The recent ruling in Zavet v. Herzog involved a preliminary motion brought by a woman named Alona, who was the long-time common-law partner of a very successful real estate developer named Sam. Although the Estate was still in the early stages of untangling his extremely complex business affairs (with Sam’s separated wife Dianne being named as his Estate Trustee), the early figures showed that Sam had amassed a fortune of over $200 million during his lifetime. Sam’s Will made no provision for Alona, even though they had been living together for at least 12 years at the time of his death.
Pending the full resolution of issues arising from the Estate distribution, Alona had obtained a court order entitling her to continue to live in Sam’s 5,000 square-foot Condo in the Four Seasons in Toronto for the interim. Her 29-year-old son Michael was also living there, with his girlfriend and their dog.
Although the Estate Trustee had acquiesced to that arrangement until the Estate matters were unwound, she did take umbrage with something else: It seems that Alona had hosted a charity event that ended up all over social media. As the court explained:
The Estate’s motion arises as a result of Alona and her family’s use of the Condo and specifically a public fundraising wine tasting event that was hosted by [Alona’s son] Michael on October 28, 2017, at the Condo. The event, which normally costs $5,000 a couple, was reduced to $500 per person to attract a younger crowd. There is no evidence of how many people attended the event but photographs of it showing a number of different people in attendance were posted on social media. The photos contain images of the interior of the Condo, including valuable artwork, furnishings, sculptures, antiques, fixtures and crystal. In addition, Tillie, who is an aspiring model, has posted professional pictures on social media taken of her in the Condo to promote her career.
As a result, the Estate Trustee wanted a court order: 1) prohibiting Alona from hosting, or permitting public- or semi-public events at the Condo, and 2) making it a condition of Alona’s occupancy that other residents of the Condo shall not make any social media posts showing the Condo’s interior – including but not limited to Instagram, Facebook and Twitter.
Admittedly, the charity event was very prestigious and raised a significant amount for a Toronto hospital. Alona also pointed out that her use of the Condo was unrestricted, that she had been granted sole possession by a court, and that she had Sam had hosted charity events while he was alive.
The court had urged the parties to try to come to terms, they were unable to agree on how many people could attend the Condo at any one time, and whether there should be any restriction on posting pictures of the interior of the Condo on social media. In the court of resolving the impasse, the court stated:
In my view, the answer to this issue lies in a balancing of the interests of both Alona and the Estate in the interim period. On the one hand, Alona is entitled to sole possession of the Condo. On the other hand, given the valuable nature of the Condo and its contents, the Estate has an interest in not having it opened to the public or pictures of the interior displayed on social media.
While I do not think it is appropriate during this interim period for Alona or her son to host public fund raising events at the Condo, it is reasonable for her to be able to host family events and dinner parties for her friends. Alona submits that the number of people should be 25 and the Estate submits 15. I prefer the Estate’s number. It is large enough to permit family and friends without being excessive. Accordingly, Alona shall be permitted to entertain a maximum of 15 people at any one time at the Condo.
As for the social media aspect – and in dismissing Alona’s objections over the challenges of enforcing any restrictions – the court said:
Further, I do not accept Alona’s submission that a restriction in connection with posting on social media of pictures of the Condo interior is simply unenforceable in respect of today’s young people. There is no reason or need for the occupants of the Condo or their families to post pictures of the interior of the Condo on social media. To the extent they do, they run the risk that they will no longer be entitled to occupy or attend at the Condo.
I agree that guests are a different matter in that they are more difficult to supervise. That said, there is no reason that they would not respect their host’s wishes, particularly given they emanate from a court order. Accordingly, the occupants shall be required to advise any guest of the restriction that pictures of the interior of the Condo, either directly or indirectly, cannot be posted on social media. Again, I do not consider that such a restriction is too onerous or unenforceable.
For the full text of the decision, see:
