Bradley Jay Wiseman

The applicant, the wife of Carl Joseph Bennett, sought a declaration that Powers of Attorney signed by Carl in September 2023 were invalid due to lack of capacity and undue influence, or alternatively, that the respondent son had breached his fiduciary duties as attorney.

The court found that Carl lacked capacity to execute the POAs and that the respondent had breached multiple fiduciary duties under the Substitute Decisions Act.

The court terminated the POAs and appointed the applicant as Carl's Guardian of Property and Person.

The respondent was ordered to pay costs and provide full accounting of Carl's finances.

The applicant, Linda Kulchycki, sought to reinstate a 2008 power of attorney and codicil executed by her mother, Mary Kulchycki, and to set aside new powers of attorney and a will executed by Mary in 2020.

Linda alleged conflicts of interest and improper conduct by the respondents, Nancy and Diana Kulchycki, and the lawyer involved in the 2020 documents.

The court found that Linda provided no evidence of incapacity, undue influence, or mismanagement, and that a will challenge is premature while the testator is alive.

The application was dismissed, and costs were awarded against Linda.

This costs decision follows the successful application by Deborah Lynn Ferris for the removal of her brother, Christopher Ferris, as co-estate trustee of their late father's estate.

The court reviews the parties' submissions and the applicable legal principles, ultimately awarding full indemnity costs to the applicant, with a blended order requiring Christopher Ferris to pay 75% of the applicant's costs and the balance to be paid from the estate.

The court finds Christopher Ferris's conduct to be worthy of sanction and characterizes it as reprehensible and outrageous.

The applicant, Ronald Wojcicki, as estate trustee for Mary Thompson's estate, applied to pass his accounts.

The objectors, Mary's other children, raised several objections concerning Ronald's compensation for administering both Mary's and her deceased husband Terence's estates, his labour and mileage claims for cottage repairs, and the payment of legal fees from the estate.

The court reduced Ronald's compensation for Terence's estate by $10,000, finding that the in specie transfer of the cottage did not justify the full percentage-based compensation given the limited administration required.

However, the court largely upheld Ronald's other actions, including the reasonableness of his labour and mileage claims for cottage repairs and the decision to pay Terence's estate compensation from Mary's estate.

The issue of legal fees was deferred for review during costs submissions.

Stanley Moore died with a will whose residual clauses were ambiguous regarding the distribution of a predeceased brother's share.

The Estate Trustee sought judicial interpretation of these clauses.

The court applied the "arm-chair rule" to discern the testator's intent, which was to benefit two family branches roughly equally.

It was determined that the predeceased brother's share should pass to his children, giving meaning to "per stirpes" and balancing it with the "absolute" gift clause.

The court ordered that the share of the predeceased brother, John Frederick Moore, pass to his two children, Kenneth Moore and Kevin Moore, in equal shares.

This is a costs endorsement following the denial of the applicant's request to appoint Section 3 counsel for Lynda Miziolek, an incapable person.

The respondent, Elizabeth Miziolek, sought costs on a partial and substantial indemnity basis.

The applicant, Alexandra Miziolek, argued for no costs or an offset due to divided success on other application segments.

The court found Elizabeth entirely successful on the discrete Section 3 counsel issue, which was not part of the original application and was deemed ill-conceived after a medical report confirmed Lynda's inability to instruct counsel.

The court awarded Elizabeth costs of $11,500 plus HST, to be paid by Alexandra.

Disbursements for the medical report were directed to be paid from Lynda's estate, acknowledging the public policy of not discouraging reasonable applications for vulnerable persons.

The applicant brought an application under the Substitute Decisions Act, 1992 seeking, among other relief, appointment as guardian of property for an incapable person.

The matter was adjourned at the request of the respondent, and the court determined the appropriate terms of the adjournment.

Finding that the proceeding had been unduly delayed by the respondent, the court imposed conditions to protect the incapable person and the integrity of the process, including limited cross‑examinations, disclosure of documents relating to alleged abuse, production of a statement of assets, and completion of outstanding undertakings.

Costs of the attendance were fixed and reserved to the application judge.

In estate litigation arising from a will challenge, the respondent sought an order requiring the applicant to pay her share of proceeds from the sale of estate property into court pending resolution of the dispute.

The moving party argued that the applicant held title to the property in trust and should not retain the funds while challenging the will.

The court held that ordering payment of the proceeds would constitute substantive relief unsupported by an evidentiary record and inappropriate at the preliminary stage of proceedings.

The litigation was at an early stage with no pleadings exchanged.

The motion was therefore dismissed.

A contested guardianship application was brought under the Substitute Decisions Act regarding an adult incapable person who suffered a catastrophic hemorrhagic stroke resulting in permanent disability and the need for 24‑hour care.

The incapable person’s sister applied to be appointed guardian of personal care and property, while the spouse and adult children brought a counter‑application seeking guardianship and relocation of the incapable person closer to them.

The court considered the best interests of the incapable person and the statutory considerations under ss. 66(6) and 66(7) of the Substitute Decisions Act concerning maintaining supportive family contact and consultation.

Evidence demonstrated longstanding separation between the spouses, limited involvement by the spouse in the incapable person’s medical care since the prior guardianship appointment, and significant conflict between the spouse and the existing guardian.

The court concluded that the sister was best positioned to manage the incapable person’s care and property while fostering family contact, and appointed her as guardian.

Following litigation concerning the affairs of an incapable person, the court determined costs between family members and the Office of the Public Guardian and Trustee.

One party sought substantial full indemnity costs from the incapable person's estate and additional amounts from another family member.

The court emphasized proportionality in estate litigation involving incapable persons and rejected the expectation that legal costs will routinely be borne by the incapable person's estate.

While finding misconduct and escalation of litigation by multiple parties, the court held that the primary responsibility for prolonging the litigation rested with one party.

The court ordered that each party bear their own costs except that one party pay $10,000 toward another party’s costs, and that the cost of a capacity assessment be reimbursed from the incapable person's estate.