Therefore, I find that it is more likely than not that it was after the execution of the Wills that the issue of contact between Carol-Sue and her grandchildren arose. It is unclear whether the children made their own decisions about whether to attend events with their grandmother and to communicate with her. However, it is likely that they were caught up in the tension between Carol-Sue and Michael, which increased over the course of 2018–2020. This tension resulted from Michael’s insistence that before he would reconcile with Tracy, she must admit she had made a mistake with Jo and that she was seeking a divorce. Carol-Sue’s frustration with Michael and Nikki’s position is reflected in the following email that she sent to Rabbi Blum on May 2, 2018:

Hi again Rabbi:

Thank you for getting back to me. I know I rambled yesterday and after thinking this over all night, I have come to a conclusion. I really think that Nikki, Michael, Neilah and Ben expect Tracy to come crawling back to their place beginning forgiveness, but I am sure Tracy feels that she apologized at our round table meeting at Nikki and Michael's after your JLI trip. I am surprised at Michael and his anger and realize that he is defending Nikki. If Jack knew about this and how I feel he would say, "you're too nice to the kids with trips etc." I am a bit selfish because I can't go on trips without the kids support.

Anyway, after much thought, two major surgeries, the second I almost didn't survive, the loss of my brother and parents, I decided not to care anymore. If the kids "don't want to play nice", they are too old for me at 72 to worry about them.

Thanks again for "listening".

Have an early Good Shabbat.

Take care,

Carol-Sue

[109] I find that the conflict between Carol-Sue and Michael did not influence Carol-Sue to make the changes to her wills. Michael and Nikki did not use the threat of withholding contact with the grandchildren to influence Carol-Sue to change her wills. It was, in fact, Carol-Sue who attempted to use her financial power to influence a change in the family dynamics. She was unsuccessful in doing so.

[110] I turn now to an analysis of whether Michael and Nikki unduly influenced Carol-Sue to change her wills through fraudulent deception.

What are the Alleged Falsehoods?

[111] It is asserted that Michael and Nikki caused Carol-Sue to believe the following falsehoods:

(i) Jo was a member of the mafia, had not paid his taxes and was wanted by the police in various locations.

(ii) Jo was involved with another woman during his marriage to Tracy.

(iii) Jo was interested in acquiring Tracy’s money.

(iv) Jo and Tracy were back together in 2018.

(v) Jack had sufficient money to take care of himself; he did not need an inheritance from Carol-Sue.

(vi) Jack would give any money he inherited to Tracy either through inter vivos or testamentary gifts.

Were the Alleged Falsehoods Really Untrue?

[112] The next question is whether these alleged falsehoods are in fact, false. It is necessary to answer this question to determine whether Carol-Sue was unduly influenced to change her wills by testamentary fraud.

Allegation 1: Jo’s alleged nefarious conduct

[113] The PI Report established that Jo was not wanted by the police and was not part of the mafia. He may have been known to the police, but the evidence is not strong on that point. He did not have a criminal record.

[114] However, the PI Report established that Jo’s claims to have been a medical resident and employed by the Jewish General were not true.

[115] As indicated above, I found that Jo’s behaviour at family gatherings likely raised concerns and suspicions that Jo was involved in illegal activities. The evidence does not establish that those concerns were justified. Therefore, I find that Carol-Sue held a false belief that Jo was involved in criminal activities. However, her belief that he was not entirely truthful in his claims to the family was valid.

Allegation 2: Jo was involved with another woman while married to Tracy

[116] There is uncontested evidence that Roseanna reached out to Michael and Nikki about her relationship with Jo. In a phone call with Michael and Nikki, Roseanna described her relationship as “romantic”. I find therefore, that the allegation that Jo had another romantic relationship outside of his marriage with Tracy was not an obvious lie.

Allegation 3: Jo wanted Tracy’s money

[117] It was not until 2019 that Jo provided a document indicating that he would not make any claim to Tracy’s inheritance. Up until that point, Carol-Sue had no demonstration that this belief was manifestly false. It is a belief that had some support, based on Jo’s apparent reluctance to repay the wedding loan and other suspicious behaviour on his part. It was Tracy who ultimately paid the wedding loan off with her inheritance. Therefore, I find that while Carol-Sue’s belief may not ultimately have proven true, there was, at the relevant time, some objective evidence to support it and therefore, it was not a manifest lie.

Allegation 4: Jo and Tracy were back together in 2018

[118] The evidence on this point is somewhat equivocal. Tracy maintained that she and Jo were not back together in 2018. She stated that they were not taking trips together as they usually did. She was not going to Montreal, and he was not coming to Ottawa. However, she also said that she was out with Jo publicly on a number of occasions.

[119] Furthermore, as noted above, Carol-Sue likely knew that Jo and Tracy were spending time together prior to the Fall of 2018. Nikki’s evidence that there were other “sightings” of Jo and Tracy together was convincing.

[120] In March 2018, Jo sent Carol-Sue a threatening message stating that he and Tracy were going to get a divorce, but that he would be taking action against Carol-Sue for invasion of privacy and mental, emotional and psychological harassment. Did Carol-Sue believe Jo that the couple was going to get a divorce? Based on the evidence of Carol-Sue’s mistrust of Jo, I draw the inference that she likely did not trust his statement.

[121] However, Michael’s evidence and other emails that Carol-Sue sent in the Spring of 2018 convince me that Carol-Sue may have been holding out hope that the relationship was over, even though she may have been aware that they had been seen together on other occasions. Michael testified that when a friend called him in the Fall of 2018 to say that they had seen Jo and Tracy together, he knew his mother would be disappointed if he told her. Nevertheless, he did so, knowing that this would upset Carol-Sue and could lead to financial consequences for Tracy.

Allegation 5: Jack had sufficient money to take care of himself; he did not need an inheritance from Carol-Sue

[122] As noted above, Steve Parker guessed that Jack had a million dollars in GIC savings. However, that was not in fact true. In her correspondence, Carol-Sue referred to Jack having a good pension and an inheritance from his parents. Since she had been paying for all household expenses since 2013, Carol-Sue might have assumed that he would have been able to save enough money to have a nice nest egg for retirement. However, Carol-Sue and Jack kept their finances separate and therefore, she would not have known how much money he had.

[123] Was Jack’s retirement fund a lie or was it an erroneous assumption that Carol-Sue made? Jack stated that Michael was responsible for perpetrating a lie that he had enough money for his retirement, but he admitted there is no evidence of that. Jack stated that Carol-Sue’s reduction of the amount she gave to him from 100% the residue of the Estate to $1 million and finally to $250,000 is evidence that Michael poisoned her thinking about him. He points to the negative statements made in Michael and Nikki’s affidavits about him. For example, they allege that his relationship with Carol-Sue was not good and that he was not an attentive husband. This, he says, proves that they were likely lying about him to Carol-Sue, which resulted in her decreasing his inheritance.

[124] I find that while it was untrue that Jack had a million dollars in retirement savings, there is no evidence to establish that this was a falsehood perpetrated by Michael and Nikki. I think it more likely that Carol-Sue made assumptions about Jack’s savings that were incorrect. Neither Jack nor Carol-Sue seemed to know that they were each giving money to Michael and Tracy. Therefore, it stands to reason that neither Jack nor Carol-Sue was aware of the extent of each other’s savings.

Allegation 6: Jack would give anything he received from Carol-Sue to Tracy

[125] In an email dated January 4, 2016, Carol-Sue stated to Martin Black that she was worried that if any of the businesses fell into Jack’s hands, he would give Tracy equal shares/financial payouts. Carol-Sue stated that she did not want Jo to have access to any of the money from the business and if omitting Tracy is what had to happen then so be it. Clearly, it was Carol-Sue’s view that Jack would hand half of whatever he received over to Tracy.

[126] Jack testified that Carol-Sue’s belief about what he would do with the Swedlove Legacy was “baloney” and “garbage”. He said Carol-Sue would not have had to worry if he had been put in charge of the Legacy. But this does not answer the question about what he would have done had he been given the residue of the Estate. Jack did say that he understood that Michael would get more than Tracy in Carol-Sue’s Wills because Michael’s job was not as good as Tracy’s.

[127] However, there is evidence to support the inference that Jack was not as concerned as Carol-Sue about Tracy giving money to Jo. Carol-Sue described Jack’s more trusting attitude towards the situation with Jo as “sweeping things under the carpet”.

[128] The evidence convinces me that Carol-Sue was not acting under a false assumption when she refused to involve Jack in the planning of her Estate and in the management of the Swedlove Legacy. She was likely correct in assuming, based on Jack’s attitude, that he would have insisted on Tracy receiving a more equitable share of the Legacy. Although Jack executed a codicil to his own will in 2011 that put restrictions on Tracy’s inheritance, the evidence establishes that Jack did not share Carol-Sue’s deep fear that Jo would get his hands on the family money.

Conclusion Regarding the Alleged Falsehoods and Jack’s Claim

[129] I find that other than beliefs that Jo was involved in the mafia, had a criminal past and failed to pay his taxes, there is no basis for stating that Carol-Sue’s other beliefs were based on lies or falsehoods. Even the call from Michael reporting that Tracy and Jo had been seen together was not a lie. Tracy admitted that it was true in her examination.

[130] The question, however, is whether Michael and Nikki encouraged Carol-Sue’s unfounded beliefs about Jo’s criminal history to feed her obsessive fear that Jo would get his hands on any money Tracy received from the Swedlove Legacy if they remained together. In addition, the timing of the call to Carol-Sue in the Fall of 2018 reporting that Tracy and Jo were seen together is close enough to Carol-Sue’s execution of the October 2018 Wills to raise a question about its influence on the changes to the wills. If Carol-Sue was hanging onto the belief that Tracy and Jo had separated, then Michael’s call to her might have been used to induce the false belief that the couple was not going to divorce.

[131] Therefore, it is necessary to examine whether the indicators of undue influence through fraud are present with respect to Tracy’s inheritance.

[132] However, there is no evidence, whether circumstantial or direct, to support the inference that Jack’s inheritance was reduced because of lies perpetrated by or encouraged by Michael and Nikki. There is no evidence that Michael and/or Nikki induced Carol-Sue to believe that Jack did not need the larger inheritances that she had provided to him in previous wills. Similarly, there is no evidence that they encouraged Carol-Sue to believe that Jack would give his inheritance to Tracy, who would then give it to Jo. Therefore, my analysis of the changes involving Jack ends here. Jack’s claim of undue influence through fraud is dismissed.

What are the Indicators of Undue Influence?

[133] The case law provides helpful guidance on the indicators that undue influence, whether through coercion or fraud, might be present. In Gironda v. Gironda, 2013 ONSC 4133, 89 E.T.R. (3d) 224, Justice Penny provided the following factors to assist in determining whether undue influence has been exercised over the testator:

(vii) Was the testator dependent on the beneficiary for emotional and physical needs? (viii) Was the testator socially isolated? (ix) Had the testator experienced recent family conflict? (x) Had the testator experienced recent bereavement? (xi) Had the testator made a new will that was not consistent with prior wills? (xii) Had the testator made testamentary changes simultaneously with changes to other legal documents such as powers of attorney? Gironda, at para 77.

[134] In Tate v. Gueguegirre, 2015 ONSC 844 (Div. Ct.), 2015 CarswellOnt 1676, Justice Corbett applied the same factors as identified by Justice Penny in assessing the existence of undue influence, and added others, including: substantial pre-death transfers of wealth; using a lawyer previously unknown to the testator and chosen by the alleged influencer; the alleged influencer communicating instructions to the lawyer acting for the testator; the alleged influencer receiving a draft of the document prior to the testator.

[135] The case law provides helpful examples of how the factors have been applied in cases involving testamentary fraud. An early example is found in the case of Mayrand v. Dussault, [1907] 38 S.C.R. 460. In that case, the Court overturned a will on the basis of testamentary fraud. The testator was weakened and vulnerable by deteriorating health. A hopeful heir repeatedly told the man that his problems were caused or aggravated by the food the man’s wife had been feeding him. The testator made a will disinheriting his wife in favour of the person who presented the fraudulent and false information. The question the Supreme Court asked itself was whether the man would have disposed of his estate as he had done were it not for the information provided by the respondent. It was noteworthy that the testator was weakened with disease and the information was repeated day after day for weeks and months that his illness was caused by the food provided by his wife. The Court found that there were prolonged and arduous efforts by the respondent to fraudulently induce the testator to change his will.

[136] In Anderson v. Walkey (1961), O.R. 289 (C.A.), the respondent gave false information to the testator that his daughter and her husband were trying to have him placed in a “rest home”. The Court of Appeal found that the respondent has succeeded in poisoning the testator’s mind, turning him against his daughters and creating a real aversion to them. In so doing, the respondent caused the testator to revoke his earlier will and divert some of the benefits of the estate to the respondent. Fraud was thus the means used to unduly influence the testator.

[137] In the present case, I find that the following factors are relevant to my analysis: 1) whether Carol-Sue was dependent upon Michael and Nikki for her emotional and physical needs; 2) whether Carol-Sue was socially isolated; 3) whether Carol-Sue had experienced recent family conflict that provided an opportunity for undue influence; 4) whether the October 2018 Wills were consistent with prior wills and/or prior statements; and 5) whether there were substantial pre-death transfers of wealth.

Application of the Indicators of Undue Influence to the Present Case

1. Carol-Sue’s Alleged Dependence Upon Michael and Nikki

[138] There is no question that Carol-Sue’s physical condition made her increasingly dependent on others for support in daily living. For decades, Carol-Sue suffered from serious health challenges, including Type 2 diabetes and spinal stenosis. In 2007 and 2013, Carol-Sue survived two major surgeries, and still experienced increasing paralysis, significant pain and reduced ability to ambulate independently.

[139] As her health deteriorated, Carol-Sue increasingly depended upon others for her physical needs to be met. Jack helped her. So too did Michael and Nikki as well as Tracy and Jo. The attention to Carol-Sue’s needs was distributed fairly evenly among family members, with the exception of when she was on one of her frequent trips with Michael, Nikki and their children. Then, she was quite dependent upon Michael, Nikki and the children.

[140] Carol-Sue herself stated in emails that she needed Michael and Nikki to take her on the trips she wanted to take. She willingly paid for those trips, which were expensive, so that she would have the support she needed to travel. It was a reciprocal arrangement and was not used by Michael and Nikki to influence Carol-Sue.

[141] Carol-Sue loved her grandchildren and did not want to be cut off from them. She experienced great distress when she could not speak with them. This happened only occasionally after the October 2018 Wills were signed. As stated above, Michael and Nikki did not use Carol-Sue’s love for her grandchildren to influence her to change her wills.

[142] Carol-Sue was distraught by the breakdown in the relationship between Michael and Nikki and Tracy. She used the financial power she had to try to bring them closer together. That did not work, but it does show that she was prepared to use her financial clout to influence change in the family, even at the risk of offending Michael and Nikki. I find that this demonstrates that Carol-Sue was not dependent upon Michael and Nikki.

[143] However, Leiba Metz, a close friend of Carol-Sue’s, asserted in her affidavits, that Carol-Sue was very dependent upon Michael and Nikki. Ms. Metz stated that Carol-Sue told her she found it very difficult to deal with or refuse the continuous demands for money from Michael and Nikki and that she felt pressure to agree to their demands. Ms. Metz went further and provided her opinion that Carol-Sue was pressured to make the changes to her October 2018 Wills by Michael and Nikki and that this pressure was “undue”. With the greatest of respect to Ms. Metz, I reject her opinion. I do not see any evidence of financial pressure from Michael and/or Nikki to make the changes reflected in the October 2018 Wills to benefit Michael.

[144] Ms. Metz referred to conflict in the family and attached text messages as proof that Carol-Sue was feeling pressure from Michael and Nikki to change her wills. Those text messages relate to the period after the execution of the October 2018 Wills. As noted above, the conflict between Michael and Tracy was not a factor in the changes that were reflected in the October 2018 Wills. Ms. Metz’s opinion that Carol-Sue regretted the changes she made to her wills is not consistent with the rest of the evidence. There is no indication in any of the evidence that Carol-Sue regretted the changes reflected in the October 2018 Wills. Furthermore, Carol-Sue did not make any changes to the October 2018 Wills before she died, despite having the benefit of advice about how to do that.

2. Carol-Sue was not socially isolated

[145] Carol-Sue had many friendships including Leiba Metz, Charles Schachnow, Rabbi Blum, Martin Black and others in the Jewish community. She disclosed her concerns to them and received their input about what to do. Then she made up her own mind. There was no disagreement about the fact that Carol-Sue was an intelligent, strong-willed and independent person.

[146] Carol-Sue had the benefit of three advisors with whom she consulted before she made decisions. All of these advisors—Martin Black, Steve Parker and Jason David—had a history of involvement with the family business and Carol-Sue’s management of the Swedlove Legacy. Steve Parker testified that Carol-Sue would consult with him over seemingly minor purchases to ensure that she did not eat into the capital of the Legacy. While Carol-Sue demonstrated a certain respect for Michael’s involvement in the business, she did not defer to him. Steve Parker stated that Carol-Sue considered Michael’s input, but she was the one who made the decisions with regard to the family business and the Swedlove Legacy.

[147] I find that Carol-Sue had many sources of information about Tracy and Jo in 2018, not just Michael and Nikki; Carol-Sue was not socially isolated and was well-advised. Unlike the cases that were referenced above, Carol-Sue was not being provided with information from Michael and Nikki alone. Carol-Sue was friends with people likely reported to her that they had seen Tracy and Jo together in the Ottawa community prior to the Fall of 2018. Tracy admitted that she was out with Jo on more than one occasion and that this information would have been relayed to her mother. Carol-Sue’s brother-in-law, Len, told her that Tracy and Jo were in daily contact in February 2018.

[148] Even if Michael’s call to Carol-Sue to report the “sighting” of Tracy and Jo at the Fish Market in the Fall of 2018 dispelled Carol-Sue’s hope that the two had separated, I am not convinced that it was the call that caused Carol-Sue to make the changes to her wills in October 2018.

[149] There were many factors that likely led to the October 2018 Wills. Jo’s own actions likely provided the strongest catalyst for Carol-Sue’s changes to her wills. He sent threatening emails to the family in February and March 2018, which alarmed Carol-Sue. Tracy admitted that she knew Jo was sending angry emails, pretending to be a lawyer and threatening legal action against the family. She told him to stop. However, the damage had been done; Carol-Sue referred to the messages from Jo in her email instructions to Martin Black telling him that the October 2018 Wills should include “no amount for Tracy”.

[150] In addition, Carol-Sue seemed to have lost faith in Tracy. In her written communications to various people, Carol-Sue stated that she loved Tracy, but she no longer trusted her. She seemed to think that Tracy had been victimized by Jo to the extent that she thought Tracy should be tested for a sexually transmitted disease.

[151] Thus, in my view, the unfounded fears about Jo’s mafia and criminal involvement were not significant factors in Carol-Sue’s decision to cut Tracy out of the October 2018 Wills, nor was the call to Carol-Sue by Michael in the Fall of 2018. Rather, Jo’s own words and behaviour, both in 2018 and in the past, raised concerns in Carol-Sue’s mind that he was untrustworthy and would use Tracy to get at her wealth.

3. The Family Conflict Was Not Used as an Opportunity to Deceive Carol-Sue

[152] There were two important moments of family conflict in and around 2018, when Carol-Sue changed her wills. The first was the family intervention and the second was the breakdown in the relationship between Michael and Nikki and Tracy. Neither one was used by Michael and Nikki to deceive Carol-Sue.

[153] The family intervention was designed to convince Tracy to leave Jo. If Michael and Nikki were trying to influence Carol-Sue to disinherit Tracy, then it would not have made sense for them to encourage Tracy to leave Jo during the family intervention or after. The evidence was clear that Tracy would not be disinherited if she left Jo. If Michael and Nikki were only interested in seeing Tracy disinherited, then they would have encouraged Tracy to stay with Jo. I find that Michael and Nikki genuinely wanted Tracy to leave Jo, even if this would mean that Tracy would inherit some of Carol-Sue’s wealth. I was convinced by Michael’s evidence that he was very worried about his sister’s well-being when she was with Jo.

[154] The events that followed the intervention led Michael to believe that Tracy had reconciled with Jo. He testified that this caused the final rupture in his relationship with Tracy. Both Michael and Nikki testified that there were years of questionable behaviour on Jo’s part that led to this rupture. They lost faith in Tracy’s ability to end a relationship that they believed was toxic to her and the whole family. Jo was sending angry emails and texts in 2018. Michael and Nikki announced that Tracy was not welcome in their home, and they followed through on that commitment.

[155] I accept Michael’s explanation that he and his family thought they needed to end the relationship with Tracy to get some peace. I find that it was not done to influence Carol-Sue to cut Tracy out of the Wills. Seen in the context of efforts to convince Tracy to leave Jo, the final rupture between Michael, Nikki and Tracy appears to be more of a “tough love” approach to dealing with someone who seems to have lost her way. Whether one agrees with that approach or not, I do not see how it could have served to convince Carol-Sue to change her wills.

[156] As noted above, Carol-Sue was so distraught about the relationship breakdown that she tried to use her economic leverage to effectively bribe Michael and Nikki to reconcile with Tracy. Carol-Sue could have used that economic leverage even further by telling Michael that he would be disinherited if he did not reconcile with Tracy, but she did not do so. Why? I think it is because Carol-Sue was so concerned that Jo would get his hands on the money that she did not even consider this as a possibility. But she would use a trip to Israel and the prospect of a tennis bracelet as bribes to try to incentivize reconciliation.

4. The Changes to the Wills in 2018 Were Consistent with Carol-Sue’s Previous Statements

[157] As early as 2013, Carol-Sue was writing to Martin Black inquiring as to whether her mother’s inheritance could be held back while Tracy was married to Jo. In 2016, Carol-Sue stated in an email to Martin Black that if she had to “omit” Tracy from shares/financial payouts to ensure that Jo did not have access to any of her money “then so be it”. In February 2018, Carol-Sue stated:

I just want/have to protect my parents’ legacy going forward and think for the time being I should cut Tracy out or make it a 90%-10% split with Michael controlling it as he is named already. [Emphasis added.]

[158] Thus, it is clear to me that Carol-Sue had entertained the idea of bequeathing nothing to Tracy for a number of years prior to doing so. As Martin Black testified, over the years Carol-Sue gradually reduced the percentage of the Estate Tracy would inherit and the control she would have over the money, as it became apparent that Tracy was staying with Jo. There is a clear progression in Carol-Sue’s changes to her wills that does not resemble the dramatic and unforeseeable changes that were made in other cases of testamentary fraud.

[159] Martin Black and Steve Parker both provided advice to Carol-Sue about protecting Tracy’s inheritance through use of a discretionary testamentary trust. Carol-Sue implemented that advice in the February 2018 codicils. Therefore, she was well aware that there were other means of protecting the money than removing Tracy’s inheritance. When Michael refused to be the trustee of the trust, Carol-Sue could have appointed Martin Black and/or Steve Parker as trustees, as Martin Black had advised. In fact, in an email dated January 18, 2016, Carol-Sue instructed Martin Black to change her wills in 2016 so that Steve Parker and Martin Black would act as trustees for the businesses and provide Tracy with an allowance. Although those changes were not made in the 2016 wills, the email reflects the fact that Carol-Sue was well aware of the tools at her disposal to protect the Swedlove Legacy. She chose not to use those tools in the October 2018 Wills.

[160] As in the case of Seguin v. Pearson, 2018 ONCA 355, 41 O.R. (3d) 684, at para. 16, Carol-Sue’s decision to remove Tracy’s inheritance was not the result of rash or emotional actions but followed years of comprehensive advice provided by three trusted advisors and deliberate reflection in which she contemplated the very action she took.

5. Carol-Sue’s Gifts to Michael and Nikki did not form part of a Pattern of Undue Influence

[161] One of the indications that a person may have been unduly influenced to make changes to their will is that the propounder has received substantial transfers of money prior to the testator’s death. See e.g., Tate v. Gueguegirre, at para 9. In this case, Michael and Nikki and their children certainly received considerable money, gifts and trips from Carol-Sue. However, I find that there were reasons for these gifts that alleviate any concern that they were part of an overall pattern of undue influence. The reasons are:

(a) Tax minimization – Steve Parker testified that Casey Swedlove was not very keen on using mechanisms such as family trusts and other devices to minimize tax. However, Carol-Sue was more amenable to such ideas. Michael testified that he received the income as a means of reducing the corporate taxes. (b) Michael’s income was less than Tracy’s – Carol-Sue thought that Tracy had a good income as a principal. She did not have any children and therefore, had more disposable cash, whereas Michael’s job paid less, and he had two children to support. (c) Carol-Sue’s contributions allowed Nikki to quit paid work outside the home – Carol-Sue thought it was best for her grandchildren to have a stay-at-home mother, so she paid Michael and Nikki an allowance to facilitate that arrangement. (d) Michael and Nikki assisted Carol-Sue to travel – Without someone to accompany her, Carol-Sue would not have been able to travel as extensively as she did. She also benefitted from having her grandchildren close to her during the trips. (e) Carol-Sue was able to enjoy the renovations and the pool at Michael and Nikki’s place for which she paid – Carol-Sue was over at Michael and Nikki’s home at least once a week, and often more frequently. A great deal of entertaining with Carol-Sue and friends and family took place at their home. Carol-Sue was able to enjoy the upgrades she paid for while entertaining friends and family. (f) The money and gifts would not fall into Jo’s hands – By giving money and gifts to Michael and Nikki, Carol-Sue could be sure that they would not find their way into Jo’s pockets, which was an important goal for her.

[162] Thus, I find that there is no pattern of pre-death transfers of wealth that would suggest that Michael and Nikki were influencing Carol-Sue to bequeath the entirety of the residue of her Estate to them.

Conclusion

[163] On the basis of the analysis above, I conclude that neither Michael nor Nikki influenced Carol-Sue through fraudulent means, to make the changes that resulted in the October 2018 Wills. Rather, Carol-Sue made up her own mind, gradually over time and in response to the behaviour and circumstances surrounding her family. She received advice from her professional advisors as to how to structure her Estate, but in the end, she did what she thought was necessary to protect the Swedlove Legacy.

[164] Tracy and Jack Shapiro’s objections to the October 2018 Wills are dismissed.

[165] It is to be hoped that the family will find a way to honour Carol-Sue’s dying wish for reconciliation.

Orders

[166] I make the following orders:

i. The October 2018 Wills are valid. ii. Michael Shapiro’s Application for a Certificate of Appointment as Estate Trustee is granted.

Costs

[167] Michael was entirely successful on the Application and is therefore, presumptively entitled to his costs. However, I see no basis upon which to order costs on a substantial indemnity basis. As this court stated in Estate of Sydney Monteith v. Monteith et al., 2024 ONSC 800, 170 O.R. (3d) 153: “Substantial indemnity costs are normally only resorted to where the court wishes to express its disapproval of the “especially egregious” conduct of a party to the litigation: see Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, 140 O.R. (3d) 77.”

Justice K.A. Jensen Date: August 12, 2024