Kearney v. Hill, 2017 ONSC 6306
CITATION: Kearney v. Hill, 2017 ONSC 6306
COURT FILE NO.: CV-16-552884
DATE: 20171023
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARY K. KEARNEY Plaintiff
- and -
CAROLYN LOUISE HILL Defendant
COUNSEL: H. Richard Bennett and Joseph Figliomeni, for the Plaintiff Justin W. de Vries and Gillian Fournie, for the Defendant Jeanine Tang, for Bank of Nova Scotia Trust Company, Estate Trustee for the Estate of Mary L. Kearney
HEARD: October 5, 2017
P. J. MONAHAN J.
REASONS FOR JUDGMENT
[1] There is widespread recognition of the fact that access to justice remains the most important challenge facing the justice system. As the 2013 Report of the Action Committee on Access to Justice in Civil and Family Matters, Chaired by former Supreme Court Justice Thomas Cromwell (the “Action Committee”) concluded, the civil justice system is too complex, too slow and too expensive, and is often incapable of producing just outcomes that are proportional to the needs of the people it is meant to serve.[^1]
[2] This litigation provides a window into the world of the contemporary civil justice system. Ostensibly, the system functioned as intended, in the sense that both parties were able to retain competent legal counsel of their choice to vigorously advance their respective interests and claims and eventually resolved the matters in dispute by voluntary agreement. In my view, however, this litigation reinforces the sobering conclusion that we still have considerable work to do if we aspire to the responsive and proportionate civil justice system called for by the Action Committee.
Factual Background
[3] The events that led to this dispute find their origins with Richard (“Richard”) and Mary L. Kearney (“Mary Sr.”) (collectively, “the Kearneys”), long-time residents of Thunder Bay, Ontario. In 1952, the Kearneys bought a property on Victor Street in Thunder Bay, where they later constructed their ‘dream home’ and raised two daughters, Mary K. Kearney (“Mary Jr.”) and Carol Hill (“Carol”). Although both Mary Jr. and Carol left Thunder Bay many decades ago (Mary Jr. now resides in Toronto while Carol resides in Loudon, Tennessee), Richard and Mary Sr. continued to live on Victor Street for over 60 years. Richard passed away in April 2014 at the age of 89 and Mary Sr. in August 2016 at the age of 92.
[4] Prior to her death, Mary Sr. had been diagnosed with Alzheimer’s dementia and, following hip surgery in 2015, had resided in a long term care facility in Thunder Bay. Back in July of 2013, Mary Sr. had executed powers of attorney (“POAs”) which appointed Carol as her attorney for personal care as well as for property. Carol exercised the powers pursuant to those POAs during the final period of Mary Sr.’s life. Carol, in consultation with Mary Sr.’s care providers, made the decision to move her mother into the long-term care facility in September 2015. It should also be noted that Mary Jr. had acted as attorney for property in relation to an account held by Mary Sr. at CIBC, pursuant to a POA executed by Mary Sr. in April 2014.
[5] Following Mary Sr.’s death in August 2016, the largest asset in her estate was the Victor Street property, valued at approximately $260,000, with her total estate being valued at approximately $800,000. Mary Sr.’s Last Will and Testament, executed July 3, 2013 (the “Will”), was a straightforward document of just over two pages. Because Richard had predeceased Mary Sr., the Will appointed Carol as Estate Trustee and, apart from small gifts to a grandson and granddaughter, divided the estate equally between Carol and Mary Jr..
[6] One might have assumed that the administration of such a simple estate would have been a straightforward, even routine matter. There was no ambiguity or issue regarding the validity of the Will, the property involved was not complicated or unusual, and it provided for equal shares to each of two adult daughters. Nevertheless, beginning in the months immediately prior to Mary Sr.’s death and for approximately eight months thereafter, Carol and Mary Jr. engaged in protracted and acrimonious litigation over a wide variety of issues, involving allegations of fraud, undue influence, mismanagement and misappropriation of assets, and damage claims in excess of $1.5 million dollars. By the time the parties came up for air in a mediation that took place in April 2017, Mary Jr. and Carol had managed to expend a combined total of over $400,000 on legal fees.
[7] Despite the acrimonious litigation, ultimately nothing ever came of the allegations of fraud, undue influence, misappropriation of funds, or damage claims. At the April 2017 mediation, the parties essentially put aside all these issues, consented to a passing of accounts by both Mary Jr. and Carol without compensation, and agreed to divide the assets in the estate equally, in accordance with the terms of Mary Sr.’s Will.
[8] The only remaining unresolved issue was entitlement to costs. The roadblock to achieving resolution on this issue arose from the fact that Mary Jr. had spent approximately $270,000 in fees and disbursements, while Carol had spent a comparatively more modest $150,000. Each claims indemnification from the other for their costs, the matter which falls to be decided on this motion.
Dispute over Victor Street Residence
[9] Following Mary Sr.’s hospitalization and subsequent move into a long-term care facility in 2015, the relationship between Mary Jr. and Carol began to deteriorate. Carol was of the opinion that it was unrealistic to expect that their mother would ever be able to move back into the Victor Street property. Since the Victor Street property was costly to maintain and difficult to insure, Carol was of the view that the property should be sold and the proceeds used to pay for Mary Sr.’s ongoing expenses.
[10] Mary Jr. on the other hand, was adamant that the residence not be sold. She indicated that Mary Sr. had a strong sentimental attachment to the property and that there was no urgency to sell it. Following an exchange of emails between the parties over the summer of 2015, Carol agreed that no further steps would be taken to sell the property without Mary Jr.’s agreement.
[11] In December 2015, Carol again suggested that the Victor Street property needed to be sold. She noted that the house was sitting unoccupied, was at risk of vandalism or damage, and was proving difficult to insure. She indicated that it was clear that their mother would not be returning to the house and indicated that her objective was to prepare the property for a sale in the spring of 2016.
[12] This provoked an extremely negative response from Mary Jr. In addition to instructing Carol that she should absolutely not sell the property, Mary Jr. questioned the validity of the 2013 POA appointing Carol as attorney for property, alleging that Carol had fraudulently persuaded Mary Sr. to sign the POA. Mary Jr. demanded that Carol delegate to her the authority to deal with the Victor Street property. There is no indication on the record that Carol responded directly to these allegations or demands.
[13] The relationship between the sisters deteriorated further in early 2016. In January 2016, Mary Jr. retained legal counsel, who advised Carol that Mary Jr. would be commencing litigation to have her removed as Mary Sr.’s attorney for property. On March 30, 2016, counsel for Mary Sr., on Carol’s instructions, wrote to Mary Jr. advising that the Victor Street residence would be sold and inviting Mary Jr. to remove any personal property from the residence which she wished to retain. Mary Jr. responded by indicating that the property could not be sold without her consent and that she intended to challenge the validity of the POA granting Carol authority to deal with Mary Sr.’s property.
Litigation between the Parties
[14] In order to prevent the sale of the house, on May 16, 2016, Mary Jr. commenced an action in which she alleged that Carol had mismanaged Mary Sr.’s affairs, claiming that Mary Sr.’s 2013 POA for property was invalid as it had been obtained by fraud or undue influence, and seeking damages of over $1.5 million. Mary Jr. also sought injunctive relief restraining Carol from dealing with the Victor Street property, as well as a full accounting from Carol of her activities as attorney for property. Mary Jr. further brought a motion on short notice for a certificate of pending litigation (“CPL”) with respect to the Victor Street property. Carol was not able to attend on short notice and on May 20, 2016 the CPL was issued and subsequently registered against the property.
[15] Carol then retained counsel who, on June 13, 2016, wrote to counsel for Mary Jr. with a view to settling the matter without the need for litigation (the “June 2016 Letter”). In an attempt to respond to Mary Jr.’s concerns that Carol has mismanaged or misappropriated Mary Sr.’s property, Carol offered to provide an informal accounting of her actions as attorney for property; should Mary Jr. be unhappy with the informal accounting, Carol was prepared to bring an application for a formal passing of accounts in order to have any issues in dispute determined by a court, including the validity of the 2013 POA for property.
[16] With respect to the Victor Street property, Carol reiterated that Mary Sr.’s doctors had strongly advised against Mary Sr. moving back into the home, since she was not in a position to live independently. Given that Mary Sr. would not be moving back into the house, and that maintaining it as a vacant property was a drain on resources, Carol remained of the view that the sale of the property was in Mary Sr.’s best interests. However, since Mary Jr. had expressed an interest in moving into the house herself, Carol offered to sell it to Mary Jr. for fair market value.
[17] In my view, the June 2016 Letter was a good faith and reasonable attempt to resolve matters and avoid the need for further litigation. However, rather than take up any of the suggestions made, counsel for Mary Jr. responded with further litigation. Mary Jr. filed two motions, the first on June 28, 2016, and the second on July 25, 2016, seeking a preservation order regarding the Victor Street property and all of its household contents, as well as an order compelling Carol to pass her accounts as attorney for property. (Although Carol had offered in the June 2016 Letter to pass her accounts, Mary Jr.’s motion material alleged that Carol had refused to provide a “full and proper accounting”.) In July, an interim preservation order with respect to the Victor Street property and its contents was issued pending argument of the motion on the merits, and a litigation timetable was established.
Death of Mary Kearney Sr.
[18] On August 3, 2016, Mary Sr. passed away at the Thunder Bay nursing home. Aside from the personal significance of her death for both Mary Jr. and Carol, the death of Mary Sr. had implications for the litigation that had been commenced by Mary Jr. In particular, upon the death of Mary Sr., Carol’s POA for property ceased to have effect and all of Mary Sr.’s property now passed to her estate. To the extent that Mary Jr. was challenging the validity of the POA, and seeking an order preserving the Victor Street property in accordance with Mary Sr.’s wishes, that relief was now at least arguably moot. In any event, one might have thought that the passing of Mary Sr. would have caused the parties to pause and reassess whether further litigation was necessary or whether there were other options that might fruitfully be pursued.
[19] Yet Mary Jr. and her counsel were apparently of a different view. The litigation timetable that had been set in July contemplated that Carol would file her statement of defence to Mary’s action by August 15, 2016. On August 8, 2016, just five days after Mary Sr.’s death and two days prior to her funeral, counsel for Mary Jr. wrote to counsel for Carol indicating that the existing litigation timetable remained in effect and that they “look forward to receipt of [Carol’s] responding and moving materials by next Monday, August 15, 2016.”
[20] Counsel for Carol replied the next day indicating that, as Mary Sr.’s funeral was scheduled for August 10, 2016, Carol would not be in a position to file material by August 15, 2016 and would require an extension to the original litigation timetable. It was also pointed out that Mary Sr.’s death brought Carol’s POA to an end and that all Mary Sr.’s property now formed part of her estate. Counsel sought clarification as to what relief Mary Jr. was seeking in light of these changed circumstances.
[21] Counsel for Mary Jr. responded on August 31, 2016 to the effect that, despite the fact that Mary Sr. had passed away, the issues raised in the litigation “remain very much real and relevant”. Counsel also indicated an intention to amend their materials to seek injunctive relief against Carol acting as estate trustee under Mary Sr.’s Will, and also seeking a finding of contempt against Carol on the basis that she had allegedly removed personal property from the Victor Street home in violation of court orders. Mary Jr.’s counsel complained that Carol had “unilaterally” chosen to extend her time to serve material by two weeks, and advised that Mary Jr. would be serving amended material by September 2, 2016. Carol was instructed to serve her responding material by September 9, 2016.
[22] Mary Jr.’s counsel promptly ignored their own timetable, failing to provide their revised material by September 2, 2016 as proposed in the August 31, 2016 letter. Instead, at 7:00 a.m. on Saturday, September 3, 2016, counsel for Mary Jr. wrote again objecting to the fact that they had not yet received any response to the August 31, 2016 letter. Counsel indicated that Carol’s statement of defence was “overdue” and set a new, earlier deadline of 4:00 p.m. on Tuesday, September 6, 2016 for receipt of Carol’s statement of defence. Failure to meet the new September 6, 2016 deadline would result in counsel for Mary Jr. moving to note Carol in default.
[23] Counsel for Carol responded on September 7, 2016 reiterating the fact that some additional time was required to file responding material in light of Mary Sr.’s death and proposing October 7, 2016 as a new filing date. Counsel also indicated that Carol was agreeable to appointing an institutional estate trustee for Mary Sr.’s estate, even though the Will named Carol as estate trustee, and suggested that RBC be appointed.
[24] Mary Jr.’s counsel failed to acknowledge Carol’s reasonableness in suggesting that an institutional trustee be appointed to administer Mary Sr.’s estate. Instead, Mary Jr. objected to RBC acting as estate trustee and requested that Bank of Nova Scotia be appointed. Mary Jr. also reiterated the requirement that Carol file her Statement of Defence by Friday September 9, 2016 (i.e., just two days later) and, absent immediate agreement to this deadline, counsel for Mary Jr. would be moving to note Carol in default.
[25] Counsel for Carol did not respond until the next day, explaining that her client was still grieving the loss of her mother and that a reasonable extension to the original filing dates was routine and should have been granted as a professional courtesy. This was to no avail as counsel for Mary Jr. had already moved to have Carol noted in default. On September 9, 2016, Mary Jr.’s counsel advised that Carol had been noted in default and proposed a series of conditions that would have to be met before consent would be granted to set aside the noting in default.
[26] Carol served her statement of defence on September 14, 2016. The remaining months of 2016 were taken up with various motions and the filing of many volumes of further materials by the parties. The matter came before Penny J. on December 15, 2016, who appointed Scotiatrust as estate trustee and set aside the noting in default against Carol. Penny J. further directed the parties to a case conference, which was held before Wilton-Siegel J. on January 22, 2017. On April 11, 2017, Carol and Mary Jr. attended at mediation, where they agreed, inter alia, as follows:
(a) The accounts of Mary Jr. and Carol would be passed on consent, with no compensation owing to either party;
(b) Mary Jr.’s action would be dismissed and she would remove the CPL on title to the Victor Street property;
(c) The Victor Street property and Mary Sr.’s car would be transferred to Mary Jr. at an agreed value of $260,000, and a corresponding payment of $260,000 would be made to Carol from the assets of the estate; and
(d) The issue of entitlement to costs of the litigation would be decided by way of a hearing before a judge of the Superior Court.
Costs Awards in the Context of Settlement
[27] The general rule is that where a proceeding is settled on all issues except for costs, the court is slow to make an award of costs against one of the parties. As Broad J. noted in Waterloo North Condominium Corporation No. 161 v. Redmond,[^2] there may be many motivating factors for parties to enter into settlements, and the reasonableness or unreasonableness of any party’s position may depend on a myriad of factors. It is extremely difficult for a court to attempt to parse the terms of a settlement after the fact in an attempt to discern ‘who won’; moreover, to embark on such an inquiry may chill future settlements, as parties may be reluctant to compromise their positions for fear that any such compromise might expose them to a later costs order. Further, as Myers J. noted recently in Muskala v. Sitarski,[^3] costs are an incident of the determination of the rights of the parties and are not themselves intended to be the subject of dispute.
[28] That said, it has also been observed that there may well be exceptional circumstances where, despite the fact that a settlement is reached, it may nevertheless be appropriate to make an award of costs.[^4] Here, both parties take the position that there are exceptional circumstances that justify a costs order against the other party.
[29] In considering whether there are exceptional circumstances that would justify a costs order, I regard it as significant that the April 2017 settlement was only made possible by virtue of the fact that the parties were able to defer the costs issue to a later adjudication. The parties settled all the substantive issues in dispute, in what had been extremely acrimonious and costly litigation. Yet, because of the significant disparity in the costs incurred by each of the parties, they were not able to achieve voluntary agreement on the matter of costs. In effect, deferring the issue of costs to subsequent adjudication operated as a safety value that permitted these parties to resolve their substantive differences.
[30] If the court now refuses to determine entitlement to costs, this would be inconsistent with the express agreement of the parties. Moreover, it may well limit or prevent future settlements since, if parties believe that they will not be able to resolve costs issues through subsequent adjudication, they may be unwilling or unable to voluntarily resolve the substantive issues in dispute. In this case, for example, I regard it as unlikely that Mary Jr. and Carol would have been able to resolve their differences at the April 2017 mediation if they had been told in advance that this court would refuse to make a costs order.
[31] In determining whether there are exceptional circumstances that would justify a costs order in the context of a settlement, the court should have regard to the considerations identified in Rule 57.01(1) of the Rules of Civil Procedure (“Rule 57.01”). In this case, and as explained below, I regard the following Rule 57.01 factors as being particularly relevant: (i) the result; (ii) whether there were any written offers to settle; (iii) whether the conduct of any party “tended to shorten or to lengthen unnecessarily the duration of the proceeding”; and (iv) whether any step in the proceeding was “improper, vexatious or unnecessary”.
Analysis
[32] The starting point for my analysis is the fact that, in my view, Mary Jr. and her counsel were the primary drivers of the length, acrimony, and excessive cost of this litigation. Mary Jr. and Carol had a genuine difference of opinion regarding whether to sell the Victor Street property. But Mary Jr. chose to escalate that relatively narrow dispute by putting at issue the validity of Mary Sr.’s 2013 POA for property, through allegations of fraud and undue influence against Carol. While these allegations of fraud and undue influence were never formally adjudicated, there is very little in the voluminous record filed by the parties that tends to give any real substance to these claims. Given the limited nature of credible evidence on point, it is difficult to understand how challenging the validity of the POA could possibly have been in Mary Sr.’s interests since, by May 2016, there was a consensus amongst Mary Sr.’s health care providers that she was incapable of managing her affairs.
[33] Faced with these allegations of fraud and mismanagement, Carol’s June 2016 Letter was restrained and reasonable. Carol offered to account for her actions as attorney for property, whether through an informal or formal passing of accounts. The passing of accounts would have addressed any concerns of fraud or mismanagement, and Carol indicated a willingness to include within that process a determination of the validity of the 2013 POA. Carol also offered to sell the Victor Street property to Mary Jr. for fair market value.
[34] In my view, this written proposal was a good faith and reasonable basis upon which to attempt to resolve the dispute between the parties without the need for further litigation. Yet Mary Jr. failed to respond to the June 2016 Letter, instead filing further motions in June and July 2016 seeking additional relief against Carol, thereby further escalating the litigation.
[35] The death of Mary Sr. on August 3, 2016 was another significant marker in the litigation, which should have caused Mary Jr. and her counsel to at least press the pause button. Of particular significance is the following:
(a) Mary Sr.’s death meant that the validity of the 2013 POA was now moot;
(b) Carol had offered to pass her accounts as attorney for property, which should have addressed Mary Jr.’s concerns over fraud or mismanagement;
(c) There was no longer any reasonable basis to oppose the sale of the Victor Street property. The property had now passed to Mary Sr.’s estate. Carol had offered to sell the property to Mary Jr.; otherwise it would need to be sold to a third party in order to realize its value to the estate; and
(d) Carol reasonably and voluntarily renounced her appointment as estate trustee under the Will and proposed the appointment of an institutional trustee, which should have addressed any residual concerns regarding her integrity and good faith. Rather than recognizing Carol’s reasonableness in advancing this proposal, Mary Jr. took issue with the appointment of RBC on the basis that RBC lacked independence. Although Penny J. ultimately appointed Scotiatrust as estate trustee, he did not accept that there was any basis to impugn RBC’s integrity in dealing with the estate.
[36] Mary Jr. failed to consider whether Mary Sr.’s death represented a fundamental change of circumstances that should have prompted a reassessment of the need for further litigation. Within days of Mary Sr.’s death, and before her funeral had even taken place, Mary Jr.’s counsel had insisted that the litigation should proceed as planned. Mary Jr. refused to consider extending the previously established timetable in light of Mary Sr.’s death, and then moved at the first opportunity, and with undue haste, to note Carol in default. Mary Jr. then attempted to gain leverage in the litigation by refusing to consent to setting aside the noting in default, necessitating further proceedings and further escalating costs.
[37] Finally, the settlement reached at mediation in April 2017 was essentially the same offer made by Carol in her June 2016 Letter. Carol had offered to provide Mary Jr. with a formal accounting of her actions as attorney for property, and offered to sell the Victor Street property to Mary Jr. for fair market value. In April 2017, following close to a year of acrimonious litigation, Mary Jr. agreed to accept Carol’s accounting and to purchase the Victor Street property with her share of the estate.
[38] Counsel for Mary Jr. argues that she was successful in obtaining a number of court orders over the course of the litigation and, on this basis, is entitled to a costs award in her favour. The court orders identified by Mary Jr. include the CPL, an interim preservation order preserving the Victor Street property, an order setting a timetable for the litigation, and an order appointing Scotiatrust as estate trustee. These orders were either of an interim or interlocutory nature, or dealt with subsidiary issues in the litigation. The ultimate resolution of the main issues in dispute largely reflected the settlement proposals advanced by Carol, not Mary Jr.
[39] Taking all of these factors and considerations into account, I conclude that there are exceptional circumstances justifying a significant costs award in favour of Carol, notwithstanding the fact that the parties have otherwise settled the litigation. In fact, had Mary Jr. been willing to consider alternatives to further litigation in either June 2016 or following Mary Sr.’s death in August 2016, I expect the parties would have been fully capable of resolving the matter at a much earlier stage, thereby avoiding the need for the costly and bitter litigation which ensued.
[40] I am reinforced in this conclusion by the proportionality concerns identified by the Action Committee in its 2013 Final Report. The Action Committee argued that to improve the system, “we need a new way of thinking that concentrates on simplicity, coherence, proportionality and sustainability at every stage of the process.”[^5] This ‘new way of thinking’ must inform the way in which all participants approach the civil justice system, including the judiciary, the bar, litigants, government and the public. The approach adopted by Mary Jr. and her counsel exhibited none of the new approach called for by the Action Committee.
[41] With respect to quantum, counsel for Carol submitted a bill of costs which indicated that her costs, on a partial indemnity basis, totaled $93,076.05, including disbursements and H.S.T. I note that both parties have already been partially reimbursed by the estate for their litigation costs, Mary Jr. for $60,000 and Carol for $20,000. Taking into account the amounts already received by both parties, along with the various factors and considerations to which I have earlier referred, I would fix the costs payable by Mary Jr. to Carol at $75,000 all inclusive, such costs to be paid with 90 days.
Other Relief
[42] In addition to costs, Carol sought subsidiary relief, in the form of court orders dealing with the following matters:
(a) Removal of the CPL on the Victor Street property;
(b) Removal of the August 26, 2016 notice of objection to the issuing of a certificate of appointment of an estate trustee, court file no. 2016-218;
(c) Payment by the Bank of Nova Scotia to Mary Jr. and Carol in equal amounts the proceeds of Mary Sr.’s RRIF and TFSA accounts; and
(d) Dismissing the within action, court file CV-16-552884, and the application commenced by Carol, court file no. 05-176/16.
[43] This relief is appropriate and I so order.
[44] Counsel for Scotiatrust, the estate trustee, also sought certain relief in this matter, as set out on Schedule “A” attached to these reasons. The parties have agreed that the Schedule “A” relief is appropriate in the context of a global settlement of all matters in dispute, including entitlement to costs, and I so order.
P. J. Monahan J.
Released: October 23, 2017
Schedule “A”
THIS COURT ORDERS that Scotiatrust’s costs of and incidental to the within step shall be paid out of the assets of the Estate on a full indemnity basis, subject to review on a passing of accounts.
THIS COURT ORDERS that Scotiatrust shall administer the Estate in accordance with the April 11, 2017 Minutes of Settlement, attached as Schedule “A” to this Order, which shall be and are hereby approved and implemented on behalf of the parties subject to being varied as follows:
a) Paragraph 4(a) is removed and replaced with the following:
(a) Scotiatrust shall, to the extent it is able, deliver the following items located in the House to Mary Jr. and Carol, the costs of copying the items to be borne by the Estate:
(i) Any home movies taken by Frank and Mary Sr. (the original to Mary Jr., copies to Carol);
(ii) Any photo albums (the original to Mary Jr., copies of the photos to Carol);
(iii) Electronic picture frame located in the box in the garage that was taken from Hogarth Manor after Mary Sr.’s death (the original picture frame to Mary Jr. and electronic copies of the photos to Carol);
and Scotiatrust may deliver such items to Mary Jr. by leaving them in the House.
b) Paragraph 4(b) is modified by adding the following to the end of the existing paragraph:
Scotiatrust shall, to the extent it is able, deliver items (i) and (ii) listed above to Carol and Carol acknowledges that items (iii) to (vii) are in her possession.
c) Paragraph 4(c) is modified by adding the following to the end of the existing paragraph:
Scotiatrust shall, to the extent it is able, deliver the foregoing items to Mary Jr. by leaving them in the House.
d) The following paragraph is added to the Minutes of Settlement as paragraph 4(e):
(e) Scotiatrust shall, to the extent it is able, deliver the following items located in the House to the Northwestern Ontario Aviation Heritage Centre:
(i) WWII bomb casing
(ii) Air force hat and jacket
(iii) Aircraft maintenance manuals (excluding Mary Jr.’s personal flying log and instructions books on flying)
(iv) Plans for WWII aircraft (originally belonging to John Patterson; located in large wooden box in basement)
(v) Trophies for flying (excluding any of Mary Jr.’s trophies for flying)
e) Paragraph 8(b) is removed and replaced with the following:
(b) Scotiatrust shall complete the administration of the Estate according to the terms of Mary Sr.’s July 3, 2013 will and distribute the residue 50% to Carol and 50% to Mary Jr., subject to the terms set out in the April 11, 2017 Minutes of Settlement and any orders of the court.
THIS COURT ORDERS that the timing and order of payments from the Estate is at the discretion of Scotiatrust, to be exercised in consideration of the Estate’s liquidity.
THIS COURT ORDERS that, subject to the provisions of this Order and the Minutes of Settlement as varied, Scotiatrust is not required to sell or dispose of the contents of the House, including the car, before transferring title to the House to Mary Jr., and the contents of the House, including the car, shall become the sole property of Mary Jr. upon such transfer.
THIS COURT ORDERS that notwithstanding anything else in this Order or the Minutes of Settlement as varied, if Scotiatrust or any party believes that there is or will be a shortfall of assets of the Estate to satisfy any payment or transfer required to be made by the Estate pursuant to this Order and the Minutes of Settlement as varied, Scotiatrust or any party may seek the directions of the court regarding the priority of payment.
THIS COURT ORDERS that RBC Account No. 07782-0006840 and RBC Account No. 07782-4502761, are assets of the Estate and RBC is hereby authorized to transfer the balance of the funds in each bank account to Scotiatrust.
THIS COURT ORDERS that this order is without prejudice to any party’s position about the obligation of Carol to account for her dealings with RBC Account No. 07782-0006840 and RBC Account No. 07782-4502761 beginning August 4, 2016 and any issues arising out of such accounting.
THIS COURT ORDERS that the Registrar shall vacate any and all notices of objection regarding the appointment of an estate trustee for the Estate including the notice of objection filed by Mary Jr. on August 26, 2016.
CITATION: Kearney v. Hill, 2017 ONSC 6306
COURT FILE NO.: CV-16-552884
DATE: 20171020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARY K. KEARNEY Plaintiff
- and -
CAROLYN LOUISE HILL Defendant
REASONS FOR JUDGMENT
P. J. Monahan J.
Released: October 20, 2017
[^1]: Action Committee on Access to Justice in Civil and Family Matters (Honourable Thomas Cromwell, Chair), Access to Justice in Civil and Family Matters: A Roadmap for Change (Final Report October 2013) (“Final Report”). [^2]: 2017 ONSC 1304 at para. 34. [^3]: 2017 ONSC 2842 (“Muskala”) at para. 7. [^4]: Muskala at paragraph 12. [^5]: Final Report, p.8.