COURT FILE NO.: CV-13-1222-ES

DATE: 2021 08 25

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

DAVID JAMES GRIER by his Litigation Guardian Tammy Grier

Applicant

• and -

JANET LYNN GRIER by her Litigation Guardian, the Public Guardian and Trustee

Respondent

SANDRA GAIL GRIER

Non-Party

Douglas G. Loucks, for the Applicant

Frances M. Wood, for the Respondent Janet Lynn Grier

Gabriella V. Deokaran, for the non-party Sandra Gail Grier

HEARD: February 12, 2021

REASONS FOR JUDGMENT

Fowler Byrne J.

[1] David Grier, Janet Grier and Sandra Grier are the children of the late James William Grier, who died in November 2013. In the year before James’ death, David and Janet were in litigation regarding David’s use of the power of attorney granted to him by James. Since James’ death, they have been in litigation regarding the validity of a will James executed just months before his death.

[2] Sandra, and Sandra’s son Garret Grier, who is a beneficiary under the most recent will, took no part in this litigation, despite having notice of it since at least June 2014.

[3] In May 2020, after eight years of litigation, David and Janet have reached a settlement whereby David, Janet and Sandra would divide the proceeds of their father’s estate evenly. As David and Janet are under a disability, they have both brought a motion seeking the court’s approval of the settlement on their behalf.

[4] An earlier Order for Directions required that notice of any settlement be served on Sandra and Garret, which it was. Garret continues to take no position and has indicated that he wants no part of James’ estate. Sandra, on the other hand, wants this court to deny approval of the settlement, wants to be added as a party and seeks significant disclosure regarding their father’s estate.

I. Issues

[5] The main issue to be decided is whether this court should approve the settlement reached by David and Janet on their behalf and approve the fees their counsel propose be charged. The court must also consider Janet and David’s request that the settlement funds be released to them directly, and not into court, despite their disability.

[6] In addition, there are a number of procedural issues before the court.

The delivery of Sandra’s responding materials to the Approval Motions was late despite three different court-set deadlines. Her written closing arguments were also late, contrary to a court ordered schedule. The closing arguments also exceeded the page limits specified. Finally, Sandra’s responding affidavit, once filed, presents a number of difficulties. The most severe error is that the main affidavit sworn by her client indicates that it was sworn on January 11, 2021, yet the exhibits are marked with an exhibit stamp that states the exhibits are in reference to in Sandra’s affidavit of November 2, 2020.

[7] As a final issue, if I deny the court’s approval to the settlement on behalf of David and Janet, then I must consider the relief sought by Sandra, which includes that she be added as a party, and that David provide detailed disclosure regarding James’ estate.

II. Late Delivery of Materials

[8] Despite being late, I will grant an extension to Sandra to file her responding materials and her written submissions in this matter so that the issues before me can be decided on their merits.

A. The Law

[9] Rule 3.02 of the Rules of Civil Procedure allows this court to extend or abridge any time prescribed by an order, either before or after the expiration of the deadline.

[10] The onus lies on the party who seeks the extension to provide proper grounds for the exercise of the discretion of the court: Diemer v. London Farms Ltd. 2016 ONCA 946 at para. 8, relying on Nugent v. Crook, 1969 CanLII 389 (ON CA), 40 O.R. (2d) 110 (CA) at para. 3.

[11] When determining whether to grant an extension, the non-compliance must be put into context: Duffin v. NBY Enterprises Inc., 2010 ONCA 765, 328

D.L.R. (4th) 571 at para. 12.

[12] As stated in Duffin, four factors should be considered. First, a court should be reluctant to dismiss a claim on grounds unrelated to the merits. Second, the court should consider if the other party will suffer any prejudice if the deadline is extended. Third, the court should determine the underlying purpose of

the Order and whether that was thwarted by the failure to abide by it. Finally, the court should consider the seriousness of the breach: paras. 14 to 17.

B. Analysis – Responding Materials

[13] It is clear that Sandra missed a number of court-ordered deadlines to file her responding materials to the Approval Motions. The first deadline was set on August 10, 2020. Instead of responding, Sandra served two motions, both without notice to the other parties.

[14] Sandra was then granted an extension to October 13, 2020 to file her responding materials. This deadline was not met, but instead a further extension was requested. For unknown reasons, the request was made ex parte, and not to this judge. The motion was ordered to be served and then argued before me on December 18, 2020. There is no evidence that the motion for an extension was ever served on the other parties, and that day was wasted. The matter of the extension was finally before me on February 12, 2021, along with the responding materials to the Approval Motions.

[15] The explanation for the delay in filing her materials on time is not entirety clear, but I conclude that Sandra did not want to file any responding materials until which time she was confident that David, and his litigation guardian and wife Tammy Grier, could not abscond with the estate funds. Instead of complying with my original deadline to file her responding materials in

August 2020, she applied for a Mareva injunction, seeking an order freezing all of David and Tammy’s bank accounts, which I denied. Sandra indicates that she appealed that order to the Divisional Court.

[16] It then appeared that instead of complying with my second deadline, Sandra commenced Court File No. CV-20-004114, which was a new action against the Estate Trustee During Litigation, the Canada Trust Company (“ETDL”) who was holding the assets of her father’s estate (“ETDL Litigation”). She sought the support of the ETDL in her position that David stole “close to ¾ million dollars” from James’ estate. She served the ETDL with affidavit materials in the ETDL Litigation which she believed supported her position, and which in essence were her responding materials to this motion. Despite this, she did not serve David or Janet with any materials in the ETDL Litigation. She asked that the ETDL not share her affidavit materials that supported her position. The ETDL would not agree. Sandra now accuses the ETDL of being bias as against her because it would not support her position and provided a copy of Sandra’s affidavit to counsel for David and Janet outlining Sandra’s allegations that David was hiding Estate money. Sandra claims her appeal to the Divisional Court is now moot, given that David and Janet now know of her concerns. The status of that appeal is not known.

[17] I find that Sandra deliberately did not file her responding materials throughout the fall of 2020 because she hoped to somehow freeze David and Tammy’s assets first, despite my denial of her injunction motion. It was only when the ETDL provided to Janet and David a copy of the affidavit materials in the ETDL Litigation, and “the cat was out of the bag” that she finally filed her responding materials. When finally filed, her affidavit were mostly a commentary of my alleged error in denying her Mareva injunction, and attached as an exhibit, her affidavit sworn on August 25, 2020, outlining her position.

[18] Sandra’s decision to not file her responding materials was deliberate.

She was unhappy when her Mareva injunction was denied and continued to withhold her evidence until which time she hoped the Divisional Court would reverse my perceived error. Despite this, I am reluctant to deny Sandra the ability to file her materials and prefer to determine this matter on the merits. The court has been waiting for Sandra’s position since August 2020. She is a beneficiary of this estate and should be heard. I also find that any prejudice suffered by David and Janet as a result of the delay is one that could be compensated in costs. Also, both Janet and David are under a disability and it is unclear whether their ability to give or recollect evidence was detrimentally affected by Sandra’s delay. While I consider the breach serious, in that it was deliberately made, the materials have now been received and the court can finally adjudicate on the merits of the matter.

C. Analysis – Written Submissions

[19] David and Janet’s motion for the approval of the settlement was argued on the morning of February 12, 2021. When it came time for Sandra’s counsel to argue her position that afternoon, she become inexplicitly unable to connect to the video conference platform. Numerous efforts were made by the court staff, and other litigants, to connect Ms. Deokaran by telephone, by video, through other counsel’s telephone or video, all without success. Ms. Deokaran was the only party present that was unable to connect that afternoon, although she was connected without difficulty all morning.

[20] As a result, and in order to avoid a further adjournment, an order was made that Ms. Deokaran make her submissions in writing, to supplement her affidavit materials and lengthy factum. Again, Sandra missed a number of court ordered deadlines to file her written submissions. Both parties ask that these submissions not be accepted given their late delivery and given that they exceeded the page restriction set out in my order. Again, despite the lateness (which was only a day after the last extension), both parties were given the ability to reply in writing. The prejudice suffered by the delay can be compensated in costs.

[21] Janet indicated that the written responding submissions contain new arguments that were not before the court and for which Janet and David did not

have an opportunity to respond. Any arguments, which were not part of Sandra’s affidavit materials or her factum, to which David and Janet did not have an opportunity to respond, are not properly before this court, and will not be considered.

III. Improper Affidavit

[22] Sandra’s responding materials are faulty. As indicated, the problems range from minor to serious. The errors include:

a) attaching exhibits from another affidavit;

b) the substance of her evidence is another affidavit she swore in August 2020, which she attaches as an exhibit to her affidavit of January 11, 2021, without even indicating that she relies on that evidence for the purposes of this motion;

c) in her Notice of Motion, under the section where she lists the documentary evidence on which she relies, she lists a supplementary affidavit sworn on January 1, 2021. No such affidavit was attached or is known to exist. Instead, Sandra’s affidavit of December 4, 2020 was attached;

d) given that the affidavit of December 4, 2020 was sworn after she served her original motion for an extension in October 2020, it

cannot be the same affidavit that Sandra was ordered to be served by Peterson J. on October 23, 2020 and by me on November 23, 2021; Sandra never did serve that motion but instead served this new motion to be argued on February 12, 2021; and

e) her responding Motion Record lacks a detailed index, which makes the materials even more difficult to follow and understand.

[23] Unfortunately, the court is often confronted with substandard materials.

Typographical errors, spelling, grammar, incorrect dates, and improperly compiled materials are all examples of errors that the court is often willing to overlook if counsel all had notice and understand what was supposed to be stated or argued, and if there is no prejudice to the other parties. The quality of written materials has suffered another assault during the pandemic as the ability of some parties to prepare and electronically file properly organized, bookmarked, and linked materials appears to be more of a challenge than many parties and counsel can meet. In the end though, the court endeavors to accept such materials in the overall interest of moving matters forward justly and on their merits.

[24] There has to be a limit though, as to what the court will accept when something is casually presented as “evidence.” Affidavit evidence is evidence taken, under oath or affirmation, to be the truth. Just as a witness sits in the

witness box, an affiant swears or affirms to tell the truth. If after considering this evidence, the court determines it is not credible, then the court may make a ruling against that party.

[25] The difference though, between affidavit evidence and viva voce evidence is that if a party is represented by counsel, it is usually counsel that prepares the affidavit. When a party is giving viva voce evidence, the court can consider the witness’ evidence directly and decide what to accept. When evidence is given by way of affidavit prepared by counsel, the court has to take a hard look at the materials and determine if any errors contained therein are reflective of a weak case, or simply weak drafting. The client can not always be held accountable for the latter.

[26] In the past, the court has allowed counsel the opportunity to fix what is clearly a typographical error, when faced with an affidavit where the exhibit stamp did not match the date of the affidavit: MedCentra Inc. v. Economical Mutual Insurance Company, 2009 CanLII 92129 (ON SC), 98 O.R. (3d) 624. In this case, the court found that the responding party suffered no prejudice as a result of the error. That being said, in allowing the mistake to be corrected, the court confirmed the importance of properly prepared affidavit evidence and how the court must be able to rely on that evidence. As stated at para. 34:

There is no question that the acts of swearing and commissioning an affidavit for use at a court hearing should be taken very

seriously. They are not administrative or technical acts; the gravity of the acts is required to ensure the reliability of the evidence submitted and to protect and preserve the integrity of the judicial process.

[27] In our case, despite the various errors being highlighted at the motion, Sandra did not address them in her final submissions. I am left to decide myself whether, when giving the materials a hard look, they represent a flawed effort to present a valid position or are simply so flawed as to be disregarded in their entirety.

[28] In these circumstances, I have decided to accept Sandra’s materials.

This matter has been delayed beyond any reasonable time period. It is not in the best interests of any of these litigants to delay any further. I find that the irregularities are not reflective of Sandra’s case, but rather are reflective of poor drafting and disorganization. The substance of her position is clear and has been communicated to the opposing parties. Sandra’s ability to present her case should be not prejudiced by these irregularities which can be addressed directly with her counsel.

IV. Approval of the Settlement

[29] I have determined that this settlement is in the best interests of both David and Janet and I will approve the settlement on their behalf. I do so even after considering the arguments of Sandra, which I will address below.

A. Law

[30] The settlement of any matter by a person under a disability is not binding on that person until it is approved by a judge: Rule 7.08(1). A party under a disability is either a minor, or someone found to be mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 in respect of an issue in the proceeding, whether they have a guardian or not: Rule 1.03(1).

[31] It is important to note that this court is not being asked to approve the settlement itself. David and Janet have reached an agreement that they cannot walk away from. It is the operation of this agreement that is suspended until which time it is approved on behalf of the parties under a disability: Wu (Estate)

v. Zurich Insurance Company, 2006 CanLII 16344 (ON CA), 268 D.L.R. (4th) 670 (Ont. C.A.) at paras. 13 and 14, leave to appeal refused [2006] S.C.C.A. No. 289.

[32] In this case, both David and Janet fall within the definition of a person with a disability. Janet was found to be incapable of advising counsel, and on November 13, 2015 the Public Guardian and Trustee (“PGT”) was appointed to act on her behalf. For David, due a brain cancer diagnosis, his wife is acting as his Litigation Guardian by virtue of a power of attorney for property.

[33] The requirement of the court to approve a settlement made on behalf of a party under a disability is derived from the court’s parens patriae jurisdiction,

which is founded on the need to protect those who cannot care for themselves. As set out in Wu (Estate) at para 10:

The duty of the court is to examine the settlement and ensure that it is in the best interests of the party under disability (citation omitted). The purpose of court approval is plainly to protect the party under disability and to ensure that his or her legal rights are not compromised or surrendered without proper compensation.

[34] In Krukowski v. Aviva Insurance Company of Canada, 2020 ONCA 631 at para. 24 the Court of Appeal for Ontario cited Wu (Estate) with approval and added that the court has the responsibility to carefully consider the relevant materials, and to assess the fairness and reasonableness of the proposed fees to ensure that the settlement, including provision for legal costs, is in the best interests of the disabled party for his or her benefit.

B. Analysis – Approval on Behalf of David

[35] The approval on behalf of David is straight forward. Pursuant to the settlement, he is to receive one-third of the entire estate of James. This settlement is clearly in his best interests.

[36] Presently, the estate is valued at approximately $360,000. Of this amount, approximately $200,000 came from the proceeds of a Registered Retirement Income Fund (“RRIF”) of which David, Janet and Sandra are equal beneficiaries, separate from the rest of his estate.

[37] At the heart of this litigation are three issues. First, has David completely accounted for all of James’ assets while he acted as his power of attorney in the months before James’ death? Second, has David properly surrendered all of James’ assets to the ETDL which was appointed to administer the estate? The third issue is whether a will executed by James on September 27, 2013 is valid (“2013 Will”). If it is, then David inherits nothing from the estate, other than his share of the RRIF, and the estate is evenly divided between Sandra, Janet and Sandra’s son Garret. If the 2013 Will is found not to be valid, then a will executed on September 3, 2002 (“2002 Will”), would govern, which leaves James’ estate to David, Sandra and Janet equally.

[38] For David, the settlement is clearly in his best interests. If the litigation continued, and the 2013 Will was found to invalid, then David would inherit one- third of the estate, which is the equivalent of approximately $120,000, which is the basis of this settlement. If the 2013 Will was found to be valid, then David would take one-third of the RRIF and nothing of the rest. In essence, his collects approximately $66,000, almost half of what he would otherwise.

[39] With respect to Sandra’s allegation that David has not accounted for the entire value of the estate and has misappropriated approximately least $230,000 (according to her affidavit materials), this does not impact the analysis with respect to David. It is clearly not in his best interests to revisit his previous

handing of his father’s assets and possibly have to pay more money into the estate. Not even Sandra can dispute that the settlement is in David’s best interests.

C. Analysis – Approval on Behalf of Janet

[40] To determine if this settlement is in Janet’s best interests, some further background is required.

[41] In the 2002 Will, with the assistance of his solicitor, James set out his wishes for the distribution of his estate upon his death (“2002 Will”). The salient terms are as follows:

a) David was appointed the trustee;

b) The estate was divided equally between David, Sandra and Janet;

c) Sandra and David received their share absolutely;

d) Sandra’s share was to be held in trust; and the trustee (David) is to pay an income to Sandra until her death, or the trustee could purchase an annuity on her behalf; upon Sandra’s death, her share would go to Sandra’s children; he also provided for an annuity for Sandra in the sum of $300 every month, although it is not clear if this is the annuity that David could purchase.

[42] Prior to March 2013, James executed a power of attorney for property, appointing David and Tammy to this role. In about 2013, all three children appeared to be concerned about James’ ability to look after himself. James was examined by a geriatric psychiatrist on April 8, 2013, namely Dr. Aziz of St. Joseph’s Healthcare Hamilton. Dr. Aziz also met with the family. In his report, he indicated that James’ children report 30 years of hoarding by James, and obsessive behaviours. Mr. Aziz reported that James history showed that he had a longstanding obsessive-compulsive disorder with hoarding, and was probably schizoid, avoidant and had OCPD personality traits. Dr. Aziz also reported potential of evolving dementia with frontal features. He opined that James may be suffering from Diogenes Syndrome.

[43] Around this time, David appeared to take steps to move James into long term care. It also appeared that over three days in August 2013, David moved approximately $144,292.02 of James money from James’ account into his own. James saw that his money was removed from his account and called the police reporting a theft. When David presented the police with his power of attorney, the police withdrew, indicating it was a civil matter.

[44] Sandra maintains that James was very angry by David’s actions and decided to change his will. Some weeks later, on September 21, 2013, Sandra visited James with a capacity assessor. This assessor concluded that James

had the capacity to execute a new power of attorney for property. No assessment was prepared or produced regarding his ability to execute a new will.

[45] On September 27, 2013, with the assistance of a solicitor, James executed the 2013 Will. The relevant provisions of the 2013 Will are as follows:

a) Janet is appointed as trustee;

b) His estate is divided into 3 equal shares: one-third to Janet, one- third to Janet as trustee for Sandra pursuant to Sandra Gail Grier Trust, and one-third to Janet, as trustee for Garret pursuant to the Garret Bryce Richard Grier Trust;

c) He purposefully disinherits David by stating “Given that I am unhappy with the way that a prior Power of Attorney has been used, I am consciously choosing not to provide anything in my Will for my son David Grier, or his family.”;

d) He also authorized his trustee (i.e. Janet) to “take steps as they consider necessary to recover any funds misused or misappropriated under any of my Power of Attorney.”

[46] It appears that in or around that time, Janet commenced an application on behalf of James, as against David, with respect to the care and management of James and the payment of his long term care home expenses, identified as

Court File No. CV-13-4420-00 (“13-4420 Action”). On October 4, 2013, Van Melle J. made an order (which was for the most part on consent), which contained a provision that no party was to act further as James’ attorney for property and James was ordered to pass his accounts (“Van Melle Order”).

[47] David then commended Court File No. CV-13-4823-00 (“13-4823 Action”) which involved a dispute between him and Janet as to who should act as power of attorney for James.

[48] In the midst of this litigation, on November 25, 2013, James passed away. As a result of James’ death, the 13-4420 Action and the 13-4823 Action were stayed and no steps have been taken to revive them.

[49] Shortly after James’ death, David made an application to be appointed estate trustee pursuant to the 2002 Will. Upon being served with this Application, Janet filed a Notice of Objection on December 20, 2013, indicating that the 2002 Will was not the last will of the deceased, and that she was the proper trustee under the valid will executed on September 27, 2013. Neither Sandra nor Garret filed a Notice of Objection.

[50] Also, after James’ passing, David complied with the Van Melle Order and commenced Court File 14-0479-00 wherein he sought to pass his accounts while acting under the power of attorney (“14-0479 Action”). In this proceeding, James swore an affidavit that he only acted as power of attorney for James

between August 7, 2013 and October 4, 2013 (the date of the Van Melle Order) and attached an informal accounting. Janet again filed a Notice of Objection on March 14, 2014. David filed his response shortly thereafter. Neither Sandra nor Garrett responded.

[51] Given Janet’s objection to the administration of the 2002 Will, David commenced the application, naming only Janet as the Respondent, and brought a motion for directions of the court. This matter appeared before Trimble J. on June 3, 2014, who made a comprehensive order as to how the matter would proceed (“Order for Directions”). In this order Trimble J. noted that both Sandra and Janet were served with the Motion for Directions, but that no one appeared for Sandra. The relevant portions of the Order for Directions were as follows:

1. THIS COURT ORDERS that the parties to the proceeding and issues to be tried are as follows:

a) With respect to the Last Will and Testament dated September 27, 2013 ("the Will") of the deceased, Janet Lynn Grier affirms and David James Grier denies that the deceased had knowledge and approved of the contents,

b) With respect to the Will of the deceased, David James Grier affirms and Janet Lynn Grier denies, that the Will was procured by undue influence,

c) With respect to the Will of the deceased, Janet Lynn Grier affirms and David James Grier denies, that the deceased had testamentary capacity at the time of the execution.

2. THIS COURT ORDERS that this order giving directions shall be served by regular letter mail, and service of any documents in these proceedings including notification of any settlement reached, or

judgment obtained, shall be good and sufficient if served on the following persons who appear to have an interest in the Will:

a) Sandra Gail Grier, 2207 Truscott Drive, Mississauga, ON,

L5J 2A7

b) Office of the Public Guardian and Trustee, 595 Bay Street, 8th Floor, Toronto, ON, M5G 2M6.

3. THIS COURT ORDERS THAT this order giving directions shall be served on Garret Bryce Richard Grier by email at linbrek@gmail.com, until further order of the court.

4. THIS COURT ORDERS that service of any documents in these proceedings including notification of any settlement reached, or judgment obtained, shall be good and sufficient if served on the following:

a) David James Grier c/o Douglas G. Loucks, Kerr Waid Professional Corporation, Barristers and Solicitors, Suite 200, 39 Lakeshore Road East, Mississauga, Ontario, LSG IC9.

b) Janet Lynn Grier c/o Laughlin J. Campbell, Campbell Bader LLP, Lawyers and Notaries, Suite 1, 2624 Dunwin Drive, Mississauga, Ontario, LSL 3T5.

c) and Sandra Gail Grier and Garret Bryce Richard Grier in the manner set out in paragraph 2 above.

[52] In addition, in the Order for Directions, the Canada Trust Company was appointed the ETDL and was given authority to obtain medical records of the deceased, to obtain solicitors’ records regarding the wills and to compel production of any and all financial records of the deceased. Finally, the parties were granted leave to examine any solicitors who prepared testamentary documents, as well as anyone who conducted a capacity assessment. The

matter was ordered to be tried without a jury on a date to be fixed at the Trial Scheduling Court.

[53] In accordance with the Order for Directions, on July 11, 2014, David’s counsel served the Order for Directions on Sandra, Garret and the PGT. Shortly thereafter, it appears that Garret sought legal advice. On September 9, 2014, Mr. Robert Lefebvre wrote to counsel for David and Janet, indicating that he was consulted by Garret. Garret wanted to relay that he met with James shortly after the 2013 Will was signed and he did not believe that James was able to manage his affairs. He also indicated that if Garret received any share of the estate under the 2013 Will, he would pay it to David as he believes that is what James truly wanted. He only wanted to make sure that it was paid over to David in such a way as to not affect the ODSP benefits which he needed to finish school.

[54] There was no response from Sandra. Neither Sandra nor Garret sought to be added as parties or to involve themselves in the litigation thereafter. Nothing was heard from the PGT.

[55] The ETDL commenced the work of gathering the assets of the estate. It is agreed that on or about November 2014, the ETDL obtained the contents of James’ Registered Retirement Income Fund (“RRIF”) in the sum of $201,856.11. Later the sum of $134,482.04 was transferred to the ETDL. With the exception of the accumulation of interest, and payment of James’ final expenses and

income tax, the account has remained fairly consistent in its balance. As of March 30, 2020, the balance of the estate was $360,359.80.

[56] It appears that throughout the end of 2014 and 2015 David and Janet pursued the litigation. On May 12, 2015, Woollcombe J. made an order establishing a timetable for the delivery of affidavit of documents by Janet, for the examinations of the parties, the capacity assessor and the solicitor who drafted the 2013 Will and for any motions to compel answers to undertakings or questions improperly refused.

[57] Unfortunately, within a few months, counsel for Janet became concerned about Janet’s ability to instruct counsel. She was compelled to apply for the appointment of the PGT as Litigation Guardian for Janet. In support of this motion, Janet provided evidence to the court that Janet suffers from schizophrenia and had a recent suicide attempt. On November 13, 2015, Edwards J. appointed the PGT as Litigation Guardian for Janet.

[58] Janet is not the only member of the family to suffer from that affliction.

Sandra has provided evidence that she also was diagnosed with schizophrenia in 1991 when she was 29 years old. She understands that her condition is permanent, but she is managing her condition well with medication and counselling. Sandra has been represented throughout these proceedings and there has been no indication that she requires a litigation guardian.

[59] To delay matters further, in or around March 2015, David was diagnosed with glioblastoma, an invasive type of brain tumor. Accordingly, on July 22, 2015, his wife Tammy has stepped in as Litigation Guardian pursuant to a power of attorney and has filed the appropriate affidavit with this court to do so.

[60] Matters got back on track in 2016. David brought a motion to strike Janet’s Notice of Objection for failing to abide by court orders. Janet brought a cross motion accusing David of failing to provide the information necessary to ensure that the estate accounts are in order. Fairburn J. (as she was then) heard the motions and released her decision on October 11, 2016 (“Fairburn Order”). She declined to strike the Notice of Objection but put in place a number of directions to ensure the matter moved forward. Janet was ordered to provide an affidavit of documents within 21 days, and David was to provide an accurate statement of James’ original assets as of March 6, 2013, when David and Tammy started acting under the power of attorney. David and Tammy were also to provide a complete accounting of all transactions between March 6, 2013 to October 4, 2013, including showing withdrawals from an ING account, statements from ING and two TD bank accounts or any accounts in which James funds were placed, from March 6, 2013 to present. All of this was to take place by December 5, 2016.

[61] Between March 7, 2017 and February 2018, David provided extensive financial disclosure in accordance with the order of Fairburn J., although it was not complete.

[62] Given that the main issue as between David and Janet was David’s handling of James’ finances prior to the Van Melle Order, the PGT retained a forensic accountant to review the disclosure received and ascertain if the estate had been properly accounted for. In that way, the PGT could provide informed instructions to counsel to either resolve the matter or proceed to trial.

[63] Mr. Jeffrey Feldman prepared a report for the benefit of the PGT on May 23, 2019, wherein he examined the accounts of James from March 6, 2013 to October 4, 2013 (“Feldman Report”). In his report, Mr. Feldman concluded, from the information he received, that on March 6, 2013, the bank accounts of James totalled $299,445.16. As of October 4, 2013, they totaled $256,954.56. He has accounted for various deposits during that time (such as his OAS, CPP, annuity payments) and accounted the payment of James’ rent at his retirement home.

[64] During his analysis, Mr. Feldman came across some transfers out of James’ accounts for which he had no corresponding statements to show where the money went. These included accumulated transfers from a Tangerine account to account 7376634 totalling $6,972, the accumulated transfers from one

of James’ accounts to account 504078, totalling $15,138.75; and a cheque made payable to David Grier in the sum of $9,300. The total of these unaccounted funds was $31,410.74.

[65] Accordingly, Mr. Feldman made requests for the following statements:

a) Royal Bank of Canada account 5007653 for April and May 2013;

b) Bank account 7376634 for March to October 2013;

c) TD Bank account 504078 for March to October 2013, except for August 2013, which he received;

d) An accounting of all transaction between March and October 2013 by David or Tammy.

[66] Mr. Feldman reports that he received no information pursuant to this request. Accordingly, based on the information he did have access to, he concluded that the sum of $31,410.74 was unaccounted for between March 6, 2013 and October 4, 2013.

[67] With the Feldman Report in hand, the PGT believed it had an understanding of what monies may not be accounted for in the Estate and it could thereafter properly determine the best course of action.

[68] Negotiations ensued between David and Janet. Fortunately, they agreed to settle the matter and signed Minutes of Settlement on June 15, 2020 and June 18, 2020, respectively. These Minutes provide, inter alia, as follows:

a) Both David and Janet shall receive their costs in the sum of $8,000 from the Estate;

b) The residue of James’ estate is to be divided into three equal parts, payable to each of David, Janet and Sandra;

c) James’ ashes shall be released to David;

d) The settlement requires the approval of the court due to the parties’ disability and that this motion will be on notice to Sandra and Garret;

e) David and Janet take the position that Action 14-0479 is stayed unless they have litigation guardians appointed for them in that matter;

f) David and Janet agree that this settlement may not be binding on Sandra unless the court orders otherwise;

[69] Of note is that no provision was made for the payment of Sandra’s share to be into a trust, despite that the 2002 Will and the 2013 Will provide for same.

[70] Shortly thereafter, this court received two motions, in writing, from each of Janet and David, seeking the court’s approval to the settlement (“Approval Motions”). As required, their motions for settlement were served on Sandra and Garret, but unfortunately the materials did not include the affidavits of counsel.

[71] In my first endorsement on this matter, signed July 3, 2020, I noted that there may be some issue of whether Sandra or Garret were under a disability. I also noted that it was requested that any settlement funds be released to Janet directly, despite being under a disability. Finally, I had insufficient information in order to determine if the fees sought by David’s counsel were reasonable. Accordingly, I made a number of orders to address these deficiencies and set a timeline for Sandra and Garret’s response. I also made an order that any party, including Sandra and Garret, could file additional materials outlining the disability of Sandra or Garret, if any.

[72] As required, a copy of this endorsement was served on Garret by way of the email address specified in the Order for Directions by both David and Janet’s counsel. In his supplementary affidavit sworn on July 8, 2020, David’s

counsel provided the court with a copy of the email exchange between Garret and both counsel in response to receiving my July 3, 2020 endorsement.

[73] In particular, in response to Mr. Loucks email containing my endorsement, Mr. Loucks received a short email from Garret on July 6, 2020, which stated:

I have no desire to become involved in this lawsuit in any way. Please keep me out of it.

Thank you,

Garret Grier

[74] When this email was received by counsel for Janet, she followed up by email with Garret, asking whether or not his position remains the same as in 2014, and whether he wishes to waive entitlement to his grandfather’s estate, and allow David to receive his share. She also asked if Mr. Lefebvre, his lawyer in 2014, should be contacted instead. In response, on July 7, 2020, Garret replied by email, to her, as well as to counsel for David and Sandra, as follows:

I can confirm that my position remains the same as stated in the 2014 letter. As such, I support the proposed settlement.

I have nothing further to say on the matter.

Mr. Lefebvre has not been retained as counsel and does not need to be notified further.

Thank you, Garret Grier

[75] After being served with the Approval Motions, Sandra brought a motion in July 2020 wherein she sought an order of contempt against David and requested that additional materials be served on her. On August 10, 2020, my decision was released (Grier v. Grier, 2020 ONSC 4799), wherein David was not found to be in contempt, but that the full Motion Records for the Approval Motions were to be served on Sandra and Garret, and that they would have 14 days thereafter to respond to the Approval Motions.

[76] Nothing further was heard from Garret with respect to the Approval Motions. On August 10, 2020, Sandra filed a Notice of Objection to David’s application to be appointed as estate trustee pursuant to the 2002 Will. On August 12, 2020, Sandra then filed a Notice of Appearance in this matter. Finally, in or around August 25, 2020, Sandra prepared and swore an Affidavit of Documents. All this was done approximately 6 years after being served with the Order for Directions and after the matter was settled.

[77] As indicated above, after a number of delays, Sandra has finally filed her responding materials to this motion in January 2021.

[78] Sandra’s objections with regards to Janet’s settlement are fourfold.

First, she claims that this is not what Janet really wants and that her counsel and the PGT are not properly representing her interests. Secondly, she believes that David has not fully accounted for all the assets of the estate and Janet is waiving

her right to much more than $10,000 (being her third of the missing $31,000). Thirdly, she argues that there is no reason why the 2013 Will does not get probated, and as trustee, Janet should pursue that and ensure that David is disinherited. Finally, she argues that Garret is under a disability, and that this settlement is not in his best interests.

i. Janet’s Views are not Properly Represented

[79] Sandra submits that Janet’s counsel and the PGT are not protecting Janet’s interests. Prior to losing capacity to instruct counsel, Janet did not accept that David had managed James’ funds properly and did not think all monies were accounted for. By settling on the terms suggested, the PGT and Janet’s counsel are disregarding Janet’s best interests.

[80] I reject this argument. This position disregards the fact that since Janet’s initial position, the PGT exercised its due diligence by hiring Mr. Feldman to investigate the accounts during the time David acted as attorney for property. It was only after reviewing the Feldman Report that the PGT felt comfortable reaching a settlement that was in Janet’s best interests. While this report states that approximately $31,000 is unaccounted for, a cost-benefit analysis was done, which concluded that Janet would be better off financially by making this settlement, rather than litigating the matter further to recover her one-third share

of this amount. The PGT also waived its own fees in order to allow Janet to recover more.

[81] With respect to Sandra’s allegations that Janet’s counsel is not representing her properly, there is no evidence to suggest this. In any event, it is a matter between Janet and her counsel. Sandra is not in a position to allege improper representation on Janet’s behalf.

ii. There is money missing

[82] Sandra maintains that David has retained some of his Father’s money while acting as power of attorney and has never fully paid over all of his father’s money to the ETDL. She claims that Janet is owed more money and that the settlement, as is, is not in her best interest.

[83] I reject this argument. One of the main assets – the RRIF, is properly payable to all three children, equally, no matter what will is proven to be valid. That has been accounted for. Then Mr. Feldman provided an analysis for Janet’s benefit, to review the money that David handled while acting as power of attorney. He did not receive all the documentation he requested, but he accounted for that in his report and concluded that $31,410.74 was unaccounted for. This is much less than the large amounts that Sandra has alleged have gone missing. A decision was made by the PGT that Janet’s one-third share of these

missing funds, namely the sum of $10,470.25, was too small to justify the added expense of tracking it down or continuing litigation with David.

[84] In support of her position, Sandra shows a letter written by Ms. Wood in May 2015, on behalf of Janet, which alleges the estate was worth approximately

$455,000. She also relies on handwritten notes by her father, and various charts she or Janet recreated trying to make sense of the estate in the years prior to the settlement.

[85] In the reasons for the Fairburn Order, Fairburn J. found that in June 2016, the estate being managed by the ETDL was valued at $229,777.7. At that time, David also admitted to owing the estate an additional $12,000. It also appeared that an additional $139,844.11 was deposited afterwards, giving the estate a total value of $381,621.84 as of October 2016. Fairburn J. ordered that David provide a statement of original assets as of March 6, 2013, when he was appointed power of attorney for property, and that David provide a complete and accurate accounting of all transactions made on behalf of James between March 6, 2013 and October 4, 2013. While David did not provide all the statements he was required to provide by the Fairburn Order, Mr. Feldman did do the accounting of the period for March 6, 2013 to October 4, 2013. As indicated, Mr. Feldman accounted for the missing statements when he concluded that only

$31,000 was unaccounted for.

[86] In her materials, Sandra highlighted a number of transactions made by David after his father’s death, and not during the period that David acted as attorney for property. She relies on these transactions in support of her position that the approximate sum of $230,000 is still missing from the Estate.

[87] It is not clear that Sandra’s accounting is in fact evidence of the misappropriation of $230,000. Some of the suspect transactions highlighted by Sandra were addressed by Mr. Feldman. The handwritten notes of James are undated and difficult to read. At most they are evidence of accounts held at some point in the years prior to his death. Her allegations that James had Canada Savings Bonds and he gave David access to them in July 2013 is vague at best and is not proof of additional funds. The concerns raised by Janet herself in the years prior to the settlement have now been answered to her own satisfaction.

[88] The focus of the Approval Motions is whether the settlement is in the best interests of Janet and David. Despite all the issues raised by Sandra, the PGT still believes it is a good settlement. So does Janet’s counsel. Whether or not David has fully accounted for his actions while acting as the attorney for property for James is the subject of the 14-0479 Application. That matter is stayed as a result of the incapacity of David and Janet but has not been

dismissed. Whether the funds have been properly accounted for since James’ death, is the subject of a pending application to pass accounts by the ETDL.

[89] Accordingly, I am not satisfied that Sandra has proven that in excess of

$230,000 has gone missing from the estate. Even if some funds have gone missing, which is not a finding I am prepared to make, Sandra has recourse in the other court applications to address it.

iii. It is not in Accordance with the 2013 Will

[90] Sandra argues that there is no reason why the 2013 Will should not govern, and that it is not in Janet’s best interests to settle otherwise.

[91] I reject this argument as well. Janet’s inheritance is the same whether the 2013 Will is found valid or not. Janet’s inheritance is also the same if there is an intestacy. The only party who is at a disadvantage by the settlement is Garret, who has been given ample opportunity to respond, but has chosen not to.

[92] It should also be noted that Janet has taken no steps to administer the 2013 Will. The validity of the 2013 Will was the very issue before the court and Janet has reached a settlement whereby the 2013 Will would not be probated.

iv. It does not Protect Garret

[93] Sandra also argues that this settlement does not protect the interests of Garret, who she alleges is under a disability. Under this settlement, Garret will not inherit and his interest in the estate is being negotiated away completely. She argues that such a settlement should not be approved.

[94] In my endorsement of July 3, 2020, all parties were requested to provide evidence of Sandra or Garret’s disability, if any. It was not until Sandra filed her responding materials in early 2021 that any evidence was presented on this issue.

[95] With respect to Sandra, she has given some background on her own mental health struggles. Despite acknowledging an ongoing diagnosis of schizophrenia, she maintains she is able to manage her own affairs and instruct counsel because she is on regular medication and sees a counsellor regularly. She maintains this even though in both the 2002 Will and the 2013 Will, James did not feel comfortable granting Sandra her share of the inheritance outright. Instead, he created a trust from which she could draw an income. Neither David nor Janet have alleged that Sandra is under a disability. Sandra is represented by counsel, who has not raised this issue. The court recognizes the presumption of capacity on the part of Sandra.

[96] With respect to Garret, only Sandra alleges that Garret is under a disability. She maintains that he is not able to manage his property or make proper decisions on this matter, including the decision to participate in this litigation and fight for his inheritance.

[97] When considering this argument, it should be noted that this court has not been asked to approve this settlement on behalf of Garret. The court has only been asked to approve the settlement on behalf of Janet and David, which if approved, would only be binding on David and Janet. In addition, Sandra has no standing to make such a motion on behalf of Garret. Rule 7.08(4) contemplates that a litigation guardian and its counsel are to bring the motion on behalf of the person under a disability, of which Sandra is neither. Most importantly, there is no evidence before me that Garret is under a disability and requires the court to exercise its parens patriae jurisdiction.

[98] When a person is concerned about a person’s capacity to participate in litigation and/or to instruct counsel, they must bring forward appropriate information for the court’s consideration. The court must determine a person’s capacity at the time such a determination is requested. Direct medical evidence and information about a person’s actual mental condition is key: Winter v. Sherman Estate, 2018 ONCA 379, at para. 14.

[99] Winter was decided in the context of a motion to appoint a litigation guardian. Nonetheless, the principles are applicable here. If one is going to allege that a party is not competent to manage their affairs or instruct counsel, direct medical evidence and information is required. The onus is on Sandra to show that Garret is incapable and she must provide evidence regarding the nature and extent of the incapacity: Costantino v. Costantino, 2016 ONSC 7279 at para. 38.

[100] When making a determination that a person lacks capacity, the court will decide the matter on the medical evidence. In some circumstances though, the court considers (1) medical or psychological evidence as to capacity; (2) evidence from persons who know the litigant well; (3) the appearance and demeanour of the litigant; (4) the testimony of the litigant; and (5) the opinion of the litigant’s own counsel: Costantino at para. 58.

[101] The only evidence received from David or Janet regarding Garret’s capacity was a copy of a letter from his counsel in 2014 who indicated that Garret was in receipt of ODSP benefits. That counsel did not raise any concerns about the need to involve a litigation guardian or the PGT and did not raise the issue of Garret’s capacity. In fact, this letter demonstrated that Garret understood that any possible inheritance could impact his ODSP benefits.

[102] I have reviewed the evidence presented by Sandra regarding Garret’s disability. It is contained in the affidavit sworn on August 25, 2020. She maintains that in elementary school, Garret was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) which she identifies as a learning disability. He was in a special education programme. He was prescribed Ritalin.

[103] She also maintains that when he was 16 years old, he underwent a Psycho-Educational Assessment which found that he had “over-developed abilities in English but extremely underdeveloped skills in mathematics.” She also states that in 2008, Garret was diagnosed with Asperger’s Syndrome, a learning disability on the Autism Disorder Spectrum. She states that he left school due to bullying and does not know if he had obtained his G.E.D. She states that his academic testing and medical diagnostic records formed the basis for him to receive ODSP income support as a disabled adult. She also maintains that this is the reason that Garret’s inheritance was bequeathed to him in the form of a Henson Trust Fund. She states, “Garret has an inability to manage money and he is easily susceptible to being unduly influenced.” Sandra does not address how she can also be the beneficiary of a Henson Trust but not lack capacity for the purposes of this litigation.

[104] Also, in support of her position, Sandra has served and filed the affidavit of Catherine Kerswill, sworn July 17, 2020. Ms. Kerswill states that she

is the named trustee for Garret under the 2013 Will. She indicates that she is currently acting as a trustee for the Sandra Grier Trust pursuant to the will of Sandra’s late mother. I note that Ms. Kerswill is not the named trustee for Garret under the 2013 Will, but rather Janet is named. Ms. Kerswill swears that in the 2013 Will, James appointed a Trustee to manage Garret’s property because Garret has been diagnosed with a learning disability which impairs his functionality and prevents him from being able to make sound financial decisions which are in his best interests. Garret has been diagnosed with Asperger’s Syndrome, which is a form of Autism. She also swore, “I do not believe Garret’s decision to forfeit his inherence [sic] is well informed, nor is it in his best interest.”

[105] Ms. Kerswill does not indicate how long she has known Garret, if at all.

Nor does she indicate the basis of her information and belief that Garret is unable to make sound financial decisions. She does not state the source of her information and belief of why James left Garret his inheritance in a trust. She references no discussions with James or any other reason to maintain the belief she has. As a result, her affidavit can be given little weight.

[106] As his mother, Sandra’s observations of Garret should bear some weight. In addition, she may have access to school records or medical records that would be able to support her position. Her only statement in that regard is that when David persuaded her to be “formed” in 2013, he went to her home and

took Garret’s academic testing and medical reports. She maintains that her family physician Dr. Nathan Snyder would have medical records, “if the court makes an Order for production.” I note that despite this affidavit being sworn in August 2020, Sandra has made no efforts to obtain this evidence.

[107] Garret has had a number of opportunities to pursue a legal remedy but has expressly stated he does not wish to become involved. While his email communication is not the best evidence of his views, it is better than having no response from him at all. He has stated he wants no part of his inheritance.

[108] No medical evidence has been presented that would provide any evidence of Garret’s inability to manage his own affairs. A diagnosis of Asperger’s Syndrome, even if accepted in the absence of evidence, is not in and of itself proof that a party cannot handle their financial affairs. Having a special education plan at school is not evidence that a party cannot handle their financial affairs. There is no evidence that anyone has ever taken a guardianship position with respect to Garret in the past nor ever sought to do so, including Ms. Kerswill who volunteers herself to be a trustee of any inheritance that Garret receives. It appears that Garret may be in receipt of ODSP benefits. That is not in and of itself proof of his inability to manage his affairs. A person can be in receipt of ODSP benefits for a number of reasons, none of which may be related to a person’s ability to manage their financial affairs. Finally, even if James felt it was

prudent to establish a Henson Trust for Garret, this is not evidence of Garret’s inability to manage his affairs; it could simply be prudent estate planning so that any inheritance would protect Garret’s entitlement to regular ODSP benefits. Garret has offered no evidence himself.

[109] In accordance with s.2(1) of the Substitute Decisions Act, a person is presumed to be capable of entering a contract. I would add that they would be equally presumed to have capacity to decide not to enter a contract.

[110] In this case, Janet and David are entitled to presume that Garret has the capacity to decide whether to participate in this litigation. I have seen no evidence to show that Garret is not capable of making these decisions. Garret has been aware of these proceedings since 2013 and has made the decision to disengage from it. In 2014, he did so with the assistance of counsel. In June 2020, Garret was served with the Motion seeking approval of the settlement and is aware that he could take steps to oppose it. He did not do so. He was served again with supplementary materials on this motion for approval, to which he did not respond. On September 25, 2020, I made an endorsement that the parties should appear before me in order to schedule a hearing on the motion to approve the settlement. I ordered that Garret be served with that endorsement so that he could participate if he wished. He was served but did not appear.

[111] Garret’s decision to not be involved in this lengthy family dispute does not in and of itself show that he lacks an understanding of the matter or that he lacks the capacity to deal with it. Sandra argues that his decision not to fight for his inheritance is proof of his incapacity. Could the reverse not be true? Could his decision not to become involved in this dispute be evidence of his capacity? His decision to step away from this lengthy and protracted litigation may be the wisest decision he has made.

v. Conclusion – Settlement on Behalf of Janet

[112] Having considered Sandra’s arguments, albeit in an irregular form, I do not accept that this settlement is not in Janet’s best interests. The issue of the missing money has been addressed through the Feldman Report. Janet is receiving the same inheritance whether or not the 2013 Will or the 2002 Will is valid, or even if there was an intestacy. I have considered the added expense of proceeding. I have also considered the risk of litigation in that James could be found to not have capacity when he signed the 2013 Will. There is also the reality that David is no longer able to give evidence, given his illness, and Janet’s own ability to give evidence around the time of these events may not be reliable, due to her mental issues at the time. Sandra has little or no first-hand evidence to contribute given her absence from the litigation since her father’s death. Given

the time that has passed, and the expenses incurred by all parties, the resolution of this matter is the most reasonable course of action.

V. Payment of Settlement Funds

[113] Pursuant to Rule 7.09(1), any money payable to a person under a disability is to be paid into court unless a judge orders otherwise.

[114] It requires an exceptional set of circumstances to prompt the court to exercise its discretion under Rule 7.09(1): Hoad v. Giordano, [1999] O.J. No. 456 at para. 10. In Hoad, at para. 8, Quinn J. listed a number of questions that the court must consider before it decides whether to release funds other than as required by the Rules. These factors were listed with respect to a parent who does not want to pay a judgment into court for the benefit of their child but rather manage the funds of their child themselves. The situation before me is different. The litigants themselves wish to manage their funds, or at least allow them to be managed by their duly appointed attorney for property.

[115] In my earlier endorsement of July 3, 2020, I specifically ordered that further affidavit evidence be filed as to why the settlement monies for David should be released to his attorney for property and requested further affidavit evidence to explain Janet’s disability in support of her request to receive her money directly.

A. Payment to David’s Attorney for Property

[116] In Mr. Loucks’ affidavit, sworn July 8, 2020, he states that since Tammy Grier is David’s attorney for property, it is appropriate that his settlement proceeds be released to her. No evidence was given as to how Tammy Grier was to manage these funds on behalf of David.

[117] I have reviewed the Continuing Power of Attorney for the Management of Property, signed by David on April 28, 1999. It gives Tammy Grier the right to deal with David’s property and invest those funds as she deems fit. David authorized Tammy to act on his behalf as fully as if he were acting himself. He has already determined that she will act in his best interests.

[118] In these circumstances, it is appropriate that any funds payable to David in this litigation be paid to his litigation guardian, in trust for him. Tammy will be bound by her fiduciary duty to continue to manage these monies in David’s best interests.

B. Payment to Janet Directly

[119] When the PGT was appointed to act on behalf of Janet, it was because she was unable to properly instruct counsel. At no time was she found incapable of managing her property. The medical evidence that was filed in support of the appointment of the PGT only indicates that Janet cannot instruct counsel or

participate in the litigation due to the effect of the stress of the proceedings. No opinion was provided as to her ability to manage her property.

[120] Ms. Woods has provided affidavit evidence that Janet has, throughout these proceedings, continued to manage her own property, pay her own bills, including rent, and operate her own bank accounts without assistance. At no time has a capacity assessment ever been conducted on Janet that would find her incapable of managing her own property. The PGT was appointed because of her inability to instruct counsel, and nothing else.

[121] It also appears that Janet has already made plans to deposit any settlement funds into a Registered Disability Savings account, that would provide tax savings for her. Of particular note is that the PGT is in favour of an order that any settlement funds be paid to Janet directly. The affidavit of Mr. Arnott, of the PGT’s office, states that the PGT has no other authority or jurisdiction in respect to Ms. Grier’s legal affairs or property. Once this settlement is approved, the PGT has no other role in Janet’s life.

[122] Based on these special circumstances, it is appropriate that any settlement funds be released to Janet directly.

VI. Relief Sought by Sandra

[123] Sandra has brought her own motion. She opposes the relief sought by David and Janet and has requested that the two motions for approval be dismissed. She has also sought additional relief, presumably on the assumption that the motions for approval would be dismissed.

[124] It should be noted that this particular motion by Sandra was not scheduled to be heard by this court. In my endorsement of January 7, 2021, I noted that there were five motions before the court – the Approval Motions, as well as three motions brought by Sandra. Her first motion was for an extension to file her materials. The second was that I recuse myself (which was in relation to the ETDL Litigation) and the third was a motion seeking the removal of the ETDL, also within the ETDL Litigation. In addition, Sandra’s Notice of Motion indicates that the matter is returnable on February 14, 2021, which is not a date that has been scheduled by the court. Despite these irregularities, David and Janet were served with this motion and had an opportunity to respond and I will therefore consider the motion accordingly.

[125] In general, Sandra’s motion is moot.

[126] Sandra cannot be added as a party, as the action has been settled and the settlement has been approved by this court.

[127] Likewise, her request for an Order denying David’s application to administer the 2002 Will is moot. David’s application has been resolved in accordance with the Minutes of Settlement which states that that he will not proceed with the administration of the 2002 Will and Janet, as executor of the 2013 Will, not taking any steps to administer that will.

[128] Sandra has also requested significant disclosure as ordered by the Fairburn Order and for James’ tax returns. Again, this request is moot within the context of this litigation. The Fairburn Order was made for the purpose of assuring the parties that the entire estate has been accounted for. David did make significant disclosure, admittedly not complete, but sufficient to allow Mr. Feldman to prepare his report and to highlight what was missing, due to that incomplete disclosure. At most, Mr. Feldman concluded that $31,000 is unaccounted for.

[129] Sandra also requested an order that Catherine Kerswill be named the trustee for the Hensen Trust for Garret and for herself, as set out in the 2013 Will. The request with respect to Garret is moot within this application given that he is not obtaining any benefit from the Estate. With respect to Sandra, she has requested that her funds be paid into a Hensen Trust, perhaps to protect her ongoing entitlement to ODSP benefits. In order to not negatively impact that in

any way, I will order that her share of the estate be paid into court, to be taken out in the manner she considers appropriate for her.

[130] Finally, Sandra’s request to cross-examine Jeffrey Feldman and David’s counsel, is moot, as well as her request that this application be consolidated with the 14-0479 Action. This later action remains stayed, unless or until litigation guardians are appointed for David and Janet.

VII. Costs

[131] David and Janet have already agreed that their counsel will be paid

$8,000 each from the Estate prior to distribution. That is reasonable and should be paid forthwith. David and Janet have also sought the court’s approval to have their additional legal fees paid from their share of the Estate. The court was also advised of Janet’s other outstanding legal fees owed to her previous counsel.

[132] Since that time, there has been a significant delay, and numerous more court attendances. In addition, there have been a number of other motions before this court, all part of Janet and David’s efforts to have their settlement approved. The amount of costs requested in June 2020 are clearly outdated. Accordingly, counsel will need to make new submissions, in writing, in support of the costs they seek, including the amount sought, how it should be paid and by whom.

VIII. Conclusion

[133] For the foregoing reasons, I make the following orders:

a) Extension granted to Sandra to file her responding materials and her written submissions;

b) The Minutes of Settlement signed by David on June 15, 2020 and by Janet on June 18, 2020, as filed, are hereby approved on behalf of both Janet and David;

c) The ETDL shall forthwith pay to David from the Estate funds the sum of $8,000 for the costs of this application, as per the Minutes of Settlement, subject to additional submissions, as set out herein;

d) The ETDL shall forthwith pay to Janet from the Estate funds the sum of $8,000 for the costs of this application, as per the Minutes of Settlement, subject to additional submissions, as set out herein;

e) After the payment of the funds in subparagraphs 133 c) and d), the ETDL shall divide the proceeds of the Estate of James William Grier, plus any accumulated interests, into three (3) equal shares and pay and deliver one share to each of David, Janet and Sandra;

f) Sandra’s motion, dated January 1, 2021, contained in her motion record dated January 14, 2021, is dismissed;

g) The distribution of funds, as set out herein in subparagraph 133 e), is stayed pending this court’s further determination on the issue of costs;

h) The additional costs of the Approval Motions, the previous motion to have this Justice recused, Sandra’s various motions for extensions to file either her responding materials or her written submissions, and her motion to be inter alia, added as a party, shall be determined as follows:

1. On or before September 17, 2021, Janet and David shall serve and file additional written submissions on costs which are restricted to eight (8) pages, double spaced and single sided, exclusive of a Bill of Costs and case law;

2. If Sandra wishes to respond to these costs submissions, she shall serve and file written submissions on or before October 1, 2021, which are restricted to eight (8) pages, double spaced and single sided, exclusive of a Bill of Costs and case law;

3. Irrespective of whether Sandra files written submissions, she shall serve and file a Bill of Costs; and

4. If David and Janet wish to reply to Sandra’s submissions, they shall serve and file any reply submissions, limited to four (4) pages, double spaced and single sided, on or before October 15, 2021;

i) Any monies payable for the benefit of David, shall be paid to his attorney for property Tammy Grier, or as she may direct;

j) Any monies payable for the benefit of Janet, shall be paid to her directly, or how she may direct;

k) Any monies payable for the benefit of Sandra, shall be paid into court to allow her the opportunity to receive those monies in the most appropriate manner for her; I am not seized of any motion Sandra may bring to have these monies paid out of court; and

Fowler Byrne J.

Released: August 25, 2021

COURT FILE NO.: CV-13-1222-ES

DATE: 2021 08 25

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

DAVID JAMES GRIER by his

Litigation Guardian Tammy Grier

Applicant

• and -

JANET LYNN GRIER by her

Litigation Guardian, the Public Guardian and Trustee

Respondent

REASONS FOR JUDGMENT

Fowler Byrne J.

Released: August 25, 2021