CITATION: Evans v. Skwira, 2026 ONSC 671
SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF THE ESTATE OF PETER KACZMARCZYK
RE: DIANE EVANS, Applicant
AND:
KRYSTYNA SKWIRA, PERSONALLY, AND AS ESTATE TRUSTEE FOR THE ESTATE OF PETER KACZMARCZYK, Respondent
BEFORE: C. Gilmore, J.
COUNSEL: Liza Saad, Counsel for the Applicant (Moving Party on Motion)
Nithila Murugadas, Counsel for the Respondent (Responding Party on Motion)
HEARD: January 27, 2026
ENDORSEMENT on motion
Introduction
1This is the Applicant’s (“Ms. Evans”) motion requiring the Respondent Estate Trustee (“Ms. Skwira”) to commence an Application to Pass her accounts and for a Preservation Order with respect to the assets of the Estate of Peter Kaczmarczyk (“the Estate”) or Peter Kaczmarczyk (“the deceased”) personally or any assets traceable to the deceased or his Estate.
2The deceased died on October 22, 2018 with a Will dated May 30, 2016 (“the Will”). Ms. Skwira is the sole Estate Trustee and beneficiary of the Estate subject to a $200,000 legacy for the deceased’s grandson. A Certificate of Appointment of Estate Trustee was issued to Ms. Skwira in February 2019.
3Ms. Skwira is not related to the deceased. She gave him room and board because he was homeless and they were both Polish. Ms. Skwira’s grandparents had suffered during the Second World War in concentration camps, as had the deceased.
4In October 2010, the deceased was charged with four counts of sexual intercourse with a female under 14. The alleged victim was Ms. Evans. The assaults were alleged to have been perpetrated on her between 1956 and 1964, when she was between 4 and 12 years old. Ms. Skwira was not aware of the criminal charges against the deceased until he was arrested in October 2010.
5After eight years of delay in the criminal proceeding, the deceased died in 2018 before the trial began.
6In April 2019, Ms. Evans commenced a civil action for damages against the deceased in relation to sexual assaults which she alleged were perpetrated on her as a child by the deceased. The Catholic Children’s Aid Society of Toronto (“CCAST”) was also a defendant given their involvement during the period of the assaults. Ms. Skwira was served with the Statement of Claim on May 1, 2019. A civil jury trial took place between June 2-25, 2025. The jury rendered a verdict on June 26, 2025, awarding Ms. Evans total damages of $2,390,000.
7Ms. Evans commenced the within Application in October 2023. Ms. Evans alleges that Ms. Skwira distributed large portions of the Estate despite her knowledge of the civil claim. Ms. Skwira’s position is that she had distributed most of the assets of the Estate before she became aware of Ms. Evans’s claim.
8In accordance with the Order of Justice Dietrich dated June 18, 2024, Ms. Skwira was to provide an affidavit containing the nature, value, and location of the Estate assets. Ms. Skwira provided the affidavit in July 2024.
9The probate value of the Estate was $1,228,503, which was made up of a property in Wasaga Beach ($474,000) and a Wood Gundy CIBC account ($754,503). The current value of the Estate is in the range of $348,000. Expenses paid by the Estate include funeral and monument costs ($16,205), probate fees ($16,780), taxes to CRA ($15,903), real estate commission ($34,815), solicitor’s fees on sale ($1,483), legal fees for Estate Administration ($51,466), legal fees for defence of civil trial ($227,891), and legal fees for defence of this Application and preparation of accounting ($38,402). Liabilities owed on death were the deceased’s mortgage ($202,795), medical bills ($3,024), other legal fees ($2,000), renovations ($21,018), and overdraft on a chequing account ($1,895).
10Despite several enquiries from Ms. Evans for clarification concerning what assets were and were not included in the Estate, Ms. Skwira did not respond other than to take the position that she would not provide further documents other than on a formal passing of accounts and only when Ms. Evans’s interest in the Estate was confirmed through a settlement or judgment. Upon Ms. Skwira taking this position, Ms. Evans requested that the within motion be scheduled. Due to a lack of available court time, the January 27, 2026, date was the first date available for the motion when it was booked in May 2025.
11For the reasons set out below, the relief is granted in part.
Positions of the Parties
The Respondent
12Ms. Skwira’s position is that this motion is purely tactical with the intention of handicapping the Estate’s ability to bring appeals in the civil matter. The Estate assets are being held in an interest-bearing account and there is no reason for a Preservation Order.
13Prior to service and notice of the civil claim, Ms. Skwira had distributed the legacy to the deceased’s grandson and funds to herself on the advice of her solicitor. The Estate was completely administered by August 30, 2019. Since learning of the claim, she has preserved the funds, which she distributed to herself, leaving a total of $348,271.000. Ms. Skwira will preserve those funds until the appeal is heard subject only to her funding the legal costs of the appeal. She will not be taking any compensation.
14Ms. Skwira submits that the legal fees spent to date are entirely reasonable and the Estate Trustee’s legal fees are a priority as Ms. Evans’s claim as an unsecured creditor falls behind other priority Estate expenses such as burial fees, taxes, and probate fees. Until the appeal is heard Ms. Evans remains only an unsecured potential creditor of the Estate. The legal fees spent to defend the civil claim (about $228,000) were entirely reasonable for a pre-trial and a three-week jury trial.
15Ms. Skwira argues that there is no reason for a Preservation Order because the provisions of r. 63.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) provide for an automatic stay for the payment of money pending an appeal. As such, the Estate funds are automatically preserved until the disposition of the appeal.
16Ms. Skwira, as Estate Trustee, has a fiduciary obligation to defend the Estate and maximize the benefit to the beneficiaries. However, Ms. Evans is not a beneficiary of the Estate and the Estate has no obligation to her pending the appeal.
17The legal fees required to defend the Estate are a proper Estate expense and the Estate Trustee is entitled to be indemnified for legal costs reasonably incurred and the costs of litigation reasonably defended. Ms. Skwira does not need the permission of the court or the beneficiaries to pay reasonably incurred litigation expenses.
18The order sought by Ms. Evans will effectively mean that the Estate cannot fund the civil appeal. The Preservation Order sought by Ms. Evans is effectively a freezing order and therefore a form of security for her judgment. Unless Ms. Evans can meet the test for an injunction (which Ms. Skwira says she cannot), the Preservation Order should not be granted.
The Position of the Applicant
The Estate Matter
19Ms. Evans’ position is that Ms. Skwira, acting as Estate Trustee, distributed and dissipated Estate assets without regard to the claim made against the Estate. In her pursuit of an accounting of Estate assets, Ms. Evans obtained an order from Justice Dietrich in June 2024, requiring Ms. Skwira to provide an informal accounting. The accounting that was provided in July 2024 was confusing and did not clearly itemize the Estate’s liabilities. Counsel for Ms. Evans sent correspondence requesting clarification of the accounts on eight separate occasions between September 2023 and April 2025. Ms. Skwira’s counsel finally responded in April 2025 taking the position that no further documents would be provided unless there was a formal passing of account. This prompted Ms. Evans to set this motion date.
20Ms. Evans submits that the accounting reveals that Ms. Skwira transferred a total of $200,000 to a trust account for the benefit of Alex Kaczmarczyk (“Alex”) in relation to the legacy. She did this just days before being served with the civil claim and knowing that Alex was not entitled to those funds until he turned 21. Particulars of the trust account were requested but have not been provided.
21The accounting further reveals that Ms. Skwira transferred $242,000 to herself on April 30, 2019. Those funds remain in an interest-bearing trust account.
22During her cross-examination, Ms. Skwira was asked if she was aware she could be personally liable for improperly distributed funds from the Estate. Her response was, “Why I have to be personally, what I did wrong?”
23The informal accounting also details expenditures for legal fees of almost $300,000. The majority of those fees were spent to defend the Estate in the civil trial. Ms. Evans’ position is that Ms. Skwira has made improvident expenditures and mismanaged Estate assets without appreciation of her obligations to creditors.
24By way of example, Ms. Evans points to the $21,018 invoice for “renovations to home to accommodate the deceased.” These renovations were completed after the deceased died. Ms. Evans’ position is that since the deceased was a tenant of Ms. Skwira, such expenses were her personal responsibility.
25Ms. Skwira’s counsel explained that the renovations were required to repair the deceased’s bedroom and washroom due his own use and excessive traffic from caregivers when he was ill. She did not deny that the renovations were done after the deceased’s death.
26Counsel for Ms. Evans, Ms. Saad, asks that in addition to the renovation invoice, certain amounts be added back to the Estate as they are not properly particularized in the accounting. These include legal fees of $8,497.60 in July 2024 and $3,751.60 in November 2018. Ms. Skwira deposed that these invoices were not paid by the Estate. Further, any legal fees paid after multiple notices and correspondence were sent by Ms. Saad insisting that all Estate assets be preserved. Those invoices total $30,944.
The Civil Matter
27It took four years for the civil matter to get to trial. Ms. Evans’ position is that the matter did not settle because Ms. Skwira was unreasonable and insisted that Ms. Evans had fabricated her allegations. Ms. Skwira’s final offer to settle before trial was $7,500.
28The damages awarded to Ms. Evans after the June 2025 jury trial may be broken down as follows:
a) $400,000 in general damages;
b) $940,000 for past lost income;
c) $50,000 for future care; and
d) $1,000,000 in punitive damages.
29The punitive damages award is payable solely by the Estate. The other awards are payable by the Estate and the CCAST jointly and severally. The verdict exceeded the amount claimed by Ms. Evans and she sought leave to amend her claim. The jury apportioned the damages (other than the punitive damages) 75% against the Estate and 25% against the CCAST.
30In August 2025, Ms. Skwira’s lawyer in the civil proceedings brought a motion to the trial judge to set aside the punitive damages award in the verdict. CCAST also brought a motion asserting that it ought not to be jointly and severally liable for any damages. Both motions were dismissed (Evans v. The Catholic Children’s Aid Society of Toronto et al., 2025 ONSC 5652).
31On the punitive damages issue, the court held, “In my view, there was a clear factual foundation for an award of punitive damages and the amount is reflective of the jury’s acceptance of the severity and duration of the abuse, and the fact that there was no punishment or acknowledgement of the abuse. Even if I thought the amount of the punitive damages award was too high, I would not interfere as this is the role of the Court of Appeal, not a trial judge” (para. 34).
32On November 10, 2025, Ms. Skwira served a Notice of Appeal in the civil proceeding. She asks that the finding of liability be set aside, or a new trial be ordered on the basis that the trial judge did not correctly instruct the jury on the issue of corroborative evidence as required by s. 13 of the Canada Evidence Act, R.S.C. 1985, c. C-5. Alternatively, Ms. Skwira asks that the punitive damages award be struck or reduced to a nominal amount. The CCAST has also appealed the verdict on the issue of liability. The estimated cost of the Estate’s appeal is between $50,000-$75,000.
33Ms. Evans submits that the only fund from which she can recover her damages is the Estate. That fund must therefore be preserved. It would be completely unfair and inequitable if Ms. Skwira was able to fund her appeal from those assets thereby making the damages award illusory.
34Ms. Evans submits that she is entitled to a Preservation Order pursuant to Rule 45.01 and 45.02 of the Rules and that she has met the three-part injunctive relief test in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 (“RJR-MacDonald Inc.”).
35First, Ms. Evans has a direct legal claim to specific and identifiable fund, namely the damages fund from which her claim is only enforceable from the Estate assets. Her claim is not for general damages but is a claim against the Estate itself.
36Second, her claims are neither frivolous nor vexatious. If the preserved funds are further dissipated and the appeal is dismissed, Ms. Evans will be seriously prejudiced.
37Finally, the Estate suffers no harm if the relief is granted as Ms. Skwira can fund the appeal personally and seek indemnification if successful on appeal. The Estate funds should stop being used as a “litigation war chest.”
38Ms. Skwira is in an incontrovertible conflict of interest as she has a personal incentive to use the Estate funds to defend and then appeal the litigation. If she loses the appeal, she has personally lost nothing and has no other beneficiaries to account to.
39An Estate Trustee’s right to seek indemnification for costs is limited to those circumstances in which the costs have been reasonably incurred. Rather, the use of Estate funds to fund litigation is not unlimited and based on the modern approach to costs must be funded personally by each party until the litigation is completed.
Analysis and Ruling
40Ms. Evans seeks a Preservation Order pursuant to Rule 45.01 and 45.02 of the Rules. Those rules set out the following:
Interim Order for Preservation or Sale
45.01 (1) The court may make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or of a person not a party.
(2) Where the property is of a perishable nature or likely to deteriorate or for any other reason ought to be sold, the court may order its sale in such manner and on such terms as are just.
Specific Fund
45.02 Where the right of a party to a specific fund is in question, the court may order the fund to be paid into court or otherwise secured on such terms as are just.
41In BMW Canada Inc. v. Autoport Limited, 2021 ONCA 42, 456 D.L.R. (4th) 443, the Court of Appeal for Ontario allowed an appeal from Divisional Court and set out that the test for Rule 45.01 is not a “one size fits all” test and that the court “should seek to craft an order that is based on and responsive to the evidence before it, including evidence of the potential benefit and harm or prejudice to each party” (para. 6).
42In Estate of Enrico Carfagnini, 2014 ONSC 3575, the court held that the test for preservation of an Estate asset under Rule 45.01 is the same as the test for granting injunctive relief under Rule 45.02 (para. 20). That is, the three-part test in RJR-MacDonald Inc. applies and Ms. Evans must demonstrate that:
a) She has a claim to a specific fund;
b) There is a serious issue to be tried in relation to the claim, and;
c) The balance of convenience favours granting the relief she seeks.
Are the Estate funds a “Specific Fund?”
43Ms. Evans submits that the Estate funds are a specific fund because they are an identifiable fund which has been earmarked for the litigation. As a creditor of the Estate, Ms. Evans can assert a right to Estate assets in the same manner as a residual beneficiary. A proprietary right to the fund is not required.
44Ms. Skwira does not agree; her view aligns with the comments of Justice Goudge in Sadie Moranis Realty Corporation v. 1667038 Ontario Inc., 2012 ONCA 475 (“Sadie Moranis”) at para. 21, where he cites Assante Financial Management Ltd. v. Dixon (2004), 131 A.C.W.S. (3d) 741, 8 C.P.C. (6th) 57 (Ont. S.C.) at para 28: “There is a subtle but important difference between an amount that may be owing to the plaintiff and a ‘right’ of the plaintiff to a fund.”
45In Sadie Moranis, a real estate agent sought a Preservation Order for the entire sale proceeds of a property pending a determination of what was owed to him by way of the balance of his sale commission. The court held that the sales proceeds were not a specific fund because the Listing Agreement did not require that the commission be paid out of the sales proceeds.
46The facts of this case, however, do not align with Sadie Moranis. I find that the Estate funds are a specific fund because they are the only fund available to satisfy the damages award (for the punitive damages). If Ms. Skwira is not successful on appeal, Ms. Evans has a claim for the entire remaining amount. They have already been “earmarked” for this litigation because Ms. Skwira has used them to pay for the Estate’s defence of the civil claim and this Application.
Is There a Serious Issue to be Tried?
47This question is not difficult to answer. Given the amounts awarded at trial and the issues in dispute, the appeal is a critical one for both parties.
Does the Balance of Convenience Favour Granting the Relief Sought?
48I agree with Ms. Evans that the Estate suffers no harm if Estate funds are used for the appeal. However, Ms. Evans will suffer significant prejudice if Estate funds are further depleted, thereby reducing the funds available for her damages award.
49Ms. Evans, quite rightly, is concerned about the amount by which the Estate has already been depleted to pay legal fees in this matter.
50Finally, Ms. Skwira has never conceded the glaring conflict of interest in which she finds herself. She is the sole beneficiary of the Estate making litigation decisions to prefer her own interests. She has risked nothing in any of the proceedings so far other than a reduction in what might potentially be her residual share of the Estate if the Estate is entirely successful in its appeal.
51In summary, I find that Ms. Evans has met the test for a Preservation Order with some exceptions which I will outline below.
Should Certain Amounts be Added Back to the Preserved Amount?
52The accounting provided by Ms. Skwira raises significant questions. There are legal fees noted as expenses which were never paid. There is an invoice for renovations to Ms. Skwira’s home allegedly related to the deceased, but which were completed after his death.
53There are also approximately $30,000 in legal fees paid to NIKA Law to defend the within Application. It is not known if those fees include the fees for this motion. Ms. Saad submits that those fees were paid after Ms. Skwira and her counsel received multiple notices that assets were to be preserved.
54Counsel for Ms. Skwira did not strongly object to the unpaid invoices and renovation fees being added back. As for the NIKA Law legals, I will leave that to the judge hearing the Application as the accounting matters in this case are far from resolved.
The Estate Trustee’s Arguments
55A distinction is to be made between enforcement and preservation rights. The stay currently in place as a result of the appeal suspends Ms. Evans’ enforcement rights with respect to her damages award but it does not affect a right to preserve assets. In Alfano v. Piersanti, 2012 ONCA 612, the court dealt with an appeal of the dismissal of a motion to set aside a Mareva injunction. The court held that neither the Receivership Order nor the Mareva injunction granted were “enforcement” of the trial judgment under appeal.
56Ms. Skwira argues that Ms. Evans is attempting to enforce her damages award. I disagree. As per Alfano, she is only trying to preserve the subject funds. She does not request that they be paid out to anyone pending the appeal.
57The Estate Trustee insists that Ms. Evans is seeking the wrong relief and that she must meet the test for a Mareva injunction. I disagree. A Mareva injunction seeks to freeze the property of a defendant, whereas a Rule 45.02 motion seeks only to preserve property earmarked for the subject litigation.
58In Stearns v. Scocchia (2002), 118 A.C.W.S. (3d) 34, 27 C.P.C. (5th) 339 (Ont. S.C.), the court particularized the difference between a Mareva injunction and a Preservation Order in para 12 as follows:
12In my view, many of the rule 45.02 cases confuse the test for such an order with the test required to obtain a Mareva injunction. Although the relief obtained is similar in nature, they are remedies designed for different circumstances. There is a stricter test required for a Mareva injunction and for good reason – it restrains the defendant from dealing with his own property thereby requiring proof of a strong prima facie case. The plaintiff in a rule 45.02 motion need only claim a right to the fund – a lesser test essentially because the fund is not the asset of the defendant. [Emphasis added].
59In this case, no relief is sought against Ms. Skwira personally. She holds the Estate funds as a fiduciary and is not able to disburse them until the appeal is determined in any event.
60I would go further and find that if I am wrong with respect to the Preservation Order that Ms. Evans would meet the test for a Mareva injunction. The well-established test for a Mareva is set out below (see Taylor v. Freeman, 2025 ONSC 3760 (Div. Ct.) at para. 20) :
(a) a strong prima facie case on the merits of the main Action;
(b) grounds for believing that the defendant has assets in the jurisdiction;
(c) the defendant is removing or there is a real risk that the defendant is about to remove assets from the jurisdiction or is otherwise disposing of such assets in a manner that is out of the normal course;
(d) the plaintiff will suffer irreparable harm if the Order is not made and that the balance of convenience favours it; and
(e) an undertaking as to damages.
61There is no issue that Ms. Evans has a strong prima facie case given the almost precedent-setting damages award.
62There was no evidence as to what assets Ms. Skwira has in Ontario, but Ms. Evans’ counsel submitted that she has properties and other assets in Ontario. I infer she has a home as she rented a room to the deceased.
63On the risk of dissipation issue, I agree with counsel for Ms. Evans. Ms. Skwira has not hesitated to spend Estate assets on the defence of this application and the civil matter. Her accounting also raises questions. It is concerning that she has included as Estate debts, invoices that have not actually been paid. It is also troubling that Ms. Skwira paid out Alex’s legacy to a trust account before he was 21. The $200,000 legacy formed a substantial part of the Estate after the payment of expenses. She has made no effort to recover those funds.
64The appeal was initiated on Ms. Skwira’s instructions as Estate Trustee. I agree with counsel for Ms. Evans, and as already adverted above, there is an inherent conflict in Ms. Skwira acting as Estate Trustee and prosecuting the appeal which only serves to protect her share of the Estate.
65The balance of convenience arguments have already been addressed above.
66Finally, Ms. Skwira argues that the legal fees to prosecute the appeal are a proper Estate expense. She relies on Geffen v. Goodman Estate, 1991 69 (SCC), [1991] 2 S.C.R. 353 at p. 390 for the proposition that trustees are entitled to be indemnified “for all costs, including legal costs, which they have reasonably incurred. Reasonable expenses include the costs of an action reasonably defended.”
67In Geffen, the successful parties were awarded their costs to be paid out of the subject trust for two reasons. First, they successfully defended allegations of fraud, misconduct and undue influence and second, the Appellants were not acting for their own benefit but for the good of the Estate.
68Those findings do not align with the within case in which I have already found that Ms. Skwira has a conflict of interest. It is difficult to find that she is not acting out self-interest when any success will be hers alone.
How Should Rule 41.01 be Applied?
69As I have found that a Preservation Order should be made, I advert to the BMW Canada Inc. case in which the court suggested a fluid interpretation of such orders depending on the circumstances.
70Providing no funding for the appeal may be seen to be pre-judging the result. Providing unlimited funding as suggested by the Estate Trustee is highly prejudicial to Ms. Evans. It was disconcerting to the court that no formal estimate of fees for the appeal was provided. While the estimate was $50,000-75,000 there was no commitment to any fixed amount. It was only when requested by the court that an estimate was provided.
71The circumstances of this case require a fixed sum to be dedicated to the appeal. If it is insufficient, Ms. Skwira must decide if she will personally fund the balance and seek indemnification. If Ms. Skwira is successful on appeal, she has personally lost nothing.
Orders and Costs
72Given all the above, I make the following orders:
a) The Estate may fund the appeal up to a maximum of $25,000.
b) The balance of the Estate funds (subject to the costs order below) are preserved pending the results of the appeal.
c) The following funds are to be considered part of the preserved amount:
i. The funds for the renovations in the amount of $21,018.
ii. A total of $14,329.20 for invoices that were not paid as per paragraph 51 above.
d) Ms. Skwira to provide all details of the account into which the $200,000 legacy was paid for the benefit of Alex.
Costs
73Ms. Saad sought her partial indemnity costs of $17,989.03. Counsel for Ms. Skwira did not provide a costs outline but sought the all-inclusive sum of $23,000 in partial indemnity costs. It is unclear why this amount is higher than the amount sought by Ms. Saad who had more material to file given that it was her motion.
74However, Ms. Saad was not entirely successful, and Ms. Murugadas was not entirely unsuccessful. On balance, however, Ms. Saad had more success as the majority of Estate funds were preserved.
75Costs are forthwith payable from the Estate funds to Ms. Evans in the amount of $10,000 forthwith.
Cory A. Gilmore
Date: February 04, 2026