Rick Bickhram

Following the dismissal of the applicant's motion challenging the validity of her late father's will, the parties made written submissions on costs.

The respondent estate sought full indemnity costs of over $42,000, while the applicant argued costs should be paid from the estate.

The court found that the applicant failed to meet the evidentiary threshold to engage public policy exceptions that would justify costs being paid from the estate.

However, the court declined to award full indemnity costs, noting the applicant's allegations of undue influence were not mere bald assertions.

The applicant was ordered to pay costs on a partial indemnity scale fixed at $25,000.

The applicant, the deceased's daughter, sought directions under r. 75.06 of the Rules of Civil Procedure regarding the validity of her late father's 2024 will, which revoked a 2020 will and left virtually the entire estate to the respondent, his wife of fifteen years.

The applicant alleged lack of testamentary capacity due to serious health conditions and opioid medications, suspicious circumstances surrounding the will's preparation by a lay friend rather than a lawyer, and undue influence by the respondent.

The court applied the minimal evidentiary threshold from Neuberger Estate v. York and found that multiple witnesses confirmed the deceased was alert, coherent, and understood the contents of the will when he signed it.

The respondent successfully answered the allegations of suspicious circumstances and undue influence.

The application was dismissed.

This is an interim parenting motion concerning a ten-year-old daughter following the parents' separation in January 2022.

The case involves complex family dynamics including allegations of physical abuse by the father towards the seventeen-year-old son in April 2024, and the daughter's disclosure in August 2024 of sibling sexual abuse.

The mother sought sole decision-making authority and primary parenting time with a 90-day "black-out period" while the father sought sole decision-making authority and continuation of restricted parenting time for the mother.

The court rejected both proposals as contrary to the daughter's best interests and adopted a middle-ground approach, ordering joint decision-making with parenting coach support, expanded overnight parenting time for the mother, and therapeutic interventions including SAFE-T programming and family therapy.

The Estate Trustee During Litigation (ETDL) for the Estate of Marek Janusz Krol brought a motion to vary a prior order to permit the sale of the Cawthra property, citing financial inability to maintain the mortgage.

The Hermistons, who claim beneficial ownership of the property, opposed the motion and proposed alternative financing.

The court dismissed the ETDL's motion, finding insufficient new facts to vary the order, but ordered Joel Hermiston to pay all carrying costs of the property, allowing the ETDL to bring a new motion if costs are not met or refinancing fails.

The appellant appealed a summary judgment dismissing his claim to the proceeds of the sale of his brother and sister-in-law's matrimonial home.

The appellant claimed he advanced $700,000 for the down payment and held a beneficial interest via a trust declaration and oral agreement.

The Divisional Court upheld the motion judge's findings that there was no triable issue regarding the advanced funds, the oral trust violated the Statute of Frauds, and the written trust declaration was unconscionable and coerced from the respondent wife.

The appeal was dismissed with costs.

The appellant appealed two orders of a Family Court judge that directed the release of proceeds from the sale of a matrimonial property to the respondent and dismissed the appellant's claim for an equitable interest in the proceeds.

The Divisional Court raised a preliminary issue regarding its jurisdiction to hear the appeal.

The court determined that it had jurisdiction under s. 19(1)(a.1) of the Courts of Justice Act, as the orders under appeal were made only under provisions of an Act or regulation of Ontario, specifically the Family Law Act and the Family Law Rules, and did not involve federal legislation.

The appellant appealed orders of the Superior Court to the Divisional Court.

At the hearing, the court raised a preliminary question regarding its jurisdiction to hear the appeal under s. 19(1)(a.1) of the Courts of Justice Act.

The court adjourned the appeal sine die and directed the parties to provide written submissions on the jurisdictional issue and whether the appeal should be transferred to the Court of Appeal.

Following the dismissal of the applicant's claim for dependent relief and a finding that a foreign divorce decree was valid, the parties made written submissions on costs.

The respondents sought substantial indemnity costs of $84,000, while the applicant argued the estate should bear the costs.

The court rejected the applicant's argument that the estate should pay, noting the litigation was driven solely by the applicant.

The court awarded the respondents partial indemnity costs of $50,000.

The applicant sought a declaration that his 2015 Iranian divorce from his deceased ex-wife was invalid, and claimed dependent relief against her estate.

The deceased and their children were killed in the Flight 752 crash.

The court found the divorce was valid under the common law 'real and substantial connection' test, as both parties were born, raised, married, and operated businesses in Iran.

The applicant's alternative claim for dependent relief was dismissed because he failed to provide supporting evidence and was denied leave to split his case by adducing fresh evidence after cross-examinations.

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.

This decision addresses two related applications concerning the guardianship of Jiefu Kwok, who suffered a traumatic brain injury.

Derrick Kwok, Jiefu's son, applied to terminate his appointment as guardian for property and person, citing strained relations and difficulties in management.

Ellie Kwong, Jiefu's separated spouse, applied to be appointed as guardian in Derrick's place, with Derrick's support.

The Public Guardian and Trustee (PGT) requested the appointment of legal counsel for Jiefu Kwok under s. 3 of the Substitute Decisions Act, 1992, arguing that his capacity might have improved or that his wishes needed independent ascertainment, despite a prior court order of incapacity.

The court dismissed the PGT's request, finding it unnecessary and a waste of resources given the lack of dispute between family members, consistent medical evidence of Jiefu Kwok's continued incapacity, and Jiefu Kwok's expressed consent to Ellie Kwong's appointment in court.

Both applications for guardianship change were allowed.

This endorsement from a case conference addresses the management of two intertwined proceedings: a family law application (divorce, spousal support, equalization, trust claims) and a guardianship proceeding.

The court prioritized the family law application, scheduling a combined settlement and trial management conference.

It also addressed disclosure issues, compliance with previous orders (costs, property listing), and clarified the procedural nature of prior decisions.

The court declined to set a hearing date for the guardianship application at this time.

This endorsement addresses two motions and sets directions for a future case conference in two related proceedings: a family law application (FS-15-406705) and a guardianship proceeding (FS-17-21568).

The court reserved decision on the motions and outlined issues for the upcoming case conference, including the impact of the "deemed undertaking" rule on evidence and productions, and status reports on disclosure and mediation.

Counsel were directed to collaborate on a proposed order regarding the deemed undertaking rule.

The applicant, George Chuvalo, brought a family law proceeding.

The respondent wife argued that the proceedings should be stayed under s. 10(2) of the Divorce Act to allow for reconciliation.

The court held a trial on the threshold issue of whether the applicant had the capacity to decide to reconcile or divorce.

Relying on expert medical evidence, the court found that the applicant lacked the capacity to decide whether to reconcile, as he could not appreciate the consequences of such a decision.

The Public Guardian and Trustee was appointed as his litigation guardian.

The applicant wife sought to set aside a separation agreement after discovering the respondent husband had secretly mortgaged the matrimonial home with his mother, withdrawing most of its equity prior to separation.

The husband failed to participate in the proceedings, resulting in an undefended trial.

The court set aside the separation agreement due to the husband's material misrepresentation of his liabilities.

The court found the husband and his mother held the property on a resulting trust for the parties, and the wife had a constructive trust interest.

The husband's secret mortgage constituted a reckless depletion of family property.

The husband was ordered to pay the wife half the unencumbered value of the home plus full recovery costs.

The court held a case conference to determine next steps in a complex family law dispute involving multiple proceedings, including a guardianship application.

The core issues were whether the applicant husband had the capacity to instruct counsel and to seek a divorce, and whether the parties desired to reconcile under s. 10 of the Divorce Act.

The court ordered a five-day trial to determine these discrete issues of capacity and reconciliation, imposing time limits on the presentation of evidence and placing the burden of proof on the applicant husband.

The appellants appealed a summary judgment motion decision dismissing their defamation claim based on the description of the deceased as "divorced" on his death certificate.

The appellants argued that since the divorce was not final at the time of death, this description was defamatory.

The Court of Appeal upheld the motion judge's decision, finding that the words were not capable of being defamatory.

The court also rejected the appellants' motion for fresh evidence and declined to address the issue of whether the matter should have been transferred from estates court to the civil list, finding such discretionary matters better left to the Superior Court.

The Public Guardian and Trustee (PGT) brought a motion to set aside an ex parte order appointing it as Estate Trustee during Litigation for an intestate estate.

The PGT argued it should be a trustee of last resort and noted that it had not consented to the appointment, as required by the Public Guardian and Trustee Act.

The court found that appointing one of the disputing beneficiaries would escalate the conflict.

The court granted the motion, removed the PGT, and appointed a neutral estates lawyer as Estate Trustee during Litigation.

This was a costs endorsement arising from competing guardianship applications brought by two daughters concerning an elderly incapable parent with dementia.

After the guardianship issue settled on terms recognizing one daughter as attorney for property and personal care, the court held the moving party had not achieved the position advanced in her application and rejected her claim to success.

Applying Rule 57.01 and the authorities governing costs in capacity litigation, the court emphasized that costs must reflect the best interests of the incapable person and must not unduly deplete the incapable person's estate.

Although the responding party sought over $93,000 on a complete indemnity basis, the court reduced the claim as excessive and awarded $50,000 inclusive.

The award was ordered payable from the incapable person's property rather than personally by the moving party.

The applicant sought the court's direction on whether she properly exercised her right under a separation and trust agreement to purchase the trust's 50% interest in the matrimonial home.

The applicant relied on an appraisal valuing the home at $700,000, while the property subsequently sold to a developer for $1.35 million.

The court ruled in favour of the respondent trustee, finding that the actual sale price was the best indicator of fair market value and that the trustee acted properly to maximize the trust's interest.