Anne E. Posno

Costs endorsement following a will challenge and a dependant support claim.

The applicant was unsuccessful in challenging the 2018 Wills but partially successful in his dependency claim.

The court applied the McGrath framework to determine if public policy considerations warranted costs being paid from the estate.

The court found public policy applied to the dependency claim but not the will challenge.

Costs were awarded on a partial indemnity basis, with the successful respondent on the will challenge receiving $200,000 and the applicant receiving $125,000 for the dependency claim.

After a 40% estate contribution to the applicant's costs and a set-off, the applicant was ordered to pay a net amount of $125,000 to the respondent.

In an estate appeal, the court held that the judgment under appeal was, on its face, made under the Succession Law Reform Act.

Because s. 76 grants exclusive appellate jurisdiction to the Divisional Court for appeals under that Act, the Court of Appeal lacked jurisdiction.

The appeal was dismissed on that basis.

The court also ordered costs payable to the respondent by the estate in an agreed all-inclusive amount.

The moving party sought leave to appeal an order transferring a matter from the Family Law Team to the Civil Law Team in Toronto.

The Divisional Court dismissed the motion, finding that while there was good reason to doubt the motion judge's finding on jurisdiction, the decision to have the matter addressed by the Civil Law Team was an exercise of administrative discretion that did not raise a matter of such importance to warrant leave to appeal.

The court considered motions for costs personally against George Windsor, who commenced proceedings on behalf of Gilles Jozias Overtveld and Gi-Las Management and Maintenance Ltd. without proper authority.

The action was found to be duplicative, meritless, and a waste of resources.

The court fixed costs on a substantial indemnity basis against Mr. Windsor personally, disallowed him from charging legal fees to the plaintiffs, and set out the principles for awarding costs in such circumstances.

The court considered Jack Shapiro’s application for dependant support and a declaration of trust over a condominium following the death of his wife, Carol-Sue Shapiro.

The court found that Jack was a dependant under the Succession Law Reform Act and that Carol-Sue had not made adequate provision for his support in her will.

The court ordered that title to the matrimonial condominium be transferred to Jack, in addition to the $250,000 bequest, balancing Jack’s needs and Carol-Sue’s testamentary intentions to leave the majority of her estate to her son, Michael Shapiro.

This decision concerns an application by Dr. Kelly Diane Riedel regarding the validity and administration of the Dmyant Sangha Family Trust and the Sangha Property Trust.

Dr. Riedel alleges that the trusts are shams, created to defeat her family law entitlements, and seeks various forms of relief including the production of legal records and the conversion of the application to an action.

The court addresses the legal standards for sham trusts, the relevance of disputed facts, and the entitlement to privileged documents.

The application to convert to an action is dismissed, and the court sets out a process for determining threshold questions regarding the validity of the trusts.

Following a trial of a common issue in two consolidated applications, the court determined the beneficial ownership of a Mississauga property used as a Buddhist temple.

The applicants alleged that the registered owners held title in trust for a charitable corporation, while the estate contended the deceased monk beneficially owned the property personally.

Applying the law of trusts, the court found certainty of intention and certainty of objects, held that the corporation was ascertainable as the sole beneficiary, and concluded that the estate could not invoke the Statute of Frauds to defeat the oral trust.

The court further held that the corroboration requirement in s. 13 of the Evidence Act was satisfied and declared that the corporation is the sole beneficial owner, with the registered owners holding legal title in trust for it.

The applicant developer brought a motion under Rule 49.09 to enforce a purported settlement agreement regarding a land dispute that was blocking a subdivision development.

The applicant argued that the parties had agreed on the essential terms of a land sale in exchange for the withdrawal of the respondents' objection.

The court dismissed the motion, finding that there was no mutual intention to be bound because several terms proposed by the respondents in a counteroffer, including the closing date, right of assignment, and registration of the agreement, were never accepted by the applicant.

This case concerns an application for a Certificate of Appointment of Estate Trustee, which was challenged by the deceased's husband and daughter on grounds of undue influence and testamentary fraud.

The objectors alleged that the deceased's son and his wife fraudulently influenced the deceased to disinherit her daughter and significantly reduce her husband's inheritance by instilling false beliefs about the daughter's husband and the husband's financial well-being.

The court found no evidence that the son and his wife perpetrated or encouraged these alleged falsehoods.

The deceased's testamentary changes were determined to be her own decisions, made gradually over time, based on her long-standing concerns about protecting the family's wealth from her son-in-law, and after receiving independent professional advice.

The court dismissed the objections, declared the wills valid, and granted the application for the Certificate of Appointment.

The defendant Mireille Jehn brought a motion seeking directions to restrain the plaintiffs from registering a caution or certificate of pending litigation (CPL) and for leave to provide 22 days' notice for refinancing instead of 30 days.

The plaintiffs cross-moved to restrain further encumbrance/refinancing and to place a CPL on the properties.

The court permitted the refinancing to proceed but restrained Mireille Jehn from drawing down funds beyond refinancing costs and $80,000 for carrying costs.

Leave was granted for the immediate 22-day notice, but future notice was extended to 60 days.

The court denied the request for a caution or CPL, finding the plaintiffs' resulting trust claim enured to the Estate, not them personally, thus they lacked a direct "interest in land."

Grand River Enterprises Six Nations Ltd. (GRE) appealed an order from the Superior Court of Justice requiring it, as a non-party, to produce financial documents for the valuation of shares held by a deceased in estates litigation.

The Court of Appeal dismissed the appeal, affirming the motions judge's discretionary decision.

The court found the documents relevant to the estate's valuation and the validity of the deceased's will, and that it would be unfair to proceed to trial without them.

The Court of Appeal upheld the motions judge's application of the Rule 30.10 test, emphasizing deference to the lower court's discretion and the effectiveness of the established Confidentiality Protocol in addressing GRE's concerns about privacy and business interests.

The deceased died intestate, leaving a common-law spouse of over twenty years and an adult daughter from a previous relationship.

The spouse brought an application for dependant's relief under the Succession Law Reform Act, which was granted by the application judge who awarded the entirety of the estate to the spouse.

The daughter's estate appealed, arguing the application judge erred in his treatment of the daughter's residual legal entitlement, the moral duty owed to the grandchildren, and the paramountcy of the spouse's claim.

The Divisional Court dismissed the appeal, finding the application judge made no errors in principle, properly balanced the competing claims, and reasonably exercised his discretion in prioritizing the spouse's needs given the shortfall in the estate.

This is a costs endorsement following the dismissal of the applicant's motion for financial disclosure.

The applicant, Barbara Cohen, sought extensive financial disclosure from the Estate of Sidney Cohen and other parties, which the court found to be an attempt to circumvent a prior bifurcation order by Justice Audet.

The court dismissed the disclosure motion and subsequently awarded costs to the successful respondents and non-parties, including the Estate, Susan Charendoff, Brian Cohen, and several corporate non-parties.

The decision addresses the principles of costs, including partial indemnification, encouraging settlement, discouraging inappropriate behavior, and ensuring justice, while considering the reasonableness and proportionality of the requested amounts.

The court held a voir dire to determine the testimonial capacity of the applicant, Barbara Cohen, who suffers from mild dementia.

The respondents argued she had capacity, while her counsel argued she lacked it.

Based on expert reports from two geriatric specialists (Dr. Joel Sadavoy and Dr. Richard Shulman) and the court's own questioning of Barbara, the court found that the applicant lacked the capacity to testify due to inconsistent memory, difficulty communicating complex ideas, and potential for increased anxiety under cross-examination.

The court ruled that her previous questioning transcripts would be filed instead of compelling her live testimony.

Following the dismissal of the plaintiff's action for defamation and misfeasance in public office, the successful defendants sought their costs on a partial indemnity scale.

The court applied the principles from Apotex and Rule 57.01, noting the serious allegations made, the complexity of the 10-year litigation, and the plaintiff's reasonable expectations.

The court found the defendants' reduced costs requests to be fair and reasonable, ordering the plaintiff to pay $280,000 to one defendant and $250,000 to the remaining defendants.

The applicant brought a motion for extensive financial disclosure from the respondents and non-parties in the context of a bifurcated trial.

Phase 1 of the trial was ordered to solely determine the validity of the marriage contracts.

The applicant argued the disclosure was necessary to assess the value of the estate for the fairness consideration under the Levan test and to respond to the defence of laches.

The court dismissed the motion, finding that the exact value of the estate was not necessary for Phase 1 and that ordering the disclosure would undermine the purpose of the bifurcation order.

The plaintiff, a general surgeon, sued the hospital, its chief executive officer, and its chief of staff for defamation and misfeasance in public office after losing his hospital privileges.

The plaintiff alleged that the chief of staff defamed him in a letter and in oral statements, and that the defendants acted in bad faith to oust him from the hospital.

The Superior Court of Justice found that the oral defamatory statements were not proven and that the letter was protected by qualified privilege.

The court held it had jurisdiction to hear the misfeasance claim but dismissed it, finding no evidence of unlawful acts, malice, or improper purpose by the defendants.

The action was dismissed in its entirety.

In a family law proceeding, the parties disputed whether the applicant, who suffers from mild dementia and requires a litigation guardian, had the testimonial competence to testify at trial.

The court reviewed the conflicting expert evidence from geriatric specialists regarding her capacity to observe, recollect, and communicate.

Applying section 18(2) of the Ontario Evidence Act, the court determined it was necessary to conduct an in-person examination of the applicant to assess her testimonial capacity before ruling on the issue.

Gowling WLG (Canada) LLP sought leave to intervene as a party in an appeal brought by Capital Sports Management Inc. The underlying appeal challenged an order requiring the production of certain solicitor-client documents based on a finding of an implied joint retainer among Capital Sports, Trinity Development Group Inc., and Gowlings.

Gowlings argued it had a direct interest in the appeal because its conduct and advice were directly impugned.

The court granted Gowlings leave to intervene as a party with limited participation rights, finding that its focused submissions would likely be useful to the court in addressing significant issues about solicitor-client privilege after the breakdown of a relationship involving an implied joint retainer.

The moving party brought motions for leave to appeal two orders of the lower court.

The Divisional Court dismissed the motions for leave to appeal and awarded costs to the respondent in the fixed amount of $5,000.