Court File and Parties

Lindsay Court File No.: CV-24-80 Date: 2024-08-19 Ontario Superior Court of Justice

Between: Shirley Anne Kenney, in her capacity as Estate Trustee of the Estate of Donna Marie Martin, Applicant – and – Derek Ronald Martin, Respondent

Counsel: Michael J. Bolotenko, for the Applicant Alissa N. Winicki, for the Respondent

Heard: August 13, 2024

Reasons for Decision

CHARNEY J.:

[1] The Applicant, Shirley Anne Kenney (Shirley), in her capacity as Estate Trustee of the Estate of Donna Marie Martin, seeks a declaration that the deceased, Donna Marie Martin (“Donna”), was the sole owner of the property known as 22 Larkin Avenue, Markham Ontario (the “Property”) on her death, and that the Property vested in Shirley in her capacity as the executor and trustee of the Estate upon Donna’s death.

[2] The Applicant also seeks a declaration that she, as the executor and trustee of the Estate, is entitled to immediate vacant possession of the Property, that she has the authority to immediately take steps to sell the Property, and that the Respondent, Derek Ronald Martin, must vacate the property within 30 days, or be evicted.

[3] The Respondent, Derek Ronald Martin (“Derek”) does not dispute that his mother, Donna, was the sole owner of the property, or that Shirley, as the executor and trustee of the Estate, has the right to sell the property, and that he must, at some point, vacate the property. For his part, he requests an adjournment of this Application to a “mutually agreeable date”. He has lived in the Property all of his life, and he has commenced an application for dependant support under the Succession Law Reform Act, R.S.O. 1990, c. S.26 (SLRA). He requires more time to plan his next steps and argues that there is no urgency in selling the Property or dealing with this Application. He notes that Shirley has not yet applied for a Certificate of Appointment of Estate Trustee With a Will, which will be required before the Property is sold.

Facts

[4] Shirley is the aunt of the Respondent, Derek, and was Donna’s sister. Derek is one of Donna’s two sons. The other son is Christopher George Flikas (Christopher). Derek and Christopher are half brothers. Both are adults. There is a history of significant animosity between the brothers.

[5] Christopher was acting as attorney for property and for personal care for Donna prior to her death.

[6] Derek lived with Donna at the Property before Donna entered long term care in early November of 2021. He continued to live in the Property when Donna entered long term care. He did not pay rent.

[7] Derek changed the locks on the Property in July, 2022. The parties dispute the reason for the locks being changed, but that dispute is not relevant to this Application. Because Derek changed the locks, neither Christopher nor Shirley have a key to the Property.

[8] Donna died on May 25, 2023. Her last will and testament dated August 27, 2001, (the “will”), named Shirley as her Estate Trustee, and made Derek and Christopher the residual beneficiaries of her Estate, granting them an interest not in the Property itself, but a divided, one-half interest in its sale proceeds subject to the necessary debts and liabilities of the Estate being paid.

[9] In addition to half the value of the Property, the beneficiaries are entitled to an equal share in a TFSA account and an insurance policy. Shirley estimates that Derek’s share of these assets is over $60,000.

[10] Derek continues to occupy the Property since Donna’s death. The insurance, property taxes and utilities are all paid by the Estate. Derek does not pay occupation rent.

[11] Shirley takes the position that she cannot complete the timely and proper administration of Donna’s Estate, including the payment of all debts and taxes of the Estate, until the Property is sold. In order to list the property for sale, she must attend the property with a real estate agent to obtain an appraisal and determine whether any maintenance and improvements are needed before selling.

[12] While Derek’s lawyer has confirmed that Shirley may attend the Property to inspect it, Derek has not responded to Shirley’s requests to attend the Property and he has sent text messages to other relatives telling them to “keep Shirley away, or else there will be a Big problem, Big fucking problems for everyone”.

[13] When a second relative tried to schedule a time for Shirley to come by the Property, Derek texted: “Stop fucking phoning me and stop fucking texting me. Do not come to my house. I’m not ready. Me and my lawyer will contact Shirley.”

[14] Understandably, Shirley does not feel comfortable attending the property with Derek present in light of the tone of these text messages.

[15] Without access to the Property and Derek’s full cooperation, Shirley cannot prepare and ready the Property for sale, or have it listed for sale. She cannot then distribute to Derek and to Christopher their one-half interest of the sale proceeds through the residue of the Estate.

[16] Accordingly, Shirley brought this Application for an Order to have Derek vacate the Property so that she can complete her responsibilities as executor of the Estate.

[17] Derek take the position that he has, at all material times, “cooperated with the Estate with respect to attendances, and continue to do so…I have not actively done anything to thwart showing or a sale.”

[18] With regard to the text messages, Derek states: “I regret sending these messages. I was upset with my family and scared to lose my home. I would never hurt anyone, including my aunt.”

[19] Derek takes the position that, in light of Shirley’s concerns, he is agreeable to vacating the Property for the duration of Shirley’s visit if he is given advance notice of the date of the visit.

[20] It is clear from Derek’s affidavit that he and Christopher had several long-standing disagreements about Donna’s care and whether she should have been placed in long term care prior to her death. Disputes continued after Donna’s death in relation to the burial plot/headstone and whether Donna should be cremated. It is clear that these disputes have contributed to the ongoing animosity between the brothers. At the end of the day, however, none of these disputes are legally relevant to the issues before me on this Application.

[21] Section 2(1) of the Estates Administration Act, R.S.O. 1990, Chapter E.22 provides:

2 (1) All real and personal property that is vested in a person without a right in any other person to take by survivorship, on the person’s death, whether testate or intestate and despite any testamentary disposition, devolves to and becomes vested in his or her personal representative from time to time as trustee for the persons by law beneficially entitled thereto, and, subject to the payment of the person’s debts and so far as such property is not disposed of by deed, will, contract or other effectual disposition, it shall be administered, dealt with and distributed as if it were personal property not so disposed of.

[22] The property in question therefore vests in Shirley as the Estate Trustee who has the power to dispose of and otherwise deal with the property. As the Estate Trustee, Shirley has the authority to take steps to sell the Property.

[23] I am not prepared to indefinitely adjourn this Application. The Property must be sold to fulfill the testator’s intention to divide the sale proceeds between the beneficiaries. Derek’s SLRA application can be addressed by holding the net sales proceeds in trust pending the resolution of that application.

[24] The real issue in dispute in this case is whether Derek must vacate the Property in order for it to be listed for sale.

[25] Shirley argues that Derek’s text messages prove that, notwithstanding his protestations to the contrary, he is not cooperating in the appraisal and sale of the Property. She also argues that the Property might require improvements or renovations before the home can be sold for fair market value, and that, depending on the repair or renovation, Derek may have to leave the house for some period of time. This latter concern about repairs and renovations is, at this point, entirely speculative, and I will not order Derek to vacate the house because it may need a fresh coat of paint or new carpeting.

[26] Shirley’s concern regarding Derek’s lack of cooperation appears to be valid. That said, provided that Derek fulfills his undertaking to the Court and cooperates with Shirley by vacating the Property for the duration of any of Shirley’s visits and during any open houses that may be held, the home does not have to be vacant to be listed and sold.

[27] This will permit Derek to remain in the home until it is sold. To provide Derek with some leeway, while Shirley may immediately appraise, list and sell the Property, the closing may not be for at least 60 days from the date of the Agreement of Purchase and Sale.

[28] To ensure that the Property is vacant on closing, I will order that Derek must vacate the Property at least 7 days before the closing date.

[29] While I am prepared to accept Derek’s undertaking to cooperate with Shirley at this stage, I will remain seized of this Application should any issues arise with regard to Derek’s cooperation with Shirley or the repair or sale of the Property. Derek is not to interfere in any way with the sale of the Property or with any steps taken by the Applicant or the real estate agent in respect of the sale of the Property. If he does, this Order may be revisited.

Conclusion

[30] THIS COURT ORDERS:

a. That on the death of Donna Marie Martin (the “Deceased”), all real and personal property that was vested in the Deceased without a right in any other person to take by survivorship, on the Deceased’s death, devolved to and became vested in Shirley Anne Kenney, the named Estate Trustee of the Estate of Donna Marie Martin (the “Applicant”).

b. That the lands and premises legally described as PCL 18-2, SEC M1903; PT LTS 18 & 19, PL M1903, PART 121, 65R4213; MARKHAM, being PIN No. 02920-0115 (LT) and municipally known as 22 Larkin Avenue, Markham, Ontario, L3P 4R3 (the “Property”) devolved to and became vested in the Applicant on the death of the Deceased.

c. That upon the Applicant having filed the requisite application with appropriate supporting documents, the Estates Registrar be and is hereby directed to issue a Certificate of Appointment of Estate Trustee With a Will to the Applicant, in her capacity as the named Estate Trustee of the Deceased’s Estate with respect to the Last Will and Testament of the Deceased.

d. That the Certificate may issue without the necessity of the Applicant posting a bond for the Estate of Donna Marie Martin

e. That the Applicant is hereby authorized to take any and all necessary steps and to do anything required and to sign any and all documents necessary to complete any listing or sale pursuant to any accepted Agreement of Purchase and Sale with respect to the disposition and sale of the Property.

f. That the Property is to be sold by the Applicant at fair market value. It is to be marketed to the public by a licensed real estate agent. The sale price is to be determined by the Applicant in consultation with the real estate agent.

g. That the Respondent, Derek Ronald Martin, shall allow full and unimpeded access to the Property to the Applicant and her agents and/or servants to inspect the Property, to gather and to collect any and all documents, inclusive of all financial records, banking records, tax records and any records regarding the assets, liabilities, income and expenses, of the Deceased in whatever form they are or shall be, including but not limited to whether the said documents be paper or electronic.

h. That before the Applicant attends the Property, the Respondent and/or the Respondent’s counsel shall provide to counsel of the Applicant a set of keys so that the Applicant shall be able to access the said Property.

i. That the Respondent shall vacate the Property and not be present when the Applicant attends to inspect the Property for the duration of the inspection and for any open houses held by the real estate agent retained by the Applicant to market the property. The Respondent and/or the Respondent’s counsel shall be given at least 24 hours written notice of any such visit or open house, and an estimate of the duration of the visit or open house.

j. That the Applicant is responsible for instructing the real estate agent and for directing and agreeing to the sale of the Property. The Respondent is not to interfere in any way with the sale of the Property or with any steps taken by the Applicant or the real estate agent in respect of the sale of the Property.

k. That if the Respondent refuses access to the Property to the Applicant, the Applicant shall be at liberty to proceed with obtaining vacant possession of the Property notwithstanding the provisions of this Order.

l. The closing date must be at least 60 days from the date of the Agreement of Purchase and Sale unless the parties agree to, or this Court orders, a shorter closing date.

m. Vacant possession of the Property shall be granted to the Applicant at least seven days prior to the closing date in the Agreement of Purchase and Sale. The Applicant may obtain a Writ of Possession as against the Respondent and/or any other person or party who is in occupation of the Property contrary to this Order.

n. Once the Property is sold, the net proceeds of sale are to be held in the account of a lawyer retained by the Applicant to represent her as vendor in the sale. For greater certainty, estate administration taxes (probate fees) are to be paid from the sale proceeds.

o. That the balance of this Application is adjourned sine die and any matters arising therefrom, including any assessment of expenses and damages incurred on the Property by, and/or payment of occupation rent due and owing from, the Respondent may be brought back before this Court with fourteen (14) days written notice by email to all parties as requested for such further or other direction, advice, or Order as may be required for the herein Application.

p. This Court Orders that this Application, issued under Court File No. CV-24-0000080-0000, and Derek Ronald Martin’s Application issued under Court File No. CV-24-0000144-00ES be consolidated and heard together.

Costs

[31] The Applicant asks that costs for today’s motion should be paid on a substantial indemnity basis in the amount of $20,415.45 out of the Respondent’s share of the Estate.

[32] The Respondent asks that costs of today’s appearance be reserved to the judge at the final hearing.

[33] The starting point for the legal analysis is the accepted principle that estate trustees are generally entitled to be fully indemnified for all costs properly related to the administration of the estate, including legal costs: Geffen v. Goodman Estate, [1991] 2 SCR 353. The policy rationale behind this principle is that no one would volunteer to act as an estate trustee if they were required to bear personal financial responsibility for the costs of estate administration.

[34] While the Applicant did not get immediate vacant possession of the Property, and the final outcome is something of a compromise between the two positions, the Applicant acted reasonably in bringing this Application. The application was ultimately necessary because of the impasse that had been reached between the parties. The application advanced the administration of the Estate.

[35] The question is whether the Applicant’s costs should be paid from the Estate (making Derek and Christopher each responsible for 50%) or from Derek’s portion of the Estate.

[36] Given the outcome of this case, which incorporates parts of each party’s position, I am of the view that the Applicant’s costs should be paid from the Estate, and not just from the Derek’s share of the Estate.

[37] This amount may be paid to the Applicant’s counsel from the proceeds of sale of the Property.

[38] The Respondent must bear his own costs on this motion. Given the Respondent’s position and the outcome of this Application, it would not be fair to Christopher if any portion of the Respondent’s costs came from Christopher’s share of the Estate.

[39] Costs to the Applicant, fixed at $20,415.45, payable from the Estate and from the proceeds of sale of the Property.

Justice R.E. Charney Released: August 19, 2024