Lou-Anne Frances Farrell

Following a decision determining that a foster child was not entitled to share in an intestate estate, the court determined the issue of costs.

The applicant estate trustee was awarded full indemnity costs payable from the estate, as the application was necessary for the proper administration of the estate.

The successful respondent was awarded partial indemnity costs payable by the unsuccessful respondent, with the balance of his full indemnity costs payable by the estate, as the litigation between the respondents was adversarial and did not engage public policy considerations.

The applicant trustee sought directions on the distribution of an intestate estate.

The deceased died without a spouse, issue, or parents, leaving his estate to be distributed among his siblings.

The respondent, a former foster child of the deceased's adoptive parents, claimed entitlement to share in the estate as a 'sister'.

The court held that under the Children's Law Reform Act and the Succession Law Reform Act, a foster child who was never legally adopted does not meet the definition of a 'child' or 'sister' for the purposes of intestate succession.

The foster child was therefore excluded from sharing in the estate.

The respondent Penelope Provost was successful on a motion to transfer the proceeding from London to Chatham and sought her costs on a substantial or full indemnity basis.

The applicant and other respondents opposed, arguing for no costs or costs in the cause due to divided success and reasonable conduct.

The court found no reprehensible conduct to justify an elevated scale and fixed costs on a partial indemnity basis at $2,500, payable in the cause by the applicant and one respondent jointly and severally.

This appeal concerned the interpretation of a will's bequest of a home.

The application judge had determined the interest was a licence and the condition that the beneficiary "live in the home" was void for uncertainty, leading to the entire bequest failing.

The Court of Appeal found that the application judge erred in characterizing the interest as a licence rather than a life interest.

It upheld the finding that the "no longer living in the house" condition was a condition subsequent and was void for uncertainty.

Consequently, the gift of the home subsists as a life interest without the uncertain condition.

The respondent brought a motion to transfer the applicant's estate litigation proceeding from London to Chatham.

The court applied the holistic approach under Rule 13.1.02(2) of the Rules of Civil Procedure and found that the respondent established Chatham was a significantly better venue, given that all parties and the subject property were located in Chatham-Kent, and related proceedings were already commenced there.

The motion to transfer was granted.

The respondent's additional requests to appoint a case management judge and direct a case conference were adjourned as premature pending a scheduled consolidation motion.

The applicants, executors of the deceased's estate, moved for directions regarding the procedure to determine the validity of the deceased's 2015 Will.

The respondent, a daughter excluded from the Will, objected to its validity, alleging lack of testamentary capacity and undue influence.

The court found that the respondent failed to meet the minimal evidentiary threshold to require the Will to be proved in solemn form, as her claims were based on bald allegations and speculation.

The court directed the applicants to proceed to probate.

The estate trustee brought an application for directions regarding a will that granted the respondent a 'home' for his 'lifetime' or until he was 'no longer living' there.

The court had to determine whether the will granted a life estate or a licence, and whether the condition of 'no longer living' in the home was void for uncertainty.

The court found that the will granted a licence to occupy the home, not a life estate.

Furthermore, the condition subsequent 'no longer living' was found to be void for uncertainty.

Because the interest was a licence, the failure of the condition subsequent caused the entire gift to fail, and the property was ordered to be sold with proceeds going to the residual charity beneficiary.

This protracted estate litigation involved an application by Richard Belanger seeking to refer various estate administration issues, including those related to a "butterfly transaction" to a retired judge, Mr. McGarry, for arbitration or reference.

A responding motion by Judith Olivastri sought to dismiss Belanger's application.

The court found that the "Agreement in Principle" between the siblings contemplated a court-directed reference, not arbitration, and that the condition precedent for this agreement (CRA approval of the butterfly transaction) had not been met.

Furthermore, the agreement to refer issues to Mr. McGarry was limited to "outstanding applications and motions" at the time of the agreement, which did not include disputes about the butterfly transaction itself.

The court also clarified that a motion for summary judgment (Rule 20) or to stay/dismiss an action (Rule 21.01(3)(c)) is not applicable to applications.

Belanger's application was dismissed.

Two actions were tried together regarding the estate of the deceased.

The plaintiff daughter sought a declaration that the deceased's will was valid, while the defendant husband sought the return of personal property and funds misappropriated by the daughter using a power of attorney.

The court found suspicious circumstances regarding the deceased's testamentary capacity due to a terminal brain tumour and paranoia.

The daughter failed to attend the trial or prove the will's validity, resulting in the will being declared invalid and the estate passing on intestacy.

The court also found the daughter misappropriated funds and property, ordering her to return the items, repay the funds, and rectifying title to a foreign property to reflect joint ownership.

The appellants, estate trustees, appealed a motion judge's order that they bear their own costs of an estate litigation settlement.

The appellants argued they were entitled to indemnification from the estate.

The Court of Appeal dismissed the appeal, finding that while estate trustees are generally entitled to indemnification for reasonably incurred legal costs, the appellants' dilatory and self-interested conduct in failing to make timely disclosure disentitled them to recovery from the estate.

The moving parties sought distribution of funds held in court to the estate trustee so that estate accounts could be passed.

The responding party opposed the motion and attempted, through his factum, to revive damages claims against the estate arising from lost income associated with estate rental properties.

The court held that the prior motion had been dismissed by the Court of Appeal and could not be reheard on a supplemented record because the matter was res judicata.

The funds were ordered paid out to the estate trustee in trust for the estate, while any remaining personal damages claim against the individual defendant could proceed to trial or by summary procedure.

The applicants and respondents, siblings, settled an estate litigation matter regarding their mother's estate and the respondents' actions as attorneys for property and estate trustees.

The settlement left the issue of costs to be determined by the court.

Both the applicants and the respondents sought their costs on a substantial indemnity basis.

The court found that the commencement of the application was reasonable and that the respondents had failed to adequately address the applicants' reasonable questions early on.

However, given the divided success in the settlement, the court ordered that each party bear their own costs.

The appellant estate trustee appealed a motion judge's order requiring the estate to pay damages to the respondent, who was the deceased's common law spouse.

The properties in question had been sold under power of sale after the respondent failed to make mortgage payments.

The Court of Appeal allowed the appeal and set aside the judgment, finding that the motion judge provided insufficient reasons for ordering the estate to pay damages that were previously ordered to be paid by the appellant personally, and for awarding damages for lost income after the properties were sold due to the respondent's default.

In an estate administration dispute, the court determined liability for costs following earlier reasons criticizing the conduct of the estate trustees.

The trustees had failed for several years to distribute a simple estate despite the assets being liquidated and ready for distribution, instead engaging in mutual blame and obstructive conduct.

The court rejected submissions that the estate should indemnify the trustees’ legal costs, finding that their disregard of fiduciary duties should not diminish the beneficiaries’ shares.

The court therefore ordered the trustees personally responsible for the applicant’s full indemnity costs.

Each trustee was directed to pay one-half of the award, with any shortfall payable personally.

An application was brought under rule 14.05(3) of the Rules of Civil Procedure and ss. 5 and 37 of the Trustee Act seeking the removal of two estate trustees.

The estate had remained undistributed for more than five years despite liquid assets, due to significant conflict and animosity between the co‑trustees which resulted in administrative paralysis.

The court found fault on both sides and concluded that continuation of the trustees would jeopardize the proper execution of the trust and the interests of the beneficiaries.

Both estate trustees were removed and a neutral succeeding estate trustee was appointed.

The former trustees were ordered to pass their accounts within 60 days.

Following a successful appeal by the Estate that dismissed the respondent's constructive trust action, the parties made submissions on the costs of the trial.

The Estate sought costs on a partial or substantial indemnity scale.

The respondent argued she was impecunious and noted the trial judge's undisturbed finding that the deceased intended to benefit her.

The Court of Appeal exercised its discretion to make no costs award for the trial, citing the respondent's financial position and the deceased's unfulfilled but legally unenforceable promise.

Following a successful appeal that reversed the trial judgment, the Court of Appeal received written submissions regarding the appropriate award of trial costs.

The court awarded trial costs to the successful appellant in the fixed amount of $25,000, inclusive of disbursements and GST.

The respondent, a real estate appraiser, was disciplined by the appellant professional institute.

He successfully sued the appellant at trial, arguing that the discipline process was procedurally unfair because he was not granted a hearing before the Investigating Committee.

The Court of Appeal allowed the appeal, finding no breach of the implied contractual duty of fairness.

The Investigating Committee's role was merely to recommend charges, not to impose sanctions, and the respondent was given an opportunity to respond in writing during the investigation.

The plaintiff and the deceased cohabited for 23 months before the deceased's sudden death.

The deceased had promised to transfer his RRSPs to the plaintiff if they were still living together, but died before changing his will or signing a cohabitation agreement.

The trial judge awarded the plaintiff $1,750,000 based on a constructive trust arising from unjust enrichment.

The Court of Appeal allowed the estate's appeal, finding no unjust enrichment because the benefits the plaintiff received outweighed her contributions.

The court also held that a constructive trust was inappropriate as monetary damages would have sufficed and there was no link between her contributions and the RRSPs.

The Court of Appeal for Ontario issued an endorsement regarding costs and the calculation of interest following its judgment on an appeal and cross-appeal.

The court clarified that interest on excessive management compensation should be calculated at the lower of the presumptive rate under the Courts of Justice Act or the prevailing chartered bank prime lending rate, using a floating rate for simple interest.

Due to divided success on the appeal and cross-appeal, the court ordered that each party bear their own costs.