Written on behalf of NULaw

Friends With Benefits, Or Spouses?

Relationships come in all different shapes and sizes, but when it comes to claiming spousal support, not every type of relationship will qualify as serious enough to warrant payment. This was something an Ontario mother discovered after recently trying to secure spousal support in a decision from the Ontario Superior Court of Justice.

The relationship and children

The mother and father are six years apart in age. They dated briefly in 2012 when the mother was still in high school but got back together in 2014 and maintained a relationship through to May 2018. The mother became pregnant with their first child shortly after they got back together, and they had another child in 2018.

The children have lived with the mother their entire lives, and the father pays child support, though the mother raised questions about whether he is intentionally underemployed. However, the more interesting question that arose during the trial was whether the mother was entitled to spousal support. To answer this question, the court had to determine whether she fit the definition of “spouse” within the Family Law Act (“FLA”).

What does it take to be a spouse?

The mother and father did not ever live together. However, the mother did live in a rental property owned by the father from November 2015 until May 2018. The did, however, continue to have an intimate relationship during this time. A typical routine would see the father arriving at the mother’s apartment at around 5:00pm. He would spend a couple of hours with their child, and when the child went to bed the parents would spend time together.

The mother took the position that she fit the definition of spouse under the FLA. The relevant section of the act reads,

“spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.

The mother claimed their relationship fit the second of the two subparagraphs. The father, however, described the relationship as one of “friends with benefits.”

In coming to its decision, the court looked at a number of factors to be considered. They are listed as follows:

1. Shelter:

 a.      Did the parties live under the same roof?

 b.      What were the sleeping arrangements?

 c.      Did anyone else occupy or share the available accommodation?

2. Sexual and Personal Behaviour:

 a.      Did the parties have sexual relations? If not, why not?

 b.      Did they maintain an attitude of fidelity to each other?

 c.        What were their feelings toward each other?

 d.      Did they communicate on a personal level?

 e.        Did they eat their meals together?

 f.        What, if anything, did they do to assist each other with problems or during illness?

 g.        Did they buy gifts for each other on special occasions?

3. Services:

What was the conduct and habit of the parties in relation to:

 a.      Preparation of meals,

 b.      Washing and mending clothes,

 c.        Shopping,

 d.      Household maintenance, and

 e.        Any other domestic services?

4. Social:

 a.      Did they participate together or separately in neighbourhood and community activities?

 b.      What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

5. Societal:

What was the attitude and conduct of the community towards each of them and as a couple?

6. Support (Economic):

 a.      What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

 b.      What were the arrangements concerning the acquisition and ownership of property?

 c.        Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

7. Children:

What was the attitude and conduct of the parties concerning children?

After reviewing the factors, the court determined that the relationship did not fit that of spouses. The father maintained his own home, didn’t keep any of his belongings at the mother’s apartment, and had relationships with other women. As a result, the mother was denied spousal support.

If you have questions around spousal support or other related matters, contact NULAW as soon as possible. We are dedicated to pursuing your interests and getting exceptional results. Let us focus on your rights and negotiate the best possible outcome for you while you focus on rebuilding and moving on. Contact us online or at 416-481-5604 to book a consultation.


Couple Divorces in Ukraine, And Then Separates In Canada. Is It Valid?

We’ve recently blogged about international divorces and how they are taken into account in the Canadian legal system. A recent decision from the Ontario Superior Court of Justice provides us to revisit this topic, only this time with an interesting twist. The question at the centre of the trial was whether a divorce in Ukraine could be upheld even though the couple, living in Canada, did not actually separate until a few months after the divorce was finalized. Sound confusing? We agree. Let’s get into the details.

The background

The father was born in Ukraine, while the mother was born in Russia. They were married in what is now Ukraine on July 13, 1983. They had one child together, though she was an adult at the time of the trial.

The family started the process of moving to Canada in 1996, though it took two years for them to get approval to immigrate. Following that approval, they had six months to make the move.

The husband testified that the marriage ran into trouble shortly after they applied to immigrate. He said that their last year in Ukraine was “separate and unhappy.” The mother confessed to having a relationship with another person before the move, which the father understood as the end of the marriage.

The parties began to talk about divorce in May or June of 1998, prior to moving to Canada. The father wanted to get divorced in Ukraine, where they had a better understanding of the process. The wife, who was worried that divorcing in Ukraine would negatively impact their immigration opportunity, said she did not agree to go through with it.

Coming to Canada

The family landed in Canada on June 27, 1998, but the father returned for work on July 12, 1998. At this time he transferred half of the money in his bank accounts to the wife, something he said he did as part of their separation.

In August of that year, the father began pursuing divorce in Ukraine. He did not provide the mother with any of the forms he filled out, having been told by his lawyer that the court would do so. However, he had provided their Ukraine apartment as her last known address.

A divorce hearing took place on September 28, 1998. The mother was not present. The divorce was granted, and the husband let her know after returning to Canada in January 1999. It was at this time he removed his personal belongings from their apartment.

The mother contests the divorce

Things got complicated when the mother denied they had separated at the time the divorce was ordered. She also said she was not given proof of the divorce until 2001.

The court noted that recognition of foreign divorces is made under the Divorce Act, which states that there are three bases upon which a foreign divorce will be recognized. They include either of the spouses being a resident of the foreign country for one year before the divorce. The court found that the mother and father were both citizens of Ukraine leading up to the divorce and that Ukrainian law allowed for the husband to apply for divorce. In Ukraine, the law does not require a couple to be separated for a year before divorcing, meaning it was a non-factor that the husband did not move out of their apartment until after returning from Ukraine in 1999.

As a result, the divorce was recognized.

We understand that the end of a marriage is a difficult and emotional experience. At NULAW, we strive to make the process easier by providing outstanding legal guidance and ensuring your interests and rights are protected so that you can focus on moving on with your life. Contact us online or at 416-481-5604 to book a consultation.


A Tale Of Two Acts

Limitation periods are an important part of the law, telling potential parties to an issue how long they have to make a claim, or conversely when they might be free from a claim. However, there are a lot of laws, and there are situations where the limitation period of one law conflicts with the limitation period set out in another. This was the case in a recent decision by the Ontario Superior Court of Justice, giving us a great opportunity to see what happens when two limitation periods are in play.

The facts

The husband and wife were involved in a common-law relationship for a number of years. They resided in a home owned by the wife. She passed away on July 2, 2015. Under the terms of her will, the husband was granted permission to remain in the home for two years following her death.

Two years came and went, at which time the wife’s children sought to sell the home, asking the husband to move out. In response, the husband commenced an application against the Estate on September 25, 2017. In the application, he sought to be awarded a constructive trust equal to one-half of the value of the home. The matter ended up before the court after the estate asked for the application to be dismissed.

What does the Trustee Act say?

The estate’s trustee turned to Section 38 of the Trustee Act, which states that a two-year limitation period for actions against executors and administrators for torts begins to run from “the date of death regardless of when the injuries occurred or matured into an actionable wrong.” This means that even if a potential claimant only finds out about their ability to make a claim one year after the death occurs, the clock would still have been clicking from the date of death.

What does the Real Property Limitations Act say?

The husband obviously didn’t agree that the Trustee Act should determine the limitation period in play. Instead, he turned to the Real Property Limitations Act, which states, “No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next at the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or distress, or to bring such action, first accrued to the person making or bringing it.”

The question before the court, then, was whether the limitation period was two years or ten years.

Determining which limitation period to use

Fortunately, common law has provided us with some guidance on how to handle conflicting limitation periods. A 2014 decision from the Ontario Court of Appeal states, “A claim for constructive trust as a remedy for unjust enrichment is a claim for a right to the land.” As a result of this, the court found that the Real Property Limitations Act was the appropriate act to turn to.

Contact the experienced estate litigation lawyers at NULaw in Toronto to learn how we can protect your interests and achieve the best possible resolution of your estate dispute. Contact us online or at 416-481-5604 to book a consultation today.


Parent Attempts To Have Loan Repaid After His Daughter And Her Husband Separate

Sometimes having family willing to assist with financial help can be extremely beneficial. However, we’ve often seen that if there is one thing that can drive a family apart, money is it. While contracts can go a long way to minimize the likelihood of litigation in the event of a falling out, there are no guarantees. Such was the case in a recent decision from the Ontario Court of Appeal when a separation caused one of the parties’ parents to call for repayment of a loan.

A family loan

The husband and wife, who were married in 2001, owned a home together. In 2007, the wife’s parents (“the father” and “the mother”) loaned the couple $216,000 for improvements of the property, including the construction of a “granny suite” which they moved into. The father continued to live in the granny suite after the mother died in 2013.

The parties agreed to a License Agreement, which they drafted with the help of counsel. The agreement stated that the loan, which was registered at $165,000, would be secured by a demand mortgage. The father or mother could not register the mortgage agreement on title unless they first provided 14 business days’ notice of demand for payment. Only after those 14 days were up could the mortgage be registered.

The marriage falls apart

The husband and wife separated in 2015. The father unsuccessfully attempted to register the mortgage before ending up before a motion judge who issued a summary judgment. The judgment explained what would happen if the father was successful in his application,

“If (the father) is entitled to the mortgage, or other relief which recognizes that the parties owe Gus the amount set out in the Agreement and the mortgage, that amount will be included in the Net Family Property calculation of the parties as a debt owed equally by them to (the father).”

However, the husband said the money was not a loan, but a gift. The motion judge did not agree, writing,

“I am satisfied based on the jurisprudence applied to the evidence in this case, that there was a clear demonstration that the money advanced to complete the granny flat, secured by a demand mortgage, was a loan and not a gift. There was no evidence that the money advanced was a gift, except (the husband’s) personal belief that it was.”

On appeal

The husband appealed on the grounds that the motion judge erred in determining the agreement was a license rather than a lease of property. However, the court was quick to dismiss this, stating that the word “license” is printed all over the contract. The court stated,

“If (the mother and father), (the wife’s) parents, intended to give $165,000 to (the husband and wife), they hardly needed to engage separate lawyers to negotiate and ultimately finalize a 12-page, 12 section formal document with the title ‘Licence Agreement’ and a Schedule titled ‘Mortgage Agreement’. There is nothing in these documents to even remotely suggest that (the mother and father) were making a $165,000 gift to (the husband and wife). We agree with the motion judge: “If the advance was a gift, the drafting and execution of the Agreement makes no sense.”

If you are contemplating a separation, or have already begun the process, contact NULaw in Toronto as soon as possible. Obtain experienced legal guidance and ensure that any issues relating to property get the attention they deserve. Contact us online or at 416-481-5604 to book a consultation.


Man Jailed For Following Claim He Burned $1 Million To Avoid Spousal Support

Regular readers of our blog might know that it’s not incredibly uncommon for people going through a separation or divorce to avoid making full financial disclosure, with some people going to great lengths to keep their finances undisclosed. A recent article in the Ottawa Citizen highlights one such instance as well as the harsh penalties imposed that people can face when trying to hide their finances from the courts.

A pattern of deceit

The husband is an Ottawa business owner who had previously run unsuccessfully to become the city’s mayor. At some point or points following the separation, the husband sold properties and businesses he owned without telling the wife. Following the sales, he withdrew over $1 million dollars from the bank.

The husband had already been defying a court order not to sell the businesses or properties. When he did so anyway, the court sought to find out where the money went but was unable to do so. The situation ultimately landed the husband back in court to face a judge who was not too sympathetic to his situation.

A tall tale

Appearing before the court again, the judge asked the husband what happened to the money from the sales. He explained that through 25 withdrawals, he took $1,050,000 out of six bank accounts, showing the receipts to prove he did so. However, what he says next happened was shocking. The Ottawa Citizen describes the dialogue between the husband and the judge as follows,

“So where’s the money now? (the judge) pressed.

“I destroyed it,” (the husband) replied.

“You’ve lost me. What do you mean?” the judge asked.

(The husband) rambled and spoke of anxiety about a relationship with a daughter.

“Can I back you up a bit? When you say you destroyed it, what do you mean?” the judge asked.

“I burnt it,” (the husband) explained.

“To the tune of how much?” the judge probed.

“In total, about a million and thirty-nine thousand dollars.”

Despite his claims, the husband said he did not film the fire, and there were no witnesses on hand to back up his claim. The judge expressed that his explanation was hard to believe, saying it was “crystal clear” that the husband “has very clearly and deliberately set out to thwart the court and the proper administration of justice.”

Serious consequences

Following the hearing, the husband was led out of the courtroom in handcuffs and taken to jail to serve a 30-day sentence. In addition to his jail time, he was informed he would face a serious financial penalty of $2,000 per day for every day he failed to explain where the million dollars in cash had gone. The judge warned the husband that,

“It may well be, therefore, that your remaining assets, equity in the home and RRSPs, etc., end up entirely in the hands of (ex-wife). If that’s the result you are trying to bring about, then so be it. But you cannot thumb your nose at the court as you have done.”

Going through a separation or divorce can be difficult and emotional. The experienced and compassionate divorce lawyers at NULaw can make the process easier by providing outstanding legal guidance and ensuring your interests and rights are protected so that you can focus on moving on with your life. Contact us online or at 416-481-5604 to book a consultation.


What Role Do Courts Play In Assisting Self-Represented Litigants?

Getting separated or divorced can be financially stressful in addition to the emotional stress that comes with it. Some people might look to save money by forgoing hiring a lawyer and representing themselves in court. While the intentions behind doing so may be all well and good, it can often lead to a drawn-out legal process that may end up costing the person more than what they set out to save. But what role does a judge play in such situations? A recent decision from the Ontario Court of Appeal looks at how far a judge must go in assisting self-represented litigants.

Leading to the Court of Appeal

The case landed before the Ontario Court of Appeal after a highly contentious trial involving two self-represented parents resulted in the lower courts appointing lawyers on their behalf (a role known as “amicus”).

The case began when the mother brought an application for an order for custody of the parties’ three children, while also prohibiting access (or in the alternative, limiting to supervised access). The mother claimed that the father lived in Bermuda and there was a chance he would not return the children.

The mother hired and dismissed five lawyers before deciding to represent herself. The court eventually appointed an amicus on her behalf. The mother did not support the appointment, but she did cooperate with her amicus. The father was appointed an amicus after he ran out of money halfway through the trial and could no longer afford to pay for his lawyer.

The trial ended up completing in lower courts with both amicus serving, but the court was still asked to determine what the principles were in governing such appointments.

The court’s analysis

The court noted that the precedent governing the appointment of an amicus comes from a 2013 Supreme Court of Canada decision. The court wrote,

“[C]ourts may appoint an amicus only when they require his or her assistance to ensure the orderly conduct of proceedings and the availability of relevant submissions.” Adding, “once appointed, the amicus is bound by a duty of loyalty and integrity to the court and not to any of the parties to the proceedings.”

While the Supreme Court recognized that parties have the right to self-represent, trial judges are also responsible for ensuring a trial progresses at a reasonable rate. The court wrote,

“There are situations in which the appointment of amicus might be warranted, such as when the self-represented party is ungovernable or contumelious, when the party refuses to participate or disrupts trial proceedings, or when the party is adamant about conducting the case personally but is hopelessly incompetent to do so, risking real injustice.”

The court of appeal added its own thoughts, writing,

 It is no longer sufficient for a judge to simply swear a party in and then leave it to the party to explain the case, letting the party flounder and then subside into unhelpful silence. As this court has noted, ‘it is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence’ the court added ‘In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case, a trial judge requires the necessary evidence on which to base a sound decision and getting the evidence can be difficult when a party is unrepresented, is unfamiliar with the process and the venue, or is tongue-tied for other reasons. Recognizing this reality, a common practice has developed in which trial judges walk a self-represented party through the essential documents, giving the party every opportunity to explain under oath, line by line, his or her pleading, financial statement, and any pertinent documents, and doing the same with respect to the other party’s pleading, financial statement, and pertinent documents, requesting the party’s responding position and evidence. Once the evidence of a party has been received, then the other party may cross-examine.”

Ultimately, we feel you’re best off getting experienced legal assistance from the outset of a family law matter in order to make sure your issue is handled as quickly as possible and with your best interests in mind. At NULaw we are dedicated to protecting our clients’ interests and obtaining exceptional results in a cost-effective manner. Contact the knowledgeable, effective, and compassionate family lawyers at NULaw online or at 416-481-5604 to book a consultation.


Will Challenged For Testamentary Capacity Due To Brain Tumour

It’s not uncommon for people to wait longer than they should to write their wills. An unfortunate possible result of this could be that the will is challenged due to testamentary capacity. This is what happened in a recent decision from the Ontario Court of Appeal, in which the will of someone who died as a result of a brain tumour was successfully challenged.

A seizure leads to a terrible diagnosis

The testator was a successful businessman who was married for 30 years and had one child, who was 45 years old at the time of the trial. The testator and his wife separated seven years before his death but they did not divorce. He lived with his common law partner during those seven years.

The testator suffered a seizure on July 20, 2010. Following the seizure, he was diagnosed with brain cancer. Following the diagnosis, he made two wills. The first will was signed on August 16, 2010, and the second was made on September 8, 2010. In the first will he left the majority of his estate to his common law partner, excluding his only child. The second maintained this exclusion, but provided legacies a friend from Quebec and his former business associate, and a number of friends.

The testator attempted to make two new wills following the second one, but he did not sign them. He died on December 24, 2010.

At trial

Following the testator’s death, his daughter challenged the wills, claiming that the testator did not have the necessary testamentary capacity to make the two wills he signed after receiving his diagnosis.

During the original trial the court heard from a number of witnesses who spoke to the testator’s behaviour during that time. These witnesses included “the daughter, the estate trustees, former colleagues and friends, the former wife, the lawyers who prepared the wills, the lawyer who prepared a separation agreement between the testator and his wife, various treating doctors and experts called by each side.”

The trial judge applied the test for testamentary capacity and concluded the testator was not aware of the nature and extent of his assets at the time he made the wills. The judge also included he did not know who was going to benefit from his wills. The entire estate, as well as costs totalling more than $300,000 were awarded to the daughter.

On appeal

The trial judge’s decision was appealed by the trustees, but the court saw no palpable errors of fact or errors in law with the judge’s finding. In it’s decision, the court wrote,

“In the case at bar, the trial judge found that the estate trustees were adversarial and unreasonable in refusing to consider offers of settlement that were less than the result obtained and that they took unreasonable positions such as the hiring of a private investigator and claiming costs double those claimed by the respondent following trial.  Both estate trustees were responsible in carrying the litigation forward. There is no reason to interfere with the exercise of discretion of the trial judge.”

Contact NULaw in Toronto to obtain effective legal guidance with all of your estate planning needs, including wills and powers of attorney. An experienced estate lawyer can help you achieve your long-term goals and objectives, and plan ahead to protect yourself and your loved ones. Contact us online or at 416-481-5604 to book a consultation today.


Court Looks At Whether Parents Were Spouses In Order To Make An Order For Support

Modern families can take on all different forms, which is something the courts have continued to acknowledge. Despite progressive understandings of what constitutes a family, there are still certain situations that require a deeper look. This was the situation in a recent case heard by the Ontario Superior Court of Justice where the court was asked to determine if a couple were spouses, or merely friends who shared an intimate relationship. The question was critical in determining whether the man owed the woman spousal support.

A non-traditional relationship

The mother and the father were 24 and 30 years old at the time of the trial. They met in 2012 when they dated for a brief period of time. They reconnected in July 2014 and had a close relationship until 2018. During this time they had two children, born in 2015 and 2018.The couple did not ever live together, but the mother did live and pay rent in a property owned by the father from November 2015 until May 2018. Meanwhile, the father lived in a separate residence.

The children had been in de facto custody of the mother for their entire lives. The father had been paying periodic child support since April, but he did not pay spousal support. It was the mother’s position that she is also owed spousal support, a claim the father objects to.

Proving one is a spouse

The court stated that it was the mother’s onus to prove that she is a spouse within the definition set out in Part III of the Family Law Act (“FLA”), which states,

“spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.

The act defines “cohabit” as meaning “to live together in a conjugal relationship, whether within or outside marriage.”

The mother contends that their relationship satisfied a relationship as described in subparagraph “b” of the FLA. While the father accepts that the two were sexually intimate, he added that they did not “live together in a conjugal relationship.” Instead, he described their relationship as “friends with benefits.”

The court listed an extensive list of factors that the Supreme Court of Canada has listed when considering whether a conjugal relationship exists. The non-exhaustive list includes:

1. Shelter:

 a.      Did the parties live under the same roof?

 b.      What were the sleeping arrangements?

 c.      Did anyone else occupy or share the available accommodation?

2. Sexual and Personal Behaviour:

 a.      Did the parties have sexual relations? If not, why not?

 b.      Did they maintain an attitude of fidelity to each other?

 c.        What were their feelings toward each other?

 d.      Did they communicate on a personal level?

 e.        Did they eat their meals together?

 f.        What, if anything, did they do to assist each other with problems or during illness?

 g.        Did they buy gifts for each other on special occasions?

3. Services:

What was the conduct and habit of the parties in relation to:

 a.      Preparation of meals,

 b.      Washing and mending clothes,

 c.        Shopping,

 d.      Household maintenance, and

 e.        Any other domestic services?

4. Social:

 a.      Did they participate together or separately in neighbourhood and community activities?

 b.      What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

5. Societal:

What was the attitude and conduct of the community towards each of them and as a couple?

6. Support (Economic):

 a.      What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

 b.      What were the arrangements concerning the acquisition and ownership of property?

 c.        Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

7. Children:

What was the attitude and conduct of the parties concerning children?

The court noted that these factors must be considered together and that none of them are individually conclusive of the issue.

After reviewing the facts as they applied in this case, the court found that the couple did not ever live under the same roof. While they were intimate, the father did not ever stay over at the mother’s apartment. Their visits mainly related to the children, and only for a few hours each week. They did not act like a family, and in fact, the father was in a committed relationship with someone else.

Contact NULaw as soon as possible if you are contemplating a separation, or have already begun the process. We are dedicated to pursuing your interests and getting exceptional results. Let us focus on your rights and negotiate the best possible outcome for you while you focus on rebuilding and moving on. Contact us online or at 416-481-5604 to book a consultation.


Can An Estate Recoup Money Lost After Objection Without Merit?

Being named the executor of an estate is a serious responsibility that leaves the executor making decisions that may impact anyone who stands to benefit from a will or trust. Executors may also find themselves tied up in courts if they find themselves involved in estate litigation. Going to court can cost individuals and estates substantial amounts of money. A recent decision from the Ontario Superior Court of Justice looks at what remedies, if any, an estate has if someone brings a notice to objection without merit.

A Brother Scorned: Three Sisters Named as Estate Trustees & Beneficiaries

The situation arose after the deceased passed away on August 23, 2013. His will was dated four days before his death. In it, his sisters were named as estate trustees and beneficiaries, but his brother was not. The brother filed a Notice of Objection to the issuance of a Certificate of Appointment of Estate Trustee within a Will. The brother decided to abandon his claim at the last minute, but the sisters sought costs. The matter went before a motions judge who ruled in favour of the sisters. When the motion judge awarded costs, they included costs against the brother for estate administration costs for interest and penalties owed by the estate to the CRA.

The reason for this was that the Notice of Objection prevented the sisters from being able to liquidate the estate’s assets in order to pay a tax debt owed by the estate. This led to a larger tax debt than necessary due to penalties and interest amounting to $26,475.44.

The Appeal: Can Estate Administration Costs for Estate Litigation Be Awarded?

The brother appealed the motion judge’s decision. The court noted that the sisters, in their counterclaim, sought damages “resulting from the litigation commenced.” However, the court wrote that this is not a cause of action, stating “Commencing and pursuing litigation is not an actionable wrong.  Commencing and pursuing losing litigation is not an actionable wrong.  Commencing and pursuing vexatious and frivolous litigation or litigation that is an abuse of process is not an actionable wrong.”

The court noted that there is no statute, regulation, or common law principle to award estate administration costs (other than legal costs or disbursements) resulting from estate litigation. The court wrote,

“On the findings of the motions judge, the (brother) brought unmeritorious litigation which he eventually abandoned.  The consequence of these findings may be an adverse costs award.  If there is litigation misconduct, that award could be on an elevated scale.  But these findings do not give rise to a cause of action.  There is nothing in the factual matrix of this case to suggest that the counterclaim is bad merely as a result of deficient pleading.  The counterclaim is dismissed as failing to disclose a cause of action.”

Contact the experienced estate litigation lawyers at NULaw in Toronto to learn how we can protect your interests and achieve the best possible resolution of your estate dispute. Contact us online or at 416-481-5604 to book a consultation today.


Parents Seek To Introduce New Evidence On Appeal

The battle over vaccinations for children has been a hotly debated issue over the last couple of years. In fact, some provinces, such as New Brunswick, are debating whether mandatory vaccinations should be imposed on all children who enter the public-school system. This issue also impacts families at a micro level, with parents disagreeing over whether their children should be vaccinated. In a recent decision from the Ontario Superior Court of Justice, the court was asked to determine if new evidence could be used to re-litigate a prior ruling that did not require a separated couple’s children from being vaccinated.

The backstory

The mother and father separated in 2013 when their children were six and two years old. By the time of the trial, the children have not ever been vaccinated and were 13 and 9 years old. A minute of settlement from 2015 resolved many of their issues, but not vaccinations. The father was in favour of vaccinating the children, while the mother opposed it.

The parents entered mediation to try to resolve the issue. This resulted in the arbitrator determining the children did not have to be vaccinated.

Fresh evidence

The father appealed the arbitrator’s decision and asked the court if he could present fresh evidence during the appeal. The mother also asked to do the same. The evidence on both sides consisted mainly of experts taking the side of one parent or the other.

The court explained that the admission of fresh evidence is a discretionary matter, and that courts should rely on the factors set out in a 1979 Supreme Court of Canada decision. These factors are:

  • The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;
  • The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
  • The evidence must be credible in the sense that it is reasonably capable of belief;
  • The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

The court added that it also had a responsibility to consider the best interests of the children.

The mother’s argument was that the father had access to this evidence during the initial trial and that he was “not entitled to a second bite at the cherry.” However, the court determined that the father had only a limited amount of legal assistance by that point, and that the mother was able to present similar evidence in favour of her position. The court also determined the evidence could impact the outcome of the trial.

At NULaw, our experienced family lawyers can guide you through the process of making post-separation and post-divorce amendments. Contact us online or at 416-481-5604 to book a consultation, discuss your options, and ensure that you and your children are protected in changing circumstances.