Peter M. Callahan

Antonio, an estate trustee and beneficiary, sought to extend timelines to exercise an option to purchase an estate property, citing COVID-19 related impediments.

The co-estate trustees (applicants) opposed and brought a cross-motion to proceed with the sale of the property and for Antonio to pay occupation rent.

The court dismissed Antonio's motion, finding insufficient evidence that COVID-19 genuinely prevented him from complying with the prior consent order.

The court granted the applicants' request to list and sell the house without Antonio's involvement due to his conflict of interest and ordered Antonio to pay occupation rent of $2,000 per month to the estate.

The applicants' request for further disclosure orders against Antonio was dismissed, as some disclosure had been made, and any deficiencies would require a separate motion.

The plaintiff brought a motion to set aside a Registrar's Order dismissing her action for delay.

The action, claiming $12,000,000 in damages arising from a border crossing incident, was dismissed after a series of miscommunications and missed deadlines regarding a discovery plan.

The defendants opposed the motion, arguing prejudice because the plaintiff had recently been diagnosed with dementia and could not be examined on her claims for emotional distress.

The court applied the four-part test for setting aside a dismissal order and found that the delay was adequately explained by inadvertence and missteps by multiple parties.

The court concluded that the prejudice to the plaintiff of losing her entire action outweighed the prejudice to the defendants regarding the examination, and set aside the dismissal order.

Appeal from a trial judge's costs order denying costs to the successful defendant in a will challenge.

The defendant's father left his entire estate to her.

The plaintiffs (her brothers) sued to set aside the will, alleging suspicious circumstances, lack of testamentary capacity, and undue influence.

The trial judge dismissed all claims as statute-barred under the Limitations Act, 2002, and alternatively found the will valid based on established testamentary capacity and absence of undue influence.

Despite the defendant's complete success, the trial judge awarded no costs, citing the defendant's misleading evidence regarding conversations with her father's doctor.

The Court of Appeal found the trial judge erred in law by focusing almost exclusively on one aspect of misleading evidence while ignoring the defendant's complete success on all substantive issues and failing to consider relevant factors such as settlement offers and trial complexity.

The creditor, RZCD Law Firm LLP, brought a motion seeking to enforce a notice of garnishment against the garnishee, IBM Canada Ltd., for an outstanding debt owed by the debtor, Victor Brian Choo-Shee-Nam.

The creditor asserted that the garnishee failed to remit payments as directed and did not serve a garnishee's statement.

The garnishee argued that the original notice of garnishment did not apply to the debtor's subsequent period of re-employment and that garnishment proceedings were stayed by a consumer proposal.

The court dismissed the creditor's motion, finding that the garnishee was not obligated to file a garnishee's statement within 10 days as it initially remitted payments, nor was it required to provide notification when the debtor's employment ended.

Crucially, the court held that the original notice of garnishment did not apply to the debtor's re-employment period due to Rule 60.08(13)(b), which excludes debts arising from employment commencing after the notice is served.

In this matrimonial appeal, the husband challenged a motion judge's order allowing the wife to amend her notice of motion to request a set-off of costs and interest owed by the wife against accumulated spousal support and costs owed by the husband.

The motion judge set off $331,533.54 against $479,130.91, resulting in a net amount of $147,597.37 owing from the husband to the wife.

The husband argued that set-off was not available in law and usurped the jurisdiction of the Family Responsibility Office.

The Court of Appeal dismissed the appeal, finding that the amendment was appropriately allowed under the Family Law Rules and that set-off was available under section 111 of the Courts of Justice Act.

This endorsement addresses a motion brought by the applicant, Delia Joan Berta, seeking to compel further financial disclosure from the respondent, Raymond Louis Berta, in the context of his motion to change a final spousal support order.

The court ordered the respondent to produce various financial documents, including bank statements, credit card statements, line of credit statements, loan applications and rejection notices, corporate minute books for specific entities, and proof of car loan payoff.

However, the court declined to order further disclosure related to the respondent's expert witness, finding no reasonable grounds to suspect interference with the expert's independence, as per the test in Moore v. Getahun.

The motion was allowed in part, with no costs ordered due to divided success.

Two consolidated appeals from Superior Court orders in a family law matter.

The first appeal (C63096) concerning the striking of the appellant's pleadings was found to be moot as the order had been stayed and the trial proceeded.

The second appeal (C64255) challenged the trial judge's final order following trial, including findings of non-disclosure by the appellant, an unequal division of family property (75% to the respondent), and the denial of spousal support.

The Court of Appeal upheld the trial judge's findings and dismissed both the appeal and cross-appeal.

Concetta Angeloni, through her litigation guardians, successfully moved for directions, an accounting of her deceased husband's management of her property under a Power of Attorney, and an accounting of his estate assets by the Estate Trustee, Maria Lugonia.

The court also granted orders to prohibit dissipation of estate assets and compel document production and examinations.

This endorsement addresses the costs of these motions, which were awarded to the applicant on a substantial indemnity basis due to the respondents' unreasonable delays and failure to respond to settlement offers.

The appellant mortgagee sought to enforce a mortgage through power of sale against the respondent mortgagor.

The mortgagee attempted two purported sales of the property to itself.

The trial judge dismissed the mortgage action, finding that the mortgagee's enforcement rights were suspended under section 22 of the Mortgages Act due to failure to provide proper mortgage statements in response to the mortgagor's requests.

The Court of Appeal upheld this decision, holding that the mortgagee's ability to enforce the mortgage was statutorily suspended at the time of both purported sales because it had not complied with the requirement to provide accurate and complete mortgage statements within 15 days of the mortgagor's requests.

The plaintiff bank brought a motion for summary judgment to collect on an overdraft facility and a personal guarantee signed by the individual defendant.

The defendant argued non est factum, claiming he was misled by a bank representative into believing no personal guarantee was required.

The court granted summary judgment, finding no genuine issue requiring a trial, as the defendant was careless in signing the document and the bank's statements did not amount to a material misrepresentation.

The applicant, a dependent spouse residing in a long-term care facility, brought a motion for directions and preservation orders against her deceased husband's estate and its beneficiaries.

The deceased had previously severed the joint tenancy of their matrimonial home using a Power of Attorney, sold the home, and transferred funds to himself and his niece (the Estate Trustee).

The court ordered the Estate Trustee to provide an informal accounting of the deceased's management of the applicant's property, her own management of the deceased's property, and her actions as Estate Trustee.

The court also granted an injunction preventing the dissipation of estate assets and ordered the beneficiaries to pay into court any monies received from the deceased or his estate.

On appeal from a trial decision in a family law matter involving equalization, spousal support, and costs following a 27-year marriage.

The trial judge had ordered an equalization payment, spousal support at the low end of the Spousal Support Advisory Guidelines, and full indemnity costs against the wife.

The Court of Appeal affirmed the equalization payment but found errors in the spousal support calculation and costs award, returning both issues to the trial judge for reconsideration.

On the second appeal, the Court of Appeal corrected the wife's income calculation to account for tax implications and eliminated double-counting, resulting in a higher spousal support award.

The costs award was upheld as reasonable given the wife's conduct.

The defendants brought a motion to strike the plaintiff's defamation claim.

The plaintiff had sued the defendants for publishing an article in a Chinese language newspaper about her arrest for fraud, which was based on an RCMP press release.

The charges were later withdrawn.

The court found that the claim disclosed no reasonable cause of action because the publication of the fact of a criminal charge, even after withdrawal, does not support a defamation claim.

Furthermore, the Google translation of the article relied upon by the plaintiff demonstrated that the article accurately stated she faced prison 'if convicted'.

The claim was struck without leave to amend as it was frivolous and vexatious.

The Superior Court of Justice issued a costs endorsement following the dismissal of an action challenging a will.

The defendant, Constance McCron, sought substantial indemnity costs from the plaintiffs.

The plaintiffs argued for costs from the estate or that each party bear their own.

The court applied the modern approach to estate litigation costs, noting that while the plaintiffs had reasonable grounds to question the will's validity (suspicious circumstances, testator's susceptibility), their claim was ultimately statute-barred.

The defendant's request for costs was denied due to her misleading evidence regarding the testator's mental state.

Ultimately, the court ordered that each party bear their own costs.

The plaintiffs challenged the validity of Constantin Birtzu's 2006 will, alleging lack of testamentary capacity and undue influence by his daughter, Constance McCron, who was the sole beneficiary.

They also sought a constructive trust over property and an accounting of assets.

The court found the action statute-barred due to the expiration of the limitation period.

Despite this, the court proceeded to address the merits, finding that the defendants successfully proved testamentary capacity and that the plaintiffs failed to prove undue influence.

The court upheld the 2006 will and dismissed the action.

This costs endorsement followed a three-day trial in a family law matter.

The applicant sought costs against the respondent husband and his mother.

The court found the applicant largely successful on the major trial issues of equalization of property and spousal support.

The respondent husband was found to have engaged in unreasonable conduct, particularly regarding property disclosure and trial presentation, which necessitated extensive litigation.

The respondent mother's claim for costs against the applicant was dismissed, as her involvement stemmed from the respondent husband's lack of clarity.

The applicant was awarded partial recovery costs against the respondent husband.

The Ontario Superior Court of Justice reconsidered spousal support and costs following a direction from the Court of Appeal.

The Court of Appeal had found the trial judge's initial determination of the wife's income for support purposes unclear.

The trial judge, Harper J., was tasked with re-evaluating the wife's income, particularly regarding capital gains from a one-time share sale, and its impact on periodic spousal support, as well as reconsidering the costs award.

The court imputed an annual income of $282,119 to the wife based on the reasonable investment yield of her capital resources and pension income, and ordered the husband to pay $8,000 per month in spousal support.

The court also found the wife's conduct amounted to bad faith in driving litigation, leading to a substantial costs award against her, requiring her to pay $322,125.70 to the husband.

The parties separated after a 15-year arranged marriage.

The applicant sought equalization, retroactive child support, and spousal support.

The respondent claimed a large deduction for a promissory note to his father regarding the purchase of the matrimonial home, and argued he had a resulting trust interest in his mother's half of the home.

The court rejected the promissory note as unproven, drew an adverse inference from the respondent's failure to call his father, and found no resulting trust.

The court awarded the applicant an equalization payment of $181,909.96, retroactive child support of $11,352, and compensatory spousal support of $3,200 per month for 13 years, but denied retroactive spousal support.

The applicant sought payment of the outstanding balance under a promissory note after the respondents failed to make required quarterly instalment payments.

The proceeding was brought under Rule 14.05 of the Rules of Civil Procedure for determination of rights dependent on the interpretation of a contract.

The court held that the note required payment of the full $100,000 instalment on the first day of each quarter and rejected the respondents’ argument that payment could be completed anytime within the quarter.

The court further held that written notice of default had been provided and that the respondents failed to cure the default within the 30‑day notice period required to avoid the acceleration clause.

The entire outstanding balance therefore became immediately due and payable.

Following a nine‑day family law trial involving property division, equalization, spousal support, and divorce, the respondent sought full indemnity costs.

The court applied Rule 24 of the Family Law Rules and found that the applicant had engaged in unreasonable litigation conduct, including pursuing baseless allegations of fraud, excessive disclosure demands, and positions lacking legal merit.

The respondent had made early and later offers to settle that were as favourable as or better than the ultimate trial outcome and succeeded on all material issues.

Considering the applicant’s conduct and the settlement offers, the court ordered full indemnity costs in favour of the respondent.