Law Times

Law Times • sepTember 3, 2018 Page 19 www.lawtimesnews.com munity. Smith v. Attorney General of Ontario (2018), 2018 Car- swellOnt 2497, 2018 ONSC 993, Warkentin R.S.J., Swinton J., and C. Horkins J. (Ont. Div. Ct.); re- versed (2016), 2016 CarswellOnt 18785, 2016 ONSC 7222, W. Matheson J. (Ont. S.C.J.). Estates and Trusts ESTATES Intestate succession Manner in which title to property was registered supported conclusion that title held in trust for deceased Plaintiff was fourth wife of de- ceased. BK and BW were brother and sister of deceased, respec- tively. Plaintiff claimed that prop- erty in which she resided was pur- chased by deceased as beneficial owner and legal title was placed in names of BK and BW for rea- sons associated with deceased's matrimonial proceedings at time. Plaintiff claimed that deceased was engage in having title trans- ferred into his name at time of his death. It was claimed on behalf of BK and BW that they purchased property to assist deceased finan- cially and allowed him to reside at property if he paid day-to-day expenses. Mini-trial was held to determine plaintiff 's claim. Declaration made that deceased was beneficial owner of property, which ownership vested in estate upon his death. It was more prob- able that deceased was beneficial owner of property and that BK and BW were registered on title as bare trustees. Deceased had ac- cess to sufficient funds to finance purchase if BW's monies in bank account were included, notwith- standing that he was unemployed at time of purchase. Evidence contradicted position that BW and BK financed purchase of 75 and 25 per cent of beneficial in- terests, respectively. On balance of probabilities, given that each of deceased and BW had monies in bank account that were included in monies withdrawn to fund purchase price, it was more likely that BW loaned monies to de- ceased to acquire property than reverse. Manner in which title to property was registered support- ed conclusion that BK and BW held title in trust for deceased. Khan v. Estate of Ahmed I. Khan et al (2018), 2018 Carswel- lOnt 10805, 2018 ONSC 4063, H.J. Wilton-Siegel J. (Ont. S.C.J.). ESTATES Will challenges Expert, who had not met deceased, ultimately could only offer tentative, if not speculative, opinion Deceased and his brother jointly owned farm property. In 2009 deceased and brother executed mirror wills leaving their equal interests in farm to each other. Deceased did not provide for his wife in wills, but designated her sole beneficiary of RRIF. Wife challenged validity of wills, contending that due to chronic alcoholism deceased lacked tes- tamentary capacity. Claim was dismissed. Wife appealed. Appeal dismissed. There was no error in trial judge's conclusion that evi- dence of substance abuse expert was inadmissible on cost/benefit analysis, in terms relevance, reli- ability and necessity, as against consumption of time, prejudice and confusion. Expert, who had not met deceased, ultimately could only offer tentative, if not speculative, opinion. Trial judge's gatekeeper function was not di- minished merely because wife was self-represented party. Trial judge committed no palpable or overriding error in finding that deceased possessed testamentary capacity. While trial judge did not separately address concepts of knowledge and approval, her findings about testamentary ca- pacity enveloped those concepts. Disposition of deceased's prop- erty made sense in context of his life and familial relationships. Dujardin v. Dujardin (2018), 2018 CarswellOnt 10860, 2018 ONCA 597, S.E. Pepall J.A., Da- vid Brown J.A., and G.T. Trotter J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 17657, 2016 ONSC 6980, A.K. Mitchell J. (Ont. S.C.J.). Family Law COSTS In family law proceedings generally Husband's case left much to be desired but security for costs not justified Trial of family law matter was scheduled for two weeks. Wife was represented by counsel but husband was self-represented. Wife claimed husband caused numerous delays in litigation and trial, and that husband did not have enough assets in Ontario to pay costs. Husband claimed im- poverishment due to actions of wife in relation to parties' invest- ments. Wife brought application for security for costs. Applica- tion dismissed. While presenta- tion of husband's case left much to be desired, it was premature to determine outcome of trial or conclude husband's claim was waste of time and/or nuisance. Husband had assets in Ontario totalling $78,000. Wife failed to establish husband's assets were insufficient to pay costs. Derakhshan v. Narula (2017), 2017 CarswellOnt 4936, 2017 ONSC 2053, L. Sheard J. (Ont. S.C.J.). COSTS Support Mother was more reasonable, having made offers to settle while father made none Mother brought successful appli- cation to have father's lifetime tax- free $343,459.99 disability award from Veterans Affairs (VA) Cana- da included in his income for cal- culating child support for parties' two children. Court determined that award should be spread over father's expected life span. Hear- ing was held to determine costs. Father was ordered to pay mother costs fixed at $11,750 inclusive, attributed to and enforceable as child support. Issues in case were important and case was reason- ably complex. Conclusion was opposite to that reached in only other reported case involving is- sue of whether VA lump sum dis- ability payment should be imput- ed for purpose of calculating child support. Parties were neither unreasonable nor guilty of bad faith although mother was more reasonable, having made offers to settle while father made none. Father delayed in contributing to s. 7 expenses for 10 months and unreasonably stopped child sup- port and was in arrears. Mother was successful in having some income imputed to father for pur- pose of calculating child support, in obtaining order that father pay set monthly amount towards children's s. 7 expenses, and in ob- taining child support arrears. Fa- ther had some success in having lump sum awards spread out over anticipated lifetime but mother was more successful overall and entitled to some costs on partial indemnity basis. Hewitt v. Rogers (2018), 2018 CarswellOnt 10607, 2018 ONSC 4049, A.C. Trousdale J., In Chambers (Ont. S.C.J.); addi- tional reasons (2018), 2018 Car- swellOnt 3106, 2018 ONSC 1384, A. Trousdale J. (Ont. S.C.J.). CUSTODY AND ACCESS Interim custody Mother created distorted status quo by making unilateral decisions and unreasonably controlling father's access Parties began living together be- tween 2004 and 2006, had two children, and separated in 2015. After separation, mother made decisions unilaterally regarding children's education and ex- tracurricular activities, despite father's attempts to discuss is- sues with her. Mother brought motion for interim sole custody of children with fixed access for father; Father brought cross- motion for interim joint custody and equal parenting time. Fa- ther's motion granted. Mother created distorted status quo by making unilateral decisions re- garding children, and unreason- ably controlling father's access. Mother was more responsible than father for poor communi- cation between parties. Com- munication tool was to be used by parents. Craig v. Torrance (2018), 2018 CarswellOnt 2309, 2018 ONSC 541, Spies J. (Ont. S.C.J.). Labour and Employment Law EMPLOYMENT LAW Wages and benefits Employer's actions thwarted employee's efforts to fulfill terms of contract Employee was Senior V-P, Gen- eral Counsel and Corporate Secretary of Crown corporation undergoing "Modernization Plan" when he decided to retire in 2015 after 25 years with em- ployer. Parties entered into first contract in 2013 which was re- placed with second in 2014 enti- tling employee to compensation beyond salary and pension in exchange for performing addi- tional duties, including transfer- ring compliance function and identifying and transferring du- ties to successor. Employee put forward potential successor, S , who was ultimately chosen to replace employee. In employee's 2013/4 Variable Pay Report, CEO described compliance function as having matured in very short time and as being in relatively good standing. Just before employee's anticipated retirement date, employer ad- vised employee he would not receive additional compensa- tion as he did not satisfy suc- cessor or compliance function transfer. Employee resigned and brought application for finding that he discharged his obliga- tions under contract. Applica- tion granted. Employer's actions thwarted employee's efforts to fulfill terms of contract. Em- ployee was to be paid as though he fulfilled terms of contract. S could not be said to be inap- propriate candidate. Employer's delay in naming S successor effectively scuttled employee's ability to train S and induced employee to breach contract. Due to removal of standards for compliance from second con- tract, transfer of compliance was simply high-level transfer of ac- countability to another which employer prevented employee from completing. Transfer was negligible duty that could have been accomplished in very short period of time. Fioravanti v. OLG (2018), 2018 CarswellOnt 10462, 2018 ONSC 3777, Varpio J. (Ont. S.C.J.). Municipal Law COUNCIL MEMBERS Conflict of interest Councillor careless in looking into whether she had conf lict Councillor SF declared pecuni- ary interest in matter relating to hook up of water services to large condominium residences. She resided in one of the ap- proximately 1400 condominium residences serviced by BRSO and GRSO. Applicant brought application seeking declaration that Councillor FS contravened subsection 5(1)(c) of Municipal Conf lict of Interest Act ("Act"). Application dismissed. Coun- cillor did not contravene Act. In each case Councillor first in- dicated to councillors that she was going to declare herself in conf lict. She had not been care- less in looking into whether she had conf lict. She obtained legal opinion which she knew had to be unofficial. She intended to be cautious and declare conf lict notwithstanding. Certainly, by expressing concern, Councillor was trying to provide informa- tion that might inf luence ap- proach the councillors took to matter but court rejected, as in- consistent with her attentiveness to possibility she was in conf lict and her cautious declaration, the assertion that she was intention- ally engaging in misconduct to inf luence their votes. Biffis v. Sainsbury (2018), 2018 CarswellOnt 10650, 2018 ONSC 3531, M.P. Eberhard J. (Ont. S.C.J.). Tax GOODS AND SERVICES TAX Interpretation No requirement that residential complex/residential unit exemption involve transfer of entire residential unit or complete residency unit Plaintiff owned large parcel of land divided into three lots and two lots had structures on it. Third lot, lot 27, was listed to be sold as vacant land but had indoor pool house structure on it, and plaintiff and defen- dant entered into agreement for purchase and sale (APS) for lot 27. Before closing, defendant's lawyer sent requisition letter to plaintiff 's lawyer requesting stat- utory declaration that transac- tion would not be subject to HST and plaintiff 's lawyer provided same. Statutory declaration stat- ed on HST issue that property was "used residential complex" and as such, property was exempt from HST under schedule V of Excise Tax Act. At time of clos- ing, structures remained intact and were demolished by plain- tiff approximately 45 days later. One year after closing, plaintiff informed defendant that HST was payable in addition to pur- chase price. Plaintiff brought motion that sought payment of HST from defendant. Motion dismissed. It was concluded that pool house was part of residen- tial unit per definition in s. 123 (1) of Excise Tax Act and that it was inhabitable and accordingly, it was found that sale of lot 27 was sale of used residential unit that was exempt transaction under Schedule V of Act, and therefore HST was not payable on sale. Definition of residential complex under s. 123(1) of Act also includ- ed any appurtenance to building, and pool house was attached to home by permanently covered stone hallway. At time of clos- ing, residence and pool structure were complete structures which were suitable for living in, and looking only at lot 27, pool house was residential unit and plaintiff had onus of establishing that it was uninhabitable, which plain- tiff did not do. There was no re- quirement in Excise Tax Act that residential complex/residential unit exemption involve transfer of entire residential unit or com- plete residency unit. 2137691 Ontario Limited. v. Lucia Pessoa Park (2018), 2018 CarswellOnt 11338, 2018 ONSC 4218, Coats J. (Ont. S.C.J.). CASELAW

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