Reasons for Decision

Court File No.: CV-24-87086
Date: 2025-03-07
Ontario Superior Court of Justice

Between:
Linda Kulchycki (Self-Represented)
Applicant

and

Mary Kulchycki, Nancy Kulchycki, and Diana Kulchycki
(Brad Wiseman, for the Respondents; Kayla Carr, Section 3 counsel for the Respondent, Mary Kulchycki)
Respondents

Heard: March 4, 2025

Justice L. C. Sheard

Overview

[1] This Application was brought by Linda Kulchycki (“Linda”)[1] for an order reinstating a power of attorney (“POA”) signed by her mother, Mary Kulchycki (“Mary”) on August 8, 2008, and a Codicil executed by Mary on July 25, 2008 (the “2008 Will”) (collectively referred to as the “2008 Documents”). The 2008 Will was, in fact, a codicil to Mary’s Will executed on September 2, 1970, by which Mary replaced the executors who had died – Mary’s husband and son – with Mary’s daughter-in-law, the respondent, Nancy Kulchycki (“Nancy”). Mary’s 1970 Will divided the residue of her estate equally among her three children, or the survivor of them.

[2] In her Application, Linda asserts that the 2008 Documents were fair, in that the POA named her and her sister, Diana Kulchycki (“Diana”), as co-attorneys. In addition, under the Will, Mary’s estate was divided equally between them.

[3] On November 12, 2020, Mary met with a lawyer and executed new POAs, naming Diana and Nancy as her POAs, and a new Will, a copy of which has not been produced to Linda (the “2020 Documents”).

[4] Linda asks that the 2020 Documents be set aside, asserting, among other things, that:

1. the lawyer who prepared them had a conflict of interest;
2. Nancy was involved in the making of the 2020 Documents and had a conflict of interest and should not be permitted to act as executor of Mary’s estate; and,
3. restoring the 2008 Documents would honour Mary’s long-standing wishes that Mary’s assets be divided equally between Linda and Diana and would be “thereby promoting fairness and alignment with” Mary’s original intentions.

[5] Linda filed nine affidavits on this Application. Diana and Nancy responded with affidavits sworn by Diana, by the lawyer who drew and witnessed the 2020 Documents, and by the lawyer’s assistant, who also acted as a witness on the 2020 Documents.

[6] This Application came before the court a number of times before it was heard today. In the course of those attendances, Linda was told that she needed to add Mary as a respondent on the Application. Also, by order dated January 30, 2025, the Public Guardian and Trustee was directed to appoint counsel for Mary pursuant to section 3 of the Substitute Decisions Act, 1992, SO 1992, c 30 (the “SDA”).

[7] After submissions were concluded, I dismissed the Application in its entirety. The parties then made costs submissions and I made costs awards.

[8] The parties were advised that written reasons for the dismissal and the costs awards would follow. These are my reasons.

Issues to be Decided and Position of the Parties

Relief Sought

[9] At the commencement of the hearing, Linda confirmed that the relief she sought was set out at paragraphs 1-5, and 7 of her Amended Notice of Application. The order sought at para. 6, for the appointment of s.3 counsel for Mary, was made by Bordin J., on January 30, 2025.

[10] In addition to reinstating the 2008 Documents, at the hearing, Linda also sought orders:

1. appointing Sam Hollis, Linda’s son, to be named as executor of Mary’s estate;
2. compelling Diana and Nancy to disclose all Mary’s financial and medical records relevant to Linda’s claims; and
3. a declaration confirming that Linda’s intention was to honour Mary’s longstanding wishes by ensuring that Mary’s assets are divided equally between Linda and Diana [presumably, Linda refers to a division upon Mary’s death].

Positions of the Parties

i. Mary’s Position

[11] Section 3 counsel, Kayla A. Carr, met with Mary. In accordance with usual and accepted practice, Ms. Carr provided Linda, and counsel for Diana and Nancy, with a letter by which she communicated the wishes and preferences, as expressed by Mary. Ms. Carr’s letter was uploaded to Case Center, where it was available to the court.

[12] Ms. Carr’s letter, dated February 21, 2025, advised that she had met with Mary and was able to discern Mary’s wishes as follows:

1. Mary wanted to keep Diana and Nancy as her decision-makers;
2. Mary did not want Linda to help her with her finances;
3. Mary wants Diana to help her with her money;
4. Mary is content that Linda, Nancy and Diana make care decisions, but only when Mary is unable to make those decisions on her own;
5. Mary does not wish Linda’s son, Sam Hollis, and/or Amy Pavao, to be named as executors of Mary’s estate; and
6. Mary did not want Linda to be provided with copies of Mary’s financial records/information.

ii. Position of Nancy and Diana

[13] Nancy and Diana take the position that the 2020 POAs are valid. Linda has not provided any evidence to negate their validity, nor any evidence to support Linda’s request for production of Mary’s personal and private financial and medical records.

[14] With respect to the 2020 Will, Nancy and Diana take the position that Linda is precluded from challenging its validity or Mary’s choice of estate trustees, while Mary is still living.

The Hearing

[15] Linda was provided with an opportunity to make submissions to the court. To assist her as a self-represented person, the court asked that Linda’s submissions focus on three things: 1) the order(s) she was seeking; 2) the court’s authority to grant the orders sought; and 3) the evidence before the court that supported the orders sought.

[16] In her submissions, Linda took issue with the materials placed before the court, suggesting that neither Ms. Carr’s letter, nor the responding materials filed and uploaded by Diana and Nancy, ought to be considered by the court.

[17] In her submissions, Linda misstated the content of Ms. Carr’s letter and asserted that Ms. Carr was somehow retained by or acting for Diana and Nancy. That assertion was baffling, given that Linda had sought an order appointing s. 3 counsel, which order had been granted.

[18] In her submissions, Linda also asserted that Nancy and Diana had failed to follow proper court procedures and that their responding materials ought not to be considered by the court.

[19] Linda put forth no evidence to support any of the allegations she leveled against Nancy and Diana or their lawyer or against s. 3 counsel.

Merits of the Application

[20] Linda’s own affidavits failed to contain to any evidence that Mary was incapable when she executed the 2020 Documents or that they were procured by undue influence or coercion.

[21] In the responding affidavits delivered by Nancy and Diana, the affiants state that Mary was competent when she executed the 2020 Documents; that she had independent legal advice; and offered an explanation for Mary’s decision to remove Linda as an attorney for property.

Analysis

[22] On any Application, the onus is on the applicant to establish that the court has jurisdiction to grant the order(s) requested and to put forth evidence that supports the relief sought. In this case, Linda did neither.

[23] As counsel for Diana and Nancy submitted, both in his factum and in oral submissions, a Will challenge is premature, when brought prior to the death of the testator: Palichuk v. Palichuk, 2023 ONCA 116. For that reason alone, Linda’s Application to challenge the 2020 Will (or to restore the 2008 Will) is premature. Mary is still alive.

[24] In addition, apart from asking the court to take note that Mary was 105 years old when she executed the 2020 Will, Linda put forth no evidence that might put Mary’s testamentary capacity in 2020 into question. At the time of this hearing, Mary was 109 years old. Mary clearly falls into a very exceptional group of people who have lived well beyond usual life expectancy.

[25] The affidavit of the lawyer who drafted the 2020 Documents and of his assistant, who met with Mary on two separate occasions, both say that Mary was competent to execute the 2020 Documents. On the record before me, there is no reason to question that evidence.

[26] There is neither evidence, nor law, to support Linda’s allegation that without a favourable capacity assessment of Mary, the 2020 Documents are invalid.

[27] For clarity, these reasons should not be viewed as any comment on the validity or invalidity of the 2020 Will. That issue is not, and cannot, be determined while Mary is alive.

[28] Should Linda choose to challenge the validity of the 2020 Will upon Mary’s death, there is a procedure she may follow. To the extent this Application seeks to challenge the validity of the 2020 Will and/or Mary’s choices for executor, Linda’s Application has failed.

[29] With respect to Linda’s request for an order nullifying Mary’s 2020 POA and restoring the POA signed by Mary in 2008, Linda’s Application must also fail.

[30] Linda failed to lead any evidence to support her claim that Mary was incapable of giving or revoking a POA in November 2020. The evidence by the respondents, Diana and Nancy, while limited – no medical evidence was provided – supports a finding that Mary was capable of giving and or revoking a POA in November 2020.

[31] Under section 2 of the SDA, Mary is presumed to be capable: she is a person 18 years of age or older.

[32] That presumption of capacity is enhanced by the affidavits of the lawyer and his assistant, involved in the preparation and execution of the 2020 Documents. In addition, while recognizing the frailties of the information provided by s.3 counsel concerning the wishes expressed by Mary, Mary’s views are entitled to respect and consideration. Again, Mary is still presumed to be capable.

[33] Despite the allegations levelled against Nancy and Diana, Linda offered no evidence that in the approximately four years after Mary executed the 2020 POA, Mary was not properly cared-for. Indeed, the evidence suggests otherwise. Mary is now living in a long-term care facility and, according to Linda, is receiving appropriate care and medical treatment.

[34] In other words, not only has Linda provided no evidence to support her assertion that there is anything improper about Mary’s choice to execute a new POA in 2020, she also offered no evidence to suggest that Mary’s attorneys have mismanaged Mary’s finances or failed to act appropriately.

[35] Among Linda’s complaints is that Mary’s attorney(s) have refused to provide Linda with Mary’s financial records and or her medical records. However, Linda acknowledged that Mary, herself, has chosen not to disclose her health condition to Linda and there was no evidence that Mary was not capable of doing so, had she so wished. Also, Linda acknowledged that she has visited her mother recently and has witnessed the medical treatment and care provided to Mary in the long-term care facility.

[36] Mary is entitled to her privacy. Were Diana or Nancy to capitulate to Linda’s requests to disclose Mary’s personal financial or medical records or information, they would be breaching their duty and obligations to Mary as Mary’s attorneys for property and personal care.

[37] At para. 7 of her amended Application, Linda seeks a declaration from this court, confirming Linda’s intention in bringing this Application was to honour Mary’s wishes. Such a declaration is beyond the scope of this court. In addition, based on Linda’s behaviour, I do not accept that Linda’s intention in bringing this Application had anything to do with honouring Mary’s wishes; it appears to have been more to do with ensuring that Linda inherits 50% of Mary’s estate upon Mary’s death.

Disposition

[38] For all of these reasons, Linda’s Application was dismissed.

[39] In my view, this entire Application was misguided and motivated by Linda’s concern to protect what she viewed to be her entitlement to a 50% share of her mother’s estate, upon Mary’s death.

[40] Linda’s conduct in this litigation: her refusal to accept the law as set out by counsel for Diana and Nancy; her refusal to properly amend the Application to include Mary as a responding party; and her criticism of counsel in her submissions before this court, for which there was no basis in fact or in law has added to the costs of this litigation, of which Mary will have to pay approximately $9,200.

Costs

[41] Following the dismissal of the Application, the parties were invited to make costs submissions. Counsel for Diana and Nancy and section 3 counsel made submissions respecting costs. Linda took no position with respect to the costs claimed, other than to ask that any costs awarded against her be funded from her share, if any, of Mary’s estate, upon Mary’s death.

[42] Costs were awarded as requested and as supported by the Bill of Costs submitted by s.3 counsel and the Costs Outline submitted by counsel for Diana and Nancy.

[43] As per the order of Bordin J. appointing section 3 counsel, Mary is responsible for paying the fees of s. 3 counsel, whose fees I fixed at $7,000, all inclusive, an amount I found to be reasonable.

[44] Counsel for Diana and Nancy submitted, persuasively, that they should not be personally exposed to paying costs of responding to the Application, given that they were responding in their capacity as Mary’s POAs.

[45] Counsel for Diana and Nancy sought full indemnity costs in the amount of $19,693.75. Having heard submissions, and reviewed the Costs Outline, I concluded that the amount claimed was reasonable.

[46] I also accept the submissions made by counsel for Diana and Nancy that they should not be exposed to costs, and that the difference between their full indemnity costs and any costs that Linda is ordered to pay, should be paid from Mary’s property.

[47] Diana and Nancy also sought an order that Linda pay a portion of their full indemnity costs, calculated on a substantial indemnity basis, and fixed in the amount of $17,671.61. In my view, that request was reasonable given the orders sought, and Linda’s conduct throughout the Application, on which she offered no evidence to support her allegations, or the relief sought, and that she caused delay and additional costs, as described above.

[48] For the reasons set out, Linda was ordered to forthwith pay Diana and Nancy’s costs on a substantial indemnity basis, fixed in the amount of $17,671.61. As requested by Diana and Nancy, and unopposed by Linda, if Linda does not pay any, or all, of the costs awarded against her, any unpaid amount is to be paid from Linda’s share, if any, of Mary’s estate, upon Mary’s death.

[49] The portion of Diana and Nancy’s full indemnity costs that Linda is not ordered to pay, namely, $2,022.14 ($19,693.75 - $17,671.61), is to be paid, forthwith, from Mary’s property.

Justice L. C. Sheard
Released: March 7, 2025

[1] As the parties’ last names are the same, this endorsement refers to parties by their first names. No disrespect is intended.