M.J. Sweatman

The applicant brought a guardianship application regarding one of the respondents, which was dismissed.

The respondents sought costs.

The court found no reason to depart from the normal rule that costs follow the event.

The court awarded partial indemnity costs to the respondents, fixing the costs at $56,224.11 for one respondent and $44,000 for the other, payable by the applicant in three instalments.

Two competing applications were brought by family members.

The applicant daughter applied for guardianship over her 90-year-old mother and challenged the validity of her mother's new will, powers of attorney, and the transfer of her home to her other daughter, alleging undue influence and lack of capacity.

The mother applied to remove the applicant daughter as a joint account holder on her investment account.

The applicant daughter moved to consolidate the applications into an action requiring a trial.

The court found that the mother's capacity was the controlling issue and could be decided on the application record without a trial.

Relying on expert psychiatric evidence and the mother's own testimony, the court concluded that the mother had the requisite capacity to manage her property and personal care, grant powers of attorney, make a will, and make an inter vivos gift.

Because the mother had capacity and the impugned instruments were executory, the court declined to direct a trial on the issue of undue influence.

The applicant daughter's application was dismissed, and the mother's application to remove the applicant daughter from the joint account was granted.

The applicant (Saad Elias in the main application) sought an order declaring his mother incapable of managing property and appointing his brother as guardian.

The respondent (Daad Abdulwahid in the main application) brought a motion for security for costs against Saad Elias, who resided in California and had no assets in Ontario.

The court found that Saad Elias failed to demonstrate impecuniosity and that his underlying application for guardianship was devoid of merit, particularly regarding the existence of a valid power of attorney and the lack of evidence for misuse of funds.

The motion for security for costs was granted.