Family estate disputes often raise issues of loans, use of estate property, and personal responsibility for costs. In Macpherson v. Wyszatko Estate[1], 2025 ONCA 576, the Ontario Court of Appeal addressed a sibling dispute over repayment of settlement funds, the use of estate property for personal business, and whether an application judge erred in awarding significant costs.
Background
Nadia (“Nadia”) and Albert Wyszatko (“Albert”) purchased property in East Gwillimbury in 1963, where they built and operated two marinas: Albert’s Marina and the Sail’er Inn.[2]
Nadia and Albert had five children: Teddy, Julia, Richard, Irene, and Edmund. When Albert died in 1990, his will left half of his interest in the business to Teddy.[3] Nadia continued to live on the property with Teddy until a falling out in 2010 led Teddy to sue his mother and siblings (except Julia).[4]
In 2011, Nadia made a will naming Julia, Richard, and Irene as her Estate Trustees and excluding Teddy from the marina business. Instead, she left the marinas to Richard, with the residue of her Estate divided among her other children. [5] Nadia died in 2012, and Richard continued running the marina business on Estate-owned property.
Teddy’s litigation against his family was settled in 2014 for $485,000, in exchange for a full release of his claims to the businesses and land.[6] To fund the settlement, Richard asked his sisters Julia and Irene to each advance him $100,000.[7] Julia later alleged she was never repaid.
When disagreements arose about repayment of the loan, management of the marinas, and the administration of Nadia’s Estate, Julia brought an application for directions addressing twelve issues.[8] After an 11-day hearing, the application judge largely accepted Julia’s position, ordered repayment of the $100,000 loan (together with interest and legal fees), directed Richard to pay occupation rent for his ongoing use of estate property, and awarded Julia costs of $104,722.39 payable by Richard and Irene.
Richard appealed, arguing that the trial judge made factual errors, misapplied the evidence, and exercised her discretion improperly.[9]
Key Issues on Appeal
The Court of Appeal addressed three main issues:
- The $100,000 Loan from Julia – whether Richard was personally responsible for repayment, or whether the Estate alone was liable.
- Occupation Rent – whether Richard was required to pay rent for running the marina businesses from Estate-owned property without Estate permission.
- Costs – whether the trial judge erred in ordering over $100,000 in costs against Richard and Irene.
Analysis
The Loan and Repayment
Richard did not dispute that Julia loaned him $100,000 for a settlement, but he denied personal liability for the repayment, including legal fees and interest. The application judge correctly found Julia was entitled to repayment for the loan and associated costs, noting she had no obligation to fund the settlement and emails from the time corroborated this.[10]
However, the Court of Appeal clarified that while Julia is entitled to repayment, the liability rests with the estate, not Richard personally.[11] The judgment below had mistakenly included Richard as jointly liable. The Court varied the order to remove Richard’s personal liability.
Notably, the Court of Appeal observed that Richard’s counsel must have approved the draft order which included judgment against Richard personally. This made his current argument “perplexing.”[12] A gentle reminder to all counsel: review those draft orders carefully!
Occupation Rent
The Court upheld the finding that Richard must pay occupation rent. After Nadia’s death, Richard continued to operate the marinas for his own benefit without authority from the Estate. Despite Richard’s argument that the application judge erred by ordering rent without specific evidence on the amount, the Court found the trial judge was entitled to conclude he treated Estate property as his own and derived personal benefit.[13]
Although the application judge fixed rent at $2,000 per month without expert valuation, she provided a mechanism for an appraisal if the parties disputed quantum.[14] Richard had paid no rent and resisted the order, but the Court emphasized that his obligation to pay remained valid, and the parties are directed to follow the appraisal procedure set out by the application judge.[15]
Costs
The Court of Appeal also rejected Richard’s challenge to the $104,722.39 costs award made against him and Irene. Citing 100 Bloor Street West Corporation v. Barry’s Bootcamp Canada Inc.[16], 2025 ONCA 447, the Court affirmed costs are a discretionary matter, and appellate courts intervene only where the trial judge has made an error or the award is plainly unreasonable.[17]
Julia had been successful and was presumptively entitled to her costs. The application judge considered Richard’s offer to settle but gave cogent reasons for finding that it did not comply with Rule 49.10(2) of the Rules of Civil Procedure.[18] The Court emphasized that it was not its role to reassess the amount of costs, and that the application judge’s decision was rooted in the evidence and entitled to deference.[19]
Disposition
The appeal was dismissed, save for varying the order to reflect that the Estate, not Richard personally, is responsible for repayment of the loan, legal fees, and interest. Richard remains liable to pay occupation rent, and the costs award stands.
Final Thoughts
Macpherson v. Wyszatko Estate reinforces three key points for estate litigants:
- Loans advanced to facilitate settlements will be enforced, but clarity is required as to whether repayment rests with an individual or the Estate.
- Beneficiaries who unilaterally use Estate property for personal business can be required to pay occupation rent.
- Costs consequences are serious in estate litigation, and unsuccessful parties risk significant personal liability.
The decision is another reminder that estate disputes involving family businesses often extend well beyond inheritance rights, with courts prepared to enforce financial accountability and deter misuse of Estate property.
—
[1] Macpherson v. Wyszatko Estate, 2025 ONCA 576 [Macpherson].
[2] Ibid at para 1.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid at para 2.
[7] Ibid at para 3.
[8] Ibid.
[9] Ibid at para 4.
[10] Ibid at para 8.
[11] Ibid at para 9.
[12] Ibid.
[13] Ibid at para 10-12.
[14] Ibid at paras 11-12.
[15] Ibid at para 13.
[16] 100 Bloor Street West Corporation v. Barry’s Bootcamp Canada Inc,. 2025 ONCA 447 at para 70.
[17] Macpherson, supra note 1 at para 14.
[18] Ibid.
[19] Ibid at para 15.
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Written by: Emily Caza
Posted on: September 16, 2025
Categories: Commentary
Family estate disputes often raise issues of loans, use of estate property, and personal responsibility for costs. In Macpherson v. Wyszatko Estate[1], 2025 ONCA 576, the Ontario Court of Appeal addressed a sibling dispute over repayment of settlement funds, the use of estate property for personal business, and whether an application judge erred in awarding significant costs.
Background
Nadia (“Nadia”) and Albert Wyszatko (“Albert”) purchased property in East Gwillimbury in 1963, where they built and operated two marinas: Albert’s Marina and the Sail’er Inn.[2]
Nadia and Albert had five children: Teddy, Julia, Richard, Irene, and Edmund. When Albert died in 1990, his will left half of his interest in the business to Teddy.[3] Nadia continued to live on the property with Teddy until a falling out in 2010 led Teddy to sue his mother and siblings (except Julia).[4]
In 2011, Nadia made a will naming Julia, Richard, and Irene as her Estate Trustees and excluding Teddy from the marina business. Instead, she left the marinas to Richard, with the residue of her Estate divided among her other children. [5] Nadia died in 2012, and Richard continued running the marina business on Estate-owned property.
Teddy’s litigation against his family was settled in 2014 for $485,000, in exchange for a full release of his claims to the businesses and land.[6] To fund the settlement, Richard asked his sisters Julia and Irene to each advance him $100,000.[7] Julia later alleged she was never repaid.
When disagreements arose about repayment of the loan, management of the marinas, and the administration of Nadia’s Estate, Julia brought an application for directions addressing twelve issues.[8] After an 11-day hearing, the application judge largely accepted Julia’s position, ordered repayment of the $100,000 loan (together with interest and legal fees), directed Richard to pay occupation rent for his ongoing use of estate property, and awarded Julia costs of $104,722.39 payable by Richard and Irene.
Richard appealed, arguing that the trial judge made factual errors, misapplied the evidence, and exercised her discretion improperly.[9]
Key Issues on Appeal
The Court of Appeal addressed three main issues:
Analysis
The Loan and Repayment
Richard did not dispute that Julia loaned him $100,000 for a settlement, but he denied personal liability for the repayment, including legal fees and interest. The application judge correctly found Julia was entitled to repayment for the loan and associated costs, noting she had no obligation to fund the settlement and emails from the time corroborated this.[10]
However, the Court of Appeal clarified that while Julia is entitled to repayment, the liability rests with the estate, not Richard personally.[11] The judgment below had mistakenly included Richard as jointly liable. The Court varied the order to remove Richard’s personal liability.
Notably, the Court of Appeal observed that Richard’s counsel must have approved the draft order which included judgment against Richard personally. This made his current argument “perplexing.”[12] A gentle reminder to all counsel: review those draft orders carefully!
Occupation Rent
The Court upheld the finding that Richard must pay occupation rent. After Nadia’s death, Richard continued to operate the marinas for his own benefit without authority from the Estate. Despite Richard’s argument that the application judge erred by ordering rent without specific evidence on the amount, the Court found the trial judge was entitled to conclude he treated Estate property as his own and derived personal benefit.[13]
Although the application judge fixed rent at $2,000 per month without expert valuation, she provided a mechanism for an appraisal if the parties disputed quantum.[14] Richard had paid no rent and resisted the order, but the Court emphasized that his obligation to pay remained valid, and the parties are directed to follow the appraisal procedure set out by the application judge.[15]
Costs
The Court of Appeal also rejected Richard’s challenge to the $104,722.39 costs award made against him and Irene. Citing 100 Bloor Street West Corporation v. Barry’s Bootcamp Canada Inc.[16], 2025 ONCA 447, the Court affirmed costs are a discretionary matter, and appellate courts intervene only where the trial judge has made an error or the award is plainly unreasonable.[17]
Julia had been successful and was presumptively entitled to her costs. The application judge considered Richard’s offer to settle but gave cogent reasons for finding that it did not comply with Rule 49.10(2) of the Rules of Civil Procedure.[18] The Court emphasized that it was not its role to reassess the amount of costs, and that the application judge’s decision was rooted in the evidence and entitled to deference.[19]
Disposition
The appeal was dismissed, save for varying the order to reflect that the Estate, not Richard personally, is responsible for repayment of the loan, legal fees, and interest. Richard remains liable to pay occupation rent, and the costs award stands.
Final Thoughts
Macpherson v. Wyszatko Estate reinforces three key points for estate litigants:
The decision is another reminder that estate disputes involving family businesses often extend well beyond inheritance rights, with courts prepared to enforce financial accountability and deter misuse of Estate property.
—
[1] Macpherson v. Wyszatko Estate, 2025 ONCA 576 [Macpherson].
[2] Ibid at para 1.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid at para 2.
[7] Ibid at para 3.
[8] Ibid.
[9] Ibid at para 4.
[10] Ibid at para 8.
[11] Ibid at para 9.
[12] Ibid.
[13] Ibid at para 10-12.
[14] Ibid at paras 11-12.
[15] Ibid at para 13.
[16] 100 Bloor Street West Corporation v. Barry’s Bootcamp Canada Inc,. 2025 ONCA 447 at para 70.
[17] Macpherson, supra note 1 at para 14.
[18] Ibid.
[19] Ibid at para 15.
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