Court File and Parties

COURT FILE NO.: CV-17-00003137-00ES DATE: 20240930 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF ELENA CANALE, deceased

RE: GIACOMO ANTONIO CANALE, Applicant - and- ROSEMARY ZICCARDI and the ESTATE OF ELENA CANALE by her named Estate Trustee, ROSEMARY ZICCARDI, Respondents

BEFORE: M.D. Faieta, J.

COUNSEL: Applicant, self-represented David Scott Lee, for the Respondent

HEARD: July 9, 2024

Endorsement

[1] The respondent brings this motion for:

1. A declaration that the applicant is in contempt of the Orders of Justice Kimmel dated March 7, 2022 (“Kimmel Order”), and the Order of Justice Gilmore dated August 17, 2023 (“Gilmore Order”).
2. An Order that the applicant’s claims in this application be dismissed with costs payable by the applicant on a substantial indemnity basis.
3. An Order that the applicant is to vacate the deceased’s home (the “Property”) within 30 days, removing only his personal belongings and leaving the Property in a clean, broom swept condition.
4. An Order that the Estate Trustee During Litigation (“ETDL”) may list the Property for sale on MLS with the net sale proceeds being deposited into an account of the Estate of Elena Canale (the “Estate”).
5. An Order that all outstanding utilities, insurance and property taxes paid by the Estate for the Property be deducted from the applicant’s share of the residue of the Estate up until the date the applicant vacates the Property.

Background

[2] Elena Canale died in July 2019. She was predeceased by her husband and was survived by her four adult children including the applicant (a.k.a. “Jim”), the respondent, Rosemary Ziccardi, Rita Conklin and Gianna Canale.

[3] On April 9, 2018, the applicant commenced this application challenging the validity of the deceased’s Last Will and Testament dated November 2, 2005 (the “2005 Will”), claiming a previous will dated June 3, 2003 (the “2003 Will”) is the deceased’s valid will.

[4] Under the 2003 Will, the Property was bequeathed to the applicant. The 2003 Will prepared by Rocco Russo, a solicitor.

[5] The 2005 Will, prepared by another solicitor, Peter May, appoints Rosemary Ziccardi as the sole estate trustee and divides the Estate as follows:

a. Gianna Canale is to receive a specific cash bequest of $10,000.00; and b. The remainder of the Estate is to be divided into 20 equal shares: i. The applicant is to receive 8 shares; ii. The respondent Rosemary Ziccardi is to receive 7 shares; and iii. Rita Conklin is to receive 5 shares.

[6] The applicant challenges his mother’s Will. At his examination under oath on October 10, 2018, Peter May stated that the deceased came to him with a clear intention to do a new will, and she had thought about exactly how she wanted to leave her estate because it was specifically divided into distinct percentages. He met with her alone, had no concerns about competency, suspicious circumstances or undue influence.

[7] The applicant has not offered any evidence to rebut Mr. May’s evidence, or to support his allegations, other than a general belief in the deceased’s lack of facility in the English language, and a belief that the deceased would not have prepared the 2005 Will because she allegedly told the applicant he would receive the Property after she dies.

[8] Since his mother’s death the applicant has occupied the Property, rent-free, to the exclusion of the other beneficiaries.

[9] On March 7, 2022, Justice Kimmel issued an Endorsement that appointed Rosemary as the ETDL. Her Endorsement further states, at para. 22:

… The court has considered both the written and oral submissions made and makes the following further orders and provides the following directions in relation to the past and continuing dealings with the estate assets:

a. Jim undertook during his examination for discovery on November 6, 2018 to pay for the utilities, insurance and municipal taxes for the property going forward. He agreed to pay a fixed amount of $950 per month on account of these expenses. He did for a period of time, and then stopped, he says because he was not named on the bills and was not receiving them directly. The estate (or acting estate trustee, Rosemary) has been paying some or all of these expenses for the property in the interim. Jim claims to have paid the premiums for the home insurance up to September 2021, but no particulars have been provided. According to the respondent’s record and accounting, the amount owing for the period October 2019 to February 2022 is $25,366.47. Rosemary’s counsel has calculated pre-judgment interest at the Courts of Justice Act rate on these unpaid amounts to be $591.89, for a total of $25,958.36 claimed to be owing by Jim for arrears. I order Jim to forthwith (in no more than 30 days) pay those outstanding amounts to Rosemary, who shall receive and eventually account for them in her capacity as ETDL. If Jim can demonstrate that he has paid some of these expenses during the period in question, that can be credited against future payments owing.

b. Jim is further ordered to pay, going forward, the agreed monthly amount of $950 to the ETDL to cover the utilities, insurance and property taxes for the property from and after March 1, 2022. The March payment shall be remitted by no later than March 10, 2022. The ETDL shall be responsible for remitting to the third party creditors the total monthly payments owing on account of the insurance, property taxes and utilities, unless the parties reach an agreement by which Jim will remit these payments directly.

c. The past and continuing amounts paid by Jim on account of utilities and property taxes are without prejudice and are open to adjustment at the request of either party if the actual amounts paid are determined to be materially different than the agreed amount.

d. The estate’s claim for occupation rent from Jim, over and above the utilities and property taxes, also remains open to be adjudicated. It is recognized that the claim for occupation rent may be impacted by the outcome of the will challenge. …

[10] The Kimmel Order states:

THIS COURT ORDERS that Jim is required to pay all the property taxes, utilities and home insurance premiums for [the Property] to the Estate for the months of October 2019 to February 2022 in the amount of $25,366.47, plus pre-judgment interest in accordance with the Courts of Justice Act in the amount of $591.89, for a total of $25,958.36, within 30 days of March 7, 2022. If Jim can demonstrate that he has paid some of these expenses during the period in question, that can be credited against future payments owing.

THIS COURT ORDERS that Jim shall pay the monthly amount of $950.00 to the ETDL to cover the utilities, insurance and property taxes from and after March 1, 2022. …

THIS COURT ORDERS that the Estate’s claim for occupation rent from Jim over and above utilities and property taxes, also remains open to be adjudicated. It is recognized that the claim for occupation rent may be impacted by the outcome of the Will challenge.

[11] On August 17, 2023, and on consent of the parties, the Respondent was found by Gilmore J. to be in breach of this Court’s Order dated March 7, 2022 and was provided an opportunity to purge his breach. The Gilmore Order states:

1. THIS COURT ORDERS that the applicant, Giacomo Antonio Canale is in breach of the Order of Justice Kimmel dated March 7, 2023 for failing to pay the ordered monthly payments on account of the utilities, taxes and insurance (the “Property Expenses”) for [the Property].
2. THIS COURT ORDERS the applicant may purge his breach if he does the following: a. By Friday August 18, 2023, pay the all-inclusive sum of $2,500.00 towards the outstanding Property Expenses; b. Commencing on or before September 15, 2023 make the ordered monthly payments of $950.00 to the Estate of Elena Canale for as long as the applicant occupies the Property or as otherwise ordered by this Court; and c. Commencing on or before September 15, 2023, the applicant shall pay an additional $300.00 each month on top of the regular monthly payments of $950.00 until the amount in arrears of $9,938.38 is paid in full.
3. THIS COURT ORDERS that the monthly payments are without prejudice to the respondents’ right to seek payment to the Estate from the applicant of any difference that may exist between the total monthly payments paid and the actual Property Expenses incurred.
4. THIS COURT ORDERS that if the applicant fails to comply with paragraph 2 above then this motion may be brought back before the court for a contempt hearing. This order is without prejudice to the right of either party to bring a further motion to adjust the monthly payments if deemed advisable.
5. THIS COURT ORDERS that the applicant’s motion be adjourned to a date fixed by the court or the registrar.

[12] The applicant paid $2,500.00 in August 2023, and paid $1,250.00 in each of September 2023, October 2023 and November 2023. He also paid $2,000.00 one day prior to the hearing of this motion. The total arrears are $12,138.38.

Issue #1: Is the Applicant in Contempt of Court for Failing to Pay the Amounts Ordered Under the Kimmel Order and the Gilmore Order?

[13] The applicant remains in arrears in the amount of $12,138.38.

[14] Rule 60.11 of the Rules of Civil Procedure states:

(1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.

(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt, …. [Emphasis added]

[15] In a dissenting opinion, adopted by the Supreme Court of Canada, Laskin, J.A. stated that “the purpose of the exception in r. 60.11(1) is to exclude the use of the contempt power — which carries with it the possibility of imprisonment — for fixed monetary obligations, that is, debts, between a debtor and a creditor. We no longer imprison people for their failure to pay a civil debt”: Dickie v. Dickie, [2006] O.J. No. 95, at para. 103; rev’d 2007 SCC 8.

[16] The Kimmel Order and the Gilmore Order impose fixed monetary obligations on the applicant and, as such, cannot be enforced by a contempt motion.

Issue #2: Is the Applicant in Contempt of Court for Failing to Vacate the Property After He Stopped Making Monthly Payments Pursuant to the Gilmore Order?

[17] The ETDL relies on paragraph 2(b) of the Gilmore Order which states:

Commencing on or before September 15, 2023, make the ordered monthly payments of $950.00 to the Estate of Elena Canale for as long as the applicant occupies the Property or as otherwise ordered by this Court;

[18] The above provision does not state the inverse, namely, that the applicant may continue to occupy the Property so long as pays the ordered monthly payments of $950.00. Accordingly, the applicant is not in contempt of court for failing to vacate the Property after failing to make the ordered monthly payments.

Issue #3: Should the Applicant’s Will Challenge Be Dismissed as a Result of His Failure to Comply with the Interlocutory Orders, Namely the Kimmel Order and the Gilmore Order?

[19] Rule 60.12 of the Rules of Civil Procedure states:

Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,

(a) stay the party’s proceeding;

(b) dismiss the party’s proceeding or strike out the party’s defence; or

(c) make such other order as is just.

[20] The respondents submits that if the applicant is not found in contempt, then his challenge of the 2005 Will should be dismissed as a result of the failure to comply with the Kimmel Order and the Gilmore Order.

[21] In Buduchnist Credit Union Limited v. 2321197 Ontario Inc., 2024 ONCA 57, at paras. 53, 55, L.B. Roberts J.A. stated:

The court's broad jurisdiction to craft an appropriate order in response to a breach of a court order arises from its well-established inherent jurisdiction to prevent an abuse of the court's process. …

The court's broad jurisdiction in the face of a breach of a court order includes the power to dismiss or refuse to entertain a proceeding, strike pleadings, or adjourn a party's request for relief …

[22] The respondents rely on Johnston v. Jenkins, 2023 ONSC 1354 where, in similar circumstances, the defendant claimed that the deceased did not have testamentary capacity at the time that the deceased executed her will and where the applicant was permitted by court order to live in the deceased’s home on condition that he provide proof of payment of insurance, property taxes and utilities on a monthly basis to the beneficiaries. The defendant was also ordered to provide a sworn affidavit of documents. The defendant did not comply with these orders. Subsequently, the defendant was found in contempt of court. When he was later found to have failed to purge his contempt, the defendant was ordered by Edwards J. to provide proof that the property taxes had a zero-balance failing which the defendant’s claim would be dismissed with costs. Relying on Rule 60.12, and the Order of Edwards J., the court considered the competing values of respect for court orders and the importance of cases being decided on their merits, and determined that the administration of justice favoured the dismissal of the defendant’s claim.

[23] However, in these circumstances, the applicant’s breach of court orders relates only to compliance with financial directions nor I find that the dismissal of this application is not warranted in these circumstances. On the other hand, the applicant should not be permitted to continue to reside in the Property given his failure to pay $950 per month for its carrying costs in compliance with the terms that this court imposed in permitting the applicant to occupy the Property. Any arrears owed by the applicant pursuant to Orders made by this court, including costs orders, shall be deducted from the applicant’s share of the residue of the Estate.

Issue #4: Should the Property Be Listed for Sale?

[24] The respondents submit that the Property should be listed for sale considering the applicant’s non-compliance with orders of this court, as described above, and their submission that the applicant’s will challenge will likely fail.

[25] The applicant’s non-compliance with this court’s order has already been addressed. The request to list the Property does not logically follow from this non-compliance. Further, I am no in position on this motion to find that the will challenge will likely fail.

[26] Accordingly, I dismiss this aspect of the respondents’ motion.

Decision

[27] Order to go as follows:

(1) The applicant shall vacate the Property by November 30, 2024, removing only his own personal belongings, and shall leave the Property in a clean, broom swept condition.

(2) Any amount that the applicant has failed to pay pursuant to any Order of this court, including the Kimmel Order and the Gilmore Order, shall be deducted from the applicant’s share of the residue of the Estate.

(3) The respondents shall serve and their costs submissions including any offers to settle within seven days. The applicant shall serve and file his responding costs submissions including any offers to settle within fourteen days. The respondents may file reply costs submissions by within twenty-one days. The total length of each submission shall be no more than three pages excluding the offers to settle and bill of costs.

(4) The applicant’s approval as to the form and content of this Order is dispensed with.

M.D. Faieta, J. Date: September 30, 2024