Fabio Gazzola

A mother sought to garnish a discretionary trust (Henson trust) established for the benefit of the father of her child to enforce unpaid child support arrears exceeding $40,000.

The garnishees, who were the trustees and also the father's siblings, successfully defended the garnishment application on the basis that the discretionary nature of the trust placed all distribution decisions within the trustees' sole discretion, making the trust immune from garnishment.

The trial judge dismissed the mother's application.

This decision addresses the costs consequences of that dismissal, with the court declining to award costs to the successful garnishees despite the presumption in their favour.

A mother sought to garnish a discretionary trust established for the benefit of a non-paying support payor to enforce unpaid child support arrears exceeding $40,000.

The trust, known as a "Henson trust," was created by the payor's mother and placed full discretion over distributions in the hands of the payor's siblings as trustees.

The court held that the trust could not be garnished because the payor held no beneficial interest in the trust funds and the trustees owed no debt to the payor.

The court dismissed the garnishment notices, finding that discretionary trusts remain immune from garnishment for child support enforcement purposes.

The plaintiff, Frances Wedlake, brought a motion for summary judgment against the defendants, James Jeffrey Richey (a solicitor) and Tracey Ann Richey, concerning two loans made by Wedlake to Richey.

One loan was secured by a mortgage on the Richeys' home, and the other by a promissory note.

Richey had borrowed money from his client, Wedlake, in violation of the Rules of Professional Conduct.

Richey claimed the loans were defrayed by unbilled legal services and that Wedlake authorized the mortgage discharge.

The court found no evidence to support Richey's claims, deemed the alleged mortgage discharge authorization not genuine or improperly obtained without independent legal advice, and granted summary judgment in favour of Wedlake for the outstanding amounts on both the mortgage and promissory note, and ordered the mortgage reinstated.

Following two interim motions in an estate dispute, the court considered written submissions on costs.

Given the complex legal issues and contradictory affidavits, the court agreed with the estate trustee's counsel and reserved the issue of costs to the trial judge, who will be in a better position to finally determine the issues and any entitlement to costs.

The deceased's widow and the estate trustee brought competing motions regarding the administration of the estate.

The widow sought dependant's relief, interim support, preservation of section 72 funds received by the deceased's parents, and an order for the estate trustee to pass accounts.

The estate trustee sought directions to sell estate properties, including the matrimonial home, and to have the widow vacate the premises.

The court ordered an expedited trial of all issues, directed the estate trustee to pass her accounts, allowed the widow to remain in the matrimonial home and collect rent pending trial, permitted the estate trustee to sell other estate properties, and ordered $60,000 of the section 72 funds to be held in trust pending the trial.