Court File and Parties

COURT FILE NO.: CV-22-0027-00 DATE: 2024-09-12

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: IN THE MATTER OF THE ESTATE OF HELENE MARIE-THERESE KENNEPOL, deceased, ELIZABETH AINSWORTH and ANDRE KENNEPOHL

And

ROBERT KENNEPOHL, personally and in his capacity as Attorney for Property for HELENE MARIE-THERESE KENNEPOL and Estate Trustee for the Estate of HELENE MARIE-THERESE KENNEPOL

HEARD: September 5, 2024

BEFORE: Nieckarz J.

COUNSEL: Ms. Lepere, for the Applicant Ms. Pottinger, for the Respondent

Endorsement

[1] This matter was before me in motions court September 5, 2024, at 10:00 a.m. Ms. Lepere appearing for the Applicants. Ms. Pottinger, counsel of record for the Respondent, Mr. Kennepohl appearing solely for the purpose of being removed as counsel of record. The Respondent not appearing, despite having been ordered to attend in person by Pierce J., by way of an Endorsement dated August 15, 2024. Prior to commencing this matter (which was some time after 10:00 a.m.), Mr. Kennepohl was paged but did not attend.

[2] Upon reviewing the materials filed in support of Ms. Pottinger’s motion, the firm of Waddington & Pottinger Law, LLP, and specifically Ms. Pottinger, are removed as counsel of record. I am satisfied that there has been an irreconcilable breakdown of the solicitor-client relationship. An order shall issue that is in compliance with Rule 15.04(4) of the Rules of Civil Procedure (the “Rules”). The affidavits filed in support of the motion shall be expunged from the court record.

[3] Ms. Lepere seeks an order for the imprisonment of Mr. Kennepohl (Rule 60.11(5)(a) of the Rules) and a warrant of committal to enforce said order (Rule 60.11(7) of the Rules). She is at a loss as to how to otherwise compel Mr. Kennepohl to purge his contempt of my order dated July 6, 2022, and makes the request reluctantly.

[4] Briefly, the salient facts are:

a. On July 6, 2022, b. The Applicants brought a motion for contempt returnable December 8th, 2022; c. The motion was adjourned peremptory on Mr. Kennepohl to January 12, 2023, to give him the opportunity to seek legal advice and/or representation; d. Mr. Kennepohl appeared before Fregeau J., on January 12, 2023, without a lawyer; e. Fregeau J., found Mr. Kennepohl in contempt of the July 6th, 2022, order, and ordered him to purge his contempt no later than March 9, 2023; f. Mr. Kennepohl retained counsel, and the Applicants agreed to extend the date for compliance on the basis that they were satisfied that Mr. Kennepohl’s counsel was making diligent efforts; g. That counsel ultimately was removed from the record, at their request; h. Mr. Kennepohl made some progress towards purging his contempt, and at least enough so that the Applicants were willing to give him further time to do so; i. There have been multiple court appearances required, resulting in orders directing Mr. Kennepohl to take steps to comply with the orders of the court; j. My endorsements dated November 23, 2023, and February 14, 2024, the endorsements of Wojciechowski J., dated March 14, 2024, and April 19, 2024, and my endorsement dated May 2, 2024, all of which are attached to this endorsement outline the history of this matter in greater details and the chances given to Mr. Kennepohl to purge his contempt; k. In short, Mr. Kennepohl has been found in contempt twice, fined twice, ordered to pay costs multiple times, and on May 2nd I ordered Mr. Kennepohl to be imprisoned if he had not retained counsel and/or satisfied the Applicants and the court that meaningful steps were underway to purge his contempt; l. Mr. Kennepohl retained counsel who reached an agreement with Ms. Lepere to avoid imprisonment and extend the date to purge his contempt to July 31, 2024; m. The agreement is reflected in the order of Wojciechowski J., dated June 27th, 2024; n. Mr. Kennepohl did not comply with the June 27th order, and now is in contempt of that order also; o. From the perspective of getting the orders complied with, it is concerning to the Applicants and the court that Mr. Kennepohl’s most recent counsel has felt compelled to be removed as counsel, and that Mr. Kennepohl has not attended court to explain himself; and p. Based on Ms. Lepere’s conversations with counsel, most of the work is completed to be able to purge the contempt but Mr. Kennepohl has failed to provide some of the items necessary to finalize the production of information required.

[5] I find that despite multiple opportunities, Mr. Kennepohl has not purged his contempt and has provided no valid reason for not doing so. He did not even see fit to attend court today to explain why he remains non-compliant with the terms of two court orders, and why he has not purged his contempt. I have been the presiding judge for multiple appearances in this matter. As outlined above, I have ordered fines. I have ordered costs. I have tried to convey to Mr. Kennepohl the seriousness of a failure to do what he has been ordered to do, as has Justice Wojciechowski. I even issued an order for imprisonment that gave him an opportunity to comply with the orders of this court before a warrant for committal issued. He has had various lawyers try to assist him but ultimately become frustrated with his failure to do what he is required to. I share Ms. Lepere’s reluctance to imprison Mr. Kennepohl, but I am at a loss as to what other sanctions to impose to compel compliance with the orders and purge his contempt. Fines and costs appear to have no impact on Mr. Kennepohl.

[6] Imprisonment is to be an order of last resort. Unfortunately, we are at that point with Mr. Kennepohl. His actions have shown a disregard for his siblings who cannot move forward with the administration of the estate of their late mother without the information required. His actions have caused his siblings and the estate considerable expense. While Mr. Kennepohl was always polite and respectful in his court appearances, his persistent failure to comply with orders of this court (despite multiple opportunities to do so) shows a disrespect for the court and the process that simply can no longer be tolerated. Our courts are extremely busy and court time is precious. More importantly, our system is premised on our citizens having respect for and complying with orders of the court. There must be serious consequences for a persistent failure to do so.

[7] It is ordered that:

(a) Pursuant to Rule 60.11(5)(a) of the Rules of Civil Procedure, Mr. Kennepohl shall be imprisoned for a period of four days, which may be served from a Thursday until a Sunday. (b) A warrant for committal to enforce paragraph 7(a) of this order shall issue in accordance with Rule 60.11(7). (c) If Mr. Kennepohl has not purged his contempt within 30 days of his release from jail, he shall be imprisoned for a period of seven days. (d) A warrant for committal to enforce paragraph 7(c) of this order shall issue in accordance with Rule 60.11(7) at the request of the Applicants upon the expiry of the 30-day period. (e) If Mr. Kennepohl has not purged his contempt within 30 days of his release from jail, he shall thereafter be imprisoned for a period of 14 days. (f) A warrant for committal to enforce paragraph 7(e) of this order shall issue in accordance with Rule 60.11(7) at the request of the Applicants upon the expiry of the 30-day period. (g) If Mr. Kennepohl has not purged his contempt within 30 days of his release from jail for incarceration of 14 days, or if there are any issues or concerns in enforcing the terms of this order, then this matter shall be returned back before the court for such further orders as are required, on 7 days’ notice. (h) Mr. Kennepohl may also bring this matter back before the court on 7 days’ notice to explain himself and why a different sanction for his ongoing contempt is more appropriate than what has been ordered. (i) Costs of today’s appearance are ordered payable by Mr. Kennepohl to counsel for the Applicants in the amount of $750 payable within 30 days. (j) A copy of this Endorsement shall forthwith be served on Mr. Kennepohl by: i. Ms. Pottinger, by email; and ii. Ms. Lepere, by email and personal service. If there is a barrier to personal service, counsel shall advise in writing.

[8] For clarity, what is required for Mr. Kennepohl to purge his contempt of paragraph 3 of the July 2022 order is the filing of an application to pass accounts for the Estate of Helene Marie-Therese Kennepohl in accordance with Rules 74.17 and 74.18 of the Rules of Civil Procedure for the period October 31, 2018, to January 12, 2023.

[9] What is required of Mr. Kennepohl to purge his contempt of my February 1, 2024, order is to provide outstanding explanations for transactions in a joint bank account with his mother (the deceased) in the two years prior to her death, that his siblings (current estate trustees) have identified as suspicious.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

DATE: September 12, 2024