Recent OSCJ Case Review: Canale v. Ziccardi

In Canale v. Ziccardi^[1], a recent decision by the Ontario Superior Court of Justice, the Honourable Justice Faieta ordered an Applicant to vacate a family property due to contempt of the Court’s Order.

On April 9, 2018, Giacomo Antonio Canale (“Jim”) commenced an application challenging the validity of his mother, Elena Canale’s (“Ms. Canale”), Last Will and Testament dated November 2, 2005 (the “2005 Will”), claiming a previous will dated June 3, 2003 (the “2003 Will”) is the deceased’s valid will.

Ms. Canale died in July 2019. She was predeceased by her husband and was survived by her four adult children including Jim, the Applicant, the respondents, Rosemary Ziccardi, Rita Conklin and Gianna Canale.^[2]

Under the 2003 Will, the Property was bequeathed to the Applicant.^[3]

The 2005 Will appoints Rosemary Ziccardi as the sole estate trustee and divides the Estate as follows:

Gianna Canale is to receive a specific cash bequest of $10,000.00; and
The remainder of the Estate is to be divided into 20 equal shares:
The applicant is to receive 8 shares;
The respondent Rosemary Ziccardi is to receive 7 shares; and
Rita Conklin is to receive 5 shares.^[4]

Since Ms. Canale’s death the Applicant has occupied the Property, rent-free, to the exclusion of the other beneficiaries.^[5]

On March 7, 2022, the Honourable Justice Kimmel issued an Endorsement that appointed Rosemary as the ETDL and ordered Jim to pay $25,958.36 to cover outstanding property expenses and required him to make monthly payments of $950.

On August 17, 2023, and on consent of the parties, the Respondents were found by the Honourable Justice Gilmore to be in contempt of this Court’s Order dated March 7, 2022, and was provided an opportunity to purge his contempt.

The Applicant remains in arrears in the amount of $12,138.38.

As a result, the Court ordered the Applicant to vacate the family property by November 30, 2024, and to removing only his own personal belongings.

In addition, the Court ordered that any unpaid amounts be deducted from his share of the Estate and dismissed the sale of the property aspect of the respondents’ motion.

—

[1] Canale v. Ziccardi, 2024 ONSC 5393

[2] Ibid at para 2

[3] Ibid at para 4

[4] Ibid at para 5

[5] Ibid at para 8

Author

Fabiana Araujo M. S. Kennedy

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