2013 ONSC 5505, 2013 ONSC 5505

CITATION : Whitney v. Whitney, 2013 ONSC 5505 COURT FILE NO.: 12-37821 DATE: 2013-08-28 ONTARIO SUPERIOR COURT OF JUSTICE THE ESTATE OF Frederick Stanley White, deceased )) ) B E T W E E N: ) ) Joanne Jennifer Whitney ) ) ) Derek Fazakas, for the Applicant ) Applicant ) ) - and - ) ) ) James John Whitney and William J. I. Malcolm ) ) ) Bradley Wiseman, for the Respondents ) Respondents ) ) ) ) HEARD: July 2, 2013 The Honourable Madam Justice J. A. Milanetti REASONS FOR JUDGMENT [ 1 ] Joanne Whitney brings this application for directions (pursuant to

Section 28 of the Estates Act and Rule 75 of the Rules of Civil Procedure as it relates to the handling of the estate of the late Stanley Whitney (who died April 29, 2012). The deceased was the uncle of the applicant Joanne Whitney and the respondent James Whitney. They are siblings of one another. [ 2 ] James Whitney brings a motion asking that Joanne Whitney pay her share of the proceeds of the sale of a home at 108 Price Avenue. The Price Avenue home forms part of the Estate of the deceased.

In 1988 that home had been transferred to the late Stanley Whitney, his sister (the late Dorothea), and their niece Joanne Whitney as joint tenants by their father/Joanne’s grandfather. Dorothea died in 2003.

[ 3 ] It appears that in 2010 the style of ownership of the property changed to make Stanley and Joanne tenants in common rather than joint tenants. I further understand that Stanley had a new will prepared in or around that time. [ 4 ] After Stanley died, the home was sold; Ms. Whitney ultimately received 50 percent of the proceeds.

She subsequently launched a challenge to his 2010 will. [ 5 ] While the lawyer who prepared this 2010 will was initially a party to this application, I understand that he was removed by court order on February 21 st , 2013 subject to potential examination of him as a non-party. [ 6 ] Mr. Whitney brings a motion seeking a direction that Ms. Whitney repay the funds that she received from the sale of the home into court, or to be held by her lawyer pending resolution of the will challenge and the trust argument intended to be advanced by Mr. Whitney. [ 7 ] It is Mr. Whitney’s position that Ms.

Whitney was named initially as a joint tenant in a trust capacity only. It is clear from the materials before me (in both the application and motion) that the late Mr. Stanley Whitney suffered from mental health issues throughout his lifetime. It is this situation that underscores both the will challenge and the trust argument. [ 8 ] After some encouragement from me, having realized that there were many issues not substantially in dispute, the parties ultimately agreed to an “order giving directions”. I signed that order on July 4 th , 2013.

It is attached hereto as Appendix A. [ 9 ] The remaining issue for my decision therefore deals with the motion of Mr. Whitney that Ms. Whitney surrender the 50 percent share of the property sale proceedings pending resolution of this estate litigation. [ 10 ] Ms. Whitney’s counsel argues that this is inappropriate relief at this stage as this is a substantive issue; not properly the domain of a directions issue before pleadings have even been exchanged. [ 11 ] They suggest that any order requiring Ms.

Whitney to effectively give up all rights to use of funds provided her as an owner on title to the property would be unfair and highly prejudicial. It would, they say, amount to a final disposition of the trust issue alleged by the respondent; a dispute that has not been tested in any way and does not conform with the Statute of Frauds. Ms. Whitney was on title to the property, took one half of the proceeds of the sale, the other half ($190,652.90) being paid to the credit of the estate. [ 12 ] Mr. Whitney argues that it was improper for Ms.

Whitney to accept a one half share of the sale proceeds and then challenge the will. His counsel maintains that the trust agreement stems from a letter written to Mr. Malcolm (the lawyer who prepared the will in issue) by Ms. Whitney herself on June 11 th , 2010. [ 13 ] All of the issues need to be explored through the litigation process. I do not accept that I have the jurisdiction to order this “payment of sale proceeds” absent any evidence that has been tested through the court process. It would be akin to granting

summary judgment without the evidentiary foundation required to satisfy the Combined Air test, or an injunction without satisfaction of the RJR MacDonald test. [ 14 ] The motion sought by the plaintiff is not in the nature of direction for the process of the litigation but rather amounts to a request for substantive relief at a very preliminary stage with insufficient evidentiary foundation. A review of the consent order attached as Appendix A underscores the very early stage of this litigation. No pleadings have even been exchanged. [ 15 ] The motion shall be dismissed. Costs shall be payable to the applicant.

If they cannot be agreed upon between the parties, each party shall file a two page

summary of their position within 30 days of this decision. ___________________________ MILANETTI J. Released: August 28, 2013 CITATION : Whitney v. Whitney, 2013 ONSC 5505 COURT FILE NO.: 12-37821 DATE: 2013-08-28

ONTARIO SUPERIOR COURT OF JUSTICE IN THE ESTATE OF Frederick Stanley Whitney B E T W E E N: Joanne Jennifer Whitney Applicant - and – James John Whitney and William J. I. Malcolm Respondents REASONS FOR JUDGMENT Milanetti J. JAM:mg Released: August 28, 2013