Barrie M. Hayes

The applicant sought an order validating a draft will pursuant to s. 21.1(1) of the Succession Law Reform Act on behalf of a deceased who died of a sudden heart attack twelve days after the draft was prepared, before it was signed or witnessed.

The court found that while the deceased had capacity and clear general intentions to benefit the applicant and others over his estranged siblings, the applicant failed to establish that the draft will reflected a deliberate or fixed and final expression of testamentary intention.

There was no evidence the deceased had reviewed the draft, the deadline for suggested corrections had not expired at the time of death, and discrepancies existed between the draft and the deceased's earlier handwritten notes.

The application was dismissed; costs submissions were invited but the court noted the estate may appropriately bear the successful respondent's costs given the reasonable grounds for bringing the application.

The applicant sought to enforce a 1979 consent judgment regarding the sale and division of proceeds from a property.

The respondent argued the application was barred by a statutory limitation period or the doctrine of laches.

The court found that the 20-year limitation period for "an action upon a judgment" under the Limitations Act, 1970, did not apply to this specific type of judgment, which was incomplete and did not create a fixed money debt.

The court also held that the doctrine of laches was inapplicable as the applicant sought legal, not equitable, relief.

Consequently, the application was not barred and could proceed.

Following the dismissal of an application to admit a suicide note as a holograph will, the court determined the costs payable to the successful respondents.

The court found that the applicant acted unreasonably in pursuing the application to oust legacies in the prior will, but acknowledged the estate bore some responsibility due to the testator's actions.

The court ordered blended costs, with the applicant paying a significant portion and the remainder payable out of the estate.

The applicant sought to admit the deceased's suicide note into probate as a holograph will.

The deceased had a history of heavy alcohol and drug use and wrote the profanity-laced note shortly before taking his own life, attempting to disinherit his spouse.

The court found that suspicious circumstances existed, shifting the burden to the applicant to prove testamentary capacity.

Given the evidence of the deceased's intoxication and the lack of a definitive expert opinion on capacity, the court concluded the applicant failed to meet the burden.

The application to admit the note as a holograph will was dismissed.

This decision addresses the costs arising from two applications concerning the care and property management of Irene Deshevy, an incapable 90-year-old.

Brenda Deshevy initiated an application seeking to remove Linda Deshevy as attorney and be appointed guardian.

Linda Deshevy, Irene's appointed attorney, filed a responding application.

Brenda subsequently withdrew her application after receiving a medical report clarifying Irene's extensive care needs and her contentment with Linda's care.

The court found Brenda's application was brought in good faith due to a lack of communication and a misunderstanding of Irene's wishes, rather than misconduct.

Considering Brenda's limited income and the mixed responsibility for the litigation, the court awarded Linda Deshevy $4,000 in all-inclusive costs from Brenda.

Irene Deshevy's legal fees were ordered to be paid from her estate.

This endorsement addresses costs following a Passing of Accounts application concerning executor's compensation, the status of a joint bank account, and executor disbursements.

The applicant objectors achieved partial success, notably in having the joint account declared an estate asset and reducing the executor's claimed compensation.

Both the applicant objectors and the respondent executor sought costs from the estate.

The court applied principles from Zimmerman v. McMichael Estate and Sawdon Estate v. Sawdon regarding costs in estate litigation, determining that the executor's conduct did not warrant personal costs.

Consequently, both parties were awarded their costs, payable from the Estate.

The applicant father brought a motion to change a prior custody order after the parties’ daughter refused parenting time and allegations of parental alienation arose.

Evidence from expert psychiatric testimony and other witnesses supported findings that the respondent mother had engaged in a long-standing campaign of alienating behaviour that had already destroyed the father’s relationship with the parties’ older child and posed a serious risk of emotional harm to the younger child.

The court found the mother lacked insight into her conduct and had failed to meaningfully pursue therapy despite prior court orders.

Applying the best interests test under s. 24(2) of the Children’s Law Reform Act and s. 16 of the Divorce Act, the court concluded that continued contact with the mother without treatment would expose the child to further emotional harm.

The father was granted sole custody and the mother was denied access until completion of therapeutic treatment addressing her alienating behaviour.

The applicant brought a motion seeking a finding of contempt against the respondent for breaching provisions of a prior family court order relating to the Office of the Children’s Lawyer (OCL) referral, reconciliation counselling, and access logistics.

The court applied the three-part test for civil contempt and found that the respondent wilfully refused to comply with the clear requirement to complete and submit an OCL intake form within 14 days of the order.

Alleged breaches relating to reconciliation counselling and provision of access logistics were not proven to meet the contempt standard.

The court emphasized that contempt is a serious remedy requiring proof beyond a reasonable doubt and should be used cautiously in family proceedings.

The respondent was found in contempt only with respect to the OCL intake form requirement, and the penalty phase was adjourned.

Following an estate application seeking removal of an estate trustee, the parties resolved most substantive issues through minutes of settlement prior to the hearing.

The applicant obtained the respondent’s resignation as estate trustee and a release of claims against the estate, while the respondent retained proceeds of a life insurance policy paid to her as beneficiary.

The remaining dispute concerned entitlement to costs of the application.

The court found both parties achieved a measure of success through settlement and that a full hearing was unnecessary.

In the circumstances, it was appropriate that each party bear their own costs.