Kimberly Ann Whaley

This decision concerns a motion under section 79 of the Substitute Decisions Act, 1992, regarding the capacity of Carol Jacqueline Black.

The Court orders that Ms. Black undergo a capacity assessment, with her medical records and related materials to be released to all parties and the assessor.

The Court addresses the history of the parties' disputes, the involvement of various professionals, and the need for independent legal representation for Ms. Black.

The ruling balances the privacy interests of Ms. Black with the need for a fair process and the protection of vulnerable persons.

At a case conference in a dependants' relief application, the applicants sought the summary appointment of an Estate Trustee During Litigation (ETDL).

The court adjourned the request to allow the responding party proper notice and an opportunity to be heard, noting that the respondent's counsel lacked instructions.

The court ordered the deposit of the will on consent and urged the parties to cooperate to avoid unnecessary costs in a small estate.

The Public Guardian and Trustee, acting as litigation guardian for an incapable person, brought a summary judgment motion against the incapable person's former attorney for property.

The attorney had transferred the incapable person's unencumbered residential property to himself in trust for his daughter for no consideration, subsequently sold it, and misappropriated funds from her bank accounts.

The court found the attorney breached his fiduciary duties and ordered him to pay damages of $2,550,000 for the property sale and $150,015 for the misappropriated funds, plus full indemnity costs.

Following the dismissal of an application challenging a will based on testamentary capacity, the court determined costs.

The applicant argued that public policy considerations in estate litigation justified having her costs paid by the estate.

The court rejected this argument, finding the applicant's concerns about capacity were unfounded and her disinheritance was rational.

The applicant was ordered to pay the successful respondent's costs on a partial indemnity basis, with any shortfall to be indemnified by the estate.

The applicant sought disclosure of medical and legal records relating to her late mother's estate, alleging suspicious circumstances and lack of capacity surrounding a 2015 will that disinherited her.

The executor provided evidence that the mother changed her will after discovering the applicant had improperly transferred joint investment accounts while acting as her attorney for property.

The court dismissed the application, finding the applicant failed to meet the minimal evidentiary threshold required to put the estate to the burden of proving the will in solemn form.

Following a trial regarding the validity of codicils to a will, the court determined the allocation and quantum of costs.

The Objectors, who unsuccessfully challenged the codicils on grounds of testamentary capacity and undue influence, argued that costs should be paid out of the estate.

The court applied a blended costs approach, ordering the Objectors to pay the successful parties' costs incurred after a second mediation, at which point the Objectors should have reassessed their position.

The court also significantly reduced the costs claimed by some of the successful parties due to duplication of effort and excessive docketing.

The applicant and respondent, siblings and joint attorneys for property for their incapable mother, disputed the administration of their late father's estate.

The applicant sought to appoint CIBC Trust as Estate Trustee to administer the estate under a 1974 Will, which left the residue to their mother.

The respondent opposed, arguing their father had made a later will disinheriting their mother, and sought an order compelling an election under the Family Law Act to protect her interests.

The court found no evidence of a later will despite extensive searches, dismissed the respondent's motion, appointed CIBC Trust as Estate Trustee, and declared the 1974 Will valid.

Costs were awarded on a full indemnity basis, capped at $125,000, payable by the respondent, the estate, and the mother.

This motion involved a dispute between a sister (applicant) and brother (respondent) over their mother's personal care and property.

The applicant challenged the validity of two Powers of Attorney (for Personal Care and Property) signed by their 89-year-old mother, June Lockhart, in 2018, which appointed the respondent brother as sole attorney.

The court found both 2018 Powers of Attorney void ab initio due to the mother's lack of capacity and the respondent's failure to prove capacity, as well as his actions in preventing a full capacity assessment and withholding the documents.

The court authorized both the applicant and respondent to make personal care and treatment decisions for their mother jointly under the Health Care Consent Act, 1996, dismissing the respondent's motion to validate the POA and exclude the applicant.

Costs were awarded to the applicant.

An appeal from a costs order against Legal Aid Ontario (LAO) as a non-party funder in a family law dispute.

The application judge found that LAO engaged in an abuse of process by failing to adequately monitor and assess the merits of the defence it was funding in a case involving a vulnerable individual.

The Court of Appeal allowed the appeal and set aside the costs award, holding that LAO's role as a statutory funder does not expose it to non-party costs awards absent evidence of bad faith or improper purpose, and that requiring LAO to monitor litigation would impermissibly invade solicitor-client privilege and frustrate the statutory legal aid scheme.

BMO Trust Company, as Estate Trustee and Guardian of Property, applied to pass its accounts.

The objector, Lillian Sawchuk, raised numerous objections, leading to a contentious hearing.

Following the judgment which passed the accounts with a minor reduction in BMO's compensation, the court heard submissions on costs.

The total costs claimed exceeded $300,000, disproportionate to the summary nature of the proceeding.

The court applied principles of reasonableness, fairness, proportionality, and access to justice, limiting the costs awarded to BMO, payable by Lillian Sawchuk, to $69,000 plus disbursements, finding that an award of the full amount would be excessive and unreasonable.

No other costs were awarded.

BMO Trust Company applied to pass its accounts for the Estate of Pauline Medynski and the Guardianship of Andrew Medynski.

The adult daughters of the deceased, particularly Lillian Sawchuk, raised numerous objections.

The court found some deficiencies in BMO's administration, including a failure to claim a $3,800 benefit and communication shortcomings.

While most objections were not monetarily quantifiable, the court ordered a modest reduction in BMO's compensation, specifically $3,800 plus a 6% reduction from the remaining compensation sought.

The court emphasized avoiding turning a passing of accounts into a full trial.

The appellants challenged the validity of the testator's 2010 wills on the basis of lack of testamentary capacity and undue influence.

The respondents successfully moved to dismiss the challenges on the basis that they were barred by the equitable doctrines of estoppel by representation and estoppel by convention.

The Court of Appeal allowed the appeal, holding that the equitable doctrines of estoppel do not apply to bar a challenge to the validity of a will.

The Court also held that an interested person does not have an automatic right under rule 75.01 of the Rules of Civil Procedure to require that a will be proved in solemn form, as the court retains discretion over whether and how a testamentary instrument is proved.

Competing motions arose regarding funding the care of an incapable elderly woman under the Substitute Decisions Act.

One child sought to increase a line of credit secured against the incapable person’s Toronto condominium to fund ongoing care, while other siblings sought an order to sell a Florida condominium allegedly jointly owned with one sibling.

The court held that the urgent need to maintain care justified extending the line of credit, while disputes concerning ownership, expenses, occupation rent, and tax consequences relating to the Florida property required further evidentiary determination.

A bifurcated hearing was ordered to resolve those issues before determining whether the Florida property should be sold.

The applicants sought judicial review of a school board's decision to close an elementary school due to declining enrollment.

The applicants argued the decision was procedurally unfair and that the board trustees exhibited a closed mind, raising a reasonable apprehension of bias.

The Divisional Court dismissed the application, finding that the board substantially complied with its accommodation review policy, provided adequate disclosure, and afforded the community a meaningful opportunity to participate.

The court also held that the trustees' conduct, viewed objectively, did not meet the 'closed mind' test for bias in the context of a policy-driven decision by elected officials.

Following an earlier order granting comprehensive directions concerning the administration of two related estates, the applicants sought costs.

The applicants had successfully obtained an order requiring, among other things, preservation of estate assets and directions relating to the administration of the estates and the conduct of attorneys acting under a power of attorney.

The court found that the responding estate trustees had taken unreasonable positions by refusing to provide an informal accounting and declining reasonable settlement efforts.

Applying the principles of proportionality and reasonableness under Rule 57.01, the court awarded full indemnity costs to the applicants.

Costs were ordered partly against the respondent trustees personally and partly payable from the capital of one of the estates.

The applicants brought a motion for an Order for Directions regarding the estates of Enrico and Ida Carfagnini.

They sought to consolidate the two actions, obtain a preservation order, compel the passing of accounts by Ida's attorneys for property, and order the disclosure of third-party solicitor and financial records.

The respondents opposed the consolidation and the preservation order for Enrico's estate.

The court granted the applicants' motion, ordering the consolidation of the actions, a preservation order for both estates, the passing of accounts, and the requested disclosure, finding that the issues in both estates were intertwined and raised significant concerns.

In contentious estate litigation, the applicant brought a broad motion seeking numerous procedural and substantive orders relating to the administration of an estate, production of records, and interim support.

The court found the litigation had become highly acrimonious and expensive, warranting active case management and intervention to regularize the proceedings.

Orders were made requiring the respondents to pass accounts, appointing an estate trustee during litigation, compelling production of medical and solicitor records relevant to testamentary capacity, permitting amendment of the application to determine the deceased’s last will, and directing an organized exchange of productions.

The court also granted the applicant an interim funding order from the estate for legal expenses.

Contempt motions brought by both sides were dismissed.

The applicant, a common‑law spouse of the deceased, brought a motion within a dependant’s support application under Part V of the Succession Law Reform Act seeking interim legal fees and expert disbursements payable from the estate.

The estate trustees opposed the request, arguing that the applicant had sufficient income following an interim support order and that a non‑dissipation clause limited the estate’s ability to fund litigation.

The court reviewed the equitable jurisdiction to award interim costs and the criteria from Okanagan Indian Band requiring financial need, a prima facie meritorious claim, and special circumstances.

The court found the applicant financially constrained, facing significant legal expenses, and advancing a meritorious claim for dependant’s relief following a lengthy common‑law relationship.

Interim costs of $50,000 on a partial indemnity basis and up to $10,000 for expert valuation disbursements were ordered payable from the estate, subject to accounting and possible adjustment by the trial judge.

The appellant appealed an order finding him estopped from objecting to legal accounts paid by the Estate Trustee.

The appellant argued the motions judge erred by determining the substantive issue of estoppel during a first appearance for a motion for directions, depriving him of the opportunity to present evidence.

The Divisional Court agreed, finding the motions judge should have resolved the conflict respecting the draft orders giving directions rather than deciding the substantive issue.

The appeal was allowed, the order was set aside, and the matter was referred back to the Estates List.

The appellants appealed a judgment of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding ample support in the record for the motion judge's conclusion that the appellants had failed to comply with previous court orders.

Costs were awarded to the respondent in the amount of $7,500.