Adler v. Adler, 2026 ONSC 2882
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Melanie Adler, Joshua Adler and Michael Adler in their capacity as estate trustee of the estate of Shlomo Adler
AND:
Shulamit Hannah Adler
AND RE: Shulamit Hannah Adler
AND:
Melanie Adler, Joshua Adler and Michael Adler in their capacity as estate trustee of the estate of Shlomo Adler
BEFORE: J.T. Akbarali J.
COUNSEL: Jacob Kaufman and Ava Naraghi for the applicants/respondents/responding parties
Justin de Vries, Karen Watters, and Jonathan Vander Zee for the respondent/applicant/moving party
HEARD: April 23, 2026
ENDORSEMENT
Overview
1The applicants commenced an application for, among other things, a declaration that property held jointly between the respondent and the deceased at the time of the deceased’s death is property that the respondent holds in trust for the estate. Before me, the respondent brings a motion for summary judgment for an order that the relief sought by the applicants regarding the joint property was brought outside of all potentially applicable limitation periods and should be dismissed as a result. She also seeks an order that the limitation period ruling apply to an application she has brought to pass her accounts of the estate to prevent the applicants from adjudicating the question of the ownership of the joint property in that proceeding.
Background to the Case
2Because all parties to this litigation share the same last name, for clarity, I respectfully use first names in this endorsement.
3This litigation involves the descendants of the deceased, Penina Adler. Penina and her husband Nathan had three children: (i) a son who predeceased them without leaving issue; (ii) their daughter, the respondent Shulamit; and (iii) their son, Shlomo.
4Shulamit is married to Mark. She has lived in the United States for many years.
5Shlomo was married to Honey. Together, they had three children: the applicants Melanie, Joshua, and Michael. Shlomo and Honey separated in 1992 and later divorced. According to Shulamit, Shlomo was left destitute after the separation.
6Shlomo had serious health problems. He was on ODSP and unable to work. After he separated from Honey, he moved in with his parents at their home located at 38 Elm Ridge Drive in Toronto.
7Nathan died on July 12, 1993, leaving his estate to Penina.
8Several months later, in October 1993, Penina executed a new will, appointing Shulamit and Shlomo as joint estate trustees and equal beneficiaries. At the same time, she executed powers of attorney for property and personal care, naming Shulamit and Shlomo as joint attorneys. Around this time, there was some discussion about moving the Elm Ridge property from Penina’s sole name into joint tenancy with Shulamit, but no such transfer took place then.
9Several years later, in March 1997, Penina began to plan to transfer the Elm Ridge property into her and Shulamit’s name jointly. She also began to plan for a will in which Shulamit would be her sole beneficiary. However, no such will was ever executed.
10On May 5, 1997, Penina executed a continuing power of attorney for the Elm Ridge property appointing Shulamit or Shlomo as her attorney. She executed a power of attorney for personal care appointing Shulamit. She also signed a transfer of the Elm Ridge property to her and Shulamit jointly.
11On July 20, 1997, Penina died. Her October 1993 will was the last will she executed and it was never revoked. At the time of her death, her estate was comprised of about $50,000 of assets. The Elm Ridge property and bank accounts worth several hundreds of thousands of dollars were held jointly between Penina and Shulamit and passed outside the estate.
12The parties have different explanations for Penina’s testamentary planning. Everyone agrees that Shlomo was concerned about inheriting assets from Penina that could impact his entitlement to ODSP. It is apparent that Penina, Shulamit, and Shlomo were aware that assets that passed through the right of survivorship would not be subject to probate. It also appears that Shlomo may have been concerned about Honey being able to access his assets were he to receive any from Penina.
13Shulamit states that Shlomo did not want to inherit anything from Penina due to the need to protect his disability benefits and to protect his assets from Honey; as a result, in accordance with Penina’s and Shlomo’s wishes, she inherited the Elm Ridge property as well as the funds in the bank accounts that she held jointly with Penina.
14Melanie, Joshua, and Michael state that the placement of the property and bank accounts in joint ownership was an estate planning tool to avoid probate and avoid any negative impact on Shlomo’s disability payments, but they state that the jointly held assets remained estate assets, impressed with a resulting trust.
15At some point after Penina’s death, Shlomo considered renouncing his estate trustee role, but counsel advised that he not do so. Among other reasons, Shulamit was an American resident which could cause issues for the estate administration. Shlomo and Shulamit acted as co-estate trustees of Penina’s estate, although they did not seek a certificate of appointment of estate trustee at any time. Shulamit states that because the bulk of the assets passed through the right of survivorship, she believed there was no need to apply for probate.
16Shlomo died on January 7, 2002, about four-and-a-half years after Penina’s death. At that time, Melanie was 16 years old, Joshua was 14 years old, and Michael had just turned 13.
17Shulamit states that Shlomo left a will naming her estate trustee. The original will has been lost; it is unclear when. All that exists of the will is a copy. It is not clear that the will could be proven, or the presumption of revocation overcome.
18In any event, Shulamit made efforts to wind up Shlomo’s affairs, including cleaning out his home and closing his utilities accounts. She sold his personal possessions after Shlomo’s children had the opportunity to take what they wanted. She and Mark paid their own money to clear Shlomo’s debts and cover his funeral expenses. She did not apply for a certificate of appointment of estate trustee. She states that she understood Shlomo had no assets, and there was no need.
19A little while after Shlomo’s death, Honey made some enquiries to determine whether Nathan, Penina, or Shlomo had made any provision for Melanie, Joshua, or Michael. She retained a lawyer who, in August 2002, wrote to the lawyer who had drafted Penina’s will, Martin Zeidenberg. Mr. Zeidenberg responded advising that Nathan’s will provided for Penina, and Penina’s will only provided for Shulamit and Shlomo. He advised that he understood Shulamit was the estate trustee of Shlomo’s estate, and that he had not been retained in connection with the administration of Shlomo’s estate.
20Melanie turned 18 on October 22, 2003. Joshua turned 18 on February 7, 2005. Michael turned 18 on January 6, 2007.
21Many years later, on May 23, 2016, Melanie emailed Shulamit asking about whether Nathan, Penina, or Shlomo had left any inheritance for her, Joshua, or Michael. She said they had been wondering about it for quite some time. She also asked Shulamit what was happening with the house on Elm Ridge.
22Melanie and Shulamit exchanged some emails. Shulamit was in the midst of some serious medical issues which have continued to impact her. She explained to Melanie that her medical issues prevented her from responding quickly. By September 2016, she sent Melanie a lengthy email in which she explained Shlomo’s dire financial condition after he and Honey separated, and continuing until his death. Shulamit wrote that she supported Shlomo financially after Penina’s death to the extent permitted by ODSP, and paid half of Shlomo’s children’s day school fees because, although Shlomo wanted to pay for them, he did not have the funds.
23She told Melanie that “as far as [she knew]” the only assets in Penina’s estate were “inconsequential certificates of low value stocks.” Shulamit also advised Melanie that Penina left the assets in her estate to Shlomo and Shulamit, and that there were no other beneficiaries. She explained that she and Penina had been joint owners of the Elm Ridge property which passed to Shulamit on Penina’s death. Shulamit stated that she was the sole owner of the Elm Ridge property. She did not mention the bank accounts that passed to her through the right of survivorship.
24In 2017, Honey found stock certificates that had belonged to Shlomo. In 2019, Melanie, Joshua, and Michael applied for a certificate of appointment of estate trustee without a will. They were unaware of the copy of Shlomo’s will.
25In December 2021, Melanie got a message on Facebook from someone trying to find Nathan, Penina, Shlomo, Shulamit and Mark relating to a property in which Penina had an interest in Israel. According to Melanie, she provided Shulamit’s contact information to a lawyer in Israel regarding the Israeli property and learned in March 2022 that Shulamit had not responded to the lawyer. In May 2022, Melanie asked for a copy of Penina’s will. In August 2022, Shulamit advised that she had located assets belonging to Penina’s estate and would provide notice of the interest of Shlomo’s estate in those assets. She also indicated that she had tracked down a copy of Penina’s will and would provide it once she received it. She provided the will to Melanie on August 29, 2022.
26There were some further exchanges between Melanie and Shulamit in 2022 and 2023. At this point, it suffices to say that Melanie, Joshua, and Michael were not satisfied with the answers they received from Shulamit.
Procedural History
27In November 2023, Melanie, Joshua and Michael commenced their application, seeking Shulamit’s removal as estate trustee of Penina’s estate, an order to compel Shulamit to pass her accounts, and a declaration that the assets held jointly between Shulamit and Penina are estate assets.
28Shulamit consented to an order passing her accounts and commenced an application to do so. Melanie, Joshua, and Michael sought a further and better accounting that would include the assets jointly held between Shulamit and Penina at Penina’s death. Gilmore J. ordered that the further and better accounting be produced but also ordered that the order for a further and better affidavit verifying accounts shall not be construed as an admission by Shulamit that the joint assets are held in trust for the deceased and/or her estate.
29There followed some procedural skirmishes between the parties over what the next steps ought to be. Shulamit sought to bring this summary judgment motion, while Melanie, Joshua, and Michael wanted to proceed to the passing of accounts application. On a motion for directions, Shulamit obtained an order that this motion proceed.
First Issue – Is summary judgment available?
30When this motion was assigned to me, I wrote to counsel and asked them to come prepared to address the Court of Appeal’s decision in Maurice v. Alles, 2016 ONCA 287, cited in Wall v. Shaw, 2018 ONCA 929. I also invited them to review the decisions of the Court of Appeal in Malik v. Attia, 2020 ONCA 787 and Kotsopoulos v. Toronto (City), 2026 ONCA 121.
31In Maurice, the Court of Appeal considered an appeal from a summary judgment motion brought in an application. On appeal, for the first time, the appellant’s counsel raised the question of whether a motion for summary judgment is available in an application. After noting that generally a party who has participated in a process in the court below without complaint cannot object to that process on appeal, the court held it was nonetheless important to address the availability of a summary judgment motion on an application: Maurice, at para. 25.
32The Court of Appeal made reference to two decisions of this court which determined that a summary judgment motion is not available in applications. It agreed with the analyses of those courts. It wrote, at paras. 29-33:
The starting point in the analysis is the language of Rule 20. It is clear that the rule contemplates that it will be used in the context of an action and not an application. The rule specifies that a motion for summary judgment is available to a "plaintiff" after the delivery of the "statement of defence" on all or part of the claim in the "statement of claim". Similarly, a "defendant" may move for summary judgment to dismiss all or part of the claim in the "statement of claim".
The emphasized terms are defined in rule 1.03 and it is plain that they apply in the context of an action and not an application. A plaintiff is defined as "a person who commences an action" and a defendant is "a person against whom an action is commenced". An action is a proceeding that is not an application and includes a proceeding commenced by, among other things, a statement of claim.
There is no reference in the text of Rule 20 to an "applicant", who is defined in rule 1.03 as "a person who makes an application" or to a "respondent" who is defined in rule 1.03 as "a person against whom an application is made or an appeal is brought, as the circumstances require". Nor does the summary judgment rule mention a "notice of application", which is the originating process for an application.
The drafters of the summary judgment rule made a deliberate choice to restrict its availability to actions. There is a valid policy rationale for this restriction. Summary judgment is a simplified procedure, designed to determine all or part of an action in a summary manner, in order to reduce expense and preserve court resources. An application is also a summary process. Its use is restricted, pursuant to rule 14.05(3), to situations where an application is permitted under the Rules or in cases where certain enumerated relief is claimed. Evidence is generally supplied through affidavits and cross-examinations conducted out of court. Where there is conflicting evidence that requires credibility determinations on central issues, the application must be converted to an action: see Baker v. Chrysler Canada Ltd. (1998), 1998 CanLII 14672 (ON SC), 38 O.R. (3d) 729, [1998] O.J. No. 531 (Gen. Div.). If a proceeding is capable of being resolved as an application, it should be, as that is the most expeditious and least expensive determination of the proceeding on its merits. There is no utility in layering on to this summary process another summary process.
This is not a situation, as the respondents submit, where there is a lacuna in the Rules and the court is required to utilize rule 1.04 to interpret Rule 20 as if it applied to applications under Rule 14. Rule 38.10(1)(b) empowers a judge to order that all or part of an application proceed to trial. Pursuant to rules 38.10(2) and (3), where the application judge orders that all or part of an application should proceed to trial, the proceeding is thereafter treated as an action in respect of the issues to be tried subject to the directions in the order directing a trial. The practical effect of rule 38.10 is that the summary judgment vehicle in Rule 20 will be available to resolve the issues in a Rule 14 application after the application is converted by judicial order into an action.
33The decision in Maurice thus makes clear, consistent with the language and definitions in rr. 1 and 20 of the Rules of Civil Procedure, that no summary judgment motion can be brought in an application. This makes perfect sense. On a summary judgment motion, the court asks whether there is a genuine issue requiring a trial. On an application, there is no trial, unless the court directs a trial of an issue. Here, no one suggests a trial of the limitation period issue is required; they proceeded to develop their argument on the basis that the issue could be determined summarily. That summary determination can be done in the application.
34Shulamit argued that, in my discretion, given the proportionality that she argued arises from a determination of the limitation period issue first, I could proceed to hear the summary judgment motion. I disagree. While in Maurice, the court concluded that the hearing of a summary judgment motion in an application was a procedural defect that caused no prejudice, and so did not warrant interference on appeal, I am not prepared to embark on a procedurally deficient hearing on the basis that I have discretion to do so in the face of the clear ruling in Maurice that summary judgment is not available in an application.
35I of course understand that the parties have invested significant time and resources in preparing the issues for argument. They have an order directing Shulamit to bring the motion. Still, I am mindful of the recent guidance of the Court of Appeal in Kotsopoulos. In that case, a motion for partial summary judgment was scheduled in Civil Practice Court. The motion judge indicated that he would not have permitted the motion to be scheduled in view of the direction of the Court of Appeal in Malik. However, he concluded that the parties having secured the date and incurred the time and expense of preparation, he would reluctantly hear the motion.
36The Court of Appeal agreed with the motion judge that the case was not appropriate for partial summary judgment. It found that, having reached that conclusion, he ought to have dismissed the motion. At para. 11, the Court of Appeal concluded that, despite the important screening role Civil Practice Court plays, it remains the obligation of the motion judge to assess whether partial summary judgment is appropriate.
37Similarly, the fact that the parties have invested time and expense in readying this motion for hearing does not relieve me of my responsibility to ensure that the process is appropriate. A summary judgment motion in an application is not an appropriate process. It is not even an available process.
38What Shulamit actually seeks is a determination of part of the application - her limitation period defence – because she believes it is a threshold issue. If the limitation period bars the claim to the joint property raised by Melanie, Joshua, and Michael, the issues in the application are disposed of or at least significantly narrowed, and the issues in the passing of accounts application are, in her submission, similarly narrowed.
39At the hearing, when I put to Shulamit that I viewed her request substantively as a request for a hearing of part of the substantive questions to be resolved in the application, she indicated that she was prepared to convert the summary judgment motion to a partial hearing of the application.
40Melanie, Joshua, and Michael did not agree to the proposed conversion and argued that, for the reasons I had raised, a summary judgment motion was not available. I do not place much stock in their position. Although they had objected to scheduling the motion on prior attendances, it was not for the reasons I raised. Rather, their position was in response to my concern, and a means to the end they had sought earlier and been denied.
41I thus turn to consider whether a partial hearing of the application on its merits – the limitation defence – is appropriate.
Second Issue – Should the application be determined in part?
42Notices of Application in estates proceedings routinely seek procedural and substantive relief. On the estates list, we routinely hear the parties on the scope of production they seek, for example, in the Notice of Application. The fact that the production is requested in the Notice of Application does not, in my view, turn the procedural request into a substantive one. In fact, those requests for procedural relief could be left out of the Notice of Application entirely, and advanced by way of motion if the scope of production is a matter on which the parties do not agree. That is not the practice of the estates bar, but I see no reason why that could not be done.
43I raise this to distinguish between the procedural relief often sought in Notices of Application in estates matters and the substantive relief sought – here, the declaration that the joint property is held on resulting trust for the estate, and the related substantive issue of whether that claim is barred by a limitation period.
44I know of no case law, and counsel did not refer me to any, that considers when it is appropriate to hear an application on the merits in respect of only part of the substantive issues raised. I have no concerns treating the procedural relief sought differently: that is relief sought to allow the substantive applications to advance to a hearing on the merits. But once the discussion focuses on the substantive issues, the court must consider whether those should be carved up, and heard piecemeal, and if so, when? In what circumstances?
45As Brown J.A. cautioned in Malik, at para. 68, to achieve the objective (in that case of summary judgment motions, here of applications) of a summary procedure leading to faster and cheaper access to a final adjudication on the merits, “triage processes must be put in place so that judges end up determining a case once and for all on the merits, instead of slicing determinations into a series of partial summary judgments.” Here, I would replace Brown J.A.’s phrase “partial summary judgments” with “partial summary adjudications” and apply it equally to applications.
46Logically, the criteria Brown J.A. identified as relevant to determining when partial summary judgment is a proportionate process also applies to a determination of whether part of the substantive relief sought in an application should be hived off and heard on its own. That is,
a. Will dividing the determination of the application into several parts prove cheaper for the parties?
b. Will dividing the determination of the application into several parts get the parties’ case in and out of the court system more quickly?
c. How will a partial determination of the substantive issues on the application not result in inconsistent findings by the multiple judges who will touch the divided case?
47To these I add a fourth criteria: will dividing the hearing of the substantive issues on the application hamper the application judge’s ability to reach a just result?
Application
48In this case, the criteria I identify above are complicated by the fact that there are two applications, and Shulamit seeks to obtain one ruling that will impact both.
49As a further complicating factor, I note that the parties have not really distinguished between Shulamit in her personal capacity and Shulamit qua estate trustee of Penina’s estate in their arguments.
50For example, in Melanie, Joshua, and Michael’s application, relief is sought against Shulamit in her capacity as estate trustee (i.e., her removal) and in her personal capacity (i.e., a declaration that she holds the joint property in trust for the estate.) In the style of cause, she is only named personally.
51Shulamit must bring her application to pass accounts in her capacity as estate trustee, although in the style of cause she only names herself personally as applicant. To the extent she seeks to apply any limitation period ruling made in Melanie, Michael, and Joshua’s application to the application to pass accounts, that seems to me to be in her personal capacity, as she asserts she owns the property personally, not as estate trustee.
52The current notice of objection filed in the application to pass accounts relates to the first set of accounts Shulamit produced before she included the jointly held assets in them pursuant to Gilmore J.’s order. No amended notice of objection has been delivered. It is not clear whether Melanie, Joshua, and Michael will assert that Shulamit breached her duties as an estate trustee by failing to gather up all the estate’s assets (i.e. the jointly held property) and seek damages under s. 49(3) of the Estates Act, R.S.O. 1990 c. E.21. There could be different limitation periods applicable to the trust claim against Shulamit personally or a demand for damages in the passing of accounts application against Shulamit qua estate trustee.
53Because both proceedings are applications, there are no statements of defence in either to assist in defining the limits of the issues raised in the proceedings. Moreover, without an amended Notice of Objection in the passing of accounts proceeding, the scope of the issues that will be raised remains murky. The limitations period issue is raised, not in a statement of defence, but by counsel in the motion material. Melanie, Joshua, and Michael advise that they intend to seek an order in the passing of accounts application that the joint assets are held on resulting trust for the estate, but that cannot be gleaned from the court filings in that proceeding; it is only because their counsel has said so in the context of this motion that I am aware of that intention.
54The parties have disputed whether Melanie, Joshua, and Michael can challenge ownership of the joint assets in the passing of accounts. Melanie, Joshua, and Michael say that they can, and point to some case law where such questions have been determined by a judge on an application to pass accounts. Shulamit argues that a trial of an issue would have to be ordered and would be subject to the same limitation period argument she raises here. Again, I wonder whether the issue would be limited to a question of the ownership of the jointly held assets or would expand to include the question of whether Shulamit met her obligations as estate trustee. If she has breached her obligations as estate trustee, the judge hearing the passing of accounts can award damages under s. 49(3) of the Estates Act, but not the return of the property to the estate. But practically speaking, perhaps Melanie, Joshua, and Michael would not raise allegations of breaches of duty of the estate trustee, because Shlomo was also an estate trustee and he too took no steps to gather up the jointly held property. As the estate trustees of Shlomo’s estate, would Melanie, Joshua, and Michael also have to allege that Shlomo breached his duty as estate trustee, such that his estate is equally responsible for any damages awarded under s. 49(3)?
55It is against this complicated, intertwined backdrop that I turn to the considerations I have identified as relevant to determining whether a partial adjudication of substantive issues raised in this application should proceed.
56First, because of the conflation of Shulamit in her personal capacity and Shulamit as estate trustee in both applications, and the confusion around what exactly will be alleged, particularly in the passing of accounts application, I am concerned that dividing the applications as Shulamit urges will not be proportionate. The same evidence may be relevant to both applications.
57Second, I am concerned that there is the potential for conflicting findings of fact in the applications. Melanie, Joshua, and Michael have alleged that Shulamit willfully concealed facts they needed to know to advance their claim against Shulamit in her communications with them, and through her actions and her failure to act. These communications and Shulamit’s conduct could be viewed differently by a judge determining the limitation period issue as it applies to Shulamit in her personal capacity and as it applies to any allegations of her breach of duty qua estate trustee.
58Third, I am concerned that to do justice in this case, a judge needs to hear all the evidence and determine all the issues. Contrary to Shulamit’s view that the limitation period issue should be extricated for determination, I am of the view that both applications ought to be heard together. Application judges have the power to resolve material facts in dispute without viva voce evidence if they determine there are no material facts in dispute requiring a trial: V2 Investment Holdings Inc. v. Mizrahi, 2026 ONCA 275, at paras. 34, 47, 53. Having a full appreciation for the entirety of the evidence will allow a judge hearing the applications to make the necessary findings of fact and credibility or, alternatively, to determine that a trial, or a trial of an issue, is required.
59I thus decline to determine the limitation period issue at this stage in the proceeding.
60However, given my familiarity with the limitation period issues and the related evidence in the proceedings, I direct the parties to convene a case conference with me for purposes of timetabling the steps to bring both applications to a joint hearing. They shall provide a copy of this endorsement to the estates list trial coordinators to seek a convenient time for an hour case conference with me soon as possible.
Costs
61At the hearing of the motion, I proposed to the parties that they upload their costs outline, costs submissions, and any offers to settle which I would review only after I wrote the reasons on the merits of the motion. I would then determine costs. The parties were amenable to the suggestion. That is the process I have followed.
62The parties’ costs submissions address what ought to happen if Shulamit obtained the relief she sought, or if she did not. But in this case, the issue of the applicability of the limitation period is for another day. The work the parties have done will be relevant when the issue is adjudicated in the context of the applications.
63Accordingly, in my view it is just to defer costs of this motion to the judge hearing the applications on the merits.
J.T. Akbarali J.
Date: May 19, 2026