Karen J. Hagman

The appellants appealed a motion judge's decision refusing to remove the respondent as estate trustee and interpreting a hotchpot clause in the deceased's wills.

On appeal, the appellants conceded the motion judge's interpretation of the hotchpot clause was correct, but argued the judge erred by not addressing the disposition of holding company shares and by failing to remove the trustee due to a conflict of interest.

The Court of Appeal dismissed the appeal, finding the share disposition issue was not properly before the court and the motion judge's refusal to remove the trustee, along with her practical directions to address conflict concerns, was entitled to deference.

The applicant, the 85-year-old mother of the deceased filmmaker Charles Herbert Officer, sought extensive financial and corporate disclosure from various respondents to support her application for dependant support under the Succession Law Reform Act.

The respondents, including the estate trustee, the deceased's former partner, and business associates, had already provided significant financial disclosure, including tax returns, bank statements, and a business valuation.

Justice Faieta dismissed the applicant's motion for further disclosure, finding the requests overbroad, unnecessary, and lacking proportionality, with minor exceptions consented to by the Estate Trustee.

The application was also dismissed on consent against several professional respondents.

The applicant, Ronald Shiomi, sought a declaration that he was a dependant of the deceased, Anna Maria Tocheri, and that she failed to make adequate provision for his support under the Succession Law Reform Act.

The court found that after a 53-year common law relationship, the deceased’s will, which left the applicant only personal and household effects and the residue to five charities, did not make adequate provision for his support.

The court ordered that 50% of the net estate be paid to the applicant and the remaining 50% be divided among the five named charities.

The court also awarded the applicant $15,000 in costs, plus disbursements and HST, to be paid by the estate.

Maria Sophia Furtado, a tenant and caregiver to the deceased Endel Lindaja, sought an ownership interest in his condominium based on an alleged promise, unjust enrichment, or dependant support under the Succession Law Reform Act.

The Estate Trustee, Tonu Peep Tosine, sought a declaration of ownership, an order for Furtado to vacate, and occupation rent.

The court dismissed Furtado's claims for dependant support and unjust enrichment, finding she was not a "dependant" and there was a juristic reason for any enrichment (free room and board for services).

The court declared the condominium wholly owned by the Estate.

However, the court also dismissed the Estate Trustee's claims for Furtado to vacate and pay occupation rent, finding she remained a tenant and any termination or rent claim must comply with the Residential Tenancies Act.

The estate trustee sought directions regarding the administration of an estate and the sale of a property bequeathed to a common-law spouse.

The central issue was whether a clause in the will, stating "It is my wishes that when KELLY CHRISTIANSEN HASSETT sells/otherwise dispose of the Home, twenty (20%) percent of the proceeds shall form part of the residue of my estate" created a legally binding trust or merely a moral obligation.

The court applied the "armchair rule" for will interpretation and found that the language used was precatory, creating only a moral obligation, not a trust.

Consequently, the estate trustee could not compel the sale of the property based on this clause.

The court ordered costs for both parties to be borne by the estate due to the ambiguity in the will.

This appeal concerned the rectification of a will.

The Estate Trustee sought to rectify the will of the deceased, John Ihnatowych, to exclude his biological son from a prior relationship and that son's children, arguing John intended to benefit only his children from his marriage and their offspring.

The application judge granted rectification, finding the will did not accurately reflect the testator's instructions to his lawyer.

The appellants (the biological son and his children) appealed, arguing the judge applied an incorrect test for rectification and misassessed the evidence.

The Court of Appeal dismissed the appeal, affirming that the application judge correctly applied the test for will rectification, which permits correction when a testator's instructions are not carried out.

The court distinguished the test for rectification of agreements from that of unilateral wills and found the evidence of the testator's clear instructions to his lawyer was sufficient to support the rectification.

The applicant, Ulana Olha Gorgi, as sole Estate Trustee, sought to rectify the Last Will and Testament of John Ihnatowych to limit the beneficiaries of the residue and grandchildren clauses to his biological children, Ulana and Markian, and their children, thereby excluding Alexander Erik de Berner and his children, who claimed to be the deceased's biological issue and grandchildren.

The court found that the drafting solicitor failed to accurately reflect the testator's clear instructions, which consistently indicated an intent to benefit only Ulana and Markian and their children.

The application for rectification was granted, and the Notice of Objection filed by the de Berner Respondents was removed.

The applicant challenged the validity of her late mother's 2019 will, which left the estate to a defunct charity and appointed a neighbour's daughter as estate trustee.

The application was uncontested.

The court found the will invalid due to suspicious circumstances, including the deceased's documented brain injury and lack of capacity since 2012.

The court declared an intestacy, appointed the applicant as estate trustee, and allowed the estate to be processed as a small estate despite being marginally over the financial threshold.

The father brought a motion seeking an order requiring the mother to pay her proportionate share of their son's AAA hockey registration costs for the 2022-2023 season.

The mother conceded that AA hockey expenses for their other son were extraordinary expenses but argued that AAA hockey expenses were not.

The court dismissed the motion, finding that the father had covered the AAA expenses for the past six years, indicating he could reasonably afford them without contribution from the mother, and thus failed to meet the test under section 7(1)(f) of the Federal Child Support Guidelines.

Following a successful summary judgment motion dismissing the plaintiff's claim, the defendants sought full indemnity costs of $84,327.60.

The court found that while the claim was not explicitly vexatious, the lack of evidence to support the plaintiff's position warranted an award of substantial indemnity costs to express the court's disapproval.

Applying the principle of reasonableness, the court reduced the requested amount and fixed costs at $40,000 inclusive of HST and disbursements.

Following success on a summary judgment motion, the defendants sought costs to be awarded personally against the plaintiff's lawyer, Mr. Brian MacIvor, under Rule 57.07(2).

The court clarified that such a request cannot be satisfied by usual costs submissions and requires a formal motion supported by affidavit evidence, allowing the solicitor to respond.

The court outlined the two-part test for personal costs against a solicitor, requiring that costs be incurred unnecessarily and that the court exercise its discretion.

The request for personal costs was dismissed in the context of the costs submissions, with the court directing the defendants to bring a proper motion if they wished to pursue the matter.

The father and mother brought motions regarding temporary parenting arrangements for their two children.

Both parents consented to joint custody and agreed on each other's parenting ability.

The father sought an order for a s. 30 assessment under the Children's Law Reform Act and counselling for one child.

The mother opposed the assessment and increased access, arguing the current 10-4 schedule was the status quo.

The court found the 10-4 schedule was unilaterally imposed and not the true status quo.

The court ordered temporary joint custody with equal parenting time on a "week on/week off" schedule and a s. 30 assessment, but declined to order counselling given ongoing play therapy.