COURT FILE NO.: CV-22-00000714-0000

SUPERIOR COURT OF JUSTICE – ONTARIO 7755 Hurontario Street, Brampton ON L6W 4T6

RE: CASTIGLIONE, Carlo, Plaintiff AND: AKRAM, Safther, Defendant

BEFORE: Justice McGee

COUNSEL: KIRWIN, S., for the plaintiff Email: samuel@kirwinlaw.ca LOCKHART, T., for the defendant Email: tim@tlclaw.ca

HEARD: August 13, 2024, by video conference

ENDORSEMENT

Motion to Extend the Limitation Period for a Family Law Act Section 6(1) Election

Background

[1] Maria Castiglione died on July 8, 2020. At the time of her death, she was living with her husband of approximately 15 years, Safther Akram (“Safther”) in a condominium that she had purchased before they were married.

[2] Carlo Castiglione (“Carlo”) is Maria’s brother. He showed up at the condo the day after his sister died and presented Safther with a copy of a one-page Will purportedly signed by Maria on December 27, 2015.

[3] The Will states that “[m]y spouse is financially self-sufficient; I am not leaving anything further to my husband.” The next two paragraphs name Carlo as her Executor and “appoints” him to “have everything I own including all of my properties such as my residence…. and assets” then further states that Carlo “is responsible for splitting everything I own between himself and his two kids [names omitted] when appropriate.”

[4] Safther states that he was shocked by the presentation of the purported Will. He asserts that he has never been financially sufficient, and that he had no idea that Maria had ever executed a Will. He retained counsel. Carlo also hired a lawyer.

[5] Negotiations between counsel proved challenging over the next year given the increasing animosity between the brothers-in-law. Carlo asserts that Safther mistreated his sister and engaged in financial misdealings throughout their marriage. Safther denies the accusations. Carlo made an application for a Certificate of Estate Trustee with a Will. On January 6, 2021 Safther filed a Notice of Objection.

[6] As the six-month deadline for Safther to file a spousal election under the Family Law Act (“the Act”) drew close, Safther’s lawyer sought an extension so that settlement discussions could continue.

[7] On January 13, 2021, Carlo’s counsel executed a Consent to an extension of the six-month period for the filing of a spousal election under section 6(1) of the Act. The Consent provided for an extension of time "until 60 days following the granting of Certificate of Appointment of Estate Trustee".

[8] No Certificate has yet been issued, but some progress has been made within this litigation. The matter was converted to an Action late in 2022 and directions were given. Examinations have been completed. Progress was interrupted when Carlo brought a motion for Default Judgement in late 2023 without notice to Safther. Ultimately, Carlo’s attempt to have Safther’s Statement of Defence and Counterclaim struck on a technicality was dismissed.

[9] In June of 2024, Carlo brought a Motion for Summary Judgement, which has not yet been heard. In the supporting materials to his Motion for Summary Judgement he states among other assertions that he did not instruct his lawyer to execute the January 13, 2021 Consent. It was the first time that Carlo had made this assertion.

Election for an Equalization Payment

[10] In this Motion dated July 23, 2024, Safther seeks an Order permitting an extension of 60 days from the time of the granting of the Order per section 2(8) of the Act, so that as a surviving spouse, he can elect to receive an equalization payment.

[11] Carlo served a written revocation of the January 13, 2021 Consent after being served with this July 23, 2024 motion.

[12] A surviving spouse has the option to choose between taking his or her share under the deceased’ spouse’s Will or under intestacy or opting for an equalization of net family property (“NFP”) calculated on the date before the date on which one of the spouses dies leaving the other spouse surviving.

[13] Safther will be entitled to an equalization payment because on July 7, 2020 Maria’s NFP was greater than his. Specifically, Maria’s NFP consisted of the value of the condominium, and other minor savings, less her debts, such as the mortgage registered on title to her condo. In contrast, Safther had a zero NFP because the amount of his debts on July 7, 2020 was greater than the value of his assets. A spouse whose NFP is less than that of the other spouse is entitled to a payment that is one half of the difference between their respective NFPs.

[14] Safther can elect to receive an equalization payment whether or not the Will is valid; but if it is not valid, Maria will be deemed to have died intestate and Safther will also have the option of seeking a preferential share of $200,000 from Maria’s estate. [1]

[15] In other words, Safther’s claim for an equalization payment stands irrespective of whether his objection to the December 27, 2015 document succeeds.

[16] Once an election is made by a surviving spouse it cannot be revoked except by court order, and the electing spouse forfeits his right to object to the Will.

Application of the Law

[17] Section 2(8) of the Act provides that:

2(8) The court may, on motion, extend a time prescribed by this Act if it is satisfied that,

(a) there are apparent grounds for relief;

(b) relief is unavailable because of delay that has been incurred in good faith; and

(c) no person will suffer substantial prejudice by reason of the delay. R.S.O. 1990, c. F.3, s. 2 (8).

[18] The three-part test is conjunctive, and the burden of proof is on a balance of probabilities. I find that Safther has met his burden of proof for the following reasons, and the extension for the filing of a spousal election is granted.

[19] First, there are clear grounds for relief because Safther is the spouse who held a lower NFP on July 7, 2020. Moreover, a surviving spouse need not prove a right to an equalization payment in order to obtain an extension because disclosure may not yet be complete.

[20] Requiring such proof as a condition to the granting of an extension might “deprive the surviving spouse of the right to choose the more favourable financial outcome as between a Will and under the FLA simply because they lack information necessary to make an informed choice between the two” see para. 50 in Trezzi v. Trezzi, 2018 ONCA 4710.

[21] Similarly, this court in Aquilina v Aquilina, 2018 ONSC 3607, 141 O.R. (3d) 627 at para 26 found that there are grounds for an extension even if the moving party has not yet been able to “assemble a reasonable knowledge base from which an informed choice might fairly be expected to be made.”

[22] Second, I am satisfied that the delay in filing an election has been incurred in good faith. In Trezzi, supra at para 55, the Court of Appeal states that good faith in this context “merely requires the applicant for an extension to show that they acted ‘honestly and with no ulterior motive.”

[23] Safther has relied on the January 13, 2021 Consent throughout this litigation to defer his decision as to whether to make an election until 60 days after the granting of the Certificate of Estate Trustee.

[24] The Consent takes the form of a signed, stand-alone formal document which reads:

I, JOSEPH SOLOMON, solicitor for Carlo Castiglione, do hereby consent on behalf of my client, to an extension of time to file an Election of Surviving Spouse for Equalization of Net Family Property, pursuant to the Family Law Act, until 60 days following the granting of a Certificate of Appointment of Estate Trustee.

Dated at Toronto, this 13 day of January 2021.

[25] The Consent leaves open whether the anticipated granting of a Certificate would be with a Will, or without a Will. It preserves Safther’s ability to make an informed decision as to whether to make an election if his objection to the Will fails; or if the estate is deemed intestate, to make an election or seek a preferential share.

[26] Whether or not Carlo instructed his counsel to enter into the Consent on his behalf is immaterial to this motion for an extension because there is no issue that Safther has relied on the January 13, 2021 Consent throughout this proceeding; and that the terms of the Consent have not yet been met, i.e. no Certificate has yet been granted.

[27] This is not a case in which Safther was not aware of his right to make an election or knew of his right and failed to act in a timely manner. His counsel canvassed the issue within the six-month period following Maria’s death, inquired, and secured a formal, signed Consent for an extension that was not revoked in writing until after this motion was served.

[28] Neither can it be said that Safther has acted with an ulterior motive. By making an election at this stage of the proceeding, Safther will in effect, be abandoning his objection to the Will, which appears to be the only impediment to the granting of a Certificate with a Will. [2] Once granted, he will no longer have the option of seeking a preferential share.

[29] Third, there is no basis to find that Carlo as the potential Estate Trustee, or the Estate itself will suffer substantial prejudice by reason of the delay in making an election.

[30] Carlo is yet to receive an appointment as an Estate Trustee, and the Estate’s primary asset, the condominium, remains intact and fully available to the Estate. There has been no partial distribution of the Estate or acceptance of gifts or other distributions by Safther, as was the case in Lundy v. Lundy Estate, 2017 ONSC 2101 in which prejudice was established because the surviving spouse had already received monies from the Estate.

[31] The only prejudice asserted by Carlo is the lost value of Safther’s continued residence in the condo since Maria’s death, which if meritorious, can be remedied by the equitable doctrine of occupation rent.

Order to Issue

[32] The defendant, Safther Akram is permitted to file a spousal election under Section 6(1) of the Family Law Act, per section 7(1) for a period of 60 days from the date of this Order.

Costs

[33] The parties are to exchange Offers to resolve the issue of costs of this motion. If costs cannot be agreed, Safther may serve and file his costs submissions by September 23, 2024. Carlo’s costs submissions are due by October 7, 2024. No reply is permitted. Costs submissions are limited to three pages exclusive of a Costs Outline and Offer to Settle the Motion. A copy of each submission is to be emailed to my assistant at Samantha.Alves@ontario.ca.

[1] Section 45 of the Succession Law Reform Act ("SLRA") provides that in the case of an intestacy, a surviving spouse is entitled to a preferential share. As of April 1, 1995, the preferential share was set at $200,000. As of March 1, 2021 the preferential share was increased to $350,000 effective February 16, 2021. Because Maria died before March 1, 2021, the preferential share within her estate remains at $200,000.

[2] I have no agreement as to the net value of Maria’s estate July 7, 2020, so cannot assess whether the preferential share is greater or less than the claim for an equalization.

McGee J. Released: September 9, 2024