Jerome J. Bergart

Following an order declaring the respondent incapable of managing property and appointing a guardian, the parties sought costs.

The court determined that the applicant, whose application initiated the process, and the section 3 counsel appointed for the incapable person, were entitled to their costs.

The court ordered that the costs of the applicant on a partial indemnity basis and the section 3 counsel on a full indemnity basis be paid out of the incapable person's estate.

Following a motion concerning the passing of accounts and issues arising from competing powers of attorney over an incapable person's finances, the court addressed costs.

The underlying dispute was characterized as a personal sibling conflict that unnecessarily escalated into litigation regarding the management of the incapable person's property and personal care.

The court declined to award costs to either of the feuding siblings, finding that neither should benefit from litigation driven by personal animosity rather than the incapable person's best interests.

However, the incapable person, represented by counsel appointed under s. 3 of the Substitute Decisions Act, was granted full indemnity costs.

Those costs were ordered payable equally by the two siblings personally.

In a guardianship proceeding under the Substitute Decisions Act involving competing powers of attorney and a dispute between siblings, the applicant sought orders compelling the respondent attorney to pass accounts, appointing an interim guardian of property, and adjournment of the guardianship application pending the accounting.

The court held that the motion was premature because documentary disclosure remained outstanding and cross-examinations had not yet occurred.

While attorneys are fiduciaries required to maintain and provide accounts under s. 32 of the Substitute Decisions Act, the evidentiary record was incomplete and untested.

The court directed the parties to exchange financial records and proceed with cross-examinations before seeking further relief.

Following a family law trial, the court determined the issue of costs after the successful party had made multiple offers to settle for amounts less than the ultimate judgment.

The court found that the trial was unnecessary in light of the earlier offers and that the successful party was therefore entitled to substantial indemnity costs for preparation and attendance at trial.

Because the moving party failed to provide docket details with the original costs submissions, the court independently calculated allowable hours for trial and preparation.

The court fixed legal fees, law clerk time, and disbursements and applied HST to the approved legal fees.

The parties lived in an unmarried domestic arrangement and jointly operated several motel properties over many years.

Following their separation, the plaintiff claimed an interest in the properties based on unjust enrichment and a joint family venture.

The court found that the parties operated as a partnership, contributing equal effort and capital.

The plaintiff was awarded a 50% interest in the Fairview Motel, a 50% share of the proceeds from the sale of the Queensway Motel, a 25% interest in the Hillcrest property, and reimbursement for joint funds unilaterally withdrawn by the defendant.

The plaintiff's claim for spousal support was dismissed.

The applicant sought to set aside a marriage contract entered into with the respondent shortly after their marriage.

The contract provided for a regime of separate property and a waiver of spousal support unless the marriage lasted at least ten years.

The parties separated after three and a half years.

The applicant argued the contract should be set aside under section 56(4) of the Family Law Act due to lack of financial disclosure, failure to understand its nature and consequences, and unconscionability.

The court found that while the respondent failed to disclose significant assets, the applicant had independent legal advice, understood the contract, and there was no duress or unconscionability.

The court declined to exercise its discretion to set aside the contract.

The court also dismissed the applicant's claim to set aside the spousal support waiver under section 33(4), finding no unconscionable circumstances.

The appellant appealed his conviction and sentence for possession of stolen property.

He raised issues regarding the voluntariness of his statement to police, a warrantless search, trial judge interference, the jury charge on recent possession, and the trial judge's answer to a jury question about a missing witness.

The Court of Appeal dismissed the conviction appeal, finding no errors by the trial judge that undermined the fairness of the trial.

Leave to appeal the conditional sentence was granted, but the sentence appeal was dismissed as there was no error in principle.