ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF GERLINDE DAS GUPTA
AND IN THE MATTER OF THE ESTATE OF ELSBED WINKLER
BETWEEN:
SONYA DAS GUPTA
Applicant
– and –
AMIT DAS GUPTA in his personal capacity and in his capacity as executor of the Estate of Gerlinde Das Gupta, and THOMAS SUNG-CHUL KIM in his capacity as substitute executor of the Estate of Gerlinde Das Gupta
Respondents
Alex Procope, for the Applicant
Neither party appeared at this hearing
AND BETWEEN:
SONYA DAS GUPTA
Applicant
- and –
AMIT DAS GUPTA, in his personal capacity and in his capacity as executor of the Estate of Elsbed Heidela Winkler, THE TORONTO HUMANE SOCIETY, and EARTH RANGERS IN WOODBRIDGE
Respondents
Alex Procope, for the Applicant
The parties did not appear at this hearing
HEARD: April 30, 2026
c. gilmore, j.
reasons for judgment
Introduction
1This is the hearing of the Applicant, Sonya Das Gupta’s (“Sonya”) consolidated Applications. Specifically, Sonya seeks the following relief:
a. The removal of her brother Amit Das Gupta (“Amit”), the Respondent, as Executor of the Estate of their mother Gerlinde Das Gupta (“Gerlinde”) and that Amit be precluded from claiming compensation either as Executor or Power of Attorney for Gerlinde.
b. That Amit deliver Gerlinde’s cremated remains and personal property to Sonya forthwith;
c. That the beneficiary designation with respect to TD Direct Investing Account 80119-T dated October 5, 2022 be declared invalid nunc pro tunc and that the beneficiary designation dated May 18, 2016 be declared valid;
d. That the proceeds of TD Direct Investing Account 80119-T held by the ETDL be distributed to Sonya or to whom she may direct;
e. A declaration that Amit has misappropriated funds from Gerlinde, Elsbed Winkler (“Elsbed”) and their Estates and has breached his fiduciary duties;
f. That Amit pay damages to Sonya in the amount of $292,937.09;
g. That Amit pay Sonya’s costs of the Application;
h. That any amounts owed to Sonya by Amit be set off against his entitlements as a beneficiary of Gerlinde’s Estate;
i. That the ETDL, Andrew Felker, be appointed Estate Trustee of Gerlinde’s Estate and that he not be required to pass accounts either as ETDL or Estate Trustee;
j. That each of Amit and Sonya’s entitlements as beneficiaries of the Estate be adjusted as per the calculations of the ETDL; and
k. That Gerlinde’s Will dated December 17, 2021 be considered the valid last Will of Gerlinde.
2Sonya and Amit are the only children of the deceased, Gerlinde. Amit was Gerlinde’s named Attorney for Property and the named Executor of her Estate.
3Sonya, Amit and Gerlinde were beneficiaries of Estate of Elsbed Winkler who was a friend of the family. Amit was the Executor of Elsbed’s Estate (“Winkler Estate”) and it is believed that he was her Attorney for Property, although no Power of Attorney (“POA”) document was ever produced.
4No respondents participated in this hearing although they were all properly served. Amit’s pleadings and Notices of Appearance dated April 19, 2024, were struck as a result of my order dated November 5, 2026. That order precluded Amit from participating in any future proceedings or being given notice of the same. Amit was ordered to pay costs in the amount of $19,000, payable from his share of the Estate. He was also precluded from taking any further steps with respect to the administration of his mother’s Estate. Amit has never brought a motion to reinstate himself as a party in this proceeding.
5Gerlinde died on February 21, 2023. There is no challenge to Gerlinde’s Will, which divides her Estate equally between Sonya and Amit.
6Andrew Felker was appointed as Estate Trustee During Litigation (“ETDL”) on January 9, 2025.
7Given all of the above, the hearing of the Application proceeded in Amit’s absence with submissions being received from Sonya’s counsel and the ETDL.
Background
8The litigation commenced as a Guardianship Application initiated by Sonya against Amit, seeking guardianship of her mother. After Gerlinde’s death in February 2023, Sonya commenced an Application against Amit as Estate Trustee of their mother’s Estate. In the consolidated Applications Sonya sought various heads of relief against Amit including through challenges to his activities as Power of Attorney for Property and Estate Trustee for Gerlinde’s Estate, a request to appoint an ETDL, a request to compel distributions, a request for an accounting and a passing of accounts for the Elsbed Estate, declarations regarding the beneficiary designation dated October 5, 2022 for Gerlinde’s RRSP and reimbursement for amounts which Sonya alleged that Amit had wrongfully removed or withheld from the Estate.
9After numerous court appearances, case conferences and motions, Sonya brought a motion to strike Amit’s pleadings and Notices of Appearance due to his failure to comply with a series of court orders, material delays and increased costs caused by his conduct.
10In my endorsement of November 5, 2026, I made the following findings in support of granting the motion to strike:
i. There is no doubt that Amit has failed to comply with orders. He never filed
a Responding Record, he did not respond to a request to schedule mediation, he has never filed a Notice of Intention to Act in Person, he refused access to the condo by his sister despite clear court direction and he failed to vacate the condo when specifically ordered to do so.
ii. Amit’s response in the face of these breaches is either not to respond at all (as outlined above in these reasons) or provide an illogical response such as preventing access to the condo by his sister because his litigation documents were located there.
iii. The substance of Amit’s defaults is not immaterial. His failure to provide a proper responding record means there has never been an opportunity to properly cross examine him. The disclosure he provides is disorganized, cryptic and unsupported with documentation. All his disclosure is self- generated, and Sonya is simply requested to accept it as valid and accurate. Amit’s failure to cooperate with ETDL has increased expense and inefficiency for this estate.
iv. There is no doubt that Amit’s conduct in this litigation and his breaches of court orders have increased expenses and created over two years of litigation for an Estate with a modest condo as its main asset. Amit’s failure to vacate the condo caused the Sheriff to become involved. Amit’s conduct required the appointment of an ETDL which has also increased costs. His disdain for his sister and the clear conflict of interest in continuing to act as Estate Trustee while paying himself from Estate assets and occupying Estate property has necessitated a complex disentangling of expenses that may or may not have been incurred legitimately. The costs resulting from Amit’s conduct and breaches are clearly disproportionate to the value of the Estate.
11On March 28, 2023, Sonya filed a Notice of Objection to Amit’s appointment as Estate Trustee for Gerlinde’s Estate. In January 2024 she commenced these proceedings.
12The main asset of the Estate was Gerlinde’s home. It was sold on July 25, 2025. After the payment of taxes and other expenses, there remains in the Estate the sum of $328,000 for distribution.
13A more detailed history of the litigation may be found in my decision to strike Amit’s pleadings dated November 5, 2026. I rely on that background as well with respect to making my findings herein.
Issues and Analysis
Issue #1 – Who is Responsible for the costs of the Guardianship Proceeding?
14Sonya’s Guardianship proceeding was rendered moot by Gerlinde’s death. She relies on the evidence in that Application in seeking 50% of her full indemnity costs from the Estate being the sum of $13,224.01. Sonya does not claim any costs of the Guardianship proceeding against Amit personally.
15In Lacaria v. Lacaria, 2026 ONSC 591, the court dealt with the costs of a Guardianship Application in which the incapable mother died seven months after the Application was commenced. The Applicant son sought his partial indemnity costs of $54,521.21. The court awarded costs of $12,000.
16The decision sets out a detailed analysis of the determination of costs in which matters which are settled or moot. In dealing with Guardianship Applications the court adverted to specific considerations including whether the incapable person benefitted from the proceeding, whether the proceeding conducted reasonably, and that only the actual costs incurred before the death of the incapable person should be awarded.
17Gerlinde bases her request for costs on the evidence of Gerlinde’s incapacity gleaned from medical records and Amit’s refusal to provide information as to whether he had been appointed his mother’s Attorney for Personal Care and the appointment of counsel pursuant to s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“the SDA”) for Gerlinde.
18Amit’s conduct throughout this proceeding makes it clear that Sonya had no choice but to commence the Guardianship proceeding. Gerlinde required section 3 counsel given the reasonable concerns related to her capacity. I find that the Guardianship proceeding was reasonable and benefitted Gerlinde. The amount of costs sought by Sonya is reasonable.
Should Amit Pay Damages to Sonya for the Unaccounted Assets of the Elsbed Estate?
19Elsbed Winkler was a family friend and godmother to Amit. Sonya was advised by Amit that he was acting for Elsbed as her Attorney for Property in 2016. Prior to Elsbed’s death, Amit gave Sonya $40,000 from Elsbed’s funds. Gerlinde was also given a gift, but Sonya has never been certain of the amount. Elsbed transferred her home to Amit, allegedly in gratitude for his care for her.
20Amit was the Estate Trustee for Elsbed’s Estate as per her 2015 Will. Sonya, Amit and Gerlinde were beneficiaries. Sonya was to receive a 35% share in the Winkler Estate. After Elsbed’s death, Sonya received another $10,000 as a distribution from Elsbed’s Estate. Sonya also received $10,011.37 from Elsbed’s life insurance proceeds after Elsbed’s death.
21Sonya has never received a final distribution or a properly documented accounting for the Elsbed Estate. Sonya has sought, but never received, a passing of accounts for Elsbed’s Estate. It is not known if Gerlinde received her share from the Elsbed Estate. Amit insists that his mother did receive her share but there is no evidence of this.
22While awaiting her distribution from the Winkler Estate, Gerlinde loaned Sonya money to buy a property. She used a line of credit (“LOC”) registered against her home to do this. Gerlinde never received a further (or perhaps any) distribution from the Winkler Estate. As such, the LOC remained registered against her property on the date of death. Sonya does not dispute that she owes the outstanding amount of the LOC ($104,000) to the Estate.
23Elsbed’s January 19, 2025 Will appointed Amit as her Executor. Amit also asserted control over Elsbed’s assets prior to her death by convincing her to transfer her house to him allegedly to protect Elsbed’s assets from possible litigation related to her husband’s Estate. Sonya, her friend Annette Mews and Gerlinde were present when Amit proposed transferring the home to himself but reassured Elsbed that the home would remain part of her Estate. After Elsbed died, Amit agreed to no such plan and insisted that her home was not part of her Estate.
24Amit was ordered to pass the accounts of Elsbed’s Estate. He has never done so. Further, he has never provided documents which were sufficient to confirm a starting figure for the value of the Winkler Estate, what assets formed the residue of the Estate or what the final distribution amounts were.
25Initially, Amit’s position was that the Winkler Estate had a value of $300,000 and that Sonya was entitled to $90,000. Thereafter, Amit claimed that the Winkler Estate was actually far less than that and that there was nothing left to distribute. Further, Amit circulated Gerlinde’s bank statements showing that she allegedly received distributions from the Winkler Estate and that $15,000 from the Estate was used to buy a car for Gerlinde which she then “gifted” to Amit.
26Amit has never provided any documents to confirm where the funds given to Sonya or Gerlinde came from.
27Sonya concedes that she did receive $50,000 from Amit which he insisted was her share. In her affidavit, she calculates the remaining share owed to her to be $135,000 before interest.
28Amit did not pay the charitable beneficiaries of the Winkler Estate. In July 2024 there was a proposal by his then counsel to pay $3,000 to each of the charitable beneficiaries to satisfy their interests in the Estate. However, no steps were ever taken in this regard.
29I see no reason why Sonya should not receive the balance of her entitlements under the Winkler Estate plus interest and less what she has already received. Amit failed to properly administer the Winkler Estate nor has there been any challenge to the validity of Elsbed’s Will.
30Elsbed’s Will left 2.5% of the residue of her Estate to each of The Toronto Humane Society (“the THS”) and Earth Rangers in Woodbine. The THS submitted a Statement of Submission of Rights to the court dated April 18, 2024. The THS indicated that it did not require notice of any step in the proceeding other than notice of the trial and a copy of the judgment.
31Notice of the within hearing was provided to the THS but no representative appeared. The Earth Rangers in Woodbine were given notice of this hearing despite not having filed a Notice of Appearance or any Submission of Rights.
32As Sonya has no standing to seek damages from either of the charitable beneficiaries, their entitlements do not form part of these reasons.
Sonya’s Claim for Damages for Funds/Property Received or Unaccounted for from Gerlinde and her Estate by Amit
33Amit provided an informal accounting for Gerlinde’s property and the property he received from her and her Estate between July 1, 2021, and July 1, 2024. The law is clear that a presumption of a resulting trust is imposed on gratuitous transfers from parents to adult children (see Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795 at paras. 24-41).
34In this proceeding Amit has produced only one sworn production of documents. However, that affidavit cannot be relied upon because Amit redacted the account number to which significant transfers from Gerlinde’s account were made. Amit attempted to explain his receipt of funds by way of many emails and documents to corroborate his assertions of tasks performed and expenses paid but the documents provided fall short. Further, documents obtained from TD bank by the ETDL confirm that the transfers from Gerlinde’s accounts went to Amit’s account. Amit has conceded that he had full access to his mother’s accounts and passwords.
35I therefore draw the inference that Amit was the recipient of funds transferred from Gerlinde’s accounts as there is no evidence to the contrary.
36Sonya calculates that Amit wrongfully received $13,919.33 from Gerlinde’s chequing account and $87,668 from the LOC. Sonya has attached these calculations to her March 27, 2026 affidavit which I accept.
37In Last v. Last, 2025 ONSC 1407, the co-Estate Trustee Craig failed to comply with an order requiring him to pass his attorneyship and Estate accounts and the court found that Craig also failed to keep proper books of accounts. Craig provided some information but in an unsworn form and claimed that all of the invoices had been scanned to a computer which had been stolen. Craig also claimed expenses for his mother’s care (she lived with him) at $21,000 per month but had no receipts to corroborate this claim.
38His brother, the co-Estate Trustee Glen claimed that Craig has misappropriated $1,489,502.59 from his mother. The court found that there was sufficient evidence to support some of the expenses claimed by Craig but not all. The court reduced Craig’s share of the Estate by $523,578 on the grounds that he had failed to rebut the presumption of resulting trust and failed to adequately account for withdrawals from his mother’s funds.
39Last sets out the consequences of failing to pass accounts when ordered to do so and inadequate record keeping, leading to an inability to rebut the presumption of a resulting trust. Similarly, Amit has failed to pass accounts when ordered, failed to provide adequate records and vouchers and failed to provide any sworn corroborating documentation. Even when he did provide records, they were often redacted, making it impossible to track where Gerlinde’s funds actually went. I therefore find that Amit has failed to rebut the presumption of a resulting trust and must repay funds removed from the LOC and his mother’s chequing account.
40Sonya requests that interest on the withdrawals from the LOC be calculated based on the LOC interest rate and not the court prescribed interest rate. I agree and do not see why a different interest rate should be applied in these circumstances. In any event, s. 130 of the Courts of Justice Act, R.S.O. 1990, c. C.43 permits this court to order a different interest rate considering the circumstances of the case.
41Amit removed all of Gerlinde’s personal property from her home prior to the ETDL taking possession of it. He claimed that he “purchased” all of his mother’s property for $10,000 and was therefore entitled to remove it. Amit has never provided any proof that he actually paid this amount and during the course of these proceedings conceded that he never paid it.
42Sonya now seeks $5,000 from Amit being her share of her mother’s personal property. The difficulty with this claim is that there has never been an inventory of Gerlinde’s personal property nor any valuation of it. The “transaction” between Amit and his mother was artificial as no funds were exchanged. In the end, Amit has retained all of the property, but its value cannot be ascertained. As such, I decline to order that Sonya receive $5,000 from Amit’s share of the Estate to compensate her for the personal property wrongfully removed by Amit. This is an issue which may be better dealt with in Sonya’s claim for costs.
Should Amit Pay Occupation Rent or Damages for the Reduction in Value of Gerlinde’s Home?
43It is uncontroverted that Amit had exclusive possession and control of Gerlinde’s home from February 16, 2023 (the date of death) to the date when Amit was forced out of the home by the Sheriff on April 8, 2025. As already detailed in previous reasons, despite being ordered to allow Sonya access to the home to inspect, Amit refused to allow his sister into the home claiming he used the home as his office to work on this litigation. I have rejected this contention in the past and have not changed my view. Amit’s position on this issue is completely untenable especially considering he owns at least one other home.
44It was clear to Amit after his mother died that she had only a small amount of liquid assets because he had access to her accounts. He drained her chequing accounts, paid out her non-registered accounts but admitted that he was aware of upcoming tax debts and that the LOC needed to be paid. I find that he was aware that his mother’s home would need to be sold especially as Sonya had rejected his buyout offers.
45In his affidavit sworn February 24, 2026, the ETDL noted that Amit was “uncooperative” with respect to vacating Gerlinde’s home. Sonya has deposed that her brother refused to allow her access to her mother’s home to collect her own personal property or to say good-bye. In my endorsement dated November 5, 2025, I noted the following regarding Amit’s conduct in relation to the home:
Amit refuses to be realistic about the status of the Home. He is effectively holding it hostage while blaming his sister for the accumulating interest on the HELOC and other household expenses. The Home must be sold ...
46Sonya notes that in the intervening time between her mother’s death and the date of sale, the value of the home dropped significantly due to changes in the Toronto real estate market. Retroactive appraisals obtained by the ETDL valued the home at between $680,000-$715,000 as of February 2023, and $710,000 as of February 2024. An opinion of value obtained in May 2024 valued the home at $730,000-$750,000.
47Unfortunately, due to Amit’s refusal to vacate or cooperate with the sale of the home it was not sold until July 2025 for $645,000. Sonya seeks damages for the difference in the sale price and the lower end of the 2024 opinion of value ($730,000): $85,000.
48In the alternative Sonya seeks occupation rent from the date of death to the date of sale. Sonya obtained expert evidence from Mr. Ravindra Singh to provide an opinion with respect to the market rent for Gerlinde’s home during the relevant period. Mr. Singh is the team leader at a RE/MAX brokerage in Toronto. He has a Bachelor of Business Administration and has been in the real estate business since 2006. He has many other accreditations listed in his CV. Mr. Singh also signed an acknowledgment of expert’s duty.
49Mr. Singh calculated the total rental for the relevant period to be between $70,632 to $74,420. Sonya relies on the lower rental amount for the purposes of this hearing.
50In Calmusky v. Calmusky, 2020 ONSC 1506, the court dealt with the principles to be considered when granting the equitable remedy of occupation rent. In that case, the son of the owner-occupied company-owned property without paying rent. The court considered the following principles:
a. The occupier had the benefit of rent-free occupation during the relevant period.
b. The owner was deprived of rent or sale proceeds as a result of the occupation.
c. The occupier did not have any right to occupation.
51In the case at bar, Amit had no right to occupy his mother’s home post-death. There was no provision in her Will allowing such occupation. Further, Amit steadfastly refused to vacate ultimately requiring the Sheriff to remove him at considerable cost to the Estate. His reasons for continuing to occupy the home (i.e. he needed to use it as his office in order to prepare for this litigation, or insisting that he buy out his sister at a price below market) were without merit.
52I find that the Estate has been deprived of rent or sale proceeds as a result of Amit’s unlawful occupation of the home. I find that the total occupation rent owed by Amit of $70,000. As half of that rent would be payable to Amit as a beneficiary of the Estate, the remaining $35,000 should be paid to Sonya. Expenses which Amit paid for the home (and for which he provided proper vouchers) during his occupation are credited to him elsewhere in these reasons.
53The amount of damages sought by Sonya for the difference in sale price is $85,000, however, I find that the expert evidence in relation to market rents for the relevant period is more reliable than the opinions of value proffered for home.
Liability for Damages in Relation to Canada Revenue Agency Penalties and Interest Paid by the Estate
54Amit was aware that his failure to file tax returns for the Estate would result in interest and penalties. In his affidavit sworn June 28, 2024, he deposed that the Estate would have an income tax liability of approximately $60,000 for the 2022-2024 tax years. There was no indication that Amit had filed any returns despite being aware that they were outstanding. In Amit’s unsworn court filings, he concedes that he did not file the required tax returns as they “took a back seat” to the many challenges he was facing in relation to his mother’s Estate including the within Application. He requested that any interest and penalties owing be paid by the Estate.
55All taxes, penalties and interest have now been paid to CRA. It was not possible to pay all of the interest and penalties until the home was sold because there was insufficient liquidity in the Estate. As such, interest and penalties continued to accumulate. The ETDL has now confirmed that the total interest and penalties paid was $14,788.49 in addition to the taxes for the 2022 to 2024 tax years.
56Sonya seeks to have Amit pay the interest and penalties in the form of damages including the pre-death period. Sonya submits that prior to Sonya’s death, Amit was acting in his capacity as Sonya’s Attorney for Property. Gerlinde’s medical records substantiate that Amit had reasonable grounds to know that his mother could not manage her property on her own in 2021 and 2022. There are also the affidavits of Sonya and Gerlinde’s friends which speak to her cognitive decline during this period. Amit was also bound by his fiduciary duties upon the death of his mother.
57Section 32(1) of the SDA sets out that Guardians of Property are fiduciaries whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit. Similar duties apply to Attorney of Property pursuant to s. 38(1) of the SDA.
58I find that Amit was aware that taxes were owing both before and after his mother’s death and that penalties and interest were accumulating on those unfiled returns. I further find that he took no steps to file any returns notwithstanding his duties as an Attorney for Property and later as Executor.
Gerlinde’s RRIF
59Gerlinde owned a RRIF which was worth $128,793.34 as of the date of death. Amit and Sonya were initially designated as 50% beneficiaries of the RRIF. Amit has provided a document dated October 2, 2022 (“the 2022 Beneficiary Designation”) which purports to change the previous beneficiary designation and leave all of the RRIF proceeds to him. It is dated with the same date as the Bill of Sale in which Gerlinde purportedly “sold” all of her personal property to Amit for $10,000.
60Amit has never produced an original of the 2022 Beneficiary Designation. The document produced by Amit is questioned by Sonya for several reasons. First, it was not signed at the branch where Sonya worked for decades and was minutes from her home. Second, the document contains a TD Bank Group logo which is not the same as the TD logo on the bank beneficiary designation. Sonya has alleged that many of the documents created by Amit contain TD logos which she submits were photoshopped or copied onto the document to make them look like bank documents when they were not.
61Further, in October 2022 Gerlinde was in the middle of her cognitive decline as evidenced by the medical records produced. Amit controlled Gerlinde’s bank accounts, email and phone and was socially isolating her.
6250% of the RRIF proceeds have already been paid out to Amit by TD. TD sent the remaining 50% to the ETDL. Sonya submits that the 2022 Beneficiary Designation should be rejected as it was signed under suspicious circumstances caused by Amit’s undue influence and her mother’s confused and vulnerable state at that time.
63In her December 2023 affidavit Sonya deposed as follows with respect to her mother’s declining cognition:
In early November 2021, she [Gerlinde] called me twice saying that her friend Janet had been visiting her and that my cousin from Germany had just come to her house for dinner. My mother called me back to advise that Amit informed her that Janet's visit had not occurred on that specific day. I understand from my cousin in Germany that her visit did not occur.
In mid-November 2021, my mother called me stating that “something is wrong, I don't understand what is happening”. She said she had been in Vancouver (which she had not) and was surprised to find herself back at her own home. She said she had to get back to Vancouver for Olivia's birthday (which is on December 9th).
In November 2021, Amit was now consistently communicating with me through our mother's email account. He would write the emails as if our mother had written them, but it was obvious to me that she was not the author. I believed he was also impersonating her with messages to me on her iPad….
As of December 4, 2021, I was unable to call my mother on the phone as my number was blocked again. On December 5, 2021, I sent an email to my mother assuming my brother would read it indicating that I was flying to Toronto on December 6 and would contact the police if she did not answer her door. I received various emails in reply, one of which asked me to cancel the flight for no reason.
Donna Debacker (“Donna”) met my mother through a senior's hiking group around 2007 and they had been friends since. Donna is a retired nurse. Donna and I spoke on the phone in November 2021 and she expressed concern about my brother's behaviour towards my mother. She emailed me sharing these concerns on December 5, 2021 as follows:
I phoned her on Friday and could not reach her. She called back a couple of hours later and there was a lot of stress in her voice and she admitted that she was not doing well (first time). She is having trouble putting sentences together and her thoughts are very scrambled. Another friend called her on Saturday and her confusion was even worse.
I don't envy you with what you will face on Monday but please ensure your personal safety. You are skillful with your words in the emails and that skill will be needed for the negotiations that will occur. Perhaps you could consider having a mental health professional with you if you need to call YRP. Your Mom has lived with this emotional abuse for awhile now and it will take her a long time to recover. I hope that she settles well in your home and does not return here.
From January to the summer of 2022, I attempted to call my mother quite regularly, sometimes many times a day, without success.
The lack of contact was worsened by the fact that Amit refused to communicate directly with me. For example, I implored him through our mother's email account to speak with me directly and not attempt to sign for her but he consistently refused. A copy of my March 12, 2022 email exchange is attached to this affidavit as Exhibit “K”.
64The December 2023 affidavit recounts numerous examples of Amit’s refusal to communicate with Sonya, his ongoing accusations against her and his continuing impersonation of his mother through her emails.
65In determining whether the presumption of undue influence arises, the court must examine whether there was the potential for domination in the relationship, whether there was an inequality of bargaining power and whether Amit had a fiduciary duty to his mother.
66I find that all three factors listed above were present in this transaction and that as a result, Amit has failed to rebut the presumption of undue influence. First, I have already found in previous decisions that Amit dominated his mother and had influence over her. He spoke for her, sent emails pretending to be her and isolated her from family and friends. Second, I find there was an inequality of bargaining power because there was evidence (which has been reviewed in this decision and previous decisions) that Gerlinde was in a cognitive decline, easily influenced and confused at the relevant time. Finally, Amit was acting as power of attorney or trustee de son tort for his mother and therefore had a fiduciary duty to ensure he did not place himself in a position of conflict.
67Because the RRIF proceeds paid out to the ETDL by TD are not an Estate asset, the ETDL requires court authority to pay out the proceeds to Sonya. For the reasons set out above, I would set aside the 2022 Beneficiary Designation and reinstate the original designation dated May 18, 2016. As Amit already received his share of the RRIF, the balance must be paid out to Sonya.
Should Amit pay for the ETDL’s Costs and Bank Fees due to his Failure to Address Estate Debts and his Failure to Comply with Court Orders?
68During the latter part of his occupancy of his mother’s home, Amit stopped making payments on the LOC. Another reason for the urgency related to the sale of the home was steps taken by TD to enforce the LOC which was secured by the home. The cost of steps taken by TD towards enforcement totalled $2,819.96. Fortunately, once the ETDL became involved TD agreed to cease enforcement when it was provided proof of the listing of the home for sale.
69Sonya submits that Amit should be required to personally pay certain portions of the ETDL’s accounts which were increased due to his non-compliance with court orders and his general conduct in this litigation. She provides at Exhibit 96 to her March 2026 affidavit a copy of the ETDL’s dockets. Her counsel has highlighted those dockets for expenses which Sonya submits should not have been necessary but for Amit’s behaviour. These include but are not limited to; dealing with TD about the LOC in default, dealing with Amit’s refusal to move out of the property and dealing with TD to obtain proper records as the ones provided by Amit were not complete.
70Sonya seeks the sum of $14,821.70 by way of additional damages to be paid from Amit’s share of the Estate due to conduct by Amit which Sonya submits should be Amit’s sole responsibility. The amounts were compiled by Sonya’s counsel from the dockets provided by the ETDL. Sonya seeks that these costs be classified as damages to ensure that survive any potential bankruptcy on the part of Amit.
71I decline to characterize these costs as damages as they do not fit within the parameters of s. 178 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3. Costs are not a standalone cause of action and therefore cannot be “reclassified” as damages. However, this finding does not preclude the Court from awarding costs payable by Amit on a higher scale due to his breaches of court orders and his fiduciary duty.
Removal of Amit as Executor and Appointment of the ETDL
72The authority of the ETDL does not permit distribution of Estate funds and completion of the Estate administration. At this point, Mr. Felker has done everything he can as ETDL. Sonya now seeks to have Amit passed over as Estate Trustee and Mr. Felker appointed in his place in order to ensure an efficient distribution of the remaining Estate funds.
73In Radford v. Radford Estate (2008), 169 A.C.W.S. (3d) 688, 43 E.T.R. (3d) 74 (Ont. S.C.) at paras. 100-113, the court set out the principles to consider when removing an Estate Trustee. Those principles are as follows:
(1) the court will not lightly interfere with the testator’s choice of estate trustee;
(2) clear evidence is required that removal of the trustee is necessary;
(3) the court’s main consideration is the welfare of the beneficiaries; and
(4) the estate trustee’s acts, or omissions must be of such a nature as to endanger the administration of the trust.
74Considering the principles set out in Radford, I find as follows. It is clear based on the findings in my November 5, 2025, reasons that Amit has a conflict of interest in acting as Executor. He has acted in self-interest to the detriment of the beneficiaries and has failed to comply with numerous court orders.
75Trusting that Amit will conscientiously distribute Estate funds in accordance with the directions herein is only inviting problems given his delays and refusals to cooperate with requests from his sister and this court in the past.
76I find that Amit’s past misconduct is likely to continue if he remains as Executor. Specifically, I find that Amit breached his fiduciary duties and misappropriated funds from Gerlinde, Elsbed and their Estates. The welfare of the beneficiaries of the Estate must be protected from situations in which Amit’s conduct incurs costs for the Estate. This is well illustrated by his refusal to leave his mother’s home. The cost to have the Sherriff involved to force his removal exceeded $8,000.
77There is no other option than to have the ETDL be appointed to complete the administration of the Estate as the facts overwhelmingly support that in these circumstances the testator’s wishes cannot be followed. As Sonya owes money to the Estate, it is best that she not be appointed in Amit’s place.
78Mr. Felker consents to the appointment of Estate Trustee as does Sonya. He requests that Amit not be involved in approving his final accounting and distributions as this will only delay matters further. Based on Amit’s conduct in this proceeding thus far, I agree that there is a strong possibility that Amit would object to every item in the ETDL’s accounting and the proposed distribution. The matter would remain bogged down with more litigation as the ETDL would have to return to court to request to have his accounting and proposed distribution approved.
Gerlinde’s Personal Property and Remains
79Despite a court order requiring Amit to deliver his mother’s remains to the ETDL, he has failed to do so. Sonya therefore seeks authority to deal with her mother’s remains on her own. She also seeks to have her mother’s possessions vest in her so that she may dispose of them as she sees fit. Sonya has made enquiries
80Unfortunately, it does not appear that many or any of Gerlinde’s personal possessions are available. Amit says that he “bought” them for $10,000 by way of a signed agreement with his mother but concedes he never actually paid that amount. Further, there are issues as to whether his mother had the capacity to enter into such an agreement at the relevant time. Notwithstanding his sister’s objections with respect to the capacity issue and the failure to pay for the property if Gerlinde did have capacity, Amit has removed all of their mother’s property and its whereabouts are unknown.
81Sonya should have the authority to deal with her mother’s remains and any remaining personal property.
Orders and Costs
82Given all of the above, the draft judgment prepared by Sonya’s counsel shall be amended based on the findings herein and approved by the ETDL.
83On the issue of costs, Sonya has provided a Bill of Costs which includes all costs of the Application other than costs of the January 7, 2025 Case Conference ($5,000) and the November 5, 2025 written motion ($19,000) which were previously determined and are to be paid from Amit’s share of the Estate.
84Sonya seeks her full indemnity costs of $166,040.47 payable from Amit’s share of the Estate. She requests costs at the highest scale for the following reasons:
a. The proceedings were made more complex than necessary due to Amit’s conduct which included continual non-compliance with court orders and failing to account with respect to both Gerlinde and Elsbed’s Estate.
b. The proceedings were very important to Sonya. Without the court’s intervention it is unlikely the administration of the Estate would have ever been completed, Gerlinde’s home sold of Estate debts (including taxes) paid.
c. Amit’s conduct unnecessarily lengthened these proceedings. Sonya began her requests for disclosure in June 2023. In response Amit provided numerous unsworn, disorganized and repetitive documents. He would upload those documents to Case Centre without having served them, sent them directly to Justice Gilmore after having been specifically advised that it was improper to do so and failed to file a proper Responding Record despite being ordered to do so. Amit sent hundreds of repetitive and lengthy emails to Mr. Procope. Because of the repetition, Mr. Procope was obliged to review all of the emails to determine if any new information was being provided.
d. Amit refused to cooperate and refused to make reasonable admissions. Amit failed to admit that a neutral Estate Trustee was needed to administer the Estate, failed to appropriately manage his mother’s property, refused to vacate her home after being ordered to do so, failed to properly pay out the beneficiaries of the Winkler Estate and conducted transactions on his mother’s behalf both before and after her death, from which he personally benefitted.
e. Sonya’s lawyer is an experienced Estates practitioner who was called to the bar in 2007. He used associates and law clerks to do the required work where possible.
85The Winkler Estate has no funds available to pay costs. Sonya submits that given Amit’s conduct in this proceeding and the various findings made, that Amit should bear the costs personally. It would be unfair for Sonya to have to bear any portion of the costs by ordering that costs be paid from the Estate.
86Similar to Zimmerman v. Fenwick, 2010 ONSC 3855, the following principles are applicable to this case:
(a) the costs of a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs should be paid: Courts of Justice Act, R.S.O. 1990, c. C43, s. 131(1);
(b) estate litigation, like any other form of civil litigation, operates subject to the general civil litigation costs regime: McDougland Estate v. Gooderham (2005), 255 D.L.R. (4th) 435, [2005] O.J. No. 2432 (C.A.);
(c) as a general proposition, the principle that the “loser pays” applies to estate litigation: Bilek v. Salter Estate, [2009] O.J. No. 2328;
(d) in the determination of costs, the court must have regard to the factors set out in Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, but, at the end of the day, the court’s responsibility is to make an award that is fair and reasonable, having regard to all the circumstances, including the reasonable expectations of the parties;
(e) the court’s discretion to award costs on a full indemnity basis is preserved by rule 57.01(4)(d);
(f) full indemnity costs are reserved for those exceptional circumstances where justice can only be done by complete indemnity: Mark M. Orkin, The Law of Costs, Vol. 1, 2nd ed., looseleaf, (Aurora, Ontario: Canada Law Book, 2010).
87In Zimmerman, the court found that Mr. Zimmerman was required to pay the costs of the proceeding personally given that he was a trustee who had presented accounts that were “manifestly inaccurate, incomplete and false” (at para. 14).
88Similar to Zimmerman, I find that it would be unfair for Sonya or the Estate to bear any of the costs of these Applications given the findings already made with respect to Amit’s egregious conduct.
89Based on the detailed costs outline provided by Sonya’s counsel, I award full indemnity costs in the amount of $166,000 payable by Amit personally. Those costs are to be paid from Amit’s share of the Estate. In the event, there are insufficient funds available from his share, he shall be personally responsible for any remaining balance.
Cory A. Gilmore
Released: June 8, 2026