Form Over Substance
As litigators, we use the Rules of Civil Procedure to ensure the required procedural steps are taken when preparing, serving and filing court materials. However, when it comes to estate matters knowing the Rules isn’t always enough.
For instance, the Toronto estates court office recently refused to allow a guardianship application to proceed together with an application seeking a passing of attorney accounts, notwithstanding that they were related matters and that there is no such requirement to commence two separate applications under the Rules or applicable legislation.
To avoid this type of situation happening to you, I recommend familiarizing yourself with the practice of the estates court office you are dealing with, which may have its own protocol. Reading the Practice Directions will also assist. In so doing you will learn, for example, that while pursuant to the Rules a notice of application can be issued by a court office either on its own or as part of an application record, the Toronto estates court office will not issue a notice of application if it is not accompanied by the record.
While the obligation to have an application record assembled at the get go can become a hindrance when an urgent court date is needed for interim relief, i.e. a motion for a certificate of pending litigation, one way to cope in that circumstance is to have a Caution registered on title to the property in question, which will give you a 60 day window to get your application materials completed and your motion date booked.
Hope this helps!
Natalia Angelini
