E. Jane Murray

The Estate Trustee During Litigation brought a motion for directions regarding the final distribution of the estate.

The sole issue was whether a beneficiary was entitled to reimbursement of $40,000 in legal fees incurred after the trustee's appointment.

The fees were incurred in relation to defending the estate against fraudulent claims by another beneficiary, who was criminally convicted.

The court found that while costs awards to beneficiaries are not the ordinary course, the beneficiary's participation was partially necessary and benefited the estate.

The court awarded the beneficiary $25,000 in costs, to be paid first from the fraudulent beneficiary's share of the estate, and the balance from the estate itself.

Following a motion concerning child support, parenting access, and sale of the matrimonial home, the court addressed the issue of costs.

The applicant had been entirely successful on the earlier motion.

The applicant argued that the respondent acted in bad faith by unilaterally ceasing child support and allegedly pursuing the motion for tactical advantage.

The court rejected allegations of bad faith but applied the presumption under Rule 24(1) of the Family Law Rules that the successful party is entitled to costs.

Costs were fixed in favour of the applicant for responding to the motion.

On a family law motion, the court addressed three issues: recommencement of child support payments, a request to vary an existing access schedule, and a request for sale of the matrimonial home under the Partition Act.

The respondent had unilaterally reduced and then ceased child support payments despite an earlier informal agreement between the parties.

The court ordered the respondent to resume interim child support payments based on the amount he had most recently paid.

The request to vary access was denied on the basis that the status quo should be preserved pending a trial scheduled in the near future.

The request for partition and sale of the matrimonial home was also denied because the applicant had a prima facie claim for exclusive possession and the sale could prejudice unresolved property and equalization issues to be determined at trial.

The respondent brought a motion to vary a prior spousal support order, seeking a retroactive reduction based on his retirement from employment.

The applicant opposed the motion, arguing the retirement was voluntary and premature, that the payor was in arrears, and that disclosure deficiencies warranted dismissal of the motion.

The court held that retirement constituted a material change in circumstances contemplated by the parties’ settlement agreement and incorporated into the original order.

Applying the Spousal Support Advisory Guidelines and the principles governing variation under s. 17 of the Divorce Act, the court recalculated support based on the payor’s reduced income after retirement.

The support obligation was significantly reduced and arrears were recalculated accordingly.

The applicant brought a motion to set aside a marriage contract under s. 56(4) of the Family Law Act, alleging insufficient financial disclosure, lack of independent legal advice, duress, and unconscionability.

The court applied the two-stage analysis for nondisclosure in domestic contracts and found that the alleged undisclosed savings were known to the applicant and were not significant in the circumstances.

The court also rejected arguments that the applicant did not understand the contract or signed under duress, noting his high level of education and experience.

The evidence demonstrated that the parties had comparable financial positions and maintained separate assets consistent with the agreement.

The court concluded the marriage contract was valid and enforceable.

The plaintiffs, Ian and Kent Hawkins, brought a motion to remove the estate trustees (their brother Carl and brother-in-law Garry) appointed under their late father's will, alleging a conflict of interest due to ongoing litigation over the estate's primary assets.

The plaintiffs also sought to prevent the trustees from controlling access to the deceased's former solicitor's file.

The court dismissed the motion, finding that the heavy onus to remove estate trustees was not met, as there was no evidence that the trustees' continuation in office would inevitably impede the proper administration of the estate.

The court also held that concerns regarding access to the solicitor's file could be adequately addressed through the ordinary rules of civil procedure, though the court ordered the action to be case managed.