Marc E. Smith

The defendants, a real estate agent and his brokerage, brought a motion under r. 21.01(1)(a) of the Rules of Civil Procedure to dismiss the plaintiff estate trustee's action as statute-barred under s. 38(3) of the Trustee Act or s. 4 of the Limitations Act, 2002.

The action alleged that the defendants conspired to purchase property from a cognitively impaired deceased at below fair market value.

The court found the claim was statute-barred under the Trustee Act's strict two-year period and that fraudulent concealment could not toll the limitation because no concealment occurred after the deceased's death.

However, the court held that the limitation period was suspended under s. 7 of the Limitations Act, 2002 due to the deceased's alleged incapacity, and dismissed the motion.

Child protection proceeding under the Child, Youth and Family Services Act, 2017 in which the court was asked to make statutory findings as to whether the children are Indigenous within the meaning of the CYFSA and the federal An Act respecting First Nations, Inuit and Métis children, youth and families.

The respondent mother self-identified as First Nations and one child had a clearly established First Nation and Métis paternal lineage supported by extensive genealogical and historical documentation.

The court held that the two legislative schemes impose distinct evidentiary thresholds, with the Federal Act being more stringent than the CYFSA, and declined to find that a CYFSA finding automatically produces a Federal Act finding.

Applying the framework articulated in the prior related decision, the court found that the children's self-identification, ancestral connection, and sustained acceptance by and engagement with the modern Indigenous community in Ottawa satisfied the evidentiary requirements under both statutes.

This is an estate dispute involving five members of the Zuccarini family concerning the estate of the late family patriarch and the management of defendant corporations.

The plaintiffs allege undue influence by one defendant over the deceased and his widow, challenge the validity of wills executed in 2019, and seek an oppression remedy regarding corporate management.

The court addressed a motion to appoint a litigation administrator for the estate, which had been stayed pending proper constitution of the proceedings.

The court appointed a neutral third-party lawyer as litigation administrator and determined that the estate and corporate defendants should bear the costs of the administrator's fees.

The applicants sought production of solicitor-client privileged records from the deceased's lawyer and leave to examine the lawyer regarding legal services provided to the deceased in May 2021.

The respondent claimed solicitor-client privilege survived the deceased's death and was not subject to the wills exception.

The court found that the wills exception applied because undue influence and lack of capacity were central issues, the solicitor's retainer occurred during a critical window of estate planning, and the timing was closely related to suspicious testamentary documents executed while the deceased was hospitalized.

The court ordered production of the lawyer's file and permitted examination of the lawyer.

The court determined whether costs should be awarded against the main plaintiff, Hassan Salem, for an unproductive pre-trial conference and the adjournment of a six-week trial.

Salem failed to attend the fourth pre-trial conference scheduled for April 3, 2025, and his counsel was also absent due to a scheduling conflict.

Salem had terminated his lawyer's services shortly before trial.

The court found that the fourth pre-trial conference was unproductive and awarded immediate costs.

The court also assessed costs thrown away at twenty percent of the costs and disbursements incurred by the defendant and co-plaintiff, to be paid upon trial decision or full resolution of the matter.

The applicant mother sought proportionate sharing of respite care for their adult son with severe autism spectrum disorder and a monetary penalty for the respondent father's failure to comply with disclosure orders.

The respondent father opposed the motion and sought a capacity assessment for their son and interim parenting time.

The court imposed a $10,000 monetary penalty for chronic, untimely, and incomplete disclosure spanning six years, while adjourning the respite care, capacity assessment, and parenting time issues pending determination of the son's capacity to participate in proceedings.

The decision concerns whether withdrawals made by the respondent, Laura Giacomelli, from joint bank accounts shared with her late mother, Giuliana Buffa, constituted valid inter vivos gifts or were subject to a resulting trust in favour of the estate.

The court found that the respondent had rebutted the presumption of resulting trust and that the gifts were valid, not the result of undue influence or unconscionable procurement.

The application for a declaration and tracing order was dismissed.

The decision concerns an application by Sheetza McGarry to appoint an interim Estate Trustee and obtain directions regarding the validity of a purported 2016 will and irrevocable life insurance beneficiary designations in the estate of Brian William McGarry.

The court reviews the suspicious circumstances surrounding the will and insurance changes, the renunciation of the named executors, and the positions of interested parties and non-parties.

The court refuses to dismiss the application, finds the applicant has met the evidentiary threshold to challenge the will, and appoints neutral third parties as Estate Trustees During Litigation (ETDLs).

Directions are given for the administration of the estate and the production of legal files.

This costs decision follows the dismissal of both the plaintiff’s action and the defendant’s counterclaim in a dispute over a right-of-way between neighbouring commercial properties.

The Canadian Dental Hygienists Association (CDHA) sought costs for both the trial and a prior motion.

The court found that CDHA was the successful party and awarded it $35,000 in costs, all-inclusive, payable by Ms. Layton.

The decision reviews the relevant legal principles, including the discretion of the court under the Courts of Justice Act and the factors in Rule 57.01 of the Rules of Civil Procedure, and applies the cost limits under the Simplified Procedure.

The defendant, Samantha Robinson (carrying on business as Postering Ottawa), brought an anti-SLAPP motion under section 137.1 of the Courts of Justice Act to dismiss a defamation action brought by Diffusart International and Marc Agostini.

The court found that while Robinson’s expressions related to a matter of public interest, the plaintiffs’ claim had substantial merit and Robinson did not have valid defences.

The court concluded that the harm to the plaintiffs outweighed the public interest in protecting Robinson’s expression, and dismissed the anti-SLAPP motion without costs.

The plaintiff, Home Trust Company, brought a motion for summary judgment against the defendants, Adrian Campbell and Louise Miner, seeking payment of an outstanding debt, possession of a property, leave to issue a writ of possession, post-judgment interest, dismissal of the counterclaim, and costs.

The court found the defendants in default, granted the plaintiff’s motion, dismissed the counterclaim as frivolous and vexatious, and awarded costs to the plaintiff.

This simplified trial concerned a dispute between neighboring commercial properties regarding the scope of a right-of-way over a laneway and associated damage claims.

The plaintiff sought a full right-of-way and damages, while the defendant asserted a limited right-of-way and counterclaimed for damages.

The court found that the right-of-way was limited to a partial section of the laneway as established by a Land Titles Act order, rejecting claims for a full prescriptive easement or expansion based on by-laws or nuisance.

All damage claims from both parties were dismissed due to mutual fault in escalating the dispute and a lack of proven financial loss.

The applicant mother sought a parenting order for the respondent father to care for their adult special needs child on alternate weekends, or for the father to contribute to respite care costs.

The father argued the motion could not proceed until the adult child was heard, relying on J.F.R. v. K.L.L. The court found that a parenting order for an adult child requires a determination of the child's capacity and an opportunity for the child to be heard, as per J.F.R. v. K.L.L., but that a child support order for a Section 7 expense would not necessarily trigger the same requirement.

The motion was adjourned pending a capacity determination for the adult child.

The defendant, Denise Lee Downing, brought a motion under Rule 2.1.01 of the Rules of Civil Procedure to dismiss the civil action initiated by the plaintiffs, Bernard Sparr and D’Vine Estates Sarl.

The plaintiffs' action sought substantial damages, alleging economic harm due to the defendant's false testimony in a prior family law proceeding.

The court found that the plaintiffs' civil action was an indirect attempt to re-litigate issues already decided in the family court, where the plaintiff Sparr had previously appealed unsuccessfully and had been declared a vexatious litigant.

The court concluded that the action constituted an abuse of process and granted the defendant's motion, dismissing the plaintiffs' statement of claim.

The applicant brought an urgent motion seeking an order for their incapacitated 86-year-old mother to move into a memory care suite at a retirement residence, while one respondent advocated for a long-term care facility.

The court found no urgency and, to resolve the impasse between the siblings acting as powers of attorney, appointed the respondent who had primarily cared for the mother as the sole power of attorney for personal care regarding the mother's placement.

Additionally, the court ordered the sale of the mother's home, appointing the applicant as the sole power of attorney for property for the sale, subject to agreement on terms and disposal of personal property.

The applicant sought to terminate or reduce spousal support obligations, effective December 9, 2021, and a reimbursement of past support, or alternatively, a reduction and termination date.

The respondent argued no material change occurred and sought an increase or maintenance of current support.

The court found a material change in circumstances due to the applicant's retirement and health issues, but determined that spousal support should not terminate due to the respondent's disability and ongoing need.

The court ordered a lump sum payment of $125,000 from the applicant to the respondent for all past and future spousal support, emphasizing finality and financial clarity, and rejecting the respondent's higher lump sum request and the applicant's lower one.

The applicant mother sought the sale and equal division of a co-owned property with her son, the respondent.

The respondent brought a cross-motion seeking a declaration that the applicant's interest was held in trust for him and a transfer of title without consideration, arguing unjust enrichment.

The court dismissed the applicant's request for sale, finding her conduct malicious, oppressive, and vexatious, and that a sale would result in unjust enrichment for her.

The court declared the applicant's 50% interest in the property to be held in constructive trust for the respondent and ordered its transfer to him.

The respondent's claim for damages related to the applicant's refusal to refinance was dismissed due to his delay in seeking relief.

The respondent, Octave Tshiani-Levine, brought a motion to change a final order, seeking a reduction in ongoing child support due to undue hardship and claiming overpayment of child support, while disputing arrears.

The applicant, Lanie Hormillosa, sought retroactive arrears and ongoing child support.

The court found a material change in circumstances but rejected the respondent's undue hardship claim due to insufficient financial disclosure and lack of corroborating evidence for his medical condition.

The court awarded the applicant $34,383 in child support arrears and $717 per month in ongoing child support.