Court File and Parties

CITATION: Pegahmagabow v. Deschenes, 2007 ONCA 624

DATE: 20070913

DOCKET: C46661

COURT OF APPEAL FOR ONTARIO

LASKIN, MOLDAVER and LAFORME JJ.A.

BETWEEN:

ROBERTA ANN PEGAHMAGABOW Applicant (Appellant)

and

VICTOR DESCHENES, RAYMOND DESCHENES, ROGER DESCHENES and AARON DESCHENES Respondent (Respondent in Appeal)

Counsel: D. Andrew Thomson for the appellant Linda Waxman and Elizabeth Seo for The Children’s Lawyer

Heard and endorsed: September 12, 2007

On appeal from the judgment of Justice J. Stephen O’Neill of the Superior Court of Justice dated January 15, 2007.

APPEAL BOOK ENDORSEMENT

[1] While we agree with the appellant that the principle in Re Craig was not directly applicable, we are nonetheless satisfied that it was open to the trial judge to consider the testator’s intention as circumstantial evidence supportive of the presumption that the will was destroyed by him with the intention of revoking it. It was also open to the trial judge to find, as he did, that the appellant had failed to provide a reasonable explanation for the loss of the original will.

[2] Accordingly, the appeal is dismissed.

[3] The Children’s Lawyer is not seeking costs. The appellant is seeking her costs out of what can only be described as a “modest” estate. The appeal turned essentially on findings of credibility made against the appellant and involved no significant or new legal issues. Accordingly, we would not award costs to the appellant.