Court File and Parties

Court File No.: CV-21-00670968-00ES Date: 2024-12-10 Superior Court of Justice – Ontario

In the Matter of the Estate of Dorothy Margaret Farooque

Re: Lara Korba, Applicant And: Ian Farooque, personally and in his capacity as Estate Trustee of the Estate of Dorothy Margaret Farooque, Respondent

Before: M.D. Faieta J.

Counsel: Bradley Phillips & Esther Mendelsohn, for the Applicant Joseph Figliomeni & Angela Kwok, for the Respondent

Heard: November 22, 2024

Endorsement

[1] Dorothy Margaret Farooque died on September 16, 2021. She was survived by her two children, the applicant Lara Korba and the respondent Ian Farooque.

[2] Dorothy’s holograph “Last Will” dated April 24, 2021, appointed Ian as the executor and estate trustee and appointed Lara as the alternate (“the Will”). Lara is entirely disinherited by the Will as it provides that Ian is the sole beneficiary of the residue of the Estate and that Lara is an alternate beneficiary in the event that Ian predeceased Dorothy.

[3] Lara states that shortly after their mother’s death, Ian provided her with a copy of the Will and showed her a letter written by Dorothy which according to Lara states:

… the singular reason I was not included under the Purported Will was because it was an estate planning tool to avoid paying “high non-resident tax fees”. The Letter instructed Ian to split the Estate on a 50/50% basis.

[4] Lara states that about in 2011, Dorothy provided her with a completed “Estate Planning Book” which provides particulars of her Estate and notes that a will, prepared by a lawyer Donald Marlowe, was located in Dorothy’s “safety deposit box-jewellery box” located at a branch of the TD Canada Trust.

[5] On October 26, 2021, Lara commenced this application for an Order:

(a) declaring that the Will is invalid on the grounds that Dorothy lacked testamentary capacity, did not have knowledge or approve of the Will and that the Will was procured by undue influence asserted over her by her son Ian, who practices law in Ontario.

(b) Registered a CPL on title to Dorothy’s home (“the Property”) which was transferred by Ian into his own name on October 12, 2021.

(c) An Order transferring the Property from Ian back to the Estate.

(d) A declaration that the contents of the Property constitute part of the Estate.

(e) An order that Lara or her agents attend at the Property for the purposes of undertaking an inventory of the contents of the Property

(f) An order that Ian be restrained from selling or otherwise dealing with the assets of the Estate and/or assets held by Dorothy as at the date of her death either jointly or solely, without the prior consent of the parties or court order.

(g) An order suspending the administration of the Estate, including its distribution, until further order of the court or agreement of the parties.

(h) An order appointing a neutral third party as ETDL along with full authority to carry out its duties and fulfill its mandate.

(i) An order that Ian shall deliver a detailed statement of assets for the Estate stating the nature and value of each asset and liability of the Estate as at the date just prior to the date of death and as at the date of the order.

(j) An order that in the event any assets formerly registered in Dorothy’s name have been paid or transferred to any other person, the person of the financial institutions who paid or transferred such assets shall provide full details tracing the assets and such person who received the assets shall deposit the assets to the Accountant of the Superior Court of Justice

(k) An order granting Lara leave pursuant to s. 42 of the SDA to compel Ian to apply to pass his accounts as Dorothy’s attorney under a power of attorney for property or as trustee de son tort.

(l) An order, pursuant to s. 42 of the SDA, that Ian shall commence an application to pass his attorney accounts within 30 days in accordance with the requirements of Rules 74.16, 74.17 and 74.18.

(m) An order that Ian shall, pursuant to Rule 74.15(h), s. 50(10 of the Estates Act, and s. 23 of the Trustees Act, file an application to pass his accounts in accordance with the requirements of Rules 74.15-74.18.

(n) An order that the Estate Accounts include all assets, receipts, disbursements and liabilities of Dorothy’s estate whether registered solely or jointly with any person.

(o) An order that the respondent make available for inspection all supporting documentation.

(p) An order, pursuant to section 9 of the Estates Act, Rule 30.10 and Rule 74.15(1)(i) of the Rules of Civil Procedure, compelling Ian and Donald Marlowe to deliver copies of all solicitor records relating to Dorothy’s testamentary wishes.

(q) An order granting the parties leave pursuant to Rule 31.10 and 39.03 to examine Marlowe, any of the lawyers or employees of his firm who were involved in the preparation of any testamentary documents as well as any witness to any of Dorothy’s wills or codicils.

(r) An order that the parties be entitled to production of all financial records and files relating to Dorothy’s assets for the period from December 2016 to her death.

(s) An order that the parties are entitled to seek and obtain production of all of Dorothy’s medical records and files.

(t) An order that any claim of solicitor client privilege in respect of Dorothy shall be waived.

(u) An order that the deemed undertaking rule in Rule 30.1 of the Rules of Civil Procedure does not apply to evidence or information obtained in these proceedings.

[6] On October 28, 2021, Lara obtained an ex parte Order granting her leave to register a CPL on the Property.

[7] On March 8, 2022 Penny J. issued the following Endorsement:

This is a will challenge case. It is a modest estate. The parties are unable to agree on the scope and need for document production. I order as follows: There shall be an order restraining the disposition etc. of assets of the estate. The estate trustee shall, however, cause the final tax returns to be prepared and filed. Copies shall be provided to the applicant when that has been done. The respondent shall provide an informal accounting of all estate assets. This shall be done by May 15, 2022. Applicant shall be entitled to ask reasonable follow up questions. The responding record shall be delivered by June 15. Medical records of the deceased as described in Mr. Phillips’ draft order shall be sought and produced for the period of two years prior to the deceased’s death. Initial cost of obtaining these records, if any, shall be shared equally between the applicant and the estate. This order is without prejudice to further requests after these initial steps have been completed

[8] On April 6, 2022, Gilmore J. made the following order for the production of medical records and other relief:

1. THIS COURT ORDERS that, subject to paragraphs 4 and 7 herein, there shall be no disposition, etc. of the assets of the Estate pending further order of the Court.

2. THIS COURT ORDERS that the Respondent shall provide an informal accounting of the Estate assets and liabilities by May 15, 2022

3. THIS COURT ORDERS that the Applicant shall be entitled to ask reasonable follow-up questions with respect to the informal accounting provided by the Respondent.

4. THIS COURT ORDERS that the Respondent shall Final Tax Return to be prepared and filed and the taxes of the Deceased to be paid from the assets of the Estate, and that copies of the Deceased’s Final Tax Returns shall be provided to the Applicant when it has been filed.

5. THIS COURT ORDERS that the Respondent shall deliver his Responding Application Record by June 15, 2022

6. THIS COURT ORDERS that the parties and their agents shall be entitled to seek and obtain production of all medical records and files from September 16, 2019 to September 16, 2021relating to the Deceased from any person or institution in possession of the Deceased’s medical records including a decoded OHIP summary, in the same manner and to the same extent as the Deceased would have been able to if alive. Without limiting the generality of the foregoing this order applies to the records and files of:

(a) Barbara Anderson, MSW 3789 Terrace Lane Crystal Beach, L0S 1B0 ON, Canada

(b) Dr. Hayder Kubba 220 Dixie Road, Mississauga, L4Y 1Z4, ON, Canada

7. THIS COURT ORDERS that the initial cost of obtaining the medical records in paragraph 6 herein, if any, shall be shared equally between the Applicant and the Estate.

8.THIS COURT ORDERS that this Order is without prejudice to further requests after these initial steps have been completed.

[9] Following a case conference heard on July 3, 2024, Dietrich J. made the following Endorsement:

1. A full day has been scheduled to hear the motions in this matter.

2. The applicant’s motion is for an order appointing an Estate Trustee During Litigation, an order for additional production of medical records, and a timetable including a mediation prior to examination of the parties.

3. The respondent will bring a motion to strike all or part of the applicant’s supplementary affidavit. The respondent is also considering a motion for security for costs.

4. The parties agree that the respondent’s motion to strike all or part of the applicant’s supplementary affidavit should be heard first.

5. The motions will be heard on November 22, 2024, for a full day, in person.

6. The applicant is seeking updated informal accounting from March 2022 to current date. Counsel to the respondent agrees to seek instructions on this matter.

[10] At the above conference, Lara indicated that she would be seeking the following relief on this motion:

In any event, the applicant scheduled this case conference to obtain a date for a motion to:

(a) appoint an ETDL to administer the Estate and address the burial and tax issues;

(b) to seek production of all medical records for the Deceased going back as far as possible, given the potential relevant evidence concerning the respondent's pattern of undue influence upon the Deceased that may be reflected in therapist and other notes; and

(c) for a timetable to move this matter forward.

[11] As well, Ian indicated that he would be opposing the appointment of an ETDL and seeking ask this court to strike out Lara’s 252 page supplementary affidavit affirmed February 7, 2024, in whole or in part on the grounds that:

(a) The supplementary affidavit speaks to matters that have virtually no probative value;

(b) It is replete with bad character evidence and hearsay, which is simply inserted for colour and to impugn Ian’s moral character.

(c) It violates section 13 of the Evidence Act as it refers to discussions that Lara claims she had with her late mother, which discussions are not and/or cannot be corroborated by other material evidence.

(d) It does not address the issues of testamentary capacity, any undue influence the Deceased may have been subject to at the time the Will was drafted, any suspicious circumstances surrounding the preparation of the Will, or the Deceased’s knowledge and approval of the Will.

(e) The affidavit will prejudice or delay the fair trial or hearing of the Application. Ian will be forced to exert considerably more time, money, and resources addressing scandalous, frivolous, or vexatious allegations dating back decades and the additional time and cost required is not proportionate to the modest size of the Deceased’s Estate.

[12] In her amended notice of motion, dated November 4, 2024, Lara seeks the following relief:

Updated Informal Account from March 2022 to date

(a) An order that the Respondent provide, within thirty (30) days of this order, an updated informal accounting from March 2022 to the current date (the "Updated Informal Accounting") with respect to the Deceased's assets and liabilities, including with respect to assets beneficially owned by the Deceased whether registered in the Deceased's name or registered solely or jointly with another person, as at the date of her death;

(b) An order that the Respondent shall, produce all documentation, vouchers and receipts in support of the Updated Informal Accounting and in respect of the previous informal accounting provided pursuant to paragraph 2 to the order of Justice Gilmore dated April 6, 2022;

Inspection of the Property

(c) An order that the Applicant, and/or her agents may attend at 1301 Broadmoor Avenue, Mississauga, Ontario (the "Property") for the purposes of undertaking an inventory of the contents of the Property within thirty (30) days of the date of this order and for the purposes of facilitating a current appraisal as to the value of the Property;

(d) An order that the parties, by their counsel, shall within thirty (30) days of the date of this order, on a date to be mutually determined, jointly open and inspect the safety deposit box of Dorothy Margaret Farooque (the "Deceased") located at the TD Canada Trust branch located at 1065 North Service Road, Mississauga, ON L4Y 0E4 (the "Safety Deposit Box");

Production of Testamentary Documents

(e) An order pursuant to section 9 of the Estates Act, as well as subrules 30.10 and 74.15(1)(i) of the Rules of Civil Procedure, compelling the Respondent and Donald Marlowe ("Marlowe") to deliver within 20 days of the date of the order copies of all solicitor's records, correspondence, notes and files relating to the testamentary wishes of the Deceased, including, but not limited to, notarial copies of any original papers or writings being or purporting to be testamentary that are in their possession or under their control (the "Testamentary Documents"), including, but not limited to, in respect of the Respondent, production of the Letter, as defined below;

(f) An order that in the event an original, previous will for the Deceased is located in the Safety Deposit Box, that counsel for the Applicant shall be entitled to take custody of the original previous will and provide a notarial copy of same to counsel for the Respondent;

Production of Financial Records

(g) An order that the parties be entitled to production of all financial records and files relating to the assets held by the Deceased, whether held solely or jointly, from any financial or banking institution, insurance company or accountant, including any bank statements, tax returns, investment statements, estate planning, estate administration and real property statements whether in Canada, or in the United States, or elsewhere in the same manner and extent as if the Deceased would have been able to, if alive;

Production of Medical and Counselling/Therapy Records

(h) An order that the parties be entitled to seek and obtain production of all counselling/therapy records and files, including those of Barbara Anderson, prior to September 16, 2019, relating to the Deceased from any person or institution in possession of such counselling/therapy records, in the same manner and to the same extent as if the Deceased would have been able if she were alive;

(i) An order that the reasonable expenses associated with the production of records, as described above, are to be paid for by the Estate at first instance;

Waiver of Privilege and Confidentiality

(j) An order that any claim of solicitor/client privilege and confidentiality in respect of the Deceased, including in respect of the instructions for, making of, or execution of, any of her personal documentation, financial documentation, or documentation relating to property, real estate, or a corporation of the Deceased, inclusive of any privacy regulations and legislation which may prohibit the obtaining of such information, including personal health information in respect of the Deceased, documentation in respect of the Deceased governed by the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, and the Personal Health Information Protection Act, S.O. 2004, c. 3, Sch. A, shall be waived;

Other

(k) An order converting the Application to an action;

(l) A timetable for the balance of the Application/action, including but not limited to the scheduling of a mediation and the selection of a mediator

[13] Ian’s motion seeks an order striking out paragraphs 5, 10 - 50, 61, 70, 72, 87 - 89, 98 - 99, and 103, along with any exhibits contained in those paragraphs, of the Affidavit of Lara Korba affirmed on February 6, 2024.

Issues

[14] The following issues are to be determined on this motion:

(1) Should Ian be required to provide Lara with an updated informal accounting from March 2022 to the present?

(2) Should the parties jointly inspect the safety deposit box?

(3) Should Lara be allowed to inspect the Property?

(4) Should Dorothy’s testamentary documents and related solicitor records and files be produced?

(5) Should Dorothy’s medical and counselling/therapy records be produced?

(6) Should Dorothy’s financial records be produced?

(7) Should this application be converted into action?

(8) Should Lara’s supplementary affidavit be struck?

Should Ian be Required to Provide Lara with an Updated Informal Accounting from March 2022 to Present?

[15] With his materials filed on this motion, Ian has provided an updated informal accounting. Lara did not pursue this relief at the hearing of this motion.

Should the Parties Jointly Inspect the Safety Deposit Box?

[16] The parties have agreed to arrange for counsel to both attend the bank where the safety deposit box is held to review its contents, if any.

Should Lara be Allowed to Inspect the Property?

[17] Ian now resides in the Home. Lara seeks to inspect the Home for personal property. She also seeks an appraisal of the value of the Home.

[18] The parties have agreed to a joint appraisal of the Home. In addition, Lara will deliver a letter requesting confirmation regarding whether certain personal items remain in the Home.

Should Dorothy’s Testamentary Documents and Related Solicitor Records and Files be Produced?

[19] The parties have agreed to an order to direct that Mr. Marlowe deliver a copy of Dorothy’s earlier will.

Should Dorothy’s Medical and Counselling/Therapy Records be Produced?

[20] On a without prejudice basis, on April 6, 2022, Gilmore J. ordered the production of Dorothy’s medical records from September 16, 2019 which is the two year period prior to her death. Lara seeks Dorothy’s medical records going back to 2005. The release of a deceased’s medical records is an invasion of privacy and particularly objectionable when it amounts to a fishing expedition. I agree with views expressed by Myers J. in Seepa v. Seepa, 2017 ONSC 5368, at para. 28, where he stated:

There is something innately offensive about the idea that an excluded relative can simply romp through a testator’s most private legal and health information fishing for evidence on making the most meagre of allegations of impropriety on no real evidence.

[21] In this case, Lara has reviewed two years of her mother’s medical records. Nothing in those records that is relevant to the issue of undue influence has been brought to my attention in order to justify a motion for the release of further medical records. Accordingly, the motion is denied with one exception. Lara’s evidence is that Dorothy saw a counsellor, Barbara Anderson, from 2005 to 2009 and that during those sessions Ian’s behaviour was discussed. While I appreciate that these records go back almost 20 years, I find that they may inform the nature of the relationship between the Ian and Dorothy from Dorothy’s perspective. In addition to Lara’s evidence, there is also notes written by Dorothy that support the basis for this request. Accordingly, records for that period will be released.

Should Dorothy’s Financial Records be Produced?

[22] Lara seeks financial records going back to 2019. The relevance of these records to the issue of undue influence has not been explained. The issue appears to be Ian’s transfer of $90,000 from one of Dorothy’s accounts into his account which he claimed was needed to cover funeral expenses. Counsel for Ian has offered to provide more particulars and supporting documents, if any, in respect of the use of these funds. I do not find any further production order of financial records to be appropriate in these circumstances particularly given that the nature of Lara’s claim.

Should Lara’s Supplementary Affidavit be Struck?

[23] Ian submits that parts of Lara’s supplementary affidavit should be struck pursuant to Rule 25.11 and 38.12 of the Rules of Civil Procedure on the grounds that it may prejudice or delay the fair trial or delay the fair hearing of the application, is scandalous, frivolous or vexatious, or is an abuse of process of the court.

General Principles

[24] Pre-emptive motions to address the admissibility of evidence on a civil motion or application are for exceptional cases. In York Condominium Corporation No. 21 v. All Unit Owners and Mortgagees of Record of York Condominium Corporation No. 21, 2021 ONSC 4600, at paras. 46 and 52, Sanfilippo J. stated:

Regarding pre-emptive motions to address the admissibility of evidence on a civil motion or application, I adopt the principles stated by D.M. Brown J. in 1196303 Ontario Inc., that a pre-emptive motion may be brought in only the “rarest and most extraordinary of cases”. I will add that these principles, and this standard are consistent with the Supreme Court’s call in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 2, 23-28, for a “culture shift” in civil litigation that requires simplifying pre-trial processes, and ensuring the most efficient, proportionate and timely process for the determination of each case. This will only rarely be achieved by layering motion upon motion. …

A pre-emptive motion to challenge affidavit evidence on a civil motion or application under Rule 25.11, if heard, is not about “close calls” in the admissibility of the evidence. It calls for focused attention on the part(s) of the affidavit evidence that are said to prejudice or delay a fair hearing, are scandalous, vexatious or frivolous or an abuse of process. Any affidavit evidence of questionable admissibility that does not rise to these levels has no place in a pre-emptive motion under Rule 25.11.

[25] In Botelho v. Faulkner, 2020 ONSC 6471, at para. 39, Fowler Byrne J. stated:

The courts have tackled the definition of “scandalous”, “vexatious”, “frivolous”, and what constitutes an “abuse of process” on many occasions. The principles can be summarized as follows:

a. Any fact that is relevant to a cause of action pleaded can be neither scandalous, frivolous, nor vexatious: Brodie v. Thomson Kernaghan & Co., 2002 CarswellOnt 1587, 27 B.L.R. (3d) 246 (S.C.), at para. 28.

b. If a fact has no effect on the outcome of the proceedings, whether true or not, and is inserted solely for atmosphere, it is scandalous, frivolous and vexatious: Brodie, at para. 26; Taylor v. Canada Cartage Systems Diversified GP Inc., 2018 ONSC 617, at paras. 26, 28, citing Canadian National Railway v. Brant, 69 O.R. (3d) 734 (S.C.), at para. 28.

c. If historical facts are pleaded and they have no relevance to the proceedings, they will be struck: Canadian National Railway, at para. 28.

d. A scandalous pleading is one that is irrelevant, argumentative and inserted for colour; it is a pleading that contains bare allegations with no facts to support them or contains unfounded and inflammatory attacks on the integrity of a party: George v. Harris, 2000 CarswellOnt 1714, [2000] O.J. No. 1762 (S.C.), at para. 20.

e. A frivolous pleading is defined in John v. Samuel, 2018 ONSC 5651, at para. 24. It includes an action that is so clearly and palpably bad as to require no argument to convince the courts and would be pronounced as an indication of bad faith on the basis of mere inspection: Eastside Apartments Limited v. Aird Berlis, 2015 ONSC 1379, at para. 44, citing 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd., 37 O.R. (3d) 70 (C.J. (Gen. Div.)), at para. 18; Vatamanu v. Baird, 2009 CarswellOnt 8045 (S.C.), at para. 36, citing Elguindy v. Koren, 2008 CarswellOnt 1081, [2009] O.J. No. 764 (S.C.), at paras. 45-48.

f. A vexatious pleading is one that is instituted without reasonable grounds: Vatamanu, at para. 36, citing Elguindy, at para. 46. A vexatious suit has been further defined as one instituted maliciously and without good cause: Samuel, at para. 24.

g. An abuse of process requires the court to control its process and prevent the abuse of procedures that would place the administration of justice into disrepute: Samuel, at para. 24.

h. An abuse of process may be established where the proceedings (a) are oppressive or vexatious and (b) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The doctrine evokes the public interest in a fair and just trial process and the proper administration of justice: Eastside Apartments Limited, at para. 46, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, at para. 35.

[26] Thus, Rule 25.11 serves to avoid having the litigation diverted by allegations into facts that are not relevant to the real issue before the court or if marginally relevant their probative value is outweighed by their prejudicial effect: Canadian National Railway Co. v. Brant, 96 O.R. (3d) 734, paras. 29-30.

Relevant Evidence to Establish Undue Influence

[27] The applicant seeks a declaration that the Will is invalid on the grounds that Dorothy lacked testamentary capacity, did not have knowledge or approve of the Will and that the Will was procured by undue influence.

[28] An allegation that a person made a Will under undue influence requires “… proof that the testator's assent to the Will was obtained by influence such that instead of representing what the testator wanted, the Will is a product of coercion”: Vout v. Hay, [1985] 2 S.C.R. 876 at para. 21. The person alleging undue influence bears the onus of proving it: Vout, para. 28.

[29] Pressure is not undue influence unless it amounts to coercion. In [Hall v. Hall (1868), L.R. 1 P. & D. 481](Hall v. Hall (1868), L.R. 1 P. & D. 481), at page 482, Sir J.P. Wilde, stated:

In a word, a testator may be led but not driven; and his Will must be the offspring of his own volition, and not the record of someone else's.

[30] In Banton v. Banton, [1998] O.J. No. 3528, Cullity J., stated at para. 59:

A testamentary disposition will not be set aside on the ground of undue influence unless it is established on the balance of probabilities that the influence imposed by some other person on the deceased was so great and overpowering that the document reflects the Will of the former and not that of the deceased. In such a case, it does not represent the testamentary wishes of the testator and is no more effective than if he or she simply delegated his Will-making power to the other person. [Emphasis added]

[31] The relevant considerations for establishing “undue influence” were described by the Ontario Court of Appeal in Roe v. Roe, 2024 ONCA 179, at para. 18, as follows:

There is no set list of considerations that must be considered in all cases when considering an allegation of undue influence. Instead, the analysis of the issue is case specific and should examine the circumstances to understand the nature of the relationship between the alleged influencer and the deceased. [Emphasis added]

[32] Relevant considerations in respect of whether a testator has been unduly influenced in making their Will include the circumstances surrounding the creation and execution of the will and may include whether the testator:

(a) Was socially isolated.

(b) Was dependent on the beneficiary for emotional and physical needs.

(c) Experienced recent family conflict.

(d) Experienced recent bereavement.

(e) Made a new will that is not consistent with prior wills.

(f) Made testamentary changes simultaneously with changes to other legal documents.

(g) Failed to explain why certain family members were not named as beneficiaries.

(h) Made significant inter vivos gifts.

(i) Stated that she feared the person propounding the will.

See Roe, para. 17; Gironda v. Gironda, 2013 ONSC 4133, at para. 77; Tate v. Gueguegirre, 2015 ONSC 844, para. 9.

Application of the Principles to this Motion

[33] Ian, a 52 year old lawyer, lived with his mother for many years and up to time of her death. In his affidavit dated June 15, 2022, Ian denies that the controlled what his mother ate or that she was dependent on him for groceries or meals. In paragraph 5 of her supplementary affidavit, Lara states that her mother told her that one evening in 2021 what Dorothy what she was going to eat. This evidence has marginal relevance however I do not find that it should be struck.

[34] Ian withdraws his request to strike paragraphs 30, 44, 45, 46, 49, 61, 70 (with the last sentence removed), and 72.

[35] Paragraphs 10-45 allege a 40-year history of physical and emotional abuse by Ian towards women including his schoolmates, his ex-girlfriends, Lara, and Dorothy.

[36] The paragraphs that contain allegations of physical and emotional abuse towards his ex-girlfriends and Lara have no relevance to the claim for undue influence and are highly prejudicial. I strike paragraphs 10, 13, 14, 15, 16, 17, 18, 19, 20, 27, 28, 29, 47 and the last sentence of paragraph 70.

[37] Paragraph 11 contains allegations that the parties’ father (who died in 1982) was violent towards Ian. That evidence is irrelevant. The allegation that Ian changed schools is also irrelevant. Paragraph 11 is struck.

[38] Paragraphs 12, 13, 14, 15, 4, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 24, 25, 26, 27 and 28 relate to Ian’s behaviour in the 1980s and early 1990s as a child and have no relevance.

[39] Paragraphs 98, 99 and 103 allege alcohol abuse. These allegations are irrelevant. Paragraphs 98, 99 and 103 are struck.

[40] Paragraphs 31, 32, 33, 34, 35, 36, 37, 38, 39 and 40 contain evidence related to Ian’s behaviour in or about 2000 when Lara moved to Dallas including her wedding. This evidence is also irrelevant.

[41] Paragraph 41 states that Dorothy saw a counsellor from 2005 to 2009 and that they had discussions regarding Ian’s threatening behaviour. While this behaviour is more than 15 years before Dorothy’s death, I find that it is relevant evidence and should not be struck.

[42] Paragraph 50 contains a highly prejudicial bald assertion regarding Ian’s behaviour towards Dorothy over a 40-year period without any particulars. Paragraph 50 is struck.

[43] Paragraphs 87 and 88 are specific allegations of coercive behaviour by Ian towards Dorothy. These allegations have relevance to this claim and are not struck.

Order

[44] The parties shall provide the court with a draft Order that reflects that the above directions. The parties are encouraged to resolve the issue of costs, failing which any party seeking their costs shall deliver their costs submissions by December 17, 2024. Responding costs submissions shall be delivered by December 24, 2024. Reply costs submissions, if any, shall be delivered by December 30, 2024. Each submission shall be a maximum of three pages, exclusive of an Outline of Costs and any offers to settle.

Mr. Justice M.D. Faieta

Date: December 10, 2024