order - Toronto Estate Law Blog

Motion to Secure Assets Denied

Hull and Hull LLP — Wed, 14 Oct 2009 04:00:00 -0500

Rule 45 of Ontario's Rules of Civil Procedure contains mechanisms by which a party can freeze assets that are in issue or relevant to the proceeding. However, this should be done prior to the close of pleadings because once the matter is set down for trial, Rule 48.04(1) applies. Rule 48.04(1) requires that any motion brought after the close of pleadings have leave of the court. Leave will only be available where there has been a substantial or unexpected change in circumstances.

A recent example of Rule 48.04(1) barring a motion for interim preservation occured in Trapukowitcz Estate v. Royal Bank of Canada. In this case, an estate trustee was seeking an order that the proceeds of a GIC and a bank account be paid into court pending determination of ownership. Justice Harris refused to grant leave to bring the motion because, on the basis of the admissible evidence, the estate trustee had not shown a substantial or unexpected change in circumstances.

Justice Harris followed Machado v. Pratt & Whitney Canada Inc. (1993), 16 O.R. (3d) 250, which requires strong affidavit evidence to demonstrate a "substantial and unexpected change in circumstances to the extent that to refuse the order would be manifestly unjust". The grounds in the moving estate trustee's affidavit were unconvincing.

As importantly, viva voce evidence given in submissions was not considered. To do so would be unfair to the respondent, particularly since the evidence had been available since June 4, 2009 and the hearing took place in August 6, 2009. Therefore, Justice Harris cited Rule 37.06(b), which stipulates that every notice of motion must state the grounds to be argued, and refused to consider the viva voce evidence.

There is no requirement under Rule 45 to prove the assets are actually at risk, so a R. 45 freezing order is easier to get before the close of pleadings.

Enjoy your day,

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.

COMING SOON TO AN ORDER GIVING DIRECTIONS NEAR YOU

Hull and Hull LLP — Tue, 23 Sep 2008 00:08:58 -0500

While I was in Court in Toronto on Friday, Mr. Justice Brown advised the court room in general that with respect to most Orders Giving Directions granted by him (and possibly other judges on the Estates List), the Order Giving Directions will include a Schedule that provides that the Applicant is to file with the Estates Office a tabbed, three ring, red 1” binder labelled “Endorsements/Orders Brief”, which is to be maintained as part of the record of the proceeding. Within five days after the making of any endorsement or Order in the proceeding, the Applicant is to file a copy of such endorsement or Order in the next available tab in the Brief.

Mr. Justice Brown observed that the purpose of such a Brief is to allow the presiding Judge on any subsequent hearing date to quickly determine the history of the proceeding, and all judicial determinations made to date.

The Schedule also provides that Factums are to be filed on all subsequent motions.

The utility of such a Brief and the requirement to file a Factum appears obvious. The requirements to create the Brief and to file a Factum will clearly assist the Court in determining the history of the proceeding, and allowing for the prompt and efficient determination of the matter before it.

Thank you for reading.

Paul Trudelle

The All-Powerful Constructive Trust

Hull and Hull LLP — Fri, 12 Sep 2008 04:01:10 -0500

In Langston v. Landen, a recent decision of the Ontario Court of Appeal, one of three co-executors of an estate having a value of some $24 million (in the words of the Court) "managed to shunt the other two executors to the sidelines. He started to loot the estate." Among Landen's transgressions was his use of estate assets to purchase a home in Forest Hill which he had put in his wife's name. On a motion for summary judgment, Justice Greer had imposed a constructive trust on the house for the benefit of the estate.

Landen's wife appealed. However, the Court easily concluded that the fact that legal title was in her name was irrelevant in circumstances in which the entire purchase proceeds came from the estate. Adopting a quote from the Reasons for Decision of Justice Greer, the Court stated: "Since the money came from Landen in his capacity as a fiduciary, the constructive trust or express trust flows from him and the money can be traced from him to the house purchase and renovation."

So too, for the same reasons, the wife's entitlement to any share of the property as the "matrimonial home" was negated. Of passing interest to the profession was the Court's additional conclusion that Justice Greer was well within her jurisdiction by imposing a vesting order on the house for the benefit of the estate in the absence of a motion seeking such relief.

David M. Smith