Clare E. Burns

This decision concerns a motion under section 79 of the Substitute Decisions Act, 1992, regarding the capacity of Carol Jacqueline Black.

The Court orders that Ms. Black undergo a capacity assessment, with her medical records and related materials to be released to all parties and the assessor.

The Court addresses the history of the parties' disputes, the involvement of various professionals, and the need for independent legal representation for Ms. Black.

The ruling balances the privacy interests of Ms. Black with the need for a fair process and the protection of vulnerable persons.

The moving parties sought leave to appeal three interlocutory orders made by the case management judge.

The Divisional Court dismissed the motion for leave to appeal the order for production of documents, awarding costs to the responding parties.

The court granted leave to appeal the order requiring an assessment of capacity to instruct counsel and stayed that order pending the appeal.

The motion for leave to appeal the suspension of counsel's appointment pending the assessment was dismissed.

The applicant brought motions to enforce a final consent order requiring the respondent to pay her $300,000, seeking partition and sale of the matrimonial home, and for reunification therapy with their children.

The respondent had failed to make the payment and the applicant was left 'couch surfing'.

The court ordered the partition and sale of the matrimonial home, defeating a concurrent life interest held by the respondent's mother, with compensation to be paid from the respondent's share.

The court also ordered the children to attend reunification therapy at the respondent's expense, noting the children had been inappropriately exposed to the litigation.

This application concerned the validity of primary wills for two testators, John Douglas Milne and Sheilah Marlyn Milne, which granted executors discretion to determine which assets were subject to the will based on whether probate was required.

The executors sought certificates of estate trustee with a will for these primary wills.

The court dismissed the applications, finding the primary wills invalid due to a lack of certainty of subject matter.

The court held that the subject matter of a trust, including a testamentary trust, must be objectively ascertainable at the time of death, without relying on the retroactive discretion of the estate trustees.

The secondary wills, which included all property without such discretionary exclusions, were deemed valid.

The applicant, an estate trustee and beneficiary, moved to appoint an institutional estate trustee during litigation for her father's substantial estate.

The motion was opposed by the other estate trustees (the applicant's mother and siblings) and another sibling.

The court found that the mother, Ida Rubin, likely lacked capacity, and the other estate trustees had engaged in questionable transactions, including retroactively characterizing assets as jointly held to avoid probate fees, making large gifts from the spousal trust to themselves, and failing to provide proper disclosure or pass accounts despite repeated requests.

The court emphasized its inherent jurisdiction to supervise estates and appoint an estate trustee during litigation to ensure neutral stewardship, protect beneficiaries' interests, and maintain a level playing field, especially given the conflicts of interest and animosity among the parties.

The court addressed costs following the dismissal of a motion by certain respondents to disqualify the applicant's counsel.

The applicant sought full indemnity costs, arguing the motion was tactical and based on unsubstantiated allegations.

The court agreed, finding the respondents' claims of confidential information misuse were disingenuous, particularly given their deliberate disclosure of the "Memo" in question.

The court also noted the tactical use of a summons to witness.

Applying section 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court awarded the applicant $25,500 in full indemnity costs against the moving respondents (excluding the Office of the Children's Lawyer and Arsandco Investments Limited), emphasizing that such motions, when brought for illegitimate tactical reasons or with unsubstantiated allegations of unethical conduct, warrant enhanced costs.

Following a successful appeal in an estate litigation matter, the appellants sought costs for both the motion below and the appeal.

The Court of Appeal awarded the appellants their full requested costs for the motion below, totaling approximately $319,000, noting these were less than the costs originally awarded to the respondents.

For the appeal, the court awarded partial indemnity costs of $100,000 and $75,000 to the respective appellants.

The court rejected the argument that the issues were sufficiently novel to depart from the normal costs rules, and held that the public policy considerations for a blended costs award payable from the estate were not engaged.

The appellants challenged the validity of the testator's 2010 wills on the basis of lack of testamentary capacity and undue influence.

The respondents successfully moved to dismiss the challenges on the basis that they were barred by the equitable doctrines of estoppel by representation and estoppel by convention.

The Court of Appeal allowed the appeal, holding that the equitable doctrines of estoppel do not apply to bar a challenge to the validity of a will.

The Court also held that an interested person does not have an automatic right under rule 75.01 of the Rules of Civil Procedure to require that a will be proved in solemn form, as the court retains discretion over whether and how a testamentary instrument is proved.

Following a successful motion by certain beneficiaries to strike a will challenge on the basis of estoppel, the court determined costs arising from the motion.

The unsuccessful parties argued that costs should be paid from the estate due to the alleged novelty of applying estoppel to bar a will challenge within the limitation period and contended the claimed costs were excessive.

The court rejected that position, emphasizing the modern principle that estate litigation costs are not automatically payable from the estate.

Applying the factors in Rule 57.01 and the Courts of Justice Act, the court fixed partial indemnity costs for the successful moving parties and reduced certain billed amounts for duplication and excess.

Costs were ordered payable personally by the unsuccessful challengers rather than from estate assets.

The moving parties sought to strike a will challenge brought by an estate trustee and her son concerning the validity of the deceased’s 2010 primary and secondary wills.

The estate trustee had administered aspects of the estate for over a year, including paying significant estate taxes, relying on the wills in dealings with third parties, and exercising authority as estate trustee.

The court held that her conduct created an assumption among the parties that the wills were valid and that others relied on that assumption to their detriment, particularly in relation to complex estate planning transactions and tax consequences arising from an estate freeze.

Applying the doctrines of estoppel by representation and estoppel by convention, the court concluded that the estate trustee was barred from challenging the wills.

The son’s parallel challenge was also struck because he lacked independent knowledge of the estate and acted as a proxy for the trustee.

The moving parties sought dismissal of a will challenge brought by a beneficiary alleging lack of testamentary capacity and undue influence in relation to two wills.

The court held that the claim was barred by the two‑year limitation period under the Limitations Act, 2002 because the claimant knew or ought to have known of the material facts shortly after the testator’s death yet commenced proceedings more than two years later.

The claimant had received substantial benefits under the wills and actively participated in estate administration, including sale of assets and receipt of distributions.

The court further held that the doctrines of estoppel by convention and estoppel by representation independently barred the challenge because the parties had proceeded on the shared assumption that the wills were valid and the estate trustees relied on that assumption in administering the estate.

The will challenge was therefore dismissed.

Following an earlier judgment concerning the conduct of a fiscal guardian under the Substitute Decisions Act, the court determined the appropriate costs award.

The applicant sought costs on a substantial indemnity basis against the respondent whose management of the incapable person’s assets had been found highly improper.

The court held that costs should not be borne by the incapable person or estate where doing so would undermine the protective objectives of the statute.

Given the respondent’s conduct before and during the litigation, substantial indemnity costs were justified, though certain portions of the legal bill were reduced due to concerns about duplication of effort within counsel’s team.

Costs were ordered payable by the respondent within 30 days of entry of judgment.

The Children's Lawyer and other appellants appealed a decision dismissing their application to appoint an independent trustee for an inter vivos spousal trust.

The appellants alleged that the respondents, who were directors of the corporation wholly owned by the trust, committed a breach of trust by declaring dividends in excess of net income.

The Court of Appeal dismissed the appeal, finding that the respondents' actions as directors were governed by the Business Corporations Act, not the trust agreement, and did not constitute a breach of trust.

The court also dismissed an application to admit fresh evidence and upheld the application judge's order that costs be paid out of the estate.

Application under the Variation of Trusts Act seeking court approval of a variation to a family trust established in 1992.

The proposed variation would permit reorganization and distribution of trust assets to defer a significant capital gains tax liability arising from the Income Tax Act 21‑year deemed disposition rule.

All adult beneficiaries and trustees consented, and the Children’s Lawyer did not oppose the variation subject to a payment protecting contingent interests of minor and unborn beneficiaries.

The court applied the test from Finnell v. Schumacher Estate and related authorities, assessing whether the variation preserved the settlor’s intention and conferred a benefit on minor, unborn, unascertained, and incapable beneficiaries.

The court concluded that the variation preserved trust capital, benefited protected beneficiaries, and would be accepted by a prudent adult acting in self‑interest.

Following litigation concerning the resignation of a trustee and the mechanism for appointing replacement trustees under a family trust, the court determined the issue of costs.

Competing groups of beneficiaries had disputed whether the court should appoint an institutional trustee or whether the mechanism set out in the testator’s will should govern.

Although one group succeeded on the substantive issue, the court held the cross-application seeking an independent trustee was reasonably necessary to ensure proper administration of the estate.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles governing estate litigation costs, the court concluded that fairness and the importance of the issues justified payment of most parties’ costs from the estate.

The court fixed specific amounts payable to each party.

In a costs endorsement following an appeal and cross-appeal regarding an estate dispute, the respondents sought substantial indemnity costs of $85,000 for the main appeal.

The Court of Appeal declined to award substantial indemnity costs, finding the appellant's conduct was not reprehensible and her appeal raised reasonable questions of law.

The respondents were awarded partial indemnity costs of $30,000 for the main appeal.

The appellant, having been successful on the cross-appeal, was awarded $5,000 in costs.

The appellant challenged the validity of her mother's two wills and a codicil, alleging lack of testamentary capacity, lack of knowledge and approval, and undue influence.

The motion judge granted summary judgment dismissing the challenge and upholding the testamentary documents.

On appeal, the appellant argued that the motion judge erred by granting summary judgment instead of ordering a trial, and by excluding certain expert and lay evidence.

The Court of Appeal dismissed the appeal, finding that the motion judge had a full appreciation of the evidence and issues, properly excluded unreliable expert voicemail messages and uncorroborated evidence under the Evidence Act, and correctly found that the propounders met their burden of proving knowledge and approval despite suspicious circumstances.

The respondents' cross-appeal on costs was also dismissed.

The applicant sought to resign as trustee of a family trust.

The Office of the Children's Lawyer brought a cross-application to appoint a new independent trustee, arguing that the settlor's children, who intended to appoint themselves as trustees pursuant to the trust agreement, had abused their discretion as directors of the trust's holding company.

The court found no evidence of abuse of discretion that would justify interfering under s. 5(1) of the Trustee Act, and held that the executors could appoint the next trustees pursuant to the trust agreement.

Application concerning the removal of an attorney for property under a continuing power of attorney pursuant to the Substitute Decisions Act, 1992.

The applicant alleged that the co‑attorney breached fiduciary duties through mismanagement of the incapable person's assets, failure to account, risky investments, and lack of transparency.

The court reviewed statutory duties of attorneys under ss. 32, 37, and 39 of the Act and considered evidence of the grantor’s declining cognitive capacity and financial vulnerability.

The court found strong and compelling evidence of misconduct and neglect, including speculative investments, unpaid taxes, failure to keep proper accounts, and disregard of fiduciary obligations.

The respondent was removed as attorney for property and the remaining co‑attorney was left as sole attorney subject to ongoing accounting obligations.

The applicant, an intervener in the court below, brought a motion to be added as a party under Rule 18(5) of the Rules of the Supreme Court of Canada in order to seek leave to appeal.

The underlying judgment declared that a child could have three parents.

None of the original parties or the Attorney General sought to appeal the decision.

The Supreme Court of Canada dismissed the motion, holding that the applicant lacked a specific personal interest in the outcome of the litigation and failed to meet the test for public interest standing.