Executive Summary: Key Legal and Evidentiary Issues

• Dispute over whether assets in the estates of Walter and Robert Kostiuk, including the Lorindale Drive home and investment funds, were held on resulting trust for Walter’s three sons or beneficially by Robert and later his widow, Wan Li.
• Evidence of a $200,000 debt/investment owed by Robert to his brother Boris was tested under s. 13 of the Evidence Act, requiring independent corroboration of a deceased person’s alleged undertakings.
• Tracing and conversion issues arose when Robert transferred jointly held and estate-derived assets into his and Wan Li’s names, and when Wan Li withdrew substantial sums from Robert’s accounts after his death.
• Procedural and case-management problems featured prominently, with repeated non-compliance by Wan Li, multiple adjournments, unsuccessful leave motions, and disregard of several court orders to account and retain counsel.
• The court was required to use the limited available financial records and sworn evidence to reconstruct estate accounts in the face of a near-total failure by the estate trustee (Wan Li) to provide disclosure.
• Fixing of costs on a full indemnity basis turned on Wan Li’s egregious litigation conduct, including defiance of orders, refusal to account, and pursuit of meritless appeals and motions.

Background and family relationships

Walter and Helen Kostiuk had three sons: Boris (the applicant), Robert, and Zenon. They executed mirror wills that left their estates to each other first, and then, on the survivor’s death, to their three sons in equal shares. Boris and Zenon eventually moved out and formed their own households, while Robert remained in the family home and cared for his parents into their later years. After Helen died in 2006, Robert and Walter continued to live together. In 2012, Walter appointed Robert as his attorney for property and personal care but did not change his 1995 will, which continued to divide his estate equally among the three sons. Around the same time, Robert was added to title to the family home on Lorindale Drive and to Walter’s bank accounts, so that the assets were held in joint or designated form with Robert.

Administration of Walter Kostiuk’s estate

By 2013, Robert was managing all of Walter’s finances, as Walter was bedridden and blind. When Walter died in November 2016, probate was not required because the assets were held jointly or with designations in Robert’s name. Nonetheless, Robert undertook to administer Walter’s estate in accordance with Walter’s will. He acknowledged to his brothers that he held Walter’s assets in trust, and that each son’s one-third share (excluding the real property) was valued at about $1 million. Robert then divided the investment and bank assets into three “thirds.” Zenon’s $1 million share was transferred out to him, while Boris and Robert agreed that Robert would continue to hold and invest Boris’s $1 million because Robert was considered better at investing. This understanding is the foundation of Boris’s later assertion that Robert (and, through him, Wan Li) continued to hold estate assets and a specific unpaid balance for Boris.

Relationship between Robert and Wan Li and emerging disputes

Around 2016, Robert met Wan Li, a Chinese national, at a casino. Their relationship developed, and by early 2020 Robert was contemplating Wan Li moving into the family home. Boris, worried that Wan Li might be taking advantage of Robert, urged him to obtain legal advice and a cohabitation agreement. On Boris’s evidence, he and Robert re-structured Boris’s estate entitlement at this time: Robert would pay $600,000 immediately and retain $400,000 to invest until markets improved. Robert did transfer $600,000 to Boris in February 2020. When Robert saw lawyer Colin Neubauer in February and March 2020 to discuss a cohabitation agreement, he disclosed and swore a financial statement listing a $200,000 debt owed to Boris, thereby providing documentary corroboration that some portion of Boris’s entitlement remained outstanding. Wan Li refused to sign the cohabitation agreement, and tensions between Boris and Wan Li increased. Boris believed Wan Li was “predatory” or “scamming” Robert, based on information Robert shared with him. Meanwhile, Boris says he and Robert continued to treat Boris’s remaining fund and his one-third interest in the Lorindale home as something to be dealt with in future. In March 2022, Robert consulted lawyer Larry Yanch to make a new will and powers of attorney. Again, he told the lawyer that he owed money to Boris, and this was recorded in the solicitor’s notes. In May 2022, Robert, without telling his brothers, married Wan Li. By October 2022, he executed his new will naming Wan Li as sole estate trustee, beneficiary, and attorney, and transferred the Lorindale home from his sole name into joint title with Wan Li. Both Boris and Zenon later swore that, despite these formal transfers, the home and other assets continued to be held in trust for the three brothers equally, by way of resulting trust.

Death of Robert and post-death withdrawals

Robert died on 3 February 2023, aged 70, from complications of Parkinson’s disease. After his death, Wan Li did not notify Boris or Zenon; she told police she was not aware of any family or friends to contact. Boris only discovered Robert’s death weeks later when he visited the house and then spoke directly with Wan Li, who disclosed that they had married and that Robert had already passed away. A production order later revealed that within ten days of Robert’s death, Wan Li withdrew or transferred roughly $498,000 from Robert’s accounts. Within eight months, she had withdrawn over $1 million, including large ATM withdrawals, cash withdrawals, e-transfers, and significant casino withdrawals. Despite the order for financial production, Boris was unable to trace further assets or locate any remaining funds. By the time of the hearing, the only identifiable asset linked to the estates of Walter and Robert, and to Wan Li, was the Lorindale Drive property, which was already subject to a certificate of pending litigation.

Litigation history and procedural conduct

Boris commenced an application (later amended) seeking directions regarding the estates of Walter and Robert, declarations and remedies concerning resulting trusts, invalidation of the transfer of the Lorindale home to Wan Li, tracing and preservation orders over assets in Wan Li’s hands, orders compelling Wan Li to pass her accounts as estate trustee, and costs. Wan Li broadly denied that Robert held any assets in trust for Walter’s estate or that Robert owed Boris any money. The proceedings then took a highly contentious procedural path. Several interlocutory decisions were issued in related motions and case-management steps, addressing production, compliance, and appeals. Orders were made requiring Wan Li to serve responding materials, provide estate and power of attorney accountings, disclose assets and liabilities, and pay costs. In response, Wan Li repeatedly failed to comply, attempted to appeal or seek judicial review of interlocutory orders, declined mediation despite being encouraged by the Divisional Court, and did not pay previously ordered costs. Judges, including Justice Myers in case-management at the Divisional Court, criticized her refusal to obey orders, her insistence that she need not file sworn material or obtain counsel, and the inconsistency between her claimed language difficulties and her demonstrated English. Ultimately, her motions for leave to appeal were dismissed, and she was ordered to retain counsel and comply with earlier orders, which she did not do. Her conduct caused multiple adjournments of the main application hearing and generated a multiplicity of proceedings. By late 2025, the court directed that the matter proceed to a half-day hearing on the merits on the basis of the available records, given her ongoing non-compliance.

Determination of Boris’s claim

On 5 December 2025, the application came before Justice Woodley. After reviewing all materials and hearing argument, the court gave oral reasons. The judge accepted that Boris was a beneficiary of Walter’s estate and that Robert had acted as trustee of that estate, receiving or converting Walter’s assets into his own accounts and, in some cases, into joint ownership with Wan Li. The evidence, including the estate history, the earlier $600,000 payment to Boris, the solicitor’s financial statement acknowledging a $200,000 debt, and the later solicitor’s notes, was found to satisfy the stricter corroboration requirements of s. 13 of the Evidence Act, which governs claims based on alleged dealings with deceased persons. On this evidentiary foundation, the court held that an “investment” and/or “debt” of $200,000 remained owing to Boris, traceable from Walter’s estate into Robert’s estate and on into assets held jointly with, or withdrawn by, Wan Li. Because Wan Li, as estate trustee and beneficiary, had refused to account and no conventional estate accounts were available, the court was entitled to reconstruct the accounting issues from the surrounding evidence and direct an appropriate distribution. Justice Woodley therefore ordered that Boris was entitled to repayment of $200,000, together with interest under the Courts of Justice Act from March 16, 2022, payable by the Estate of Robert and/or personally by Wan Li as the recipient of converted assets. The Lorindale Drive property, already encumbered by a certificate of pending litigation, was identified as the only remaining asset against which this judgment could realistically be enforced.

Costs ruling and overall outcome

In the separate written costs endorsement dated 7 April 2026, Justice Woodley addressed costs in light of Boris’s success and Wan Li’s conduct throughout the litigation. Applying s. 131 of the Courts of Justice Act and Rule 57.01, the court reiterated that the usual rule is that the successful party is entitled to costs, and that costs must be fixed in all but exceptional cases. The court emphasized several factors: the complexity of the matter; the importance of the issues; the need to reconstruct estate accounts without cooperation from the estate trustee; and, critically, Wan Li’s persistent defiance of court orders, pursuit of meritless appeals and leave motions, refusal to account, and failure to retain counsel despite being ordered to do so. Her behaviour was described as abhorrent to the administration of justice and beyond any excusable misunderstanding by a self-represented litigant. In these circumstances, the judge concluded that full indemnity costs were warranted. Having reviewed counsel’s hourly rates and dockets and finding them reasonable in light of the work required, the court fixed Boris’s costs at $195,543.68 inclusive of HST and disbursements, which amount also rolled in the earlier unpaid costs orders totaling $21,000. Those costs were ordered payable jointly and severally by Wan Li personally and in her representative capacity for Robert’s estate, with payment due within 60 days. The court further clarified that the Lorindale Drive property is available both to satisfy the $200,000 judgment (with interest) and to satisfy the $195,543.68 costs award (with post-judgment interest under the Courts of Justice Act). Overall, Boris emerges as the successful party, with a total principal amount of $395,543.68 awarded in his favour ($200,000 on the debt/investment claim plus $195,543.68 in costs), in addition to pre-judgment interest on the $200,000 and post-judgment interest on both principal sums, the precise interest amounts not being specified in the decision.