Ellen Ann Brohm

The applicant, Alan Durand, as Estate Trustee for Helen and Zsolt Molnar, brought a motion seeking a "Benjamin" order to distribute Helen's estate as if a beneficiary (Kata Kovacs) had predeceased Helen, and a declaration that Zsolt's Tax-Free Savings Account (TFSA) beneficiary designations were invalid due to undue influence or lack of capacity.

The court declared the TFSA designations invalid due to undue influence, finding they were made during a period when Zsolt was under undue influence from his former house cleaner.

The court also appointed Alan Durand as Estate Trustee for Helen Molnar.

However, the request for a "Benjamin" order was adjourned, as the applicant had not yet made sufficient efforts to locate the beneficiary or her issue.

The moving parties sought a stay of a Superior Court order for the sale of real property, pending appeal to the Court of Appeal for Ontario.

The underlying order stemmed from an application under the Substitute Decisions Act concerning the alleged mismanagement of an incapable person's financial affairs by her attorneys.

The Court applied the three-part RJR-Macdonald test for a stay.

It found that the moving parties failed to demonstrate a serious question to be tried, as they had no plausible grounds of appeal, having failed to attend the lower court hearing or properly engage with the court's powers under the Substitute Decisions Act.

Furthermore, they did not establish irreparable harm, as they did not reside at the property and had minimal financial investment.

The balance of convenience favored the responding party, as the property's maintenance was depleting the incapable person's assets.

Consequently, the motion for a stay was dismissed, and costs were awarded to the responding party.

This decision addresses a refusals motion and an adjournment application brought by George Volk in the Ontario Court of Appeal.

The underlying dispute involves litigation under the Substitute Decisions Act, 1992, concerning the property of Doris Volk.

Darlene Mussato and Felicia Kowalski, who are appealing an earlier order for the sale of a jointly-owned home, brought a motion to stay that order.

During cross-examination on an affidavit supporting the stay motion, Felicia Kowalski refused to answer several questions.

The court granted George Volk's refusals motion in part, compelling Felicia Kowalski to answer specific categories of questions in writing, and adjourned the stay motion to allow for compliance and further submissions.

The defendants moved for summary judgment to dismiss the plaintiff's claim alleging undue influence over the deceased's will and beneficiary designations, and a claim for compensation for services.

The court found no genuine issue requiring a trial, determining that the plaintiff failed to provide corroborating evidence for undue influence or an agreement for compensation, and that the compensation claim was statute-barred.

The motion for summary judgment was granted, and the claim was dismissed.

The guardian of an incapable person brought a motion to vary a prior guardianship order that had been made on consent, seeking to change a provision requiring placement in a long‑term care facility in the Hamilton area to permit placement in Barrie.

The court held that consent orders are final and may only be set aside on grounds analogous to those for setting aside a contract, such as fraud or failure to reflect the parties’ true intention.

The evidence relied on by the moving party largely pre‑dated the original consent order and did not establish any change in circumstances.

The motion materials also failed to identify the proper statutory authority under the Substitute Decisions Act for a motion for directions.

The court dismissed the variation request without prejudice but granted a consent request to delete another paragraph of the prior order.

The appellant appealed a Small Claims Court order that transferred a debt action to the Family Court and stayed enforcement of a writ of seizure and sale on the basis that the claim arose from a cohabitation relationship.

The appeal judge held the order was final and therefore appealable.

The court found procedural unfairness because the transfer order was granted even though such relief had not been sought or argued on the motion.

Substantively, the claim was properly characterized as a debt claim within the monetary jurisdiction of the Small Claims Court and did not seek equitable remedies such as constructive trust, resulting trust, or unjust enrichment.

The order transferring the matter to Family Court was therefore set aside and the action remained within the jurisdiction of the Small Claims Court.

Following a prior decision allowing the applicant’s application in full and dismissing the municipality’s counter-application, the court determined the appropriate costs award.

The applicant sought over $55,000 on a full indemnity basis.

Applying Rule 57.01(1) of the Rules of Civil Procedure and the principles governing partial indemnity costs, the court considered the complexity of the issues, extensive affidavit evidence and cross‑examinations, the economic significance of the dispute, and adjustments required for overlapping work, calculation errors, and expert-related disbursements.

The court declined to award full indemnity costs and reduced certain fees and disbursements.

Costs were fixed on a partial indemnity basis in the amount of $38,799.91 payable within 30 days.