Quinn Giordano

The court considered a summary judgment motion by Arista Homes (Boxgrove Village) Inc. for forfeiture of a deposit after a failed real estate transaction.

The defendant, Ding Ding, sought relief from forfeiture.

The court applied the test for relief from forfeiture, finding the deposit proportionate and no unconscionability.

The motion was granted and the deposit forfeited to Arista.

The court considered whether a United States gift tax liability arising from a 2009 transfer of Florida property by the deceased, Carolyn Alexander, was a just debt of her Ontario estate.

The applicant, Carrie Lynn Dyjack, sought the court’s direction after paying the tax and related expenses personally.

The court found that the U.S. Gift Tax was a proper liability of the estate, rejecting the respondent’s arguments that the tax was not intended to be paid from the estate, that it was a “charge” payable by the beneficiary under the Succession Law Reform Act, or that it was unenforceable in Canada.

The court ordered the estate to reimburse the applicant for the tax and related expenses.

The decision addresses claims for dependant’s support under Part V of the Succession Law Reform Act by Elena Nikitina (alleged common-law spouse) and Rosa Maria Huynh (adult child) against the estate of Cong Hoanh Huynh.

The court found that Ms. Nikitina was not a common-law spouse and thus not entitled to support, but that Rosa was a dependant and entitled to a lump-sum support payment.

The judgment provides a detailed analysis of the legal and factual requirements for establishing cohabitation and dependency, and the quantum and duration of support for adult children.

This decision addresses three motions: the defendants' motion to dismiss the action for delay and discharge a certificate of pending litigation, the plaintiff's cross-motion to compel discovery and strike the defense, and the defendants' motion for security for costs.

The court dismissed the defendants' motions, finding that the plaintiff's delay was not inordinate or inexcusable, particularly given the defendants' own defaults in discovery obligations.

The court granted the plaintiff's motion, ordering the defendants to provide an affidavit of documents and attend examinations for discovery within a set timetable.

The motion for security for costs was also dismissed, emphasizing the serious nature of the allegations of fraudulent asset stripping.

The applicant sought directions in an application to set aside her mother's will for incapacity and undue influence, and to contest a property transfer.

The motion was adjourned on consent, but the applicant's request for specific adjournment terms, including freezing a condominium property, was denied.

The court criticized the applicant's counsel for unilateral scheduling, lack of civility, and overreaching demands, ordering the applicant to pay the respondents' costs thrown away.

The applicant and respondent are siblings disputing the estate of their late father.

The respondent, named as Executrix, claimed the deceased's only asset was a joint bank account that passed to her by right of survivorship.

The court found the respondent failed to rebut the presumption of resulting trust and held the account on trust for the deceased.

The court further found the respondent breached her fiduciary duties to the deceased and the applicant by misappropriating over $155,000 from the deceased's accounts, largely to fund a gambling addiction.

The respondent was ordered to pay damages to the applicant representing his half of the misappropriated funds and the date-of-death account balance, plus full indemnity costs.

This is a costs endorsement following an appeal where the appellant, Linda Palichuk, was entirely unsuccessful on all issues, including an application for leave to appeal a Superior Court costs order.

The appellant had persisted in seeking a guardianship order for Nina Palichuk despite an expert report confirming Nina's capacity.

The respondents were entirely successful.

The court, considering Rule 57.01 of the Rules of Civil Procedure, ordered costs payable to each respondent.

Linda Palichuk appealed a Superior Court decision that found her mother, Nina, capable of managing her affairs and executing various instruments (will, powers of attorney, property transfer), refused a guardianship order, and dismissed Linda's undue influence claim as hypothetical.

The appeal also challenged an order removing Linda from Nina's bank account and a costs award against Linda.

The Court of Appeal dismissed the appeal, upholding the finding of capacity, affirming that undue influence claims regarding a living, capable person's executory instruments are premature and hypothetical, and upholding the costs award.

The defendant brought a motion to enforce a settlement reached on the eve of trial regarding an estate dispute over a property.

The plaintiffs argued there was no binding agreement as certain terms were not finalized, and disputed the calculation of 'net proceeds of sale', specifically regarding capital gains tax and sale expenses.

The court found that the Minutes of Settlement constituted a binding agreement and enforced it, holding that the objective interpretation of the agreement required the deduction of capital gains tax and shared expenses to determine the net proceeds.

The defendants moved to set aside a Certificate of Pending Litigation (CPL) granted ex parte to the plaintiff.

The CPL was registered on title to a property owned by the defendants.

The plaintiff's underlying claim alleged that the defendants fraudulently replaced his stepfather's will to divert estate proceeds.

The plaintiff sought the CPL because the property was the only known asset to satisfy a potential judgment.

The court granted the motion and discharged the CPL, holding that a CPL requires the proceeding to involve a triable interest in the land itself, which the plaintiff conceded he did not have.

The applicant sought a declaration that a property transferred by the deceased mother to the respondent son was held in a resulting trust for the estate, and an order requiring the respondent to pass accounts.

The court found that the presumption of resulting trust was rebutted by evidence showing the mother intended to gift the property to the respondent, who had lived with and cared for her.

The request to pass accounts was dismissed as statute-barred and unfair due to an eight-year delay, though the respondent was ordered to provide a sworn statement of the deceased's assets at the time of death.

The applicant, Robert Miller, in his capacity as both the deceased's spouse and Estate Trustee, sought an order to transfer a property (175 Ridge Road West) to himself, relying on a provision in the deceased's will (Paragraph XI) that allowed the Estate Trustee to allocate assets to satisfy Family Law Act (FLA) claims.

The respondents, the deceased's siblings and beneficiaries of the property, argued that the applicant had not elected under the FLA and was therefore deemed to be taking under the will, rendering Paragraph XI inapplicable.

They also asserted a conflict of interest.

The court agreed with the respondents, finding that Paragraph XI was not triggered as no FLA claim had been made and that the applicant was in a clear conflict of interest by attempting to transfer the property to himself.

However, the court granted the applicant a six-month extension to file an FLA claim, concluding that his prior inaction stemmed from a misunderstanding of the will's provisions and that he should have the opportunity to make an informed election.

Following the dismissal of the applicant's applications to remove the respondent as an estate trustee and compel the closing of a real estate transaction, the court determined costs.

The court found that the applicant's unilateral actions necessitated the litigation and that he should be personally liable for costs, rather than the estate.

The respondent was awarded costs fixed at $15,000 plus disbursements and HST on a partial indemnity basis.