Endorsement
Introduction
1Before me is an unfortunate contested application to pass accounts; an application, brought by an estate trustee with a will, in response to an order obtained without notice by beneficiaries named in the deceased’s will.
2I say “unfortunate” because it is always sad to see members of an extended family divided by contentious estate litigation; litigation inherently focused on property which the deceased might very well have decided to leave entirely to charity, especially if he or she had been able to foresee the rancour doing otherwise would cause among his or her surviving relatives.
3However, the lamentable nature of such disputes is clearly compounded when the time and resources devoted to such inherently emotional disputes become disproportionate to the underlying sums involved; a situation which, in my view, frankly seems to have developed in relation to this particular litigation.
4For such reasons, in approaching this matter, (including contentions by each “side” of this dispute that the other has failed to ensure strict compliance with applicable rules and agreed deadlines), I have been particularly mindful of Rules 1.04(1) and 1.04(1.1) of the Rules of Civil Procedure, requiring courts:
a. to construe those rules liberally to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits; and
b. to make orders and give directions that are proportionate to the importance and complexity of the issues and amounts involved in a proceeding.
5As emphasized by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, at paragraphs 28-33, such codifications reflect a need, present in any event, for judges to actively approach and manage the legal process in line with the principle of proportionality. In particular, while the principal goal of ensuring a fair process that results in a just adjudication of a dispute always remains the same, courts are also to be mindful that a fair and just result will not be achieved if the process adopted is disproportionate to the nature of the dispute and the interests involved.
6At the same time, the Supreme Court of Canada nevertheless also emphasized that lawyers are expected to play a role in that regard; e.g., by considering their clients’ limited means, and the nature of the case, in adopting appropriate means to address a dispute and achieve a fair and just result. [1]
7Given the relative paucity of estate assets and potential estate assets in this case, I certainly was not inclined to direct this matter to trial, (as suggested by the objectors), if adequate justice could be achieved having regard to the existing record presented for my consideration.
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- Threshold Dispute: Ex Parte Order
- Threshold Dispute: Scope of Accounting
- Dispute Regarding Life Insurance Policy
- Dispute Regarding Roofing Agreement
- Dispute Regarding Joint CIBC Account
- Residual Issues
- Judgment and Costs
- Endnotes
Background
8I have reviewed and considered in detail the material filed by the parties, and my failure to mention any particular aspect of that material in these reasons should not suggest otherwise. I also will have more to say about the underlying facts in the course of these reasons.
9However, by way of general background:
a. This dispute centres on the estate of Christina Georgiou Psoma, (“Christina” [2]), who was born in Cyprus on March 16, 1935, and died here in Ontario, (in the city of Kitchener), on October 12, 2021, at the age of 86. [3]
b. Although she apparently was blessed with a large extended family, Christina herself was legally married (in Cyprus) for only a few weeks before that marriage was annulled, and never had any children. Arriving in Canada as a sponsored immigrant in or about 1970, it seems she thereafter resided with members of her extended family already living here, while also repeatedly returning to Cyprus, (where she owned real estate), for extended periods of time. Precise details of where and with whom Christina lived during her time in Canada are disputed. In particular:
i. Steve Georgiou, (“Steve”), one of Christina’s nephews and the applicant herein, says that Christina was sponsored by his family when she came to Canada, and thereafter lived “almost exclusively” with his parents, (Christina’s brother Paul Georgiou or “Paul”, and his wife Maroulla Georgiou or “Maroulla”), assisting in the raising of Steven’s biological brother, (who suffers from Down’s Syndrome), and developing a “very close relationship” with Steve through his ”whole life” as another “mother figure”. Steve says that Christina came to rely heavily upon him during her life, in relation to her activities of daily living and otherwise, especially in her later years.
ii. Zevoulla Georgiou, (“Zevoulla”), one of Christina’s nieces and one of the objectors herein, says that Christina spent a “considerable amount of time” living with Zevoulla between 1981 and 1987, (e.g., staying with Zevoulla for “several months at a time” such that the two of them became “very close”), and thereafter lived “exclusively” with Zevoulla’s parents, (Christina’s sister Evodokia Alexandrou and her husband Menelaos Alexandrou), in their apartment, and without paying rent, from 1998 to 2015. Zevoulla agrees that Christina thereafter lived with Steve’s parents, (Paul and Maroulla), from October of 2015 until Christina’s death six years later in October of 2021. Zevoulla says Christina promised Zevoulla’s mother that Christina would “take care of” Zevoulla and always be by Zevoulla’s side; e.g., to the point of Christina and Zevoulla purchasing a burial plot together with the intention of eventually being buried side by side.
c. On January 14, 2002, Christina executed her “Last Will and Testament”, a document prepared by Christina’s lawyer Steven F. McMurray and the validity of which is not in dispute. In that document:
i. Christina appointed Steve as her sole executor and trustee.
ii. After directing Steve to first call in and convert the assets of her estate, and “pay and satisfy all of [her] just debts, funeral and testamentary expenses as soon as conveniently may be” done after her death, Christina directed Steve to then distribute her remaining estate in the following manner:
- The sum of $20,000 was to be divided in equal shares among the following three individuals:
a. another niece of Christina’s named Maria Georgiou, also known as Maria Stavropoulos, (“Maria”);
b. a great-niece named Georgina Georgiou, (“Georgina”), who is Maria’s daughter; and
c. a great-nephew named Panayiotios Georgiou, (“Panayiotios”), who is Maria’s son.
Specified real estate in Cyprus comprising approximately 558 square meters, including a house thereon, located at Potamos Kampov Galine, Holaes, was to be transferred to Georgia Kalogeropoulou, (“Georgia”), another of Christina’s nieces.
Other specified real estate in Cyprus comprising approximately nine acres of vacant land located by the sea near the village of Galine, which was to be subdivided and transferred in the following specified manner:
a. two acres of the property was to be given to Steve;
b. two acres of the property was to be given to Panayiotios;
c. two acres of the property was to be given to George Georgiou, (“George”), another of Christina’s nephews;
d. two acres of the property was to be given to Evdoros Mouyiasis, (“Evdoros”), another of Christina’s nephews; [4] and
e. the remaining one acre of the property was to be given to Georgia. [5]
- Any residue then remaining in Christina’s estate was to be divided evenly between Steve and Zevoulla.
d. Although the will Christina executed in 2002 contemplated testamentary transfers of her real estate in Cyprus, it seems Christina thereafter decided to effect transfers of that property during her lifetime. In particular, she apparently began that process in or around 2018, during one of her return visits to Cyprus, and it was not disputed that Christina had disposed of all her real estate in Cyprus to various indicated members of her extended family by way of valid inter vivos transfers prior to her death. [6]
e. The applicant contends and the objectors dispute that, on March 21, 2020, Cristina also signed a document generally referred to by the parties, (and therefore similarly described in these reasons), as “the roofing agreement”. In that regard:
i. A copy of the document in question was attached as Exhibit “I” to the primary affidavit Steve swore on November 27, 2023, in support of his application to pass accounts. I have reviewed and considered the entire text of that document, and the abbreviated description set out herein should not suggest otherwise.
ii. The opening sentence of the document describes the essence of the primary agreement said to have been reached between Christina and Steve, which they were intending to document; i.e., that Cristina was agreeing to pay Steve for repairs being carried out to the roof of the house at 103 Manor Drive Kitchener, (the home where Cristina had been living for many years with Steve’s parents, who formally owned the home until they sold and formally transferred title therein to their son Steve), in exchange for Cristina receiving otherwise free rent and board for the remainder of her life.
iii. The document described the general nature of the contemplated roof repairs, including an indication that the total cost of those repairs would be $24,000.
iv. The final substantive paragraph of the document indicated that Steve would be able to “collect payment” pursuant to the agreement “at his discretion”, but was also to “keep an accounting record of all payments made” to him by Christina in that regard.
v. Final indications on the document indicate that it was signed by three people on March 21, 2020; i.e., by Steve and Christina, but also by Paul, (Christina’s brother and Steve’s father), who signed the document as a “witness”.
f. As noted above, Christina died here in Ontario on October 12, 2021, at which time her undisputed will came into effect and Steve became her estate trustee. It is also undisputed that, while Steve admittedly then took steps to administer Christina’s estate, (e.g., making various arrangements in relation to her funeral and burial, applying for the Canada Pension Plan or “CPP” death benefit of $2,500.00 to which Christina’s estate was entitled, and addressing overpayments made in relation to the Workplace Safety and Insurance Board or “WSIB” disability benefits Cristina had been receiving [7]), relying on the provisions of the will appointing him as Christina’s estate trustee, no steps were taken to formally probate the will; e.g., by the making of any formal application to be appointed as an Estate Trustee With a Will, pursuant to Rule 74.04 of the Rules of Civil Procedure.
g. On January 9, 2022, the Assumption Mutual Life Insurance Company, (“Assumption Life”), sent Steve a letter confirming that the sum of $10,006.16, representing the proceeds of Christina’s life insurance policy, (Policy number 490197), which had named Steve as its beneficiary, [8] had been deposited to Steve’s bank account.
h. On July 6, 2022, Zevoulla retained a lawyer, Richard Noll, to address concerns she had about the administration of Christina’s estate.
i. On August 29, 2022, Mr Noll wrote to and emailed Mr McMurray, (the lawyer who assisted Christina with preparation and execution of her will), indicating:
i. that he was assisting Zevoulla in “gathering information” regarding Christina’s estate;
ii. that Zevoulla understood from family members that she was a beneficiary of Christina’s estate and that Steve was the executor of Christina’s estate, but had not yet received a copy of the will or any other information; and
iii. that Mr Noll was requesting, on Zevoulla’s behalf, a copy of Christina’s will and any application for a probate certificate in that regard.
j. Zevoulla says that, on August 30, 2022, Mr McMurray responded to Mr Noll’s correspondence by way of an email indicating that, although he had prepared Christina’s will, Mr McMurray was not dealing with her estate’s administration. Mr McMurray also indicated that Christina’s original will had been sent to Tyler Hortie, a lawyer at the Cohen Highley law firm, in November of 2021.
k. Mr Hortie has provided a sworn affidavit, in relation to this application, indicating that he received a telephone call from Mr Noll about Christina’s estate on September 7, 2022. In that regard:
i. Mr Hortie says that he explained, to Mr Noll, the efforts Steve had undertaken at great personal cost to assist Christina during her life and shortly after her death, knowing that he would not be fully reimbursed given the modest size of Christina’s estate. In that regard, Mr Hortie says he essentially delivered an informal accounting to Mr Noll.
ii. Mr Hortie also says that, in response to provision of that informal accounting, Mr Noll indicated that he was “satisfied” and that Mr Hortie therefore would “most likely” not hear further from Mr Noll’s office in relation to the matter.
l. Later that same day, (i.e., September 7, 2022), Mr Hortie also sent a letter to Mr Noll which, amongst other things:
i. thanked Mr Noll for correspondence Mr Noll apparently had sent to Mr Hortie the day before;
ii. referred to a “subsequent conversation” between Mr Hortie and Mr Noll on September 7, 2022;
iii. confirmed, “as mentioned” in the conversation between the two lawyers:
that the only assets of Christina’s estate were a bank account with a balance of “about $1,000”, the “death benefit” of $2,500, “plus the lands in Cyprus”;
that Mr Hortie’s client Steve had “accrued $20,000 in personal debt to pay the funeral, headstone and other estate costs over and above what was covered by the meager estate”;
that the cash legacies specified in Christina’s will had “abated”;
that the gifts of the land in Cyprus also should have abated to pay for the debts of the deceased, but Steve had “made arrangements to transfer ownership as bequeathed in the will at his own personal cost, knowing that the shortfall in value to the estate would not be recovered and remain out of his own pocket”;
that although Mr Noll’s client Zevoulla had been named as a residual beneficiary in the will, there was no estate residue to be shared; and
that the estate had a “large account payable” to Steve personally “which would rank ahead of the cash legacy and the residual distribution if there were any assets to pay it”; and
iv. concluded with an indication by Mr Hortie to Mr Noll that he trusted the information provided was sufficient to close Mr Noll’s file in relation to the matter.
m. There apparently were no further legal communications about the matter for a year after the sending of Mr Hortie’s letter to Mr Noll on September 7, 2022. However, Zevoulla says that she grew “even more concerned” about Steve’s handling of Christina’s estate over the course of that year, causing her to retain another lawyer on August 28, 2023.
n. On September 7, 2023, Zevoulla’s new lawyers, (at the Spero Law firm), sent another letter to Mr Hortie regarding Christina’s estate. Amongst other things, that two-page letter, written by Leenat Jilani:
i. summarized the provisions of Christina’s 2002 will indicating intended beneficial distributions;
ii. reiterated Zevoulla’s concern about the administration of Christina’s estate, including the fact that “neither the cash legacy or (sic) remainder transpired”;
iii. acknowledged an understanding that “the estate” had stated “that there was no residue to share and all cash legacies and residual distribution [had] abated”;
iv. indicated Zevoulla’s concern that Christina’s estate had been “administered improperly either after or before her death”;
v. indicated a specific concern that Christina may have added Steve as “a joint owner on her bank accounts in lieu of [Steve] acting under a power of attorney”, together with an assertion that any such change was not an intention to gift any account balance, (e.g., by way of survivorship), such that any such accounts should have been held by Steve in trust for Christina’s estate, and that Zevoulla was seeking a “proper accounting of any and all bank accounts held by [Christina] personally or jointly with any third party”; and
vi. emphasized Zevoulla’s “right to seek transparency” in relation an extended list of items, including:
a “complete accounting of the estate”, including all information relating to any accounts held jointly by Christina for the three years prior to her death;
a copy of the estate’s formal passing of accounts if completed;
invoices relating to costs of the deceased’s funeral and headstone;
a notarized copy of Christina’s will;
a copy of Mr McMurray’s estate file; and
a copy of Mr Hortie’s estate file;
vii. requested an “expeditious” response to Ms Jilani’s letter “no later than September 20, 2023”; and
viii. indicated that, if the estate was “unwilling” to disclose the requested material, steps would be taken “to commence an application for passing of accounts”.
o. In his sworn affidavit, Mr Hortie emphasized that a full year had passed since the sending of his earlier letter to Mr Noll, (which had appeared to resolve the matter), and that formal steps were taken on behalf of Zevoulla to obtain an ex parte order before Mr Hortie could obtain fulsome instructions from Steve and respond to the demand letter sent by Ms Jilani on September 7, 2023.
p. In particular, on October 6, 2023, Zevoulla brought an ex parte motion in writing, pursuant to the provisions of Rules 74.15(1)(h) and 75.15(2) of the Rules of Civil Procedure, requesting an order requiring Steve to pass accounts. In that regard:
i. Zevoulla’s notice of motion specifically requested an order requiring Steve to “serve and file an application to pass accounts for the Estate of Christina Georgiou Psoma for the time period of October 12, 2021 to October 30, 2023”. It also indicated that Zevoulla had “concerns about how the Estate has been administered” by Steve, that she had “asked for transparency” and/or an accounting in that regard, and that “her requests [had] been refused”.
ii. In support of her ex parte motion, Zevoulla also swore and submitted a 40-paragraph affidavit which, amongst other things:
acknowledged that she had been provided with an attached copy of Christina’s 2002 will via Steve’s lawyer;
attached various other documents which, (in addition to Christina’s will), were limited to:
a. a statement of death in relation to Christina;
b. a copy of a document from Parkview Cemetery in Waterloo, Ontario, confirming the purchase of interment rights for two caskets and 12 cremations, and specified monument rights, granted to Christina and Zevoulla in relation to a specified cemetery plot;
c. a copy of the letter sent to Steve by Assumption Life on January 9, 2022;
d. a copy of the letter sent by Mr Noll to Mr McMurray on August 29, 2022;
e. a copy of the letter sent by Mr Hortie to Mr Noll on September 7, 2022; and
f. a copy of the letter sent by Ms Jilani to Mr Hortie on September 7, 2023;
indicated her belief that Christina had made Steve the “joint owner” of Christina’s bank accounts without any intention of gift in that regard, (in lieu of having Steve act under a power of attorney), and attributed statements to Christina wherein Christina was said to have expressed concern to Zevoulla in September of 2021 that there was “a lot of money missing” from Christina’s bank account;
attributed further statements to Christina, (said to have been made by Christina in hospital shortly before her death), indicating that she had cash on her person that she intended to give to Zevoulla, but the intended cash gift never happened, and inquiries made by Zevoulla to Steve about what may have happened to that cash were said to have been met with an indication by Steve that Christina’s nurses may have taken that cash;
indicated that Christina’s personal jewellery, (including a cross necklace Christina was said to have promised to Zevoulla’s daughter), was also “allegedly missing”;
expressed frustration that Steve disrespectfully had not consulted Zevoulla about selection of an appropriate headstone for the cemetery plot which Zevoulla intended to share with Christina;
asserted that the proceeds from the Assumption Life insurance policy had been intended to be used for Christina’s funeral expenses;
attributed various direct and indirect comments to the accused about his administration and intended administration of Christina’s estate, including reference to payment of sums to two of Christina’s cousins living in Cyprus in accordance with Christina’s supposed wishes, despite Zevoulla’s objections in that regard; and
indicated and emphasized that Steve had not probated Christina’s will, may not have obtained any clearance certificate from the Canada Revenue Agency in relation to Christina’s estate, had “not provided any accounting” in relation to Christina’s estate, and had “refused all requests for transparency” in that regard.
iii. On October 11, 2023, Justice Mitchell made an endorsement indicating that she was satisfied that the requested order could issue “without notice to the respondent estate trustee (and his counsel)”, signed the draft Order submitted with Zevoulla’s motion record, and directed that copies of the Order, endorsement and motion record be served forthwith on the respondent’s lawyer Mr Hortie via email.
iv. The resulting issued and entered Order mirrored the wording of the relief requested in the underlying notice of motion, insofar as it required Steve to “serve and file an application to pass accounts of the Estate of Christina Georgiou Psoma … for the period from October 12, 2021 to October 30, 2023”. It also required Steve to do so no later than December 1, 2023.
q. On November 30, 2023, Steve delivered his initial application record herein, providing information and documentation relating to Christina’s estate and its administration, and emphasizing that the estate was insolvent for reasons indicated therein. That application record is substantial, and I will not attempt a detailed summary of its contents here. However, it included:
i. a Notice of Application to Pass Accounts dated November 29, 2023;
ii. a supporting affidavit sworn by Steve on November 27, 2023, with 17 attached exhibits, including a draft Notice of Objection to Accounts effectively being provided to each recipient of the application record;
iii. a further but separate affidavit sworn by Steve on the same day, (November 27, 2023), verifying his attached estate accounts for the period specified in the similarly attached Order made by Justice Mitchell on October 11, 2023; and
iv. a draft Judgment on Passing Accounts.
r. An initial formal Notice of Objection to Accounts by Panayiotios and Zevoulla was delivered on January 26, 2024, leading to the delivery of an initial Reply to Notice of Objection of Accounts by Steve on February 20, 2024.
s. On or about February 28, 2024, the parties agreed on a timetable, (aspects of which are addressed in further detail below), for the completion of additional steps contemplated to prepare the contested passing of accounts for an ensuing special appointment hearing of the matter before me. In the result, both “sides” then delivered additional material in relation to the contested application to pass accounts; material which included, (but was not limited to), an Amended Notice of Objection to Accounts delivered by the objectors on April 15, 2024, (including an allegation that the putative signature of Christina on a document generally described herein as “the roofing agreement” was not valid, and referring to an expert report the objectors had obtained in that regard), and the applicant’s delivery of an Amended Reply to Notice of Objection to Accounts on July 9, 2024, wherein the applicant addressed the objectors’ allegation that Cristina’s putative signature on “the roofing agreement” was not valid. However, neither side sought to conduct any cross-examinations or examinations of any party or non-party, in relation to the material that had been filed or otherwise. Nor did either side take any additional steps to compel the disclosure and/or production of further documentation.
10Again, that overview or summary intentionally does not provide an exhaustive recitation of all the undisputed and disputed matters that were presented and/or raised in relation to this dispute, and I will have more to say in that regard during the course of these reasons.
11It nevertheless hopefully will suffice to provide adequate context for the more specific issues and arguments I was called upon to address in the course of this contested application to pass accounts.
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Endnotes
1See Hryniak v. Mauldin, supra, at paragraph 32.
2With no intended disrespect to the deceased or members of her extended family, I occasionally will employ first names in the course of these reasons in an effort to simplify matters, particularly since many members of that extended family share the same surname.
3Indications as to Christina’s precise date of death are not entirely consistent in the material presented for my consideration; i.e., with most indications referring to the Christina’s date of death as October 12, 2021, despite other indications, (e.g., in the affidavit sworn by the applicant on November 27, 2024, and an authorization for release of hospital records), that her death occurred on October 14, 2021. Again, most of the material filed, (including the notice of application herein, and documentation prepared by the funeral service providers who might reasonably be expected to have been keenly focused on Christina’s precise date of death and to have assisted in preparation of an appropriate death certificate, although one was not filed), refers to Christina having died on October 12, 2021. I accordingly accept that date of October 12, 2021, as the relevant date of death for purposes of this proceeding.
4As noted below, the material presented for my consideration included references to an individual referred to as “Doros Mouyassis”, who was said to be one of Steve’s cousins, and therefore possibly one of Christina’s nephews. The material presented unfortunately does not make it clear whether the nephew “Evdoros Mouyiasis” referred to in Christina’s will is one and the same person as the “Doros Mouyassis” (or simply “Doros”) mentioned elsewhere in the material. Although that seems likely, I have used the different appellations as they appeared in context, although nothing substantive seems to turn on the varying nomenclature.
5The will also provided that, if the said real estate could not be divided and transferred in the manner contemplated by Christina, the property was to be sold and the sale proceeds divided among the same listed beneficiaries in the same ratios as the land area ratios indicated above.
6In his application material, Steve provided true notarized copies of transfer deeds that were made available to him in that regard, translated from their original Greek into English by a certified translator. While the remaining transfer deeds and translations were not available for presentation and review, there was no suggestion during the proceedings before me that they were required to substantiate Steve’s undisputed sworn evidence that Cristina had disposed of all her real estate via the indicated transfers prior to Christina’s death. Certainly, no formal objection was raised in that regard. In particular, those who were to have received transfers of Cristina’s real estate in Cyprus via her will were notably silent about such matters after her death.
7There was no dispute that, with the applicant’s administrative assistance in providing the requisite notifications and information, and completing the requisite forms, the available WSIB benefits were redirected to Christina’s niece Maria as intended after Christina’s death. Before that was done, there nevertheless were acknowledged overpayments of WSIB benefits to Christina after she had died, (in the amounts of $571.01 and $285.37), in respect of which the applicant provided reimbursement through payments made with his personal credit card.
8In further correspondence sent by Assumption Life to Steve on November 24, 2023, (filed as an exhibit), Assumption Life confirmed that “Steve Georgiou” was the only beneficiary designation that had ever been made in relation to the relevant policy of life insurance. In particular, Assumption Life had never received any subsequent beneficiary designations.
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