CITATION: DiFalco v. DiFalco, 2026 ONSC 1926

COURT FILE NO.: CV-18-65758

DATE: 2026-03-31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

CAMELA DIFALCO

H. Watson, for the Plaintiff

Plaintiff

• and -

CALOGERO DIFALCO

O. Niedzviecki, for the Defendant

Defendant

HEARD: December 8-12, 2025 and January 14, 2026

REASONS FOR JUDGMENT

The Honourable Justice J. Krawchenko

INTRODUCTION AND PROCEDURAL HISTORY

1The Plaintiff and Defendant are the children of the late Giovanni and Antonietta DiFalco.

2Giovanni and Antonietta lived a modest life in their home on Cannon Street in the City of Hamilton.

3Antonietta was a homemaker and her husband Giovanni worked outside the home. Giovanni assumed the primary responsibility for financial matters, largely due to his stronger command of English and because Antonietta lacked knowledge in that domain.

4Giovanni died in January 2005, leaving an estate for Antonietta made up of an unencumbered matrimonial home and two bank Roal Bank of Canada (RBC) accounts totaling approximately $110,000.00, with the majority of the funds being held as GICs. Antonietta also received a fixed income from pensions.

5In July 2005 , Antonietta appointed both parties as her attorneys for property and personal care. Shortly thereafter, and without the Defendant’s knowledge, the Plaintiff was added as a joint account holder on Antonietta’s bank accounts. In November 2006, the Plaintiff facilitated the preparation of a Will that favored her family. A subsequent Will was prepared by the Defendant and executed by Antonietta in January 2007.

6After suffering a hip fracture in 2011, Antonietta’s health deteriorated, she experienced failing vision, difficulty ambulating and a cognitive decline. Antonietta moved to the Orchard Terrace (OT) long-term care facility in 2013. Antonietta was never formally assessed by a capacity assessor to provide a definitive determination of her capacity. It is not disputed that Antonietta had significant health related challenges and relied heavily on caregivers and her family for assistance.

7In 2015, the Defendant discovered that Antonietta’s accounts had been substantially depleted, prompting the dispute that ultimately resulted in an order compelling the Plaintiff to account.

8Antonietta died on 28 March 2017, she was 91 ½ years old.

9In his written reasons of 4 May 2018, Justice Nightingale found that the Defendant had standing to seek the accounting, he also noted that the Plaintiff conceded that she should account for the expenditures or disposition of the initial assets of her late mother’s estate and to provide full details.

10Justice Nightingale rejected the Plaintiff’s reliance on s. 38(1) of the SDA and ordered that the Plaintiff account for her dealings with Antonieta’s assets, citing concerns arising from her control of the accounts, commingling of funds and admitted personal use. Justice Nightingale adopted the reasoning of Patillo J. in McAllister Estate v. Hudgin, 2008 ONSC 42213, finding that an accounting was necessary.

11At that early stage, rather than proceeding as a “formal” passing of accounts, the Court ordered that the Plaintiff immediately produce to her brother, all of the financial records in her possession relating to her involvement in Antonietta’s financial affairs including all the relevant bank accounts statements and records from July 2005 to March 2017 and that if they were no longer in her possession that she take immediate steps to obtain copies form the financial institutions. The Court further ordered that Plaintiff provide her brother with an accounting regarding the disposition of the $110,000 of RBC assets and the GIC along with a full accounting of all expenditures she incurred on Antonietta’s Visa account for her own personal use. Additionally the Court ordered the Plaintiff to provide her brother with a detailed account of all monies received from her mother’s estate since July 2005, either personally, or for her personal expenses/debts or to her children or others.

12On 15 May 2018, an Order Giving Directions was made, which set the stage for this trial. In that Order the Defendant was appointed as the Estate Trustee During Litigation.

13At the core of this dispute were the Will challenge and the legal consequence flowing from a gratuitous joint bank account between Antonietta and the Plaintiff and the standard of accounting that flows from the presumption of resulting trust.

THE PLEADINGS

The Statement of Claim

14In her claim the Plaintiff sought a declaration that her mother’s Will dated 29 November 2006, was valid and that the Will of 07 January 2007, was invalid. In addition to this, she sought punitive and/or exemplary damages against the Defendant.

Statement of Defence and Counterclaim

15The Defendant denied his sister’s allegations in their entirety.

16In his counterclaim, the Defendant sought damages based on unjust enrichment, alternatively that the Plaintiff repay the estate what was owed together with punitive damages.

THE WITNESSES and EVIDENCE

Plaintiff

17The Plaintiff testified and called three additional witnesses, Sgt. Gino Ciarmoli, Daniella Bozur and Deborah Turner, she also tendered an affidavit from solicitor Frank Calcagni, which was entered on consent.

18The Plaintiff’s acknowledged her extensive use of the joint accounts. She accessed the accounts with a debit card. Initially the Plaintiff asserted an entitlement to the funds in those accounts due to joint ownership yet also claimed that the expenditures were for Antonietta’s benefit and were expressly approved by Antonietta with all receipts being shown to Antonietta. Also any expenditures that were for the Plaintiff’s own benefit were made on Antonietta’s instructions.

19In cross examination, the Plaintiff confirmed that she could not account for the funds from 2005 -2010 but attributed this to bank retention of records rules and issues with her counsel. The financial records that were produced by the Plaintiff for the period 2010- 2017 were a combination of clearly identifiable expenses related to Antonietta (such as house related expenses, utilities, and medical expenses), together with numerous generic receipts, which made up the majority of that accounting record.

20In regard to the movement of funds the Plaintiff admitted to transferring funds from her mother’s accounts to her own accounts, before spending the money, rather than making payments directly from the joint accounts which she admitted could easily have done.

21In her testimony the Plaintiff stated that her parents favored her and her children over the Defendant and his family.

22Sgt. Gino Ciarmoli testified to his attendance at the OT, his evidence was limited to surface observations and carried little weight.

23The Plaintiff’s daughter Daniella Bozur and friend Deborah Turner testified regarding the Plaintiff’s caregiving efforts for Antonietta and to family relationships. None had involvement in, or knowledge of, Antonietta’s finances. Their evidence was therefore of limited relevance to the issues before the Court.

24The evidence of Frank Calcagni was received in the form of an affidavit and related solely to a Statutory Declaration that he did not author. The Statutory Declaration memorialized Antonietta’s desire to gift the sum of $25,000.00 to the Plaintiff and was signed in August 2013. Mr. Calcagni deposed that although he didn’t have a specific recollection of his meeting, he did meet with Antonietta about her intention to make a gift to her daughter, that he speaks fluent Italian speaking and that although she spoke some English, Antonietta was also fluent in Italian. In his capacity as a lawyer, Mr. Calcagni deposed to his standard of practice in cases where clients are making statutory declarations about gifts of large sums of money, and his inquiry into the client’s understanding, if it is being made as a result of undue influence and generally if the declarant appears to have capacity to make the gift.

Defence

25The Defendant testified and called three additional witnesses, Suzanne Young, Teresa DiFalco and Amanda DiFalco.

26The Defendant’s testimony focused on familial history and what he believed to have been the plan to manage Antonietta’s finances after Giovanni’s death which was to arrange for direct payments from Antonietta’s accounts for recurring costs and to consult on any large transactions.

27The Defendant testified to an equal historic treatment of both siblings and a close family relationship until he discovered missing funds in 2015. The Defendant provided the background and reasoning behind the preparation of the 2007 Will which was done at the behest of Antonietta and to its ultimate execution. He testified to confronting his sister about his mother’s depleted accounts and he testified to his own assessment of Antonietta’s income and expenses for the period between 2005 and 2017, highlighting expenses that he viewed to be legitimate while also pointing to those which were not.

28Suzanne Young was called and testified in relation to her attendance at Antonietta’s home in January 2007 and being one of the two witnesses to the signing of the Will and her observations relative to same.

29Teresa DiFalco, spouse of the Defendant, testified in relation to the DiFalco family dynamics and provided a contrasting view of that put forward by the Plaintiff and her daughter.

30Amanda DiFalco, the Defendant’s daughter also testified to the family relationships, that of a close and loving family and also about her observations of her grandmother’s medical decline upon entering OT.

Credibility and Reliability of the Witnesses

31The Plaintiff’s credibility was materially compromised on the core issues of accounting, and financial control. She admitted to misleading the Defendant about the $25,000 transfer, failed to account for significant periods, and conflated joint account status with ownership and authority.

32Sgt. Ciarmoli was a credible and reliable witness, however, his evidence was of limited value, was non determinative of any issue at trial and was afforded little weight.

33Daniella Bozur’s evidence was partisan and overreaching, showing a very close alignment to her mother, the Plaintiff. She did not offer any relevant evidence.

34Deborah Turner was generally credible, but her evidence offered little to the issues before the court other than background context.

35Suzanne Young was credible and reliable with clear and specific recollection of the 2007 Will execution.

36Teresa DiFalco was credible and composed and provided largely corroborative evidence relating to the historic family relationship. Her testimony was neither partisan nor overreaching.

37Amanda DiFalco was also a credible and reliable witness. Her testimony was restrained and addressed family dynamics and her grandmothers functional ability at OT.

38The Defendant was credible and generally reliable. He was more restrained than the Plaintiff in his evidence that laid bare the family dynamic and the situation that led to this litigation. He was willing to concede uncertainty when appropriate in relation to his estimates of what he claimed were misdirected, misappropriated or not accounted for funds.

THE ISSUES

39There were two issues in this trial:

a. The first was to determine if the Will dated 7 January 2007 was valid? and

b. Secondly, to the conduct an accounting of Antonietta’s money.

Issue #1 – Validity of the 2007 Will

40In November 2006, Antonietta signed a Will that was prepared by her lawyer.

41Antonietta signed a subsequent Will in January 2007, which was prepared by the Defendant.

42The notable differences between the 2006 and 2007 Wills were that:

a. in the 2006 Will, both Plaintiff and Defendant were named as joint estate trustees and in the 2007 Will only the Defendant was named as estate trustee;

b. in the 2006 Will there were two specific bequests of $5,000.00 each made to the Plaintiff’s two adult daughters, with no gift to the Defendant’s daughter; and

c. in the 2006 Will, the gift over clause (in the event that the Defendant predeceased his mother), benefited only the Plaintiff’s family, whereas, in the 2007 Will, both Plaintiff and Defendant’s families were treated equally.

43Both Wills provided for the equal sharing of the residue as between the Plaintiff and Defendant.

44As the propounder of the 2007 Will, the Defendant bore the onus of proving:

a. Antonietta’s testamentary capacity.

b. Antonietta’s knowledge and approval of the Will’s contents; and

c. Due execution of the Will.

45The Plaintiff alleged suspicious circumstances existed and that the Defendant exercised undue influence over Antonietta in relation to the 2007 Will’s preparation and execution. The Plaintiff bore the burden to adduce or point to some evidence, which if accepted, would tend to negative knowledge and approval of the Will’s contents or testamentary capacity. The Plaintiff pointed to the following in support of her allegations:

a. The Defendant’s use of a Will kit;

b. The Defendant’s role in drafting the Will;

c. The absence of a lawyer; and

d. Secrecy in withholding information from the Plaintiff about the existence of the 2007 Will.

46The law provided that if the suspicious circumstances were established, the evidentiary burden would then shift back to the propounder of the Will to dispel those suspicions.

Proving the 2007 Will

Capacity

47Antonietta’s testamentary capacity at the time of signing the 2007 Will was not an issue, thus leaving only knowledge/approval and due execution to be proved by the Defendant.

Knowledge, Approval and Execution

48As for knowledge, approval and execution of the January 2007 Will, the court heard the testimony of the Defendant and Suzanne Young.

49Suzanne Young was a credible and reliable witness whose testimony was consistent, having a clear and specific recollection of the Will execution. She had no evident motive to fabricate and notwithstanding having sustained a head injury subsequent to the signing of the Will, she addressed the impact of that injury directly. She testified that at the time of her head injury she did suffer from temporary-partial memory challenges, but they had long since resolved and did not impact her recollection of the Will signing. Her account of the Will signing was internally coherent, consistent and believable. Ms. Young testified that the Defendant requested that she attend at the home of the Deceased, to act as a witness. Ms. Young had known the Deceased for a long time. Ms. Young testified that she was warmly welcomed by the Deceased when she arrived, the Will was read to the Deceased in English and Italian by the Defendant, that the Deceased indicated comprehension of the Will by responding “I understand,” and that nothing about her behaviour was unusual. The deceased appeared lucid and understood the document.

50The Court also heard testimony from the Defendant whose evidence provided a cogent explanation for his preparation of the 2007 Will. I accepted the Defendant’s evidence that Antonietta was upset about the content of the November 2006 lawyer‑drawn Will, which she felt favoured the Plaintiff and her family and instructed the Defendant not to return her to the initial drafting lawyer and not to involve the Plaintiff. The Defendant purchased a “Will kit” and referenced the 2006 Will as a precedent and prepared the 2007 Will. On its face, the 2007 Will was properly drafted and provided for an equal division of the estate between the two siblings, thus accomplishing the fairness that the Deceased sought. The Defendant understood the need for two witnesses for the Will signing and arranged for them to attend at his mother’s home. The two witnesses were well known to Antonietta and were chosen so that Antonietta would feel comfortable. The Defendant read the 2007 Will to his mother in both English and Italian, she orally indicated that understood and approved it. She signed the Will in the presence of the two witnesses. This testimony was credible and reliable and consistent with the evidence of Suzanne Young.

51On the evidence I am satisfied that the Defendant met his onus in proving the 2007 Will.

Suspicious Circumstances

52On this issue, the Plaintiff met her onus in pointing to evidence that raised the specter of suspicious circumstances. In so doing, the onus returned to the Defendant to dispel them, which I find he did.

53I have accepted the evidence of the Defendant that it was his mother that initiated a discussion about revising her 2006 Will with the articulated reason of avoiding favoritism that was present in that Will. The Defendant acted on the basis of his mother’s instructions to rectify the situation

54I further accepted that the Defendant made use of a commercially available Will kit along with the 2006 Will and precedent. In the circumstances of this case and on the Defendant’s evidence, I have found that there was nothing suspect about employing this process.

55Additionally I note that there was no requirement in law that a lawyer be involved in the preparation or execution of the new Will, that being said, in some cases this might prove to be highly suspicious, but not on the facts of this case and specifically given that the 2007 Will addressed the undesired preferential treatment of the Plaintiff and her family in favour of an equal division/sharing as between the Plaintiff and Defendant.

56As for the Plaintiff’s suggestion that it was suspicious that she was not made aware of the preparation and execution of the 2007 Will, the lack of candor as between siblings did not amount to suspicious circumstances because if Antonietta wanted the Plaintiff to know about the 2007 Will, she would have told the Plaintiff, just as she told the Defendant about the 2006 Will. Antonietta was competent to make that decision at that time.

57I am satisfied that the Defendant has discharged his onus in addressing the allegations of suspicious circumstances and I find none.

Undue Influence

58I turn briefly to the Plaintiff’s allegations of undue influence.

59The Plaintiff alleged the following in support of a finding of undue influence:

a. control,

b. dominance, and

c. opportunity to overbear Antonia’s will.

60In challenging the will on the basis of undue influence, the Plaintiff carried the legal burden of proving that coercion overbore her mother’s free will. In other words, undue influence required the Plaintiff to prove that the Defendant’s pressure was so great and overpowering that the January 2007 Will reflected the Defendant’s wishes and not those of the Deceased.

61The applicable standard of proof is the civil balance of probabilities. Evidence must be specific and persuasive, not speculative or rooted in family dissatisfaction.

62There was no evidence to support the allegations and they could not be inferred from the family dynamics that existed.

63The court finds that undue influence was not proved.

The 2007 Will

64Based upon the foregoing I find that the 7 January 2007 Will was valid. Antonietta had testamentary capacity in January 2007, she understood and approved the Will as drafted, which she then duly executed, in the presence of two witnesses who signed in her presence and in the presence of each other, as described by Ms. Young and borne out by her affidavit of execution and she was not unduly influenced in the making of that Will.

Issue #2 – The Accounting

65A number of questions arose in relation to this issue.

a. Was the Plaintiff required to maintain accounts for Antonietta during the relevant period and to what standard?

b. If so, did the Plaintiff meet her duty to account for funds belonging to the Deceased?

c. Were withdrawals/transfers and credit‑card charges justified as being for the Deceased’s benefit?

d. What relief if any was appropriate?

The Keeping of Accounts

66At trial the Plaintiff argued that pursuant to Section 38(1) of the SDA she really didn’t have any duty to account to Antonietta because the duties of accounting only extended to an attorney such as her, acting under a continuing power of attorney, if the grantor was incapable of managing property, or if the attorney had reasonable grounds to believe the grantor was incapable of managing property. The Plaintiff argued that those preconditions did not exist.

67The Section 38(1) argument is somewhat academic in that it was addressed by Justice Nightingale and rejected. On the facts of this case, the Plaintiff was ordered to account for her actions in relation to her mother’s assets from 2005 to 2017, further the Plaintiff agreed that an accounting should be done and that is what she was required to do at trial.

68The Plaintiff also argued that if an accounting was required, Section 32(7) of the SDA set out the standard of accounting for an attorney receiving no compensation as exercising a degree of care, diligence, and skill that a person of ordinary prudence would exercise in the conduct of their own affairs.

69Antonietta relied heavily on her family in relation to financial matters, first she turned to her husband and after his death, she engaged her children to provide the needed help through a POA.

70The evidence supported a finding that the Plaintiff initially and for a very short time, acted for Antonietta as an attorney under the POA in the most general of terms. For reasons that were unclear on this record, Antonietta went one step further and added the Plaintiff as a joint account holder, which at that moment placed the Plaintiff in a special position outside of the POA, in a position of a trustee/fiduciary, as opposed to an agent/fiduciary.

71It is presumed in law that when Antonietta gratuitously added the Plaintiff as a joint account holder to her accounts, those accounts where then held by the Plaintiff on resulting trust for her mother and upon death, for the benefit of Antonietta’s estate .

72In her evidence in chief, the Plaintiff made numerous references to the joint accounts and having a right of survivorship over those accounts, suggesting that by virtue of that designation, those accounts were meant to be hers upon her mother’s death. In cross-examination the Plaintiff demurred from that position and agreed that the money in the joint accounts belonged to her mother. The use of “right of survivorship” language did not by itself, rebut that presumption of the resulting trust. To be clear, when the Plaintiff became a joint account holder, the Plaintiff took on the role of a trustee on a resulting trust over her mother’s two bank accounts, for the benefit of Antonietta.

73While both an attorney under a power of attorney and a resulting trustee owe fiduciary duties, the Plaintiff’s status as a gratuitous joint account holder placed her in the position of a resulting trustee, triggering a strict obligation to fully account for all dealing with the trust property. Even if this characterization were incorrect, the Plaintiff’s accounting would fail under any applicable standard.

Did the Plaintiff Meet Her Duty to Account

74For reasons set out above, the Plaintiff failed to meet her duty to account. She could not explain material transactions, failed to account for extended periods, commingled funds, and offered explanations unsupported by reliable records. As a trustee, she bore the burden of justifying every transaction, and any ambiguity was properly to be resolved against her.

75The Plaintiff’s duty to account commenced in 2005. She was unable to provide an accounting from 2005 to 2010 citing missing bank records and reliance on counsel. Her subsequent accounting to the date of her mother’s death was suspect.

76As a trustee, the Plaintiff had a positive duty account for the entire trust property, to justify any use, transfer or disposition of that property and to restore any misapplied funds. That meant that proper accounting needed to be maintained, the accounts needed to be clear, precise and verifiable. The trustee bore a strict evidentiary burden and any ambiguity, missing records and any unexplained or dubious transactions were resolved against the trustee.

77There were many examples in the accounting record tendered by the Plaintiff of opaque and inexplicable movements of funds between Antonietta’s accounts to the Plaintiff and commingling of funds. The Plaintiff acknowledged extensive personal use of the subject joint accounts, first asserting an entitlement to do so by virtue of “joint account” status and subsequently by claiming that all expenditures where either approved by Antonietta or paid for her benefit.

78The Plaintiff was a trustee/fiduciary and ought to have kept proper accounts and she did not. The objective of keeping accounts was to hold the Plaintiff accountable and to ensure that she was acting honestly and reasonably, it was not a test of her ability to subsequently collect and present receipts, the production of which alone, proved nothing where the expenses were either clearly unreasonable or unexplained.

79Although I have determined that the higher standard of accounting was required of the Plaintiff as a trustee, if I was incorrect in finding her to be a trustee, as an attorney, I would have also found that she had been compensated for her efforts and a higher standard of accounting would be required, and if I was incorrect in attributing compensation to the Plaintiff, I still would have found that she did not meet the lowest standard of exercising a degree of care, diligence, and skill that a person of ordinary prudence would exercise in the conduct of their own affairs.

Where the Expenditures/Withdrawals Justified and for the Benefit of the Decease

80The answer to this question is Yes and No. When transactions or expenses raise the suspicions of the Court, accounting, records and rational explanations for those transactions or expenses becomes critical. Conversely, when in all the circumstances, the transactions or expenses do not raise the suspicions of the Court, the level of accounting and record keeping is lessened, subject to a reasonable explanation being provided, because those transactions or expenses makes sense.

81The Plaintiff relied heavily on generic receipts, including grocery expenses incurred while Antonietta resided at OT, which were unsupported by any credible linkage to Antonietta’s needs.

82In considering the evidence of the Plaintiff in relation to her accounting, I found that the Plaintiff’s testimony suffered from internal inconsistency, significant reliability defects, including evasiveness, contradictions, selective memory, and an admitted willingness to mislead her brother on material financial matters

83These credibility findings materially informed the resolution of the accounting issues.

What is the Appropriate Relief

84In review of the evidence tendered, including exhibit 9, I have found that funds expended for the carrying costs of the Cannon Street until its ultimate sale, for Antonietta’s groceries between 2005 and 2013, for medical expenses including prescriptions and medical services, with a generous allowance for spending money and gifts, that those expenses were justified and appropriate as spent. The costs of room and board at the OT, from 2013 until 2017 were also justified and appropriate.

85The costs of maintaining the Cannon Street property totaled $90,462.50. The grocery allowance for the period leading up to Antonietta’s admission to OT was $43,200.00. The allowance of spending money of $100 per month totaled $9,000.00. The costs of room and board at OT was $77,490.14.

86The total of the approved costs in relation to Antonietta from 2005 to 2017 were $220,152.64.

87The gift to the Plaintiff of $25,000.00 as documented in Exhibit 22 in Antonietta’s statutory declaration was also a permissible expense paid from her capital account.

88The total approved costs together with the gift equals $245,152.64.

89With regards to the balance of the expenditures, they were rejected as they were either based upon generic receipts that were not acceptable proof of the disbursement for the benefit of Antonietta or could not be justified as a proper/legitimate expense.

90It is uncontroverted that in 2005, Antonietta had approximately $110,000.00 in her accounts and that Antonietta received pension income of $272,595.93 between 2005 and 2017 and the two amounts together total $382,595.93.

91By deducting the approved costs from the total of Antonietta’s starting balance and income over the relevant period, I find that the sum of $137,443.29 is unaccounted for by the Plaintiff and or misapplied for other purposes and was not used for the benefit of Antonietta.

92The Plaintiff’s claim is dismissed. The court Orders that the Plaintiff repay the Estate of Antonietta DiFalco the sum of $137,443.29 forthwith.

93If the parties cannot reach agreement on costs, they may each deliver their respective written submissions as follows:

a. The Defendant shall deliver his costs submissions within 14 days of the release date of this decision.

b. The Plaintiff shall deliver her costs submissions withing 21 days of the release date of this decision.

c. Submissions shall be limited to 3 pages, double spaced, excluding bills of costs and offers to settle

d. If a submissions is not received within the contemplated timeframe, that party shall be deemed to take no position. If no submissions are received within the set timeframe, the parties shall be deemed to have settled the issue of costs as between themselves.