Sheri Thompson

The Estate Trustee brought a motion for directions seeking payment declarations and orders for beneficiaries to provide documents and funds to pay estate debts.

The beneficiaries opposed, arguing lack of jurisdiction and seeking the Estate Trustee's removal due to alleged mismanagement.

The court dismissed both the Estate Trustee's motion, finding it an improper procedural mechanism for substantive relief, and the beneficiaries' application for removal, determining there was insufficient evidence to meet the high threshold for removing an estate trustee.

This costs endorsement followed an application heard on November 25, 2019.

Counsel for both parties advised the court that they had reached an agreement regarding costs, stipulating that each party would bear their own costs of the Application.

The court issued an order reflecting this agreement.

The applicant sought a declaration that he held 100% interest in the matrimonial home by right of survivorship after his wife's death, arguing that her lawyer's failure to register a joint tenancy severance before her death rendered the severance ineffective.

The wife had instructed her lawyer to prepare a new will leaving her estate to her adult children and to sever the joint tenancy.

The lawyer prepared the necessary documents, including an Acknowledgment and Direction to sever, which the wife signed.

However, due to an oversight, the severance was not registered until after her death.

The court dismissed the application, declaring that the applicant and the wife's estate each held a 50% interest as tenants in common.

The court found that the joint tenancy was effectively severed when the wife signed the transfer documents and gave immediate, unconditional instructions for registration, as delivery, not registration, determines severance.

The court criticized the lawyer's improper registration of the "zombie" deed after death using false statements, noting that a court application for a vesting order was the correct procedure.

The plaintiff, on behalf of his deceased father's estate, brought a motion to compel the passing of accounts regarding the spending of his father's deceased wife, who had acted as the father's Attorney for Property for nearly ten years.

The defendant, the wife's daughter and estate trustee, opposed the motion, arguing she could not account for her mother's spending and would be unfairly prejudiced.

The court dismissed the motion, finding that while there is no statutory limitation period for passing accounts, ordering one in these circumstances would result in a clear injustice, and the issues surrounding suspicious property transfers were better suited for the outstanding main action.

The Bank of Nova Scotia Trust Company, as Estate Trustee During Litigation (ETDL) of the Estate of Mary Kathleen Kuklis, applied for directions regarding the sale of real property, disposition of personal property, and production of documents from Martin Kuklis, a former attorney for property.

Following a settlement of the application, the issue of costs remained.

The court found Martin Kuklis's conduct, including his failure to pass accounts and self-interested opposition, warranted an award of substantial indemnity costs against him personally, payable first from his share of the Estate.

Karla Anne Shawn Kuklis, Shawna Ellis, and Wesley Kuklis were not held personally responsible for costs, and their request for costs was dismissed.

The ETDL was awarded full indemnity costs, with the difference between full and substantial indemnity paid from the Estate.

A mother sought leave to appeal an interim order granting temporary access between children and their paternal grandparents in a family law proceeding.

The moving party argued that the motion judge failed to properly consider the children’s views and preferences under s. 64 of the Children's Law Reform Act, declined to interview the children despite their request, and did not wait for a report from the Office of the Children’s Lawyer.

The court found that the motion judge had already ordered observational visits specifically to obtain independent evidence of the children’s views and preferences, which was available on the motion.

The decision not to personally interview the children was a discretionary choice given the evidence before the court.

The court held that the correctness of the interim order was not open to very serious debate and did not raise a matter of public importance warranting appellate review.

Child protection trial concerning a one‑year‑old child apprehended at birth.

The child protection agency sought Crown wardship, alleging the child was in need of protection under s. 37(2) of the Child and Family Services Act due to risk of harm in the mother’s care.

Evidence included prior child protection proceedings, psychological and parenting capacity assessments, concerns regarding the mother’s cognitive limitations, inconsistent access, and instability in her proposed caregiving plan involving a new partner.

The court found the child to be in need of protection and concluded that less disruptive alternatives, including supervision orders, would not adequately protect the child.

Crown wardship was ordered and the mother failed to meet the statutory test for post‑wardship access.

Following a family law trial involving custody, access, child support, and equalization issues, the court addressed the issue of costs.

The successful party sought recovery of litigation costs after obtaining substantially the same relief requested at trial, including increased imputed income for the opposing party and higher child support arrears.

The court applied the presumption of costs under the Family Law Rules and considered the complexity of the issues, the reasonableness of the parties’ conduct, and settlement conduct.

The court found the opposing party acted unreasonably and in bad faith by persistently failing to provide proper financial disclosure, denying the authenticity of numerous routine documents, and advancing unsupported positions that prolonged the trial.

Full recovery costs were ordered and secured against property, enforceable as an incident of support.

The applicant sought sole custody, child support, and equalization of net family property following the parties' separation.

The court granted the applicant sole custody, finding the respondent had abrogated his parental responsibilities and exhibited a cavalier attitude toward court orders.

The court imputed an annual income of $54,000 to the respondent for child support purposes due to his intentional under-employment and failure to disclose financial information.

Furthermore, the court found that the respondent's transfer of the matrimonial home to his father the day before the marriage was a sham, declaring the respondent the legal owner and ordering an equalization payment of $60,532.54 to the applicant, secured by a charge on the property.