T. Viresh Fernando

This costs endorsement addresses the payment of a $750.00 costs award previously granted to the applicant for an unnecessary motion.

The applicant sought to have these costs paid personally by the respondent's former litigation guardian, Mary Keogh, or her counsel, T. Viresh Fernando.

Applying the two-part test from Galganov v. Russell (Township), the court found that counsel's conduct did cause unnecessary costs but, applying the "extreme caution" principle from Young v. Young, declined to order personal costs against him.

However, the court ordered the former litigation guardian, Mary Keogh, to pay the $750.00 costs personally and forthwith, affirming that litigation guardians are responsible for costs awards against the special party they represent, especially when they take unreasonable positions.

This case concerns motions regarding the mental capacity of the respondent, Nichola Feldman-Kiss, and the validity of an ex parte order appointing a litigation guardian.

The applicant, Greg Somers, sought to set aside an ex parte order that declared the respondent a special party and appointed Mary Keogh as her litigation guardian, and to compel the respondent to complete a previously agreed-upon settlement.

The respondent, through her litigation guardian, brought a new motion seeking the same relief as the ex parte order, but on notice and with new medical evidence.

The court set aside the ex parte order due to procedural improprieties and lack of full disclosure.

The court also dismissed the respondent's new motion, finding it to be an abuse of process.

Alternatively, even if not an abuse of process, the court found insufficient reliable evidence to displace the presumption of capacity and retroactively declare the respondent incapable at the time of the settlement.

This endorsement from a case management conference addressed several procedural disputes in a family law matter.

The court clarified the scope of upcoming long motions, disallowing new heads of relief sought by the respondent that were not previously discussed or scheduled.

It permitted the applicant to include material related to costs of prior proceedings, distinguishing these from settlement offers for the current motion.

The court also ordered the respondent's former counsel, Andrew Chris, to attend the long motion, leaving the decision to call him as a witness to the motion judge.

Additionally, the court admonished the respondent's counsel for improper communication with the court and set strict guidelines for future interactions.