Matthew A. Rendely

The applicants, children and attorneys for property and personal care of the respondent, sought a declaration that he is incapable and to be appointed his guardians.

The respondent, who has Alzheimer's disease, had moved in with a woman who isolated him and interfered with his care.

The court found the respondent incapable of making decisions regarding his shelter and incapable of instructing his section 3 counsel.

The court appointed the applicants as partial guardians for personal care with respect to shelter, granting them the power to apprehend the respondent, and issued a restraining order limiting the woman's access to him.

The respondent brought a motion to stay an application for dependent's support under the Succession Law Reform Act, arguing that the Ontario Superior Court lacks jurisdiction.

The applicants sought support from the estate of a deceased individual who was domiciled in Costa Rica at the time of death.

The court found that the deceased had established Costa Rica as his permanent domicile and that the presumptive connecting factors (existence of personal property and insurance trusts in Ontario) were insufficient to establish a real and substantial connection between the dispute and Ontario.

The application was permanently stayed for lack of jurisdiction.

The respondent sought substantial indemnity costs from the applicant following a consolidated application concerning beneficial ownership of a property, arguing he was the more successful party.

The applicant contended that both parties equally succeeded and lost, as neither established sole ownership and both were awarded an equal interest in the property, with no payments owed between them.

The court found that success was equally divided, as both parties failed in their symmetrical claims for sole ownership and related payments.

Consequently, the court ordered each party to bear their own costs of the consolidated application, and also declined to award costs for the costs submissions.

The applicant mother and her deceased daughter purchased a property as joint tenants in 1994.

The daughter lived in the property with her husband (the respondent) and children until her death in 2019.

Following the daughter's death, the mother claimed sole beneficial ownership by right of survivorship and sought occupation rent.

The respondent husband claimed the estate was the sole beneficial owner or, alternatively, a 50% owner as a tenant in common under s. 26(1) of the Family Law Act.

The court found that both the mother and daughter contributed to the purchase and neither established a resulting or constructive trust.

Because the property was a matrimonial home, the joint tenancy was deemed severed immediately before the daughter's death under s. 26(1) of the Family Law Act.

The property is held by the mother and the estate as tenants in common, each with a 50% interest.

Claims for unjust enrichment and occupation rent were dismissed.

The moving party respondent sought leave to appeal an order of Myers J. dated October 31, 2023.

The Divisional Court dismissed the motion for leave to appeal in writing.

Costs were fixed at $5,000 payable to the responding party/applicants and $5,000 payable to the respondents Hsin Hua Hsieh and Ying Ting Lin, for a total costs award of $10,000.

The applicant sought an order under s. 9 of the Estates Act to compel the deceased's lawyer to produce her file to determine if an unexecuted draft will could be validated under s. 21.1 of the Succession Law Reform Act.

The court considered whether this constituted an impermissible fishing expedition or breached solicitor-client privilege.

Given that the estate trustee did not oppose the relief and the primary beneficiary under the prior will consented, the court ordered the lawyer to produce the file relating to the deceased's 2022 estate planning.

The appellants, trustees of the Estate of Vincent Di Santo and the Vincent Di Santo 2003 Family Trust, appealed an order that permanently removed them and appointed CIBC Trust Corporation as replacement.

The original order also granted further interim funding to the respondent, Ottavio Di Santo.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's decision that permanent removal was sought and necessary.

The court upheld the motion judge's finding that the trustees' mindset had become intractable, they were in a position of conflict, acted unilaterally, or could not objectively exercise their discretion, thus meeting the high threshold of "clear necessity" for trustee removal.

The Court of Appeal heard three motions related to an ongoing appeal concerning the removal and replacement of estate and family trust trustees.

The Appellants (original trustees) sought a stay of the order removing them and appointing CIBC Trust Corporation.

The Respondent (Ottavio Di Santo) sought to lift a stay on a costs order and to quash or stay the Appellants' appeal.

The court granted the Appellants' stay motion, finding a serious issue, irreparable harm, and balance of convenience in their favour.

The Respondent's motions to lift the costs stay and to quash/stay the appeal were dismissed.

Costs were ordered payable from the 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.

The respondents brought a motion to remove the applicant's counsel, alleging a conflict of interest because counsel acted for the applicant personally, as Estate Trustee, and for the Estate, and arguing counsel might become witnesses.

The court dismissed the motion, finding that counsel acts for the Estate Trustee, not the Estate, and there was no evidence of a conflict or that counsel would need to testify.

The court also ordered the respondents to provide outstanding disclosure, pay $15,000 in costs thrown away for a previously adjourned hearing, and directed that any proceeds from the sale of a disputed condominium be paid into court.

The appellant appealed an order dismissing his cross-motion regarding the administration of his late father's estate.

He sought an extension of time to file an election under s. 6(1) of the Family Law Act on behalf of his incapable mother, arguing his father may have made a subsequent will disinheriting her.

The application judge found no evidence of a subsequent will and that an election was not in the mother's best interests.

The Court of Appeal dismissed the appeal, finding no error in the application judge's factual findings or costs award.

The appellant, Robert Lockhart, appealed a lower court order that declared Powers of Attorney (POAP and POAPC) he arranged for his mother, June Lockhart, void ab initio, and awarded costs to his sister, Barbara Lockhart.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that Robert had reasonable grounds to believe June was incapable of granting the POAPC, thus negating the presumption of capacity under the Substitute Decisions Act, 1992.

The costs order was also upheld.

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.

The applicants, estate trustees of the late Ellen Kates, sought to propound codicils executed in August 2011.

The objectors challenged the codicils on the grounds of lack of testamentary capacity and undue influence, citing the testator's diagnosis of moderate Alzheimer's disease.

The court found that despite the cognitive impairment, the testator understood the nature and effect of the codicils, the extent of her property, and the claims of those excluded.

The court also found no evidence of coercion or fraud amounting to undue influence.

The codicils were admitted to probate.

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.

Following the dismissal of the applicant's motion for reconsideration of a Rule 49 application, the respondent law firm sought costs.

The applicant argued that as a self-represented law firm, the respondent was not entitled to costs without proving lost opportunity costs.

The court agreed there was no evidence of lost opportunity costs, precluding a partial indemnity award.

However, exercising its general discretion under section 131(1) of the Courts of Justice Act, the court awarded nominal costs of $750 to the respondent to discourage inappropriate litigation behavior.

The applicant sought reconsideration of an order dismissing her Rule 49 motion to enforce a settlement agreement regarding a solicitor-client fee dispute.

The court dismissed the reconsideration motion, finding no reason in the interests of justice to vary the previous decision.

The court also held that the Rule 49 motion failed on its merits because the applicant had not complied with the settlement terms, there was no meeting of the minds on the essential term of a release, and the court would exercise its discretion not to enforce the settlement.

Furthermore, the applicant was precluded from bringing the motion because she had elected to proceed with the assessment hearing rather than enforcing the settlement.

Christina Atkinson sought to enforce a settlement agreement with her former lawyers, Whaley Estate Litigation, regarding a fee dispute, pursuant to Rule 49.09 or common law.

Whaley Estate Litigation brought a cross-motion to dismiss the proceedings or transfer the matter to Small Claims Court.

The court found that both parties had elected to proceed with the fee dispute litigation before an assessment officer after settlement efforts failed, thereby repudiating the settlement agreement.

Consequently, neither party could enforce the settlement.

Both Ms. Atkinson's application and Whaley Estate Litigation's cross-motion were dismissed without costs.

This endorsement addresses an oral motion brought by applicants in four consolidated parentage applications involving assisted reproductive technologies (ART).

The motion sought to dispense with the Superior Court of Justice Practice Direction's requirements for formal notice and media notification regarding discretionary publication bans and sealing orders under s. 137(2) of the Courts of Justice Act.

The court considered the Dagenais/Mentuck test and the best interests of the child, finding that sealing orders are necessary to prevent serious risk to the proper administration of justice and to protect the privacy and dignity of the children, intended parents, surrogates, and their families.

The court concluded that the salutary effects of dispensing with notice and sealing the files outweigh any deleterious effects on public expression.