R.S.O. 1990, c. S.26, s. 58. s 58. Currency

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1 Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 58 Ontario Statutes Succession Law Reform Act Part V Support of Dependants R.S.O. 1990, c. S.26, s. 58 s 58. Currency (1)Order for support Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them. 58(2)Applicants An application for an order for the support of a dependant may be made by the dependant or the dependant's parent. 58(3)Same An application for an order for the support of a dependant may also be made by one of the following agencies, (a) the Ministry of Community and Social Services in the name of the Minister; (b) a municipality, excluding a lower-tier municipality in a regional municipality; (c) a district social services administration board under the District Social Services Administration Boards Act; (d) a band approved under section 15 of the General Welfare Assistance Act; or, (e) a delivery agent under the Ontario Works Act, 1997, if the agency is providing or has provided a benefit under the Family Benefits Act, assistance under the General Welfare Assistance Act or the Ontario Works Act, 1997 or income support under the Ontario Disability Support Program Act, 1997 in respect of the dependant's support, or if an application for such a benefit, assistance or income support has been made to the agency by or on behalf of the dependant. 58(4)Idem The adequacy of provision for support under subsection (1) shall be determined as of the date of the hearing of the application. Amendment History 1997, c. 25, Sched. E, s. 12; 2002, c. 17, Sched. F, s. 1 Currency Ontario Current to Gazette Vol. 147:43 (October 25, 2014) End of Document Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 1

2 Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 61 Ontario Statutes Succession Law Reform Act Part V Support of Dependants R.S.O. 1990, c. S.26, s. 61 s 61. Currency (1)Limitation period Subject to subsection (2), no application for an order under section 58 may be made after six months from the grant of letters probate of the will or of letters of administration. 61(2)Exception The court, if it considers it proper, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application. Currency Ontario Current to Gazette Vol. 147:43 (October 25, 2014) End of Document Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 1

3 Family Law Act, R.S.O. 1990, c. F.3, s. 6 Ontario Statutes Family Law Act Part I Family Property R.S.O. 1990, c. F.3, s. 6 s 6. Currency 6. 6(1)Election: spouse's will When a spouse dies leaving a will, the surviving spouse shall elect to take under the will or to receive the entitlement under section 5. 6(2)Idem: spouse's intestacy When a spouse dies intestate, the surviving spouse shall elect to receive the entitlement under Part II of the Succession Law Reform Act or to receive the entitlement under section 5. 6(3)Idem: spouse's partial intestacy When a spouse dies testate as to some property and intestate as to other property, the surviving spouse shall elect to take under the will and to receive the entitlement under Part II of the Succession Law Reform Act, or to receive the entitlement under section 5. 6(4)Property outside estate A surviving spouse who elects to take under the will or to receive the entitlement under Part II of the Succession Law Reform Act, or both in the case of a partial intestacy, shall also receive the other property to which he or she is entitled because of the first spouse's death. 6(5)Gifts by will The surviving spouse shall receive the gifts made to him or her in the deceased spouse's will in addition to the entitlement under section 5 if the will expressly provides for that result. 6(6)Amounts to be credited The rules in subsection (7) apply if a surviving spouse elects or has elected to receive an entitlement under section 5 and is, (a) the beneficiary of a policy of life insurance, as defined in the Insurance Act, that was taken out on the life of the deceased spouse and owned by the deceased spouse or was taken out on the lives of a group of which he or she was a member; (b) the beneficiary of a lump sum payment provided under a pension or similar plan on the death of the deceased spouse; or (c) the recipient of property or a portion of property to which the surviving spouse becomes entitled by right of survivorship or otherwise on the death of the deceased spouse. 6(7)Same The following rules apply in the circumstances described in subsection (6): 1. The amount of every payment and the value of every property or portion of property described in that subsection, less any contingent tax liability in respect of the payment, property or portion of property, shall be credited against the surviving spouse's entitlement under section 5. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 1

4 Family Law Act, R.S.O. 1990, c. F.3, s If the total amount of the credit under paragraph 1 exceeds the entitlement under section 5, the deceased spouse's personal representative may recover the excess amount from the surviving spouse. 3. Paragraphs 1 and 2 do not apply in respect of a payment, property or portion of property if, (i) the deceased spouse provided in a written designation, will or other written instrument, as the case may be, that the surviving spouse shall receive the payment, property or portion of property in addition to the entitlement under section 5, or (ii) in the case of property or a portion of property referred to in clause (6)(c), if the surviving spouse's entitlement to the property or portion of property was established by or on behalf of a third person, either the deceased spouse or the third person provided in a will or other written instrument that the surviving spouse shall receive the property or portion of property in addition to the entitlement under section 5. 6(8)Effect of election to receive entitlement under section 5 When a surviving spouse elects to receive the entitlement under section 5, the gifts made to him or her in the deceased spouse's will are revoked and the will shall be interpreted as if the surviving spouse had died before the other, unless the will expressly provides that the gifts are in addition to the entitlement under section 5. 6(9)Idem When a surviving spouse elects to receive the entitlement under section 5, the spouse shall be deemed to have disclaimed the entitlement under Part II of the Succession Law Reform Act. 6(10)Manner of making election The surviving spouse's election shall be in the form prescribed by the regulations made under this Act and shall be filed in the office of the Estate Registrar for Ontario within six months after the first spouse's death. Proposed Amendment 6(10) 6(10) Manner of making election The surviving spouse's election shall be in the form prescribed by the regulations and shall be filed in the office of the Estate Registrar for Ontario within six months after the first spouse's death. 2014, c. 7, Sched. 9, s. 2 [Not in force at date of publication.] 6(11)Deemed election If the surviving spouse does not file the election within that time, he or she shall be deemed to have elected to take under the will or to receive the entitlement under the Succession Law Reform Act, or both, as the case may be, unless the court, on application, orders otherwise. 6(12)Priority of spouse's entitlement The spouse's entitlement under section 5 has priority over, (a) the gifts made in the deceased spouse's will, if any, subject to subsection (13); (b) a person's right to a share of the estate under Part II (Intestate Succession) of the Succession Law Reform Act; (c) an order made against the estate under Part V (Support of Dependants) of the Succession Law Reform Act, except an order in favour of a child of the deceased spouse. 6(13)Exception Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 2

5 Family Law Act, R.S.O. 1990, c. F.3, s. 6 The spouse's entitlement under section 5 does not have priority over a gift by will made in accordance with a contract that the deceased spouse entered into in good faith and for valuable consideration, except to the extent that the value of the gift, in the court's opinion, exceeds the consideration. 6(14)Distribution within six months of death restricted No distribution shall be made in the administration of a deceased spouse's estate within six months of the spouse's death, unless, (a) the surviving spouse gives written consent to the distribution; or (b) the court authorizes the distribution. 6(15)Idem, notice of application No distribution shall be made in the administration of a deceased spouse's death after the personal representative has received notice of an application under this Part, unless, (a) the applicant gives written consent to the distribution; or (b) the court authorizes the distribution. 6(16)Extension of limitation period If the court extends the time for a spouse's application based on subsection 5(2), any property of the deceased spouse that is distributed before the date of the order and without notice of the application shall not be brought into the calculation of the deceased spouse's net family property. 6(17)Exception Subsections (14) and (15) do not prohibit reasonable advances to dependants of the deceased spouse for their support. 6(18)Definition In subsection (17), "dependant" has the same meaning as in Part V of the Succession Law Reform Act. 6(19)Liability of personal representative If the personal representative makes a distribution that contravenes subsection (14) or (15), the court makes an order against the estate under this Part and the undistributed portion of the estate is not sufficient to satisfy the order, the personal representative is personally liable to the applicant for the amount that was distributed or the amount that is required to satisfy the order, whichever is less. 6(20)Order suspending administration On motion by the surviving spouse, the court may make an order suspending the administration of the deceased spouse's estate for the time and to the extent that the court decides. Amendment History 2004, c. 31, Sched. 38, s. 2(2); 2009, c. 11, s. 23 Currency Ontario Current to Gazette Vol. 147:43 (October 25, 2014) End of Document Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 3

6 Family Law Act, R.S.O. 1990, c. F.3, s. 7 Ontario Statutes Family Law Act Part I Family Property R.S.O. 1990, c. F.3, s. 7 s 7. Currency 7. 7(1)Application to court The court may, on the application of a spouse, former spouse or deceased spouse's personal representative, determine any matter respecting the spouses' entitlement under section 5. 7(2)Personal action; estates Entitlement under subsections 5(1), (2) and (3) is personal as between the spouses but, (a) an application based on subsection 5(1) or (3) and commenced before a spouse's death may be continued by or against the deceased spouse's estate; and (b) an application based on subsection 5(2) may be made by or against a deceased spouse's estate. 7(3)Limitation An application based on subsection 5(1) or (2) shall not be brought after the earliest of, (a) two years after the day the marriage is terminated by divorce or judgment of nullity; (b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation; (c) six months after the first spouse's death. Currency Ontario Current to Gazette Vol. 147:43 (October 25, 2014) Concordance References Family Law Concordance 92, Order for division of property End of Document Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 1

7 Blatchford (Litigation guardian of) v. Blatchford Estate, 1999 CarswellOnt CarswellOnt 5448, 45 O.R. (3d) CarswellOnt 5448 Ontario Superior Court of Justice Blatchford (Litigation guardian of) v. Blatchford Estate 1999 CarswellOnt 5448, 45 O.R. (3d) 784 Blatchford, by his litigation guardian, The Children's Lawyer of Ontario v. Gardiner et al. Counsel: Archie J. Rabinowitz, Danielle Joel, for Applicant Clare E. Burns, Andrew E. Bernstein, for Respondent Subject: Family Headnote Family law Himel J. Judgment: October 1, 1999 Docket: None given. Himel J.: 1 Jaris Dan Dirkson Blatchford brings an application by his litigation guardian, the Children's Lawyer of Ontario, for support under the Succession Law Reform Act, R.S.O. 1990, c. S.26 ("SLRA") from the estate of Frank Campbell Blatchford. The matter before me is the preliminary issue of whether the limitation period prescribed by s. 61 of that Act applies to this case and bars the claim. Factual Background 2 Frank Blatchford was a retired army major who since 1979, lived part of the year in Thunder Bay, Ontario and the rest of the year in Grenada. The claim is that he met Carole Elizabeth Patrice and that they lived together since 1980 and had a child, Jaris, who was born on January 9, Jaris and his mother have lived throughout on the small island of Carriacou which is part of Grenada. For years when he was back in Canada, Mr. Blatchford sent money on a monthly basis to Ms. Patrice in Grenada. 3 Mr. Blatchford died on January 20, He made a will on November 4, 1983 which named his sisters, Jean Elizabeth Gardiner and Lois Cora Crook, as executors and trustees of his estate. They were also beneficiaries of the residue of his estate. There was no provision for Jaris. Ms. Gardiner applied for letters probate which were granted on February 23, Since Mr. Blatchford's death, Ms. Patrice has supported Jaris and herself on the amounts she earns from selling produce at the local market and on some money she receives from her sister who lives in the United States. 4 It was at Mr. Blatchford's funeral that Ms. Gardiner was told by a friend of his that he had a child in Grenada. Ms. Gardiner did not believe this and has, throughout, taken the position that Ms. Patrice was Mr. Blatchford's housekeeper. 5 When Ms. Patrice learned of Mr. Blatchford's death, she attempted to make inquiries to deal with his small estate in Grenada. She asked a friend, Michael Gilbert, to contact the Blatchford residence and then the funeral home to obtain the death certificate. When they were unsuccessful, she asked Mr. John, a Grenadian lawyer, to assist her. He contacted the funeral home on her behalf but met with a response on May 19, 1995 that the executrix of the estate had instructed Jenkins Funeral Home not Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 1

8 Blatchford (Litigation guardian of) v. Blatchford Estate, 1999 CarswellOnt CarswellOnt 5448, 45 O.R. (3d) 784 to provide any further information or proof of death forms to them. In January of 1997, Ms. Patrice learned of Jaris' possible right to seek support from Mr. Blatchford's estate in Ontario. The Office of the Children's Lawyer notified the estate trustee that a claim was being made on the residue of the estate. Ms. Gardiner then stopped distributing the estate further. Jaris's application for support was made on January 11, 1999 when he was 16 years of age. 6 The issue of the timing of the application relates to the period of time between the date of probate and the notice of the claim in The period between 1997 and today is not in issue with respect to the delay argument. Issues 7 The issues before me are (1) whether s. 47 of the Limitations Act, R.S.O. 1990, c. L.15 has the effect of overriding the general limitation periods set out in s. 45 of that Act or the specific limitation period set out in s. 61 of the SLRA where a minor is making an application for support; and (2), alternatively, if the application is statute barred, whether the court should exercise its discretion under s. 61(2) of the SLRA to allow the application to be made where it considers it to be proper to do so. The Positions of the Parties 8 The applicant's position is that Ms. Gardiner effectively had notice at the time of Mr. Blatchford's death that he had a son who was entitled to make a claim as a dependant or was wilfully blind to the existence of a dependant. In any event, it is argued on behalf of the applicant that s. 61(1) of the SLRA, which allows a dependant to make an application for support within six months from the grant of letters probate of the will, is overridden by the effect of s. 47 of the Limitations Act which provides that the period within which the action may be brought runs from the date when the person became of full age. Relying upon the leading decision of the Ontario Court of Appeal in Papamonolopoulos v. Toronto (City) Board of Education (1986), 56 O.R. (2d) 1, 30 D.L.R. (4th) 269, it is submitted that because there is not clear wording in s. 61(1) that s. 47 does not apply, s. 47 of the Limitations Act governs and the claim is not statute barred. Further, it is submitted that the court has applied the Papamonolopoulos case to a case involving limitation periods under the SLRA in Wilson v. Wilson Estate, [1993] O.J. No (Gen. Div.). The applicant's position that the appointment of a litigation guardian does not start the limitation period from running as though the minor had attained the age of majority was conceded by the respondent. 9 Alternatively, the applicant argues that even where the application is statute barred under s. 61(1) of the SLRA, the court has discretion if it considers it proper to allow an application to proceed as to any portion of the estate remaining undistributed at the date of the application under s. 61(2). In that there is sufficient reason for the delay and the application has merit, the court should exercise its discretion and allow the application to continue outside the limitation period. 10 The respondent's position is that Ms. Gardiner did not have notice of a claim by Jaris against the deceased's estate until the Children's Lawyer wrote in March of That was more than three years since letters probate had been issued. It is also argued that the only evidence of Jaris' parentage is his mother's unsupported affidavit and the birth certificate which the respondent says was altered in 1997 without Mr. Blatchford's consent or involvement referring to him as the father. As Mr. Blatchford's body had been cremated, there is no physical or other corroborative evidence available to support the claim. Although these are all factual problems that would have to be resolved on the application itself, they are relevant to the legal issues concerning the limitation period and whether the court should exercise its discretion to allow the case to proceed despite the expiry of the time limit. 11 On the limitation period, the respondent's position is that dependant relief claims under Part V of the SLRA are subject to a limitation period of six months from the time letters probate are issued so that the time expired on August 23, The executrix of the estate was not aware of the possibility of the application until March 1997, more than three years later. Section 47 of the Limitations Act which suspends the running of a limitation period for "minors, mental defectives, mental incompetents or persons of unsound mind", refers only to actions mentioned in ss. 45 or 46 of that Act. Where the courts have interpreted s. 47 to apply to limitation periods that are set out by other statutes, the cause of action alleged was negligence which is an "action upon the case" referred to in s. 45 of the Act. The cause of action in this case is not mentioned in s. 45 of the Act and s. 47 cannot apply. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 2

9 Blatchford (Litigation guardian of) v. Blatchford Estate, 1999 CarswellOnt CarswellOnt 5448, 45 O.R. (3d) If the court applied s. 47 to Part V of the SLRA, it would lead to absurd results such as forestalling the distribution of an estate for over 18 years. The consequence would also be to render s. 61(2) meaningless where the claimant is a minor. It is the responsibility of guardians to ensure that the minor has proper support or bring the application within six months. 13 With respect to the alternative argument, the respondent submits that this is not a proper case for the court to exercise its discretion and allow the application to be made as to any portion of the estate remaining undistributed at the time of the application in that there has been lengthy delay, there is no explanation for the delay and there will be material prejudice to the respondent in finding evidence to respond to the allegation of paternity. The Law 14 A dependant may make an application for support under s. 58 of the SLRA within six months from the grant of letters probate of the will. The court has the discretion to allow the application to proceed at any time as to any portion of the estate remaining undistributed at the date of the application (s. 61(2)). 15 The Limitations Act sets out specific limitation periods for general types of actions. Section 45(2) provides that specific statutory limitation periods prevail over general limitation periods in the Act. Section 47 of the Act deals with cases involving minors as follows: 47. Where a person entitled to bring an action mentioned in Section 45 or 46 is at the time the cause of action accrues a minor, mental defective, mental incompetent or of unsound mind, the period within which the action may be brought shall be reckoned from the date when such person became of full age or of sound mind. 16 There are provisions in limitations statutes in all Canadian provinces and territories that postpone the running of time against parties who are considered incapable of managing their own affairs. The rationale is stated in Papamonolopoulos v. Toronto Board of Education, supra, at p. 3 O.R., p. 271 D.L.R. where the Ontario Court of Appeal wrote as follows:...since early days we have recognized that fairness and justice require some relief for those who because of the incapacity of infancy would probably lose their right to compensation by courts for wrongs done to them. 17 In Papamonolopoulos, the plaintiff had been injured in a school activity when she was 16 years old and did not commence an action until she reached the age of majority some two years later. The School Board argued that the six-month limitation period in s. 11 of the Public Authorities Protection Act barred the action. The court considered whether s. 47 of the Limitations Act was confined to limitation periods contained within the Act itself or whether it was a general provision applicable to all limitation a periods in the absence of clear words to the contrary. Brooke J.A. wrote at p. 7 O.R., p. 275 D.L.R.: With the amendments to which I have referred, s. 47 became a section of general application. It was not limited simply to cases that fell within the Limitations Act itself as was the comparable section of those days and in the early English statute. In view of its precise words, s. 45(2) should not be construed as extending to limit the application of s. 47. I think the provisions of a statute of limitations should be liberally construed in favour of the individual whose right to sue for compensation is in question. Where two interpretations of the statute are possible, reason favours the one which enables the plaintiff to bring his action. 18 Acknowledging that the predecessor statute included the words, "according to the provisions of this act", Justice Brooke concluded at p. 7 O.R., p. 275 D.L.R.: Unless the effect of s. 47 is specifically excluded by some other provision of the Limitations Act or some other statute, its words are broad and the section is of general application. And at p. 9 O.R., p. 277 D.L.R.: Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 3

10 Blatchford (Litigation guardian of) v. Blatchford Estate, 1999 CarswellOnt CarswellOnt 5448, 45 O.R. (3d) s. 47 applies generally to limitation periods prescribed by the Limitations Act and in the absence of clear wording to the contrary, by other statutes which provide for the limitation of an action. Finally he stated at p. 10 O.R., p. 278 D.L.R.: The view I take of this case is that s. 11 of the Public Authorities Protection Act, like s. 45(1) does no more than limit the time within which the specified action may be brought. The two sections are subject to the same extensions for infants provided for in s. 47 of the Limitations Act. It would take clear wording in the Limitations Act or the Public Authorities Protection Act to restrict the application of s. 47 of the Limitations Act. As nothing in the Public Authorities Protection Act meets this test and nothing in the Limitations Act has that effect, I think that the appellant's right to bring her action to trial and to a judgment is clear. 19 There is little case law where the principles in the Papamonolopoulos case have been applied to a limitation period under the SLRA. The one case on point is Wilson v. Wilson Estate, supra, where the court held that a claim brought nine years after her father's death on behalf of a daughter who had cerebral palsy and suffered from a developmental disability was not statute barred and that s. 47 of the Limitations Act applied (at para. 12). 20 The discretion of the court under s. 61(2) to allow an application to proceed although it is brought after the time limit has expired under the SLRA must be exercised with consideration of the factors of the delay involved, the reasons for the delay and the extent of prejudice in the estate's defence of the claim. A testator, except in extreme cases, is entitled to make a will without interference of the court. No family member has any legal entitlement to the estate of another person who has disposed of the estate under a will unless, under the authority of the SLRA, the court can and should take a look at the intentions of the testator who may have overlooked the legitimate interests and needs of a child. In the decision of Barr v. Barr, [1972] 2 W.W.R. 346, 25 D.L.R. (3d) 401, the Manitoba Court of Appeal considered a provision similar to Ontario's s. 58(1) of the SLRA. Dickson J.A. (as he then was) stated at pp : The dominant theme running through the cases, and they are myriad, is one of ethics, even more than economics. Although The Testators Family Maintenance Act is couched in terms which at first impression appear to be pragmatic and economic, "adequate provision for... proper maintenance and support," it soon becomes apparent on a review of the authorities that heavy emphasis is placed upon the moral aspects of the problem. The court was never intended to rewrite the will of a testator and in discharging its difficult task of correcting a breach of morality on a testator's part the court must not, except in plain and definite cases, restrain a man's right to dispose of his estate as he pleases. But, equally, it is fair to say that the legislation has by and large received a very liberal interpretation. The attitude of the courts has been one of great flexibility. Every case must, of course, be decided upon its own facts and circumstances. 21 On the question of delay, the Ontario Court of Appeal commented as follows in Re Stewart Estate, [1944] O.W.N. 380: The Act permits the judge, "if he deems it just", to hear an application confined to the estate then undistributed, at any time. The judge is thus given a discretion to be exercised on the principle of promoting justice between those interested in the estate. It is clear that he must refuse an application if the delay in applying would work an injustice. Further than that it would seem that he must find that justice, in so far as the principle of the Act defines the kind of justice that the Legislature had in mind, requires that the application should be heard. It is not shown here that any injustice would be caused by hearing the application after the delay that has occurred. Further than that, it would appear that the applicant has a prima facie right to have his application heard, and the Court in deciding this preliminary question of discretion is not concerned beyond that. That prejudice may result if the lawsuit is brought after long delay is clearly a factor to consider when deciding whether to allow the application to proceed: Bobyk v. Bobyk, [1993] O.J. No. 488 (Gen. Div.). 22 To succeed under s. 58(1), it must be demonstrated that the testator died without having made adequate provision in his will for the proper maintenance and support of the applicant. The discretion under s. 61(2) should be exercised judicially Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 4

11 Blatchford (Litigation guardian of) v. Blatchford Estate, 1999 CarswellOnt CarswellOnt 5448, 45 O.R. (3d) 784 in a broad and liberal manner mandated by the statutory use of "may" in both ss. 58(1) and 61(2) of the Act as well as use of the term "proper". The word "proper", according to Black's Law Dictionary, 6th ed., means, "fit, suitable, appropriate, adapted, correct". These words incorporate the concept of reasonableness which includes a determination of whether the testator acted as a morally responsible parent in the circumstances. 23 Even with the requirement of a broad, liberal interpretation of s. 61(2), the section cannot be interpreted as automatically being granted. What is "proper" depends on the facts of the case. In deciding whether to grant an extension, the court must determine whether the situation bears review of whether or not the testator made adequate provision in his will for the proper maintenance and support of his dependants. 24 Frequently limitation periods are extended under statutory provisions when it is indicated that there would be no prejudice to the other party arising from the delay. A factor to consider is whether prejudice that would otherwise arise is removed by the provision in s. 61(2) whereby any application filed out of time is permitted only as against any portion of the estate remaining undistributed at the date of the application. Conclusions 25 On my review of the governing statutes and case law, I find there is nothing in Part V of the SLRA that clearly excludes the application of s. 47 of the Limitations Act. Applying the principles set out in Papamonolopoulos, in that a statute of limitations should be construed liberally in favour of the individual bringing the action, I conclude that the effect of s. 47 is not specifically excluded by the SLRA or by some other provision of the Limitations Act. Absent clear wording to the contrary, s. 47 applies and the applicant has the right to bring the claim for support. 26 This interpretation of the Ontario legislation is, in my view, consistent with the analysis and recommendations for reform in this area across the country. While the principle behind limitations laws is to provide peace and repose for a defendant and society generally and to avoid litigation of stale claims, studies in this area have acknowledged the need to balance competing interests such as the recognition of the need for special protection provided to children and persons with disability who have legitimate claims. The rationales for limitations statutes, namely, to provide repose to certain potential defendants, to address evidentiary problems arising from stale claims and to encourage plaintiffs to act diligently and bring lawsuits in a timely fashion must also be viewed against the perspective of fairness to the plaintiff: M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 at p. 29, 96 D.L.R. (4th) 289 at pp From the materials filed, there is evidence that Ms. Gardiner was made aware of the possibility of an existing dependant at the time of Mr. Blatchford's funeral in She was also aware that Ms. Patrice sought information from the funeral home which she instructed not to provide such information in The court will have to consider these facts and the duty of the executor and trustee to act honestly, reasonably and fairly in the interests of the estate in deciding whether the claim should succeed. I am satisfied that on the preliminary issue of the limitation period, the claim is not statute barred and the case should proceed on its merits. 28 Although I find that the applicant is not prevented from pursuing its claim by the limitation period and, therefore, does not need to resort to the alternative argument, I also provide my conclusions on the alternative ground. 29 There is broad discretion under s. 61(2) of the SLRA authorizing a court, if it considers it proper, to allow an application to be made as to any undistributed portion of the estate. That decision must involve a consideration of the delay and any prejudice to the defendant. I disagree with the respondent that there is no explanation for delay in this case. Ms. Patrice attempted to make inquiries and was met with obstacles following Mr. Blatchford's death. Given where she lived, her limited resources to obtain assistance and her inability to gain access to information, it is understandable that there was delay. I am satisfied that the delay was not lengthy and there was a reasonable explanation. 30 On the issue of prejudice, the argument has been made that Mr. Blatchford's body was cremated and that any opportunities to do DNA testing to establish paternity have now been lost resulting in prejudice to the estate. I agree with the applicant's response that since Mr. Blatchford's remains were cremated before the funeral service and well before probate had been obtained, Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 5

12 Blatchford (Litigation guardian of) v. Blatchford Estate, 1999 CarswellOnt CarswellOnt 5448, 45 O.R. (3d) 784 a claim made even immediately following his death would be met with the same argument. There are other ways of dealing with the paternity issue. The applicant will have to meet the onus of demonstrating that Jaris was a dependant and is in need. I do not accept that there will be prejudice suffered because of the lateness of the application. 31 The respondent's argument under s. 61(2) is construed so that the subsection has the meaning that an applicant for an extension of time must show good cause as to why the application was not made within six months. In my opinion, this is not the statutory intent. The discretion to extend or to refuse to extend the time limit is to be exercised having regard to what is equitable as between the parties concerned in all the circumstances of the particular case. The existence of a satisfactory reason for delay in applying may be a circumstance to be considered, but delay is not the sole consideration upon which an extension of time is to be granted or refused. Where, as in the case at bar, the applicant has been living an isolated existence in a foreign jurisdiction, unaware of Canadian law and his rights, it is inequitable to refuse to extend the time period. The respondent has not demonstrated that the assets of the estate will be prejudicially affected by remaining undistributed in the hands of the executrix pending the disposition of the application on the merits. 32 For these reasons I deem it proper in that it is suitable and correct, based upon all the circumstances, to allow an application to be made now as to any portion of the estate remaining undistributed at the time of the application. The application is not frivolous or vexatious and the case has been made to exercise my discretion to allow the application to proceed. Result 33 I answer the questions posed in this case as follows: Question: (1) Does s. 47 of the Limitations Act have the effect of overriding general limitation periods set out in s. 45 of that Act or the specific limitation period set out in s. 61 of the SLRA where a minor is making a claim for support? Answer: Yes. (2) Alternatively, if the application is statute barred, should the court exercise its discretion under s. 61(2) of the SLRA to allow the application to be made where it considers it proper to do so. Answer: Yes. 34 If the parties are unable to agree on costs of the motion on this preliminary issue they may contact my office to arrange for submissions to be made. End of Document Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 6

13 Skrobacky v. Frymer, 2012 ONSC 4277, 2012 CarswellOnt ONSC 4277, 2012 CarswellOnt 9335, [2012] W.D.F.L ONSC 4277 Ontario Superior Court of Justice Skrobacky v. Frymer 2012 CarswellOnt 9335, 2012 ONSC 4277, [2012] W.D.F.L. 5786, 218 A.C.W.S. (3d) 717 Rachel Skrobacky, by her attorneys for property Madelon Niman and Suzan Zarnett, Madelon Niman and Suzan Zarnett personally and in their capacities as Trustees of the Skrobacky Family Trust 2, Plaintiffs and Jack Frymer, Samuel Stern (also known as Sam Stern), Janice Stern, Carol Frymer, Garfin Zeidenberg LLP, Steinber, Morton Hope & Israel LLP, Stacy Mitchell, The Canada Trust Company in its capacity as Estate Trustee During Litigation of the Estate of Abraham Skrobacky, ES-Lea Holdings Limited, ES-Lea Investments Limited, K.R.S. Construction Limited, Camwood Construction Limited, Camwood Investments Limited, Queen Peter Holdings Inc., Queen Brown Holdings Inc, King Peter Investments Inc., Janfar Holdings Limited, S. Stern Financial Corporation, Jan-Sam Holdings Ltd., Jordale Management Inc., Ontario Ltd., Max Stern Investments Limited, Baycrest Centre for Geriatric Care, Israel Soldiers Fund, Jewish National Fund of Canada, Beth David Synagogue of Toronto, Zareinu Educational Centre, Adam Niman, Dale Niman, Jeremy Niman, Dara Zarnett, David Zarnett, Francis Cutler (also known as Frances Cutler Hahn), and Mercedes Stewart, Defendants Whitaker J. Heard: May 8, 2012 Judgment: July 20, 2012 Docket: /09 Proceedings: additional reasons at Skrobacky v. Frymer (2012), 2012 ONSC 5734, 2012 CarswellOnt (Ont. S.C.J.) Counsel: Chris Bredt, Danielle Joel, Ewa Krajewska, for Plaintiffs Melanie Yack, for Stern Defendants A. Dryer, for Frymer Defendants A. Antoniou, for Garfin Zeidenberg LLP Defendants Albert S. Frank, for Queen Peter, Queen Brown, King Peter, Max Stern Inv. Inc. and Janfar Holding Subject: Family; Property; Civil Practice and Procedure Related Abridgment Classifications For all relevant Canadian Abridgment Classifications refer to highest level of case via History. Headnote Family law --- Division of family property Order for division of property Order for payment Global equalization order Plaintiff wife elected to take equalization of net family property under Family Law Act after her husband died Wife's two daughters were her litigation guardians Plaintiffs brought action seeking, inter alia, declaration that husband's 1995 will in favour of wife and children was valid, and that his 2004 will and codicils in favour of his business associates F and S were invalid Wife brought motion for payment of $4.5 million from husband's estate as advance from equalization Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 1

14 Skrobacky v. Frymer, 2012 ONSC 4277, 2012 CarswellOnt ONSC 4277, 2012 CarswellOnt 9335, [2012] W.D.F.L payment under Family Law Act Motion granted Trust company appointed as estate trustee during litigation (ETDL) consented to equalization payment sought Wife was entitled to equalization payment, based on current estimated value of husband's net family property It was appropriate to permit advance sought at this time Wife's existing assets could be quickly consumed by costs of litigation Her need to pursue claims was reasonable requirement Wife had statutory right to eventual equalization payment and ETDL considered amount claimed appropriate Payment was just in circumstances Defendants were neither beneficiaries or creditors at this point There was no prejudice or harm to defendants if advance payment were made, but wife would be prejudiced in her ability to prosecute action without funds Balance of harm and reasonableness of request favoured wife Wife was entitled to partial payment of her equalization payment, particularly given agreement of ETDL Defendants did not have interest to assert in motion Partial summary judgement granted providing for advance as sought. Table of Authorities Cases considered by Whitaker J.: Laamanen v. Laamanen (2005), 25 R.F.L. (6th) 441, 2005 CarswellOnt 8037 (Ont. S.C.J.) followed Statutes considered: Family Law Act, R.S.O. 1990, c. F.3 Generally referred to s. 5 considered s. 5(1) considered s. 5(2) considered s. 5(3) considered s. 5(7) considered s. 6 considered s. 6(1) considered s. 7 considered s. 7(1) considered s. 7(2) considered Rules considered: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 R. 20 referred to MOTION by plaintiff wife for advance payment of $4.5 million from estate of her late husband. Whitaker J.: What This Case is About Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 2

15 Skrobacky v. Frymer, 2012 ONSC 4277, 2012 CarswellOnt ONSC 4277, 2012 CarswellOnt 9335, [2012] W.D.F.L This is a motion brought by Rachel Skrobacky ("Rachel") for an advance payment of 4.5 million dollars. The funds are sought from the estate (the "Estate") of Rachel's late husband Abe Skrobacky ("Abe"). 2 The requested funds are an advance from an equalization payment under the Family Law Act R.S.O c. F.3 (the "Act") or in the alternative, partial summary judgment under Rule 20 of the Rules of Civil Procedure (the "Rules"). 3 Rachel argues that the defendants have no standing or interest in the motion either under the Act or Rule The motion is opposed by the Stern, Frymer and Queen Peter defendants (the "defendants") as those defendants are grouped and identified in the action. The defendants assert they have standing and an interest in the motion, and further, Rachel does meet the test for an advance and that the advance would be to their detriment and therefore unreasonable. 5 Canada Trust Company is the Estate Trustee During Litigation ("ETDL"). The ETDL agrees with Rachel that the motion should be granted and the advance made. 6 As I have considered the defendants' submissions on the merits it is unnecessary to deal with the issue of standing. 7 For reasons which follow, I find the defendants do not have an interest to assert in the motion and the motion should be allowed particularly given the agreement of the ETDL. What Happened? 8 The principal facts are not in dispute. 9 Abe and Rachel immigrated to Canada in 1948 with no possessions or assets. They had two children; the plaintiffs Madelon Niman ("Madelon") and Suzan Zarnett ("Suzan"). 10 Rachel and Abe remained married until Abe's death on November 6, On the day before Abe's death, Rachel's net family property was $412, On the same day, Abe's family property exceeded 9.5 million dollars. 12 Rachel is now 80 years old and suffers from advanced Alzheimer's disease. She lives in Baycrest nursing home. Rachel's two daughters are her litigation guardians and attorneys for property. 13 On December 2, 2009 Rachel filed an election to take an equalization of net family property under the Act. 14 After Abe's death Madelon and Suzan attempted to obtain financial information about their parents' affairs from Jack Frymer (a lawyer) and Sam Stern (a mortgage broker), both business associates of Abe's. 15 On December 18, 2009 Madelon and Suzan on behalf of themselves and Rachel, commenced an application against the defendants. 16 At the initial hearing of the application, Low J. ordered the defendants to disclose information to the plaintiffs including all testamentary documents. Canada Trust Company was appointed as ETDL. Justice Low's order permitted Rachel to withdraw her election under the Act or to commence an application for equalization. 17 In response to the production order, Frymer and Stern produced a purported will of Abe's dated April 8, This will prepared by Frymer named Frymer as the residual beneficiary. There were two codocils to Stern's benefit. 18 The 2004 will and codicils made by Abe and prepared by Frymer were in stark contrast to two wills made by Abe and Rachel in The earlier wills granted a life interest to the surviving spouse with an unlimited right to encroach on capital and on their mutual deaths, distribution to the daughters and their children. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 3

16 Skrobacky v. Frymer, 2012 ONSC 4277, 2012 CarswellOnt ONSC 4277, 2012 CarswellOnt 9335, [2012] W.D.F.L This action was brought in December Various claims are asserted against the defendants and others including a declaration that the 1995 will is valid and the 2004 will and codocils are invalid. 20 After the close of pleadings and with leave, the defendants have amended their pleadings for the purpose of pursuing cross claims against the plaintiffs. The cross claims only arise on the plaintiffs' success in the action. 21 The plaintiffs with leave have commenced derivative actions with respect to corporate entities in which the Estate had an interest. 22 When the equalization motion came before Justice Hainey on January 13, 2012, it was adjourned by agreement, including that the defendants would be entitled to appear and make submissions on the return of the motion. 23 The defendants argue that Abe's net family worth is far less than the advance claimed due mainly to their claims on the Estate. These claims were asserted after the action was brought. 24 The ETDL has consented to the equalization payment to Rachel of 4.5 million dollars without prejudice to her ability to claim a further balance. If the advance turns out to be an overpayment, the ETDL has agreed to take steps to recover the funds. There is nothing in the material to suggest there would be any particular or unique challenges in recovering these funds should they exceed Rachel's entitlement. Rachel's Entitlement to Equalization Payments under the Act 25 The relevant provisions of the Act are set out in sections 5, 6 and Sections 5(1) and (2) of the Act permit a surviving spouse to an entitlement of one half of the difference between them of the value of the net family property. There are no statutory qualification criteria. 27 Section 7(1) of the Act permits an application to the court to determine any matter regarding the surviving spouse's entitlement under section Section 6(1) of the Act provides that where the deceased spouse has a will, the surviving spouse shall elect to take under the will or to receive the entitlement under section Section 7(2) of the Act provides that entitlement under sections 5(1), (2) and (3) is "personal as between the spouses". 30 Section 5(7) describes the purpose of section 5, that being to recognize the joint responsibilities of spouses "inherent in the marital relationship". 31 There is no issue that Rachel is on her election and at some point, entitled to an equalization payment, based on the current estimated value of Abe's net family property. The only issue though is whether it is appropriate to permit the advance sought at this time. The Standing of the Defendants 32 As I indicated earlier, Hainey J. did not deal with the issue of standing when this matter was originally in front of him but rather provided the defendants with the opportunity to appear and make submissions on the motion. 33 As I have permitted the defendants to participate fully in the motion and have considered their submissions on the merits, it is not necessary for me to determine whether they would otherwise have standing. The Test for an Advance 34 There appears to be no case that sets out the test for an advance equalization payment where one spouse is deceased. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 4

17 Skrobacky v. Frymer, 2012 ONSC 4277, 2012 CarswellOnt ONSC 4277, 2012 CarswellOnt 9335, [2012] W.D.F.L I accept the plaintiff's submission that it is appropriate to use the same test that applies where both spouses are alive. That test is set out by Karakatsanis J. (as she then was) in Laamanen v. Laamanen (2005), 25 R.F.L. (6th) 441 (Ont. S.C.J.). 36 This is a three part test; (i) that there is a reasonable requirement for the funds; (ii) there is little doubt that the person making the request will receive an equalization payment of at least that amount; and (iii) it is just in the circumstances. 37 On the first point, Rachel has indicated that she needs the advance to fund what is complex and expensive litigation. There is little doubt that Rachel's existing assets could be quickly consumed by costs in this litigation. In my view the need to pursue her claims in this litigation is a reasonable requirement. 38 On the second point, Rachel has a statutory right to an eventual equalization payment. The amount of 4.5 million claimed is considered appropriate by the ETDL and this conclusion has not been challenged by the defendants. If Rachel and the ETDL agree that the amount of advance is appropriate given the size of the Estate, this is an issue as between the parties in accordance with section 7(2) of the Act that entitlement to an equalization payment is "personal as between the spouses". 39 The ETDL in this case has negotiated the quantum of the claim, was not aware of the defendants' claims when the amount was settled, revisited the claim when it became aware of the defendant's claim and did not change its mind. 40 As counsel for the ETDL described it during argument, the ETDL examined all options and concluded that no reason could be found to preclude the payment and the payment certainly seemed consistent with the provisions of section 5 of the Act. 41 Thirdly, it is just in the circumstances. The defendants are neither beneficiaries or creditors at this point. The 2004 will and the cross claims are no more than unproven claims against the estate. Rachel on the other hand is a creditor and beneficiary. 42 The defendants have not suggested that the payment of the advance will prejudice their claims against the estate but rather their concerns deal only with their ability to execute a judgment should one be obtained. In this way the defendants are no different from any other claimant facing uncertainty of execution. This cannot mean that the advance payment is unreasonable. The ETDL has undertaken to pursue any eventual overpayment should there be one. 43 For these reasons, I see no prejudice or harm to the defendants if the advance payment is made. On the other hand, Rachel will be prejudiced in her ability to prosecute this action without the funds. The balance of harm and the reasonableness of the request favours allowing the motion. 44 Rachel is entitled to her request for a partial payment of her equalization payment. Whereas here, the ETDU agrees, even if the defendants have standing, there is no basis for withholding the payment. 45 As to the issue of partial summary judgment, there is no issue which requires a trial as the ETDU agrees with the plaintiffs. It is apparent that there is no issue requiring a trial between Rachel and the ETDU. 46 Partial summary judgement should be granted providing for the advance as sought. Outcome 47 The motion is allowed. Order accordingly. 48 Brief written submissions as to costs may be made within 20 days. Motion granted. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 5

18 Skrobacky v. Frymer, 2012 ONSC 4277, 2012 CarswellOnt ONSC 4277, 2012 CarswellOnt 9335, [2012] W.D.F.L End of Document Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 6

19 Leibel v. Leibel, 2014 ONSC 4516, 2014 CarswellOnt ONSC 4516, 2014 CarswellOnt 11102, 244 A.C.W.S. (3d) ONSC 4516 Ontario Superior Court of Justice [Estates List] Leibel v. Leibel 2014 CarswellOnt 11102, 2014 ONSC 4516, 244 A.C.W.S. (3d) 255 Blake Leibel, in his personal capacity and Blake Leibel, Jordan Lipson and Cody Leibel, in their capacity as Trustees of The Eleanor Leibel Family Trust 2009, Plaintiffs (Responding Parties on the Motion) and Roslyn Lewis, Herb Lewis, Chitel Enterprises Ltd., Ontario Ltd., Alros Products Limited, Lorne Leibel, Cody Leibel, Ontario Ltd., Blake Star Holdings Inc. and Lee Corp. Inc., Respondents (Moving Parties on the Motion) Greer J. Heard: June 19, 2014 Judgment: August 12, 2014 Docket: /11 Counsel: Irving Marks, Barbara Green, for Applicant / Responding Party on the Motion, Blake Leibel Clare E. Burns, Bianca La Neve, for Respondents and Moving Parties on the Motion, Roslyn Lewis, Herb Lewis, Chitel Enterprises Ltd., Ontario Ltd., and Alros Products Limited Gary Luftspring, Andrea Sanche, for Respondents and Moving Parties on the Motion, Lorne Leibel, Cody Leibel, Ontario Ltd., Blake Star Holdings Inc. and Lee Corp. Inc. Subject: Civil Practice and Procedure; Estates and Trusts Related Abridgment Classifications For all relevant Canadian Abridgment Classifications refer to highest level of case via History. Headnote Civil practice and procedure --- Limitation of actions Estates Claim against estate General principles B's mother died on June 4, 2011 leaving primary and secondary wills dated April 9, 2011 B brought application on September 5, 2013 for declaration that wills were not valid Estate trustees and others brought motion for order dismissing B's application Motion granted B's application was barred by ss. 4 and 5 of Limitations Act, 2002 Will speaks from date of death and B's application was out of time Limitation period began running from date of mother's death No steps were ever taken by B to extend period under Act B had knowledge required to commence will challenge on or before July 31, 2011 On or before July 31, 2011 B knew date of mother's death, that mother had had brain cancer, and that mother had changed previous wills B had received copies of wills prior to July 31, 2011 and knew who estate trustees were and what mother's assets were B chose to take many of his benefits under wills for over two years before commencing application To say that every next-of-kin has innate right to bring on will challenge at any time as long as there are assets still undistributed or those that can be traced would put all estate trustees in peril of being sued at any time There was reason why legislature replaced six-year limitation with two-year limitation. Estates and trusts --- Estates Will challenges Testamentary capacity Practice and procedure Miscellaneous Limitation period B's mother died on June 4, 2011 leaving primary and secondary wills dated April 9, 2011 B brought application on September 5, 2013 for declaration that wills were not valid Estate trustees and others brought motion for order dismissing B's application Motion granted B's application was barred by ss. 4 and 5 of Limitations Act, 2002 Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 1

20 Leibel v. Leibel, 2014 ONSC 4516, 2014 CarswellOnt ONSC 4516, 2014 CarswellOnt 11102, 244 A.C.W.S. (3d) 255 Will speaks from date of death and B's application was out of time Limitation period began running from date of mother's death No steps were ever taken by B to extend period under Act B had knowledge required to commence will challenge on or before July 31, 2011 On or before July 31, 2011 B knew date of mother's death, that mother had had brain cancer, and that mother had changed previous wills B had received copies of wills prior to July 31, 2011 and knew who estate trustees were and what mother's assets were B chose to take many of his benefits under wills for over two years before commencing application To say that every next-of-kin has innate right to bring on will challenge at any time as long as there are assets still undistributed or those that can be traced would put all estate trustees in peril of being sued at any time There was reason why legislature replaced six-year limitation with two-year limitation. Table of Authorities Cases considered by Greer J.: Allan v. Hodgins Estate (1974), 1974 CarswellSask 147 (Sask. Q.B.) considered Bermingham v. Bermingham Estate (2007), 2007 CarswellOnt 2033, 32 E.T.R. (3d) 292 (Ont. S.C.J.) followed Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co. (1970), [1970] S.C.R. 932, (sub nom. Canadian Superior Oil Ltd. v. Hambly) 74 W.W.R. 356, 12 D.L.R. (3d) 247, 1970 CarswellAlta 144, 1970 CarswellAlta 101 (S.C.C.) followed Hayes v. Montreal Trust Co. (1977), 3 B.C.L.R. 42, 1977 CarswellBC 69 (B.C. S.C.) considered Lawless v. Anderson (2010), 2010 ONSC 2723, 2010 CarswellOnt 3212 (Ont. S.C.J.) referred to Lawless v. Anderson (2011), 81 C.C.L.T. (3d) 220, 276 O.A.C. 75, 2011 ONCA 102, 2011 CarswellOnt 626 (Ont. C.A.) considered Oestreich v. Brunnhuber (2001), 38 E.T.R. (2d) 82, 2001 CarswellOnt 273 (Ont. S.C.J.) considered Ryan v. Moore (2005), 254 D.L.R. (4th) 1, 334 N.R. 355, [2005] 2 S.C.R. 53, 2005 SCC 38, 2005 CarswellNfld 157, 2005 CarswellNfld 158, 247 Nfld. & P.E.I.R. 286, 735 A.P.R. 286, 25 C.C.L.I. (4th) 1, 32 C.C.L.T. (3d) 1, [2005] R.R.A. 694, 18 E.T.R. (3d) 163 (S.C.C.) followed Statutes considered: Limitations Act, 2002, S.O. 2002, c. 24, Sched. B Generally referred to s. 4 considered s. 5 considered s. 5(1) considered s. 5(1)(a) considered s. 5(2) considered s. 16(1)(a) considered Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 2

21 Leibel v. Leibel, 2014 ONSC 4516, 2014 CarswellOnt ONSC 4516, 2014 CarswellOnt 11102, 244 A.C.W.S. (3d) 255 Rules considered: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 R considered R considered R considered MOTION by estate trustees and others for order dismissing application for declaration that wills were not valid. Greer J.: 1 In these Reasons, I shall refer to all parties by their first names or corporate names for clarity. The Moving Parties on this Motion are Roslyn Lewis ("Roslyn"), Herb Lewis ("Herb"), Chitel Enterprises Ltd. ("Chitel"), Alros Products Limited ("Alros"), Ontario Ltd., Lorne Leibel ("Lorne"), Cody Leibel ("Cody"), Ontario Ltd., Blake Star Holdings Inc.("Blake Star"), and Lee Corp. Inc. ("Lee"). They move for an Order dismissing Blake Leibel's ("Blake") challenge to the validity of the Primary and Secondary Last Wills and Testaments of his late mother, Eleanor Leibel ("Eleanor" or "the deceased"). Both such Wills are dated April 9, These Respondents so move on the basis that such relief sought is statute-barred, pursuant to Sections 4 and 5 of the Limitations Act, 2002, S.O. 2002, c.24, Schedule B, as amended ("the Act"). In the alternative, they ask for an Order dismissing the will challenge on the basis that it is barred by virtue of the equitable doctrines of estoppel by convention and estoppel by representation. Some background facts 3 Eleanor Leibel, the deceased, died on June 4, 2011, leaving her Primary and Secondary Wills dated April 9, 2011 ("the 2011 Wills"). She was survived by her sons, Blake and Cody, and her husband, Lorne, from whom she was separated for many years. They were not divorced at the date of her death. She named her sister, Roslyn and Lorne as her Estate Trustees in the 2011 Wills. 4 Eleanor's assets, at her death, consisted of her house at 44 Burton Road, Toronto and preference shares of Ellieco (redeemable for approximately $7,000,000). It owns 50% of the voting shares of Chitel, which has voting control of Alros. In addition, she owned the shares of Blake Star which owned a condominium in Florida, the shares of Lee, which owned a condominium in California, and personal and household goods and effects. 5 Blake and Cody were both living in California at the date of Eleanor's death. When Eleanor died, the Estate Trustees immediately told both Blake and Cody of her death. Roslyn and her husband, Herb, say that copies of the 2011 Wills were sent by Purolator to Blake in California on July 12, Blake, however, did not commence this Will Challenge until September 5, 2013, by way of Application in Ontario. They further say that both Blake and Cody were aware that Eleanor had lung cancer and knew by the end of February 2011, that she had metastatic brain cancer before her death. 6 One of the Applicants is Jordan Lipson ("Jordan"), a relative of Eleanor's. He and Blake and Cody, are the Trustees of the "The Eleanor Leibel Family Trust 2009". He took no part in the Motion. 7 Margaret Rintoul is the deceased's long-standing lawyer. She drafted the Wills in question. On June 19, 2011, about 2 weeks after Eleanor's death, Blake ed her and expressed his concerns about Roslyn and Lorne being the Estate Trustees. He said to Ms. Rintoul:...in a previous confidential conversations I mentioned hiring a lawyer. Could you please send me a list and do you approve of a place called, "Waterstreet Family Wealth Counsel?" Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 3

22 Leibel v. Leibel, 2014 ONSC 4516, 2014 CarswellOnt ONSC 4516, 2014 CarswellOnt 11102, 244 A.C.W.S. (3d) 255 Ms. Rintoul answered Blake by dated June 28, Among other things, she said she was not familiar with Wealth Counsel but did provide him with the names of 3 lawyers who are estate experts. She also warned him of the very large income tax liability that would require payment to be made out of the Estate. 8 Roslyn says that in late June 2011 she began cleaning out the deceased's residence at 44 Burton Road with Blake's full knowledge. Under the terms of her Primary 2011 Will, Eleanor left her residence at 44 Burton Road outright to Blake. Eleanor also dealt with the real property in California occupied by Blake, his wife and child, directing that if it was not already in his name at her death, it was to be subject to the terms of a trust as set out in her Will. The residue of her Estate was to be divided equally between Cody and Blake. 9 Blake moved quickly to try to sell the Burton residence that had been left to him under Eleanor's Will. It was listed for sale in October In the meantime, Roslyn and Lorne submitted the Primary Will for probate and probate was granted to them on October 19, They say that Blake knew, no later than January 2012, that probate had been granted to them. Blake participated in the sale of the house. It sold for $5,500,000 and the closing took place in late May Other distributions under the Wills were made by Roslyn and Lorne as the Estate Trustees. This was all done prior to any Income Tax Clearance Certificate being applied for. Blake knew that Eleanor's Estate was going to be liable for a large payment of income tax. On legal advice received by him, Blake lent Alros some of the monies received from the sale of the house, to pay down some of those taxes. Blake has included in his own affidavit in this Motion, a copy of a letter to him from Ms. Rintoul, dated May 15, 2012, which references the loan and encloses a Consent and Direction to be signed by Blake in order to accomplish the transfer of the net sale proceeds. From the net proceeds of the sale, Blake received approximately $1,700,000 from the sale of the Burton residence, separate and apart from the $1,425,000 loan which was made to Alros. He received an agreement about the loan that set out the interest payment to be made on the loan. 11 In paragraph 3(f) of the Primary Will, Eleanor directed that the residue of her Estate be divided equally between Blake and Cody. Blake also received the deceased's art collection, with the balance of her personal belongings to be divided between him and Cody. On Blake's instructions, Roslyn and Lorne shipped some art and household goods to Blake in California. 12 In her Secondary Will, Eleanor left Blake her shares of Lee and her shares of Blake Star. The residue of the Estate consisted of Eleanor's Ellieco Preference Shares and her personal possessions, excluding her works of Art, which went to Blake under the Primary Will. 13 Lee owned a condominium in California ("the California Condo"). Blake asked immediately after Eleanor's death to have this Condo sold. He participated in the sale process and received over $400,000 U.S. from its sale in the Fall of Eleanor also had a power of appointment under The Eleanor Leibel Family Trust 2009, which she exercised in her Secondary Will. There is a question, in the Estate administration, as to whether Blake's and Cody's issue have an interest in it or whether they are its sole beneficiaries, given the wording in the Will. Blake's Application 15 On September 5, 2013, Blake brought on this Application for a declaration that the 2011 Wills of Eleanor were not valid. He claims that Eleanor lacked the necessary capacity to give instructions for new Wills or to sign them. He also alleges that Eleanor was unduly influenced to sign them. All parties acknowledge that Eleanor died at the age of 61 of brain cancer. 16 Blake says that Eleanor expressed wishes to him and others that he would be the sole beneficiary of her Estate. He says that Eleanor did not want Roslyn and Lorne to be her Estate Trustees. He says that the residue clause of the Primary Will, leaving half to each of him and Cody, was not what Eleanor wanted. He says that Eleanor and Lorne, his parents, were separated for over 30 years prior to her death. He says that when Cody was about 12 years of age, Cody went to live with Lorne. Blake says he remained living with Eleanor. He says each parent was financially responsible for the son who was living with that parent. He expresses concern that Cody will inherit all Lorne's money on his death. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 4

23 Leibel v. Leibel, 2014 ONSC 4516, 2014 CarswellOnt ONSC 4516, 2014 CarswellOnt 11102, 244 A.C.W.S. (3d) Blake claims that he and Lorne always had an acrimonious relationship. He says that Eleanor was angry about the way Lorne funded his own lifestyle and that of Cody, to Blake's detriment. He says that Eleanor and Roslyn had a bad relationship over certain business matters, for more than 5 years prior to Eleanor's illness. 18 Blake, to support his position, relies on what Eleanor had directed under her earlier Wills. He was appointed sole trustee and beneficiary under Eleanor's Will dated May 21, That Will was revoked by later Wills dated December 12, 2008, where Blake and Cody were appointed as estate trustees, and in which she directed that the residue of her Estate was to be divided equally between them. Blake then claims that Eleanor signed a "holograph Will dated May 4, 2009", by which she revoked her Decembers 12, 2008 Wills and then revived her May 21, 2008 Will. This latter document is a letter of that date to Ms. Rintoul, in Eleanor's handwriting, and signed by her. 19 Blake says that Eleanor told others, including her accountant on October 7, 2010, that she had recently signed a new Will saying that Blake would receive her entire estate. Blake says she wanted Jordan Lipson to be the estate trustee. Blake says Eleanor wanted him to "have a good life" because Lorne "...financially supported Cody's extravagant lifestyle." There is no evidence that such a "new Will" ever existed. 20 Blake relies on the fact that Eleanor died from brain cancer and says she was not capable of making rational decisions when she signed her 2011 Wills. He says she would repeat words spoken to her. Dr. Bezjak, Eleanor's Oncologist, says that a brain scan MRI done in mid-september 2010 did not show any brain metastases, "although cancer cells may have already been present at a microscopic level". By the time a CT and MRI brain scan were done on March 15/17 th, 2011, it showed "numerous brain metastases". He says it is impossible to say exactly how long they were there. 21 Blake denies having received a copy of the 2011 Wills prior to September 9, He claims he spoke to Ms. Rintoul and Mr. Detsky (Eleanor's accountant) about this and sent s on August 11, 2011 and August 25, He denies having received them by courier on or about July 12, 2011, as alleged by Roslyn and Herb. He says there is no direct evidence in this regard. He claims he did not receive a copy of the Certificate of Appointment of Estate Trustees until January 23, He says there is no evidence that he told any of Roslyn, Lorne or Cody that he would not challenge the April 2011 Wills. 22 Blake acknowledges that he did receive the proceeds from the sale of the Burton residence. He agrees he did make the loan to Alros, that he did receive personal effects and art, and that he did receive the proceed from the sale of the Condo in California. He accuses Lorne of having forged Eleanor's signature on certain documents regarding her business interests. He acknowledges Roslyn provided him with copies of Eleanor's previous Wills. 23 Blake says he had no significant income at the date of Eleanor's death, although he had a son and wife to support. He says after Eleanor's death he became "completely reliant on Lorne...to pay his card bills, which Lorne stopped doing in March 2012." He now says he had to accept the proceeds of the sale of the house. He claims Lorne gave the instructions to Ms. Rintoul to make the new Wills. He claims Roslyn assured him that he would not need to challenge the April 2011 Wills because she would take certain steps to require Lorne to resign from all his positions and repay certain monies. He says Roslyn warned him to be closely involved in all the sales of the assets going to him because, "Lorne would try to find a way to steal the proceeds of the sale...". Roslyn denies making these statements. The Position of the Respondents 24 The Respondents say that Blake's challenge of the validity of Eleanor's Wills comes too late and is statute-barred, pursuant to the terms of the Act. In the alternative, they say that Blake is estopped from pursuing this challenge on that basis that it is barred by virtue of the equitable doctrines of estoppel by convention and estoppel by representation. 25 Roslyn and Lorne point to the evidence that they have provided which shows that Blake knew the contents of the 2011 Wills and received copies of them, which were sent to him via Purolator courier on July 12, 2011, through the services of Polytarp on July 12, They have also provided other evidence that shows Blake knew the contents of the Wills and acted on that evidence long before he brought on his Application, as noted in the background facts set out above in these Reasons. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 5

24 Leibel v. Leibel, 2014 ONSC 4516, 2014 CarswellOnt ONSC 4516, 2014 CarswellOnt 11102, 244 A.C.W.S. (3d) Blake did not attend Eleanor's funeral in Toronto, where he would have been in a perfect position to request copies of the Wills. He knew, from Roslyn, that Eleanor had made new Wills in He was her main beneficiary in both Wills, except for the residue clause where it was divided between Blake and Cody. The residue in the Secondary Will included her preference shares in Ellieco. They also point to the fact that Blake had consulted a lawyer in August 2011, and realized on the specific bequests he received under the Wills. Further, Blake received independent legal advice when he lent the money to Alros so that the taxes could be paid in the Estate. He also signed corporate documents regarding some of Eleanor's corporate assets in late July They point to the fact that the April 2011 Wills are only marginally different from Eleanor's 2008 Wills. The new Wills take into account the 2009 Trust that Eleanor settled after her 2008 Wills were done. Blake spoke to Ms. Rintoul about 2 weeks after Eleanor's death about getting legal advice, and she gave him the name of 3 lawyers. He contacted none of them. 28 Lorne says that almost immediately after Eleanor's death, he spoke to Blake by telephone and told him that he and Roslyn were the Estate Trustees. Blake admits in his first Affidavit that in June 2011, he was "terrified" to know that Lorne, his father, was in control of his finances and might re-direct his inheritance, including the proceeds of the sale of the 44 Burton residence. Lorne, in fact, had revoked his spousal rights to 44 Burton, as a matrimonial home, on October 6, 2010, and he and Roslyn say that Blake knew this. Ms. Rintoul also confirmed to Blake that Roslyn and Lorne were the Estate Trustees. 29 Blake admits that he first contacted the law firm of Robins, Appleby in August 2011 to deal with his "angst" about the Estate. That law firm received a copy of the filed probate application in the Estate and the Certificate of Appointment of Estate Trustee with a Will of the 2011 Primary Will in January In that month, Ms. Rintoul sent Blake further copies of the 2011 Wills as well as copies of prior Wills. 30 Roslyn denies that she told Blake to wait to make his Will challenge until after the Burton residence and the Condo in California were sold. 31 The Estate Trustees say that even though Eleanor had sent a handwritten note to Ms. Rintoul in May 4, 2009 rejecting her December 2008 Wills in favour of the May 2008 Will, Ms. Rintoul told her each time these handwritten notes were received, they did not revive an earlier Will. They say that Blake knew that it was Rintoul's position that only the 2011 Wills were valid. 32 Lorne, in his Affidavit, says that Blake moved to California around 2004, and that he had provided him with a monthly allowance over those years that amounted, in total, to approximately $1,285,000. In addition, Lorne says that Eleanor sent an allowance to Blake for over 7 years that totalled approximately $525,000. Lorne says he continued to send Blake $12,000 per month from Eleanor's Estate after her death, which was separate from what Lorne was personally sending Blake. That money came from Ellieco, says Lorne, which he and Roslyn controlled as Estate Trustees. 33 Lorne and Roslyn point to all of the monies Blake received under the terms of the 2011 Wills from the date of Eleanor's death until he made his Application including the Burton residence sale and the California condo sale. All Eleanor's works of art went to him and he and Cody divided her personal effects. Analysis 34 I am satisfied, on the evidence before me, that Blake received copies of the 2011 Wills on July 12, 2011 by Purolator, as sworn to by the Estate Trustees. On July 27, 2011, he signed documents in connection with Ontario Ltd., in his capacity as a Trustee of the The Eleanor Leibel Family Trust 2009, together with Lorne and Roslyn as the Estate Trustees. The Copies of the Purolator documents attached to Roslyn's Affidavit, dated July 12, 2011, are addressed to Blake at his California address and were sent through Polytarp Products, in an Express Envelope, with the drop off Locator shown as Blake's "Front Door". Since Blake denied receiving this package, other copies were sent to him long before he made his Application. It is Lorne's evidence that Cody told him that Blake received a Purolator package from Polytarp's offices via Purolator courier on July 12, (a) The Limitations Act, 2002 Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 6

25 Leibel v. Leibel, 2014 ONSC 4516, 2014 CarswellOnt ONSC 4516, 2014 CarswellOnt 11102, 244 A.C.W.S. (3d) In my view, the provisions of the Act apply with respect to Blake's Application being outside the limit under the Act. Section 4 of that Act states: Unless the Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. and Section 5(1) states: A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). Subparagraph 5(2) of the Act, says that a person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 36 Since a Will speaks from death, namely June 4, 2011, Blake's Application is out of time under the Act. No steps were ever taken by Blake to extend the period under the Act. All Blake's actions and his receipt of the proceeds of various bequests to him, were steps which said to the Estate Trustees that Blake accepted the terms of the 2011 Wills. 37 Blake had legal advice when he lent the monies to Alros, so that the taxes could be paid in the Estate. He knew that there were no large amounts of cash available in the Estate. He knew that one of Eleanor's assets would have had to be sold, in order to raise the money to pay CRA. The sale of the residence by the Estate Trustees for Blake, allowed him to have some money within the first year of Eleanor's death. He agreed, on legal advice, to advance some of that money to Alros, a corporate entity under the Ellieco corporate umbrella, to pay those taxes. 38 Although subsection 16 (1) (a) of the Act says there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought, Blake's will challenge claims consequential relief in that it asks for an Order revoking the grant of the Certificate of Appointment of Estate Trustees with a Will issued to Roslyn and Lorne, asks for an Order removing them as Estate Trustees, asks for an Order that they pass their accounts as Estate Trustees, and for an Order appointing an Estate Trustee During Litigation. In addition, Blake asks for declarations relating to the revocation of Eleanor's December 12, 2008 Wills and for an Order in damages in negligence against Ms. Rintoul and her law firm, and for Orders disclosing Eleanor's medical records and her legal records. Consequential relief is clearly sought by Blake. 39 In applying the "discoverability principle," Blake had the knowledge to commence a will challenge on or before July 31, By that date he knew the following facts: (a) Prior to Eleanor's death Blake knew that Eleanor had recovered from lung cancer but now had brain cancer. (b) He knew Eleanor had changed her previous Wills. (c) He knew the date of Eleanor's death, as Lorne had called him and Cody on that date. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 7

26 Leibel v. Leibel, 2014 ONSC 4516, 2014 CarswellOnt ONSC 4516, 2014 CarswellOnt 11102, 244 A.C.W.S. (3d) 255 (d) He received copies of the Wills prior to July 31, 2011, and he knew who the Estate Trustees were under the Wills. (e) He knew what Eleanor's assets were. He had at least a sense of her income, as she had been sending him monthly cheques before the date of her death and had a sense of the value of her assets. (f) He signed corporate documents for a company now owned by her Estate prior to July 31, (g) He had communicated with Ms. Rintoul about his concerns and she gave him the names of three estates counsel to consider, as independent legal advisors. Blake, therefore, had all of the information needed to begin a will challenge. He chose, instead, to take many of his benefits under the Wills before he commenced his Application. 40 Blake takes the position that there is no limitation period in respect of a will challenge or in the alternative, that the will challenge was brought within any applicable limitation period. He points to the fact that his counsel wrote to Ms. Rintoul on February 7, 2012, that there appears to be good reason to question the validity of the Wills. He asked to meet with her to further discuss the issue but did nothing to book such meeting. Blake's counsel, at that point, could easily have filed an Application but did not do so. 41 Blake says that he never told Lorne and Roslyn that he would not challenge the Will. There is no legal or moral obligation on any beneficiary to say that he or she is not going to challenge the Will before the Estate Trustees can move on the administration of the Estate. They can act immediately on the day after Eleanor's death. 42 Blake says that he was not asked to sign "...any acknowledgement as to the validity of the April 2011 Wills." Again, there is no obligation on the Estate Trustees to obtain such an acknowledgement. They accepted his directions to sell the Burton residence and the California condo. 43 Blake says that the July 31, 2012 Agreement respecting the loan to Alros, although mentioning the Will, does not give the date of the Will. The missing date does not invalidate the Agreement, since the Estate Trustees had already been acting on those Wills since the date of Eleanor's death. 44 Blake points to previous orders made by this Court in connection with the Estate. On November 21, 2013, Mr. Justice Morawetz made an Order Giving Directions in this litigation. The parties were ordered to serve their Motion and Reply materials with respect the limitation period and equitable relief being sought, with the Motion set down to be hear on February 28, Madam Justice Mesbur on November 27, 2013, made a further Order for Directions respecting the production of documents. She said that paras. 5 to 11 of the Order would only come into force and effect if the Respondents' Motion, supported by Affidavit evidence, had been dismissed and all related appeal periods had expired or any appeal had been finally disposed of by the court of competent jurisdiction, and one of 2 trust companies named had filed a Consent to act as the Estate Trustee During Litigation. The relief sought in paragraphs 12 to 24 of the Order also would only come into force and effect upon the filing of an Affidavit to confirm that the Motion had been dismissed and all related appeal periods have expired or any appeal has been finally disposed of by the Court of competent jurisdiction. 46 Given the terms of these Orders, it is Blake's position that the Respondents' Motion is in the nature of a Motion to Strike, which Blake says is equivalent to a Motion for Summary Judgment. He says that the Court should apply Rule and determine if there is a genuine issue requiring a trial. He says there is no limitation period for a claim for a declaration pursuant to section 16(1)(a) of the Act. In the alternative, he says that sections 4 and 5 of the Act do not bar his will challenge, since such a challenge does not necessarily commence on the date of the testator's death. He says there are material facts in dispute and that the Respondents' Motion should be dismissed and the issues should proceed to Trial. 47 Blake relies on statements made in Oestreich v. Brunnhuber, 2001 CarswellOnt 273 (Ont. S.C.J.) at para.17 regarding the then Limitations Act. There the Court said that the Act did not relate to the declaring of a will to be valid or invalid, pointing out Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 8

27 Leibel v. Leibel, 2014 ONSC 4516, 2014 CarswellOnt ONSC 4516, 2014 CarswellOnt 11102, 244 A.C.W.S. (3d) 255 that the beneficiary who delays in attacking the will runs the risk that the assets may have already been distributed. Blake says he does not seek that relief, but fails to say that is only because he already has all those other assets (except for any personal effects that Cody may have received.). 48 Blake says that the relief he seeks is not "consequential" because it all only takes place following a declaration that the 2011 Wills are not valid. I disagree with Blake's position. The consequential relief he claims cannot come either before or after a declaration, as a declaration is a stand-alone Court decision. 49 Blake also seems to say that since only the Primary Will was probated and not the Secondary Will, it is still open to him to challenge that Will, if he is unable to challenge the Primary Will. If that were the case, the Estate Trustees may then have to go to Court to probate the Secondary Will and pay all the probate fees in relation thereto from the residue of the Estate, which in that Will, because, as in the Primary Will, divides the residue in it also equally between Blake and Cody. In my view, both Wills would have to be challenged as they were made at the same time and signed by Eleanor, one after the other. If one was held to be invalid then the other would also be invalid. 50 In my view, the date from which the limitation under the Act began running, was the date of Eleanor's death, June 4, See: Lawless v. Anderson, 2011 CarswellOnt 626 (Ont. C.A.) paras. 22 and 23 respecting the discoverability principle and how it is applied by the Court. As was noted by Mr. Justice D.M. Brown, at first instance in that case, at para. 58, 2010 ONSC 2723 (Ont. S.C.J.), "Limitation periods do not begin to run when one determines that a claim is winnable or viable; they begin to run when one discovers the material facts necessary to plead a reasonable cause of action." Blake had enough material facts by July 21, 2011 to commence an action. 51 It seems to me that Blake, by early September 2013, decided that he had not received enough benefit under Eleanor's Wills and he did not want to share the residue with Cody. He therefore launched his Application. 52 In my view, with the passage of the new Act in 2002, the Legislature placed a two-year limitation on the bringing on of actions, subject to the discoverability principle, in order to prevent exactly what Blake is trying to do, that is, circumvent the limitation by claiming, late in time, that the 2011 Wills were invalid. To say that every next-of-kin has an innate right to bring on a will challenge at any time as long as there are assets still undistributed or those that can be traced, would put all Estate Trustees in peril of being sued at any time. There is a reason why the Legislature replaced the six-year limitation in favour of a two-year limitation. 53 Blake's Application dated September 5, 2013, is more than two years after Eleanor's death and I find it to be statute-barred. (b) The equitable doctrines 54 If I am wrong in finding that Blake's claim is statute-barred, in my view he is also estopped from bringing his will challenge based on the equitable doctrines of estoppel by convention and estoppel by representation. 55 It is the position of the Moving Parties that there is "a significant overlap in the factual ingredients that support each form of these two forms of estoppel. They say that these forms should be treated together. I agree with their position in that regard. 56 The Supreme Court of Canada has set out the criteria as to what establishes estoppel by convention in Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53 (S.C.C.). In paragraphs 53 and 54, the Court sets out how the forms of estoppel have been established in law. It quotes from Spencer Bower P.180 in para. 54 as follows: An estoppel by convention, it is submitted, is an estoppel by representation of fact, a promissory estoppel or a proprietary estoppel, in which the relevant proposition is established, not by representation or promise by one party to another, but by mutual, express or implicit, assent. This form of estoppel is founded, not on a representation made by a representor and believed by a representee, but on an agreed statement of facts, or law, the truth of which has been assumed, by convention of the parties, as a basis of their relationship. When the parties have so acted in their relationship upon the agreed assumption that the given state of facts or law is to be accepted between them as true, that it would be unfair on one for the other to Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 9

28 Leibel v. Leibel, 2014 ONSC 4516, 2014 CarswellOnt ONSC 4516, 2014 CarswellOnt 11102, 244 A.C.W.S. (3d) 255 resile from the agreed assumption, then he will be entitled to relief against the other according to whether the estoppel is as to a matter of fact, or promissory, and/or proprietary. 57 The Court, then, in para. 59, said that the following criteria form the basis of the doctrine of estoppel by convention: (1) The parties' dealings must have been based on a shared assumption of fact or law: estoppel requires manifest representation by statement or conduct creating a mutual assumption. Nevertheless, estoppel can arise out of silence (impliedly). (2) A party must have conducted itself, i.e. acted, in reliance on such shared assumption, its actions resulting in a change of its legal position. (3) It must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption. The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position. 58 With respect to estoppel by representation, the Moving Parties rely on the Supreme Court of Canada's decision in Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co., [1970] S.C.R. 932, [1970] S.C.J. No. 48 (S.C.C.), which set out in para. 19, the factors giving rise to estoppel. They are: (1) A representation or conduct amounting to a representation intended to induce a course of conduct on the part the person to whom the presentation is made; (2) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made; (3) Detriment to such person as a consequence of the act of omission. 59 It is to be noted, however, that estoppel by representation cannot arise from silence unless a legal duty is owed by the representor to the representee to make the disclosure. See: Ryan v. Moore, 2005 SCC 38 (S.C.C.) at para How then do these estoppel principles apply to this case? Blake knew of Eleanor's health issues before she died. He knew she had brain cancer. He knew that the 2011 Wills were prepared by her long-time solicitor and counsel, Ms. Rintoul. He wrote to her to express his worries about the administration of Eleanor's estate, now that Eleanor's separated husband, Lorne, and her sister, Roslyn, were the Estate Trustees. He did not act on his concerns by contacting any one of the three estate experts, whose names Ms. Rintoul had given him. 61 Blake needed money. The evidence shows that both of Lorne and Eleanor were sending him money to continue to live in California in a home that had also been provided by Eleanor's largesse. He knew that Lorne had signed off on Eleanor's Burton home in October 2010, so Lorne had no claim against it. Blake wanted that home sold as quickly as possible so it was listed for sale in It was a specific devise to Blake under the 2011 Primary Will. The Estate Trustees knew that since the Estate was an outright distribution, they had the "Executor's Year" within which to administer the Estate and pay the taxes on the Terminal Income Tax Return to the date of death. They worked a deal with Blake, who had the only immediate available cash in the Estate, to advance monies so they could pay the taxes. He lent that money to Alros to lend to the Estate, on the advice of independent counsel. 62 Blake therefore accepted the terms of the Wills and acted upon those terms, not just once but 4 times, when he sold the house, sold the California condo, took the art he wanted, and divided various household goods and personal effects, and signed the corporate documents. Thus, all the parties involved took steps based on the shared assumption that the Wills were valid. Their mutual conduct shows this. Blake was silent about litigating anything in connection with the Wills until September 2013, although his lawyer had contacted the Estate Trustees in early February The Estate Trustees acted in reliance of this shared assumption, paid the taxes, and did not apply for an Income Tax Clearance Certificate, as there were still unadministered corporate assets to be divided between Blake and Cody under the Wills. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 10

29 Leibel v. Leibel, 2014 ONSC 4516, 2014 CarswellOnt ONSC 4516, 2014 CarswellOnt 11102, 244 A.C.W.S. (3d) Blake should not be allowed now to resile from all of the actions he took during the two-year period after Eleanor's death. As Mr. Justice Brown said, in Lawless, supra, a prospective litigant cannot wait until he or she determines that a claim is winnable or viable. 64 Blake's conduct, in my view, induced the Estate Trustees to continue the administration of the Estate, since they had no legal document to show that Blake was in any way objecting. They organized the payment to CRA to stop any penalties and interest from running on the amount owing. They placed themselves in a precarious position, not knowing that Blake would later want Orders removing them as Estate Trustees, accusing them of improper conduct and accusing Ms. Rintoul of negligence. They took a course of making distributions to Blake out of the Estate before receiving an Income Tax Clearance Certificate, for which they possibly could be personally liable. 65 In Hayes v. Montreal Trust Co., 1977 CarswellBC 69 (B.C. S.C.), the Court said in para.8, that a plaintiff:... accepted what was done and co-operated with the executor for over a year in administering the estate in according with the will to the point where all legacies have been paid, the life interest has terminated and all that remains is distribution to the residual beneficiaries. 66 Blake took no steps until September 2013 to challenge the Will. He co-operated with the Estate Trustees in administering the Estate for over 2 years to the point where all that remains to be done is to divide the residue between him and Cody, which he now opposes. 67 In my view, whether one says that Blake is estopped from taking the position he now has by estoppel by convention or estoppel by representation, he falls within both categories, given the facts of this case. Blake had counsel in February 2012, who stated there was an issue regarding Eleanor's capacity to make the 2011 Wills but never took the legal step to go forward with any challenge. Is this silence? Did Blake receive legal advice that he should or should not move forward? The fact remains that nothing happened and the administration of the Estate continued in legal silence until the Application was finally made. (c) Proof of Will in Solemn Form 68 Blake says he is not estopped from challenging the validity of the 2011 Wills, since the law places a very high onus upon the proponent of the Will. He says he is entitled to proof of the Will in solemn form, notwithstanding that he has already received most of the benefits to which he is entitled. Blake says he has been deprived of the opportunity to adduce evidence or to crossexamine the Respondents on the validity of the 2011 Wills. To deprive him of that opportunity, he says, would be unfair and prejudicial to him. He relied on statements made in the Saskatchewan case, Allan v. Hodgins Estate, 1974 CarswellSask 147 (Sask. Q.B.) at paras. 4, 6 and 7, as cited in Bermingham v. Bermingham Estate, 2007 CarswellOnt 2033 (Ont. S.C.J.) at para In Bermingham, supra, Mr. Justice Perell also cited the passage from Macdonell, Sheard & Hull on Probate Practice (4 th ed.) at 317 about the next-of-kin's entitlement to have the will proved in solemn form, even though they have received a legacy under the Will. There the authors say: Long acquiescence unexplained, and the absence of circumstances of suspicion as to the validity of the will, may amount to a waiver of rights of the next-of-kin. Hoffman v. Norris (1805), 2 Phill. Ecc. 230n, 161 E.R. 1129; Braham v. Burchell (1826), 3 Add.243 at 257, 162 E.R But whether there is a waiver of the right or not will depend upon the circumstances. In the case before him, Perell, J. did not find this reference to be helpful, noting that it does not speak to the modern requirements of rules and He refers to 2 Ontario cases that were decided prior to the new Act but did not find either helpful to him. 70 It is clear that the circumstances of the case must be carefully examined, as there is no case on point. This is not a will challenge by a stranger to the beneficiaries, who suddenly appears as a major beneficiary in the will. It is not a case where one relative, who inherited the deceased' residence, had spent years looking after the deceased, while other next-of-kin ignored the testator while he was alive. This is also not the case where a fiduciary has ingratiated himself or herself with the deceased and Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 11

30 Leibel v. Leibel, 2014 ONSC 4516, 2014 CarswellOnt ONSC 4516, 2014 CarswellOnt 11102, 244 A.C.W.S. (3d) 255 received benefits that should have gone to the next-of-kin. This is a case of one son thinking he was more entitled than his brother to receive all their mother's assets at death. 71 I adopt the wording of Perell, J. in para. 54 of Bermingham, supra, as follows: In reviewing the above cases about the doctrines of laches, acquiescence, of waiver in the context of a late arriving claim to have a Will proved in solemn form, I note a judicial reluctance to employ these doctrines to preclude proof of the Will in solemn form because it is a sound policy to have the validity of a Will scrutinized when there are any suspicious circumstances or there is a reasonable doubt about the testamentary capacity of the testator or testatrix. The immediate case, however, is one in which the Will itself is a sensible and fair one and the applicant for proof of the will in solemn form had the benefit of notice and of legal advice and stood by for eight years and now she offers very little, if anything, to support her challenge to the validity of the Will. 72 Here, Eleanor's Wills are both sensible and fair. She had two sons and treated each equally with respect to the shares of her private company. There are no suspicious circumstances surrounding the making of the 2011 Wills. When people know they are ill and may be facing surgery or treatment, they often decide to "put their affairs in order." That is exactly what Eleanor did. She knew that each of Blake and Cody had houses in California that had been provided to them. She gave Blake more than Cody perhaps because she had raised him, while Lorne raised Cody after the age of 12. She exercised her power of appointment under the terms of her family trust, to benefit each of them. 73 In my view, there is no absolute right of a beneficiary or next-of-kin to have a Will proven in solemn form. Each case must stand or fall on its own circumstances. Conclusion 74 Blake's challenge to Eleanor's 2011 Wills is dismissed, firstly since it was not commenced until after the two-year limitation imposed under the Act. If I am wrong in that regard, it is also dismissed based on the doctrine of estoppel by convention and estoppel by representation. Costs 75 If the parties cannot otherwise agree on Costs, they shall provide me with written submissions no longer than 3 pages in length plus time dockets plus a Bill of Costs and any case law referred to by them. Since the Respondents were successful on their Motion, they shall serve Blake with their documents plus a Bill of Costs within 30 days of this Order by sending it to me at the Court House care of Judges' Administration, 361 University Avenue, Toronto, 1st floor. Blake shall have 7 days thereafter to respond, followed by any Reply that the Respondents think is necessary, 7 days thereafter. Motion granted. End of Document Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. Copyright Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 12

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