



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Ruffolo
                v. Juba-Ruffolo,









2005 BCCA
            26




Date: 20050114




Docket: CA032352

Between:

Mario Ruffolo

Respondent

(
Plaintiff
)

And

Ruby-Ann
      Juba-Ruffolo

Appellant

(
Defendant
)











Before:



The Honourable
            Madam Justice Rowles





The Honourable
            Madam Justice Newbury





The Honourable
            Mr. Justice Hall









R. Juba-Ruffolo



Appearing in person





R.B. Isbister



Counsel for the Respondent





Place and
            Date of Hearing:



Vancouver, British Columbia





10 January 2005





Place and
            Date of Judgment:



Vancouver, British Columbia





14 January 2005









Written
              Reasons of the Court





Reasons for Judgment of the Court:

[1]

This
      is an appeal from an order dated 15 October 2004, appointing Mr. Mario
      Ruffolo, the respondent on the appeal, as the administrator of the estate
      of his son, John Frank Salvatore Ruffolo.  The order appointing the respondent
      was stayed by Lowry J.A. on 28 October 2004, pending determination of the
      appeal with a direction that the appeal be expedited.

[2]

At
      the conclusion of the hearing of the appeal, we allowed the appeal with
      reasons to follow.  These are the reasons.

[3]

John
      Ruffolo died intestate on 19 October 2003.  The deceased's widow, Ruby-Ann
      Juba-Ruffolo, is the appellant.  The deceased and his wife had one child,
      a daughter, Jovanna, who is now 14 years of age.

[4]

Under
      the governing legislation, the beneficiaries are the applicant and her
      daughter.  The respondent has no interest in the estate.

[5]

The
      estate consists of the family home and four residential rental properties
      that the appellant and her husband had managed for some 12 years and which
      the appellant was continuing to manage when the respondent's application
      came before the court.

[6]

The
      deceased's death was classified by the police as a homicide on or about
      12 January 2004.  On about 6 March 2004, the appellant was charged with
      the first degree murder of her husband.  On the same day, Jovanna was taken
      into the care of the Ministry of Children and Family Development under
      an interim order, but the appellant continues to have guardianship of the
      child.

[7]

A
      preliminary hearing in relation to the charge against the appellant is
      scheduled for March 2005, which is two months away.  Assuming the appellant
      is committed to trial, it may take some months or even years for the charge
      against the appellant to be finally determined.  The appellant is presently
      on bail on stringent conditions.

[8]

The
      appellant had applied for a Grant of Letters of Administration in January
      2004 but as matters transpired that application has been withdrawn.  The
      appellant subsequently proposed that her sister be appointed but that has
      not been pursued.

[9]

The
      respondent applied for a Grant of Letters of Administration of his son's
      estate on or about 9 March 2004, a few days after the appellant was charged.

[10]

The
      application was opposed by the appellant primarily on the ground that,
      because of Mr. Ruffolo's animosity towards her, he would not be able to
      act in a fair and unbiased manner towards the estate beneficiaries.

[11]

In
      his very brief reasons for judgment appointing the respondent, the chambers
      judge said:

I accept the law as laid down in
Jacobson v. Huber
and
      I am going to appoint the father as the administrator of the estate, on
      posting a bond of $350,000.

[12]

In
Jacobson
          v. Huber
(1982), 11 E.T.R. 179, [1982] B.C.J. No. 52 (B.C.S.C.),
          the deceased's brother, who was his only sibling, applied for Letters
          of Administration of his estate.  The application was opposed by the
          respondent, who had been convicted of manslaughter in respect of his
          wife's death.  The respondent's main objection to the appointment of
          the applicant was that the applicant's purpose in seeking Letters of
          Administration was to ensure that the estate would be realized upon
          for the benefit of his parents and that the respondent be excluded
          from participation on the principle that no person can obtain or enforce
          any benefits resulting to him from his own crime:
In the Estate
          of Cunigunda (otherwise Cora) Crippen, Deceased
, [1911] P.
          108 (
sub nom.

Re Crippen
);
Hall v. Knight
          and Baxter
, [1914] P. 1 (C.A.) (
sub nom.
Re Hall
).  Whether
          those authorities applied to exclude participation by the respondent
          in the estate was not before the court on the application.  Instead,
          the question was whether the application by the brother ought to be
          refused because the brother believed the rule should be applied to
          exclude the respondent from participation, and because the brother
          felt animosity towards the respondent.  In that case, the respondent
          had somehow succeeded in having his wife transfer her interest into
          his name and, at the time of her death, had taken steps to transfer
          the property to his mother.  In granting the application, Esson J.
          (as he then was) said, at 182-183:

I accept, as a general proposition, that it is not desirable to appoint
      as personal representative a person who has strong feelings of animosity
      towards a potential beneficiary.  Those are matters to be taken into consideration
      and, having done so, I consider it expedient that the applicant be appointed.  Some
      of the considerations which lead me to that conclusion are:

1.         The estate
      is a small one  - any fees charged by a "neutral administrator" would
      make serious inroads upon it.

2.         The questions
      likely to arise in the course of administration are not, in the main, those
      which require an indifferent attitude. The major question is whether the
      estate has an interest in the real property  that claim will best be propounded
      by someone who considers himself adverse in interest to the respondent.

3.         There
      is nothing before me which would justify any real concern as to whether
      the applicant will be capable of the necessary degree of impartiality in
      dealing with the other aspects of the estate.

* * *

In the peculiar circumstances of this case, I find it expedient to appoint
      the applicant.  Indeed, it is, in my view, more than expedient.  It is
      desirable that the administrator be a person who has a direct interest
      in prosecuting the position of the estate.  Of the small group who have
      survived Patricia Faith Huber, he is the most appropriate person to be
      the personal representative of her estate.

[13]

With
      deference, the circumstances in this case are not analogous to those found
      in
Jacobson v. Huber
,
supra
, and, for that reason,
      it ought not to have been regarded as a governing authority in determining
      the outcome of the respondent's application in this case.  In
Jacobson
      v. Huber
,
supra
, the applicant had been convicted of manslaughter
      in the death of his wife.  Whether the principle in
Re Crippen
,
      supra,
would be applicable was a matter of legal argument.  A potential
      asset of the estate was the property which had somehow been transferred
      from the deceased to the respondent prior to her death and, in the circumstances,
      it was desirable and expedient for the personal representative to have
      an interest in prosecuting the position of the estate.  In
Jacobson
      v. Huber
,
supra
, it was possible to determine with certainty
      how the applicant's views about the respondent's potential participation
      in the estate and his animosity towards the respondent could have an impact
      on the proper administration of the estate, but that is not the case here.

[14]

In
      this case, the appellant has been charged with but not convicted of murder,
      and it may be many months or years before the criminal case is determined.  Whether
      the principle in
Re Crippen
,
supra
, may have application
      was unknown at the time the application was made and will be unknown for
      some time to come.  All of the property was registered in the name of the
      deceased but some of it may have been transferred as a result of the appellant
      learning in 1994 that she had Hodgkins Lymphoma disease.  We note as well
      that there appears to be some documentary evidence which might provide
      a foundation for claims to be brought against the properties by the appellant.

[15]

In
      this case, there is a need for detachment and even-handedness to ensure
      that the estate is administered for the benefit of each of the beneficiaries
      under the statute, that is, the appellant widow and the child.  With the
      respondent's acknowledged animosity toward the appellant, it is not possible
      to conclude that the detachment required to properly administer the estate
      would be present.

[16]

We
      note as well that the estate is not a large one and it could easily be
      diminished substantially by legal expenses incurred over disputes involving,
      among other things, the management of revenue properties.

[17]

The
      appeal is allowed, the order made in the court below is set aside, and
      the matter is remitted to the Supreme Court of British Columbia.  Written
      submissions on the costs of the appeal are to be submitted in accordance
      with the directions given at the conclusion of the hearing.

The Honourable
      Madam Justice Rowles

The Honourable
      Madam Justice Newbury

The Honourable Mr. Justice Hall


