COURT OF APPEAL FOR ONTARIO

CITATION: Lockhart v. Lockhart, 2021 ONCA 807

DATE: 20211112

DOCKET: C68973

Fairburn A.C.J.O., Roberts J.A. and Van Melle J. (ad hoc)

BETWEEN

Barbara Lockhart personally and in her capacity as attorney for property of June Lockhart

Applicant/Moving Party/Responding Party (Respondent)

and

Robert Lockhart personally and in his capacity as attorney for property of June Lockhart

Respondent/Responding Party/Moving Party (Appellant)

and

June Lockhart personally and in her capacity as named Estate Trustee of the Estate of Frank Lockhart, deceased, and Christine Lockhart

Respondents

Counsel:

Robert Lockhart, acting in person

Matthew Rendely and Bryan Gilmartin, for the respondent

Jacob Kaufman, for the Estate Trustee, CIBC Trust

Heard and released orally: November 8, 2021 by video conference

On appeal from the order of Justice Bernadette Dietrich of the Superior Court of Justice, dated December 11, 2021.

REASONS FOR DECISION

[1] These proceedings arise out of the administration of the estate of the late Frank Lockhart. The appellant and the respondent are siblings and were appointed as attorneys for property for their nonagenarian mother, June Lockhart, the widow of their father, Frank Lockhart, who has been found incapable of managing her property.

[2] The appellant and respondent brought motions that were heard at the same time but disposed of by the application judge in two separate orders. Among other issues, they dealt with: 1) the question of whether their father had made a will subsequent to his 1974 Will, that, according to the appellant, disinherited their mother; and 2) whether an election should be filed on behalf of their mother, under s. 6(1) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), to take an equalization amount as opposed to the benefits provided to her as sole beneficiary under her late husband’s 1974 Will, and to extend the time for doing so.

[3] In her October 14, 2020 judgment, the application judge allowed the respondent’s motion, appointed CIBC Trust as Estate Trustee, and declared that the 1974 Will of Frank Lockhart was his last will and testament. The appellant has not appealed the October 14th judgment.

[4] The application judge dismissed the appellant’s cross-motion in her December 11, 2020 order, which the appellant appeals. The respondent raised a threshold issue about the appellant’s standing to appeal, which we do not accept. As a party to the proceedings before the application judge, the appellant has standing to appeal.

[5] Returning to the merits of the appeal, the application judge rejected the appellant’s submission that there was a possibility that his father had made a subsequent will in which he had disinherited the appellant’s mother and that the appellant needed more time to find it. Based on the evidence of the extensive but ultimately fruitless efforts that had been carried out, the application judge was satisfied on a balance of probabilities that there was no subsequent will and that the likelihood of one is “very remote”. She also found that the appellant had failed to show that it would be in the best interests of Mrs. Lockhart, as sole beneficiary under the 1974 Will, to make an election under s. 6(1) of the FLA. She was concerned that any further delay in the administration of the Estate was unfair and to Mrs. Lockhart’s prejudice alone.

[6] As a result, the application judge determined there was no basis to order the FLA election or to extend the time for Mrs. Lockhart to make the election past the existing deadline of January 31, 2021.

[7] The appellant maintains that the election or his other requested alternative remedies are necessary to protect his mother from disinheritance under the subsequent will allegedly made by his late father. He also seeks leave to appeal the costs award made against him in favour of the respondent.

[8] The appellant argues that the application judge erred in her treatment of the evidence, her failure to provide reasons, and her refusal to entertain his requested alternate relief.

[9] We do not agree. All the appellant’s arguments stem from his disagreement with the application judge’s findings of fact that are firmly grounded in the record and were open to her to make, in particular, her findings that there was no subsequent will and the 1974 Will was Mr. Lockhart’s last will and testament. Essentially, the appellant is asking this court to retry the matters before the application judge. That is not our task. We see no error in the application judge’s careful and thorough reasons and decision.

[10] We also see no merit in the appellant’s allegations of bias against the application judge. They are groundless.

[11] The appeal is therefore dismissed.

[12] With respect to costs, we find no error in the application judge’s costs order that would displace the high deference owed to her exercise of discretion. Her findings underpinning her costs award are amply supported by the record. Leave to appeal costs is granted sparingly. There is no basis to grant leave here.

[13] The respondent is entitled to her costs from the appellant in the amount of $20,000, inclusive of disbursements and applicable taxes, to be paid within 30 days by the appellant personally.

“Fairburn A.C.J.O.”

“L.B. Roberts J.A.”

“Van Melle, J. (ad hoc)”