Richard P. Startek

The applicants in an estate litigation matter brought a motion to remove the respondent Estate Trustee's counsel of record.

The applicants alleged bad faith, a conflict of interest arising from the lawyer's past marriage to the applicants' sister and past representation of two applicants, and the likelihood that the lawyer would be called as a witness at trial.

The court dismissed the motion, finding no disqualifying conflict of interest, no risk of misuse of confidential information, and no real basis to believe the lawyer would likely provide material evidence at trial.

Following a two‑day motion concerning spousal support, the court determined the appropriate quantum of costs.

The applicant was successful on key issues including retroactive support and disclosure, and the respondent had failed to provide timely financial and medical disclosure and unilaterally terminated support payments.

Although the applicant argued that her earlier offer to settle triggered full‑recovery costs under Rule 18(14) of the Family Law Rules, the court held that the offer did not strictly meet the rule’s requirements.

Nevertheless, the offer was found to be a genuine effort to settle and relevant under Rule 18(16).

Considering the factors under Rule 24 of the Family Law Rules, including success, reasonableness of positions, and the respondent’s litigation conduct, the court ordered substantial indemnity costs.

The respondent husband brought a motion to change a 2008 final order to terminate his spousal support obligation after he retired for health reasons.

The applicant wife brought a cross-motion for a retroactive increase in spousal support, discovering that the husband had obtained new employment shortly after the 2008 order and earned significantly more income than he had disclosed for several years.

The court found that the husband's failure to disclose his increased income constituted a material change in circumstances warranting a retroactive increase.

The court ordered the husband to pay $34,000 in retroactive spousal support.

However, accepting that the husband had validly retired and currently lacked the ability to pay, the court reduced ongoing spousal support to zero effective January 2015.

Following dismissal of an estate application concerning whether funds in a joint bank account formed part of the deceased’s estate, the court addressed costs.

The respondent had successfully rebutted the presumption of resulting trust by establishing that the joint account was intended to operate as a trust benefiting specified beneficiaries rather than the estate.

The court held that no Rule 49 offer engaged substantial indemnity consequences and that partial indemnity costs were appropriate.

Costs were fixed at $21,289.68 inclusive of disbursements and HST.

The court also directed payment from security for costs and permitted a set‑off against trust funds otherwise payable to the applicant.

The estate trustee applied for a declaration that funds in a joint bank account between the deceased and the respondent formed part of the estate.

The respondent argued the account was created with a right of survivorship and that he held the funds to distribute according to the deceased’s instructions to specific beneficiaries.

Applying the presumption of resulting trust from Pecore v. Pecore, the court examined contemporaneous documents, handwritten notes, and surrounding circumstances to determine the deceased’s intention.

The court concluded that the deceased intended to use the joint account as an estate planning tool, creating a trust in which the respondent would distribute funds to the deceased’s granddaughter, alma mater, and son.

The presumption of resulting trust was rebutted and the funds were not estate property.

Following the consent dismissal of all claims in a family law proceeding between a surviving spouse and the estate of the deceased spouse, the court determined the respondent estate’s entitlement to costs.

The surviving spouse had commenced litigation seeking spousal support, equalization, and other relief relating to matrimonial property after discovering that the deceased spouse’s estate left him no inheritance.

Although the court acknowledged circumstances that contributed to the dispute, including actions by the estate trustee and uncertainty surrounding asset values, the claims ultimately failed and the estate was the successful party.

Applying Rule 24 of the Family Law Rules, the court found the respondent entitled to partial indemnity costs but reduced the amount sought as disproportionate to the value and complexity of the issues.

Costs of $50,000 plus HST and disbursements, together with $2,500 plus HST for the costs motion, were awarded.