Court File and Parties

Court File No.: CV-20-00003063-00ES; CV-22-00680973-00ES and CV-22-00689206-00ES Date: 2024-10-22 Superior Court of Justice – Ontario

In the Matter of the Powers of Attorney of Teresa Opalinski Re: Joanna Teresa Opalinski and Alexander John Opalinski, Applicants And: Teresa Opalinski, Alexander Opalinski Senior, Yvonne Opalinski, and the Public Guardian and Trustee, Respondents

Before: M.D. Faieta, J.

Counsel: Lionel J. Tupman and Devin McMurtry, for the Applicants Keith Juriansz, for the Respondents Yvonne Opalinski and Alexander Opalinski Senior No one appearing for Teresa Opalinski and the Public Guardian and Trustee

Court File No.: CV-22-00680973-00ES In the Matter of the Estate of Teresa Opalinski Re: Joanna Teresa Opalinski, in her capacity as estate trustee of the estate of the late Teresa Opalinski, Applicant And: Constantine Dalamagas, Yvonne Opalinski, Alexander Opalinski, and Alexander John Opalinski, Respondents

Before: M.D. Faieta, J.

Counsel: Lionel J. Tupman and Devin McMurtry, for the Applicant Keith Juriansz, for the Respondents No one appearing for the Respondent Alexander John Opalinski

Court File No.: CV-22-00689206-00ES In the Matter of the Estate of Teresa Opalinski Re: Alexander Opalinski Sr., by his Litigation Guardian, Constantine Dalamagas, Applicant And: Joanna Teresa Opalinski, Respondent

Before: M.D. Faieta, J.

Counsel: Keith Juriansz, for the Applicant Lionel J. Tupman and Devin McMurtry, for the Respondent

Heard: July 3, 2024

Endorsement

[1] The motions and applications described below largely related to the guardianship, and following her death, to the administration of the estate of the late Teresa Opalinski (“Teresa”).

Background

[2] Teresa and Alexander Opalinski Sr. (“Alexander”) are the parents of three children: Joanna (“Joanna”), Dr. Alexander John Opalinski (“AJ”) and Dr. Yvonne Opalinski (“Yvonne”). Constantine Dalamagas (“Constantine”) is Yvonne’s husband. For ease of reference, I refer to the parties by their first names.

[3] Alexander was born in 1927. Teresa was born in 1931. They were married in 1955.

[4] In 1994, Teresa signed both a power of attorney for personal care and a continuing power of attorney. In both documents, Alexander was named as her attorney and their daughters Joanna and Yvonne were named as joint alternate attorneys. The 1994 power of attorney for personal care was never revoked. In 2009, Teresa signed a continuing power of attorney for property that named Alexander as her attorney and their three children as joint alternates. Constantine and Yvonne are Alexander’s attorneys for personal care and property pursuant to powers of attorney signed on April 28, 2020.

[5] In 2016, Alexander and Teresa signed mirror Wills whereby each left their full estate to the surviving spouse, with the residue being divided evenly amongst their three children upon the death of the last surviving spouse. Teresa’s Will names Joanna as Estate whereas Alexander’s Will names Yvonne as Estate Trustee.

[6] Teresa required ankle surgery in 2015 and 2016. Alexander became Teresa’s primary caregiver although they had the assistance of a PSW for four hours a day, three days a week. Joanna states that Alexander showed signs of decline and difficulty in carrying out everyday tasks, such as preparing meals, and did not accept her help. Joanna states that Alexander described episodes in 2015 and 2018 which she states displayed “anger, rage and bullying behaviour” that “extended beyond his children to his wife”. She also states that his memory faltered starting in about 2017. Joanna also expressed her displeasure to Yvonne that she was their parents’ treating physician and questioned “her ability to act impartially and in their best interest”. Joanna states that two family meetings in December 2019 regarding her parents’ personal care were unproductive.

[7] In January 2020, Joanna states that Alexander took drastic and concerning steps with respect to joint assets and estate planning. First, he took all of Teresa’s jewelry from a safety deposit box and gave it to Yvonne. Second, he met with a lawyer and an accountant to conduct various estate planning transactions including the preparation of a new Will. Joanna believes that Alexander executed a Will in April 2020 and she expressed concern that Yvonne may have pressured him to sign it. Joanna conducted a title search of the home and learned that title to the jointly held home had been severed.

[8] In April 2020, Joanna and AJ retained Mr. Tupman, who sent the following letter dated April 23, 2020, to Yvonne:

It has come to our clients’ attention that on or about January 17, 2020, your father Alexander Opalinski Senior (“Mr. Opalinski”), attended at a meeting with a lawyer named Cynthia Woods for the purposes of conducting various Estate planning transactions, including the preparation and execution of a new Last Will and Testament.

Our clients understand that this meeting was coordinated by you, and that you were present at the said meeting with your father and Ms. Woods. Our clients have now had an opportunity to review a copy of the Draft Will prepared by Ms. Woods, along with the reporting letter which accompanied the Draft Will. The Draft Will significantly departs from the Estate planning previously, and consistently undertaken by Mr. Opalinski.

Some of the most significant differences between Mr. Opalinski’s previous Estate planning and the Estate planning now contemplated are:

• the Reporting Letter indicates that Mr. Opalinski is considering severing the joint tenancy in his house which he has owned for decades as a joint tenant with Mrs. Teresa Opalinski;
• the Draft Will purports to name Mr. Opalinski’s accountant as Mr. Opalinski’s primary Estate Trustee (he had never previously been referenced in any Will known to our clients);
• the Draft Will creates a spousal trust for the benefit of Teresa Opalinski; and
• the Draft Will refers (as does the Reporting Letter) to the conveyance of an interest in the family cottage to our client Alexander Opalinski junior.

The changes to Mr. Opalinski’s Estate planning are surprising to our clients, to say the least. However, more pressingly, these proposed changes to Mr. Opalinski’s Estate planning significantly impact the interests of Teresa Opalinski, who has proprietary and spousal rights to the assets and property with which Mr. Opalinski is attempting to deal. Moreover, our clients are concerned that Mr. Opalinski and Mrs. Opalinski’s prior Estate plan may have incorporated mutual intentions/mutual Wills, and the steps Mr. Opalinski is attempting to take cannot be unilaterally executed.

Our clients are concerned that you may be becoming inappropriately involved in the Estate planning and affairs of your parents. Your facilitation of the meeting with Ms. Woods, as well as your attendance at that meeting, are troubling and at a minimum, constitute suspicious circumstances which may indicate the potential of undue influence over the intentions of Mr. Opalinski. Furthermore, our clients have learned of numerous instances in which you have provided medical care and prescribed medical prescriptions to your parents despite your familial relationship and prima facie conflict of interest and the contrary advice of your parents’ regular physicians.

Based on our clients’ discussions with their parents, they understand that Joanna Opalinski is or may be named as Attorney for Property for and on behalf of Mrs. Opalinski, and you are or may be named as Attorney for Property for and on behalf of Mr. Opalinski. Our clients have not been provided with copies of any Power of Attorney documents, but they seek clarity regarding the respective rights and fiduciary responsibilities owing by each of the Opalinski children towards their parents. To the extent you are in possession of any Power of Attorney documents or are apprised of the appointments of you or your siblings as Attorneys in any capacity on behalf of your parents, our clients would appreciate receiving confirmation of same.

The matters described in this letter bear the potential for unfortunate family conflict which could result in steps being taken by our clients to commence litigation in the Superior Court to protect the interests of Mr. and Mrs. Opalinski respectively. In an effort to resolve any issues of contention before this dispute further progresses, our clients propose that all parties to this matter participate in a pre-litigation mediation before a mediator. Our clients hope you will see the benefit of engaging in such a dispute resolution process.

In the interim, before a resolution is reached on the issues referred to herein, our clients ask that you take no steps to influence or execute any amendments to your parents’ Estate planning and that you confirm your agreement to such a “standstill”. Similarly, our clients request confirmation that you will cease providing medical treatment to your parents and that treatment and care decisions on behalf of your parents be left to their physicians and as necessary, their respective Attorneys for Personal Care.

Given the urgency of this matter, we ask that you provide us with a response including confirmation of your agreement to the terms contained in this letter within 5 business days of today’s date.

[9] Joanna alleges that Alexander was irate with her later that day and that he yelled and threatened both her and Teresa. Teresa stayed with Joanna for about two weeks following this episode.

[10] On May 7, 2020, Alexander’s lawyer, Ronald Lackmansingh, sent a letter demanding that Teresa be returned home. This letter went on to state:

I have had the opportunity to discuss with Mr. Opalinski Sr. the matters raised in your letter. He has assured me that his decision to retain Cynthia Woods in regards to his estate planning matters was his alone, and was not co-ordinated by Dr. Yvonne Opalinski, nor was Dr. Yvonne Opalinski present when he met with Ms. Woods.

Mr. Opalinski Sr.’s position is that he is free to plan his estate as he sees fit and to retain counsel to assist him in doing so, that he is entirely capable of making decisions in regards to his estate, that Alexander Opalinski Jr. and Joanna Opalinski have no basis for seeking to intervene in those decisions, and that in any event, their concerns, as expressed in your letter, are entirely without merit. Further, I do not understand that you represent Teresa Opalinski, and you therefore have no basis for raising any concerns on her behalf.

[11] Mr. Tupman’s response dated May 8, 2020, states:

Your client is not in a suitable position to be making care decisions for Teresa. His temper interferes with his ability to act in her best interests, not to mention his other ailments and frailties that impair his ability to do so, including his own cognitive decline. The assistance of the PSW for only 12 hours per week is entirely insufficient and simply does not make up for Alexander Sr.’s shortfalls in providing for Teresa’s care.

Your client is also not a suitable person to manage Teresa’s property. Contrary to the assertions made in your letter, Alexander Sr. does not have the right to deplete assets which are at least half owned by Teresa, and the concerns with respect to his estate are accordingly far from resolved. Alexander Sr. is now in an irreconcilable conflict by virtue of having depleted Teresa’s assets. Teresa is in need of a secondary party to properly safeguard her financial interests, which your client has blatantly disregarded by virtue of his recent conduct with respect to his estate.

With respect to your client’s comment regarding Teresa’s lack of capacity and cognitive wellbeing, to my clients’ knowledge, Teresa has never had a formal capacity assessment, nor has a formal diagnosis of Alzheimer’s and/or dementia ever been made. Kindly advise if this is incorrect. In any event, from my clients’ perspective, they agree that Teresa likely lacks capacity in several respects. This is precisely why Teresa needs protection. Given her cognitive state, she may be unable to raise concerns on her own behalf, and considering your client’s behaviour, she needs a proper fiduciary to act in her best interests with respect to both property and personal care.

If your client does not or cannot produce a Power of Attorney document to us demonstrating our client Joanna’s appointment to this role, our clients will be bringing an application for guardianship for Teresa so as to ensure her continued safety and protection. They will also be seeking an immediate geriatric assessment for her to determine her ongoing care and medical needs. …

Notwithstanding the above, I confirm that my clients will oblige with the request set out in your letter to facilitate the “return” of their mother to the home. They will do so at 1:00pm. Your client should be well aware that the 11:00 a.m. timeline does not work well with Teresa’s morning routine. However, I note that Teresa is not being held at Joanna’s house against her will, contrary to the implications made in your letter. Accordingly, if Teresa does not wish to get out of the car on Saturday upon arriving at her home, Joanna will not force her to do so. Joanna has never and will never force her mother to do something against her wishes. …

[12] By letter dated May 25, 2020, Mr. Lachmansingh sent a copy of various powers of attorney to Mr. Tupman and went on to state:

Having regard to the foregoing documents, it is beyond question that Alexander Opalinski Sr. has authority to manage Teresa Opalinski’s property and personal care. My client denies that your clients have any legitimate basis for challenging his authority in this regard, and he declines to participate in your proposed Mediation. While the allegations contained in your letters of May 14 and 22, 2020, are denied, he does not propose to offer a response as he considers this matter closed.

[13] This family dispute was not closed and the applicants went on to commence the first two applications described below.

Application – Court File No. CV-20-00003063-00ES

[14] On July 14, 2020, Joanne and AJ commenced an application, amongst other things, for an Order: (a) suspending Alexander from continuing to act as Teresa’s attorney for property and appointing Joanna, AJ and Yvonne as joint attorneys for property for Teresa; (b) suspending Alexander from continuing to act as Teresa’s attorney for personal care and appointing Joanna and Yvonne as joint attorneys for personal care.

[15] A scheduling appointment was held on August 14, 2020. The parties agreed to judicial mediation and a timetable for the delivery of responding materials. On October 19, 2020, judicial mediation was held. The parties agreed that Teresa’s family doctor would be contacted by Alexander for her opinion as to whether Teresa required a medical needs assessment and that the parties would conduct a family gathering by virtual means.

[16] On August 4, 2021, a case conference was held. It was ordered that the application be scheduled for a hearing on January 28, 2022 and that a timetable be agreed upon for cross‑examinations. The court also ordered that a visit occur between Teresa and her children and grandchildren, virtual or in-person, as soon as possible.

[17] Joanna was cross-examined on her affidavits on October 29, 2021 and November 1, 2021.

[18] In November 2021, the applicants made a motion for an order in-person access to Teresa.

[19] On November 29, 2021, the applicant attended a third day of cross-examination in relation to her affidavits filed in support of this application.

[20] On January 7, 2022, Alexander brought a motion to strike the application as a result of Joanna’s alleged failure to answer proper questions, or alternatively, an order requiring her to answer all undertakings and questions put to her during her cross-examinations held on October 29, 2021 and November 1, 2021.

[21] On January 18, 2022, Alexander was cross-examined on his affidavit sworn November 1, 2021. Joanna’s cross-examination was also continued on this date.

[22] By cross-motion dated January 19, 2022, Alexander sought an adjournment of the applicant’s access motion and a court ordered capacity assessment of Teresa.

[23] By motion dated January 27, 2022, the applicants sought to appoint legal representation for Teresa pursuant to section 3 of the Substitute Decisions Act, 1992.

[24] On January 28, 2022, the above motions came on for a hearing. The applicants’ access motion did not proceed on consent of the parties. The court ordered that the application that had been scheduled to be heard on April 1, 2022, would be adjourned to June 17, 2022. The applicants’ motion for the appointment of section 3 counsel for Teresa was scheduled to be heard on March 25, 2022. A full day of judicial mediation was to be held on April 1, 2022. Undertakings and refusals were to be addressed at a case conference on April 27, 2022.

[25] Teresa passed away on January 31, 2022. In accordance with the terms of Teresa’s Will, Joanna is the Estate Trustee for Teresa’s Estate.

[26] This application has been largely dormant since Teresa died.

[27] At a scheduling appointment held on December 11, 2023, Sanfilippo J. noted that the parties agreed that this application had been rendered moot by Teresa’s death and that the applicants sought to argue entitlement to their costs.

[28] On December 28, 2023, the respondents Alexander and Yvonne brought a motion for an order dismissing this application on a without costs basis. The grounds for this motion are that: (a) all parties to the application have agreed that the application was rendered moot by Teresa’s death; (b) the application was never argued on its merits.

[29] On January 19, 2024, the applicants, Joanna and AJ, brought a motion for, amongst other things, that: (a) Yvonne pay costs on a substantial indemnity basis; (b) alternatively, that Alexander pay costs on a full indemnity basis; (c) in the further alternative, that the applicants costs be paid on a full indemnity basis from the assets of Teresa’s Estate; (d) in the further alternative, that the applicants’ costs be paid by Yvonne and/or Alexander on a partial indemnity basis; (e) in addition, that Yvonne and Constantine, a non-party, be ordered to pay punitive damages in the amount of $50,000.00.

Motion for Dismissal of Application and Cross-Motion for Costs

[30] This motion was heard on July 3, 2024.

[31] Although the merits of this application have not been heard or determined, the applicants, Joanna and AJ, submit they are entitled to their costs for the following reasons:

(a) They brought this application with a view to protecting Teresa’s best interests;

(b) Yvonne and the non-party Constantine filed two false affidavits, made multiple false allegations of criminal wrongdoing, sought to make Joanna’s purported medical history the focus of the litigation;

(c) Yvonne abused the cross-examination process with questions that were scandalous.

[32] The applicants seek their costs of $235,633.17. Yvonne states that she has incurred costs of this application in the amount of $154,190.60 and that Alexander has incurred costs of $90,600.00.

[33] In her responding affidavit, Yvonne states:

The within proceeding arose as a result of the applicants’ distrust and suspicion of both my father’s motivations in caring for my mother, as well as my own. Spurious allegations were made by the applicants including, without limitation, elder abuse, neglect and financial misappropriation. My father and I at all times acted reasonably in the face of the applicants’ egregious allegations and the relief sought. The underlying issues in the application were vigorously contested.

Essentially, both the applicants and my father and I have had competing positions regarding my mother’s guardianship and we have both alleged improper motives and wrongdoing against the other. Determination of the issues would have required a full hearing on the merits, which did not occur.

[34] None of the cases provided by the applicants were on point. The applicants were unaware of any cases where costs had been awarded in a guardianship proceeding, or any other similar proceeding, where the allegedly incapable person had died before the determination of the merits of the application. Further, the applicants provided almost no analysis on how this court’s discretion to award costs under the Rules of Civil Procedure could be justified in such circumstances, including the request for costs against a non-party.

[35] The legal principles for the award of costs were described by Sanfilippo J. in Bradshaw v. Hougassian, 2023 ONSC 5639

7 Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides the Court with discretion in the determination of costs. The principles to be applied by the Court in the exercise of this discretion includes the factors enumerated in Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In consideration of these principles, the overarching objective is to determine whether a party has established an entitlement to an award of costs and, if so, “to fix an amount of costs that is objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case:” Apotex Inc. v. Eli Lilly Canada Inc, 2022 ONCA 587, [2022] O.J. No. 3632, at para. 61, citing Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), at para. 26. In Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12, leave to appeal to the SCC refused, [2019] S.C.C.A. No. 82, Nordheimer J.A. stated that “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.”

8 The Court of Appeal has instructed that the purposes of an award of costs are to indemnify the successful party of the legal costs they incurred; to encourage settlement; to deter frivolous actions and defences; and to discourage unnecessary steps that unduly prolong the litigation: 1465778 Ontario Inc. v. 1122077 Ontario Ltd., 82 O.R. (3d) 757 (C.A.), at para. 26; Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), at para. 22.

10 The issue of entitlement to an award in costs is informed by the “result in the proceeding”, a factor set out in Rule 57.01(1). The case law has well-established that absent special circumstances, “costs follow the event”: Bell Canada v. Olympia & York Developments Ltd. (1994), 111 D.L.R. (4th) 589 (Ont. C.A.); Yelda v. Vu, 2013 ONSC 5903, [2013] O.J. No. 4246, at para. 11, leave to appeal refused, 2014 ONCA 353; St. Jean v. Cheung, 2009 ONCA 9, [2009] O.J. No. 27, at para. 4; 1318706 Ontario Ltd. v. Niagara (Municipality) (2005), 75 O.R. (3d) 405 (C.A.), at paras. 48‑52.

[36] There has been no determination on the merits of this application for guardianship. As such, the applicants cannot claim “success” on this application, nor can success be presumed or anticipated given my review of the materials. As a result, the applicants also claim costs of this application from the respondents on the basis that the respondents’ litigation conduct was “improper, vexatious and unnecessary”. However, the applicants also made serious allegations of professional misconduct against Yvonne which were not substantiated. Both parties have made allegations of inappropriate litigation conduct. In my view, these applicants’ allegations are an insufficient basis to award costs against the respondents.

[37] In the alternative, the applicants also seek their costs from Teresa’s Estate.

[38] In Fiacco v. Lombardi, [2009] O.J. No. 3670, D.M. Brown, J. as he then was, stated at paras. 31-37:

31 The SDA does not deal specifically with the costs of guardianship applications or subsequent motions for directions. Section 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure therefore govern.

32 In Salter v. Salter Estate, [2009 CarswellOnt 3175 (Ont. S.C.J.)] I wrote about cost claims in litigation involving the estates of deceased persons:

[5] One final point. In his written submissions counsel for Ms. Salter argued that "as a matter of principle and practice the costs of contentious estate matters are generally paid from the estate itself." With respect, that is not a correct statement of the law. As the Court of Appeal made clear in McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435 (Ont. C.A.), estate litigation, like any other form of civil litigation, operates subject to the general civil litigation costs regime established by section 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, except in a limited number of circumstances where public policy considerations permit the costs of all parties to be ordered paid out of the estate. Those limited circumstances exist where the litigation arose as a result of the actions of the testator or those with an interest in the residue of the estate, or where the litigation was reasonably necessary to ensure the proper administration of the estate: McDougald Estate, paras. 78 to 80.

[6] From a year of acting as administrative judge for the Toronto Region Estates List I have concluded that the message and implications of the McDougald Estate case are not yet fully appreciated. A view persists that estates litigation stands separate and apart from the general civil litigation regime. It does not; estates litigation is a sub-set of civil litigation. Consequently, the general costs rules for civil litigation apply equally to estates litigation - the loser pays, subject to a court's consideration of all relevant factors under Rule 57, and subject to the limited exceptions described in McDougald Estate. Parties cannot treat the assets of an estate as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation. The "loser pays" principle brings needed discipline to civil litigation by requiring parties to assess their personal exposure to costs before launching down the road of a lawsuit or a motion. There is no reason why such discipline should be absent from estate litigation. Quite the contrary. Given the charged emotional dynamics of most pieces of estates litigation, an even greater need exists to impose the discipline of the general costs principle of "loser pays" in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes.

Those comments apply with equal force to capacity litigation involving incapable persons, with some modification to fit the particularities of guardianship applications.

33 The exercise of the court's discretion in respect of cost claims in capacity litigation should reflect the basic purpose of the SDA - to protect the property of a person found to be incapable and to ensure that such property is managed wisely so that it provides a stream of income to support the needs of the incapable person: SDA, sections 32(1) and 37. To that end, when faced with a cost claim against the estate of an incapable person, a court must examine what, if any, benefit the incapable person derived from the legal work which generated those costs.

34 Broadly speaking, applications for the appointment of a guardian arise in two circumstances: (i) the incapable person did not execute a continuing power of attorney, so no person exists to manage her property during her incapacity, or (ii) difficulties exist regarding the exercise of an existing power of attorney - e.g. conflict amongst the attorneys, as in the present case - so a guardian is required to clarify the situation and to regularize the management of the property of the incapable person. If an application to appoint succeeds, then it is the job of the court to assess what costs of the application benefited the incapable person.

35 Most applications are unopposed. If the court appoints a guardian of property, then the incapable person has received a benefit because her property will now be managed for her benefit. In such cases it will be up to the court to consider the reasonableness of the costs claimed against the estate of the incapable person.

36 Contested guardianship applications are more problematic. While bona fide disputes may exist amongst those interested in the well-being of the incapable person as to who should be appointed her guardian, a significant risk exists that a contested guardianship application may lose sight of its purpose - to benefit the incapable person - and degenerate into a battle amongst siblings or other family members, some of whom may have only their own interests at heart. In such circumstances courts must scrutinize rigorously claims of costs made against the estate of the incapable person to ensure that they are justified by reference to the best interests of the incapable person.

37 I must emphasize that it would be a serious mistake for members of the Bar to presume that all parties to contested capacity litigation will have their costs paid by the estate of the incapable person. Such an attitude would misapprehend the principles which must guide the court's exercise of its discretion on costs. [Emphasis added]

[39] As noted by Spies J. in Ziskos v. Miksche, [2007] O.J. No. 4276, at para. 75:

The court has a responsibility to ensure that legal costs incurred on behalf of vulnerable persons are necessary and reasonable and for that person's benefit, before ordering that such costs be paid by the assets or estate of the vulnerable person.

[40] Once again, it should be noted that the applicants were not successful on this application. Further, the applicants submit that the costs they incurred in this application were reasonable and necessary as “… they were menaced with permanent estrangement from their beloved mother …”. However, the Application does not asset a claim for access and barely mentions access being a concern. In my view this case was a battle between siblings which resulted in their mother becoming a pawn in their own ever escalating conflict. This battle, represented by this application, was not for Teresa’s benefit. Each party should bear their own costs. Further, the applicants have not established that they are entitled to recover their costs from Constantine.

Application – Court File No. CV-22-00680973-00ES

[41] On May 11, 2022, Joanna, in her capacity as Estate Trustee, commenced this application for, amongst other things, an order that:

(a) Alexander forthwith provide Joanna with an informal accounting of all actions taken by him in his capacity as Teresa’s attorney for property from July 5, 2015, until her death on January 31, 2022;

(b) Alexander commence an application to pass his accounts for the administration of Teresa’s property from July 5, 2015, until her death;

(c) Yvonne and Constantine pass their accounts as de facto attorneys for Teresa and trustees de son tort for her estate;

(d) Joanna be granted immediate access to Alexander’s home, including the immediate delivery of a key, in between the hours of 11:00 am and 4:00 pm on Saturdays on three hours notice;

(e) Teresa’s Estate owns a one-half interest in the cottage property;

(f) Alexander, Yvonne and Constantine shall be restrained and prohibited from disposing of or dealing with the assets of Teresa’s Estate;

(g) a declaration that Alexander breached his fiduciary duties owed to Teresa in his capacity as her attorney for property by preferring his own interests over Teresa’s interests;

(h) requires Alexander to pay restitution to the Teresa’s Estate on account of his breach of fiduciary duty;

(i) Alexander breached his fiduciary duty owed to Teresa as attorney for personal care by failing to provide adequate and appropriate care for Teresa and by failing to provide Joanna with access to Teresa as supportive and loving family members;

(j) a declaration that the transfer of interests in the home and the cottage to Yvonne and Constantine on February 23, 2022, were procured by undue influence and that such transfers are void;

(k) a declaration that all payments of $500 or more during the period January 1, 2018 to January 31, 2022, are void and that such amounts are impressed with a constructive or resulting trust for the benefit of Teresa’s Estate;

(l) Alexander, and/or Yvonne and Constantine were unjustly enriched by misappropriating property belong to Teresa during her lifetime and property belonging to Teresa’s Estate.

[42] This application was amended on March 7, 2023, to seek an order that Constantine and Yvonne shall facilitate immediate in-person access between Alexander and his other children, Joanna, AJ as well as Joanna’s children on every Saturday for at least two hours each visit.

[43] On this motion, dated March 15, 2023, the applicant seeks the following order:

(a) an order that Constantine and Yvonne shall facilitate immediate in-person access between Alexander and his other children, Joanna, AJ as well as Joanna’s children on every Saturday for at least two hours each visit.

(b) an order that Joanna, AJ as well as Joanna’s children may make additional visits to Alexander and that Constantine and Yvonne shall not unreasonably deny them access to Alexander.

(c) an order that if Constantine and/or Yvonne take the position that Alexander does not wish to have Joanna, AJ and/or Joanna’s children visit, then Constantine and/or Yvonne shall produce some evidence that this is indeed Alexander’s wish; their word alone shall not suffice.

[44] Joanna states that she has not been allowed to see or speak to Alexander since May 2020. Joanna states that she was also barred access to her mother Teresa prior to her death on January 31, 2022. However, Alexander’s lawyer has advised Joanna and AJ that Alexander does not wish to see Joanna and Alex John. Joanna believes that Alexander’s counsel has been taking instructions from Constantine and Yvonne rather than Alexander.

[45] The respondents’ position was outlined in Mr. Juriansz’s letter dated February 28, 2023 to counsel for the applicant:

… I wish to bring to your attention the fact that your client does not have standing in this proceeding to seek this relief.

Access to Mr. Opalinski Sr. must be sought within the context of an Application for Directions under the Substitute Decisions Act. Leave is required. Further, your client must seek such access in her personal capacity, utilizing her own resources. It is not appropriate, nor is it authorized under the Trustee Act, for your client to seek relief of this nature as estate trustee of the Estate of Teresa Opalinski. What is more, your client proposes to seek access to Mr. Opalinski Sr. presumably as a supportive family member in the very proceeding initiated by your client wherein she seeks to recover significant relief from Mr. Opalinski Sr. …

Further, even if such standing existed, which it does not, Mr. Dalamagas, in his capacity as attorney for personal care of Mr. Opalinski Sr has a duty to make decisions on behalf of Mr. Opalinski Sr in accordance with the principles as set out in section 66 of the Substitute Decisions Act. Mr. Dalamagas is aware of Mr. Opalinski Sr.’s wishes and instructions applicable to contact with your client, as expressed by Mr. Opalinski Sr. while capable. Mr. Opalinski Sr did not wish to have any contact with your client and I understand this was expressed to your office in writing on a number of occasions through Mr. Opalinski Sr.’s former counsel. As you know, Mr. Dalamagas is required, as attorney for personal care, to make decisions in accordance with such wishes and instructions.

To provide you with further evidence of Mr. Opalinski Sr.’s wishes concerning your client, I am providing you with Mr. Opalinski Sr.’s own handwritten notes relating to both Joanna Opalinski and Alexander Opalinski Jr. These handwritten statements were made between May 2020 and November 2021 and clearly document Mr. Opalinski Sr.’s feeling with respect to contact with your clients.

[46] Alexander expressed these wishes in writing as follows:

(a) A handwritten note to his lawyer dated May 14, 2020 states:

I am not interested in any meetings for the purpose of planning my estate with Joanna and Alexander John.

It is my right to plan my affairs without any interference from others.

We have had two previous meetings (Joanna, Alex J. and Yvonne). During these meetings Joanna insisted on taking control of Mama’s and my estates.

I clearly see from the current correspondence Joanna’s and Alex’s greed with respect to our finances. …

(b) A handwritten note to his lawyer dated May 24, 2020 states:

… I do not want any contact with Joanna or Alex Jr.

(c) A handwritten note to his lawyer dated June 26, 2021 states:

Dear Ron. I would like to see no involvement by Joanna with respect to Mama’s or my health. She is no expert in medicine. Please let her know.

(d) A handwritten note to his lawyer dated November 2, 2021 states:

Dear Ron. No Joanna in this house ever. I am simply afraid of her in this house. Please prevent her from doing so.

[47] I agree with the respondents’ submissions. An attorney for personal care shall seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person: SDA, ss. 66(6), 67(1). A motion under s. 68(2) of the SDA may be brought for directions in respect of a matter arising under the power of attorney. The applicant has not brought any such motion. Such motion could have been brought in her personal capacity. Her request for access, in her capacity as Estate Trustee, has no relationship to the administration of Teresa’s estate. Although Alexander was assessed as being incapable for personal care and property decisions on August 4, 2022, his wishes prior to that time were clear in that he did not want contact with Joanna or AJ. Given the allegations that they made against him, it is hardly surprising that he felt that way. The applicant’s assertion that the respondents’ ego or self‑interest was at play is unfounded. They were simply acting on Alexander’s wishes.

Application – Court File No. CV-22-00689206-00ES

[48] On October 25, 2022, Alexander, by his Litigation Guardian, Constantine, commenced an application for an order removing Joanne as the estate trustee of Teresa’s Estate and an order appointing Alexander as the estate trustee of Teresa’s Estate, or alternatively, the appointment of an independent estate trustee, or in the further alternative the appointment of an independent estate trustee during litigation to administer Teresa’s Estate on an interim basis.

[49] The grounds for passing over an estate trustee were described by Sanfilippo J. in Sassano v. Iozzo, 2024 ONSC 1517 as follows:

13 The grounds for passing over an estate trustee are the same as the grounds for removal of an estate trustee: Windsor, at para. 35; Ford v. Mazmann, 2019 ONSC 542, 45 E.T.R. (4th) 133, at para. 18. The Court of Appeal provided guidance on the proper legal test for passing over an estate trustee in Chambers Estate v. Chambers, 2014 ONCA 714 at paras. 95‑96:

The applications judge was fully alive to the legal principle that the court should not lightly interfere with a testator's choice of the person to act as his or her estate trustee: Re Weil, [1961] O.R. 888 (C.A.), at p. 889. Just as a court should remove an estate trustee only on the "clearest of evidence", so too they should be reluctant to pass over a named executor unless "there is no other course to follow": Windsor, at para. 41, citing Crawford v. Jardine (1997), 20 E.T.R. (2d) 182 (Ont. C.J. (Gen. Div.)), at para. 18. As Wright L.J. explained, "passing over of an executor and granting administration to other parties is an unusual and extreme course, though it is within the discretion of the Probate Court": Re Leguia (No. 2) (1936), 155 L.T.R. 270 (C.A.), at p. 276.

Thus, the wishes of the testator will generally be honoured, "even if the person chosen is of bad character": Carmichael Estate (Re) (2000), 46 O.R. (3d) 630 (S.C.), at para. 17. In fact, an executor named in a will should not be passed over simply because he or she is of bad character or bankrupt, or there is likely to be friction between co-executors: see Harris v. Gallimore (1925), 57 O.L.R. 673 (C.A.), at p. 678; Re Agnew, [1941] 4 D.L.R. 653 (Sask. C.A.), at p. 657; Re Wolfe (1957), 7 D.L.R. (2d) 215 (B.C.C.A.), at p. 221; and Crompton v. Williams, [1938] O.R. 543 (H.C.), at pp. 586-87. That being said, courts have passed over an executor because he was in a conflict of interest with the estate (e.g. Re Becker (1986), 57 O.R. (2d) 495 (Surr. Ct.), at pp. 498-99; Thomasson Estate (Re), 2011 BCSC 481, [2011] B.C.W.L.D. 4763, at paras. 29-30) or because she had a conflict and was in poor health (e.g. Re Bowerman (1978), 20 O.R. (2d) 374 (Surr. Ct.), at p. 377).

14 Whether in the case of the removal or the passing over of an estate trustee, "the Court's main guide should be the welfare of the beneficiaries": Kinnear v. White, 2022 ONSC 2576, at para. 11, citing Crawford v. Jardine (1997), 20 E.T.R. (2d) 182 (Ont. Gen. Div.), at para. 18; Henderson v. Sands, 2023 ONSC 897, 85 E.T.R. (4th) 182, at para. 8; Radford v. Radford Estate (2008), 43 E.T.R. (3d) 74, at para. 103; St. Joseph's Health Centre v. M. (J.), 2014 ONSC 100, at para. 26, applying the statement by Lord Blackburn in Letterstedt v. Borers (1884), 9 App. Cas. 371: "In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture beyond the very broad principle above enunciated, that their main guide must be the benefit of the beneficiaries."

[50] As noted, Alexander is the sole beneficiary of Teresa’s Estate.

[51] Joanna has taken the position that Alexander misappropriated property from Teresa prior to her death. Given that circumstance, and all the other circumstances and claims that she has made as described above, I find that it is not in Alexander’s interest for Joanna to be removed as estate trustee.

[52] Given the acrimony within this family and its litigious history, I find that it would be preferable to appoint an independent trustee as estate trustee rather than appoint a family member. I direct the parties to confer and jointly propose an independent trustee to the court failing which I may direct that one of the parties select an independent trustee.

Order

[53] Order to go as follows:

(i) In respect of the application in Court File No. CV-20-00003063-00ES, the respondents’ motion for dismissal of that application is granted. The applicants’ cross‑motion for the payment of costs and punitive damages is dismissed.

(ii) In respect of the application in Court File No. CV-20-00680973-00ES, the applicant’s motion for access is dismissed.

(iii) In respect of the application in Court File No. CV-20-00689206-00ES, the application for the removal of Joanna Opalinski as Estate Trustee of the Estate of Teresa Opalinski is granted.

(iv) The parties represented by Mr. Juriansz shall serve and file their written costs submissions not exceeding three pages in length (excluding a costs outline and offers to settle, if any) within 7 days hereof, for each of the above matters and the parties represented by Mr. Tupman shall serve and file responding costs submissions, not exceeding three pages in length (excluding a costs outline and offers to settle, if any), within 7 days thereafter. Reply submissions, not exceeding two pages, may be served and filed within 7 days of service of Mr. Tupman’s costs submissions.

M.D. Faieta, J. Date: October 22, 2024