Devin McMurtry

This endorsement consolidates three applications concerning the guardianship and estate administration of Teresa Opalinski and Alexander Opalinski Sr. The disputes involved allegations of elder abuse, undue influence, and breaches of fiduciary duty among family members.

The court addressed motions for dismissal of a guardianship application (rendered moot by death), a motion for access to Alexander Sr., and an application for the removal of Joanna Opalinski as estate trustee of Teresa's estate.

The court dismissed the guardianship application and the access motion, and granted the application to remove Joanna as estate trustee, directing the appointment of an independent trustee.

The appellants appealed a trial judgment that found a beneficial interest of 26% in a house for a deceased's estate, based on a purchase money resulting trust.

The appeal addressed whether the trial judge erred in applying the legal requirements for a resulting trust, particularly the "acted as a purchaser" requirement and the onus of proof regarding loans versus gifts.

It also considered the application of the corroboration requirement under s. 13 of the Evidence Act.

The Court of Appeal clarified that the presumption of resulting trust places the onus on the title holder to rebut it by proving the money was a loan or gift, and that the "acted as a purchaser" requirement applies only at the time of advancement.

The court found no reversible error in the trial judge's findings on the resulting trust or the application of s. 13, as the trial judge rejected the loan evidence on credibility grounds.

The appeal was dismissed.

The plaintiff, Solina Bradshaw, sought elevated costs from the defendant, Jack Hougassian, following a successful judgment in an estate matter.

Jack Hougassian sought costs, arguing divided success, and Sona Shea, self-represented, also sought costs.

The court awarded the plaintiff $125,000.00 in all-inclusive costs from Jack Hougassian, finding the plaintiff was the successful party and that Jack's conduct warranted an elevated award.

The court dismissed Jack's and Sona's claims for costs, noting Sona did not meet the criteria for self-represented litigant costs.

The plaintiff, acting as estate trustee for her deceased mother, brought an action against her brother claiming the mother's estate had a beneficial interest in a property registered solely in the brother's name.

The mother had contributed $10,000 to the down payment when the property was purchased in 1980, and lived there until her death in 2018.

The court found that the brother failed to rebut the presumption of a purchase money resulting trust regarding the $10,000 contribution.

The court awarded the estate a 26% beneficial interest in the net sale proceeds of the property, amounting to $115,900.44, plus $10,000 in damages for the brother's improper disposal of the mother's personal property.

Claims of fraud and breach of fiduciary duty were dismissed, and the action was found not to be statute-barred.

The applicant estate trustee brought a motion for an order appointing section 3 counsel under the Substitute Decisions Act for her father.

The respondents opposed the motion, arguing the court lacked jurisdiction because the underlying proceeding was not brought under the Substitute Decisions Act.

The court agreed with the respondents and dismissed the motion, holding that the plain wording of section 3(1) and relevant case law require the underlying proceeding to be under the Substitute Decisions Act for the court to have jurisdiction to appoint such counsel.

The applicants, parents of the deceased, brought an application against the deceased's husband seeking his removal as estate trustee and alleging he misappropriated funds raised for the deceased's cancer treatment.

The respondent moved to strike the application under Rule 21.01(1)(b) for lack of standing.

The court struck the estate-related claims because the applicants were not beneficiaries and had no financial interest in the estate.

However, the court declined to strike the trust-related claims, finding it was not plain and obvious that the applicants lacked standing to seek the return or charitable donation of the raised funds, as they had personally contributed to them.

A related motion for further financial production was dismissed.

The respondent, Colin Jones, moved to consolidate an estate application commenced in Toronto with a related application commenced in Guelph, and to transfer the Toronto application to Guelph.

The applicant, Brian Jones, opposed the transfer, arguing the matter should remain in Toronto to benefit from the Toronto Estates List's mandatory mediation and case management.

The court granted the motion to consolidate and transfer the proceedings to Guelph, finding that Guelph had a much stronger connection to the parties and the estate assets.

However, the court imposed a condition requiring the parties to attend mandatory mediation.

The moving party sought to quash an appeal by the responding party, Henia Gefen, on the grounds that it was out of time.

The Court of Appeal dismissed the motion, finding that the appeal was not out of time because the time for appeal began to run from the date the judgment was finally settled and issued (October 16, 2020), rather than the date reasons were released (October 17, 2019).

This exception applied because the judgment was uncertain on a substantive point (paragraph 5, identifying deceased's assets) which was not part of the initial summary of disposition.

The court also noted that an extension of time would have been granted in the interests of justice due to factual connection between appeals and no prejudice to the moving party.