Charles Wagner

Following prior reasons concerning the validity of a transfer of property and the appointment of guardians of property under the Substitute Decisions Act, the applicants sought directions to determine the market rent payable by a respondent who continued to occupy a residential property owned by an incapable person.

The court assessed competing valuation evidence and determined the fair rental value while granting a modest credit for minor property management services performed by the occupant.

The court also addressed ancillary orders required to implement its earlier judgment, including restoring title to the incapable person, directing the return of funds held in trust to the appointed guardians, removing a charge registered on title for legal fees, clarifying authority over insurance matters, and permitting section 3 counsel to withdraw.

The decision illustrates the court’s authority under Rule 59.06(2) of the Rules of Civil Procedure to give further directions necessary to carry an order into operation.

Adult children challenged their mother’s 2005 will, powers of attorney, and subsequent transfers of property to another sibling, alleging incapacity, undue influence, and misuse of assets.

The court held that the mother had testamentary capacity in 2005 and validly executed the will and powers of attorney.

However, by 2008 she lacked capacity to transfer her home to the respondent son, and that transfer was declared void due to incapacity and undue influence.

The court found she presently lacked capacity to manage property, personal care, grant powers of attorney, or make a will.

Although the 2005 powers of attorney were valid, the court removed the attorney due to misconduct and appointed two other sons as guardians of her person and property.

Following dismissal of a motion seeking to hold opposing counsel personally liable for costs under rule 57.07 of the Rules of Civil Procedure, the court addressed the costs of that motion.

The moving party alleged misconduct by experienced counsel and sought consolidation of his claim with the main costs issues in ongoing guardianship litigation.

The court found the allegations unfounded and determined that the motion unnecessarily prolonged the proceeding and increased litigation expense.

Applying the reasonableness principle in costs assessment, the court fixed substantial costs payable to the successful parties.

The moving party sought leave under Rule 57.07 of the Rules of Civil Procedure to pursue personal costs claims against opposing counsel in litigation concerning a guardianship and related estate disputes.

The proceeding had already been set down for a costs trial, and a prior order imposed strict timelines requiring notice and particulars before such motions could be pursued.

The court found the moving party failed to comply with those timelines and had not demonstrated the substantial or unexpected change in circumstances required to obtain leave once a matter is set down for trial under Rule 48.04.

The allegations of professional misconduct, negligence, and perjury against counsel were vague, speculative, and unsupported by evidence establishing bad faith or abuse of process.

The court concluded the claims had no reasonable chance of success and granting leave would further delay already protracted proceedings.

Multiple motions arose in estate-related litigation involving allegations of undue influence over an elderly party.

Respondents sought leave to pursue costs against solicitors under Rule 57.07 and to consolidate related actions.

Counsel appointed under s.3 of the Substitute Decisions Act brought a preliminary motion after being unable to meet with the elderly party whose representation was in question.

Evidence suggested possible obstruction and undue influence affecting her ability to obtain independent legal advice.

The court held that the circumstances justified consideration of appointing a litigation guardian and granted leave for the motion to proceed, adjourning all related motions to allow a meeting between the party and s.3 counsel.