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PRACTICE AND PROCEDURE - Parties

Wednesday, February 27, 2019 @ 8:10 AM  


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Appeal by the former wife of the deceased from refusal of variation of an order requiring prior leave to advance any claims against her former husband's estate, and from the order itself. The appellant and her former spouse divorced in 1996. The appellant's former spouse died in 2013. His Will divided his estate between his common-law partner and his two children. The appellant was not a named beneficiary. She consequently filed two objections to the appointment of the respondent as estate trustee, and advanced claims for arrears in spousal support and ongoing spousal support, return of property and unjust enrichment. In March 2017, the respondent obtained an order requiring the appellant to apply for leave to advance any claim or motion, with her claims dismissed if she failed to serve a leave application within 30 days. The March order was granted due to an unpaid costs order set out in a 2008 order granted in the appellant's bankruptcy proceedings. In August 2017, the appellant's motion to set aside or vary the March order was dismissed after she failed to appear. The appellant appealed.

HELD: Appeal allowed. The motion judge did not err in dismissing the motion to set aside the March order given the appellant's failure to appear, as her non-appearance followed several adjournments and no suitable explanation for the absence was provided. The costs order from the August motion remained extant. With respect to the March order, the motion judge erred in concluding that the 2008 order made in the bankruptcy proceedings barred the appellant from advancing her claim without first obtaining leave in the estate proceedings or any other proceedings unrelated to her bankruptcy. In the absence of a vexatious litigant declaration, it was unreasonable and incorrect to expand the reach of the 2008 order beyond the bankruptcy proceedings to unrelated estate litigation. The March order and related costs award were set aside on terms related to expedition of the estate proceedings.

Appleyard v. Zealand, [2019] O.J. No. 201, Ontario Court of Appeal, G.R. Strathy C.J.O., L.B. Roberts and B. Zarnett JJ.A., January 4, 2019. Digest No. TLD-February252019006