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.

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 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.