Court File and Parties

CITATION: Gallant v. Rowsell, 2026 ONSC 2829

COURT FILE NO.: CV-26-00007260-00ES

DATE: 2026-05-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Donna Gallant

AND:

Theresa Rowsell, in her personal capacity and in her capacity as the named Estate Trustee for the Estate of David Martin Rowsell, deceased, Sarah Rowsell and the Estate of David Martin Rowsell and the Halton Regional Police Service

BEFORE: J.T. Akbarali J.

COUNSEL: Shael Eisen, for the Applicant Andrea Lusk, for the Respondents Theresa Rowsell, Sarah Rowsell and the Estate of David Martin Rowsell

HEARD: May 12, 2026

Endorsement

Overview

[1] The applicant brings an urgent application challenging the will of the deceased, David Martin Rowsell, and for dependent’s support. She has been excluded from the home in which she and the deceased resided during his lifetime. She seeks an order returning her to the home, and certain production orders.

[2] The respondents Theresa Rowsell, Sarah Rowsell, and the estate (the “Rowsell respondents”) claim the applicant is not a spouse or dependent of the deceased, but a former common law spouse who lived in a separate basement apartment in the deceased’s home. They claim that, during her continued occupation of the home after the deceased’s death, the applicant interfered with estate assets, including erasing data on the deceased’s electronic devices since 2022 or 2023 which would establish that the applicant and deceased had separated, which allegation is supported by expert evidence. They argue that a timetable ought to be put in place to determine the threshold issue of whether the applicant is a dependent before any interim relief is ordered.

[3] Prior to the return of the hearing, in part because the deceased and the applicant resided at a property in Burlington, the beneficiaries reside in Vancouver, and I could see no obvious rational connection between the proceeding and Toronto, I directed the parties to attend prepared to address r. 13.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Both the applicant and the Rowsell respondents attended the hearing and submitted that this action is properly commenced in Toronto.

[4] I disagree. For the reasons that follow, I order this proceeding transferred to Milton in Central West judicial region.

Background

[5] The applicant claims to be the common law spouse of the deceased, David Martin Rowsell, who died about two months ago, on March 8, 2026. Prior to his relationship with the applicant, the deceased acquired two properties: one in Burlington in which he and the applicant resided, and another in Gravenhurst.

[6] The applicant argues that she lived in a common law relationship with the deceased in his home in Burlington. The Rowsell respondents argue that the couple had broken up several years ago, that the deceased had consulted a lawyer and made efforts to remove the applicant from his home, and that due to his declining health he was not able to follow through on those efforts. The Roswell respondents argue that the applicant had relocated to a basement apartment in the property where she resided on her own. The respondents have filed six affidavits to support their claim that the applicant and deceased had broken up years before his death and that the applicant interfered with estate assets after the deceased’s death, leaving them no option but to exclude her from the property.

[7] The factual issues are contentious, and I make no findings of fact at this stage, when no responding materials have been filed, and no cross-examinations have occurred.

Is this proceeding properly commenced in Toronto?

[8] Rule 13.1.01(1) provides that where a statute or rule requires a proceeding to be commenced in a particular county, it shall be commenced at a court office in that county. In this case, no statute or rule requires this proceeding to be commenced in a particular county.

[9] Under r. 13.1.01(2), if subrule (1) does not apply, “the proceeding shall be commenced at a court office in a county with which there is a rational connection, as determined on the basis of the factors listed in clause 13.1.02(2)(b).”

[10] Rule 13.1.01(2) is a recent amendment to the Rules of Civil Procedure. For example, when Brown J. (as he then was) issued his decision in Pearsall (Re), 2009 25140, a decision relied upon by the applicant, the relevant rule provided that if subrule (1) did not apply, “the proceeding may be commenced at any court office in any county named in the originating process.” Due to the change in the wording of the rule, the decision of Brown J. has no application in this case. The legislature has signaled an intention to limit when a proceeding may be commenced in a particular judicial region.

[11] Under r. 13.1.02(4), a judge sitting in the county in which the proceeding was commenced, may, on their own initiative, make an order to transfer the proceeding to another county. However, before making such an order, the judge must convene a case conference to consider if the order should be made and must be satisfied that the transfer is desirable in the interest of justice, having regard to the factors listed in clause 2(b).

[12] In this case, I did not convene a case conference, but the issue was addressed at the hearing, on notice to the parties, who had the opportunity to provide jurisprudence and make submissions on the question of whether the proceeding ought to be transferred. No party asked for an adjournment of the matter to a case conference or for more time to respond to my request that they address the impact of the rule. I thus conclude that r. 13.1.02(5) has been substantially complied with. This determination is consistent with r. 1.04(1) and (1.1) of the Rules of Civil Procedure, which require that the court’s orders be proportionate to the complexity of the issues, and that the rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits. I find that convening a case conference would only have led to delay, which would have been undesirable in circumstances where the applicant seeks urgent relief.

[13] Moreover, to the extent that hearing the parties on the issue at a hearing rather than a case conference is a failure to comply with the rule, I note r. 2.01(1), which provides that a failure to comply with the rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity.

[14] Having regard to this statutory framework, I conclude that it is appropriate to consider, at this juncture, whether there is a rational connection between this proceeding and Toronto, and whether an order transferring this proceeding to the Central West judicial region ought to be made. Both these determinations require me to consider the factors listed in clause (2)(b).

[15] Rule 13.01.02(2)(b) sets out the following factors relevant to whether a transfer to Central West is desirable in the interest of justice. These are the same factors that are relevant to whether there is a rational connection between this proceeding and Toronto:

(i) where a substantial part of the events or omissions that gave rise to the claim occurred,

(ii) where a substantial part of the damages were sustained,

(iii) where the subject-matter of the proceeding is or was located,

(iv) any local community’s interest in the subject-matter of the proceeding,

(v) the convenience of the parties, the witnesses and the court,

(vi) whether there are counterclaims, crossclaims, or third or subsequent party claims,

(vii) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,

(viii) whether judges and court facilities are available at the other county, and

(ix) any other relevant matter.

[16] The applicant argues that the proceeding is appropriately commenced in Toronto because the Toronto estates list has subject matter expertise, Toronto requires mandatory mediation when many other jurisdictions do not, and the lawyers for the parties are in Toronto. She relies on factors (v) and (vii) above. The applicant argues that the location of the witnesses is not a relevant factor unless there is a trial, because so much is done virtually in any event. The respondent supports the applicant’s argument.

[17] In addition to the decision of Brown J. in Pearsall, which I have noted does not apply given the rule amendment, the applicant relies on a decision of Gilmore J. in Gefen v. Gefen, an unreported decision of this court from January 2026. In it, Gilmore J. considered the motion of one of the parties in an estates proceeding to transfer the proceeding to Newmarket from Toronto. Given that the motion was brought by one of the parties, she considered whether that party had met the burden of proof to show that Newmarket was a better location than Toronto to hear the application. She noted a number of connections between the proceeding before her and Toronto, including that all but one of the parties resided in Toronto, the matter was connected to estate litigation that had proceeded in Toronto involving the estate of the deceased’s husband, and the estates list in Toronto had knowledge of the relevant litigation history of that proceeding and previous proceedings relating to the deceased’s estate, and that claims were made against assets in the estate of the deceased’s husband which was connected to Toronto through the prior litigation. Gilmore J. also noted that the motion should have been brought in Newmarket in accordance with the Central East Practice Direction. She declined to transfer the proceeding to Newmarket.

[18] Unlike Gefen, this case does not have factors that connect it to Toronto, apart from the location of the lawyers. And as the applicant noted several times, the prevalence of zoom hearings means that there need not necessarily be increased costs associated with Toronto-based lawyers being retained in connection with a Burlington proceeding, at least until trial.

[19] In this case, the events or omissions that give rise to this claim occurred in Burlington. That is where the applicant is alleged to have been damaged. To the extent the property in which the applicant and the deceased lived is implicated in the proceedings, it is located in Burlington. The witnesses are also located in Burlington. The expert who has been retained is located in Burlington.

[20] There is no evidence of any local community’s interest in the subject-matter of this proceeding. There are no counterclaims, crossclaims, or third or subsequent party claims that are relevant. There is no evidence before me or suggestion made that judges and court facilities are not available in Central West, Burlington’s home jurisdiction.

[21] To the extent the applicant relies on the expertise of the Toronto estates list, I note that all judges of the Superior Court of Justice have the jurisdiction and capability of determining all matters on the court’s list. If the fact that the Toronto estates list deals principally with estates matters is enough to justify proceedings being brought before it regardless of the location with which the estates proceedings are rationally connected, the logical conclusion of the argument is that Toronto ought to hear all the estates proceedings brought in the province. That is plainly incorrect.

[22] Moreover, I take note of the decision in RBC v. Gill, 2025 ONSC 3094, released before the amended rule came into force. There, Kurz J., considering the (unchanged) factors under subrule (2)(b), raised concern regarding forum shopping, and noted that the court should not have to bear the burden of proceedings which have no connection to it. He quoted with approval the decision of Chozik J. in Calloway REIT v. MYJKL Investments Ltd., 2025 ONSC 2372, at para. 11, where she wrote:

The influx of proceedings unrelated to this region results in delays for those litigants who either have no choice of judicial region (such as litigants in family law proceedings) or whose civil disputes are tied to Halton Region. This practice of bringing motions, and the underlying actions or applications, in judicial regions unrelated to those actions must stop. It is unfair to the litigants who have properly brought their matters in the appropriate judicial region, and it creates improper strain on limited judicial resources.

[23] In The Toronto-Dominion Bank v. The Other End Inc. et al., 2025 ONSC 85, Firestone R.S.J., of this judicial region, noted, at para. 26, that while plaintiffs (or applicants) are generally entitled to choose at first instance where they commence proceedings, they are not free to choose a venue without first considering whether the judicial region and location have a rational connection to the matters at issues in the proceeding. He went on to note, at paras. 27-30, that there is an increased burden on judicial resources and delay that results from commencing a proceeding in a judicial region that has no connection to the matter; that delay in a particular location on its own, without due consideration of other connecting factors, is not a valid basis to choose one location over another; and that the introduction of virtual platforms is not intended as a means for circumventing the requirement to choose a venue rationally connected to the matters at issue.

[24] In Business Development Bank of Canada v. Ang, 2025 ONSC 1752, Mills J., after citing Firestone R.S.J. in The Other End, held that the hope or expectation that an earlier hearing date may be obtained in one jurisdiction over another is “nothing more than forum shopping.” She wrote that the practice must stop and cited the unfairness of forum shopping to the litigants who have properly brought their matters in the appropriate judicial region. Like Chozik J. in Calloway, she noted the improper strain on limited judicial resources that arises from commencing proceedings in judicial regions that are not rationally connected to the matter in dispute.

[25] Here, there is no rational connection between Toronto and the litigation apart from the location of the lawyers.

[26] For the reasons I have already expressed, the proceedings are rationally connected to Burlington.

[27] The Toronto estates list is under-resourced, especially in view of the static complement of judges appointed to Toronto in the face of the growing population in Toronto region, the increased complexity of the cases commenced in Toronto, and the growing numbers of estates proceedings which reflects the fact that the baby boomer generation has reached the senior years, and has tremendous wealth to pass down. It is unfair to those litigants who have brought their proceedings correctly in Toronto to be delayed further by proceedings that are commenced in Toronto without any rational connection to the jurisdiction.

[28] I thus conclude that the proceeding shall be transferred to the Central West region. Milton is the home courthouse for Burlington; the proceeding shall be transferred to Milton.

[29] I decline to make any order for urgent relief. Every court maintains an urgent list. The parties are free to seek the urgent relief they request from a court in that judicial region.

J.T. Akbarali J.

Date: May 13, 2026