



COURT OF APPEAL FOR ONTARIO

CITATION:
Ilgner
    v. Box, 2021 ONCA 747

DATE: 20211020

DOCKET: M52850 (C69621)

Brown J.A. (Motion
    Judge)

In the Matter of the Estate of Juliet Pitterson-Box, deceased

BETWEEN

Audrey Ilgner, personally
    and in her capacity as Estate Trustee of the Estate of Juliet Pitterson-Box

Applicant/Moving Party

(Responding Party/Respondent)

and

Blaze
    Box
, Klay Box, Storm Box, Alburn Vidal (referred to as Alluin Didal in
    the Last Will and Testament of Juliet Pitterson-Box), Claudia Roseanne Soso and
    Nora Mazit

Respondents

(
Moving Party/
    Appellant
)

Blaze Box, acting in person

Jonathon Kappy and Stuart Clark, for the responding
    party

Heard: October 12, 2021 by video conference

ENDORSEMENT

[1]

The moving party appellant, Mr. Blaze Box, has
    filed a notice of appeal from the order made by Conway J. dated June 3, 2021
    (the Third Conway Order). Mr. Box has not yet perfected his appeal.

[2]

Mr. Box moves for an order: (i) granting him an
    extension of time until December 31, 2021 to perfect his appeal; (ii) requiring
    the estate trustee, his grandmother Audrey Ilgner, to release to him all draft
    copies of the will of his late mother, Juliet Pitterson-Box, her medical
    records and any insurance documents (the Document Requests); (iii) putting in
    place a process that would enable him to pay out his two siblings share of the
    estate from a mortgage he wishes to place on the main estate asset, a
    residential property at 352 Dupont Street, Toronto (the Property), which he
    presently occupies; and (iv) staying the Third Conway Order that ordered him to
    vacate the Property and granted leave to issue a writ of possession to the
    estate trustee in respect of the Property.

[3]

Ms. Pitterson-Box died on June 18, 2019. At the
    time of her death, she had three adult children: the appellant, Klay Box, and
    Storm Box.

[4]

The deceaseds Will dated February 12, 2019 (the
    Will) appointed her mother, Ms. Ilgner, as estate trustee. The Will provides
    for several bequests totaling $150,000, with the residue to be divided equally
    amongst the deceaseds three children.

[5]

In January 2020, Blaze and Klay Box filed a
    notice of objection in respect of the Will in which they asserted that their
    mother wanted to maintain the Property as the family home with the three
    children as beneficiaries. The siblings contended that the estate trustee was
    not acting in the best interests of the beneficiaries and asserted that the
    failure of the Will to include a bequest to one of their mothers friends
    indicated that her wishes seemed to be ignored/tampered with and/or changed
    through suspicions + questionable circumstances. The objectors did not assert
    the existence of an alternate will.

[6]

The Property is the main estate asset.

[7]

Mr. Box has resided at the Property at least
    since his mothers death. He is, in effect, treating the Property as his own,
    renting out some of the rooms and making some renovations.

[8]

By notice of application issued October 13,
    2020, the estate trustee sought various relief, including orders striking out
    the notice of objection, restraining the three children from effecting any
    capital improvements or renovations to the Property, requiring the children to
    account for any rental income they had received for the Property, and directing
    the children to provide vacant possession of the Property. Blaze and Klay Box
    filed a notice of appearance in the application.

[9]

On November 9, 2020, Conway J. made her first
    order (the First Conway Order). It directed Blaze and Klay to desist from
    further renovations and account for their dealing with the Property. Mr. Blaze
    Box did not participate in that hearing.

[10]

Mr. Box contends that he did not participate in
    many of the hearings because he was not given notice of them and was not
    properly served with court materials.  The record contradicts his assertion.
    There is no doubt that Mr. Box uses the email address to which the various
    affidavits of service state the court materials were sent. Emails from him
    dating back to April 1, 2020 attest to that fact. Mr. Box contends that during
    the pandemic he did not check his email with great frequency. Whether or not
    that is true, it does not detract from the propriety of service of various
    court materials to his email address, as well, on occasion, to the Property,
    where he lives.

[11]

No appeal was taken from the First Conway Order.

[12]

The record shows that Mr. Box ignored the First
    Conway Order. That led to the second order (the Second Conway Order) dated
    December 16, 2020, which struck out the notice of objection filed by Blaze and
    Klay without leave to amend, directed the issuance of a certificate of
    appointment of estate trustee to Ms. Ilgner, and directed Blaze and Klay to
    comply with the First Conway Order.

[13]

No appeal was taken from the Second Conway
    Order.

[14]

In late May 2021, the estate trustee moved for
    an order requiring Mr. Box to vacate the Property and seeking leave to issue a
    writ of possession. The Third Conway Order, dated June 3, 2021, ordered Mr. Box
    to vacate the Property by July 3, 2021, failing which a writ of possession
    could issue.

[15]

Mr. Box remains in the Property.

[16]

On July 7, 2021, Mr. Box filed a notice of
    appeal from the Third Conway Order.

[17]

To date, Mr. Box has not filed any materials to
    perfect his appeal, notwithstanding the courts issuance on August 16, 2021 of
    a notice of intention to dismiss for delay if the appeal was not perfected by
    September 13, 2021.

[18]

Instead, Mr. Box seeks an extension, until the
    end of this year, to perfect his appeal.

[19]

I start my consideration of his request for an
    extension with the observation that while the appellants delay in perfecting
    his appeal is not unduly long, he offers no reasonable explanation about why
    there was any delay, given that the proceeding before Conway J. in June 2021
    was a motion based on a written record. The subsequent variation of the Third
    Conway Order in September 2021 to include the Propertys legal description and
    PIN number would not prevent Mr. Box from perfecting his appeal. The record
    strongly suggests that Mr. Box believes he can live on in the estates Property
    for as long as he wishes and disregard the terms of his mothers Will and the
    efforts of his grandmother to administer the estate. His motion for an
    extension of time to perfect until the end of this year strikes me as a
    continuation of that pattern of conduct.

[20]

As to the merits of his appeal of the Third
    Conway Order, I see no meritorious grounds of appeal:
Chuang v. Royal
    College of Dental Surgeons of Ontario
(2005), 77 O.R. (3d) 280 (Div. Ct.),
    at para. 3. No appeal was taken from the Second Conway Order that struck out
    the notice of objection and directed the issuance of a certificate of
    appointment of estate trustee. Given the lack of an appeal, the Will must be
    taken as proved. Therefore, the Document Requests sought by Mr. Box are no
    longer relevant.

[21]

The Will does not grant Mr. Box a proprietary
    interest in the Property; his interest is in the residue of the estate
    following the realization of the estates assets. Accordingly, there is no
    legal basis for his position that he should be allowed to somehow take title to
    the Property, mortgage it, and pay out his siblings shares of the residue. It
    also follows that there is no legal basis for Mr. Box to remain in the
    Property, which is the estates asset.

[22]

Since the Property is the main estate asset, any
    continuing delay would prejudice the estate and the other beneficiaries of the
    estate.

[23]

In sum, the justice of the case works against
    granting the relief requested by Mr. Box. Instead, the justice of the case
    requires the administration of the estate to proceed without further efforts by
    Mr. Box to delay the estate trustee.

[24]

For those reasons, the motion is dismissed.

[25]

The respondent estate trustee is entitled to her partial indemnity
    costs of this motion fixed in the amount of $10,000.00, inclusive of
    disbursements and applicable taxes, payable out of the residuary interest of Mr.
    Blaze Box in the Estate of Juliet Pitterson-Box.

David Brown J.A.


