Ontario Superior Court of Justice
Court File No.: CV-22-126 and CV-24-172
Date: 2025/07/15
IN THE MATTER OF THE ESTATE OF MURRAY GIBBONS, deceased
BETWEEN:
Court File No.: CV-22-126
Emilia Gibbons, Applicant
– and –
Adam Gibbons and Edward Gibbons, in their capacity as Estate Trustees for the Estate of Murray Gibbons and in their personal capacity, Respondents
Martin Zatovkanuk, for the Applicant
H. Richard Bennett, for the Respondents
AND BETWEEN:
Court File No.: CV-24-172
Edward Gibbons in his capacity as Estate Trustee for the Estate of Murray Gibbons, deceased, Applicant by Counter Application
H. Richard Bennett, for the Applicant by Counter Application
– and –
Emilia Gibbons, Respondent by Counter Application
Martin Zatovkanuk, for the Respondent by Counter Application
Heard: May 5, 2025
Released: July 15, 2025
The Honourable Justice A.D. Hilliard
Overview
[1] The Applicant in the original Application, Emilia Gibbons, brought a motion to dismiss the Counter Application filed by Edward Gibbons, in his capacity as Estate Trustee for the Estate of Murray Gibbons. The basis for the request to dismiss is that the Counter Application was commenced outside of the two-year limitation period.
[2] The Respondents in the original Application, Edward Gibbons and Adam Gibbons, in their capacity as Estate Trustees and in their personal capacity, are seeking the dismissal of the Family Law Act (FLA) claims in the original application for failure to meet the statutory timelines.
[3] For the reasons that follow, the motion brought by the Applicant, Emilia Gibbons, is granted and the Respondent’s request for the dismissal of the Applicant’s FLA claims is dismissed.
Background
[1] As all parties have the last name Gibbons, for ease of reference and to avoid confusion between the two male parties and the male deceased, I will refer to the parties by their first names.
[4] The Applicant, Emilia Gibbons (Emily), is the widow of Murray Gibbons.
[5] The Respondents, Adam and Edward Gibbons, are the biological sons of Murray and the stepsons of Emily.
[6] Murray died on April 12, 2022 leaving two (2) valid Last Wills and Testaments, dated March 4, 2022, appointing Emily, Adam and Edward as joint Executors and Trustees.
[7] On October 17, 2022, Emily filed a Form 1, Election of Surviving Spouse seeking an order for equalization.
[8] On November 23, 2022, Emily served on Adam and Edward a Renunciation of Right to a Certificate of Appointment of Estate Trustee with a Will.
[9] Emily commenced her Application in December 2022. Her Application Record is dated December 30, 2022, but the Notice of Application is dated and issued December 1, 2022.
[10] Adam and Edward both swore affidavits responding to Emily’s claims dated December 30, 2022.
[11] A case conference was conducted on May 30, 2024 by Braid J., wherein she declined to schedule the matter for a hearing due to a failure of the Respondents to provide financial disclosure. Braid J. ordered the Respondents to serve and file a sworn financial statement, including a valuation of the corporation as of the date of death of Murray by July 2, 2024. Costs were awarded against the Respondents in the amount of $1,500, payable by July 2, 2024. Although this order was ultimately complied with by the Respondents, compliance was not complete until 2025, well after the July 2024 deadline.
[12] Emily brought a motion dated December 2, 2024 for an Order that the Respondents were in contempt of the Order of Braid J., dated May 30, 2024, seeking a monetary penalty be levied against the Respondents for their contempt and their removal as Estate Trustees, as well as summary judgment on Emily’s claims in her Application. That motion was originally returnable on a short motions list on December 12, 2024. The motion was adjourned to a long motion hearing on May 5, 2025.
[13] On December 11, 2024, Edward filed a Counter Application making claims against Emily in relation to steps she allegedly took in her capacity as executor. The Counter Application seeks declaratory relief in relation to Emily’s alleged breach of her fiduciary duty, damages, including punitive damages, payable by Emily to the Estate, a claim for occupational rent and corollary relief in relation to Emily’s occupation of Estate property, declaratory relief in relation to Emily’s FLA claims being statute barred due to the limitations period, an Order removing Emily as executor and trustee, an Order declaring Emily to have taken steps in bad faith, de son tort and is therefore disqualified from electing to commence an equalization claim under the FLA.
[14] The Counter Application had a first return date of January 16, 2025 on a short motions list before me. There was also a motion returnable that same date dealing with service of the Application and seeking consolidation of the Counter Application with Emily’s original Application. Counsel appearing on behalf of Emily sought an adjournment of the motion. I determined that an Order should be made dealing with the service issue but adjourned the balance of the motion to the March 27, 2025 short motions list.
[15] In March 2025, Emily brought another motion seeking to have the Counter Application dismissed as statute-barred under the Limitations Act, 2002 (LA). That motion was brought returnable on March 27, 2025.
[16] On March 27, 2025 both Applications and all outstanding motions, except for the Applicant’s December 2024 contempt motion, were before me on the short motions list. I granted the request for consolidation and adjourned the motion regarding the limitations issue to May 5, 2025 for argument. I also directed that the issue of whether or not Emily’s FLA claim was statute barred would also be argued that same day.
[17] On May 5, 2025, the limitations issued were argued. Emily’s counsel agreed that the Respondents had finally brought themselves into compliance with the 2024 order of Braid J. from the case conference but was not prepared to completely abandon the claim for a remedy for failure to comply. The issue of whether there should be an order sanctioning the Respondents for failure to comply was not argued during the May 5 hearing.
Issues
[18] There are two issues to be determined on this motion:
a. Is Adam’s Counter Application statute barred having been served outside the 2 year limitation period?
b. Is Emily’s FLA claim statute barred having been served outside the limitation period provided for in the FLA?
Counter Application – Limitation Period
[19] Emily argues that Edward’s Counter Application is statute-barred by virtue of the LA and by virtue of section 38(3) of the Trustee Act. She argues that discoverability is not applicable, relying on the Court of Appeal’s recent decision of Ingram v. Kulynych Estate.
[20] Edward argues that he is within the limitations period having put Emily on notice of his claims well before his Counter Application was issued, specifically by way of a sworn affidavit dated in December 2022, and that in any event Emily’s tortious conduct is ongoing and therefore the limitations argument does not apply. Edward also argues that discoverability is relevant as Emily’s tortious conduct only became known over the course of 2022.
[21] The basic limitation period is set out in section 4 of the LA: “Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”
[22] Discoverability is codified in section 5 of the LA:
A claim is discovered the earlier of,
(a) the day on which the person with the claim first knew,
i. that the injury loss or damage had occurred,
ii. that the injury, loss or damage was caused by or contributed to by an act or omission,
iii. that the act or omission was that of the person against whom the claim is made, and
iv. that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
[23] Section 38(3) of the Trustee Act sets out a limitation period in relation to claims made pursuant to sections 38(1) or 38(2) of the Trustee Act: “An action under this section shall not be brought after the expiration of two years from the death of the deceased.”
[24] The Court of Appeal in Kulynych Estate confirm their previous decision in Waschkowski v. Hopkinson Estate wherein it was determined that the two-year limitation period in section 38(3) of the Trustee Act “is a strict limit and the discoverability principle does not apply to actions under s. 38; ‘[r]egardless of when the injuries occurred or matured into an actionable wrong […] unless that claim is brought within two years of the death of the wrongdoer or the person wronged.’” [3]
[25] However, although Edward’s Counter Application pleads section 38 of the Trustee Act, the relief sought by him does not properly fall under either section 38(1) or 38(2). Those sections related to wrong committed by or against the deceased person whose Estate in being administered. In this case, Edward’s claims are against Emily personally or in her capacity as Estate Trustee. The claims are not in relation to wrongs committed against Murray during his lifetime nor are they claims in relation to action Murray took during his lifetime that constitute a wrong from which there is a legal remedy.
[26] I therefore find that the strict two-year limitation period in section 38(3) of the Trustee Act does not apply.
[27] The limitation period then defaults back to s. 4 of the LA. The question then to be determined is when did Edward know or ought to have known about his claim against Emily?
[28] The factum filed on behalf of Edward sets out the timeline of actions taken by Emily that Edward alleges are her intermeddling with the estate. At paragraph 16 of the Respondent’s supplementary factum, there is a list of steps allegedly taken by Emily that Edward argues constitute Emily acting as an executor and intermeddling. The bulleted list starts in May 2022 and ends in September 2022. The actions listed in the factum are all supported by the affidavit evidence of Edward filed in December 2024.
[29] Edward refers to and relies on affidavits filed by he and Edward in Emily’s original Application in December 2022 to support his argument that Emily was put on notice of his claims long before the Counter Application was issued. However, the question is not when Emily was put on notice of Edward’s claims but rather when did Edward commence his claim in relation to the discovery of the allegedly tortious conduct.
[30] I find that by September 2022 Adam and Edward knew that Emily was engaging in conduct that could support the claims set out in Edward’s Counter Application. Adam and Edward’s December 2022 affidavits are particularly instructive as they set out all of the allegedly tortious conduct of Emily that forms the basis for the claims in the Counter Application.
[31] There is no statutory authority for the limitations period to be extended on the basis that Emily had been put on notice of Edward’s claims as far back as December 2022. Furthermore, as a matter of policy the strict enforcement of statutory limitations periods is essential in estate matters. As the Court of Appeal reiterated in Kulynych, “limitations statutes reflect public policy about efficiency and fairness in the justice system. […] And they promote diligence, because they encourage litigants to pursue claims with reasonable dispatch.” [emphasis in the original] [4]
[32] Therefore, the issuance of the Counter Application in December 2024 is outside of the limitations period and the claims in the Application are statute barred. The Counter Application will consequently be dismissed.
Emily’s FLA Claims – Limitation Period
[33] Edward argues that Emily’s FLA claims are statute-barred and should be summarily dismissed due to a failure to comply with the timelines set out in the FLA. He further argues that the Court should not grant an extension of the timelines as Emily has not brought a formal motion requesting same.
[34] Emily argues that her FLA claim is not statute-barred and that Edward’s request for her claim to be dismissed should not be granted. She argues that she did in fact comply with the timelines and if she did not strictly comply, the Court should exercise its discretion and grant her an extension. In the alternative, Emily argues that Edward should be barred from advancing his claim regarding non-compliance with the limitations period because his Counter Application is itself statute-barred and he has acceded to her claims proceeding by responding to her Application and not raising the issue of the limitations period at the case conference.
[35] The relevant provisions of the FLA are as follows:
5(2) When a spouse dies, if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half the difference between them
6(1) When a spouse dies leaving a will, the surviving spouse shall elect to take under the will or to receive the entitlement under section 5.
6(10) The surviving spouse’s election shall be in the form prescribed by the regulations and shall be filed in the office of the Estate Registrar for Ontario within six months after the first spouse’s death.
6(11) If the surviving spouse does not file the election within that time, he or she shall be deemed to have elected to take under the will or to receive the entitlement under the Succession Law Reform Act, or both, as the case may be, unless the court, on application, orders otherwise.
2(8) The court may, on motion, extend a time prescribed by this Act if it is satisfied that,
(a) there are apparent grounds for relief;
(b) relief is unavailable because of delay that has been incurred in good faith; and
(c) no person will suffer substantial prejudice by reason of the delay.
[36] Edward relies on the case of Lundy v. Lundy Estate [5] in support of his argument that Emily’s FLA claims ought to be dismissed. The Lundy case is easily distinguishable on the facts. The moving party widow in Lundy brought her motion to extend the time for her to file an election under the FLA a year and a half after the death of her husband. Sheard J. found that the Applicant had been provided financial information on an ongoing basis and had been represented by counsel for over a year prior to the motion being brought. She also found that the Applicant had not demonstrated that the delay in bringing her motion was incurred in good faith.
[37] I was also referred to the case of Scherer v. Scherer [6]. That case is also factually distinguishable. Scherer was a decision on a motion brought by a husband to extend the limitation period set out in section 7(3) of the FLA – the limitation period applicable to claims for equalization after parties separate or divorce. Day J. found that the moving party husband chose not to assert his rights within the limitations period. The application seeking equalization was commenced almost two (2) years after the time for him to do so had expired.
[38] In this case, there is evidence that Edward received Emily’s equalization election by October 20, 2022. Although that is technically outside of the six (6) month limitation period, it is outside by mere days, not months or years as in the cases I was referred to.
[39] I am satisfied that there are apparent grounds for relief – Emily is seeking to elect to receive an equalization payment pursuant to the provision of the FLA rather than take under the Will. I am also satisfied that no person will suffer substantial prejudice by reason of a delay of only a few days.
[40] On the issue of whether I should grant an extension without a formal motion being brought before the Court, I have considered that Emily’s application has been ongoing for over two (2) years now and the Respondents are only now choosing to advance a limitations argument. I have also taken into account that the Rules of Civil Procedure are to be interpreted and applied liberally so as to ensure a just and expeditious outcome of proceedings. Given that the Respondents waited two years to formally advance the argument that Emily’s FLA claims are outside of the limitation period, and considering all of the steps taken in Emily’s original application prior to that issue being formally raised, I am of the view that I can and should consider the issue of an extension ad hoc without a formal motion being brought.
[41] For all these reasons I find that an extension of time should be granted to Emily such that her FLA claims may proceed in the regular course.
Conclusion
[42] The Counter Application was commenced outside of the limitation period and is therefore statute barred and shall be dismissed.
[43] Emily’s FLA claims were made outside of the limitation period but for the reasons I have articulated, I am satisfied that an extension of time should be granted and that those claims should proceed to a full hearing.
[44] I have not made any determination on the arguments advanced by the Respondents that Emily’s FLA claims are barred by virtue of her intermeddling with the estate. I am also of the view that it is open for the Respondents to argue the issue of occupational rent in Emily’s original application in relation to her FLA claims. The Respondents may also argue that Emily acted as an Estate Trustee prior to her renunciation and must therefore account for her actions and steps taken in that capacity.
[45] Counsel for the parties shall file their submissions on costs as follows:
a. Primary submissions by the Applicant, Emilia Gibbons, no longer than 3 pages in length, double-spaced, 12-point font, exclusive of Bill of Costs and Offer(s) to Settle on or before July 29, 2025;
b. Responding submissions by the Respondents, Edward and Adam Gibbons, no longer than 3 pages in length, double-spaced, 12-point font, exclusive of Bill of Costs and Offer(s) to Settle on or before August 12, 2025;
c. Reply by the Applicant, no longer than 2 pages in length, double spaced, 12-point font, on or before August 19, 2025.
[46] Order to go on the motion:
The Counter-Application commenced by Edward Gibbons, in his capacity as Estate Trustee is dismissed.
The timeline for the Applicant, Emilia Gibbons, to advance her claims under the Family Law Act is extended ex post facto.
Counsel shall schedule the Application for a full hearing on the merits. If any issues arise in setting a timetable, counsel shall contact the trial coordinator for a case conference.
At the argument of the Application, the Respondents may advance arguments that the Applicant owes the Estate occupational rent, that the Applicant is barred from electing under the Family Law Act due to intermeddling with the Estate, and that the Applicant acted as an Estate Trustee prior to her renunciation and must therefore account for her actions and steps taken in that capacity.
A.D. Hilliard
Released: July 15, 2025
Footnotes
[2] Ingram v. Kulynych Estate, [2024] OJ No 4056 (CA)
[3] Ingram v. Kulynych Estate, supra, at para 26, citing Waschkowski v. Hopkinson Estate (2000), 47 OR (3d) 370 (CA)
[4] Ingram v. Kulynych Estate, supra, at para 30 quoting from Levesque v. Crampton Estate, 2017 ONCA 455.
[5] Lundy v. Lundy Estate, [2017] O.J. No 1837 (SCJ).
[6] Scherer v. Scherer, [2000] O.J. No. 3092 (SCJ).