COURT FILE NO.: CV-17-00003137-00ES DATE: 20250129 ONTARIO SUPERIOR COURT OF JUSTICE I N THE MATTER OF THE ESTATE OF ELENA CANALE, deceased TORONTO ESTATES LIST BETWEEN: Giacomoantonio Canale Applicant – and – Rosemary Ziccardi and the Estate of Elena Canale by her named Estate Trustee, Rosemary Ziccardi Respondent On his own behalf Ronald P. Bohm and David Scott Lee for the Respondents HEARD: January 13-15, 2025 C. gilmore, J. introduction [ 1 ] This is a case involving a disappointed beneficiary who was surprised to discover that his mother’s home had not been left to him in her last Will. The home had been left to him in his mother’s two previous Wills. The Applicant beneficiary was adamant that because of his mother’s alleged oral promises to him, as well as alleged statements made to others, that she always intended to leave the home to him. [ 2 ] The Applicant, Giacomoantonio Canale (“Jim”), challenges the validity of his mother’s (“Elena” or “the deceased”) 2005 Will (“the 2005 Will”), on the grounds that her English skills were insufficient for her to have knowledge of and approve the contents of the Will, and/or that there were suspicious circumstances surrounding the execution of the Will. [ 3 ] The Respondent Rosemary Ziccardi (“Ms. Ziccardi” or “Rosemary”) is the deceased’s daughter, and the named Estate Trustee in the Will. Rosemary’s position is that the 2005 Will is valid. [ 4 ] According to Rosemary, the deceased lived in Canada from age 18 and transacted business and lived her daily life mostly in English. She was an astute woman who was able to communicate in English to those who did not speak Italian including her bankers, employers, children and grandchildren. The deceased had done two previous Wills and understood the concept of a Will, was aware of the extent of her assets and understood she could divide them as she pleased. Finally, Rosemary submits there is no evidence of duress or undue influence. Her mother signed the 2005 Will freely, and it met all of the necessary execution requirements. [ 5 ] Rosemary also seeks Occupation Rent from her brother for his rent-free occupation of Elena’s home at 104 Crestwood Avenue, Thornhill (“Crestwood”) since the date of death. [ 6 ] For the reasons set out below, the Application is dismissed. Elena spoke English sufficiently well to understand and approve the contents of the 2005 Will. There is no evidence of duress or undue influence. Jim has failed to rebut the presumption of due execution and knowledge and approval of the contents of the 2005 Will. Jim has had exclusive use of Crestwood to the detriment of the other beneficiaries. He must pay occupation rent to the Estate from the date of death, minus credits for his contributions. Prior Litigation and the Issues for Trial [ 7 ] The litigation between these parties was started in 2017, when Rosemary commenced a Guardianship Application in relation to Elena. Jim brought a cross-application for Guardianship. On March 27, 2018, Justice Dunphy made an Order permitting Jim to amend his Application, and add relief requesting that Elena’s 2005 Will and Powers of Attorney be declared invalid. Jim alleged that his mother did not understand she was signing a Will or did not understand the contents of the Will. Elena died after cross-examinations in the Guardianship Applications were completed but before any issues had been determined. [ 8 ] Following a pre-trial of this matter on October 8, 2024, Justice Faieta endorsed that the issues for trial were as follows:
- Is Elena Canale's will valid? The grounds advanced by the applicant for challenging the will appear to be described in his affidavit dated February 24, 2022. See paragraphs 38 and 77. As well, the applicant's pre-trial conference form indicates at page A733 that he is alleging that the will was the result of undue influence on Elena Canale.
- Should the applicant pay occupation rent to the Estate? [ 9 ] The relevant paragraphs in Jim’s affidavit dated February 24, 2022 set out as follows:
- My concerns with the 2005 Will are as follows: a) My Mother only had a passing knowledge of spoken English. She was able to communicate on daily routine matters but certainly not on legal or technical matters; b) My Mother's first and main spoken and written language was Italian; c) To the best of my knowledge, Peter May or Susan Day did not communicate with my Mother in Italian; d) Peter May's notes appear scant and devoid of detail; e) Peter May's file did not indicate who he took instructions from; f) The Respondent withheld the existence of the 2005 Will and POAs for almost 10 years; g) Despite requests to do so, I have yet to be able to inspect the original 2005 Will; h) I am not confident my Mother knew the contents of what she was signing or whether she knew she was signing a Will; i) Susan Day purports to witness and date my signature which she did not witness at all; j) The 2005 Will is dramatically different from the 1998 and 2003 Will in terms of gifting the Crestwood property to me as well as other particulars; k) There appears to be no reasonable explanation why my Mother would no longer gift the home to me vis-à-vis the 2005 Will; I) My Mother had just executed a Will with an Italian speaking lawyer less than 2 1/2 years earlier with Rocco Russo; m) There was no change in status quo between my Mother and the children; n) In the 2 prior Wills I did not live at home with my Mother. By 2004, I returned home to live with my Mother at her request; o) The Respondent deposed at her cross-examination held on October 24, 2018, that my Mother chose to use an English-only speaking lawyer rather than an Italian speaking lawyer, such as Alessandro Di Cecco, due to the location of their offices; p) The Respondent had prior dealings with Peter May prior to the 2005 Will matter; and, q) After 2005, my Mother at no time mentioned that the home was only fractionally mine. To the contrary, innumerable times, and, in 2008 in particular, when I intimated I was looking for a home in Aurora for her and I to live in, she stated in Italian words to the effect that: "No. Stay here. The house is yours [in Italian]". As a result of the promises about the home coming to me via inter vivos gift repeatedly, I continued to reside with her to my detriment. [ 10 ] The 2005 Will was prepared by solicitor Peter May whose entire Will file was produced. He was extensively cross-examined by Rosemary, Jim and Elena’s counsel, on October 10, 2018. He was called as a witness by Jim at trial. [ 11 ] Crestwood forms part of the residue of the Estate. Jim has resided at Crestwood since 2004. The other assets of the Estate include two industrial condo units located at 40 Pippin Road, Units 26 and 27 (“Pippin” or “the Pippin units”). [ 12 ] Jim was ordered to vacate Crestwood on November 30, 2024. Jim failed to vacate Crestwood as ordered and was found in contempt by Justice Faieta. [ 13 ] Prior to April 2024 Jim was represented by counsel. As of April 18, 2024, he has represented himself. He continued to be self-represented throughout this trial. Background Facts [ 14 ] Elena came to Canada when she was 18. Elena married Alessandro Canale in 1951. Alessandro died on May 1, 1997. [ 15 ] Elena and Alessandro had four children: a. Rosemary Ziccardi (Respondent and Estate Trustee) b. Rita Conklin (“Rita”) c. Gianna Canale (“Gianna”) d. Giacomoantonio “Jim” Canale [ 16 ] Rosemary is the eldest sibling. She is 71 years old and 14 years older than Jim. Rosemary has four children one of whom testified at trial (Giordana Ziccardi). No one disputed that Rosemary was the most proficient of her siblings in Italian. Rosemary obtained a college degree and trained as an executive assistant. She also received education as an Educational Assistant for special needs children. She was very busy raising four children, volunteering for their sports activities and working. [ 17 ] Rosemary’s busy life did not prevent her from keeping contact with her mother who lived 20 minutes away. She would visit her mother once a week and call her as well. Sometimes she took her mother to medical appointments or shopping. She also took her to her appointments with Mr. May to sign the 2005 Will and sign the real estate documents for the purchase of the Pippin units. While Elena was described as very independent and would not hesitate to walk or take the bus as needed, when she stopped driving around age 70, she required more help from Jim and Rosemary. [ 18 ] Jim was married for one year and has no children. He attended Centennial College for three years and obtained a degree as a computer programmer analyst in 1998. He worked for one year in that field. In 1989 Jim took over the family business, Crestwood Railings, from his father. Jim also had other work endeavours including several years as a real estate agent and pursuing a career in comedy and acting. [ 19 ] Jim’s evidence was that he paid his father between $10,000 and $15,000 for the assets of the family business. He incorporated the business shortly after buying it. Once he owned Crestwood Railings, he began to look for an industrial space out of which he could operate the business. He was aware that his parents intended to sever and sell the two lots at the back of the Crestwood Property (“the Pinewood lots”). The family business had been run out of an industrial building on one of those lots. [ 20 ] In or around 2000 Elena approached Rosemary about buying the Pinewood lots so Rosemary’s husband could build houses on the lots. They were sold to her and her husband for fair market value. Jim disagreed and testified that the lots were sold to Rosemary at a discount. [ 21 ] Elena made three Wills, all of which are in English. The first Will was made in 1998 (“the 1998 Will”), the second in 2003 (“the 2003 Will”) and the Will which is the subject of this Application, made in 2005 (“the 2005 Will”). [ 22 ] The 1998 Will appointed Jim as Estate Trustee and Rosemary as the alternate. The 1998 Will provided as follows: a. Ron Conklin (“Rita’s husband”) to receive the car owned by the deceased on date of death; b. Funds from a CIBC account were to be held in trust for the education of Ron and Rita’s daughter Monica Conklin. c. The Crestwood property was to be partitioned into three lots with Jim to receive the larger lot with the home on it and the other two lots to be divided between her children with Rosemary receiving a 27.49% interest and the other three children a 24.17% interest. d. The deceased’s 50% interest in an industrial condominium located at 40 Pippin Road, Unit 27, Concord to Jim. e. The deceased’s 50% interest in an industrial condominium located at 40 Pippin Road, Unit 26, Concord to her daughters in equal shares. [ 23 ] The 2003 Will was signed on June 3, 2003, and appointed Jim as Estate Trustee and Rosemary as the alternate. As mentioned above, by June 2003 the Pinewood lots that were to go to the children in percentages in the 1998 Will had been sold to Rosemary and her husband for development. As such, some of the gifts in the 1998 Will no longer existed. The 2003 Will provided as follows: a. Ron Conklin was to receive a sewing machine and car. b. Jim was to receive: i. The Crestwood home. ii. the deceased’s 50% interest in 40 Pippin Road, Concord, Unit 27. c. The deceased’s 50% interest in 40 Pippin Road, Concord, Unit 26 was to be divided 30% to Rosemary and 20% to Rita. [ 24 ] The 1998 and 2003 Wills were drafted by Mr. Rocco Russo, an English and Italian speaking solicitor in Woodbridge, Ontario who was Elena’s neighbour. [ 25 ] In September 2005 it was agreed that Elena would buy Jim’s interest in the Pippin units for $125,000. Elena paid her son $60,000. A Vendor Take Back mortgage (“the VTB mortgage”) was registered against the Pippin units in favour of Jim for $65,000. The VTB mortgage was for a five-year interest free term. Mr. May acted for Elena on the purchase which closed on November 3, 2005. The VTB mortgage was discharged on September 27, 2007. As Jim would no longer own any interest in the condo units (which were referred to in the 2003 Will), Elena executed a new will on November 2, 2005. [ 26 ] The 2005 Will appoints Rosemary as Estate Trustee and Jim as the alternate and sets out as follows: a. Gianna to receive a bequest of $10,000; b. The remainder of the Estate to be divided into 20 equal shares: i. Jim to receive 8 shares; ii. Rosemary to receive 7 shares; iii. Rita to receive 5 shares. [ 27 ] Elena died on July 8, 2019. Rosemary was appointed Estate Trustee During Litigation on March 7, 2022. There is no issue that Elena had capacity at the time she signed all of her Wills. Jim’s evidence was that he did not notice any decline in his mother’s mental capacity until approximately 2014. The Evidence at Trial Jim [ 28 ] Jim was very polite and respectful while giving his evidence but had to be redirected by the Court at times to focus on the claims in his Application, and the issues for trial as set out in his affidavit sworn on February 24, 2022. [ 29 ] Jim testified that he began working in his father’s railing business when he was 12, and helped his father out until his father was no longer able to work. At that time, he took over the family business. [ 30 ] The Pippin units were purchased as an investment in 1990 by Jim and his parents for approximately $200,000. Jim and his parents owned the units jointly, Jim as to 50% and his parents as to a joint 50% interest. Jim provided about 10% of the purchase price and his parents paid the rest. Between 1990 and 1994 his parents kept all of the rents from the tenants of the condo units and 50% of the rents collected were credited to Jim for his contribution to the purchase price. After 1994 Jim received 50% of the rental income from the condo units. He testified that he repaid his parents for his share of the purchase price in “other ways.” He did not specify what those other ways were. Jim sold his 50% share in the condo units to his mother in 2005. His evidence was that he sold his 50% share of the units to his mother for the “MPAC” value which was between $30,000 to $40,000 below market price. [ 31 ] Jim agreed that the Pinewood lots were sold to his sister Rosemary and her husband in 1999 or 2000. They developed those lots and sold the homes they built there. Jim’s evidence on cross-examination was that his sister and her husband paid fair market value for those lots. At trial he testified that he had subsequently made enquiries of other builders and developers and that in fact his sister had purchased the Pinewood lots at a discount. Rosemary’s evidence was that she and her husband paid fair market value for the Pinewood lots as her mother had done research and made enquiries to make sure that she and her husband were getting the correct value for the lots. [ 32 ] Jim found an industrial space in Aurora which suited his needs, and he purchased that unit in 2000 for approximately $225,000. He put in $30,000 of his own money and took a mortgage from RBC for $120,000. His mother loaned him another $80,000 by way of a second mortgage. Jim’s evidence was that he paid back his mother and discharged the second mortgage when his divorce settled. Jim still owns the Aurora unit which he agreed was worth over $1M. Since Crestwood Railings was no longer operating from the Crestwood Road location, Jim changed the name of the business to Canale Iron in 2002. [ 33 ] Jim’s father was moved to long term care in 1996 and died in 1997. His mother lived on her own until 2004. According to Jim, she repeatedly asked Jim to come and live with her and help her as she did not like living alone. In 2004 Jim relented and moved in with his mother. He sold his condo for a considerable profit and used the proceeds to pay down the mortgage on the Aurora space and invested the rest in savings and RRSPs. [ 34 ] When he first moved in with his mother he paid her $400 a month in rent for the first three months he was there and then his mother told him that he did not need to pay anything given everything he was doing for the family. He has never left Crestwood and still resides there without paying rent although he contributed to expenses from time to time. [ 35 ] Jim gave evidence that his sister Gianna has been estranged from the family since 1995 or 1996 and was not at her father’s funeral or Jim’s wedding. He agreed that of the four children he and his sister Rosemary were closest to their mother. At his mother’s 80 th birthday party only Rosemary and her children and Jim were there along with a few friends. Neither Gianna nor Rita were there. [ 36 ] Jim’s evidence was that his understanding from his mother was that Crestwood would always be his. He conceded, however, that his mother had never shown him a copy of any of her Wills, and that he did not learn about the contents of the 2005 Will until this litigation began. In 2005 he knew that he was selling the condo units to his mother, but he was not aware that his mother had signed the 2005 Will with Mr. May the day before units were sold. [ 37 ] Jim questioned why his mother used Mr. May as her lawyer on the real estate and Will matters. She hired Mr. Di Cecco (an Italian speaking lawyer) to act for her when she severed the Pinewood lots and Mr. Russo (also an Italian speaking lawyer) to draft her first two Wills. Jim rejected the explanation that Mr. May was simply closer geographically than other options. Jim testified that his mother had always used Italian speaking lawyers and Mr. May did not speak Italian. Jim alleged that his mother was influenced by Rosemary to use Mr. May as Mr. May had been her lawyer in the past. [ 38 ] Jim’s evidence was that his mother could manage in English but usually spoke Italian. His evidence was that he could “get by” in Italian. When he spoke with his mother it was mostly in English with some Italian thrown in. He agreed that of all of his siblings his sister Rosemary was the most proficient in Italian and she and his mother often spoke Italian together. Jim was certain that his mother could not have understood the 2005 Will because he never saw her read an English book or newspaper. Even when she was looking at grocery flyers, she would often ask for help with the English name of certain grocery items. [ 39 ] Jim’s evidence was that he would sometimes take his mother to the bank. He agreed that his mother dealt with banking personnel in English but sought out the Italian speaking tellers if they were available. [ 40 ] Jim agreed that his mother was always employed in jobs where her employers spoke English. She was also co-treasurer of a senior’s group and understood money and finances. [ 41 ] Jim could not understand his mother’s dramatic shift from leaving Crestwood to him in the 1998 and the 2003 Will and then in the 2005 Will simply dividing everything after it was sold. This did not make sense to him given that he had been her main caregiver and given her verbal assertions to him and others that Crestwood would be left to him. [ 42 ] While his sister Rosemary did help out with their mother at times, she was raising her four children and running a business. It was left to Jim to deal with his mother’s day to day needs. Jim testified that he was about 90% responsible when it came to looking after his mother’s needs (as compared to what Rosemary did) but he was not seeking compensation for his services. [ 43 ] Jim was shown a copy of the 1998 Will. He agreed that his mother signed and understood that Will. Specifically, he was directed to pages four and five of that Will which set out specific percentages of the share that each child was to receive of the Pinewood lots (prior to their sale in 2000) including Rosemary receiving a 27.45% share. He agreed that the Will reflected what his mother wanted, and that the Will was explained to her in English or Italian or both by Mr. Russo. He further agreed that his mother knew and approved of the contents of the 1998 Will. [ 44 ] Jim was shown a copy of the 2003 Will. He agreed that the 2003 Will was explained to his mother in English or Italian or both by Mr. Russo and that she understood and approved of its contents. He further agreed that his mother understood that the Pinewood lots had been sold such that the dispositions in the 1998 Will no longer made sense. He also agreed that the concept of the appointment of an Estate Trustee would have been explained to his mother and that she understood what that meant in both the 1998 and 2003 Wills. [ 45 ] Jim was then directed to the 2005 Will. He agreed that his mother would have understood the concept of the appointment of an executor (the concept having been explained to her for both the 1998 and the 2003 Wills) and that Mr. May’s notes reflect a division of the residue that added up to 20 with Jim receiving the largest share (8 shares out of 20). [ 46 ] Jim agreed that the signature on the 2005 Will was his mother’s and that it appeared to be witnessed and initialled by Mr. May and Ms. Susan Day. He did not accept that it was his mother’s idea to distribute the residue of her Estate in three parts. He was unconvinced that his mother gave Mr. May those instructions although he had no evidence of who else may have given those instructions. Jim was concerned that Mr. May’s notes were scant and incomplete, and he alleged that Mr. May left his mother alone in an office to review the 2005 Will. [ 47 ] Jim reluctantly accepted that after doing the first two Wills, his mother understood the purpose of a Will, the concept of a Will, and the requirement of an appointment of an Estate Trustee. While he accepted that generally a person may divide their Estate as they see fit, he did not see that the 2005 Will reflected his mother’s “track record” in the other Wills and her verbal promises to him. [ 48 ] Jim agreed that his mother had new Powers of Attorney done in 1998, 2003 and 2005 when she had her Wills done. He agreed that she would have understood the concept of a Power of Attorney. He confirmed his evidence on cross-examination that he was not challenging the validity of the Powers of Attorney. [ 49 ] Jim was taken through five different documents (Exhibits 5 through 9) signed by his mother which related to the sale of the condo units from Jim to his mother on November 3, 2005. Specifically, Jim was directed to the following: a. An Acknowledgment dated November 2, 2005 directed to Jim Canale acknowledging receipt of the Standard Charge Terms of the VTB mortgage. b. A Solemn Declaration dated November 2, 2005 regarding the VTB mortgage. c. An Acknowledgement and Direction dated November 2, 2005 confirming that Mr May had explained to Elena the various title insurance options available to her. d. A Declaration and Indemnity dated November 2, 2005 regarding GST remittances. e. An Acknowledgement and Direction dates November 2, 2005 regarding electronic signature and delivery of documents. [ 50 ] Jim agreed that his mother had signed those documents and understood what she was signing. [ 51 ] During the course of Gianna’s evidence (and after Jim had completed his evidence) she mentioned that Jim had told her about some notes that related to another Will subsequent to the 2005 Will. Jim advised that this reference was to a document in his Brief of Documents which is referred to as “Copy of Letter in Elena Canale Files with Envelope” (Exhibit 13). As Jim’s position was that this letter constituted a subsequent Will of his mother, I requested that Jim be re-sworn and give further evidence on the letter. [ 52 ] The contents of the January 7, 2013 letter are set out below: January 7, 2013 The purpose of this note is to give power to the trustees named on my Last Will and Testament, that upon my death the named trustees shall distribute the items listed below to the person named beside the listed items:
- My daughter Rosemary shall receive the following:
- Brown couch in the living room
- The mirror on the wall in the living room
- The small chair at the front entrance
- My daughter Rita shall receive the following:
- The yellow couch in the living room
- The wooden cupboard
- The cabinet where silvers are kept
- The bird cage and the picture stand in the living room
- Painting on the wall, large lamp
- Picture frame near the telephone All the rest goes to my son, Jim Canale. Elena Canale 104 Crestwood Road Thornhill, Ontario\ LAJ 1A6 [ 53 ] Jim’s evidence on the letter was that he found it in his mother’s desk with the copy of her 2005 Will. The letter was unsigned. He showed it to his two previous lawyers who advised that he should not rely on it because it was not signed. Jim’s evidence was that notwithstanding the advice of his previous lawyers he intended to rely on this letter as a subsequent expression of his mother’s testamentary wishes and that the reference to “all the rest goes to my son, Jim Canale” meant the rest of the Estate and not just the personal property. [ 54 ] Jim was asked why he did not disclose the letter earlier since he was relying on it. He testified that it had been included in his Brief of Documents. He agreed, however, that he had not told the Court or opposing counsel until that point that he intended to rely on the letter. Further, he did not mention it in his evidence in chief or his pleadings. His evidence was that his mother wanted to make changes to her 2005 Will, and he is certain that the 2013 letter reflects those changes. [ 55 ] Rosemary’s evidence was that she had never seen the letter before. She noted that her mother did not know how to type or use a computer, so she wondered how the letter even came about. She had had conversations with her mother about certain gifts of personal property, such as her wish that her amethyst ring go to Giordana, but her mother never made any effort to distribute those items during her lifetime. [ 56 ] On the issue of undue influence or duress, Jim stated his sister would threaten to withdraw helping her mother if her mother did not sign a new Will. There was an objection to this evidence being given as it did not form part of any of Jim’s affidavits or part of his cross-examination evidence. I do not rely on Jim’s evidence in this regard as this trial was the first time that such an allegation had been raised. Rosemary [ 57 ] Rosemary told the Court about her working and family life background. She has four children, three of who live at home with her. Her children each pay $800 per month in rent to their mother. [ 58 ] Rosemary described her mother as intelligent, strong-willed and resourceful. She obtained a driver’s license in 1976 but would often walk or take the bus to go grocery shopping or to the doctor or dentist. [ 59 ] Rosemary confirmed that she visited with her mother once or twice a week and spoke with her by phone frequently. She spoke to her mother in English most of the time. She also confirmed that when her mother worked as a cleaner and housekeeper, she worked for English speaking employers, and they communicated together in English. Rosemary was not aware of her mother having any job where she spoke Italian. Elena spoke English to her grandchildren. [ 60 ] Contrary to Jim’s evidence, Rosemary testified that she had seen her mother reading an English newspaper and reviewing documents related to the severance of the Pinewood lots and the purchase of the Pippin units. Her mother did her banking in English and had an English-speaking financial advisor. Elena always managed her own money and never had a joint account with Rosemary. When Elena could no longer drive, Rosemary often drove her to doctors or specialists appointments. Elena would speak to her doctors in English. Rosemary denied Jim’s suggestion that she translated for her mother at doctors’ appointments. [ 61 ] After her mother’s death, Rosemary managed the Pippin units and the tenant who was there. Jim expressed concern that Rosemary had never raised the rent for the units since 2019. Rosemary responded that the tenant had been there over 20 years and was often late paying his rent. However, her mother had always been good to that tenant and wanted to keep his rent the same. As such, Rosemary left the status quo until the Estate could be administered. Jim suggested that Rosemary should also honour their mother’s wish of allowing him to remain in Crestwood rent free. Rosemary disagreed. [ 62 ] Elena never offered any information to Rosemary about her estate planning or her Wills and Rosemary did not ask her about it. When she needed a lawyer for the purchase of the Pippin units, Elena asked Rosemary to recommend a lawyer. Rosemary offered two names, Mr. Alessandro Di Cecco in Newmarket and Mr. Peter May in Richmond Hill. Her mother chose Mr. May simply because he was closer. Rosemary did not influence her mother as to which lawyer to use. [ 63 ] Rosemary drove her mother to Mr. May’s office for the Will signing and real estate document signing in early November 2005 at her request. She introduced her mother to Mr. May and then waited for her in his reception area. She recalls taking her mother to Mr. May’s office on two occasions. It may have been more, but she only recollected two occasions. Rosemary had no concern about her mother’s ability to communicate with Mr. May. [ 64 ] After the appointment was over, Elena came out of Mr. May’s office with an envelope. They did not discuss what was in the envelope. Many years later her mother gave her the original of the 2005 Will and asked her to make a photocopy of it so Elena could keep a copy at her house. Rosemary did not read the 2005 Will, she simply went to Staples and requested that it be copied. She put the photocopy in an envelope with a post-it note on the front which indicated that the original was in Rosemary’s possession. [ 65 ] Rosemary was not aware of the 1998 or the 2003 Wills until this litigation was commenced and they were attached to Jim’s Application materials. Peter May [ 66 ] Mr. May was cross-examined on October 10, 2018 during the course of the guardianship proceeding while Elena was still living. He was examined by counsel for Jim, Rosemary and Elena. Mr. May confirmed at trial that the evidence he gave on October 10, 2018 remains true and accurate. [ 67 ] Mr. May is a lawyer in good standing who practices real estate, wills and estates. He has practiced law for more than 50 years. He has prepared thousands of wills. [ 68 ] Mr. May’s usual practice when taking instructions for a Will and Powers of Attorney is to meet with the client alone. If he has any concern about their facility in English, he will refer them to another lawyer. He has an Italian colleague to whom he would refer clients if Mr. May was of the view that their English was not sufficient for him and his client to communicate. He did not agree with the suggestion that Elena could not instruct him as to what she wanted in her Will. He would not have taken her instructions if he did not understand her or vice versa. That would not be in accordance with his standard practice which was consistent over the many years of his practice. [ 69 ] Mr. May testified that he usually starts by asking the client when and where they were born, if they have children, and the names and dates of birth of the children. He can determine fairly quickly if the client can make themselves understood and if he can understand the client. [ 70 ] In this case Mr. May was frank that he had no recollection of meeting Elena or how she was referred to his office. He was certain that he would have asked her why she was using a different lawyer for this Will and the Powers of Attorney but there is nothing in his notes to confirm this. As such, his evidence focused on his usual practice with respect to preparing Wills and Powers of Attorney. After the initial meeting where he took instructions, he would bring the client back at a different time to review the documents with him and have them signed. Mr. May would usually take notes as to the client’s instructions. He would ask if there was a previous Will and if so, why it was being revoked. In this case, a copy of the 1998 Will was in his file so Mr. May assumed he discussed that Will with her. He had no recollection of the 2003 Will. [ 71 ] Mr. May had one page of notes for this matter. The notes contained Elena’s instructions with respect to both the purchase of Jim’s interest in the Pippin units and the 2005 Will and Powers of Attorney. While he did not recall making the notes, the file cover indicated that they were likely taken on September 23, 2005. Mr. May confirmed that he did not take instructions from anyone other than Elena. [ 72 ] Once a client’s Will and/or Powers of Attorney had been prepared, a signing appointment would be made. His usual practice was to ask the client to repeat their instructions to him. He would then go over the documents with the client page by page. No one else would be present. Mr. May confirmed that Elena understood the Will, Powers of Attorney and the real estate documents after he reviewed them with her. He would not have permitted her to sign them otherwise. [ 73 ] Once the review had been completed, Mr. May would bring his assistant Ms. Susan Day into the office, and they would initial each page with the testator and then witness the testator and one another’s signature. [ 74 ] Based on the contents of his file, Mr. May agreed that he met with Elena once to sign the Will, the Powers of Attorney and the real estate documents for the Pippin purchase on the same day. He likely met with her prior to that, perhaps in September 2005 to take instructions with respect to the Will, Powers of Attorney and real estate transaction. Mr. May’s notes contain a reference to the VTB mortgage in favour of Jim on the Pippin purchase. Mr. May’s evidence was that the instructions for the VTB mortgage would have been given by Elena. He would not have suggested that arrangement without her instructions. [ 75 ] Mr. May was aware that Elena had decided to distribute her Estate unequally as between her four children. While he did not view this as unusual, his evidence was that Elena came to his office with a clear intention of what she wanted to do with respect to exact percentages for each child and the specific bequest to Gianna. He had no reason to suspect undue influence or suspicious circumstances. [ 76 ] Mr. May conceded that he probably did not send a draft of the Will or POAs to Elena in advance of the signing meeting nor did he do a reporting letter. He does not always send a draft or a reporting letter especially if the matter is straightforward. His usual practice is to give the client the original Will and Powers of Attorney and recommend to the client that they advise their children of the location of the documents in case they were needed. The Other Witnesses [ 77 ] Jim called six witnesses to support his claims. Two former employers of his mother, two friends, his niece and his sister Gianna. [ 78 ] Ira Matthews and Lillian Robbins employed Elena as a housekeeper for over 30 years. She was more than an employee to them. They treated her as part of their family. They described Elena as smart and financially astute. [ 79 ] Ms. Matthews testified that neither she nor Ms. Robbins speak Italian. They spoke to Elena in English and there were no communication difficulties. Ms. Matthews testified that she and Elena confided in one another. She was certain that Elena would have understood what a Will was and the associated concepts. [ 80 ] Monique Wertheim and Angela D’Angelo were long times friends of Jim. Ms. Wertheim has known Jim since Grade 9 and she recalled going to his home when they were in high school. Her evidence was that Elena spoke only Italian with a few English words thrown in. When she visited Elena in the nursing home, Jim had to translate for her. Monique did not agree with the suggestion that Elena spoke and confided in other people in English. [ 81 ] Ms. D’Angelo testified that she has known Jim and Elena since 1981. She would speak to Elena in a mixture of English and Italian, but Elena preferred to speak Italian. [ 82 ] Monica Conklin is Elena’s youngest grandchild, now aged 32. Ms. Conklin testified that when she visited her grandmother, she spoke to her in broken English. Often, her mother would have to translate for her and her father to be able to understand. Ms. Conklin never saw her grandmother reading an English book or newspaper. Sometimes she would look at grocery flyers and point to items, always defaulting to Italian if she did not know the English word. [ 83 ] Gianna Canale is Elena’s third child, now aged 63. Gianna has been estranged from her siblings since 2005. She spoke to her mother in English and her mother would respond in Italian. [ 84 ] Gianna was sure that her mother wanted to do another Will after the 2005 Will as it does not reflect her wishes. She claimed that her mother wanted to “fix things” that had gone wrong in the family. Gianna had no evidence other than her own to confirm her statements about her mother’s wishes. [ 85 ] Rosemary called two witnesses to support her position, a family friend of her mother, Ms. Clara Tuzi and her daughter Giordana Ziccardi. [ 86 ] Ms. Tuzi has known Elena since they were teenagers. They saw one another every few weeks and at family gatherings and social events. Although Ms. Tuzi is fluent in Italian, she spoke only English with Elena. She observed that Elena spoke to her children and grandchildren in English and knew that Elena’s employers spoke English to her. [ 87 ] Ms. Tuzi described Elena as vibrant and smart. She was independent and banked and shopped on her own. Elena did not speak of her Will or estate planning to Ms. Tuzi, although she was certain that Elena could instruct a lawyer about a Will and understand the concepts of a Will. [ 88 ] Giordana Ziccardi had a very close relationship with her grandmother. She saw her grandmother on all family occasions when she was growing up. After she bought her first car in 2004, she began to visit her grandmother on her own. She treasured those visits and was emotional in recalling them. [ 89 ] Giordana told the Court that when she visited her grandmother they would speak in English. She observed that her grandmother spoke to her children and grandchildren in English. She described her grandmother as strong, confident and outgoing. She knew what she wanted and how to get it. [ 90 ] While her grandmother never discussed her Wills or estate planning with her, Giordana was confident that her grandmother would be able to instruct a lawyer with respect to her Will and understand the concepts of a Will. The Requests to Admit [ 91 ] Rosemary served two Requests to Admit on Jim, one dated December 11, 2024 and another dated December 23, 2024. The December 23, 2024 Request to Admit relates solely to the Occupation Rent issues and will be dealt with below. [ 92 ] Jim did not serve any responses to the Requests to Admit. As such, the facts set out therein are deemed to be admitted. [ 93 ] With respect to Elena’s ability to speak English, the following facts are admitted as per the numbering in the Request to Admit:
- Elena spoke to her children primarily in English.
- Jim is not fluent in Italian.
- Of Elena's children, only Rosemary is fluent in Italian.
- Elena spoke with her grandchildren in English.
- Elena conducted her banking in English.
- Elena spoke English throughout her employment. [ 94 ] With respect to the execution of the 2005 Will and the purchase of the Pippin units, the following facts are admitted as per the numbering in the Request to Admit:
- An experienced Solicitor, Peter May, acted for Elena.
- Elena instructed Mr. May to prepare her 2005 Will at the same time she was purchasing Jim's interest in the Industrial Units.
- All documents in relation to the purchase and sale of the Industrial Units were prepared in English.
- Elena executed the 2005 Will on November 2, 2005. The day after, on November 3, 2005, Elena purchased Jim's interest in the Industrial Units for $125,000.00. At closing, Elena paid Jim $60,000.00 and Jim provided a $65,000.00 mortgage back to Elena for the balance of the purchase price.
- Elena paid off the $65,000.00 mortgage.
- The mortgage was discharged through Mr. May's office on September 27, 2007, via documents written in English. Analysis and Law Evidentiary Issues [ 95 ] Jim will receive 40% of his mother’s Estate based on the 2005 Will. However, Jim’s position throughout the trial was that based on the previous two Wills and her oral statements to her and others, Jim was to receive Crestwood after her death. [ 96 ] Jim and several of his witnesses attempted to give evidence about Elena’s statements to them in this regard. On each occasion, an objection to the evidence was raised by Rosemary’s counsel on the grounds that such oral expressions were uncorroborated and inadmissible in the face of the deceased’s clear intentions in the 2005 Will. Further, Rosemary’s counsel submitted that the evidence was not relevant given that the sole issue in this trial was whether the 2005 Will was valid. [ 97 ] I did not permit evidence related to Elena’s oral statements in relation to Crestwood for several reasons. In Kaptyn v. Kaptyn , 2010 ONSC 4293 , 102 OR (3d) 1, at paras. 36-37 , the Court stated the following with respect to a testator’s declarations of intent: [36] The rationale for this principle of admissibility rests in preserving the role of the written will as the primary evidence of the testator's intention and avoiding displacing the written will with an "oral will" gleaned from evidence of the testator's declarations of intent. [See Note 22 below] An exception exists to the inadmissibility of [page15 ]direct evidence of intent in the case of an equivocation where the words of the will describe two or more persons or things equally well -- declarations of testamentary intention can be used to establish which of the persons or things was intended by the testator. [See Note 23 below] [37] Inadmissible direct evidence has included (i) handwritten notes of the deceased directly stating her intentions regarding the disposition of property; [See Note 24 below] (ii) statements made by the deceased to another about his intention; [See Note 25 below] and (iii) the instructions the testator gave to her solicitor and the advice she received on the legal effect of the document under interpretation. [See Note 26 below] [ 98 ] As well, such statements fall within section 13 of the Evidence Act, R.S.O. 1990, c. E.23. That section sets out as follows: Actions by or against heirs, etc . 13 In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence. R.S.O. 1990, c. E.23, s. 13 . [ 99 ] Jim sought to adduce uncorroborated evidence of Elena’s intentions with respect to Crestwood. Such evidence was not admissible. [ 100 ] For obvious reasons, evidence of a testator’s intentions by way of oral statements to others cannot be admissible. To do otherwise would permit the creation of “oral Wills” solely by way of a statement made by a third party or a beneficiary which contradicts the contents of the Will. The resulting chaos in allowing such statements to supersede the intentions set out in the Will would abrogate the reason for having a Will. [ 101 ] Given all of the above, I did not permit evidence of oral statements related to Elena’s intentions with respect to Crestwood allegedly made to Jim or any of his witnesses. [ 102 ] Jim relied on the doctrine of proprietary estoppel, an equitable principal. That principal sets out that where a representation or assurance is made to a claimant that they will enjoy some right or benefit in relation to property and the claimant relies on that promise to their detriment, it would be unfair for the person making the representation to go back on his or her word. Specifically, Jim relies on the case of Cowper-Smith v. Morgan, 2017 SCC 61 , [2017] 2 SCR 754, which clarified this equitable doctrine. [ 103 ] Proprietary estoppel cannot apply in this case for the following reasons: a. Oral promises made to Jim or statements made to others about Elena’s intentions with respect to Crestwood have been found to be inadmissible by this Court. b. Elena did apparently agree to forgo charging Jim rent in exchange for “everything he did for the family.” However, Jim did not give up anything to look after his mother or the household. Rosemary also assisted with Elena. Jim still worked full time and ran a business. Jim had his own assets and savings and was not required to use them in order to care for his mother or pay any expenses at Crestwood. Jim benefitted from living rent free at Crestwood for more than 20 years. c. Jim’s evidence at trial was that he was not seeking any compensation for the care of his mother nor that she owed him anything. [ 104 ] Given all of the above I find that the equitable doctrine of promissory estoppel does not apply in this case. The Issues [ 105 ] There were two discrete issues for trial; 1) Is the 2005 Will valid? and 2) should Jim be required to pay occupation rent for Crestwood from the date of death? a. Issue One – Did Elena have Knowledge of and Approve the Contents of the 2005 Will? [ 106 ] It is Rosemary’s burden to prove due execution, knowledge and approval of the Will as well as testamentary capacity. Where the Will has been duly executed with respect to the requisite formalities and read by the testator who appeared to have understood it, the burden then shifts to the party attacking the Will. [ 107 ] The party attacking the Will may advance evidence of suspicious circumstances which can include circumstances related to the preparation of the Will, the capacity of the testator and/or undue influence or duress (see Vout v. Hay , 1995 105 (SCC) , [1995] 2 SCR 876, at pp. 888-889). If there is insufficient evidence to prove suspicious circumstances, the propounder of the Will may benefit from the presumption of due execution. [ 108 ] Jim does not contest his mother’s capacity to sign a Will in 2005. Indeed, there was no medical evidence introduced in this case. The evidence was that Elena’s cognitive abilities did not start to seriously decline until 2014. [ 109 ] Jim’s main argument was that, as his mother’s primary language was Italian, she could not have understood or approved of the contents of the 2005 Will. Jim attempted to expand this argument by introducing evidence of his mother’s alleged oral statements with respect to Crestwood. His position was that the 2005 Will was a “180” from her previous Wills and could not have reflected her actual intentions. The evidence related to the alleged oral statements was ruled as inadmissible as set out above. [ 110 ] That left Jim’s argument related to his mother’s ability to speak and understand English at the relevant time. [ 111 ] The evidence of Jim and his witnesses and Rosemary and her witnesses was somewhat contradictory on this point. [ 112 ] Jim’s evidence was that his mother could not read English and that she spoke to him in broken English with Italian words thrown in. She was unsophisticated and did not have a high level of education. Therefore, she could not have understood the meaning of the 2005 Will and could not have approved of its contents. [ 113 ] Jim’s witness Ms. Wertheim testified that Elena was not fluent in English and Jim often had to translate for her. Her granddaughter Monica Conklin described Elena as speaking in “broken” English and her mother had to often translate for them. Ms. D’Angelo testified that Elena spoke to her in both English and Italian. [ 114 ] However, the weight of Jim’s evidence with respect to his mother’s English proficiency was considerably diminished by his own admissions that: a. As her first two Wills were done by an Italian speaking lawyer, Mr. Russo, the concepts of a Will, Powers of Attorney and other concepts such as the appointment of an Estate Trustee would have been explained to her by Mr. Russo in Italian and English or both. b. Jim did not contest the validity of the 2003 Will which was entirely in English and divided up the shares of one of the Pippin units between Elena’s daughters into very specific percentages. c. Jim agreed that his mother understood the documents she signed relating to sale of the Pippin units which were signed the same day as the 2005 Will was signed and were in English. d. Jim did not contest Mr. May’s evidence regarding the 2005 Will or Elena’s purchase of the Pippin units. e. Jim agreed that his mother was able to do her banking in English and that she often went to her doctor’s and dentist’s appointments on her own until she was no longer able to drive. f. Jim agreed that Elena’s employers, Ira Matthews and Lillian Robbins did not speak Italian. g. Jim did not contest the validity of the 2005 Powers of Attorney for Property and Personal Care nor that his mother signed and understood them. h. As per the deemed admissions in the Request to Admit dated December 23, 2024: i. Elena spoke to her children primarily in English and to her grandchildren in English. ii. Elena conducted her banking in English and worked for English speaking employers. iii. Elena instructed Mr. May on the 2005 Will and the purchase of the Pippin units from Jim. iv. Mr. May does not speak Italian. v. Elena signed and understood all of the documents for the Pippin purchase. [ 115 ] There is also the evidence of Rosemary and Ms. Tuzi who testified that they spoke to Elena exclusively in English and the evidence of Giordana Ziccardi who told the Court that she and her grandmother always spoke in English. [ 116 ] The evidence as whole supports that Elena could understand and be understood in English and that she understood finances and the extent of her assets. However, some comments on the credibility of the witnesses with respect to the weight to be given to their testimony is necessary. [ 117 ] Jim was a witness who struggled to give straight answers even to the most basic questions. For example, when questioned about the 1998 Will he resisted agreeing with Rosemary’s counsel that Elena instructed Mr. Russo to give specific percentages from her 50% interest in one of the Pippin units. Ultimately, he agreed that Mr. Russo’s notes reflected what his mother wanted. [ 118 ] When asked if he had any evidence about duress in relation to the 2005 Will to offer the Court he paused for an inordinately long time. Finally, when no answer was forthcoming, Mr. Bohm directed Jim to his cross-examination transcript (Q1647) in which he admitted that he had no evidence of duress. [ 119 ] Jim was shown a copy of the 2005 Will. His mother’s signature was shown to him and he was asked if this was her signature. His response was “it appears to be.” His answer was the same in response to being asked whether each page had her initials on it, whether the Will was witnessed by Mr. May and Susan Day and whether their initials appeared on each page. [ 120 ] Despite Mr. May’s clear evidence that the instructions for the 2005 Will would have come from his client, Jim insisted that the instructions came from someone or somewhere else. He did not have any evidence to support this contention. [ 121 ] There were many other examples of these types of responses from Jim. Overall, I find that Jim was vague and evasive when it came to answering questions about key issues in this case. When he realized in cross-examination that he would have to give an answer that might not help him, his answers changed to the conditional such as, “that could be”, “it appears that way” or “at times maybe.” This did not assist Jim and I do not give his evidence any significant weight as a result. [ 122 ] As for the contradictions between the lay witnesses with respect to Elena’s English proficiency, I do not find that changes my view of her ability to read, understand and approve of the contents of the 2005 Will. Whatever level of English proficiency Elena had reached she was able to communicate with her employers, bankers, grandchildren and Mr. May in English. She had done two previous Wills before she came to Mr. May and logically changed each of them to reflect her circumstances (the sale of the Pinewood lots in 2000 and the purchase of the Pippin units from Jim in 2005). [ 123 ] With respect to Mr. May’s evidence, I find that it was frank and internally consistent. Mr. May conceded that he had no recollection of Elena. That is not surprising given the 13 intervening years between when he met her in 2005 and his examination in 2018. However, Mr. May had been practicing law for 29 years by 2005. It was reasonable for him to give evidence based on his usual practice and I accept that evidence. [ 124 ] While Mr. May’s notes could have been more detailed, they captured the salient details of both the 2005 Will and the Pippin purchase. Specifically, I find the following with respect to Mr. May’s evidence which accorded with his usual practice: a. He met with Elena alone. b. Mr. May did not recall meeting Rosemary nor would he have permitted her to instruct him or be present when he was taking instructions or witnessing the Will. c. He was aware that Elena had a previous Will which she knew she was revoking. d. Elena gave specific instructions as to the division of her property. e. Elena knew she was dividing her Estate unequally as between her children. f. Elena spoke English well enough that Mr. May did not need to refer her to an Italian speaking lawyer. g. Mr. May reviewed the 2005 Will with Elena page by page and then had her initial each page and sign it in the presence of himself and Susan Day. h. Elena instructed him on the Pippin purchase which included the sale price and instructions for the VTB mortgage. [ 125 ] I therefore accept Mr. May’s evidence regarding Elena’s ability to instruct him and her knowledge and approval of the contents of the 2005 Will. [ 126 ] I accept Rosemary’s evidence as well. There is a concern about her evidence that she spoke to her mother exclusively in English given that Rosemary’s Italian was the best of all of her siblings. However, this does not detract from my other findings that Elena was able to conduct her affairs in English as needed and without assistance. [ 127 ] A comment is necessary on the evidence of Giordana Ziccardi. Of all of the witnesses called, she was the one who best allowed the Court a glimpse of what Elena must have been like. Elena’s anxious anticipation of her granddaughter’s visit when peering out her front window, her careful placing of gifts on the bed or couch so Giordana could choose one and their discussions over coffee lent a picture to the Court of a woman who loved her family and treasured her relationships with her grandchildren. Giordana was very emotional in recounting her relationship with her grandmother and how much she missed her. [ 128 ] I find that it would be impossible for Giordana to have fostered such a close and significant relationship with her grandmother if they could not communicate effectively. Their communication was solely in English. [ 129 ] Finally, it cannot be left unsaid that Jim did not challenge his mother’s ability to understand the 1998 or the 2003 Wills both of which had very specific divisions of Elena’s property. He also did not challenge her understanding of the documentation related to her purchase of the Pippin units from him or the 2005 Powers of Attorney. He only challenged the 2005 Will. I find that he did so because he was simply disappointed that he did not receive Crestwood as he had in the two previous Wills, and not because he had any significant evidence of suspicious circumstances or undue influence. [ 130 ] His attempt to have the Court consider the January 2013 letter as evidence of his mother’s testamentary wishes was a final and somewhat desperate attempt to regain what he felt he had lost. The January 2013 letter cannot be given any weight. It is not signed or witnessed. Further, its provenance must be questioned given that Elena did not type or know how to use a computer. [ 131 ] As Jim has not provided sufficient evidence of duress, undue influence or suspicious circumstances, the legal burden reverts to Rosemary. Rosemary has met that burden as there is no admissible evidence that the Will was not duly executed or that Elena did not understand and approve of its contents. Issue #2 – Occupation Rent Occupation Rent [ 132 ] Jim has resided at Crestwood since 2004. His mother’s health declined to the point where she was moved to long term care in November 2015. As such, Jim resided at Crestwood on his own and without paying rent to his mother from November 2015 until her death on July 7, 2019. Rosemary is not seeking compensation for that period of time between when her mother left Crestwood and the date of death. [ 133 ] On July 9, 2024, Jim was ordered to vacate Crestwood by November 30, 2024. He has not left Crestwood. Jim sought a stay of July 9, 2024 Order. The stay motion was dismissed by the Court of Appeal. Jim appealed the decision on the stay motion. The Registrar of the Court of Appeal has advised that a written decision will be released regarding that appeal. However, that decision had not been received as of the date of these reasons. [ 134 ] After his mother’s death, Jim did not pay rent to the Estate. At his cross-examination in November 2018, he undertook to pay the costs of the Property. He has failed to do so other than a contribution of $25,958.36 towards property taxes, utilities and insurance and $15,911.62 in Court ordered monthly payments since the date of death. Other than these contributions from Jim, the Estate has paid all of the expenses of the Property. [ 135 ] Rosemary has provided rental appraisals for the period of July 7, 2019 to January 1, 2024 for the purpose of calculating occupation rent. The appraisals set out the gross rent amount and do not include utilities or taxes. Rosemary has agreed that for the purpose of calculating occupation rent owed to the Estate that the monthly rental amounts will be taken from the low range of the appraisal range. Jim did not agree with the appraisals. However, he did not provide any appraisals of his own. [ 136 ] Based on the Request to Admit dated December 23, 2024, to which Jim did not respond, the following amounts of rent for Crestwood for the years 2019 to 2024 are admitted: a. 2019 - $2,600.00 b. 2020 - $2,700.00 c. 2021 - $2,800.00 d. 2022 - $3,000.00 e. 2023 - $3,400.00 f. 2024 - $4,100.00 [ 137 ] The appraisals were prepared by AACI Certified Appraiser, Agnes Lee. Ms. Lee’s CV was included in the December 23, 2024 Request to Admit. As such, her qualifications to assess a fair market rental value for Crestwood are not contested. [ 138 ] Exhibit 12 is a breakdown of the rent owed by Jim from July 2019 to January 2025 minus credits of $41,869.98. The balance owing by Jim based on this calculation is $169,930.02. Rosemary proposes that this amount be paid from Jim’s share of the Estate. [ 139 ] Jim objects to paying this amount. His position is that his mother permitted him to stay in the home as he provided help to her and the family. Further, even after his mother left the home in 2015 he maintained it for the benefit of the family and later for the benefit of the beneficiaries. Finally, he should not be required to pay for utilities as the home is owned by the Estate. [ 140 ] Occupation Rent is an equitable remedy which is used where an individual occupies land without a lease or other right to occupy. The law implies payment for use and occupation of land. The presumption of payment may be rebutted by evidence that the occupation was intended without compensation (see Dagarsho Holdings Ltd. v. Bluestone , at para. 26 ). [ 141 ] Jim disputes any requirement to pay Occupation Rent. His position is that he occupied Crestwood at the request and acquiescence of his mother. I find that Jim’s position was more tenable when his mother was alive and able to confirm their arrangement. She died in 2019 and her 2005 Will (which this Court has found to be valid) does not accord Jim any life interest or occupation rights in Crestwood. Rather, the 2005 Will specifically requires that the deceased’s property be sold and divided into parts for her children. [ 142 ] Further, the Estate has not received rental income for Crestwood since the date of death nor the benefit of its sale proceeds. Jim’s unauthorized occupation has therefore been to the detriment of the beneficiaries, and I find that he must compensate the Estate by way of the payment of Occupation Rent. [ 143 ] The market rent valuations have been admitted into evidence by way of the Respondent’s Request to Admit. Rosemary requests that the Court accept these amounts and that Jim be given credit for amounts paid. [ 144 ] In Gray v. Siiman , 2024 ONSC 3756 , the Court dealt with a similar fact situation. A beneficiary continued living in his father’s home without authorization and despite many demands that he vacate by the Estate Trustee. He was ultimately ordered to vacate the property by February 16, 2024 and subsequently removed by the Sheriff on April 30, 2024. Mr. Siiman was ordered to pay occupation rent from the date of death in the amount of $92,400 as well as other damages and pre and post judgment interest. The amount of Occupation Rent was calculated based on an uncontroverted appraisal which found the rent amount to be $3,300 per month. The rental amount was multiplied by the 28-month period of occupancy. [ 145 ] I note that in Siiman the same rent was charged to Mr. Siiman over the entire period of occupancy which was over two years. In this case, the calculations provided by Rosemary assume that Crestwood would be rented. However, it also assumes a rental increase each year which is higher than the guideline amount permitted by the Residential Tenancies Act , 2006, S.O. 2006, c. 17 s. 120(2) 2. The calculation provided by Rosemary effectively presumes a new tenant would rent Crestwood in each relevant year. This is not how rent is calculated (even for an equitable remedy I infer) and the guideline amount would be the maximum amount permitted by the relevant legislation or 2.5% per calendar year. [ 146 ] Given the legislative limits on the rental increases and using 2019 as the base rent year I find that that in 2020 the rent would be $2,665, in 2021 it would be $2,731, in 2022 it would be $2,799, in 2023 it would be $2,868, in 2024 it would be $2,939 and in 2025 it would be $3,012. This would result in total occupation rent of $186,636. Offsetting the credits owed to Jim ($41,869.98) would result in a total amount of occupation rent owed of $144,766.02. I understand that this calculation assumes the same notional tenant rented Crestwood for the entire period, but it is this Court’s view that this approach is more reasonable given the lengthy period of occupation and the relevant legislative considerations. The Writ of Possession [ 147 ] The Respondents sought to dismiss Jim’s Application prior to trial in light of his contempt in failing to abide by the July 9, 2024 Order. Given that the Will Challenge had not yet been heard, I ordered that the Respondents were given leave to bring a motion for a Writ of Possession returnable on the first day of trial which, if granted, would not be enforceable until February 1, 2025. As I have determined in this judgment that the 2005 Will is valid, the Writ of Possession shall be granted. [ 148 ] It does not appear that Jim had turned his mind to the fact that if he was not successful on his Application, that he would have to vacate Crestwood. He has lived there rent free for over 20 years and did not seem to have an alternate plan. He made no submissions with respect to the Writ of Possession. [ 149 ] While Rosemary sought to have the Writ of Possession enforceable at the beginning of February, that is not realistic for Jim given that he must find new accommodation. On the other hand, the Estate Trustee must be able to deal with the contents of the home as well as repair and staging issues for sale. [ 150 ] In all of the circumstances, I order therefore that Writ of Possession shall be enforced no earlier than March 14, 2025. Jim must vacate by that date or he will be removed by the Sheriff. Jim may not remove any property from Crestwood other than his personal property. Orders and Costs [ 151 ] The Application is dismissed. The 2005 Will is the last valid Will and Testament of Elena Canale. [ 152 ] Jim owes occupation rent from the date of death in the amount of $144,766.02 which is net of credits owed to Jim. This amount is to be paid from Jim’s share of the Estate when available. [ 153 ] Jim must vacate Crestwood by March 14, 2025 or before. So long as he does so, he will not owe additional rent for February or March 2025. If Jim resists leaving Crestwood by this date or fails to vacate he will be required to pay rent for February, March and any subsequent months he occupies Crestwood. If any additional rent is owed by Jim for 2025 it is to be set at the rate of $3,012 per month. These amounts will also be payable from Jim’s share of the Estate. [ 154 ] The signed Writ of Possession is attached but may not be enforced until after March 14, 2025. [ 155 ] Upon vacating Crestwood, Jim may only take his own personal property. He may not remove any Estate property. [ 156 ] Upon vacating Crestwood, Jim is to leave all keys, garage openers, fobs and any other house related instructions or equipment. [ 157 ] Mr. Bohm may submit a draft Order with respect to this decision for my review and signature. The Order does not require approval from Jim Canale. [ 158 ] The parties are to provide their written submissions on costs which shall not exceed four pages excluding any Bill of Costs or Offers to Settle. All references to documents, evidence and caselaw must be hyperlinked. [ 159 ] Rosemary’s costs submissions are due seven days from the release of this judgment. Jim’s costs submissions are due seven days after that and any reply costs submissions from Rosemary are due four days after Jim’s submissions and may not exceed three pages. Costs submissions are to be sent to my assistant. [ 160 ] If no costs submissions are received within 35 days of the release of this judgment, costs shall be deemed to have been settled. C. Gilmore, J. Released: January 29, 2025 COURT FILE NO.: CV-17-00003137-00ES DATE: 20250129 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Giacomoantonio Canale Applicant – and – Rosemary Ziccardi and the Estate of Elena Canale by her named Estate Trustee, Rosemary Ziccardi Respondent REASONS FOR JUDGMENT C. Gilmore, J. Released: January 29, 2025