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.

In an ongoing estate litigation matter, the court determined costs for several preliminary steps, including the determination of an estate asset, production of solicitor files, an abandoned consolidation motion, and case management conferences.

The court awarded costs to the applicant and other beneficiaries, payable largely by the former estate trustees personally due to their improper conduct and conflicts of interest, with some portions payable by the estate.

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 Estate Trustee brought a motion to transfer an action regarding the administration of the estate from Brantford to Toronto.

The moving party argued that Toronto was the more convenient forum as the deceased lived there, the estate was filed there, and most beneficiaries and assets were located there.

The responding party opposed the transfer, noting the action was properly commenced in Brantford and significant procedural steps had already occurred there.

The court applied the holistic balancing test under Rule 13.1.02 and found the moving party failed to establish that Toronto was a significantly better venue.

The motion to transfer was dismissed.

The applicant, claiming to be the common law spouse of the deceased, sought dependant support from the deceased's estate after the six-month limitation period had expired.

The estate trustees opposed the extension.

The court found that the bulk of the estate remained undistributed and there was no prejudice to the estate by the delay.

Applying the principles for extending the limitation period under section 61(2) of the Succession Law Reform Act, the court granted the extension, finding it proper to allow the application to proceed to trial to determine if adequate provision was made for the applicant.

The appellant appealed a costs order made by the application judge, arguing a lack of jurisdiction and inadequate notice.

The Court of Appeal dismissed the appeal, finding that the claim for further relief, a previous costs order, and a settlement offer provided adequate notice.

The court also upheld the costs order as justified because the application judge found the appellant had perjured herself, protracting the litigation.

Dispute among siblings and co-executors regarding administration of an estate where the primary assets consisted of two real properties specifically gifted under a will and holograph codicil.

Motions for directions were brought amid conflict between executors over whether to sell the properties to satisfy estate debts or allow a beneficiary additional time to fund payment of those obligations.

The court found the administration of the estate had stalled due to a serious breakdown in trust between the executors and beneficiaries.

To preserve the estate and ensure proper administration, both executors were removed and replaced with an independent professional executor.

The newly appointed executor was directed to determine the estate’s debts and expenses and administer the estate accordingly, including potential sale of property if necessary.

The appellant appealed an order of the Superior Court of Justice.

Prior to the hearing, the parties reached a settlement.

On consent, the Court of Appeal dismissed the appeal without costs.

The court reconsidered a prior costs decision following late submissions from the respondent.

The issue was whether costs could be ordered personally against the respondent when the notice of application had requested costs only from the incapable person.

The court held that no prejudice arose because the respondent had ample notice throughout the proceedings that personal costs were in issue, including through settlement offers and prior court appearances where costs were reserved.

Emphasizing the principle that costs follow the result and that family members assisting an incapable person should not bear all litigation risk, the court confirmed that a costs order against the respondent was permissible as ancillary relief.

The earlier costs order was therefore affirmed.

The court reconsidered a prior costs decision after receiving late submissions from counsel for the respondent.

The issue concerned whether the court had jurisdiction to order costs against the respondent when the notice of application had requested costs only against an incapable person.

The court permitted the applicant to file written submissions addressing the jurisdictional issue within 15 days.

The endorsement dealt solely with the procedural reconsideration of the costs determination.

Following a successful guardianship application brought for the benefit of an incapable person, the applicant sought costs against the respondent.

The court noted that the incapable person had no meaningful estate from which costs could be recovered, despite benefiting from the proceeding.

The respondent’s conduct during the litigation, including perjury in cross-examination that risked exposing the incapable person to harm, unnecessarily increased the cost of the proceedings.

Applying the principle that costs follow the event and referencing the recognized range for such proceedings, the court ordered costs on a substantial indemnity basis.

Costs were fixed at $30,500 all inclusive.

Competing applications were brought under the Substitute Decisions Act, 1992 for guardianship of the person and property of an incapable adult with cerebral palsy and significant cognitive impairment.

The niece sought appointment as guardian while the incapable person’s sister filed a competing application.

Although both parties had historically assisted with the incapable person’s care and finances, the court found the relationship between the parties had irreparably broken down.

Evidence showed the respondent’s husband had engaged in sexual contact with the incapable person and the respondent attempted to conceal the incident.

The court held that this circumstance made the respondent unsuitable as guardian and that the applicant represented the reasonable alternative in the incapable person’s best interests.

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.

The appellant appealed a decision interpreting a varied trust deed.

The trust had been converted into a percentage trust (unitrust) to allow the trustee to invest for maximum returns.

Due to market downturns, the trustee had to sell capital assets to meet the mandatory minimum percentage distributions to the income beneficiaries, depleting the trust's capital.

The application judge found that the trust deed's terms made the percentage payments mandatory and ousted the trustee's duty to maintain an even hand between income and capital beneficiaries regarding distributions.

The Court of Appeal dismissed the appeal, holding that the application judge correctly interpreted the trust deed based on its clear language and the surrounding factual matrix, including the prior court approval and tax rulings.